Saukuru v State [2015] FJHC 950; HAM205.2015 (4 December 2015)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
MISCELLANEOUS JURISDICTION

CRIMINAL MISCELLANEOUS CASE NO: HAM 205 OF 2015

BETWEEN:

PAULIASI NIUSAMA SAUKURU
Applicant

AND:

STATE
Respondent

Counsel : Mr. K. Tunidau for Applicant Mr. S. Nath for the Respondent
Date of Hearing : 30th November, 2015
Date of Ruling : 04th December, 2015

BAIL RULING

1. The Applicant who is charged with Murder and Theft contrary to Section 237 and 291(1) respectively of the Crimes Decree No 44 of 2009 has filed this bail application seeking bail pending trial. The application is supported by an affidavit filed by his father.
   
2. The State has filed its response supported by the affidavit of Police Constable Tebau of Sabeto Police Station and is objecting to bail on the grounds stated in the affidavit.

The Law

3. Every person charged with an offence has the right to be presumed innocent until proven guilty according to law; [14 (2) (a) of the Constitution]

4. Every person who is arrested or detained has the right to be released on reasonable terms and conditions, pending a charge or trial, unless the interests of justice otherwise require;[13.(1) (h)of the Constitution]

5. Every child who is arrested or detained has the right to be kept separate from adults unless that is not in the best interests of the child;[13 (1) (e)of the Constitution]

6. A person charged with an offence must be released pending trial unless the state can show that there are relevant and sufficient reasons to justify his continued detention. The presumption in favour of granting of bail in Section 3 (3) of the Bail Act can be displaced only when there are valid grounds for detention. According to Section 3 (1) of the Bail Act, every Accused has a right to be released on bail unless it is not in the interests of justice that bail should be granted.

Analysis

Likelihood of the Accused Person Appearing in Court

7. According to Section 17 (2) of the Bail Act, the primary consideration in deciding whether to grant bail is the likelihood of the Accused person appearing in court to answer the charge laid against him.

8. The Applicant is charged with Murder along with Theft. Respondent submits that the charge of Murder against the Accused is serious and the Applicant will not appear in Court to answer the charges if bail is granted. However, seriousness of the offence per se does not preclude this Court from releasing an Accused person on bail pending trial. The seriousness of the offence is relevant but not the predominant factor. Tak Sang Haov The State [2001] FJHC 15; HAM0003d.2001s (26 April 2001).

9. Respondent, by the affidavit of Police Constable Tebau, also submits that there is strong evidence against the Applicant and it is highly likely that he will not appear in Court to face trial. To substantiate his assertion he has annexed the cautioned interview statement and the charge statement of the Applicant wherein he confessed to the crimes.

10. Proving the charge against the Applicant is a trial function. Court is not supposed, at this stage, to evaluate evidence against the Applicant. Said that, Courts must, however, when considering bail, be satisfied whether a strong case is made out against the Accused so as to justify denial of his right to liberty enshrined in the Constitution.

11. Applicant relies heavily on the presumption of innocence as a ground for him to be at liberty pending trial. It appears that the only considerable evidence available to the prosecution is the confession of the Applicant. Presence of strong evidence against the Applicant is relevant but again it is not the predominant factor.

Interest of the Accused

12. As regards the interests of the Accused person, the Applicant is 16 years old student of Nadi Technical College. He has no previous convictions. Constitution specially provides for child detainees. Every child who is arrested or detained has the right to be kept separate from adults unless that is not in the best interests of the child[Section 13 (1) (e) of the Constitution]. In order to comply with the Constitutional provision, Applicant is currently being detained at the Suva Boys Centre. Respondent submits that this remand facility gives the Applicant access to facilities for sustainable humane and safe custody. However, for remand extensions, the Applicant is transported fortnightly from Suva, wasting considerable amount of public money.

13. My trial diary is fully booked until November 2016. Information and disclosures are yet to be filed. No immediate trial date is possible. According to Section 17(1) of the Bail Act, when deciding whether to grant bail to an Accused person, the court must take into account the time the person may have to spend in remand before trial, if bail is not granted. Keeping a child long time in remand without trial is not good although Remand Centre has all the facilities.

14. Respondent also submits that it is in the interest of the Applicant to be kept in remand for his safe custody as he can be subjected to attacks from the family of the deceased. State has not presented any material to substantiate its claim that he is under threat from deceased's relatives. Courts can't act upon speculations. Even if it is assumed that the assertion of the Respondent is well founded, keeping a person in remand for his own safety is not warranted by law.

In Tak Sang Hao v The State Justice Shameem stated as follows:

In respect of remanding persons for their own protection, I doubt that section 34(6) permits such a justification for remand on its own. I note that such justification was included by statute in England (the Bail Act), and is not one of the developed factors relevant for bail, under the European Convention on Human Rights. As Fatiaki J said in Pita Vuli -v- The State Miscellaneous Act No. 8 of 1990, at page 2, 3:

"As to the safety of the applicant himself, it is the court's view that this alone is an insufficient ground for depriving a person of his liberty.

If I might say so, the protection, safety and security of persons in this country rests primarily with the police and not with prison wardens. Furthermore it is not suggested that the police would not be able to carry out its normal responsibilities in regard to the applicant or that he has received life-endangering threats."

I therefore disregard the prosecution's suggestion that the Applicant's life is at risk if he is released, particularly because no evidence has been presented to me that the Applicant has been threatened by any person or persons, or that his release will result in public disorder.

15. I am therefore of the view that granting of bail would be in the best interest of the Applicant.

Public Interest and the Protection of the Community

16. The State is concerned that the prosecution witnesses include the relatives of the deceased, and if released on bail, it is highly likely that the Applicant will interfere with them and this high risk of interference cannot be avoided unless the Applicant is remanded in custody.

17. Public interest factor has to be balanced with the interest of the Accused. The proposed measure (detention) must be reasonable, proportionate and suitable to achieve the aim. The proposed purpose to be achieved by restricting Applicant's liberty is avoidance of undue interference with administration of justice process. Applicant has already indicated to Court his willingness to relocate himself to avoid any contact with State witnesses. I am of the view that imposition of strict bail conditions can guard against any interference with witnesses. Interest of the public would not be at risk by granting bail to the Applicant.

18. For foregoing reasons, the application for bail pending trial is allowed.

I order the release of the Applicant subject to following bail conditions:

a) Personal surety bond for FJD$1,000.00 (non-cash)

b) Surety bond for FJD$2,000.00 with two sureties, (non-cash)

c) Report to the Namaka Police station on every Sunday between 8.00 a.m. and 6.00 p.m.,

d) Must provide the address to Court where the Applicant is intending to reside and must confine himself to that address until the conclusion of this case,

e) Not to interfere with prosecution witnesses.

f) Not to reoffend whilst on bail.

Aruna Aluthge
Judge

At Lautoka
04th December 2015

Solicitors: Kevueli Tunidau Lawyers for Applicant
Office of the Director of Public Prosecution for the Respondent