Turagava v State [2016] FJHC 23; HAM199.2015 (19 January 2016)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
MISCELLANEOUS JURISDICTION

CRIMINAL MISCELLANEOUS CASE NO: HAM 199 OF 2015

BETWEEN:

AMINIO TURAGAVA
Applicant

AND:

STATE
Respondent

Counsel : Applicant in Person
Ms S. Kiran for the Respondent

Date of Hearing : 19th January, 2016
Date of Ruling : 19th January, 2016

BAIL RULING

1. The Applicant who is charged with Murder contrary to Section 237 of the Crimes Decree No. 44 of 2009 applies for bail pending trial.

2. This is his Third bail application, the first two being rejected by this Court.

3. The Applicant has been in remand since October 2014.

4. The State has filed its response supported by the affidavit of Detective Inspector Jai Singh of Lautoka Police Station. The State is objecting to bail to the Applicant on the grounds stated in the affidavit.

5. According to Section 14 (1) of the Bail Act, an accused can make any number of bail applications. However, power to review an existing bail order should be exercised only if the court is satisfied that there are special facts or circumstances that justify a review.

6. According to Section 30 (7) of the Bail Act, court which has power to review a bail application or to hear a fresh application under Section 14 (1) may, if not satisfied that there are special facts or circumstances that justify a review, or the making of a fresh application, refuse to hear the review or application.

7. On a second or subsequent application for bail, courts need only ask first whether there had been a material change in circumstances since the original order. If there had been no change, there was no need to look at the facts underlying the previous refusal of bail.

8. The two issues that this court is required to address at this point are that:

I. Has there been a change in circumstances since the last bail ruling?

II. Are there new considerations which were not before the Court when the accused was last remanded in custody? (See: Regina v Notingham Justices, ex parte Davis; QBD (1981) QB.38,71 Cr.App.R.178 DC).

9. The Applicant in his application has advanced two new grounds:

a. that his right to prepare for his defence has been denied by long term remand period.

b. that wellbeing and protection of his children have been severely affected whilst he is in remand.

10. The State's objection to bail is substantially based upon the Applicant's failure to abide by bail conditions imposed in case No. CF 460/14. According to Detective Inspector Jai Singh's affidavit, the Applicant has violated a DVRO when he went to the deceased's de facto partner and allegedly assaulted her to death. Applicant is alleged to have committed an offence involving domestic violence. Presumption in favour of bail is displaced when a previous bail condition has been violated and also when there is an allegation involving domestic violence.

11. Applicant has denied the charge and asserted that the case against him is unfounded and no credible evidence has been presented to court against him. He relies heavily on the presumption of innocence as the ground for him to be at liberty pending trial and seeks to challenge the cautioned interview at the trial.

12. The Applicant's new grounds for bail are apparently based on the premise that his long term remand period has severely affected his interests. However, the first ground he has advanced is unfounded and cannot be accepted as valid. The fact that he is in remand for a long period can't affect his right to seek legal assistance and prepare for his defence properly. Even a private counsel can visit him in remand prison and get his instructions. Difficulty caused to the Applicant by lack of library facilities in the Natabua Centre can be minimized by this Court's generosity in allowing his application to use the High Court library. Bail Act permits an accused person to be kept in remand custody for up to two years pending trial if interests of justice so require. Therefore, his first new ground fails.

13. As regards the interests of his two children, the applicant has made a strong case. He states that he has two children and their upbringing has being severely affected by his long term remand period. To support his claim the applicant has filed an affidavit through his sister in whose custody his children are.

14. According to the affidavit of his sister, Siteri Marama, Applicant's children are being looked after by her with great difficulty after the demise of her parents. Siteri's husband had been at loggerheads with her over the children and he had forced her to leave him after an argument resulting her being hospitalized. Now she has left her husband and is living with Applicant's two children. She is unemployed and has indicated her difficulty look after the children.

15. Clearly, the care of dependents is a relevant consideration in the grant or refusal of bail. Devi v The State [2003] FJHC 47; HAM0003.2001s (5 March 2003).

16. The United Nations International Convention on the Rights of the Child (Convention) was adopted by the United Nations General Assembly in 1989. Article 3 states:

"In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration."

Article 9 provides:

"States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child."

17. The ethos of the Convention is clear. In all acts involving children, a decision must be made after assessing what is in the best interests of the child.

18. The Convention was ratified by Fiji in 1993 and the judges in Fiji must give effect to the spirit of the Convention when they are called upon to interpret local Legislation and Decrees.

19. The Convention is a valuable guide to the weight that a Court must put on Section 19 (2) (b) (iv) of the Bail Act., Devi (supra)

20. The Constitution of the Republic of Fiji, in Section 41(2), has incorporated the concept of best interest of the child recognized by the Convention.

21. In Devi (supra) Justice Shameem observed:

"Where, for instance, both parents are in custody and there are no arrangements for the care of children of tender years, bail should be granted because it is in the best interests of the children that they are not separated from their parents. One situation where it would not be in their best interests, would be where the parents are accused of abusing or neglecting their children. However, this is not to say that bail should always be granted where both parents are in custody. There may be circumstances where public interest considerations or the conduct of the parents themselves, would justify a refusal of bail. Each case must turn on its own facts. And, in relation to Article 3 of the Convention"

22. In the present case, mother of the children (deceased de facto partner of the Applicant) is no longer among the living and the father is in remand. The only care giver, Applicant's sister, is virtually refusing to look after the children in view of the difficulties she is facing. The best interests of the Applicant's two children, who are now left without a care-giver, are a primary consideration in the grant or refusal of bail in this case.

23. However, the rights of the Applicant's children must be balanced with the interests of the public. Counsel for the State, in response to a previous bail application, had raised two public interest issues in opposing bail. She submitted that, in view of Applicant's previous record of DVRO breach, he is having tendency to breach bail conditions.

24. Since the Applicant's de-facto partner in whose protection the DVRO was in place is no longer among the living, granting of bail to the Applicant will not raise domestic violence issue any longer.

25. The other issue the State Counsel raised was with regard to Applicant's propensity to interfere with prosecution witnesses who are his close relatives. However, there is no evidence that the Applicant had tried to interfere with witnesses. Nor is there any suggestion that the Applicant might re-offend whilst on bail or that he had failed to appear in the past. He has no previous convictions. Court is of the view that strict bail conditions can ensure that any kind of interference with witnesses do not take place.

26. The Applicant has so far been in remand for more than one year. In these circumstances, the court considers that the second new ground advanced by the Applicant for bail has merit and should receive due recognition by this Court in the best interests of his children. There seems to be no good reason why bail should be denied at this stage.

27. In all the circumstances I consider that bail should be granted to the Applicant on strict conditions. Applicant must sign personal bail bond for $1000 and provide 2 sureties in the sum of $500.00 each. He must report to Natabuwa Police Station every Saturday between 8.a.m and 6p.m. He must not speak to or contact any witness in this case whilst on bail. Bail is granted on these conditions.

Aruna Aluthge
Judge

At Lautoka
19th January, 2015

Solicitors: Applicant in Person
Office of the Director of Public Prosecution for the Respondent