State v Lusaka [2021] FJHC 299; HAC286.2019 (2 November 2021)

IN THE HIGH COURT OF FIJI
AT SUVA
[CRIMINAL JURISDICTION]

CRIMINAL CASE NO: HAC 286 OF 2019
CRIMINAL MISC NO: HAM 280 OF 2019

STATE

V

KIALA HENRI LUSAKA

Counsel: Ms E Rice for the State

Ms L Vaurasi for the Accused

Date of Hearing: 29 October 2021
Date of Ruling: 2 November 2021

RULING

[1] The Accused is a Congolese national. He was married to an Australian national who worked for an international organization in Fiji. He accompanied his spouse to live with her and their children in Fiji while she worked as an expatriate.

[2] On 23 July 2019, the Accused was arrested and charged for the murder of his spouse.

[3] On 12 April 2021, the trial began before Perera J but was halted half way through the prosecution case due to Covid-19 pandemic. Before the health restrictions were uplifted Perera J’s employment contract expired and the trial was not concluded.

[4]case is nois now before me for the trial to be heard de-novo. Atrial date is yet to be f be fixed. It is very unlikely tha trial could be heard before April 2022. My court diary for the first quarter of next year year is full.

[5] Section 13 f the Bail Act states:

If a person charged for an offence has been in custody for over 2 years or more and the trial of the person has not begun, the court must release the person on bail subject to bail conditions the court thinks fit to impose. (Emphasis added)

[6] Two years lapsed on 23 July 2021. By that time the trial had begun and section 13 (4) does not apply where the trial of the Accused has begun and the court has refused to grant bail (s 13 (5) of the Bail Act).

[7] There is now a change in circumstances to revisit bail. My reading of section 13(4) of the Bail Act is that it is mandatory to release a person on bail if he or she has been in custody for over 2 years without trial. This interpretation is consistent with the right to be tried within a reasonable time provided by the Constitution. As the House of Lords in Attorney General's Reference (No 2 of 2001) [2003] UKHL 68, [2004] 2 AC 72 at [22]:

If, through the action or inaction of a public authority, a criminal charge is not determined at a hearing within a reasonable time, there is necessarily a breach of the defendant's Convention right under article 6(1). For such breach there must be afforded such remedy as may (section 8(1)) be just and appropriate or (in Convention terms) effective, just and proportionate. The appropriate remedy will depend on the nature of the breach and all the circumstances, including particularly the stage of the proceedings at which the breach is established. If the breach is established before the hearing, the appropriate remedy may be a public acknowledgement of the breach, action to expedite the hearing to the greatest extent practicable and perhaps, if the defendant is in custody, his release on bail.

[8] The only statutory caveat to the right to be released on bail after being in custody for more than two years awaiting trial is provided by section 13 (6) of the Bail Act. That section states that the period of 2 years does not include any period of delay caused by the fault of the Accused.

[9] The word ‘fault’ in section 13 (6) of the Bail Act means litigation fault for which the Accused is held to be responsible and not personal fault of the Accused. As Gates J (awas then) sai) said in State v Shankar [2003] FJHC 50; HAM0014.2003 (8 May 2003) at [41]:

In a sense the nonlability of defence counsel on two occasions, and the refusal to accept his counsel by Accu Accused 1 are to be considered as “faults” in the process of litigation attributable to the 2 Accused. A certain amount of discretion may have to be exercised by the courts on occasion to alleviate the harshness of this approach. But I read “fault” in Section 13 (6) to mean “litigation fault for which the Accused is to be held responsible”, as opposed to “personal fault of the Accused”.

[10] In the present case, there is no litigation delay caused by the Accused. After his application for legal aid was declined, fortunately for him, counsel from the private bar decided to provide legal representation pro bono. There has been some language barrier to effectively communicate with the Accused but that barrier was overcome with the provision of a French translator. Trial did begin within 2 years from the date of arrest but was halted by a pandemic and then expiry of the judicial warrant of the trial judge. The Accused is not nsible ible for the litigation delay to be at fault.

[11] In these circumstances, section 13 (4) mandates his release on bail subject to conditions the court thinks fit to impose.

[12] Being a foreiforeigner, the Accused does not have a fixed residence of his own in Fiji. He also does not have strong community ties in Fiji. However, four Fijians from faith based institutions have come forward and offered to stand as sureties for the Accused. Two are willing to accommodate the Accused in their homes while he is on bail awaiting trial.

[13] I am mindful that section 22 (2) of the Bail Act requires a surety to be acquainted with the Accused in order to provide the court with the assurance that the Accused is likely to comply with his bail conditions. The fou who are offering ting to take the bail undertaking for the Accused got acquainted with him during their visits to the remand centre under the Department of Corons faith based counselling programmes. The connection betw between the Accused and his proposed sureties may not be strong, but because the Accused is a foreigner and genuinely unable to fully comply with section 22 (2), I am prepared to accept two sureties with the word of caution that I am treating the circumstances as exceptional (Kumar v State Miscellaneous Action No HAM008 of 2005S).

[14] I grant bail to the Accused on the following conditions:

1. Provide two sureties to sign a bail bond of $2000.00 each.
   
2. Accused is to reside with one of his sureties at a fixed address and not to change his address without the leave of the court.
   
3. Accused must surrender all his travelling documents and not to obtain any travelling documents while on bail.
   
4. Accused must not contact or interfere with the prosecution witnesses.
   
5. Accused must report to a police station nearest to his residence every Saturday between 6am and 6pm.
   
6. Accused must attend all his court hearings.
   

[14] I remind the sureties that it is their duty to ensure the attendance of the Accused at court whenever he is required to attend and to see that he complies with the terms and conditions of his bail.

...">..............................................
Hon. Mr Justice Daniel Goundar

Solicitors:
Office of the Director of Public Prosecutions for the State
Sher>Shekinah Law for the Accused