State v Vereti [2012] FJMC 1; Criminal Case 08.2012 (4 January 2012)

IN THE MAGISTRATE'S COURT AT SUVA
CRIMINAL DIVISION

Criminal Case No. 8 of 2012

The State

v

(1) Apete Vereti
(2) Semisi Nasike
(3) Mere Samisoni
(4) Mataiasi Ragigia

For the State: Ms. Whippy
For Accused 1, 2 and 4: Ms Vaniqi
For Accused 3: Mr. Williams

Bail hearing: 3rd January 2012
Bail ruling: 4th January 2012

RULING ON BAIL APPLICATION

[1] The four Accused persons before the Court stand charged for the following offence: -

Statement of Offence (a)

URGING POLITICAL VIOLENCE: contrary to section 65 (1) (b) of the Crimes Decree No. 44 of 2009

Particulars of Offence (b)

APETE VERETI, SEMISI NASIKE, MERE SAMISONI and MATAISASI RAGIGIA between the months of September 2011 to the 23rd of December 2011 at Suva in the Central Division intentionally urged WAISEA KALOUMAIRA to burn the city of Suva and to overthrow by force or violence the Government of Fiji

The 4 Accused persons were first produced on the 3rd of January 2012.

[2] All of the Accused have submitted applications for bail through their counsels.

These proceedings were initially stood down as Mr. Williams needed to attend to obtaining temporary admission as a barrister of the High Court in Fiji in order to represent the 3rd Accused. He has now been duly admitted and he has right of audience in this matter.

[3] Ms Vaniqi appears for the 1st, 2nd and 4th Accused persons in this matter and she has given the following submissions with respect to each of her three clients.

Apete Vereti

[4] He is 57 years of age, is currently self employed and earns $300 a week.
He is married with 3 children; the youngest is 17 years of age and is a fifth former attending Ratu Kadavulevu School. 2 of his three children and his wife are still financially dependent on him therefore his further detention will have a detrimental effect on them.

[5] He has resided at 10 Naduri Lane, Derrick Street, Raiwaqa for the last 20 years. He has fixed ties in his community and his closest police station is the Raiwaqa Police Station to which he is prepared to report if the Court orders him to do so. He has already surrendered his passport and he submits that he is not a flight risk.

[6] He suffers from asthma attacks for which he is prescribed medication. He submits that in police custody they sleep in concrete cells and he contends that this will aggravate his asthma. Counsel submits that it is in his interest to be granted bail.

[7] He is able to provide 2 sureties and Sovea Tabua and Josaia Lewanavanua are present and prepared to stand surety for him.

Semisi Nasike

[8] He is 54 years of age married with 5 children with the youngest being 18 years of age. He supports his family as a private bailiff earning $200 a week. He is the family's sole breadwinner and he supports his wife and 4 of his children.

[9] He has resided at 31 Kaudamu Road, Kinoya for the past 30 years and his nearest police station is Valelevu Police Station and he is ready to report if ordered by the Court to do so. He is a first offender and he has never had any problems with bail before. His passport has expired but it has also been surrendered to the authorities therefore he submits that he is not a flight risk.

[10] He has suffered from diabetes for the past 9 years for which he has daily medication. He is also receiving medication for a heart condition and high blood pressure. He has been in police custody for 7 days and on the 1st of January he almost collapsed and he had to be taken to the hospital for treatment. He was advised by the doctors that the stressful condition of detention by the police was aggravating his medical condition and he submits that he needs to be on bail for the sake of his health.

[11] He is able to provide 2 sureties – Tevita Fotofili and Paula Rakai and they are willing to stand surety for him.

Mataiasi Ragigia

[12] He is 54 years of age, now retired and living on his pension. He has suffered from a back condition since 2002 and he needed to have surgery in 2006. He is still taking medication for that back condition and he requires daily massages on his back and right leg.

He also requires special diet that is not available to him if he is denied bail. He acknowledges that for the past 7 days the police have obliged him by taking him home for hot showers and for his family to prepare his meals. The concern is that the conditions of his detention will aggravate his back conditions and the current arrangements with the police may not be possible if he is in remand.

[13] He has a passport and it will be surrendered to Court if he is granted bail. He is also willing to abide by strict bail conditions including reporting and curfew conditions as well.

[14] He is able to provide two sureties – Vasiti Tidrakulu and Josefa Nainima. They both understand the duties of a surety and are willing to stand surety for him.

[15] The Accused rely on the presumption of bail as set out in section 3 of the Bail Act 2002. They also rely on sections 19 (1) (b) – where it is in the interest of the Accused to be on bail referring to their medical condition as submitted. They also rely on section 19 (2) (b) (ii) relating to their conditions of remand. They submit that it is in their interest and that of their families that they be released on bail.

[16] The Accused persons also rely on the authority of the case of Ballu Khan who was granted bail in the Magistrate's Court even tough he was charged with a more serious offence that the one before this Court.

Mere Samisoni

[17] She is 73 years of age and counsel submits that even though the approach in the Courts in this jurisdiction mandates that each applicant for bail is to be treated uniformly, he submits that her circumstances are exceptional. He submits that she has not complained about her conditions of detention and rather that she has been very complementary of the way that the police have treated her while she has been in their custody.

[18] As to her conditions of custody, counsel submits that the cells are very hot and humid and not conducive for an old woman of 73 to be staying. According to counsel, the 3rd Accused has lost weight. Despite these inconveniences she has not complained indicating her respect for authority and reinforces why she should be granted bail.

[19] She resides in Muanikau very near to the Muanikau Police Post and she is able to report there if required. She is ready to surrender her travel documents and she is not a flight risk as she is a part of the history of Fiji.

[20] She has a long history of service in Fiji and abroad and she also has several businesses in Fiji which she still has daily involvement in and she has neglected these businesses whilst in police custody.

[21] In addition to her business ties to Fiji – 2 of her 4 children still live in Fiji. She has firm ties in the community where she is held in high regard. She has also served a as a Member of Parliament until she was removed in 2006.

[22] Counsel submitted that these current allegations are completely incongruous and out of character for her and he wanted an opportunity to sit down with her and find out what lay behind these allegations. Counsel further submitted that this process was preferably done in the comfort of her own home or office rather than the restricted confines of the remand centre.

[23] Counsel relies on the case of Ballu Khan and offers it as persuasive authority that may compel the Court to exercise its discretion to grant bail for her. She has been cooperative throughout her period of detention, she has very substantial ties to Fiji with business and family ties, and in his words "she is not going anywhere."

Counsel therefore submits that the Court must exercise its discretion and grant her bail.

The State's submissions

[24] The State objects to bail on the following grounds: -

(a) The seriousness of the offence – this is a serious offence under the Bail Act, which defines a serious offence as any offence that carries a maximum sentence over 5 years. The charge before the Court carries a maximum sentence of 15 years.

(b) The offence is also serious because it is an offence against the State and government.

(c) The State has a solid case that establishes the intentions of the 4 Accused persons to incite the complainant to burn businesses and buildings in Suva with the ultimate aim of violently overthrowing the government of the day. In addition to inciting the complainant the State submits that the evidence they have indicates that the Accused persons also took active steps to facilitate the overthrowing of the current government.

(d) Section 19 of the Bail Act sets out a three tier test and the State's main ground of objection relates to the public interest. The State submits that the members of the public have the right to be protected from civil unrest and turmoil and it is in the public interest that the four Accused be remanded for the time being until the situation calms down.

The State submits the authority of Wakaniyasi –v- The State where Justice Gounder held that for the three grounds set out in section 19 – it is sufficient for the State to establish only one of the three limbs of the three tier test for the Court to refuse bail.

(e) The State further submitted that if the Court were minded to grant bail then the State has set out 8 conditions for bail. These include reporting conditions, curfew, non-association of the Accused with each other whilst on bail, provision of 2 sureties each and cash bail of up to $10, 000

Rebuttal

[25] In their rebuttal, Accused 1, 2 and 4 submit that the State has rightfully raised the public interest as opposed to individual rights and contends that the Court should strike a balance between these competing rights. It is submitted that when these rights are weighed together, then in the particular facts of this case the Court's exercise of its discretion should lie in favour of the Accused because of their particular antecedents.

[26] As for the seriousness of the charge, the Accused submit that these are mere allegations at this stage and all of the Accused are presumed to be innocent of these allegations which shall be vigorously contested at the trial of this matter. The State still has the onus of establishing all the elements of the allegation before the Court. As for the cash bail component, counsel points to each of the Accused's financial position and contends that they are in no position to post cash bail of $10, 000.

[27] For the 3rd Accused, counsel submits that the State at no stage disputed the fact that the Accused was not a flight risk or that she would not attend court on any subsequent occasion.

[28] As for the seriousness of the charge – counsel submits that the charge before the Court is a conspiracy charge, not a substantive offence. There are no allegations of weapons, or of any explicit acts of violence.

[29] The bail conditions as suggested by the State are properly stringent, subject to slight amendments and she is able to abide by these conditions.

Analysis

[30] These Accused are charged with an indictable offence triable summarily meaning that this trial may be heard in this Court or in the High Court. It falls under Part 10 of the Crimes Decree under the heading Treason and other offences against Government Authority therefore it is a serious offence.

[31] There is a general presumption of bail for every Accused person as set out at section 3 (1) of the Bail Act. The relevant provision provides:

"3.-(1) Every accused person has a right to be released on bail unless it is not in the interests of justice that bail should be granted."

[32] This general presumption of bail is displaced where the person seeking bail has previously breached a bail undertaking or a condition of bail. The other instance where the presumption of bail is displaced is where the person seeking bail has been convicted of an offence and is appealing against that conviction. These are set out at section 3 (4) of the Bail Act.

[33] Section 3 (3) of the Bail Act provides as follows: -

"(3) There is a presumption in favour of the granting of bail to a person but a person who opposes the granting of bail may seek to rebut the presumption"

[34] Section 17 of the Bail Act sets out the general provisions for determining bail and the primary consideration is set out at section 17 (2), which states as follows: -

"(2) The primary consideration in deciding whether to grant bail is the likelihood of the accused person appearing in court to answer the charges laid against him or her."

[35] Section 19 (1) of the Bail Act sets out the circumstances in which bail may be refused and the relevant section states as follows: -

Reasons for refusing bail

19.-(1) An accused person must be granted bail unless in the opinion of the police officer or the court, as the case may be-

(a) the accused person is unlikely to surrender to custody and appear in court to answer the charges laid;

(b) the interests of the accused person will not be served through the granting of bail; or

(c) granting bail to the accused person would endanger the public interest or make the protection of the community more difficult.

[36] In applying all of the above cited provisions of the Bail Act to this case, the Court is mindful of the fact that none of the assertions and submissions made by either party is based on any independent evidentiary material.

This is quite understandable given that this is the first time for this matter to be brought before the Court and the application for bail is made at first instance. Notwithstanding that fact, the principles for granting or refusing bail are clear and are dealt with comprehensively in the Bail Act.

[37] From the submissions of both parties there is no substantial dispute as to the likelihood of the Accused persons surrendering to custody and appearing in Court to answer their charges (section 19 (1) (a).

There is also no dispute that the interests of each Accused is better served on bail rather than in police custody (section 19 (1) (b).

The only dispute is whether granting bail to the Accused persons would endanger the public interest or make the protection of the community more difficult.

[38] The Bail Act has very helpfully set out the criteria for considering submissions under section 19 (2) (c) where the State submits the granting bail would endanger the public interest or make the protection of the community more difficult.

The relevant provision is section 19 (2) (c) which provides: -

"(c) as regards the public interest and the protection of the community-

(i) any previous failure by the accused person to surrender to custody or to observe bail conditions;

(ii) the likelihood of the person interfering with evidence, witnesses or assessors or any specially affected person:

(iii) the likelihood of the accused person committing an arrestable offence while on bail."

[39] There is nothing before the Court to indicate that there is an imminent danger of the Accused persons interfering with any witnesses or of reoffending if they are granted bail.

[40] If the State were serious in pursuing this objection then at the very least there ought to have been evidence from the investigating officer(s) of any such possible interference or of any imminent threat of reoffending if the 4 Accused persons are granted bail.

[41] That being the case, the Court finds that the State has failed to displace the presumption of bail in favour of all 4 Accused persons and they are going to be granted bail.

[42] This then leaves the question of the conditions for bail. All the Accused persons state that they are willing to abide by the proposed conditions for bail as submitted by the State. Accused 1, 2 and 4 however state that their financial position makes it impossible for them to post a cash bail of $10, 000.

[43] Section 22 of the Bail Act sets out the conditions of bail that a Court may impose when granting bail to an Accused person. These conditions include the Accused and his or her surety entering into an agreement with the Court with or without security which may be forfeited if the Accused person breaches any condition of bail (at section 22 (2).

The Bail Act then sets out the requirement for such security at sections 22 (3), (4) and (5) which provide as follows: -

"(3) If security by an accused person or surety as referred to in this section is considered necessary as a condition of bail the police officer or the court, as the case may be, must ascertain, under oath if necessary, the ability of the accused person or the surety to provide the security.

(4) If security as referred to in this section is required, it must be set with reference to the capacity of the accused person or acceptable person to meet the obligation.

(5) A requirement for security as referred to in this section must not be imposed if it amounts to an unreasonable impediment to the granting of bail."

[44] Accused 1 has stated that he earns $300 a week as a self-employed person; Accused 2 earns $200 a week as a private bailiff, while Accused 4 has not disclosed his weekly earnings but states that he is a pensioner.

The Court is of the view that imposing cash bail of $10, 000 in this instance would amount to an unreasonable impediment to the granting of bail. All of these Accused have been charged together for this offence and the conditions of bail must be equally onerous for all of them. If three out of the four are unable to be bailed simply because they are impecunious, then it would amount to an unreasonable impediment as stated above.

That being said all the Accused still need to provide suitable sureties that comply with section 22 (2) (b), which provides: -

"(b) that one or more sureties acknowledges that he or she is acquainted with the accused person and regards the accused, person, as a responsible person who is likely to comply with a bail undertaking;"

Orders

[45] The Court therefore grants bail to the Accused persons Apete Vereti, Semisi Nasike, Mere Samisoni and Mataiasi Ragigia on the following conditions:

1. Each Accused will enter into a bond for $5,000 each with two acceptable sureties for a like sum
   
2. Each Accused will reside at their residential address and are not allowed to change their address for the duration of these proceedings.
   
3. Each Accused will surrender any travel documents to the custody of the Court today.
   
4. All the Accused persons' names will be put on the watch list meaning they will not be allowed to leave the jurisdiction for the duration of these proceedings.
   
5. Each Accused will report daily at their nearest police station between 8am to 6pm
   
6. Each Accused will remain indoors in the hours of darkness – 7pm to 6am
   
7. None of the Accused persons are to contact each other or to interfere with any of the State witnesses whist they are on bail.
   

28 days to appeal

Usaia Ratuvili
Acting Chief Magistrate

4th January 2012