State v Vereti [2012] FJMC 195; Criminal Case 8.2012 (16 August 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 Applicant: Ms Vaniqi

RULING ON BAIL VARIATION – PERMISSION TO LEAVE FOR MEDICAL TREATMENT
________________________________________________________________________

The Court has already ruled on the application for bail variation through a written ruling dated 31st July 2012.

This is the application by the Applicant for permission to leave the jurisdiction, more specifically to go to Brisbane for emergency dental medical treatment. She relies on two affidavits by her dentist Dr. David Natula. She has also deposed and affidavit setting out her current medical condition at paragraphs 9 and 10 of her Affidavit dated 9th July 2012.

The State has respondent with a competing affidavit from Dr. Imtiaz Sahu Khan deposed on the 31st of July 2012.

In his affidavit he disputes the diagnosis of Dr. Natula and deposes that the treatment for the Applicant is available locally and there is no need for her to go to Brisbane to undergo a procedure that could just as easily be performed here in Fiji by local dentists.

The competing medical evidence before the Court

Dr. David Natula has deposed two Affidavits in support of the application.

He is a qualified dentist graduating from the Fiji School of Medicine in 1988. He also obtained a General Certificate in Clinical Dentistry and he has 14 years experience in dental surgery. The Applicant has been his patient since 2006 and he confirmed that when she visited his surgery on the 26th of April 2011 she presented with a fractured anterior bridge.

He attempted to build up the core and to place a metal post in, however upon further review he found that the treatment had failed and the Applicant's fracture had progressed. His recommendation is that she needs two titanium implants placed in her anterior centrals and he had advised her that this treatment would have to be performed by a specialist in Brisbane. He confirms that this treatment is not available locally.

In his supplementary affidavit, Dr. Natula describes in further detail the proposed dental work to be done in Brisbane.

He deposes that the work is subject to a management plan which will involve the Applicant travelling to Brisbane 2 to 3 times. The first stage involves primary surgery, then there will be periods of 2 to 3 months to wait while the implant osseointegrates; the second stage will involve abutment placement and impression; the third stage (2 or 3 months later) will involve the placement of the crown.

The State has a contrary opinion from Dr. Imtiaz Sahu Khan a qualified dentist with a Bachelor of Dental Surgery from the University of Queensland in 1983.

He has practiced as a dental clinician for the past 28 years. He deposes that he has viewed the Dental X ray of the Applicant and he is of the opinion that the Applicant does not necessarily need a titanium implant as proposed by Dr. David Natula.
He opines that there is an alternative treatment, which is root canal treatment on the Applicant's lateral incisors and a 3 unit bridge for her anterior teeth. He submits that the original treatment performed by Dr. Natula was not sufficient. He deposes that this treatment will involve successive visits to the same dentist and it allows the Applicant to preserve her teeth.

He further deposes that the Applicant's dental X Rays shows that she has a generally good set of teeth for a patient of 73 years. He further offers that age is a factor and generally with advanced age, it is contra indicted to have implants. He deposes that the symptoms presented by the Applicant are not life threatening and it is not a necessary treatment.

The variation hearing

The bail variation was heard on the 31st of July 2012 and submissions were heard on behalf of the Applicant as well as the State.

Applicant's submissions

The Applicant submits that the evidence of Dr. Natula should be accepted over that of Dr. Sahu Khan simply because he has attempted a course of treatment that has failed and has now advised his patient that the most appropriate course of action is for titanium implants for her fractured teeth. This is not available locally and can only be performed in Brisbane, Australia.

In addition the Applicant tendered a letter from Dr. Jone Nasome of the Suva Private Hospital. In his letter dated January 14th 2012, Dr Nasome stated that the Applicant had a blood pressure then of 150/80mmHg which was higher than normal and he had advised her to rest. This piece of evidence is not relevant to the current variation application as it was provided in January 2012 and it does not reveal exactly what her latest medical condition is.

The Applicant therefore submits that they have demonstrated sufficient cause for a variation and the Applicant asks the Court to grant her permission to leave Fiji to have the dental procedures performed and also to grant her permission to travel to Brisbane from time to time in order to go for further check ups.

She submits that she will surrender her travel documents on every occasion that she will return to the country. She also offers suitable sureties that will ensure her return and she also offers to deposit a cash bond to ensure her return.

The State's submissions

The State relies on the affidavit of Dr. Sahu Khan, a dentist with very wide and extensive experience. The doctor's opinion; based solely on his examination of the Applicant's dental X Rays; is that the initial procedure performed by Dr. Natula was not correct and that this proposed treatment for the Applicant is unnecessary as the correct treatment is available locally.

The State submits that the Applicant's condition is not life threatening and the proposed treatment is expensive and unnecessary in the circumstances as there is an alternative procedure that can be performed locally by any dentist.

The State therefore submits that the Court must maintain custody of the Applicant's travel documents and dismiss this application.

The State submits that the Applicant has the means and the incentive to abscond and not appear to face the charges against her therefore she presents a flight risk.

Analysis

The Courts in Fiji have allowed overseas travel for Accused persons who have been granted bail. There are numerous decisions from the Magistrate's Court and the High Court confirming this.

The Applicant has submitted the authority of Seniloli –v- The State Crim. Misc. Case HAM0029 of 2004. In this case which was an application by the Applicant to go for a routine medical check 10 days before the trial, the High Court granted the application for permission to leave the jurisdiction.

In his remarks, Justice Gates (as he then was) stated as follows: -

"[18] This is an unusual application in that it comes on the eve of the trial and does not concern an already identified need for urgent medical treatment. However in weighing the various objections, I consider it more likely that the applicant will attend, and that he will not delay the start of that trial: section 17(2) Bail Act. Because of the view I take on attendance some relaxation of the conditions set can be allowed. Applications based on these grounds may not always succeed however."

It is clear from the above authority that such applications must take into account all the relevant factors for the application as well as all of the objections. In ruling on such applications the Court must always bear in mind that the primary consideration for the Court is section 17 (2) of the Bail Act, which provides: -

"17 (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."

The Applicant has deposed to her deep and strong ties to the community here in Fiji both sentimental and economic. Her family is here, she was born here and she maintains strong ties to the community here. She has also deposed to her substantial business interests throughout Fiji and she has deposed that she maintains a close day to day involvement in her various business interests.

The State submits that these ties are not strong enough for her to return and face the charges against her. The State submits that the charges are serious and she has also breached her bail conditions even in Fiji therefore she has demonstrated that she does not respect the bail conditions imposed by the Court on her. The State contends that the Applicant has an incentive to abscond and she presents a flight risk.

The next issue for consideration is the Applicant's need for emergency dental treatment. The Court has before it two medical opinions of two very senior dental clinicians who have provided two very different medical opinions.

Dr. Natula's opinion is that the only treatment for the Applicant is by titanium implants which is not available here in Fiji but can be done in Brisbane.

Dr. Sahu Khan's opinion is that a titanium implant is both unnecessary and expensive. His recommended course of treatment is available locally and can be performed by any dentist in Fiji.

Court findings

1. In resolving the above issues the Court notes from the record that the Applicant has been present for all her Court dates. There have been allegations of breach of bail conditions, which are the subject of a separate charge for breach of bail conditions and the Applicant has entered a plea of not guilty to this charge.
   
2. The proceedings have been delayed due to the delay in full disclosures therefore the all of the Accused persons have still to enter a plea to the charge against them. There is no imminent prospect for a trial until the issue of disclosures is resolved.
   
3. In looking at the competing medical opinions, the Court will accept the professional opinion of Dr. Natula on the basis that the Applicant is his patient since 2006 and of the two doctors; he is the only one who has physically examined the Applicant's teeth. Dr. Sahu Khan's opinion was wholly based on his examination of the Applicant's dental X Rays.
   
4. Taking all of the above issues into account, the Court is satisfied that the Applicant has demonstrated that she will return and face the charges against her.
   

The application for permission to leave the jurisdiction is granted subject to the following:

(i) The Applicant will deposit a cash bond of $5, 000 into Court to be refunded to her on her return.

(ii) The Applicant will provide two sureties for the sum of $10, 000 each to ensure her return to Court

(iii) A full itinerary of her period of travel is to be deposited into Court and to be served on the State before the travel documents will be released to her. Travel documents to be returned to Court immediately upon return.

(iv) The bail conditions shall be suspended for the duration of her travel

The Court is aware that this file is subject to an appeal currently pending in the High Court therefore there will be an embargo on any sealing of these orders until the High Court gives further directions.

28 days to appeal

Usaia Ratuvili
Chief Magistrate

16th August 2012