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Seru v State [2015] FJCA 30; AAU0152.2014 (27 February 2015)

IN THE COURT OF APPEAL, FIJI
[On Appeal From The High Court]

CRIMINAL APPEAL NO. AAU0152 OF 2014
[High Court Criminal Case No. HAC062 of 2013S]

BETWEEN:

ELIKI SERU
Appellant

AND:

THE STATE
Respondent

Coram : Waidyaratne JA
Jayasuriya JA
Goundar JA

Counsel : Mr. J. Savou for the Appellant
Ms P. Madanavosa for the Respondent

Date of Hearing : 16 February 2015
Date of Judgment : 27 February 2015

JUDGMENT

Waidyaratne JA
I had the opportunity to read the draft judgment of Goundar JA and concur with his views to dismiss the appeal, having granted leave to abandon the same.

Jayasuriya JA
I had the opportunity to read the draft judgment of Goundar JA and concur with his views on the manner in which a court should implement section 25 of the Bail Act 2002. I agree with his reasons and conclusion to dismiss this appeal, having granted leave to abandon the same.

Goundar JA
[1] The appellant seeks leave of the Court to abandon his appeal against an order revoking his bail in the High Court. On 14 January 2013, the appellant was charged with one count of rape in the Magistrates' Court. Rape being an indictable offence, the case was transferred to the High Court. On 22 February 2013, the appellant appeared in the High Court for first call. On that day, he was released on conditional bail by the High Court. One of the specific conditions of bail was that he was to keep 100 meters away from the victim (condition 6). A further condition was that he was not to approach or interfere with any prosecution witness (condition 8).

[2] On 31 May 2013, the appellant was arraigned on the Information. His bail was extended after he pleaded not guilty to the charge. Thereafter, the case was adjourned for mentions. After the pretrial issues were resolved, the trial was scheduled to commence on 19 November 2014.

[3] On 19 November 2014, the State applied to amend the Information as a result of the complainant retracting from her initial police statement. The initial police statement was given on 10 January 2013, that is, one day after the alleged rape. The statement retracting the complaint was given on 12 November 2014, that is, a week before the trial. The prosecution informed the trial judge that the complainant had retracted from her initial compliant of rape by providing a second statement.

[4] In her initial statement, the complainant said on 9 January 2013 she joined the appellant for a drinking session. They are first cousins. Their fathers are brothers. She was about twenty years old and about ten years younger than the appellant. The alleged incident happened when the complainant was returning home after the drinking session. The appellant pushed her to the ground and when she resisted, he punched her in the face. She started bleeding from her lips and lost consciousness. When she gained consciousness she saw he was having sexual intercourse with her. When he left, she went straight to the village headman and complained. In light of this statement, the trial judge expressed concerns regarding possible interference with the complainant when she retracted her rape complaint. The trial was vacated and the prosecution was directed to investigate whether there has been an interference with the complainant. The case was adjourned to 15 December 2014 for a status report.

[5] Clearly, the trial judge was faced with a difficult situation. The charge of rape is one of the most serious offences. The offence is also prevalent in our society. The appellant was a close relative of the complainant. He was an older male cousin commanding an authority over the complainant who was a female. The retraction of rape complaint was made very close to the trial date and while the appellant was on bail. Although there was no evidence at that stage of the proceedings that the appellant had anything to do with the retraction of the compliant, the trial judge was concerned about possible interference with the complainant. Interference with the witnesses or evidence is a serious concern. The courts have a duty to act diligently when such a concern arises. Otherwise, the public will have no confidence in the bail system and the administration of justice. In fairness to the appellant, the trial judge did not immediately revoke bail. Instead he vacated the trial and gave the prosecution an opportunity to investigate the circumstances surrounding the retraction of complaint by the complainant. This was, of course, a proper course to follow.

[6] On 15 December 2014, the case was called for a status report. The prosecution informed the trial judge that they had not yet contacted the complainant regarding the retraction of her complaint. Faced with lack of diligence on behalf of the prosecution, the trial judge chose to act on his own motion to revoke bail and remand the appellant in custody until further orders of the court. He gave written reasons for his decision to revoke bail on 11 February 2015 by which time the appellant had filed an appeal.

[7] Under the Bail Act 2002, detention of an accused before trial is justified by proper considerations relating to likelihood of the accused surrendering to custody and appearing in court (section 19(1)(a)), the interests of the accused (section 19(1)(b)) and the public interest and the protection of the community (section 19(1)(c)). The likelihood of the accused interfering with evidence or witnesses is a relevant consideration when assessing the public interest and the protection of community criteria (section 19(2)(c)(ii)).

[8] As required by section 18(2) of the Bail Act 2002, the trial judge considered each of the criteria and concluded that it was in the public interest to revoke the appellant's bail in light of the fact that the complainant withdrew her police complaint a week before the trial was scheduled to commence and that there was a strong likelihood that she had been interfered with. The word likelihood as used in the Bail Act 2002 does not connote probability. In Livingstone-Thomas v Associated Newspapers Ltd (1969) 90 W.N. (Pt.1) (NSW) 223 Wallace P said at 229: "[I] think the legislature has meant 'likely' in a sense of a tendency or real possibility". This meaning was adopted by Wilson J in Kysely, Re Bail Application [1980] PNGLR 36; 14 April 1980 when considering a similar phrase in the Bail Act 1977 (PNG):

"I hold that the word "likely" in the phrase "likely to interfere with witnesses' in s. 9(1)(f) means likely in the sense of a tendency or real possibility. It does not mean "more likely than not", "probably", or "very likely".

[9] The appellant does not challenge the findings of the trial judge in revoking his bail. His main contention is that the trial judge did not have jurisdiction to revoke bail on his own motion. This contention cannot be sustained. Section 25(1) of the Bail Act 2002 gives the courts power to issue a warrant for the arrest of an accused for absconding or breaching a condition of bail. Section 25(3) states that when the accused is arrested and brought before a court, the judge or magistrate may remand the accused in custody or grant him fresh bail.

[10] Breach of a condition of bail is also an offence under section 26(1) of the Bail Act 2002. Whether the appellant is charged for breaching a condition of bail is a matter for the prosecution and not a relevant consideration to revoke bail under section 25(3) of the Bail Act 2002. The decision to charge or not to charge involves an exercise of prosecutorial discretion. The courts have no jurisdiction over prosecutorial discretion to charge or not to charge.

[11] However, the responsibility for deciding an issue relating to bail lies with the courts. Once a person is charged with an offence, the system of bail comes into play. Granting of bail, setting of conditions of bail, subsequent review of bail, variation of bail conditions and cancellation of bail when there is a breach are matters within the jurisdiction of the courts. The prosecution's duty is to assist the court to decide the pertinent bail issue. But if the prosecution does not effectively discharge its duty, or for that matter does not object to bail, the judicial officer is not absolved from its judicial duty for deciding the pertinent issue relating to bail. As Gates CJ said in FICAC v Benjamin Padarath Crim. Revisional Case No. HAR.019/2012 & Crim. Revisional Case No. HAR.002/2013 (7 February 2013) at para. [10]:

"Ultimately however, the responsibility for deciding the pertinent issue lies with the judicial officer. There can be no abandonment of that public duty. It is placed upon the Magistrate here and not the prosecutor: Tevita Sarokoqica v The State Crim. Misc. Case No. HAM020/11(1st December 2011); Timoci Aluseni v The State Misc. Crim. Case No. HAM08/2013 (22nd January 2013) at para 15, both per Goundar J."

[12] When considering an issue relating to bail, there is no requirement for formal evidence to be given. It is well established that the bail jurisdiction was not equivalent to a criminal charge, the rules of evidence need not apply, and a court may rely on written hearsay evidence provided it was properly evaluated. In In re Moles [ 1981] Crim LR 170 the Divisional Court stated that strict rules of evidence were inherently inappropriate when deciding a bail issue. In R v Mansfield Justices, Ex p Sharkey [1985] QB 613, 626, Lord Lane CJ stated that in a bail hearing the relevant material can be presented by a police officer. Also, under the Bail Act 2002 Forms have been prescribed to provide the relevant information to the courts from the Bar table.

[13] Once the material is before the court, the magistrate or judge must come to an honest and rational opinion on the bail issue under consideration. What is vital in bail hearings is that the accused is accorded procedural fairness because he is at risk of losing his liberty in the context of presumption of innocence. As Latham LJ said in R (DPP) v Havering Magistrates' Court (DC) [2001] 1 WLR 805 at 818-819:

"What undoubtedly is necessary is that the justice, when forming his opinion, takes proper account of the quality of the material upon which he is asked to adjudicate. This material is likely to range from mere assertion at the one end of the spectrum which is unlikely to have any probative effect, to documentary proof at the other end of the spectrum. The procedural task of the justice is to ensure that the defendant has a full and fair opportunity to comment on and answer that material. If that material includes evidence from a witness who gives oral testimony clearly the defendant must be given an opportunity to cross-examine. Likewise, if he wishes to give oral evidence he should be entitled to. The ultimate obligation of the justice is to evaluate that material in light of the serious potential consequences to the defendant, having regard to the matters to which I have referred, and the particular nature of the material, that is to say taking into account, if hearsay is relied upon by either side, the fact that it is hearsay and has not been subject of cross-examination, and form and honest and rational opinion."

[14] Procedural fairness applies when deciding on the issue of breach of a bail condition. In R. (on application of Paul Vickers) v West London Magistrates' Court [2003] EWHC 1809 (Admin) the English High Court endorsed a two-stage inquiry when deciding on the issue of breach of a bail condition. Gage J described the two-stage inquiry at para 16:

"First a decision must be made as to whether or not there has been a breach of a condition. If there has been no breach of a condition then the bailed person is entitled to be admitted to bail on precisely the same conditions- in other words, bail continues. If the justices are of the opinion that there has been a breach of the condition, then they must go on to consider whether or not the bailed person can be admitted again to bail or remanded in custody- that is the second stage."

[15] Later at paragraphs 17 and 18 of the judgment, Gage J stated:

"In carrying out the first stage, justices must obviously act fairly. The person alleged to have been in breach must be given the opportunity of answering the allegation. ....But in my judgment, that stage does not involve the justices in an inquiry as to whether the arrested person had a reasonable excuse for being in breach....

At the second stage, the justices will have to consider whether to grant bail or remand in custody assuming, of course, that they have been satisfied or are of the opinion that there has been a breach of the condition. At that stage the question of why the bailed person breached his condition will be relevant. At that stage the justices will have to consider all the issues relating to reasonable excuse when deciding whether or not to grant bail. ..."

[16] We endorse the above two-stage inquiry for deciding an issue of breach of a bail condition under section 25(3) of the Bail Act 2002.

[17] In the present case, there has been a material change in circumstances while the appeal was pending. On 11 February 2015, the complainant voluntarily gave a third statement, which was brought to the attention of this Court. In that statement, the complainant said the appellant approached her and asked her to change her statement to say that the sex was consensual. The approach was made before the scheduled trial on 19 November 2014. If the complainant is telling the truth, then clearly there has been an interference and breach of bail conditions. After receiving the complainant's third statement, the appellant decided to abandon his appeal. It is fair to say that the appellant is now not taking an issue regarding whether he was denied procedural fairness when his bail was revoked. Both the appellant and his counsel assured the Court that the decision to abandon the appeal was made freely and without mistake.

[18] In these circumstances, the decision to abandon the appeal is correct. I would grant leave and dismiss the appeal.

Orders of the Court are:
Leave granted.
Appeal dismissed.

Hon. Justice K. Waidyaratne
Justice of Appeal

Hon. Justice J. Jayasuriya
Justice of Appeal

Hon. Justice D. Goundar
Justice of Appeal

Solicitors:
Legal Aid Commission for the Appellant
Office of the Director of Public Prosecutions for the Respondent