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Lee v the State [2002] FJHC 217; HAM0030.2002s (25 July 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

CRIMINAL MISC. ACTION NO.: HAM0030 OF 2002

BETWEEN:

ULAIASI WAQA LEE
APPLICANT

AND:

THE STATE
RESPONDENT

Applicant - Mr. A K Singh
Respondent - Mr. B Solanki

RULING ON APPLICATION FOR BAIL

This is the second application for bail by the applicant before this court. The earlier application was heard on 11th July and ruling delivered on 12th July. The case was called in Magistrate’s Court on 19th July 2002 and the applicant was further remanded.

The accused is charged with others with the offence of Robbery with Violence. The State is still opposing bail on the same grounds as before with some further allegations being made. There is no need for me to go over the ruling of 12th July 2002. I had however indicated in this ruling that the application could renew his application for bail before the Magistrate’s Court or this court if there is change in circumstances.

The real issue is what is the change in circumstances since my last ruling.

There has been a passage of time during which the application has remained remanded in custody. According to the counsel for the application the State had enough time to conduct its investigations. There is force in that submission as full disclosure has been done. This would suggest that statement of relevant witnesses had been obtained.

The only concern for the State as far as witnesses are concerned is interference with witnesses before trial. However, if that occurs the State can invoke the provisions of Section 131 of the Penal Code that deals with interference of witnesses.

The basis of objections by the State is contained in the affidavit of Esala Matau who is the investigating officer. It is conceded by the State that in certain matters the investigating officer has not disclosed the source of his information.

A deponent should disclose his source of information in an affidavit. If it is an informer, even then the affidavit should disclose that the source is an informer whose identity the State wishes not to disclose. However, the deponent is the investigating officer who as a matter of common knowledge has access to witness statements and other information on the file so his source is likely to be from the police files.

Except for interference with police witnesses, the case for the State on other fronts is much stronger now. The state says initially the applicant was considered to be a witness for the State and he was welcomed. However subsequent investigations reveal his involvement in the alleged offence and so on 4th July he was arrested as a suspect. By this time the State has learnt that the applicant had gone to Suli Place, Stage 2, Cunningham to meet other suspects who were waiting to share the money. On 16th July four days after my last ruling five police officers went to Suli Place to look for a suspect in this case namely one Joe Baleloa but they were unable to arrest him as he was armed with a knife and tried to hit the officers who were forced to retreat. So Suli Place is where the money was allegedly shared and where the police met fierce resistance.

Counsel for applicant submitted that the applicant should not be blamed for actions of Joe Baleloa. That may be so in trial proper but here we are considering a bail application in a case involving a group and the court has to consider actions of others in the group to weigh the public interest.

A number of people were involved in the robbery. The State alleges the central figure was the applicant. The rest were foot soldiers who carried out the plan. According to the State some of those foot soldiers are still at large. One had successfully thwarted arrest by armed resistance. Part of stolen money remains uncovered. A gun used in the robbery has still not been recovered. A serious offence has been committed and the State insists the applicant whom it sees as the general must be kept in remand.

Section 27(3)(c) of the Constitution creates a presumption in favour of bail. It does not give the accused absolute right to bail. There has to be a becoming act done between right of accused to bail and interest of justice. I must confess that the State has presented a much stronger case against bail today then during the earlier application. The application is therefore refused.

{ Jiten Singh }
JUDGE

At Suva
25th July 2002