IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

MISCELLANEOUS CASE NO: HAM0037 OF 2003S

Between:

SURESH SANI; and
DEO RAJ
Applicants

And:

THE STATE
Respondent

Counsel: Mr. A. Singh for 1st Accused
Mr. B. Qereqeretabua for 2nd Accused
Mr. W. Kuruisaqila for State

Hearing: 1st October 2003
Ruling: 2nd October 2003

RULING

The accused who are jointly charged with murder have applied for bail. Counsel for the 1st accused was asked to file a motion and affidavit setting out the grounds of the application by 29th September. He did not do so, and on the 1st of October at the hearing of this application, he asked for leave to make an oral application without filing the papers. State counsel agreed to proceed without motion and affidavit, and the 2nd accused had filed both and was also ready to proceed. I agreed to hear the application of the 1st accused, but must emphasise that in future, counsel must apply for bail in the High Court by motion and affidavit. It is only in exceptional circumstances, (or if the accused is unrepresented) that oral applications for bail will be entertained. The Bail Act 2003 now sets out clear guidelines for the granting or refusing of bail. The State must rebut the presumption of bail and must be given the opportunity to file affidavits in response. Oral applications are of little assistance to the court, and have the effect of taking the State by surprise.

The Information reads as follows:

Statement of Offence

MURDER: Contrary to Sections 199 and 200 of the Penal Code, Cap 17.

Particulars of Offence

SURESH SANI s/o Shiu Mangal and RAJ DEO s/o Dewakar Prasad, on the 31st day of December 1999, at Koronivia in the Central Division, murdered ASHOK KUMAR s/o Shiu Lal.

The charge was not laid until 25th June 2002. There was some delay while the accused applied for legal aid. The 2nd accused asked the court to make orders for medical examination whilst in custody. The accused on the 14th of August 2002, asked for an oral preliminary inquiry. On the 28th of October 2002, Ms Nair for the 2nd accused requested a Paper P.I. and Mr. Valenitabua for the 1st accused said: “I shall ask my client to change to PPI.” On the 21st of November 2002, the 2nd accused asked for an oral P.I. His counsel Ms Nair, was not present. Mr. Valenitabua said: “The two accused do not want PPI. The 2nd accused does not want PPI.” Ms Nair then appeared and withdrew as the 2nd accused’s counsel. She said: “I am not in favour with Oral P.I. he is asking. It takes considerable time.” She withdrew and the oral P.I. was fixed for March of 2003 because Mr. Valenitabua was not available until then.

On the 3rd of March, the State was not ready and the 2nd accused had recently instructed Mr. Chand. Both counsel however were ready to proceed. The case was adjourned to the 10th of March. The P.I. proceeded. The crux of the prosecution case was that the 1st accused was the beneficiary of a life insurance policy taken out by the deceased. He is alleged to have told a witness and the police that he killed the deceased in order to claim the insurance. At the Oral P.I. he gave evidence and said that he had driven his van over the deceased by accident, and then disposed of his body on the side of a road after dark. He said that his confession to the police had been obtained by them by assault and oppression. He said that the police kept his passport. He further said that on the 10th of June 2002, he made an application for a false passport under the name of Prem Chand because one Inspector Shyam had promised to help him leave the country.

The 2nd accused also gave evidence. He said that he, the 1st accused and the deceased had formed a company. He said he knew nothing about the deceased’s death and that the police obtained a statement from him by force. In that statement he was purported to have said that he had travelled with the 1st accused and the deceased in a van, that at Koronivia they ran the deceased over with the vehicle and killed him.

The Preliminary Inquiry was concluded on the 9th of May 2003. The learned Magistrate found sufficient evidence to put the accused on their trial and committed both. Given the nature of the statements to the police, that conclusion was unsurprising. The question of the admissibility of those confessions was of course a matter not for the committing court, but for the trial court.

The Information was filed on the 14th of August 2003. The case was first called in the High Court on the 4th of July and then on the 17th of July. Mr. Valenitabua withdrew as counsel for the 1st accused, who once again applied for legal aid. On the 15th of August Mr. Singh appeared for him, and Mr. Chand for the 2nd accused. Both accused pleaded not guilty to the Information and I set the trial to commence on the 19th of January 2004, the first date available. The accused asked for an earlier hearing date, but that was not possible. They then made this bail application.

The 1st accused applies on the ground that they have both been in custody for 15 months, that he is a person of previous good character, his family is facing hardship and that he will attend court if bailed. The 2nd accused applies on the basis of the delay in the hearing of the case, the prison conditions which counsel says are inhumane and degrading, his child who is in Form 5 at school is suffering as a result of the accused’s incarceration and on the basis that he has no previous criminal history.

The State opposes the application saying that the delay in the case was self-inflicted because the accused had insisted on an oral preliminary inquiry, that the 1st accused had taken steps to obtain a false passport demonstrating that he was unlikely to appear in court for trial, that murder is a serious offence and the prosecution case is strong and that the prison conditions are not inhumane and degrading. He also said that there is a prison doctor who is available for all ailments unless hospital treatment has become necessary.

The Bail Act 2002, in accordance with section 27(3)(c) of the Constitution provides for a right to bail. The State must rebut that presumption when bail is objected to, and in considering bail, the relevant considerations for the courts are those set out in section 19 of the Bail Act. The three categories of criteria are: the likelihood of surrender to custody and appearing in court, the interests of the accused person and the public interest.

In this case I accept that both accused persons are of previous good character with family ties in Fiji. Neither has failed to surrender to custody because both have been in remand since the charge was laid.

However the charge is extremely serious, and the prosecution alleges premeditated murder committed for financial gain. If found guilty, both accused persons will be sentenced to imprisonment for life. Further, in respect of the 1st accused, he has made damning admissions that he obtained a false passport, in June 2002 (shortly before he was charged) in order to leave the country under a false name.

In respect of both accused, they will have been in custody for 19 months when the trial commences. Much of the delay has been caused by the accused insisting on an oral P.I. despite legal advice to the contrary. The P.I. was protracted and insofar as counsel asked the committing magistrate to prefer the accuseds’ evidence over the prosecution’s, entirely unnecessary. The delay in the Magistrates’ court was largely caused by the accused themselves.

As for the conditions of custody, section 19(2)(b)(ii) of the Bail Act, provides that they are relevant. I cannot accept the 1st accused’s assertions that he is one of four in one cell because they were conveyed to me from the bar table. However the 2nd accused’s assertions that he is forced to use a bucket toilet, is uncontradicted by evidence from the State. It is relevant, and I must deprecate the primitive form of sanitation used for remand prisoners in Suva. Clearly, it is time that the Prisons Department and the authorities, take a hard close look at the United Nations Minimum Standard Rules for the Treatment of Prisoners which were adopted by the United Nations in 1957. They were dealt with at length by Prakash J in Sailasa Naba and Others –v- The State HAC0012 of 2000L and include rules on minimum floor space, cubic content of air for prisoners, adequate sanitary facilities, proper clothing, provision of separate beds and balanced meals. His Lordship found the conditions at the Natabua Remand Block to fall far short of the Minimum Rules. He had affidavit evidence before him and far more information than I have in this case.

On the affidavit evidence before me I am unable to conclude that the conditions in which the 2nd accused is held are inhumane and degrading. In relation to his medical condition, I note from the depositions that the learned Magistrate made several orders to the Prisons to provide the 2nd accused with medical facilities. There is no suggestion that these orders were not complied with. I hope in future however that the State is able to file affidavits about the specific allegations made by the accused in relation to conditions of custody. In the absence of such affidavit evidence, the Court must accept the uncontradicted evidence of the accused in that regard.

In this case I find that the bucket latrine system is not sufficient on its own to lead me to conclude that the conditions of the 2nd accused’s custody are inhumane.

In respect of the public interest I find that there is no suggestion that witnesses will be interfered with, or that other offences will be committed.

Taking all these matters into account, I am of the view that the accused will not be likely to surrender to custody. In particular the 1st accused has admitted applying for a false passport in order to leave the country and both accused have themselves caused substantial delay. The hearing date has now been set. This is a serious offence and the alleged offending is also serious.

I consider that the State has rebutted the presumption in favour of bail in respect of both accused. These applications are dismissed. I do however order that whilst in remand, the 2nd accused is given facilities for adequate medical examination and care. To ensure that such order is complied with, this case will be called for mention on the 16th of October 2003 at 9.30am in open court. On that day I wish to be shown, by State counsel, a copy of the 2nd accused’s medical report as to his existing medical condition and as to the capacity of the remand facilities in prison, to manage any condition he suffers from. If the report is not provided, or if it does not answer the concerns of this court satisfactorily, a further bail application will be entertained on that day from the 2nd accused.

Nazhat Shameem
JUDGE

At Suva
2nd October 2003