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State v Toroca [2004] FJHC 146; HAC0006.2004 (27 August 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC0006.2004

BETWEEN:

STATE

-v-

JOSATEKI TOROCA

Counsel: Mr. D. Toganivalu – for State
Mr. E. Veretawatini – for Accused

Date of Hearing: 27th August, 2004

BAIL APPLICATION

Background

The background to the matter confirmed for me this morning by State’s counsel is that during the Christmas period this accused came into a home and was confronted with the sight of his uncle receiving an intimate massage from the accused’s younger brother. This enraged the accused to a point where he confronted the uncle. There was a scuffle during which the uncle was dragged to the wooden floor and kicked in the ribs and jaw. Uncle became unconscious.

The accused did not abandon him. Rather he tried to offer his uncle some comfort and endeavoured to revive him, but that was unsuccessful. Uncle was subsequently taken to the hospital. At the hospital uncle’s misfortune did not improve. A post mortem report indicates that death may have been aggravated or caused by surgical intervention. There is apparently some criticism in the post mortem report of the surgical intervention and use of burr holing of the skull.

This report itself has been the subject of further comment by experts from Australia who were of the opinion that uncle’s presentation at hospital was such that his death was an inevitable consequence of the injuries he received in the fight. This peer review is not direct evidence or evidence obtained as a result of a personal post mortem examination. The difficulty the State is in is obvious.

Accordingly for these reasons the accused is now charged with manslaughter. However, its clear to me that even if that charge is sustained or this accused elects to accept responsibility for the death and pleads to manslaughter there is a possibility that he may not receive a fully custodial sentence in these unique circumstances.

I have recently had occasion to address the appropriate sentencing tariffs for negligent or careless death particularly in provocative circumstances. I observed that the tariff can range from as low as a sentence of 12 months to as high as a sentence of 15 years. I further observed that it was possible in some circumstances for the lower range of sentences to be suspended.

The other matter that I wish to keep in mind when considering this bail application is the fact that this matter will come into my chambers and be under my direct management. I don’t have any hearing time left this year and indeed next year is becoming quite busy with major trial work. Even if I were to keep this accused in custody its unlikely that he will see a trial before April or May of 2005. In my mind that is an overly long time for him to spend in custody.

I also take into account the fact that he has exercised a responsible attitude in relation to these allegations. He gave instructions to his counsel that he was content to remain in custody while the consideration of the appropriate charge was made. He has voluntarily been in custody since the 29th of December. That stands in my mind to his good credit as it demonstrates his proper remorse at being involved in the death of his uncle.

He has one violence related conviction in his past but that was in 1992. I am prepared to discount that conviction. For these foregoing reasons he is a person deserving of bail and I grant him bail but on conditions:

1. He is to reside in his village at Logani on the outskirts of Nausori.
   
2. He is to be restricted in his travel to remain in the Eastern Division except he may travel for work purposes to Walu Bay near Suva.
   
3. He is to immediately surrender any passport that he has to the Registrar of the High Court and he has to undertake not to obtain any travel documents at all.
   
4. He is not to leave Fiji during the period of his bail.
   
5. He is to undertake not to interfere with any known State witness.
   

(Note: I realize this will create some difficulty so I emphasize the word “interfere”. He lives in the same village as a lot of the people that may be called by the State. When I use the word interfere I do so in the sense that he is not to dissuade them from giving evidence for the State or interfere in that process in any way. I realize that he may otherwise have to socially interact with them just to carry out his normal village life).

1. He is to report to the Nausori Central Police Station on Wednesdays that is once a week each and every Wednesday between the hours of 6.00am and 6.00pm.
   

He is otherwise to be subject to the standard conditions contained in the Act for the granting of bail.

Gerard Winter
JUDGE

At Suva
27th August, 2004