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Basa v The State [2004] FJHC 211; HAM0030D.2004S (8 June 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

MISCELLANEOUS CASE NO: HAM0030 OF 2004S

Between:

SAKIUSA BASA
Applicant

And:

THE STATE
Respondent

Hearing: 4th June 2004
Ruling: 8th June 2004

Counsel: Applicant in Person
Mr. B. Solanki for State

RULING ON BAIL

The Applicant applies for bail pending trial. He is charged, on Case 1992/03 in the Suva Magistrates’ Court of robbery with violence in relation with an armed robbery at the Western Union Office on the 30th of August 2003. He was refused bail in the Magistrates’ Court, and he now applies to the High Court. He faces a number of other charges of robbery with violence in respect of which he was also denied bail.

The cases were first called on the 4th of September 2003, and the Applicant was remanded in custody. He remained in custody, and his bail application, made on the grounds of unsuitable prison conditions was refused on 19th May 2004. No reasons were given for that refusal and although the charge shows only the name of this Applicant, the court record refers to two other accused persons who are unnamed.

In this court, the Applicant asks for bail on the ground that he will appear to stand trial and that he has now been held in custody since he 5th of February. He said that he has been unlawfully detained on the 6th of February 2004.

The State opposes the application on the grounds that the Applicant is facing 7 different counts of robbery with violence, that while on remand he escaped from the police cell at Government Buildings on the 12th of March 2004, that the pending charges are serious and there is a strong likelihood that he will re-offend whilst on bail.

There is a right to bail pending trial under the Constitution and under the Bail Act. However that right is rebutted when there is evidence that the Applicant has in the past failed to honour a bail undertaking.

The court file on Criminal Case No. 1993 of 2003 is in respect of an offence of unlawful use of a punt. The record shows that although the Applicant was remanded in custody for his other cases, he was on bail on the 23rd of December 2003 when a notice of adjourned hearing (not a production order) was issued by the court to him. On the 6th of February, a bench warrant (it is not clear when it was issued) was cancelled, and the Applicant’s bail was “extended cancelled.” The prosecution objected to bail on the ground that he had been charged with serious offences and that the Applicant had absented himself from court in the past, leading to delay in the disposal of his case. The learned Magistrate refused bail, and remanded the Applicant until the 20th of February for mention. No reasons were given and the last mention date recorded is for the 7th of June 2004.

It appears from a perusal of all the court files that the Applicant was never granted bail for the robbery offences, but that he may have been granted bail for the offence of unlawful use of punt. There is however no bail form on the court file, and it is possible that the Applicant was released from custody in error. It is not unusual for some confusion to exist when there are multiple files before several magistrates, each of whom has no idea of the orders made by his/her colleagues. However, on a perusal of all his court files, I am satisfied that the Applicant’s detention on the 6th of February 2004 was not unlawful.

In respect of this present application, I have read the affidavit of Inspector Lepani Mekemeke filed by the State. I accept that the Applicant faces a number of serious charges, and also that he has in the past both failed to appear in court when summoned, and escaped from lawful custody. The Applicant does not deny these matters, but says that he escaped because he believed that his detention was unlawful.

If it had not been for these incidents, I would have considered that bail should be granted for the Applicant. The alleged offences were committed in August 2003, and 9 months later he is still to be tried. However, his record of failing to obey court orders leads me to the conclusion that his continued remand is in the public interest. However, his trials should now proceed without further delay.

Bail is refused.

Nazhat Shameem
JUDGE

At Suva
8th June 2004