IN THE HIGH COURT FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL MISC. CASE NO. HAM0024 OF 2005

BETWEEN:

TUPOU VUETAKI
Applicant

AND:

STATE
Respondent

Counsel: Applicant – In Person
Ms P. Madanavosa – for State

Date of Hearing & Ruling: 28th July, 2005

EX TEMPORE BAIL RULING

This is an ex tempore ruling given shortly after a hearing and as such I reserve the right to recall and perfect it as I see necessary.

Background

This is an application for bail pending a trial in Magistrate Courts Matters 1264/03 and 794/05.

In 1264/03 the applicant is charged with a significant office breaking, entry and larceny where goods to the value of over $49,862.08 were stolen from a property belonging to Carpenters Motors. Those proceedings have had a very slow progress through the courts. I am advised and I accept that the matter has come on for hearing on several occasions but the complainant has failed to attend. These proceedings have been referred to the High Court for review because of delay.

In 794/05 the applicant is charged with robbery with violence. It is said that he and one other street mugged the complainant. I am advised and I accept that his co-accused has been granted bail.

The sole ground for this application is that the conditions of the applicant’s custody are inhumane and degrading. This is another case involving the lamentable conditions of the Suva Gaol. In earlier judgments the High Court has made it quite clear to the Administration that the conditions at the Suva Gaol particularly for remand prisoners were in breach of their minimum conditions under the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the UN Convention against Torture, the UN Standard Minimum Laws for the Treatment of Prisoners and Section 25(1) of the Fijian Constitution.

By way of example I refer to the decisions of my learned sister Justice Shameem in the State v Boila and Nainoka, HAC0032 of 2004S and the State v Ladpeter, HAC0019 of 2004S. In Boila her honour commented that:

“…..if applicants in the future complain about being shifted again to the main cell block or the awaiting trial block……I will not hesitate to grant bail”.

That in very short form is the position I find myself in with this application.

The Fijian Human Rights Commission devised a checklist based on Rules 8,9,10,11,12,15,17 and 19 of the Standard Minimum Rules for the Treatment of Prisoners (approved by the Economic and Social Council with the United Nations by Resolution 663C (XXIV) of 31 July 1957 and 2076(LXII) of 13 May 1977.

The team from the Commission completed an inspection of the Prison facilities on the 14th of July 2005. I record that the Commissioner of Prisons gave them full access to the facilities and his best co-operation. For completeness I am annexing the findings of the Commission Team to this judgment as Appendix 1.

The main cell block is no longer being used to incarcerate any prisoner either on remand or sentence. It was closed on the 1st of July 2005 and on that same day all the convicted prisoners were transferred to the Sacau Dormitory. This was the overcrowded facility formerly used by remand prisoners.

The remand prisoners were then transferred to the awaiting trial block. At the date of inspection there were 63 remand prisoners.

In addition to conducting an inspection the Commission Team interviewed the applicant. The applicant confirmed the Commission’s findings.

The awaiting trial block where the applicant is currently remanded:

1.	Is not a separate remand institution in breach of Rule 8.

2.	Is overcrowded in breach of Rule 9(1,2).

3.	Does not meet the minimum standards for accommodation.

4.	Does not meet the standard contained in Rules 12 and 13 for sanitation.

5.	Barely complies with the minimum standards for clothing and bedding Rule 17, personal hygiene Rule 15 and 16 and lighting Rule 11.

I asked counsel appearing for the Commission whether the Commissioner, if she was asked, could honestly say that the prison complies with international standards. His answer was direct but brief. It was, no!

The right to be free from cruel, inhumane and degrading treatment under Section 25(1) of the Constitution is non-derogable. It cannot be reduced even in an emergency. There is no balancing act of assessing what type of degradation is acceptable. What type of inhumane treatment might be necessary or how cruel the system might acceptably be in the treatment of its prisoners. There is no provision in the Constitution that might allow me to find for example that it is acceptable to detain this applicant in degrading conditions because to release him would pose a risk to society.

I find that these breaches of the rules for the treatment of prisoners are an objective standard by which I can assess whether or not any particular applicant may be suffering inhumane and degrading treatment while in custody. I find both the Sacau Dormitory and the awaiting trial block as at the 14th of July 2005 to be degrading and inhumane. 

The conditions have reached a level of severity and humiliation such as to constitute inhumane and degrading treatment of this applicant. The only purposive remedy I can grant to right the wrong of this grave Constitutional breach is to grant him bail. In addition I find support for doing so under Section 19 of the Bail Act. The conditions of custody is one feature I am obliged to consider on a bail application. In this application that condition has assumed greater importance in the awaiting trial block because the conditions are so bad. Accordingly, both constitutionally and by virtue of a proper weighting of the statutory considerations this applicant deserves bail.

Despite my grave reservations about the release of Mr. Vuetaki on bail I am left with no option.

The condition of the Suva Gaol was first raised by this Court in October of 2004. Nine months later nothing has improved. Nine months later the Fiji Human Rights Commission finds and I accept that no improvements have been made to the awaiting trial block. That is not satisfactory. Prisoners are a part of our society. They are entitled to the same constitutional protections. Society must no longer ignore their plight.

This is society’s problem. Society has created it. Society will have to live with the outcome. Mr. Vuetaki is to be granted bail on conditions.

1.	To reside at 90 Augustus Street, Toorak, Suva. Not to change address without formal application to the Court.

2.	To report to Toorak Police Post three (3) times a week on every Mondays, Wednesdays and Fridays between the hours of 6.00am to 6.00pm. 

3.	You are under curfew at the above residence from 9.00pm to 7.00am.

4.	You are not to obtain any passport documentation.

5.	You are to attend court when told to do so for mention, any pre-trial applications, and the trial of your Case in 1264/03 and 794/05 in the Magistrate’s Court.

Gerard Winter
JUDGE

At Suva
28th July, 2005