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Nakau v Republic of Fiji Military Forces [2005] FJHC 417; HAM0072.2005 (11 November 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

CRIMINAL MISC. CASE NO.: HAM0072 OF 2005

BETWEEN:

ROPATE NAKAU
Applicant

AND:

THE REPUBLIC OF FIJI MILITARY FORCES
Respondent

Counsel: Ms B. Malimali – for Applicant
Capt. P. Luveni – for Respondent

Date of Hearing & Decision: 11th November, 2005

EXTEMPORÉ DECISION

Preliminary

This is an extemporé decision given at the end of a delayed but urgent hearing. As such I reserve the right to perfect the decision once it has been typed and prepared for my consideration.

As this is an extemporé decision it will not deal as fully as I would wish with some of the fundamental issues relating to the inter-play and connection between Military and Civil Law on bail cases. I am going to treat this application in terms of general principle because I am convinced that this is a case where the Supreme Law of the Constitution should predominate. As that is the case I am equally convinced that the applicant Ropate Nakau is entitled to a purposive remedy. It is for that reason that at 1550 hours today I commence this decision.

Background

The background to this matter is well known and appropriately summarized in a recent Court of Appeal decision. The result of that decision was that the applicant is to undergo a re-trial by further Courts Martial on exactly the same mutiny charges.

Jurisdiction

Something needs to be said of the jurisdiction of the High Court to entertain Ms Malimali’s application. Section 121 confers on the High Court unlimited jurisdiction to hear and determine any civil or criminal proceedings.

The High Court Act, Cap. 13, Section 3(1) declares that the High Court has the powers and jurisdictions vested in it by virtue of the Constitution and any other law for the time being in force. Accordingly I accept that I have jurisdiction in this matter to consider this application effectively as one for bail and that is the primary way in which I intend to dispose of it.

It is important to note that the primary bail principle is described in the Constitution at Section 27 which deals with people who are arrested or detained. I first accept that this applicant is under close arrest pending his courts martial. Sub-section 3(c) of the provision says that every person who is arrested for a suspected offence has the right “to be released from detention on reasonable terms and conditions pending trial unless the interest of justice otherwise require”. This case pivots around that primary non-derogable right.

I take into account the fact that mutiny is the most serious offence in the Military Law calendar and that the maximum penalties for such an offence do underscore the seriousness of such an allegation. I take into account that this applicant is a trained soldier equipped with all of the associated skills necessary for him to survive and avoid detection in a hostile environment and when the occasion arises to take serious offensive measures as are required either by order or at his will. I accept the submission of counsel for the respondent that one of the interests of justice at play that might otherwise require me to refuse an application for bail would therefore be the possibility of interference with witnesses.

I accept the submissions of the applicant’s counsel that the case against him can be described from the summary of evidence. The summary says he was seen at the relevant time filling magazines in the armoury during the incident itself running to the armoury and at some time closely associated to those first two events seen asking for keys to a motor vehicle.

This applicant on the face of it is not confronted with an overwhelming case.

The witnesses associated with this salient evidence, I am told, are all serving army personnel, located in Suva, Fiji.

Counsel then submitted that I should consider a five year delay as a relevant factor. That is the time between his original current first trial and successful appeal. I am of the opinion that any question of delay for the purposes of this present application commences from the point in time when the Court of Appeal gave its decision not from the point in time when he was originally arrested or convicted and detained as a result of his sentence. I accordingly find that the relevant delay period runs from August of this year, a period of some three months.

However, the importance of the length of time the applicant has spent effectively detained inside the system is that it makes it imperative that any re-trial starts early and is finished quickly so that he receives swift and appropriate justice.

The Military Law provides when someone is detained in close arrest that a report must be made every eight (8) days about that detention. Those reports which I will call delay reports have to be made to a superior officer. In the past in Fiji, before the impact of the recent Court of Appeal decision that related to these proceedings, those reports were made through the convening officer to a superior. However, after the recent Court of Appeal decision the RFMF realized that they need to separate out the powers of the convening officer and the powers of appointment and the powers associated with administering military justice from the command structure.

It remains to be seen whether the RFMF have gone far enough yet to achieve that aim but that need not trouble me in terms of this decision because what they have done is separate these military justice powers into the Office of the President. The President now has the powers to convene courts martial, appoint members and make orders dealing with people such as the applicant who are under close arrest awaiting courts martial.

I accept Ms Malimali’s submissions that regrettably and perhaps due to an oversight as opposed to any deliberate action on behalf of the Military these delay reports have not been furnished to the office of the President. His Excellency hasn’t had the benefit of receiving the content of those reports applying his mind to the content of those reports and then making appropriate decisions about the continued status and detention of the applicant.

Rather as it appears from the affidavit of Lt. Koro, his Excellency has simply issued orders for the convening of the re-trial by courts martial (contained at SK.4 in the affidavit of the 22^nd of October, 2003) and for the close arrest detention of the various accused.

That order also authorizes the detention of these accused for periods in excess of 72 days. I do not need to dwell on the importance of this 72 day rule except to observe that it is a rule contained within the system of military justice that requires the convening of a courts martial quickly with that 72 day period. The purpose of that is to underscore that military justice relies on discipline and to be effective discipline must be administered quickly.

Section 75 of the UK Army Act refers again to these 8 day delay reports being required. These reports are required throughout the period of detention until such time as the courts martial has been assembled.

In the civilian courts I would have the benefit of assessing the quality of the reasons behind His Excellency’s decision because an order detaining someone would have to be supported by reasons. Again, perhaps because of an oversight and in no way offering any criticism of those giving advice to His Excellency or the Military Forces no reasons appear to have been given for the order that was made on the 25^th of October, 2005. In making orders concerning the detention of a soldier His Excellency is acting in a judicial capacity and should provide reasons for his decision (James McCulloch v R, EWCA CAM 907). So I must then approach this matter afresh and I do so on this basis.

Close arrest involves confinement under guard, not unlike imprisonment. Open arrest allows the prisoner much greater liberty; it is bail subject to Military Law.

I have an order of His Excellency that I find has been made in the absence of consideration of delay reports. I also find that since the date of that order the 25^th of October, 2005 His Excellency has not been receiving subsequent delay reports and I now have an applicant before me seeking effective release from close arrest on bail terms.

The case against the applicant, in my view, is not overwhelming. He has been detained for a considerable period of time without trial. He has been specifically detained without the appropriate procedures in particular delay reports being filed. The major concern of the public interest is that he won’t interfere with witnesses. The three witnesses to his offending are all Army personnel.

I find that the interests of justice can be served by using a military law method of dealing with prisoners awaiting trial and moving the applicant from close arrest to open arrest.

The effect of that will be in a practical sense that rather than being detained in a room he can be at liberty within the confines of a military establishment and otherwise enjoy such appropriate freedoms that he can, within the constraints of that military establishment. I am also satisfied that it is appropriate that he be re-united with his family and accordingly I am going to order that as a condition of his bail he be entitled to leave enabling him time to spend with his father. I grant the application for bail and I do so in this way.

(1) I order that the applicant be moved from close arrest to open arrest.

(2) He his to be under open arrest at the Togalevu Naval Base at Suva and subject to Military Law he is to be at liberty within the confines of that Military establishment and again subject to Military Law he is to be given every personal freedom within the confines of that establishment.

(3) I also direct as a condition of his open arrest that he be granted leave every weekend from 1600 hours on Friday to 1600 hours on Sunday to stay with his father in his home located at the Tacirua Village on the outskirts of Suva.

(4) He is to travel to the village by the most direct route.

(5) He is to return from the village to the Togalevu Detention Centre at Suva by the most direct route.

(6) Between 1600 hours Friday to 1600 hours Sunday on every weekend until the commencement of his courts martial he is to be at liberty to freely move around within the known confines and boundaries of Tacirua village. He is restricted to the known confines and boundaries of that village and he is not to move outside of them. He is effectively placed under a boundary curfew then from 1600 hours Friday to 1600 hours Sunday on each and every weekend.

(7) He is not to approach, discuss or contact directly or indirectly any known witness for his courts martial.

(8) If he has any travel documents such as a passport, this is to be surrendered. He is not to obtain any overseas currency or any travel documents and he is not to leave Fiji.

I need to say this to you Ropate, I am extending to you my personal trust. If you breach any of these conditions of your open arrest the Military Police are going to be able to uplift you and put you back into closed arrest. I think that it is important that you and your father are re-united. I am sure your father will be bitterly disappointed and feel greatly let down if you break my trust. Do you understand me? You are otherwise bailed to appear before your courts martial when it convenes on the 25^th of November next or at such other time as you are directed by the Military Police or a superior officer in writing.

I have granted you bail until your courts martial. That is until the courts martial starts. The reason I have done that is that I believe it is appropriate that the Judge Advocate for the courts martial then decide what should happen to you. Do you understand me? As far as practical I want the bail papers drawn up immediately and I want you released to go back to the village this evening.

Gerard Winter
JUDGE

At Suva
11th November, 2005