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State v Biu [2005] FJHC 485; HAC0047D.2005S (16 September 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Crim. Case No: HAC0047 of 2005S

STATE

v.

JOSAIA VALE BIU
& OTHERS

Hearing: 13th September 2005
Ruling: 16th September 2005

Counsel: Mr. R. Gibson for State
Applicant in Person

BAIL RULING

The Applicant makes an application for bail pending trial. He is charged with murder on one count, and robbery with violence on one count. The prosecution alleges that on the 7^th of June 2005 he and one Apakuki Sowane robbed one Nirmala Devi of jewellery valued at $4,217.00 and then murdered her, at Nasinu. He has been in custody since his apprehension on the 23^rd of June 2005. Bail applications in the Magistrates’ Court were refused for public interest reasons. It is likely that the trial will commence in August 2006, in which case the Applicant will have been in custody for 13 months.

The grounds for this application are that the Applicant is not an escape risk, the hearing is delayed until next year, he will not interfere with the investigations which are complete and the conditions of his custody are inhumane and degrading. The State opposes the application, saying that the Applicant is charged with a serious offence, the circumstances of which were horrific. Counsel said that the occupants of the house continue to live in terror and that the Applicant is a single man with no family ties. He finally said that the case against him was strong and that the conditions of custody were not such as to constitute inhumane and degrading treatment under section 25 of the Constitution.

I have no doubt at all that the public interest justifies the Applicant’s continued remand. The offences with which he is charged reflect an alleged murder which is high on the scale of serious murders. The witnesses are children. One is 8 years old and the other is 10. They fall into a category of vulnerable witnesses who require the special protection of the law. The police only apprehended the Applicant after an extensive search and it is likely that a grant of bail will result in the Applicant absconding and causing disruption and frustration of the criminal process. If conditions of custody were only one factor to be considered in this bail application I would rule that the public interest must nevertheless prevail, and bail must be refused.

However, I have already ruled, as have my brother judges in the criminal division of the High Court, that the conditions of custody of the Awaiting Trial Block of the Korovou Prison, are a breach of section 25 of the Constitution. I have found in Peceli Vuniwa v. State HAM0050.2005 that the lack of ventilation in the cells, the inadequate and damp bedding, the practice of placing three men in one small cell, the sewage in the cells, the inadequate hygiene and the long hours of confinement without relief, together constituted inhumane and degrading treatment. I did so on the basis of a Human Rights Commission Report which found several breaches of the United Nations Minimum Standard Rules on the Treatment of Prisoners.

In the case of this Applicant, presumably as result of the recent decisions of the High Court to grant bail in these circumstances, the State has moved to improve the remand conditions of the Applicant. The Officer-in-Charge at Korovou, Superintendent Waisake Qoli, Chief Prison Officer gave evidence that the Applicant has been placed in a cell on his own. He is allowed to wear (his own) warm clothes. The Officer has undertaken to give him clean fresh bedding and to provide easy access to paper, pen and the telephone. He has made an undertaking to the court that the Applicant will not be shifted to other accommodation. In relation to complaints about the quality of the water, the Officer said that they all drank the water in the prison, and that there was nothing wrong with it.

The Applicant appeared to accept these assurances. I am similarly ready to accept them, and to find that the Applicant’s conditions of custody do not constitute a breach of section 25 of the Constitution. However, the Applicant’s conditions of custody will be reviewed every fortnight to ensure continued compliance.

Bail is refused.

Nazhat Shameem
Judge

At Suva
16th September 2005