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Di v State [2010] FJHC 247; HAM103.2010 (14 July 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

CRIMINAL MISC. CASE NO.: 103 OF 2010

BETWEEN:

1. JONE DI
2. VILIAME LEABOGI
APPLICANTS

AND:

THE STATE
RESPONDENT

Counsel: Applicants in Person
Ms. L Koto for the State

Date of Hearing: Tuesday 13th July, 2010
Date of Ruling: Wednesday 14th July, 2010

RULING

For the First Accused Applicant

[1] The applicant Jone Di Atulagi had made an application for bail from the prison.

[2] As per the bail application he is charged for Robbery with Violence.

[3] The applicant’s grounds of appeal were:

(a) To engage a Legal Counsel of his choice.

(b) To continue with his usual business of screen printing.

(c) He is a HIV patient and he needs to have Medical clinic and Counseling twice a week.

(d) He needs more time and space to seek legal counseling in preparation before trial.

[4] He is not married or having dependent children.

[5] He moves, his sister and brother-in-law to be accepted as surety.

[6] In addition to the formal bail application the applicant submitted additional information to Court which is filed of record.

[7] The applicant states that his medical condition needs special diet, and it is not available in prison.

[8] The applicant is not provided with proper medication by the prison medical department.

[9] The applicant complains that he is not given proper recreational activities such as exercising, fresh air and other activities.

[10] The applicant was separated from other inmates due to his medical conditions and therefore he is victimized.

[11] The applicant complains of the living condition in the remand prison.

[12] The applicant strongly feels that his detention is inhuman and degrading therefore it violates his right of life, further it violates the United Nation treatment of Prisoners and breaches the required standard of living set out by the World Health Organization.

[13] The applicant submit that he be granted bail pending trial.

[14] State Prosecutor has filed written submission opposing for bail application.

[15] The charge against the applicant is:

First Count Statement of Offence (a) AGGRAVATED ROBBERY: Contrary to Section 311(1) (b) of the Crime Decree No.44 of 2009.

Particulars of Offence

JONE DI, VILIAME LEABOGI with others, on the 19th day of March, 2009 at Suva in the Central Division being armed with offensive weapons stole $8000.00 cash, 3 Nike canvas valued at $370.00, assorted men’s clothes valued at $100.00, 1 x men’s silver Citizen watch valued at $235.00, 1 x men’s Pulsar watch valued at $350.00, 1 x black Nixon Camera valued at $1,500.00 to the total value of $10,555.00, the properties of the said MOSES WHIPPY.

Second Count Statement of Offence (a) AGGRAVATED ROBBERY: Contrary to Section 311(1) (b) of the Crime Decree No.44 of 2009.

Particulars of Offence.

JONI DI, VILIAME LEABOGI with others, on the 19th day of March, 2010 at Suva in the Central Division, being armed with offensive weapons stole 1x Abec ladies wrist watch valued at $87.00, to the property of the said SHAYREEN WHIPPY.

[16] The offence is serious and can be punished with 20 years of imprisonment.

[17] State Prosecutor submits that the applicant has 28 previous convictions.

[18] State Prosecutor further submits that the applicant 16 out of previous convictions were similar in nature to the present offence.

[19] State Prosecutor submits that the applicant has previous history of escaping from lawful custody on four separate occasions and these incidents shows that he has no respect of any Court orders.

[20] State Prosecutor submits that the applicant has been in remand since 25.03.2010. Disclosures were made and now it is to be fixed for hearing.

[21] State Prosecutor submits that the applicant can obtain proper legal assistance through Legal Aid while in prison.

[22] State Prosecutor submits that the applicant’s health care had been properly taken care by the Prison authorities. In support of his statement he submits a memorandum prepared by Mr. Meli Cama. A/POA dated 16th June 2010.

[23] As per the memo of Mr. Meli Cama this applicant is given proper medical care and attention. I re-produce paragraph 2, 3, 7 and 8 of the letter.

"2. Sir, his medical condition is well known to the prison medical department because he has been in prison in the past. He has the same medical problem for a long time-more than ten years. He is taking a special medication that is supplied-free of charge-by the STI clinic.

3. Sir, remand prisoner Di was taken to the STI clinic on 20-04.2010 and 24-05-2010. At the specialist clinic, the clinic specialists checked him. During both these clinic visits, he did not have any symptoms or medical complaints. The specialists found that Jone is in a very good condition. His medication was replenished.

7. Sir, even though Jone has not had any medical complaints during his stay in remand prison, we are monitoring his condition very closely. He is welcome to present any medical complaint or issue with the two medical orderlies. We will be available daily and will even come to attend to his medical problems in the night if the need arises.

8. If he presents with a medical problem, we will assess the severity of the issue and refer him to the visiting medical officer or STI clinic. In case the problem is a severe one, we will refer him to the CWM hospital, even in the middle of the night.

9. In short, we are well prepared to manage such remand prisoners. We can also assure that Jone be able to attend the monthly STI clinic reviews and that he has his medications all the time. If need be, he will be able to see the visiting medical officer, upon his request. The visiting medial officer visits Suva Prison every week. If Jone’s situation gets very bad, he will be taken to CWM Hospital immediately".

[24] Regarding the allegation of inhuman treatment of the applicant, the Prison Authorities replies as follows in paragraph 6 of the memo:

"Sir, even though Jone was interned at the security block in the past, at present he is interned in the dorm with the other remand prisoners. (The security block is closed now). Jone eats his meals in the dining mess, together with the other remand prisoners. In short, Jone Di is treated just like any other remand prisoner".

[25] State Prosecutor has submitted the affidavit of Apimeleki Navuni, the officer-in-charge of Suva Prison which is filed of record.

[26] Mr. ApimelekiNavuni states that the allegations made by the 1st applicant is wrong and incorrect.

[27] Mr. Navuni states that the applicant is given an hour for recreational activities Outdoor.

[28] Mr. Navuni states that both applicants are housed at Buabua block contrary to their claims of being isolated and living with mentally disturbed inmates.

[29] Regarding the complaint of inhuman treatment other allegations Mr. Navuni states as follows:

1. That the Applicants do not live in an isolated cold wet damp cell but live in a block with other remand inmates as well.
   
2. That each bed is furnished with a pillow, 2 blankets, a mosquito net, a mattress cover and even their own towels.
   
3. That the Applicants both have a standard sized single bed mattress to sleep on and not a piece of sponge.
   
4. That the Applicants are being provided with proper ventilation, each bed is located next to a window.
   
5. That the Applicants are housed in a block that is not only well ventilated but the beds are positioned at a reasonable distance from each other.
   
6. That the Applicant Jone Di is not sleeping on the cold wet cement as alleged by him but he is sleeping on the top bunk of a double bed.
   
7. That the bathroom and toilet is attached to the main block but located in a separate room.
   
8. That the inmates are provided with soaps, toothbrush (changed when the need arises – preferably 3 months basis), toilet paper and toothpaste. The Prison officials also welcome toiletries brought in by the inmate’s visitors. The ration is usually on a fortnightly basis unless the situation states otherwise.
   

[30] Mr. Navuni states that the 1st Applicant Jone Di’s medical needs are being taken care of and closely monitored.

[31] Mr. Navuni further submits that the accused persons have made false allegations concerning their living standards.

[32] The bail Act Section 3(1) says as follows:

1. Every accused person has a right to be released on bail unless it is not in the interests of justice that bail should be granted
   
2. Bail may be granted by a court or, subject to section 8(2), by a police officer.
   
3. There is a presumption in favour of the granting of bail to a person but a person who opposes the granting of bail may seek to rebut the presumption.
   

[33] Considering the submission of the State Prosecutor that the applicant will come within the purview of Section 19 (1). Now I refer to Section 19 (1) of the Bail Act

19. (1) An accused person must be granted bail unless in the opinion of the police officer of the court, as the case may be -

(a) the accused person is unlikely to surrender to custody and appear in court to answer the charges laid;

(b) the interests of the accused person will not be served through the granting of bail; or

(c) granting bail to the accused person would endanger the public interest or make the protection of the community more difficult.

[34] Considering both the application for bail and submission by the State I am of the view that the applicant falls within the ambit of Section 19 of the Bail Act.

[35] Considering the nature of the offence I agree with the State Prosecutor that the Applicant will be endangering the public interest set out in Sec 19 (1) (c) of the Bail Act. In ISIMELI WAKANIYASI vs THE STATE.(2010) FJHC 20; HAM 120/2009 (29th January 2010). His Lordship Justice Goundar states that:

"All three grounds need not exist to justify refusal of bail. Existence of any one ground is sufficient to refuse bail".

[36] Considering the nature of the charge of Robbery with Violence which is a serious Offence. The offence is prevalent in our Community. Considering all previous convictions of this applicant even though he is presumed to be innocent until proven guilty I am of the view that it is with Public interest that the applicant remains remand pending trial.

[37] The application for bail is refused.

For the Second Accused applicant

[38] The applicant made an application for bail from the Prison in person.

[39] The applicant states that he is charged with aggravated robbery.

[40] The applicant states that he has no history of breaching bail conditions.

[41] The applicant states that he is a young person and his wife is 7 months pregnant.

[42] The applicant willing to seek the services of a legal Counsel.

[43] The applicant states that he can provide a suitable surety.

[44] The applicant also sates that he is a self employed farmer.

[45] The applicant filed a written submission in Court on the 23rd June 2010. As per his statement.

[46] As the applicant submits that the Prison is overcrowded and he is unable to stay there.

[47] Applicant further submits that he had been detained with mentally ill persons.

[48] The applicant moves to release him as reasonable bail.

[49] State Prosecutor objects to grant bail to the applicant at the written submission and made submission in Court.

[50] The charge against the applicant is:

First Count Statement of Offence (a) AGGRAVATED ROBBERY: Contrary to Section 311(1) (b) of the Crime Decree No. 44 of 2009.

Particulars of Offence

VILIAME LEABOGI with others, on the 19th of March 2009 at Suva in the Central Division being armed with offensive weapons stole $8,000.00 cash, 3 Nike canvas valued at $370.00, assorted men’s clothes valued at $100.00, 1x men’s silver Citizen watch valued at $235.00, 1x men’s Pulsar watch valued at $350.00, 1 x black Nixon Camera valued at $1,500.00 to the total value of $10,555.00, the properties of the said MOSES WHIPPY.

Second Count Statement of Offence (a) AGGRAVATED ROBBERY: Contrary to Section 311 (1)(b) of the Crime Decree No.44 of 2009/

Particulars of Offence

VILIAME LEABOGI with others, on the 19th day of March, 2010 at Suva in the Central Division, being armed with offensive weapons stole 1x Abec ladies wrist watch valued at $87.00, to the property of the said SHAYREEN WHIPPY.

[51] This applicant has four previous convictions concerning the forfeiture of bail bonds.

[52] State Prosecutor submits that there is strong evidence to prove the case against this applicant.

[53] State Prosecutor submits that this applicant can obtain legal and/representation while in custody.

[54] State Prosecutor submits that this applicant if convicted may get imprisonment upto 20 years; therefore there is a likelihood that his applicant will not appears in Court of this trial.

[55] State Prosecutor submits that some of the stolen items were recovered from this applicant and his involvement can be proved in trial.

[56] State Prosecutor submits that it is in the Public interest bail should not be granted.

[57] Now I consider Sec.3(1) of the Bail Act (which is above mentioned in paragraph 32)

[58] Considering the nature of the offence is aggravated robbery which is described as one of the serious offence in the crimes decree. [TILA WILLIAMS vs The State Crim. Misc.HAM 099 of 2008 by Daniel Goundar J:

"Robbery with violence is a serious charge. The offence is prevalent in our community. The Applicant has a history of committing robbery with violence. Of course, he is presumed to be innocent until proven guilty in respect of the charges pending in court, but these matters persuade me that it is in the public interest that the Applicant remains in remand pending trial despite his ability to provide a surety from a person who has a good standing in the community".

I endorse myself with the above opinion.

[59] See 19(1) of the Bail Act states as follows:

"An accused person must be granted bail unless in the opinion of the police offer or the court, as the case may be –

(a) The accused person is unlikely to surrender to custody and appear in court to answer the charges laid;

(b) The interests of the accused person will not be served through the granting of bail; or Granting bail to the accused person would endanger the public interest or make the protection of the community more difficult.

[60] Considering the nature of the charge and the previous convictions concerning the forfeiture of bail of the applicant throws doubt in my mind that this applicant may not submit himself for the trial, if he is enlarged on bail.

[61] Therefore I refuse to grant bail.

S Thurairaja
JUDGE

At Suva
Wednesday 14th July 2010

Solicitors
Applicants in Person
Office of the Director of Public Prosecution for State