IN THE HIGH COURT OF FIJI
AT LAUTOKA
MISCELLANEOUS JURISDICTION

CRIMINAL MISCELLANEOUS CASE NO: HAM 149 OF 2015

BETWEEN :

STATE
Applicant

AND :

1.	TIMOCI NAGATA
2.	PITA CAMAIMOALA VAKATAWA
3.	SAIMONI NACOLAWA
Respondents

Counsel : Mr Aman R. Singh for the Applicants
Mr S. Babitu for the Respondent

Date of Hearing : 12th August 2015
Date of Ruling : 13th August 2015

Bail Ruling

Background

1.	The State has filed this bail review Application pursuant to Section 30(3) of the Bail Act of 2002, seeking an order reversing the bail determination of the learned Magistrate of Lautoka made on the 10th of August 2015, granting bail to the Respondents. 

2.	Having received notice of the Application, the Counsel for Respondents appeared before this Court and sought three weeks’ time to file objections to the Application. 

3.	Having considered the oral submissions of the State in support of the Application, Court granted time till 12th August 2015 to file objections and issued notices on Respondents to appear in Court. 
4.	Respondents filed their objections accordingly and the matter was fixed for hearing on the same day in view of urgency and public interest concerns raised by the State. 

Position of the State

5.	The State submits that the learned Magistrate erred when he granted bail to the Respondents disregarding the objections raised in opposition to bail.

6.	The State has filed an affidavit of the Investigating Officer, Loraini Seru in support of the Application for bail review.

7. According to the affidavit, objections before the learned Magistrate were based on following grounds;

a.	THAT Respondents were charged with serious offences; one count of Sedition contrary to Section 67(1) (b) and one count of Inciting Communal Antagonism contrary to Section 65(1) (b) of the Crimes Decree No. 44 of 2009.

b.	THAT Police investigations were still going on and that the Police have yet to recover the firearms that had allegedly been in the possession of the group that the Respondents were part of.

c.	THAT the matter was serious and thus the public interest concerns in the matter was high.

d.	THAT considering the issue of firearms being used and the fact that investigation was still ongoing for other suspects in custody, there was a high likelihood that the release of the Respondents to the community may cause security issues within the society. 

e.	THAT Police was in the process of gathering information in regard to possible whereabouts of firearms and as such the release of the Respondents on bail would delay and hamper the investigation process.

8.	The State has annexed the Charge Sheet and witness statement of Tuinabuna Loga, Police Officer attached to Rakiraki Police Barrack that had been placed before the learned Magistrate, as part of the affidavit.

Objections of the Respondents

9.	The Respondents submits; 

That their rights guaranteed under the Constitution of the Republic of Fiji [Sections 13 (f), (g) and 14(2)(e)] were violated when they were produced before the learned Magistrate.

That the impugned bail determination must sustain as it has been made in accordance with law.

Law relating to Bail Review

10.	Power to review a bail determination made by a Magistrate is conferred on this Court by Section 30 (3) of the Bail Act of 2002. 

Section 30 (7) of the bail Act reads as follows:

“A Court which has power to review a bail determination, or to hear a fresh application under Section 14 (1), may, if not satisfied that there are special facts or circumstances that justify a review, or the making of fresh application, refuse to hear the review or application.”

11.	According to Section 30 (8) (d), review jurisdiction can be exercised at the request of the Director of Public Prosecutions (DPP). 

12.	The power to review a decision includes the power to confirm, reverse or vary the decision [Section 30(9)]. According to Section 30(10), the review must be by way of a re-hearing, and evidence or information given or tamed on the making of the decision may be given or obtained on review.

13.	Having perused the copy record of the Magistrates Court, affidavit and other documents filed by the State, I am satisfied that there are special facts and circumstances that justify a review. 

Position of the Constitution

14.	It appears that the Constitution of the Republic of Fiji has fashioned a judicious balance between the rights of the individual and the wider interest of the community as a whole. Section 9(1)(e) of the Constitution stipulates that personal liberty of a person could be deprived if he is reasonably suspected of having committed an offence.

15.	According to Section 5 of the Constitution, rights and freedoms recognised in Chapter 2 may be curtailed by limitations which are necessary and are prescribed by law or provided under a law or authorised or permitted by a law or by actions taken under the authority of a law. (Section 5C) 

16.	According to Section 13(1)(h) of the Constitution, every person who is arrested or detained has the right to be released on reasonable terms and conditions, pending a charge or trial, unless the interest of justice otherwise requires so. 

17.	It is clear that the rights guaranteed in Chapter 2 of the Constitution are not absolute and are limited by the Constitution itself and also by other legislation and lawful actions. 

18.	Bail Act gives effect to constitutional underpinnings in respect of a suspect/ Accused whose liberty has been deprived. 

Position of the Bail Act 

19.	According to Section 19(1) of the Bail Act, an accused person must be granted bail unless in the opinion of the Police officer or the Court as the case may be; that

(a). the accused person is unlikely to surrendering to custody and appear in court to answer the charges laid,

(b). the interest 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.

20.	The State seems to have based its argument before the learned Magistrate on ground (c) stated above. In forming the opinion, the learned Magistrate was required by Section 19 (1) (c) of the Bail Act to consider all the relevant matters and in particular, 

1.	any previous failure by the accused person to surrender to custody or to observe bail conditions;

II.	The likelihood of the person interfering with evidence, witnesses or assessors or any affected person;

III. The likelihood of the accused person committing an arrestable offence while on bail. 

21.	Evidence or information given or tamed on the making of the impugned bail decision may be given or obtained on review of bail determination [Section 30(10)]. Accordingly, I perused the copy record of the Magistrates Court which contains the charge sheet, submissions of the parties and the witness statement in coming to my decision. 

Competing Interests in a Bail Matter 

22.	A bail application can, at a theoretical level, be reduced to an assessment between the competing interests of the Accused (who is presumed innocent until proven guilty and entitled to remain at liberty) on the one hand and the community (which expects to be protected from dangerous offenders) on the other. However, any realistic assessment of bail needs to be worked out on the basis that the presumption of innocence must give way, in certain circumstances, to accommodate the community’s interest in having guilt determined (which is facilitated by the accused’s attendance at court) and protecting society against further harm from the offender. It is important that Courts bear these broader theoretical constructs underpinning the bail system in mind when called upon to make decisions concerning bail. 

Oder of the Magistrate 

23.	The question to be raised at this point is whether the learned Magistrate was justified in releasing the Respondents on bail in view of objections raised by the State on aforementioned grounds.

24.	The material available before the learned Magistrate, in my assessment, was sufficient enough to refuse bail to the Respondents at their first appearance in Court. I find that there was an eye witness account of a Police officer that firearms had been seen in the possession of the group that the Respondents were part of. The State had emphasised the need to recover the firearms that were unlawfully in the hands of seditious civilians. 

25.	Seditious activities often happen in secrecy. Investigation process is expected to be complex and time consuming. Civilians carrying firearms is a matter of serious public security concern, especially in a country where life of democratically elected government is threatened by frequent coup attempts. The Courts are expected to be vigilant so as to ensure that investigation process of the Police is not hampered. 

26.	The State Counsel, in his oral submission, stated that the learned Magistrate had rushed to his determination without giving him a reasonable opportunity to substantiate the objection by way of an affidavit. Copy record confirms the State Counsel’s submission. The learned Magistrate should have given both parties a reasonable hearing before coming to his final assessment. 

27.	I am of the considered view that in forming his opinion the Magistrate had failed, as matter of public interest, to consider the likelihood of interfering with evidence and witnesses in case where Respondents being enlarged on bail at the early stage of investigation. 

Right to be informed of Charges/ Evidence

28.	Respondents submit that they were not charged at the first Court appearance and the nature of the charges and evidence against them were not disclosed to them. 

29.	According to Section 56 of the Criminal Procedure Decree formal charging takes place at the Police Station. A suspect is formally charged following an interview at the Police Station. Copy Record confirms that the charge or the complaint by a public officer had been submitted to the Magistrates Court when the Respondents were produced. Court had informed the Respondents that they were being charged with an indictable offence triable summarily by the Magistrate. Information with regard to illegal possession of firearms had come to light in the bail hearing. Counsel had made submissions on that basis. I am unable to agree with the contention that the Respondents were kept in dark in respect of the nature of the offences they were charged with. 

30.	It is fundamental aspect of a fair trial that criminal proceedings, including elements of such proceedings which relate to procedure, should be adversarial and that there should be equality of arms between the prosecution and the defence. The right to an adversarial trial means, in a criminal case, that both prosecution and defence must be given the opportunity to have knowledge and comment on the observations filed and the evidenced by the other party. [Rowe and Davis v. the United Kingdom (GC), http://hudoc.echr.coe.int/eng]

31.	Article 14(2) of the Constitution of the Republic of Fiji guarantees those rights and there can be no argument that every court in this country, before starting the trial, is bound to apply those principles to ensure a fair trial guaranties entrenched in Section 14 and 15 of the Constitution.

32.	The question is whether the State is bound, at the investigation stage, to disclose all the material evidence to a person suspected of having committed a crime of this nature.

33.	The entitlement to disclosure of relevant evidence is not an absolute right, especially at the investigation stage of a crime of this nature. In criminal proceedings there may be competing interests, such as national security, or the need to protect witnesses who are at risk of reprisals or to keep secret methods used by the Police to investigate crime, which must be weighed against the rights of the accused. In some cases it may be necessary to withhold certain evidence from defence so as to preserve the fundamental rights of another individual or to safeguard an important public interest. (Van Mechelen and others v. the Netherlands, http://hudoc.echr.coe.int/eng 

34.	In cases where evidence has been withheld from the defence on public interest grounds even the European Court of Human Rights will not itself review whether or not non-disclosure was justified in a particular case. Rather, it examines the decision making procedure to ensure that it complied, as far as possible, with the requirements of adversarial proceedings and equality of arms and incorporated adequate safeguards to protect the interests of the accused. Rowe and Davis v. the (supra)

35.	The Respondents also allege that the Respondents were kept in Police custody for more than 48 hours without being brought before a court, in violation of Section 13 (1)(f) of the Constitution. There is no evidence placed before me to substantiate this allegation. I leave that matter to be litigated in a separate application, challenging breach of Constitutional Rights if the Respondents wish to do so. If the Respondents allegation is presumed to be true, and the Police in fact had failed to produce the Respondents within the stipulated time frame, it is still open for the Police to justify the delay if it was not reasonably possible to produce the respondent within 48 hours. 

Order
36.	For reasons aforementioned, I reverse the bail determination of the learned Magistrate dated 10th August 2015 and revoke bail granted to the Respondents. I order the Prison authority to take custody of Respondents and produce them before Rakiraki Magistrates Court on 17th August 2015. I order the Police to expedite investigations and report the progress. 

Aruna Aluthge
Judge

At Lautoka
13th August 2015

Solicitors : Mr S. Babitu for the State
 Mr Aman R. Singh for Respondents