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State v Vereti [2012] FJMC 25; Criminal Case 8 of 2012 (22 February 2012)

IN THE MAGISTRATE’S COURT AT SUVA
CRIMINAL DIVISION

Criminal Case No. 8 of 2012

The State

–v-

(1) Apete Vereti
(2) Semisi Nasike
(3) Mere Samisoni
(4) Mataiasi Ragigia

For the State: Mr. Pryde and Ms. Whippy
For Accused 1: Mr. Vakaloloma
For Accused 2: Mr. Chaudhary
For Accused 3: Ms. Vaniqi
For Accused 4: Mr. Vosarogo

Bail hearing: 14th February 2012
Bail ruling: 22nd February 2012

Law Cited: Bail Act 2002

RULING ON BAIL VARIATION

This is the application for bail variation filed by Accused 2 and Accused 3. Although submissions were heard on behalf of Accused 2 and 3 only, this decision will apply to all 4 Accused persons.

This Court granted bail to all 4 Accused persons on the 4th of January 2012 on the following conditions:

1. Each Accused will enter into a bond for $5,000 each with two acceptable sureties for a like sum
2. Each Accused will reside at their residential address and are not allowed to change their address for the duration of these proceedings.
3. Each Accused will surrender any travel documents to the custody of the Court today.
4. All the Accused persons’ names will be put on the watch list meaning they will not be allowed to leave the jurisdiction for the duration of these proceedings.
5. Each Accused will report daily at their nearest police station between 8am to 6pm
6. Each Accused will remain indoors in the hours of darkness – 7pm to 6am
7. None of the Accused persons are to contact each other or to interfere with any of the State witnesses whilst they are on bail.
   

The decision was accompanied by a written ruling setting out the rationale for the granting of bail as well as justifying the conditions for bail that have been imposed on all the Accused.

The case was adjourned to the 25th to enable disclosures to be completed and for the Accused to all take their plea.

When the case was called for mention on the 25th January counsel on behalf of Accused 3 made an oral application for variation of her bail conditions. This oral application was supported by the other three Accused persons.

The State objected to any variation and advised that such applications needed to be done by way of Motion and Affidavit. The State has filed written submissions in opposition to bail variation.

The application for variation was formally made through a Notice of Motion dated 14th February 2012 seeking the following variations to the bail conditions: -

(a) Lifting of the requirement for daily reporting and to be substituted by reporting every fortnight.

(b) Lifting of the curfew order currently in place.

The application is supported by the affidavit of Dr. Mere Samisoni filed on the 14th of February 2012. In her affidavit she canvasses the difficulties that she currently faces in running her businesses while complying with the bail conditions. She also cites the fact that the current conditions for bail are making it difficult for her to consult with counsel of her choice.

Affidavits were also filed by Apete Vereti, Semisi Nasike and Mataiasi Ragigia in support of the application for bail variation. The applications are predicated on the fact that since bail was granted, the circumstances of all the Accused have changed and they are finding it difficult to earn a living with the stringent conditions imposed by the Court on them.

The State has filed two Affidavits by Detective Corporal Petero Tupici in answer to the Affidavit of Dr. Mere Samisoni and Semisi Nasike.

The State’s position is that all the conditions that are being complained off now were there when the original bail applications were filed and there has been no significant change in the circumstances of each Accused person. The State submits that the application for variation is misconceived and must be refused.

The application for bail variation was heard on the 17th of February and submissions were heard primarily from counsel for Accused 2 and 3. The State also submitted oral arguments in support of their contention that the application for bail variation is misconceived and should be refused.

Analysis

It is common ground among all the parties that the Magistrate’s Court has the power to review a decision granting bail and this review includes the authority to confirm, reverse or to vary the original decision granting bail. This is conferred by virtue of section 30 (9) of the Bail Act 2002.

Section 30 (10) then provides that the bail review will be by way of a rehearing and parties are at liberty to provide evidence.

The central issue at the heart of the variation application is stipulated at section 30 (7), which states:

“(7) A court which has power to review a bail determination, or to hear a fresh application under section 14(l), may, if not satisfied that there are special facts or circumstances that justify a review, or the making of afresh application, refuse to hear the review or application.” (Emphasis added)

The Accused have deposed and submitted that the current conditions for bail are making it difficult for them to earn a living and to instruct their counsels. Accused 3 in particular cites that her counsel of choice is resident in New Zealand and her current conditions for bail are rendering it impossible for her to instruct her counsel when he flies in from New Zealand to Nadi as she is subject to a daily curfew. She also contends that her role as representative of all Class A shareholders for Fijian Holdings Ltd require that she attend a board meeting scheduled for the 24th of February. She now requires permission to change her address to move back to Muanikau.

The 2nd Accused submits that he is a registered bailiff and his work requires him to travel on behalf of his employers. He submits that the curfew and daily reporting means that he will be deprived of work in outer islands or in locations far from Suva.

The State concedes that Accused 3 can change her address but opposes the application variation for the remaining Accused. The State submits that there has been no significant change in the circumstances of all the Accused as the conditions that are now being complained of were also present on the 4th of January. The State therefore submits that the application should be refused.

This Court has the authority to review its bail conditions and this is set out at section 30 of the Bail Act 2002. The Bail Act is a piece of legislation that encapsulates the established authorities on bail and it was passed through rigorous Parliamentary debates almost without question. It applies generally accepted international norms and enshrines the presumption of innocence for an Accused person.

In the case of FICAC –v- Tuisolia [2009] FJHC 159, the High Court stated as follows: -

“[14] Under the Bail Act, the primary test for bail is whether the accused will appear for trial. Section 23(a) of the Bail Act provides that bail must be granted unconditionally unless the court considers that conditions should be imposed for the purpose of ensuring the accused’s surrender into custody and appearance in court. The conditions of bail should be reasonable, that is, considered on an objective assessment of all the relevant circumstances.

[15] The test for reasonableness of bail conditions was stated in Iliaseri Saqasaqa v. State HAM 005.06S and applied in State v. Khan [2008] FJHC 62 and Qarase v. FICAC Misc. Case NO. HAM039/09 as:

"Bail conditions, imposing as they must restrictions on persons awaiting trial, must therefore be reasonable and commensurate with the gravity of the offence and with the individual risks identified as applicable. Bail must not be fixed excessively, in effect, denying the applicant an opportunity to take up the grant of bail. This has been a principle of great antiquity in the common law."

[16] In Qarase v. FICAC (supra), this Court said:

"The right to liberty is a basic human right. Bail for a person accused of an offence means authorization for the person to be at liberty instead of in custody, on condition that the person appears for trial. Conditional bail is granted as an alternative to pre-trial detention. Permissible conditions include the surrendering of travel documents, imposition of a residence requirement and the provision of a surety assessed in relation to the means of the accused. These restrictions on the right to liberty are consistent with international law (Wemholl v Germany (1968) 1 EHRR 550)."

In the current bail variation application if the variation sought were to be allowed then in effect these Accused would be granted bail unconditionally contrary to the bail ruling delivered on the 4th of January.

In considering the evidence put forward by each Accused the Court finds that they are in the same position as they were on the 3rd of January when they made applications for bail. Apete Vereti stated then that he is self employed and is the sole breadwinner in the home; Semisi Nasike was then and still remains a registered bailiff; Mere Samisoni was then and still runs various businesses throughout Fiji with attendant responsibilities and Mataiasi Ragigia was then and still remains a pensioner.

When submissions were being heard from all the Accused on bail, the State had proposed in the alternative very stringent conditions including cash bail for $10, 000. With the exception of Accused 1, 3 and 4 who informed the Court that they were in no position to post a cash bond, all the other conditions were acceptable. This is reflected in the records of the bail hearing.
Notwithstanding the above, the Court notes that the current bail condition requiring daily reporting may be unduly onerous therefore the application for bail variation will succeed to that extent only.

The other variations requested have not been justified and are refused.

The Court therefore orders as follows: -

(a) The Accused Mere Samisoni is hereby granted permission to change her address from Cakobau apartments to Muanikau

(b) Each Accused is now required to report to their nearest police stations every Monday, Wednesday and Friday between 8am to 6pm.

(c) The other conditions for bail remain the same

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Usaia Ratuvili
Chief Magistrate
22nd February 2012