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Apelu v Regina [2005] TVHC 3; Case No 01 OF 2005 (14 January 2005)

IN THE HIGH COURT OF TUVALU
CRIMINAL APPEAL

CASE No. 1 OF 2005

BETWEEN:

TELEKE APELU
APPELLANT

AND:

REGINA
RESPONDENT

JUDGMENT

This is an appeal, filed on 6 January 2005, from the refusal by the Senior Magistrate to grant bail. Counsel for both sides have filed written submissions and the appeal is to be dealt with on the papers. In order to ensure this decision is given quickly, I shall not give detailed reasons.

The appellant has been charged with causing death by reckless driving, contrary to section 21(2) of the Traffic Act, Cap 71. The death occurred in the early hours of 25 December 2004 following a collision between a van driven by the appellant and a motor cycle driven by the deceased which had occurred at 7.00pm the previous evening. The appellant was not detained by the police until the victim of the accident died and he has been in custody since.

The unsuccessful application for bail was on 30 December 2004 and the appellant was remanded in custody to 14 February 2005.

At the hearing before the learned Senior Magistrate, the prosecution opposed bail on the grounds that it was necessary for the security of the appellant and his family, the seriousness of the charge involving as it did the loss of life and the risk of interference with witnesses as only some had been interviewed.

The learned Senior Magistrate accepted those grounds and added, in the record:

“Lastly, what will the public say to our judicial system if the accused who is charged with a very serious offence plus the fact that the victim’s life is lost and the accused is released and walked free in public...within a week from the date of the offence.”

Bail is serious deprivation of an unconvicted person’s liberty. Anyone charged with criminal offence is entitled to be presumed innocent until and unless he is convicted and so there should be a rebuttable assumption in his favour that he will be granted bail. He should not be deprived of his liberty except on substantial grounds and the principal consideration is whether he will attend court to stand his trial.

In the present case, it would appear from the record that there was no suggestion made to the court that he would not turn up for his trial. In fact the learned Senior Magistrate attached more weight to the protection of the accused and his family and to public opinion about the prompt release of the appellant so soon after being charged with such a serious offence.

Where an objection to bail is raised by the prosecution, as occurred here, the court should not simply accept the assertions of either prosecution or defence as to matters of fact. In this case, there is nothing in the record to suggest that the police produced any details to substantiate their objections. This was the case both in relation to the suggested danger to the appellant and to the suggestion of interference with witnesses.

In some cases these may be a serious problem but, if that is the case, the police must give an explanation of the basis for their concern. The only suggestion here to support the objection on the ground of interference with the prosecution witnesses was that some potential witnesses had not yet been interviewed. That is totally insufficient to support such an objection.

It is up to the police to conduct their investigations with all necessary speed and, if they are unable to do so, the accused should not suffer as a result. If the police have clear reasons for the suspicion that witnesses may be interfered with, they should state them and the court should not attach any weight to such an objection without the grounds for the objection being clearly stated. In either case, if the accused does not accept them the prosecution must be ready to call evidence to substantiate them.

The seriousness of the offence is only relevant in cases where the likelihood of conviction is so high and the probable penalty so severe that there is a real possibility the accused will fail to appear for his trial. In such circumstances, the risk may be reduced by the imposition of conditions on the bail to ensure he does not abscond.

However, in the present case, the prosecution has indicated in its written submissions that it no longer opposes bail if sufficient conditions are attached and counsel for the appellant has filed further submissions to inform the court that the families of the appellant and the victim have now met through the good offices of a pastor of the EKT.

In those circumstances, the court should not withhold bail and I shall grant it. Faced with the same additional information, I have no doubt the learned Senior Magistrate would have done the same.

The appellant is to be bailed in his own recognisance of $700 and a surety of $700 to a date to be fixed by the Senior Magistrate on the following conditions:

1. He shall surrender his passport to the court before he is released and it shall be detained until further order of this Court or of the Senior Magistrate.
   
2. He shall not leave the country without the permission of this Court or of the Senior Magistrate.
   
3. In the event that he is granted permission to leave the country by the Senior Magistrate, such order shall not take effect for three days and the prosecution shall have liberty to indicate their intention to appeal such decision to the High court within two days.
   
4. He shall not drive any motor vehicle until further order of this Court or of the Senior Magistrate.
   

[JUSTICE GORDON WARD]
CHIEF JUSTICE OF TUVALU

14^TH JANUARY, 2005