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Public Prosecutor v Festa [2003] VUSC 65; Criminal Case No 044 of 2003 (22 October 2003)

IN THE SUPREME COURT
OF THE REPUBLIC OF VANUATU
(Criminal Jurisdiction)

Criminal Case No. 44 of 2003

PUBLIC PROSECUTOR

-v-

ERIC FESTA

Coram: Justice Treston

Mr. Tevi for Public Prosecutor
Mr. Malcolm for Defendant

RULING ON APPLICATION FOR RELEASE ON BAIL

The Defendant Mr. Eric Festa has been declined bail in the Magistrates' Court. In accordance with provisions of the Criminal Procedure Code he has elected to apply for bail in the Supreme Court and under Section 68 of the Code I have been provided with a written report of the Magistrate addressed to this Court, stating the grounds for refusing bail and setting out in detail the evidence or information upon which his conclusions were based.

Effectively the learned Magistrate has indicated that, flowing on from submissions made by the Public Prosecutor which are detailed in the reasons, and the defence submissions, he had 4 reasons why bail was not granted.

First, this was a serious case. The Defendant is facing a charge of cultivation of cannabis and possession of cannabis. The maximum penalty may be 5 years and could be up to 20 years. I am told by the Prosecution it is the latter as a maximum penalty.

Second, the learned Magistrate concluded that the defendant might re-offend if released on bail based on the information that was placed before him. There was a suggestion that the defendant had previously offended by cultivating cannabis for which he was warned. That is denied by the defendant, but it is clear that the learned Magistrate felt that it was unsafe to release him on bail because there could be ongoing activity by the Defendant should he be released, as far as possession and cultivation of cannabis is concerned.

The third reason for refusing bail was that the defendant might interfere with Prosecution witnesses or the ongoing investigation and that has been reiterated in this Court. It is submitted by the Prosecution that others are probably involved and there could be a ring or a gang involved in cultivation of cannabis including some high ranking officers of the Police and ongoing investigations could be hampered should this defendant be released.

The fourth reason for declining and refusing bail as set out by the Magistrate was that the defendant might obstruct the cause of justice by making himself unavailable for interviews and by giving information to a colleague should there be a group involved and by interfering with evidence or threatening others.

Today, bail is reapplied for on the basis of a sworn statement filed by the defendant, who is a game fishing skipper. He indicated that his personal circumstances are that he is 37 years of age, married with two children and earning VT12, 000 for each charter on the charter boat on which he is employed. The vessel is fully chartered daily for the next three months and his concern is that if he should not be granted bail he might lose his job. He has assets in Vila including a house, a fish shop and a building, an 8 meter aluminium boat of his own and his vehicle, all of which are mortgaged to the bank. His salary goes towards paying those mortgages. He has family in Vanuatu, in addition to his wife and children, including 2 sisters and his mother. He holds a Vanuatu passport which he is prepared to release to the Court, should he be granted bail. He has no previous convictions and he contends in his sworn statement that he is not a flight risk, he is not a recidivist offender and he is unlikely to re-offend, and that the Prosecution and the Police in particular have had ample opportunity to question others in relation to his involvement or the involvement of others. He accepts that while he made admissions to the Police he contends that he may have a genuine defence or more than one genuine defence and at least he has matters that can be raised in mitigation of penalty should he plead guilty . In fact, he contends that he was authorized by the Police to grow cannabis to catch other offenders. On his behalf it is argued that he will not escape from the jurisdiction and will surrender his passport. He is prepared to abide by reporting clauses, non-association clauses and even a curfew and he has been cooperative with the Police and is not necessarily facing a term of imprisonment.

The Prosecution reiterates the serious nature of the offence because it seems, and it is not disputed, that the amount of cannabis involved, referred to by the learned Magistrate, was in the vicinity of 2.82kg and 290.04g. It is submitted that the ongoing investigation could be hampered should the defendant be released on bail and that there has already been a harvest and it is contended that there may be other material still to be located.

When I consider this application for bail, I look at the matter under these possible heads. I must first consider whether there is a risk that the defendant might fail to appear in Court on the date to which he has been remanded, which I understand is 31 October 2003. I am not persuaded there is a significant flight risk by the Defendant by virtue of his use of the game boat or his personal boat. In addition his Counsel has said that there would be difficulties for the defendant with a ni-Vanuatu passport entering the other countries.

Second, I must consider whether there is a risk that the defendant might interfere with other witnesses or other evidence. That causes me more concern because there is an ongoing investigation which is not yet complete and at this delicate stage of the criminal investigation, which could involve even members of the Police, it is my view that there is a very real risk that if this defendant were released he could interfere or hamper any ongoing investigation.

Third, I must consider whether there is a risk that the defendant may offend while on bail. Certainly as Counsel for the defendant has submitted, that it is a matter of some conjecture but nevertheless bearing in mind the nature of the offending, despite his work activities, further offending while on bail cannot be completely put to one side.

I may also consider these factors:-

The nature of the offence in which the defendant is charged. The charges are possession of cannabis and cultivation of cannabis. They are relatively serious matters involving the potential of some years imprisonment, whatever the maximum might be.

The strength of evidence and probability of conviction is relatively strong because of the admissions that have been made, and although some elements of the admission might be challenged, that is a compelling factor. Nevertheless, on first blush ,the evidence is strong and whether there are matters to be raised in mitigation again is a matter for the future.

The seriousness of punishment to which the Defendant is liable is a factor with this large amount of cannabis and the weight involved. I am of the view that it is very likely that the defendant would receive a custodial sentence, should he ultimately be convicted.

He certainly has no previous convictions which would cause the Court concern but the next date of hearing is not far away.

My view is this, I consider that the grounds that were set out by the Magistrate for declining bail yesterday were valid and compelling. However, I add this. Although I am not prepared to grant the Defendant bail today nor am I prepared to concede that he should have been granted bail yesterday, it is my view that he can resubmit his application for bail when the Police have completed their investigations. They ought to be allowed to carry out those investigations, unhampered and without interference from this Defendant or anyone else, and although I do not consider that bail will be never be granted prior to a defended hearing, it is inappropriate to grant bail today. I agree with the learned Magistrate yesterday that it was inappropriate then also on the basis of the information available. Accordingly the application for bail today, Mr. Festa, is declined.

Of course I take into account your responsibilities by way of employment and to your family but until the investigation is complete it is my view that the bail should not be granted. Your application, of course, can be renewed at a later stage.

Accordingly, you will today remain in custody until 31 October 2003 when you will be brought back to the Magistrates' Court. If the Prosecution is satisfied at that stage that the investigations are largely completed, the Court may at that stage reconsider your application for bail.

Dated AT PORT VILA, this 22^nd day of October 2003

BY THE COURT

P. I. TRESTON
Judge