IN THE HIGH COURT OF FIJI
At Suva
Criminal Jurisdiction

Miscellaneous Case No. 4 of 1990

Between:

JOSAIA VUNIVALU
Applicant

v.

STATE
Respondent

Mr. M. Raza for the Applicant
Mr. J. Prakash and Ms. N. Shameem for the Respondent

RULING

The applicant seeks bail pending the hearing and determination of his proposed appeal. I say "proposed" because no petition of appeal has yet been filed in this matter nor is a copy annexed to the applicant's affidavit which was filed in support of this application.

However, it is clear from the supporting affidavits filed by and on behalf of the applicant that he was convicted in the Tailevu Magistrate Court on the 19th of January, 1990 after he pleaded guilty to Attempted Rape and was sentenced to 2 years imprisonment.

It is also clear from the affidavits that subsequent to the matter being reported to the police and prior to his conviction the applicant's father had apologised to the complainant and her family according to traditional Fijian customs and this was accepted and the parties are now reconciled. There are also other minor mitigating matters that do not concern the court at this stage.

Learned State Counsel opposes the applicant and refers to the guiding principle in applications of this nature which is that bail pending appeal is only granted in exceptional circumstances.

Counsel also pointed to the absence of an affidavit from either the complainant or her husband and although I have no reason to doubt the occurrence of the event this omission in counsel's view is significant.

Nevertheless Learned Counsel for the applicant submits that the "exceptional circumstances" of the present case are the fact that the learned trial magistrate was unaware of and therefore did not take into account the relevant traditional reconciliation ceremony when sentencing the applicant.

However having perused the relevant court record and in particular the facts admitted by the applicant I am not at all convinced in my mind that the learned trial magistrate was unaware of the traditional Fijian reconciliation that had taken place between the parties or that this application as presently framed raises any exceptional circumstances.

Accordingly the application is refused.

(D.V. Fatiaki)
JUDGE

At Suva,
26th April, 1990.
HAM0004D.90S