Naceva v The State [1996] FJHC 14; HAM0008d.96s (17 May 1996)

Fiji Islands - Naceva v The State - Pacific Law Materials

ass=MsoNormal align=cenn=center style="text-align: center; margin-top: 1; margin-bottom: 1"> IN THE HIGH COURT OF FIJI

AT SUVA

CRIMINAL JURISDICTION

MISCELLANEOUS ACTION NO. 0008 OF 1996

IN THE MATTER of an Application for Bail in Criminal Case No. 29/96
at the Magistrate's Court at Suva

AND

IN THE MATTER of an Application pursuant iminal Procedure Code
and in particular Section 108 (3) Cap. 21 and under the Inherent rent Jurisdiction
of the High Court for Bail pending trial by the High Court at Suva.

Between:

1. ROMANU NACEVA
2. TUETA NUKUVEIWAQA3. URAIA JEKE
4. ILIASERI SAQASAQA
5. VILISI LEWENI

Applicants

AND:

THE STATE
Respondent

Mr. Moses Gago for the Applicants

DECISIONp class=MsoNormal style="mae="margin-top: 1; margin-bottom: 1">

This is an application for bail pending trial.

The applicants have bn custody since December 1995 on a charge of murder and somd some of them for assault occasioning actual bodily harm as well which allegedly took place at Quaia Village, Lami.

The learned counsel's argument in short is thataccused persons have been in custody for about five months nths now and it not likely that their trial would commence in the near future judging by the fact that the Deposition is not ready as yet to be submitted to the High Court by the Magistrate's Court.

Mr. Gago referred the Court to a number of cases in which bail was considered in murder cases and granted in some.

According to Mr. Isireli Fa's affidavit herein sworn 29 April 1996, the Preliminary Inquiry was heas held on 17 April 1996 and the applicants were committed for trial by the High Court. On 25 April 1996 the Magistrate's Court Criminal Registry informed Messrs. Fa and Gago that the deposition, minutes and records of the case are still in the process of being typed and compiled before being sent to the High Court and "it was not feasible to state how long that process will take".

In support of his application Mr. Gago further arghat the "facts of t of this case as alleged against the Applicants by the Prosecutor discloses prima facie that the Applicants purported to have acted under the influence of drunkenness rather than with the necessary intent to kill, which once established, would have the effect of reducing the offence, if any, to one of manslaughter" (paragraph 6 of affidavit).

The learned State counsel while opposing bail said that the court's discretion can only be exercised in exceptional circumstances. In this case, he says, the applicants have been in custody for only 5 months and in previous cases where bail has been granted the period in custody has been twelve months with the exception of a recent application by four police officers.

I have considered the submissions made on behalf of the applicants and the variases to which reference hase has been made.

The applicants are facing a very serious charge. Thve only been in custody fory for five months and that is not an unduly long time in a case of this nature to warrant the granting of bail at this time even if ultimately the charge could amount to manslaughter. In saying so I am not unmindful of the fact that (in the words of MNZAVAS J in JAFFER v REPUBLIC [1973] EALR p. 39 at p.40-41]):

"The primary object of remanding an accun custody is to ensure that he will appear to take his trial and not seek to evade justice tice by leaving the jurisdiction of the court. This is, in my view, the main and most important consideration to be examined before an application for bail pending trial is granted or refused.

Then there are such less tant considerations as the the nature and seriousness of the alleged offence, the severity of punishment involved and if available at the time of application for bail the strength of evidence in support of the charge."

It is my experience that in this counail application in a murder case has been very rare and eved everyone concerned got used to the fact that it is hardly granted as the offence is so serious. However, of recent, there have been a spate of applications for bail and for reasons given in the cases that have come before the Courts bail has been granted. But one thing is clear that bail is rarely granted except in exceptional circumstances. Each case has to be considered on its own merits.

In this case I find thate are no exceptional circumstances relating to the applicanlicants. They are on a very serious charge which calls for their remand in custody in the public interest, but for how long is a matter which requires some consideration.

p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> As can be seen from thes in which bail has been granted except for a few cases, tes, there have been a waiting time of over 12 months. ((ASHOK CHAND and THE STATE Misc. Case No. 12/95 Suva - PAIN J and ibid 6/96; THE STATE v VIJAY KAPOOR & KAILESH CHANDRA Misc. No. HAM0001/95 - PAIN J)

p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> The period of delay as at present is not excessive com to some other cases that hhat have come before the Courts. In the circumstances of this case I adopt the words of PAIN J in JOELI MANUAVE and THE STATE (Misc. App. No. HAM0011/95) when he said:

"In my view no arbitrary period of, say, twelve months canrawn. Each case must be considered in the light of its particular circumstances. However, ier, in my view, the delay in this case cannot be regarded as exorbitant and this is not a situation where Section 6 (5) of the Constitution is applicable at this stage.

There must inevitably be some delay in hearing these cases".

ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> However, in the interests stice and so as not to offend section 6(5) of the Constituttitution which requires that an accused should be released if not tried within a reasonable time, I would direct that the Magistrate's Court, Suva give urgent attention to the completion of the deposition for remittal to the High Court.

To conclude, for the above reasons, bearing in mind theciples involved in the gran granting of bail pending trial and the circumstances of this case I do not find any exceptional circumstances to warrant the grant of bail in this case at this point in time.

D. Pathik
Judge

At
17 May 1996

Ham0008d.96s