Vakaciwa v The State [1996] FJHC 2; HAM0002d.1996s (31 January 1996)

Fiji Islands - Vakaciwa v The State - Pacific Law Materials

IN THE HIGH COURT OF FIJI

At Suva

Criminal Jurisdiction

MISCELLANEOUS CASE NO. 0002 OF 1996

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Between:

WAISAKE VAKACIWA
Applicant

AND:

THE STATE
n lang=EN-GB style="font-sint-size: 12.0pt; font-family: Times New Roman"> Respondent

Mr. M. Rar Applicant
Mr. K. Wilkinson for Responent

RULINGn>

ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> This is an application for bail pending the hearing and determination of an appeal by the applicant against his conviction after he pleaded 'guilty' to an offence of Rape, and against the sentence of 5 years imprisonment imposed on him by the Magistrate Court at Levuka.

The prosecution's case before the trial magistrate which was admitted by the applicant want was to the effect that on the day in question the applicant had forcible non-consensual sexual intercourse with the victim after he had threatened her in an unoccupied house in the compound of the school which the applicant and the victim both attended.

Le counsel in support of the application referred to copies of the applicant's police interviterview record and charge statement (both produced by consent) and submitted that sexual intercourse (if it had occurred) was consensual and therefore the proper charge should have been Defilement and not Rape.

The leaDeputy Director of Public Prosecutions in opposing the application drew the Court's rt's attention to the medical report tendered in the Magistrate Court and pointed to the absence of any material before the trial magistrate which might have cast some doubt on the unequivocal nature of the applicant's plea of 'guilty'.

I ao grateful to the learned Deputy Director for his references to the following decisiecisions:

(1) Sefanaia Marau v. The State Cr. App. 79/90;; (High Court, Suva)

(2) Watton (1978) 68 Cr. App. R. 293;

(3) Apimeleki Radraitabua v. D.P.P. Bail Application No. 8 of 1992 (Fiji Court of Appeal).

All of which I have carefully considered.

Suffice it to say that the rinciple' that emerges from the decisions is that bail bail pending appeal is only granted in 'exceptional circumstances' such as where there is a 'prima facie' likelihood of the appeal succeeding or where there is a real risk that the sentence imposed will have been served by the time the appeal is heard. In this latter regard I note that the Magistrate Court record of proceedings has already been transcribed and was available at the hearing of this application.

Having considered the Petition of Appeal (not issued yet) and the submissions of learned counsel for the applicant I remain unpersuaded that there are 'exceptional circumstances' in this case that warrants the release of the applicant.

The application is accordingly refused.: 1">

D.V. Fatiaki
JUDGE

At Suva,
31st January, 1996.

Ham0002d.96s