Naceva v State [1997] FJHC 102; HAM0008x.1997S (1 August 1997)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

MISC. APPLICATION NO. 8 OF 1997

Between:

ROMANU NACEVA
TUETA NIKUVEIWAQA
URAIA JEKE
ILIASERI SAQASAQA
ILISE LEWENI
Applicants

And:

THE STATE
Respondent

Counsel: Mr. J.K. Maharaj for 4th Applicant
First, Second, Third and Fifth Applicants in person
Ms. R. Olutimayin for Respondent

Hearing: 1st August 1997

Decision: 1st August 1997

ORAL DECISION OF PAIN J. ON APPLICATION
FOR VARIATION OF TERMS OR BAIL

All 5 Accused were jointly charged with murder. On 29th April 1997 they were granted bail by this Court.

Condition 4 of the bail order provided that the accused "were not to visit or go to Qauia village at any time". That is the village where the deceased lived and where he was killed. The reasons for the condition are obvious.

All Accused have now applied to have this condition of bail deleted.

The prosecution obtained a report from the Police which indicated that all Accused had actually been living in Qauia since the day they were granted bail. The Accused all denied this in Court. Their application was therefore adjourned until today for evidence to be called.

Evidence has been heard. It is now acknowledged by all Accused that they have each to a greater or lesser degree been living or visiting Qauia village. They have each breached Condition 4 of their bail.

They have also breached Condition 3 which prescribed that they were each to live at either Suvavou Village or Vunisoco Island as nominated by them.

The Accused were aware of the terms of their bail. All 5 have breached 2 conditions.

ACCUSED 1 - ROMANU NACEVA has been living at Qauia Village since the day bail was granted. He says that he sleeps there and goes into town each day. Significantly he was at the village when the Prosecution Investigation Officer called the village. He says that he was not able to go to Vunisoco Island because the house was damaged and the people are living in Suva. There is no evidence that he has made any effort to find other accommodation.

ACCUSED 2 - TUETA NUKUVEIWAQA has been living in Qauia Village since 3 days after bail granted. He said that he could not live at Suvavou village because his uncle could not let him live in the house as the house was not owned by his uncle. Again there is no evidence that has tried to find any other accommodation.

ACCUSED 3 - URAIA JEKE has, on his evidence, been living in Qauia Village for only the past couple of weeks because he is attending the Fiji Institute Technology. He said that prior to that he had been living in a house at Tacirua. He was not able to live in the house at Suvavou. This Accused did make the effort to find other accommodation. On the evidence that accommodation would still be available for him. It may be more convenient for him to attend F.I.T. from Qauia village but I do not think it would be beyond his capabilities to attend from Tacirua.

ACCUSED 4 - ILASERI SAQASAQA said in evidence that he only visits Qauia Village to give fish to his mother. He does that once a week. He lives in his uncle's house at Vatuwaqa. He also said that he could not live on Vunisoco Island because his mother is facing difficulties and he is working on a Korean fishing vessel. To his credit he has found other accommodation. He could make alternative arrangements for delivery of fish to his mother and to see his mother and family.

ACCUSED 5 - ILISE LEWINI has been living in Qauia Village since he was released on bail. He said that he couldn't go to Vunisoco Island because of bad weather and he then found out that the house had been damaged in a hurricane. He gave no evidence that he has made any effort to find alternative accommodation.

All Accused have taken it upon themselves to do what suits them and not what the Court has ordered. They seem to have no appreciation of the basic premise underlying the matters now before the Court. A villager of Qauia Village was killed at the village. The 5 Accused have been jointly charged with murdering him.

They were previously remanded in custody awaiting a hearing of the case. There are no exceptional circumstances relating to the Accused or the facts of the case that would justify the grant of bail. However, bail was granted on 29th April 1997 because of the constitutional requirement for bail to be granted if the trial is not heard within a reasonable time.

However, such bail must be on terms that are appropriate having regard to the nature of the offence and the need to secure a proper and fair trial for both the Accused and the State.

Furthermore, the situation and concerns of the widow and family must be given due consideration. They are as much victims as the deceased. Too often their situation is ignored.

There are several matters that need to be mentioned.

1. In submissions made at the hearing of the bail application each Accused confirmed that he would not be residing at Qauia Village and gave an alternative address.

2. The conditions of bail provided that the Accused would reside at the places nominated, namely, three at Vunisoco Island and two at Suvavou Village, and that the Accused would not visit or go to Qauia Village at any time.

3. These terms were ignored from the very day that the Accused were granted bail. They have all been living at or visiting Qauia Village.

4. All Accused have deliberately lied about this to the Court in the documents that have been filed and in what they have earlier stated in Court.

5. The presence of the Accused in the village has caused apprehension and fear for the deceased's widow. It is apparent that some tension remains. That is understandable and some account must be taken of it.

6. If the Accused reside in such close proximity to the witnesses there is a danger that influence could be brought to bear on those witnesses.

7. The Accused have clearly shown that they cannot be trusted. They have been dishonest in this matter and have flouted orders made by this Court. I am told that they lied because of a fear of being returned to prison. However, the fact remains that most of them ignored the order from the time it was made.

8. There is no ground for varying the order made that they keep away from Qauia Village. It is a customary condition of bail in these cases and one that I consider should be applied. There are sound reasons for it. I realize that this causes some separation from their families. That is not unusual when Accused face charges such as murder. Everyone survived while the Accused were remanded in prison. They now have their liberty to maintain contact with their families. It just cannot be at Qauia Village. This is an inconvenience for them but not a hardship in the circumstances.

In all these circumstances it would be quite wrong to grant their application and allow them to reside in Qauia Village.

I remind all parties that the Terms of bail contain a condition that the Director Public Prosecutions or any Accused can apply for cancellation of bail or variation of any terms.

So far as the Accused are concerned, in view of the evidence they have given, I would be prepared to amend Condition 3 by substituting another place of residence for each Accused when details are supplied. This can be done informally by letter. Any Accused can attend the Criminal Office of this Court to obtain assistance in making the application and I will deal with it promptly. If possible I will deal with it when the Accused attends at the Court and arrangements are made for a representative from the office of the Director of Public Prosecutions to attend.

The present application is refused. The prohibition against the Accused living at or visiting Qauia Village remains.

Justice D.B. Pain