Tinairatu v The State [2002] FJHC 203; HAM0019D.2002S (14 June 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

MISCELLANEOUS ACTION NO: HAM0019 OF 2002

Between:

KESARAVI TINAIRATU
Applicant

And:

THE STATE
Respondent

Hearing: 14th June 2002
Ruling: 14th June 2002

Counsel: A. Wolf for Applicant
Mr D. Prasad for Respondent

RULING

The Applicant applies for bail pending re-trial. She was convicted of the offence of murder on 19^th November 2001 by the High Court. She was alleged to have killed her baby on the 27^th of January 2001.

Prior to her conviction, she was in custody pending trial. Her appeal against conviction was successful in the Court of Appeal and a re-trial was ordered. The date for re-trial is the 2^nd of September 2002, although both defence counsel and prosecuting counsel have told me that they may ask for an adjournment if other matters in the High Court in which the same counsel are involved, conflict with this hearing date. There is a possibility that the date may be vacated and that further delay may result.

This application, made by motion and the affidavit of Ronald Prasad of the Legal Aid Commission, is on the grounds that the Applicant is unlikely to re-offend or to interfere with witnesses and that she will appear for trial. Further, counsel for the Applicant submits that the grant of bail will allow the Applicant to properly instruct counsel and consult with medical experts in a better environment. Further she wishes to seek counselling with counselling and support groups.

The charge in this case is undoubtedly serious. However, as Pain J said in Kailash Chandra -v- The State Criminal Case No. 3/94, although it is unusual for bail to be granted in murder cases, it is not exceptional. In Timoci Naisake & Saula Matavucu -v- The State HAM0010D.2000S Madraiwiwi J, granted bail to two accused persons, pending trial for murder on the ground that they had been in custody for 13 months, that the court had no doubt that they would appear for trial, and because (at p.4) A... there comes a point when the applicants can no longer be held hostage to the process of criminal justice especially when the only bar to bail is the charge of murder.@

The State opposes bail, but is unable to show that the Applicant is likely to interfere with witnesses or will not appear for trial. It is not in dispute that the Applicant has no previous record and is resident in Suva. The only real ground for opposition to bail is that the charge is one of murder.

It is indeed unusual for bail to be granted for murder. However in this case the Applicant has been in custody for 18 months while she has been tried, and convicted, and had her conviction quashed on appeal. She remains in remand while her re-trial is pending. There will be a further delay of at least 3 months before her re-trial commences. Pathik J in Daniel Azad Walli -v- State Misc. Case No. 10 of 2001, refused bail pending re-trial, but in that case he found that there was a likely interference with the accomplice witness and that the appeal had been allowed on a technical point, that is, on the nature of the corroboration warning given to the assessors.

In this case, the Court of Appeal allowed the appeal on the ground that the Applicant=s defence had not been properly put to the assessors.

I consider that the Applicant has shown sufficient grounds to justify the grant of bail pending re-trial. Although the offence is extremely serious, there is no question that she will interfere with witnesses, and most importantly, that she will not attend court for her trial. It is this last consideration that is paramount in a bail application.

Bail is therefore granted in the sum of $1000 with a surety of the same amount. She must report to the Central Police Station twice a week, on Mondays and Thursdays between 6am and 6pm. She must appear in court on the 2^nd of September 2002 when her trial will commence.

Nazhat Shameem
JUDGE

At Suva
14^th June 2002