Volavola v State [2002] FJHC 65; HAM0021.2002 (14 June 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

MISCELLANEOUS CASE NO: HAM 021 OF 2002

Between:

WAISEA VOLAVOLA
KELEVI NABANIVALU
TIMOCI TURAGA
TECEISA RARA
SOSICENI BAINIVUAI
NEREO VATULAWA
Applicants

And:

THE STATE
Respondent

Hearing: 13th June 2002
Ruling: 14th June 2002

Counsel: Mr E. Veretawatini for Applicants
Ms S. Shah for Respondent

RULING

This is an application for bail pending trial. It is made in the concurrent jurisdiction of the High Court under s.108 (4)(a) of the Criminal Procedure Code (as amended by Act No. 37 of 1998). It is also a purported application for the transfer of the hearing of the case from Tailevu Magistrates’ Court to Nausori Magistrates’ Court. However, as I told counsel at the hearing of this application, any such application must be by way of appeal from the Magistrate’s decision to transfer. No such appeal has been filed and I have therefore treated this application as one for bail alone.

All Applicants together with other accused persons, were charged with rape in August 1999. The trial did not proceed until the 28th of May 2002. The reasons for the delay include the civil unrest of 2000, and the repeated non-appearance of one or other of the accused persons. Three accused persons are still missing and bench warrants have been issued for them. According to the prosecution, the Applicants have all failed on more than one occasion to attend court while on bail. One accused (not one of the Applicants) failed to appear on the 28th of May 2002, forcing the prosecution to withdraw the charge against him, so that the trial could proceed. These matters are not disputed by counsel for the Applicants. The trial has commenced and the complainant (PW1) is still giving evidence. She is entering her third day of cross-examination. The prosecution has a further 9 witnesses to call, and the trial will not be completed for another 7 days. All Applicants have been remanded in custody for the trial. Bail has been refused, apparently on the basis that the Applicants had a history of non-attendance for hearing, and that the learned Magistrate wished to ensure the continuation of the trial without any further delay. Although no written ruling for the refusal of bail has been provided to me, counsel agreed that these were the reasons for the refusal.

Counsel for the Applicants submits that bail should be granted because there is no fear of interference with witnesses (the victim is now living in Wainibokasi), and because the Applicants can arrange to live in Nadera until the conclusion of the case to ensure attendance. He said that the Applicants wished to attend their grandfather’s funeral on Saturday and that they were willing to accept stringent conditions including the provision of sureties.

The State opposes bail, saying that the victim has already told the court that she is afraid of the Applicants and has experienced interference from their families. Counsel says that the Applicants have a history of taking turns to absent themselves from court, and that this is the substantial cause of the delay in the hearing of the case. She says that the continued remand of the Applicants will ensure a speedy conclusion to the trial, and will prevent any further delay.

Section 34(6) (a) of the Constitution provides that a person’s freedom of movement may be restricted “for the purpose of ensuring his or her appearance before a court for trial...”

The predominant factor in considering a bail application, is whether the accused will appear for trial. Other factors such as the seriousness of the charge, previous refusals of bail, a likely interference with witnesses, and the likelihood of further charges, are all relevant, but the fundamental principle is whether the accused will appear for trial.

In this case, it is not disputed that the accused persons, including the Applicants have not always appeared for trial. Bench warrants have been issued with regularity. Although counsel for the Applicants says that this is because the case has been transferred to the Nausori Court at Valelevu, State counsel said that the non-appearances of all Applicants pre-dated the transfer to Nausori.

The trial is now a week old and is likely to continue until next week. The absence of one accused will lead to delay (and possible resulting prejudice) to the other accused. The presiding Magistrate has refused several applications for bail, to ensure that the trial is not disrupted or further delayed. I do not consider that there are any grounds to interfere with the exercise of that discretion, particularly in the course of an on-going trial.

In all the circumstances I am satisfied that bail should not be granted. The application is refused.

Nazhat Shameem
JUDGE

At Suva
14th June 2002