State v Nadruguca [2005] FJHC 119; HAC0030.2004 (26 May 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC0030 OF 2004

BETWEEN:

STATE
Respondent

AND:

SAVENACA NADRUGUCA
Accused

Counsel: Ms P. Madanavosa – for State
Accused – In Person

Date of Hearing & Decision: 26th May, 2005

EX TEMPORE BAIL RULING

This is an extempore bail ruling and as such I reserve the right to recall and perfect the judgment.

Background

The applicant now awaits trial in the High Court on one charge of rape following an abandoned guilty plea after trial had commenced in February of this year.

My sister Justice Shameem details the circumstances of the offending in her judgement on bail of the 14th of September 2004 as follows:

“The victim is 7 years old and lives in Nadera with her parents. The case was transferred to the High Court for trial on the 30th of August 2004. The applicant has been in custody since the alleged offence”.

Her honour went on in that judgment and a subsequent one of November 2004 to refuse bail on the basis that it was against the public interest to grant bail because of this accused’s previous conviction for rape, his failure to respect bail conditions and the need to ensure the security of that 7 year old victim who lived not very far from the accused.

The matter was set for trial in the High Court in February of this year. When called for trial the applicant accused indicated he wished to change his plea from not guilty to guilty. The court made arrangements to discharge the assessors accordingly and the applicant accused was arraigned. At presentation on arraignment he indicated great ambivalence about his earlier decision to change plea. Such was the significance of that ambivalence that her honour felt she could not accept a guilty plea upon the basis then tendered by the applicant accused. A mis-trial was ordered. The matter has been transferred to me for hearing.

This raises an important aspect concerning the Bail Act; the presumption for bail and consideration of delay is a factor whether or not to grant bail in any particular circumstance. An accused is presumed innocent and is bailable as of right. These rights are fortified by any question of unreasonable delay in the proceedings.

In my view the hearing delay clock starts running from the moment an accused is placed on remand custody. However, from time to time, that clock may pause because of something the applicant accused does. An example of this might be where an applicant accused remanded in custody escapes from jail. It would be only logical in those circumstances for the clock to pause until such time as the escapee was re-arrested and presented before the court.

We have a similar circumstance here. This matter was prepared for trial in February of this year. At his presentation in Court and at his specific request the accused was given the right to re-plead. The assessors were dismissed. He was re-arraigned. During the course of taking his plea it became clear that he was not pleading guilty to the offence of rape with which he was charged. By that time a mis-trial had to be ordered as he effectively maintained his not guilty plea.

Accordingly in my view any trial delay for the preceding 8 months of remand custody (ie) the time spent by this applicant accused in custody between his arrest in August of 2004 and his trial appearance in February of 2005 is rendered meaningless. The clock starts afresh from the moment of his re-pleading or attempted re-pleading in February of this year.

Accordingly I find for the practical purposes of his bail application that he has remained in custody for only a period between February and May of this year, some 3 months.

In a wide ranging written statement the applicant accused re-emphasizes the circumstances placed before my sister Justice Shameem in earlier bail applications.

He concedes to me today that there has been no change in his circumstances since those last bail considerations.

The State relies on written submissions.

I accept that the length of time in remand has to be counter balanced against the attempted re-pleading in February of this year.

I similarly accept the State’s contention concerning the conditions in custody as observed by my sister Justice Shameem in her judgment of the 5th of November 2004 at page 2 when her honour found that the accused’s accommodation was humane and that he himself agreed that the dormitory is more comfortable than the old cell block where remandees used to be kept.

The Acting Officer In Charge of the Suva Gaol has confirmed that this applicant accused will remain in the dormitory.

For these reasons then not only have the conditions of custody not been raised afresh but also they have not significantly changed for this applicant accused.

He raises strictly trial matters when he criticizes the method of obtaining a confession from him. That is a matter that I should not consider on bail. That is a matter best left for consideration at trial.

He raises an allegation of bias claiming that the Women’s Crisis Centre is influencing the judiciary. That is a very vague and general allegation. This claim to prejudice is not supported by any fact whatsoever and is a meaningless accusation to be ignored for the purposes of this bail hearing.

At the end of the day I find that I am in complete agreement with the earlier rulings of my sister Justice Shameem. This applicant accused may have a right to bail but I do not consider it to be in the public interest to grant him bail because of his previous conviction for rape, his previous failure to respect his bail conditions and the need to ensure the physical and psychological security of the 7 year old victim.

For these reasons bail is refused.

The matter is set for a further mention before me on Friday the 24th of June at 10.30am. I reserve leave to the applicant to exercise his rights to review and reply for bail in the interim on seven days notice.

Gerard Winter
JUDGE

At Suva
26th May, 2005