State v Bukai [2005] FJHC 166; HAC0010.2004 (8 August 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC0010 OF 2004

BETWEEN:

STATE

-v-

NOA BUKAI
Accused

VIDEO LINK

Counsel: Ms N. Tikoisuva – for State
Ms S. Vaniqi – for Accused

Date of Hearing & Ruling: 8th August, 2005

EX TEMPORE RULING

This is a brief ruling given after a video conference bail application by the accused. As such I reserve the right to recall and perfect it when necessary.

Background

The accused applicant was charged for the murder of his brother.

The two brothers had an argument. Blows were exchanged and weapons were used. The applicant accused appears from his police statement to be advancing self defence to explain the homicide.

He has a large family. He supports them by fishing. He has been in custody for nine months. He has a long list of previous convictions:

Decision

Both the State and the applicant provided helpful written submissions which they rely on.

In opposing bail the State primarily argues that due to the seriousness of the offence the accused is unlikely to surrender himself for trial.

The State also has concerns about the long list of previous convictions and community protection.

They are concerned with witness contamination but agree that the negative impact of such contamination can be ameliorated by the imposition of strict conditions.

Legal Aid counsel for the applicant emphasizes his presumption to bail, accepts the prior convictions, but submits these indicate her client is reliable as despite the long list there are no convictions for escaping from custody or failing to honour bail terms.

The applicant has arranged to live with a sister in a different village. This is a move away from the scene of the crime and accordingly counsel says the State’s interest about inference with witnesses can be addressed by placing some distance between the accused and the village where the murder is said to have occurred.

I am mindful of the presumption to bail. The accused has been in custody for nine months. It is unlikely that a hearing will be given to this matter much before early in 2006.

The applicant accused certainly does have a long list of previous convictions but despite the seriousness of some of his earlier offending he has been prepared to honour terms of bail and appear and surrender himself to court when required. Accordingly I accept that he is good bail risk.

The charge is serious but the circumstances surrounding it do indicate the likelihood of some evidence of self defence. Accordingly while this is a most serious offence I have to bear in mind the real possibility that this defence may become available to the applicant accused.

I am satisfied the imposition of conditions will ameliorate the State’s concern about interference of witnesses, safety of the community and any possibility of absconding.

Accordingly for these reasons I grant bail on strict conditions and these are attached to this judgment.

The matter is to be called over again by video conference on the 1st of September at 9.30am.

Gerard Winter
JUDGE

At Suva
8th August, 2005

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