Turagabete v The State [2005] FJHC 24; HAM0001J.2005L (14 February 2005)

IN THE HIGH COURT OF FIJI
MISCELLANEOUS JURISDICTION

LABASA CRIMINAL MISC. CASE NO: HAM 001 OF 2005

Between:

SEMI TURAGABETE;
JONE SOTIA; and
NEMANI TUI
Applicants

And:

THE STATE
Respondent

Hearing: 14th February 2005
Ruling: 14th February 2005

Counsel: Ms. S. Vaniqi for Applicants
Mr. D. Goundar for State

RULING

The three Applicants made an application for bail pending trial. They are charged with the murder of Salesitino Tumeli Vukivuki. The trial is provisionally set for hearing before Gates J on the 26th of April 2005 in Labasa.

All Applicants have been in custody since the 7th of January 2005. All three say in their affidavits in support of the application that they are in regular employment in Savusavu, that they are supporting their families, that they have no previous history of absconding whilst on bail, that they do not have any travel documents that they will not re-offend on bail and that they have sureties who are willing to act as such for them. The two sureties suggested are Vasemaca Daugunu, a police officer who is the sister-in-law of the 1st Applicant, the wife of the 2nd Applicant and the daughter-in-law of the 3rd Applicant, and Ivamere Cagi, the wife of the 3rd Applicant.

This bail application was heard on video link between Suva and Labasa. Counsel for the Applicants appeared at the DPP’s Office in Labasa. I, and counsel for the DPP appeared at the DPP’s Office in Suva and communicated through camera and screen. Counsel for the Applicant submitted that the Applicants all had strong community ties, that there was no evidence presented by the prosecution that witnesses would be interfered with that the prosecution was not ready for trial because no information had been filed nor disclosure been served, that the offence itself involved a sudden scuffle between accused and victim, and that there was every likelihood that the Applicants would answer to bail.

State counsel opposed the application pointing to the seriousness of the offence, the fact that a trial date had already been set for April that the two eye-witnesses were children from a village near the Applicants that there was therefore a strong likelihood of the intimidation of the witnesses, that a total of 5 months in custody pending trial was not excessive and that the sureties were not acceptable to the State.

Under the Bail Act, the primary consideration is the likelihood that the Applicant will appear in court for trial. However, other relevant considerations listed in section 17 of the Bail Act include the length of custody, likelihood of interference with witnesses, and the welfare of any dependents of the Applicant. I note that the 3rd Applicant has a number of previous convictions, the last being for act with intent to cause grievous bodily harm in 1999. He served a term of 9 months imprisonment for that offence. However, the list does not suggest to me that the Applicant is likely to re-offend while on bail. The other two Applicants have no previous convictions. I accept that all Applicants have steady jobs, and that they are the breadwinners in their families.

However, I consider that bail should nevertheless be refused. The offence charged is a serious offence, and the facts relied upon by the prosecution as set out in the affidavit of Sgt 496 Kushi Ram are that the Applicants kicked the victim to death. The prosecution alleges that the victim had previously assaulted the 1st Applicant, and that this was a "revenge" killing. The prosecution will rely on the evidence of the two eye-witnesses, one who is 13 and the other 16.

My concern is for the vulnerability of these two witnesses. The Applicants and the witnesses all come from the same community. Children are notoriously easy to intimidate or influence. I am of the view that it is not in the public interest to release the Applicants on bail in order to protect these witnesses. Further, the Applicants have been in custody only since January, and will be tried in April. Lastly, I am not persuaded that the sureties suggested will be in a position to ensure the presence of the Applicants in court despite the fact that one of them is a police officer. Traditionally, a daughter-in-law is unlikely to be in a position of authority or influence over her male adult relatives.

For these reasons, I refuse bail. However, if for some reason the trial does not proceed on the 26th of April, I suggest that counsel ask the court to re-visit this ruling.

Nazhat Shameem
JUDGE

At Suva
14th February 2005