Qiokata v The State [2005] FJHC 526; HBM0028.2005L (9 September 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HBM0028 OF 2005L

SOLOMONI QIOKATA

v.

THE STATE

Mr. S. Nacolawa for the Applicant
Ms. L. Chandra for the State

Date of Hearing: 9 September 2005
Date of Ruling: 9 September 2005

EXTEMPORE RULING ON BAIL

This is an application for bail pending trial in the Sigatoka Magistrates Court. The matter has a very chequered history, in that the offence was allegedly committed on the 2^nd September 1999 and the applicant was ultimately sentenced in his absence at Sigatoka Magistrates Court on the 8^th October 1999 after he had pleaded guilty to the charge of rape.

The victim in the charge was at the time 28 years old and a first cousin of the applicant and lived in the same village as the applicant.

Notwithstanding that a warrant commitment issued, it was not until 2004 that the applicant was arrested and confined to prison. At that time he lodged an appeal to this court and was dealt with on the 11^th April 2005. That appeal was allowed and the conviction of the Learned Magistrate was quashed and the matter remitted to the Magistrates Court at Sigatoka for retrial.

It is now submitted that the retrial is in progress and the State has all but closed its case and all that remains is for a no case to answer submission to be made and considered and then if necessary, for the applicant to give evidence in court and call his witnesses.

It is also submitted that the complainant may be recalled by the applicant.

When the matter came before me in April this year and the appeal was allowed, I refused bail and remanded the applicant in custody to appear in Sigatoka Magistrates Court on the 19^th April 2005.

It is not in issue that the applicant spent some 4 years and 9 months at liberty after he was convicted and sentenced for the offence of rape.

It is however submitted on behalf of the applicant that he was at liberty through ignorance rather than through any determined effort to avoid incarceration. Ignorance of the court processes, the court adjourned, he did not know what was going on, he left and never returned. It is submitted that he went about his business for the 4 years and 9 months, visiting town when necessary and visiting the police station from time to time. Notwithstanding the applicant quite clearly was aware that something occurred in October 1999.

Section 3(1) of the Bail Act provides:

“That every accused person has a right to be released on bail unless it is not in the interests of justice that bail should be granted but the presumption in favour of the granting of bail is displaced where the person seeking bail has previously breached a bail undertaking or bail condition or that a person to been convicted and has appealed against the conviction.

It may be argued that none of these situations exist.

Section 17 of the Bail Act provides:

“That when deciding whether to grant bail to an accused person, a police officer or court, as the case may be, must take into account the time the person may have to spend in custody before trial if bail is not granted and further that the primary consideration in deciding whether to grant bail is the likelihood of the accused person appearing in court to answer the charges laid against him or her.”

Section 19 of the Bail Act sets forth those matters which comprise the reasons for refusing bail.

As I have said I am advised that this matter has to continue its hearing before the Learned Magistrate on the 26^th September 2005, that is some 10 days time.

It is also submitted that the trial may not conclude on that day. In any event, it would appear to me that the period between today and finalization of the trial is indeed not a lengthy period.

I am concerned that the applicant spent 4 years and 9 months out of jail for whatever reason. I fail to accept that he was completely ignorant of his obligations. In the circumstances when the trial is so close to its conclusion, I can’t be satisfied if granted bail, the applicant would appear to answer that bail in the light of the history of these proceedings and accordingly, the application is refused.

JOHN CONNORS
JUDGE

At Lautoka
9 September 2005