State v Duana [2008] FJHC 112; HAC086D.2007S (2 June 2008)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No: HAC 086 of 2007

STATE

v.

ETUATE DUANA

Hearing: 29th May 2008
Ruling: 2nd June 2008

Counsel: Applicant in person
Ms N. Tikoisuva for State

BAIL RULING

The Applicant, who was arrested on a bench warrant issued by this court on the 4th of April 2008, asks for bail pending trial. He says that the reason he did not appear in court to answer the charge on the Information, was that his wife had a baby on the 3rd of April and he was at the Morrison Maternity Hospital on the 4th of April when his case was called.

The State opposes bail. State counsel points to the delay in the listing of the case for trial caused by the Applicant’s non-appearance and by his failing to be at the address he gave to the court when first granted bail.

The Applicant is charged on one count of robbery with violence. He is alleged to have robbed Clivan Sudesh Raj on the 17th of March 2007, of $80 and used violence after the robbery. Information was filed on the 4th of April 2008.

The Applicant was charged with the offence on the 5th of April 2007. The Applicant was then in custody and his case was transferred to the High Court on the 24th of May 2007.

On the 7th of June 2007 he appeared before Singh J who adjourned the matter to the 11th of June. The Applicant was due for release on the same. There is no record of what occurred on the 11th of June, or indeed on any date thereafter until the case was called before me on the 1st of February 2008. The Applicant did not appear. The court record suggests that his wife was served with a notice of hearing.

On the 15th of June, there had been no service, State counsel asking for more time saying that the case had in error been adjourned "sine die" by Singh J and there was some confusion about service.

On the 22nd of February the record shows that the Applicant was not served because the bailiff could not locate him. On the 14th of March 2008 there was still no service. On the 4th of April, State counsel said that the police could not locate the Applicant, but the court file showed that the Applicant had been served with a notice of hearing. A bench warrant was then issued.

The bench warrant was finally executed on the 12th of May and the Applicant has been in custody since that day. No hearing date has been set.

The non-appearance of the Applicant has not been all his fault. It was not his fault that from the 7th of June 2007, the case was adjourned to 11th of June, then not called on the 11th of June 2007 before Singh J before it was adjourned sine die. It was not his fault that no service was effected on him until the 4th of April 2008 because there is no bail form on the file to show what his residential address was. The registry was in error when it failed to have the case called on the 11th of June before a judge so that a decision on bail could be made. The case was then in limbo for 9 months because it had been adjourned "sine die" and no decision had been made on bail post-June 11th when the Applicant was released from prison. Up until the service of the notice of hearing on the 4th of April 2008, the Applicant was blameless.

However, he failed to appear on April the 5th and no matter how urgent his wife’s condition was at the Maternity Hospital, he failed to attend at the registry at any time between April 5th to May 12th when he was finally arrested. For this lapse, he has no explanation. Certainly his wife giving birth on the 4th and 5th of April 2008, cannot adequately explain why he never contacted the court registry until his arrest.

In these circumstances he is clearly a flight risk. He has shown a disregard for his obligation to the court and in the public interest, bail must be refused. It will continue to be reviewed.

Nazhat Shameem
JUDGE

At Suva
2nd June 2008