State v Nausu [2009] FJHC 46; HAC065D.2008 (17 February 2009)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No: HAC 065 of 2008

STATE

V

SETEFANO NAUSU

Hearing: 16th February 2009
Ruling: 17th February 2009

Counsel: Mr. A. Rayawa for State
Ms S. Leweni for Applicant

BAIL RULING

[1] The Applicant is charged on one count of robbery with violence, one count of robbery and one count of murder. His trial is due to commence on the 30th of March 2009, but I have suggested bringing the trial date forward to the 18th of February 2009 (tomorrow) or the 23rd of February 2009 because a trial scheduled for this week and next week is likely to be vacated. He applies for bail pending trial.

[2] He applies on the ground that he is not a bail risk, that he has been in custody since April 2008 and that he is kept in custody not at the remand centre but at the Naboro Maximum Security Prison. The State opposes bail saying that the Applicant escaped from the Suva Prison in December 2008, that he no longer has a right to bail, that this is a serious case and that the prosecution case is strong. State counsel called Superintendent Mansa Ram of Prisons Headquarters to give evidence of the Applicant’s escape.

[3] The Applicant was first charged on the 29th of April 2008. The date of the alleged offences is the 29th of April 2008. He was held in custody and the case was transferred to the High Court on the same day. Information was filed on the 8th of May 2008. He immediately applied for bail. He was represented by the Legal Aid Director as duty solicitor. On the 21st of May 2008 I refused bail setting out my reasons as follows:

"The Applicant is alleged therefore to have re-offended whilst on a suspended sentence. If he is indeed on bail for another matter due for trial in June 2008, he has also re-offended whilst on bail. Of course he is presumed innocent until proven guilty, but these matters together with the seriousness of the offence and the strength of the prosecution case persuade me that it is in the public interest that the Applicant remains in remand. Also relevant is that he lives in Colo-i-Suva and the witnesses who will be asked to identify him also live in that area and are known to him."

[4] Plea was taken on the 23rd of May 2008 and a hearing date was set for one week on the 30th of March 2009. There were then mentions set to check representation and for bail review. This is his second bail application. He offers his father as a suitable surety. His father does not have regular employment, and has agreed to supervise the Applicant.

[5] There has been no change in the Applicant’s circumstances, and indeed his escape on the 13th of December 2008 renders him a grave bail risk. He is alleged to have re-offended whilst on bail and on a suspended sentence and now he has escaped from lawful custody with four other men from the Suva Prison. He is remanded at Maximum Security Prison because the escape rendered him a security risk.

[6] Clearly it is not in the public interest to grant the Applicant bail. I have no confidence that he will abide by his bail conditions and his trial is only a month away. Indeed I can commence next week subject to the availability of defence counsel.

[7] For these reasons bail is refused.

Nazhat Shameem
JUDGE

At Suva
17th February 2009