State v Tamanitoakula [2010] FJHC 142; HAC008.2010 (26 April 2010)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

HIGH COURT CRIMINAL CASE NO: HAC 008 OF 2010
CRIMINAL CASE NO: 24 OF 2010

BETWEEN:

STATE
PROSECUTION

AND:

ASAELI TAMANITOAKULA
ACCUSED PERSON

Counsel: State - Mr. Kaisamy
Accused Person - Mr. A Kohli

Date of Hearing: 22 April 2010
Date of Ruling: 26 April 2010

BAIL RULING

[1] The accused applicant applies for bail pending trial in High Court. Accused is charged with 19 counts of rape of his daughter of 14 years old on several occasions.

[2] It is submitted on behalf of the accused the accused has never jumped bail and the chances of the case being taken up for trial within next 6 months is very remote. Further in his affidavit accused submits that he denies the allegations and that he believes that his wife has instigated his daughter to make a false complaint against him.

Further he states that he has no previous convictions and he will live out of his village if bail is granted.

[3] State objecting to the bail being granted states that the alleged offence is of serious nature and as there is sufficient evidence to result a conviction there is likelihood that the accused may not surrender himself to court and will attempt to evade prosecution. Further State submits that in the interest of the public bail should not be granted.

[4] In terms of section 3 of the Bail Act there is a presumption in favour of bail being granted to an accused but a person who opposes the granting of bail may seek to rebut the presumption.

[5] Bail must not be refused unless the court is satisfied as to one or more of the consideration set out in section 19(1) of the Bail Act namely:

19.-(1) An accused person must be granted bail unless in the opinion of the police officer or the court, as the case may be-

(a) the accused person is unlikely to surrender to custody and appear in court to answer the charges laid;

(b) the interests of accused person will not be served through the granting of bail; or

(c) granting bail to the accused person would endanger the public interest or make the protection of the community more difficult.

[6] I have carefully considered the submissions made by counsels for both parties.

[7] The accused is facing a very serious charge and if convicted will have to serve a lengthy period of imprisonment. I bear in mind that presumption of innocence is a factor to be taken into account.

[8] But at the same time when it comes to granting of bail pending trial the relevant provisions in the Bail Act namely section 3 and Part IV too has to be taken into consideration.

[9] Prosecution relies on evidence of the victim, the mother of the victim and the medical evidence at the trial. Victim is the daughter of the accused. It is reported that the accused also threatened the wife when he was caught committing the alleged offence.

[10] In the circumstances when considering the relationship of the accused to the victim and the witness (victim’s mother) the likelihood of the accused interfering with their evidence is very high. This ground itself overrides any other grounds urged by the accused.

[11] Further when the strength of the prosecution case is considered the likelihood that the accused may not appear for trial is also very high.

[12] In the above premise I am satisfied that the prosecution has rebutted the presumption in favour of granting of bail.

[13] Hence the application for bail is refused.

Priyantha Fernando
Puisne Judge

At Labasa
26 April 2010