Saumaibulu v State [2010] FJHC 231; HAM014.2010 (2 July 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
MISCELLANEOUS JURISDICTION

CRIMINAL MISC. NO. HAM 14 OF 2010

BETWEEN:

SALADOKA SAUMAIBULU

APPLICANT

AND

STATE
RESPONDENT

Date of Hearing: 2 July 2010
Date of Ruling: 2 July 2010

Mr. K. Tunidau for the Applicant
Mr. M. Korovou for the Respondent

RULING

[1] By way of notice of motion and accompanying affidavit, the applicant applies for bail pending trial.

[2] The applicant faces one charge of manslaughter, and in particular it is alleged that he on the 12th January 2010 at Lautoka in the Western Division unlawfully killed Charlie Dunn.

[3] The applicant was charged in the Taveuni Magistrates Court in early 2009 with demanding goods on menace and criminal intimidation. He was admitted to bail there on the 18th February 2009 on the condition that he report to Taveuni Police twice a week and that he not leave the island of Taveuni. The applicant reported 5 times and then disappeared without the leave of the Court and in direct breach of his bail conditions. His bench warrant was issued by the Magistrates Court on the 19th March 2009. The applicant was then arrested for this present murder offence in February 2010, having avoided the Police and the Taveuni Court for almost one year. Obviously he committed this offence whilst on bail.

[4] In his affidavit in support of the motion, the applicant deposes that he seeks bail to care for his family as his wife is working as a poultry farmer. He admits absconding from justice in Taveuni and is remorseful. He "explains" that he had relocated his family to Lautoka from Taveuni and somehow got charged with an offence in Taveuni during the relocation.

[5] The State, in a helpful written submission, opposes the application in reliance on the breach of bail conditions.

[6] I am mindful of the right to bail and the presumption in favour of bail, but am also alive to the fact that the presumption can be rebutted by a number of facts. Paramount among those factors is the case that the applicant is unlikely to surrender to custody. In forming my opinion on the likelihood of surrender, I am enjoined by Section 19(2)(a) of the Bail Act to consider:

(1) .......

(2) any previous failure by the person to surrender to custody or to observe bail conditions.

[7] The failure of the applicant to surrender to custody and to observe bail conditions over a period of eleven months until arrested for this offence is a matter of fundamental concern, and in itself prevents the admission to bail for the applicant.

[8] Counsel for the Applicant quite audaciously based his application on what he calls "perceived consistency of approach" to bail applications. He cites in support of his argument the granting of bail to Joe King in Criminal Case No. HAC 40 of 2010, when the said Joe King had previously been in breach of a bail conditions. The fact that Joe King had previously been on bench warrant for another matter was not known to this Court at the time of the bail hearing and was only discovered by the prosecuting authorities after bail was granted. If the Court had known of the breach, then bail would not have been granted.

[9] Three points arise out of Counsels’ submissions:

(i) The consistency of approach in this Court is that there are no second chances, once a previous breach is known to the Court.

(ii) It is unprofessional and unethical for Mr. Tunidau to use a previous mistaken ruling to bolster his client’s application in the full knowledge that his client was in breach of his previous bail conditions for 11 months.

(iii) For Counsel to submit that a Court should consistently compound mistake upon mistake, loses sight of his role and oath to further the administration of justice.

[10] The application for bail is refused.

Paul K. Madigan
Judge

At Lautoka
2 July 2010