Lautabui v State [2010] FJHC 397; HAM142.2010 (27 July 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

Crim. Misc. Case No: HAM 142/2010

BETWEEN:

LEONE LAUTABUI
Applicant

AND:

THE STATE
Respondent

Hearing: 23rd July 2010
Ruling: 27th July 2010

Counsel: Applicant in person
Ms N. Wickramasekera for State

RULING

[1] The applicant and his two co-accused persons were convicted of two counts each of murder and attempted murder after a trial in 2002 and sentenced to life imprisonment. They appealed against their convictions to the Court of Appeal. The Court of Appeal dismissed the appeals. They then appealed to the Supreme Court. On 6 March 2009, the Supreme Court quashed the convictions and ordered a retrial. The applicant and his co-accused were released from prison because the Supreme Court had not considered bail pending retrial.

[2] On 3 April 2009 the case was called before the High Court. The applicant could not be served with a notice to appear in court. Apparently, his residential address was unknown to the authorities.

[3] Eventually the State was able to locate the applicant and serve him with a notice to appear in court on 25 January 2010. On this date the applicant failed to appear in court and a warrant was issued for his arrest. On 2 February 2010, the applicant appeared in court and his warrant was cancelled.

[4] He was granted conditional bail. One of the conditions of bail was that he must appear in all the hearings. On 12 March 2010 he was granted leave to change his residential address and vary his bail condition. On 1 April 2010 the State informed the court that they were going to proceed with the retrial. The case was set for a pretrial conference on 21 May 2010 and for trial on 21 June 2010.

[5] On 21 May 2010, the third accused person absconded and a bench warrant was issued for his arrest. A further pretrial was set for 16 June 2010. On 16 June 2010, the applicant failed to appear in court. A warrant was issued for his arrest.

[6] On 21 June 2010, the applicant appeared in court on the warrant of arrest. He instructed Ms Malimali to represent him. Ms Malimali informed the court that the applicant was mistaken about the date he was to appear. The court found the applicant had not shown good cause for not appearing for hearing. His bail was revoked and he was remanded in custody. The trial was vacated.

[7] The applicant then applied for bail in writing. In his written application for bail, the applicant presented a different reason for not appearing in court on 16 June 2010. He said he was enrolled in law courses at the University of South Pacific and on 16 June 2010 he was sitting an exam. He submitted his exam timetable which shows he was enrolled in a law course and the examination of that course was on 16 June 2010. However, the documents tendered by the applicant did not confirm that the applicant in fact sat for his exam on 16 June 2010.

[8] On directive from this court, the registry wrote to the University to obtain a confirmation. The University informed the registry in writing that there is no record that the applicant sat for his exam on 16 June 2010.

[9] At the hearing of this application, the correspondence of the University was brought to the attention of the applicant. He insisted that he sat for his exam on 16 June 2010 but he could not explain why the University does not have a record of it.

[10] After hearing the application, I am satisfied that the applicant breached his bail condition by not appearing in court on 16 June 2010. Under the Bail Act, the presumption in favour of bail is displaced when there is a breach. The applicant further attempted to mislead the court by justifying his absence saying he was doing an exam when as a matter of fact he did not sit for any exam on 16 June 2010. In other words, the applicant has deliberately lied to court to secure bail.

[11] For these reasons, the applicant is a flight risk and the court is satisfied that he will not appear for his trial if he is granted bail.

[12] Bail is refused. He may appeal this decision to the Court of Appeal within 30 days.

Daniel Goundar
JUDGE

At Suva
27th July 2010

Solicitors:
Applicant in person
Office of the Director of Public Prosecutions for State