State v Yavala [2012] FJHC 1070; HAM58.12 (10 May 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

Miscellaneous Case No. HAM 58 of 2012

BETWEEN:

NACANIELI YAVALA
APPLICANT

AND:

THE STATE
RESPONDENT

Counsel: Applicant In Person
Mr. Vosawale for Respondent

Date of Ruling: 10th May 2012

RULING

1. The applicant is charged with one count of Rape contrary to section 207 (1) and (2) (b) of the Crimes Decree 2009. He applies for bail pending trial.
   
2. Applicant submitted the lack of facilities in the remand centre, and that he needs to obtain legal advice to prepare for his defence. He needs to retain a private lawyer.
   
3. Further submitted that he has to look after his sick wife and that he has to pay a bank loan.
   
4. State objecting to bail being granted submitted that the remand centre allows to get access to Legal Aid lawyer or private lawyer if he so wishes. Further it is submitted that the applicant is very likely to interfere with the victim who is his niece.
   
5. The victim is the niece of the applicant and in terms of the Domestic Violence Decree,this is a domestic violence offence. Therefore in terms of section 3 (4) (c) of the Bail Act the presumption in favour of granting bail is displaced.
   
6. In terms of section 19 (1) of the Bail Act, accused should not be refused bail unless the court is satisfied as to any one or more of the considerations set out in section 19 (1) of the Bail Act namely:
   

"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 the 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."

7. The applicant complaints about the lack of facilities in remand prison. However it is not supported by evidence to show that the remand prison lacks basic facilities to prisoners.
   
8. If the applicant so wishes there is no restriction of him engaging private counsel of his choice.
   
9. The applicant is charged with a very serious offence which carries a maximum term of life imprisonment if found guilty. Applicant has 2 previous convictions.
   
10. The victim is Applicant's niece and therefore there is a likelihood of applicant interfering with the witnesses if bail is granted. This overrides the other grounds urged by the applicant. Hence it is not in the public interest and the protection of community to grant bail to the applicant.
    
11. Application for bail is refused.
    

Priyantha Fernando
Judge
10/05/2012