Waqalevu v State - Judgment [2012] FJHC 1182; HAM083.2012 (28 June 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

MISCELLANEOUS CASE NO.: HAM 83 OF 2012

BETWEEN:

JONE WAQALEVU
APPLICANT

AND:

STATE
RESPONDENT

Counsel: Mr. Vakaloloma for Applicant
Ms. Prasad for Respondent

Date of Judgment: 28th June 2012

JUDGMENT

1. The applicant is charged with the offence of "Act With Intent To Cause Grievous Harm" punishable under section 255 (a) of the Crimes Decree 2009. This application is made to review the bail ruling made by the learned Magistrate on 10/05/2012 refusing to vary the decision made by the same Magistrate on 08/03/2012.
   
2. Provisions for review and appeals are made in Part VIII of the Bail Act. Section 30 (2) empowers a Magistrate to review a decision made by another Magistrate, including a reviewing Magistrate, in relation to bail. This part does not empower a Magistrate to review his own bail ruling. However this does not prevent a Magistrate varying the bail conditions imposed by him.
   
3. In terms of section 14(1) an accused person may make any number of applications to a court for bail. Therefore a Magistrate may hear any number of bail applications from the same accused in the same case, provided if he considers that there are special circumstances to justify the application as provided by section 30(7) of the bail act.
   
4. In this case the learned Magistrate has heard this application as an application for review his own order and made the ruling on 10/05/2012. However he has considered the special circumstances urged in the application and therefore in the interest of justice I decide to hear this application for review on the basis that the learned Magistrate has heard a fresh bail application within his powers.
   
5. The victim in this case is the wife of the applicant (accused). Therefore the alleged offence is a domestic violence offence in terms of the Domestic Violence Decree 2009.
   
6. Counsel for Applicant in his submission at length discussed about the presumption in favour of granting of bail. However as the alleged offence is a domestic violence offence, in terms of section 3(4)(c) of the bail act the presumption in favour of granting bail is displaced.
   
7. The learned Magistrate in his ruling dated 10/05/2012 has considered the two grounds urged on change of circumstances on behalf of the applicant.
   
8. In this application the two grounds urged by the applicant are that the applicant will not interfere with the victim wife and the inhumane conditions in the prison.
   
9. As for the 1st ground, the same was urged before the learned Magistrate and it cannot be taken as a change of circumstances. However this is a serious domestic violence offence where the victim wife received serious injury and had to be treated in CWM hospital for 3 weeks as an inpatient.
   
10. The facts as related in his ruling by the learned Magistrate in paragraph 4 of his ruling are:
    

"The victim of the case has been the wife of the Applicant. The respondent has submitted that the victim received injuries that resulted three weeks of inpatient treatments at the CWM hospital. Further it was submitted that the victim and her children have now moved from their residence to the victim's brother's place due to fear to their lives."

When consider the safety of the victim and the children it is likely to put them at risk if the accused is granted bail. This overrides the 1st ground urged.

11. The second ground urged is the inhumane conditions of the prison. The applicant has not submitted any evidence to show that the prison lacks the basic facilities except for the affidavit filed by the legal executive of Vakaloloma & Associates who has a special interest in the matter as mentioned by the learned Magistrate in his ruling.
    
12. In the above premise I find no reason to review the ruling of the learned Magistrate dated 10/05/2012 refusing to vary his ruling refusing bail.
    
13. Application is refused.
    

P Fernando
Judge