Temo v State [2012] FJHC 1331; HAM096.2012 (13 September 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

Crim. Misc. Case No: HAM 096/2012

BETWEEN :

PAULIASI TEMO
APPLICANT

AND :

THE STATE
RESPONDENT

COUNSEL : Applicant in Person
Ms L Latu for the State

Hearing Date : 13/08/2012
Ruling Date : 13/09/2012

BAIL RULING

1. The applicant PAULIASI TEMO had applied for bail pending trial.

2. The applicant has been charged for two counts of Rape contrary to section 207(1) and (2) (a) of the Crimes Decree No: 44 of 2009.

3. That the applicant is seeking bail on the following grounds:

i) That he is the sole breadwinner of his young family.

ii) That he is willing to change his work place.

iii) That he is going to move out from his present residence.

(iv) That he is in remand since 21/12/2011.

4. The Applicant's initial bail application was heard in this court on 8th April 2012. Now he filed his second bail application with new grounds.

5. Section 3(1) of the Bail Act states that an accused has a right to be released on bail unless it is not in the interest of justice that bail should be granted. Consistent with this principle, section 3(3) of the act provides that there is a presumption in favour of granting of bail to a person, but a person who opposes granting of bail may seek to rebut the presumption.

6. The primary consideration in deciding whether to grant bail is the likelihood of the accused person appearing in court to answer the charges laid against him or her. (17(2)

7. Where bail is opposed, section 18(1) requires that the party opposing bail addresses the following considerations:

(a) the likelihood of the accused person surrendering to custody and appearing in court;

(b) the interest of the accused person:

(c) the public interest and the protection of the community.

8. Section 19(1) of the bail act provides that an accused person must be granted bail by court unless:

(a) the accused person is unlikely to surrender to court custody and

appear in court to answer charges laid;

(b) the interest 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.

9. Section 19(2) of the Act sets out a series of considerations that the court must take into account in determining whether or not any of the three matters mentioned in section 19(1) are established. These matters are:

(a) as regards the likelihood of surrender to custody-

(i) the accused person's background and community ties (including residence, employment, family situation, previous criminal history).

(ii) any previous failure by the person to surrender to custody or to observe bail conditions;

(iii) the circumstances, nature and seriousness of the offence;

(iv) the strength of the prosecution case;

(v) the severity of the likely penalty if the person is found guilty;

(vi) any specific indications (such as that the person voluntarily

surrendered to the police at the time of arrest, or as a contrary indication, was arrested trying to flee the country)

(b) as regards the interest of the accused person –

(i) the length of time the person is likely to have remained in custody before the case is heard;

(ii) the conditions of that custody;

(iii) the need for the person to obtain legal advice and to prepare a defence;

(iv) the need for the person to beat liberty for other lawful purposes (such as employment, education, care of defendants);

(v) whether the person is incapacitated by injury or intoxication or otherwise in danger or in need of physical protection;

(c) as regards the public interest and the protection of the community-

(i) any previous failure by the accused to surrender to custody or to observe bail conditions;

(ii) the likely hood of the person interfering with evidence, witnesses or assessors or any specially affected person;

(iii) the likelihood of the accused person committing an arrestable offence while on bail.

10. The State opposes the bail. The State submits that the applicant has filed this bail application without change of any circumstances. State further submits that applicant will interfere with state witnesses if bail is granted.

11. The applicant is 30 years old, married and is in remand for this case since 21/12/2011. He has no previous conviction.

12. Rape is no doubt a serious offences but seriousness of the offences alone cannot form a ground to refuse bail.

13. In considering these matters, the court must bear in mind the presumption of innocence.

14. Having heard both parties, I am not satisfied that the State has succeeded in rebutting the presumption in favour of granting of bail to the applicant. Interest of justice can be served granting bail on strict conditions. I grant bail to the applicant on the following conditions:

1. To secure his own attendance at the High Court by standing in his own recognizance in the sum of $1000.00 (Non-cash).

2. To provide two sureties. They must sign a bond of $1000.00 each.

3. He has to move out from Kelland Street, Narere. New address is furnished before release on bail.

4. Not to approach any prosecution witnesses directly or indirectly or to interfere with.

5. To surrender his passport if any to court and not to apply for a travel document. The Director of Immigration is informed of the travel ban on the applicant.

6. To report to nearest police station every Wednesday and Sunday between 6am to 6pm.

7. Not to leave Suva until the case is concluded.

8. Any breach of these conditions is likely to result in cancellation of his bail.

15. 30 days to Appeal.

P.Kumararatnam
JUDGE

At Suva
13/09/2012