Nauwa v State [2013] FJHC 118; HAM261.2012 (15 March 2013)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

CRIM. MISC. CASE NO: HAM 261/2012

BETWEEN:

KERESONI NAUWA
APPLICANT

AND:

THE STATE
RESPONDENT

COUNSEL : Applicant in person
Mr Josaia Niudamu for the State
Hearing : 27/02/2013
Ruling : 15/03/2013

RULING

1. The applicant KERESONI NAUWA had applied for bail pending trial.

2. The applicant has been charged for two counts of Rape and one count of Indecent Assault under the Penal Code Cap 17.

3. That applicant applies for bail fifth time on the following grounds:

(1) That he is the sole breadwinner of his family. He has five children and all are going to school.

(2) That he is willing to provide sureties.

(3) That he need to obtain legal advice and to prepare for his defence.

(4) That he is in remand for one year and four months to date.

(5) That he wants to re-start his two fish ponds and to cultivate yaqona and dalo plantation.

(6) He wants to repair his house which had been damaged due to recent cyclone.

(7) To protect his belongings which are exposed to criminals.

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

5. In determining 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)

6. 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.

7. 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.

8. 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)

9. State submits that this is the fourth bail application received from the applicant and no material change of circumstances present sufficient to justify a departure from earlier decisions of the court. Hence State invites this court to dismiss this application from being frivolous and vexatious pursuant to section 14(3) of the Bail Act, 2002.

10. The applicant is 43 years old and is in remand for one year and four months. He is the sole bread winner of the family. He has five small children to look after. His wife is not working. He wants to re-start his fish ponds and cultivation which had been neglected for a long time. He wants to protect his belongings which are exposed to criminals at present. Trial date is not fixed yet. No previous conviction list of the Applicant is available in this case.

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

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

13. 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. There are some new grounds exists in this case. Hence, 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 (Non-cash).

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

4. 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.

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

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

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

14. 30 days to Appeal.

P Kumararatnam
JUDGE

At Suva
15/03/2013