Yavala v State [2013] FJHC 133; HAM199.2012 (22 March 2013)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

CRIM. MISC. CASE NO: HAM 199/2012

BETWEEN :

NACANIELI YAVALA
APPLICANT

AND :

THE STATE
RESPONDENT

COUNSEL : Applicant in Person
Mr M Vosawale for the State
Hearing : 15/03/2013
Ruling : 22/03/2013

RULING

1. The applicant NACANIELI YAVALA had applied for bail pending trial.

2. The applicant has been charged for one count of Rape and one count of Sexual Assault under the Crimes Decree No: 44 of 2009.

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

(1) That the State is acquiring further time to prepare for the trial.

(2) That by Statute right to have a hearing within the next 14 days.

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 the applicant is 35 years old, process worker and lives at Tomanu Road, Nadera with his wife. He has two previous convictions and one is in the operational period. The victim was 9 years old at the time of the offence. Due to this sexual attack victim suffered psychological trauma and this will endure her whole life. The victim is related to the Applicant.

10. The prosecution is relying on the statement of the victim who has vividly described how the accused committed the offence. The Applicant admitted in his caution interview that he poked the anus and vagina of the victim.

11. The applicant is charged with one count of Rape and one count of Sexual Assault under Crimes Decree No: 44 of 2009. Rape is itself viewed as most serious sexual offence which attract maximum penalty of life imprisonment.

12. The Applicant has committed the offence on a nine year old girl. There is highly likelihood that accused will interfere with the prosecution witnesses as victim is related to the Applicant. The Applicant was arrested on 20/03/2012. Trial date has not set in this case.

13. Considering all these into account it is not in the interest of justice to grant bail to applicant. Therefore the application for bail is refused.

14. 30 days to Appeal.

P Kumararatnam
JUDGE

At Suva
22/03/2013