Gaunavou v State [2013] FJHC 683; HAM208.13 (12 December 2013)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Miscellaneous Case No. HAM 208 of 2013

BETWEEN:

WAISIKI GAUNAVOU
Applicant

AND:

THE STATE
Respondent

Counsel: Mr. Savou J for Applicant
Mr. Niudamu J for Respondent

Date of Ruling: 12th December 2013

RULING ON BAIL PENDING TRIAL

1. Waisiki Gaunavou, the applicant is been charged with one count of "Indecently Annoying Any Person" contrary to section 213 (1) of the Crimes Decree and one count of "Rape" contrary to section 207 (1) (2) (a) of the Crimes Decree No. 44 of 2009. The particulars are as follows:
   

FIRST COUNT

(Representative Counts)

Statement of Offence (a)

INDECENTLY ANNOYING ANY PERSON: Contrary to section 213 (1) of the Crimes Decree 44 of 2009.

Particulars of Offence (b)

WAISIKI GAUNAVOU, between the 1st day of January 2013 and the 17th day of June 2013 at Senibua Lane, Raiwaqa in the Central Division, with intent to insult the modesty of LAKAI SEINI VALAGATU KOTOBALAVU, exposed his penis.

SECOND COUNT

(Representative Count)

Statement of Offence (a)

RAPE: Contrary to section 207 (1) (2) (a) of the Crimes Decree No. 44 of 2009.

Particulars of Offence (b)

WAISIKI GAUNAVOU, between the 1st day of January 2013 and the 17th day of June 2013 at Senibua Lane, Raiwaqa in the Central Division, penetrated the vagina of LAKAI SEINI VALAGATU KOTOBALAVU, a child under the age of 13 years, with his finger.

2. According to the formal Bail application, the applicant seeks bail on the following grounds:
   
   • He is the sole bread winner of the family and
   • He wants to see the doctor to get treatments to his gastric.
     
3. The applicant has been in remand custody since 8th of July 2013. He is 59 years of age. A Medical Report is submitted to court by the learned counsel appearing for the applicant, which says that the applicant is attending to Raiwaqa Health centre since last year and currently on medication for his Hypertension.
   
4. The State opposes bail. Detective Corporal 2929, Setoki Taveta of Raiwaqa Police, in his affidavit says that the alleged victim was 8 years and 3 months at the time of the alleged offences and the applicant was the biological grandfather of her. The complainant had been living with the applicant and her grandmother, during the time of alleged offending. The State avers that the alleged offences had been committed on numerous occasions and they have a strong case against the applicant.
   
5. Since it is not disputed that the applicant is the biological grandfather of the complainant, section 3 (4) (c) of the Bail Act comes into effect and thus the presumption in favour of granting bail to the applicant is displaced. At the same time this court cannot simplify the great possibility that the applicant acquires to interfere with the prosecution witnesses, especially the complainant. It is needless to say the applicant will receive a severe punishment of at least 10 years imprisonment if he is found guilty at the end of the trial as the 'tariff' ranges from 10 years to 15 years imprisonment. Thus, all these factors do echo against the applicant's chances of getting bail.
   
6. The only consideration of this court is the health condition of the applicant. As opposed to the factors stated in paragraph 5, the fact of 'sole bread winner' does not carry much weight. It is not precise whether the applicant seeks bail to get treatments for 'Gastritis' or 'Hypertension' as he stated about 'Gastric' in the Bail application and tendered a Medical Report for 'Hypertension'.
   
7. Whatever the sickness is, this court has no proof to say the exact health condition of the applicant in respect of the sicknesses. If the court is to decide that the applicant to be enlarged on Bail on medical grounds, it has to be satisfied that any further incarceration of the applicant will put his life at risk since the correctional centres do not have proper medical facilities or medical expertise to provide treatments to a specific 'sickness'. It is rather unfortunate that 'sicknesses' such as 'gastric' or 'hypertension' are becoming very common in the modern context and therefore, for a court to law to appreciate such a 'sickness' to grant bail, the applicant must show court with relevant medical proof as to how that 'sickness' poses a threat to his life in case of further incarceration. I see no compelling reason adduced by the applicant in this instance to consider his 'health conditions' as a ground for Bail. Thus, this fact also fails.
   
8. In this backdrop, the application of the applicant for Bail is refused.
   

Janaka Bandara
Judge

At Suva
Office of the Legal Aid Commission for the Applicant
Office of the Director of Public Prosecution for the Respondent