IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Miscellaneous Case No. HAM237 of 2013

BETWEEN:

WAILETIA MICE
APPLICANT

AND:

THE STATE
RESPONDENT

Counsel: Accused In Person
 Ms. Naidu for the Respondent
 
Date of Ruling: 24th February 2014

BAIL RULING

1.	Wailetia Mice, the applicant seeks bail on the following grounds:

•	To support and look after his elderly mother who is 50 years of age;
•	To engage with his farming and
•	To continue with his studies at Waimakutu Secondary School on Mechanical Engineering.

2.	The applicant is charged with one count of "Rape" contrary to section 207 (1) and (2) (a) and an alternative count of "Defilement of a young person between 13 and 16 years of age" contrary to section 215 (1) of the Crimes Decree No. 44 of 2009. The applicant was enlarged on Bail by Goundar J on 7th February 2013after two of his Bail applications were turned down by Fernando J.

3.	A Bench Warrant had been issued against the applicant by Kumararatnam J for his non-appearance on 16th of May 2013 in HAC 221/2012, the substantive matter. The applicant was arrested and produced before this court only on 14th of October 2013, almost after 5 months of a pending Bench Warrant and this court ordered the accused to be remanded in custody.

4.	It was informed to court by the counsel for the applicant at the bail hearing that the 'absence' of the applicant in court was due to a 'miscommunication' between him and a court staff over the 'next mention date'. According to the counsel, the applicant had come to court on the last date prior to the issuance of the Bench Warrant. As the Judge was on leave on that day, the applicant had left his mobile number with a court clerk to inform him the next court date. Since it was not informed so, the applicant had not turned up to court until he was arrested by the police.

5.	Upon a perusal of the original case record of the substantive matter (HAC 221/2012), it shows that the previous day to 16th May 2013 was 3rd of April 2013 and the applicant was present before Kumararatnam J with Mr Waqainabete of Legal Aid Commission. It was in the presence of the applicant, the next date, 16th May 2013, was pronounced. Thus, the assertion of the applicant that the Judge was on leave on the 'previous mention day' amounts to a deliberate falsehood.

6.	Before reaching to this conclusion, this court thought it fit to find out whether the applicant was complying with his reporting bail conditions or not. The move was stemmed out of curiosity as if what the applicant said is correct, it is strange to have a pending Bench Warrant for 5 months without executing the same whilst the applicant reports to Vunidawapolice on every Saturday.

7.	The response from the Investigating Officer was shocking. The applicant had reported to Vunidawa Police Station on 23rd of March 2013 and thereafter he had not reported either to Vunidawa or Navua Police Stations to date.

8.	Making things worse, Sgt 2209, RupeniTaoka had deposed that the applicant was found not to be residing in Nasauvere village as undertaken to court and the police officer who visited the village, which is inaccessible with motor vehicles, had to stay there for couple of nights to execute the Bench Warrant. It was highlighted that the Sureteesof the applicant did not assist the police officer to execute the Bench Warrant. The DPP argues that the applicant not only failed to observe his Bail conditions, but actively evaded the police as well.

9.	Justice Goundar, had imposed the following conditions when released the applicant on bail.

(i)	Accused's sister and brother-in-law sign a $500 bond each.
(ii)	Accused to reside with his sister and not change his address without leave of the court.
(iii)	Accused to report to Vunidawa Police Station on every Saturday.
(iv)	Accused not to interfere with witnesses.
(v)	Accused not to re-offend.
(vi)	Accused must attend all court hearings.

10.	Section 3 (3) of the Bail Act says that there is a presumption in favour of granting bail to a person and the person who opposes such grant of bail has to rebut that favourable presumption. Section 4 (a) states that such presumption in favour of granting bail is displaced when the person seeking bail has previously breached a bail undertaking or bail condition. Section 19 (2) (a) (ii) and Section 19 (2) (c) (i) specifies any previous failure by the person who seeks bail to surrender to custody or to observe any bail condition could amount in refusing bail.

11.	After a careful analysis of the factual and legal background pertaining to the matter in hand, this court concludes that the own conduct of the applicant sufficiently creates serious concerns of the likelihood of appearing in court to stand his trial and answer the charges laid against him. The Respondent has successfully managed to displace the favourable presumption in granting bail to the applicant in this instance.

12.	Finally, this court observes that the substantive matter is been fixed for trial from 6th to 10th October 2014 and the applicant is getting legal assistance from the Legal Aid Commission. Having considered the positive threat posed by the applicant to evade the court process, this court is of the view that the applicant should not be released on Bail pending trial.

13.	Application for Bail is refused.

JanakaBandara
Judge

At Suva
Accused in Person
Office of the Director of Public Prosecutions for the State