Senikaucava v State [2016] FJHC 88; HAM169.2015 (11 February 2016)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
MISCELLANEOUS JURISDICTION

CRIMINAL MISCELLANEOUS CASE NO: HAM 169 OF 2015

BETWEEN:

LLOYD RICHARD SENIKAUCAVA
Applicant

AND :

STATE
Respondent

Counsel : Applicant in person
Mr. Datt for Respondent

Date of Hearing : 11th February, 2016
Date of Ruling : 11th February, 2016

BAIL RULING

1. The Applicant applies for bail pending his trial. He is charged with one count of Murder contrary to Section 237 of the Crimes Decree 44 of 2009. This is his second bail application.
   

2. Applicant is in remand since 17th November 2014.

3. The State objected to bail on the grounds stated in the affidavit filed by PC. Misidomo Baseisei,

4. In his first bail application, the Applicant sought bail on the following grounds:

a. He has a right to be released on bail pending trial under the Bail Act.

b. Presumption of innocence and presumption in favour of bail under the Bail Act are in his favour.

c. Difficulties faced by his dependents, his ailing father and two children.

d. Condition of the Natabua Prison is bad and it lacks basic facilities to prepare for his defence.

e. Delay on the part of the Prosecution, denying him right to a fair trial.

5. State objected to bail on following grounds:

a. Charge against the Applicant is serious and entails severe punishment, if found guilty.

b. Applicant has a pending Rape case in Sigatoka Magistrate's Court.

c. Bail condition imposed by the Magistrate was violated by reoffending.

d. Case against the Applicant is strong and likelihood of not appearing in Court to face trial is high, if granted bail.

e. High risk of interference with Prosecution witnesses.

6. Pursuant to Section 14 (1) of the Bail Act, an Accused can make any number of bail applications. However, power to review an existing bail order should be exercised only if the Court is satisfied that there are special facts or circumstances that justify a review.

7. On a second or subsequent application for bail, Courts need only ask first whether there had been a material change in circumstances since the original order. If there had been no change, there was no need to look at the facts underlying the previous refusal of bail.

8. The two issues that this Court is required to address at this point therefore are:

a. Has there been a change in circumstances since the last bail ruling?

b. Are there new considerations which were not before the Court when the Accused was last remanded in custody? (See: Regina v Notingham Justices, ex parte Davis; QBD (1981) QB.38, 71 Cr.App.R.178 DC).

9. In the first bail hearing, the State objected to bail on the basis that the Applicant had a pending rape case (CF: 365 of 2008) in the Sigatoka Magistrates Court in which bail condition (not to re-offend) was violated. The Applicant did not deny the fact. However, he complained that the pending rape case had been there for the past seven years without resolution, denying him the right to a fair trial.

10. Bail granted to the Applicant in the Rape case was cancelled by the Magistrates Court on 17th November 2014 when he was arrested for the Murder charge. Since then, he has been in remand for nearly fifteen months. His trial date is tentatively fixed for July 2016.

11. At the Bail hearing, the learned State Counsel for the Respondent confirmed that the rape trial in the Magistrates Court has now come to an end and the date for judgment is fixed for 1st April 2016.

12. Having fixed the case for judgment, the learned Magistrate has granted bail to the Applicant on the 9th February, 2016.

13. Court accepts his release on bail and the conclusion of his Rape trial as material changes in circumstances that can be considered as new grounds for the purpose of his second bail application.

14. The number of the Rape case confirms that the year of its institution is 2008. It had been pending in the Magistracy for such a long time without resolution. Bail was cancelled for breaching the bail conditions of an inordinately delayed case. Finally it has come to an end. Applicant has now been granted bail by the Magistracy.

15. In the substantive case pending in this Court, there has been a delay on the part of the Prosecution to file voir dire disclosures. The case has already been fixed for hearing, considering his long remand period.

16. Applicant is a father of two children, aged 9 and 2 years. In his absence, they are being looked after by his 58 year old ailing, unemployed father. Applicant has tendered a medical report, which was not before this Court at the first bail hearing, to prove his father's medical condition. Being in remand for a long period of time, his dependents, especially his children would suffer.

17. Interests of justice demands that the Applicant be released on bail.

18. For the reasons given, Applicant is ordered to be released on following bail conditions.

1. Personal bail for FJD 1000.
2. Surety bail for FJD 1000 with two sureties.
3. Not to reoffend.
4. Not to interfere with prosecution witnesses.
5. Applicant must reside at the address provided to Court.
6. Applicant must report to Vatudradra Police Post between 8 a.m. and 4 p.m. on every Saturday.
   

Aruna Aluthge
Judge

At Lautoka
11th February, 2016

Solicitors : Applicant in person
Office of the Director of Public Prosecutions for Respondent