Balevirewa v State [2021] FJHC 427; HAM33.2021 (9 December 2021)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
MISCELLANEIOUS JURISDICTION

CRIMINAL MISCELLANEIOUS HAM NO. 33 OF 2021

BETWEEN : VILIMONE BALEVIREWA

APPLICANT

AND : THE STATE

RESPONDENT

Counsel : Ms. S. Ali for the Applicant.

: Mr. T. Tuenuku for the Respondent.

Date of Submissions : 26 November, 2021

Date of Hearing : 29 November, 2021

Date of Ruling : 09 December, 2021

RULING

[Application for bail pending trial]

1. The applicant seeks bail pending trial by filing his Bail Application Form supported by his own affidavit sworn on 7^th October, 2021.
   
2. The bail application filed by the applicant is opposed by the state, they rely on the affidavit of WPC 3916 Litiana sworn on 15^th October, 2021.
   
3. Both counsel filed written submissions for which this court is grateful.
   

BACKGROUND INFORMATION

4. The applicant is charged with three counts of attempted murder contrary to section 44(1) and 237 of the Crimes Act. It is alleged that the applicant on 16^th January, 2021 at Vunikulu Settlement in Rakiraki attempted to murder Tarusila Qoli on two occasions on the same day at the same place and also attempted to murder Meli Vuiyasawa.
   

APPLICANT’S SUBMISSION

5. The applicant submits that he is innocent until proven guilty, he is married to the first complainant and they have three young children. The applicant has an expired previous conviction in the year 2003 and for the past 18 years he has not been on the wrong side of the law.
   
6. Furthermore, the applicant has no history of breach of bail or escaping from lawful custody, if granted bail he will be residing with his surety at Logani, Tailevu. The first complainant, his wife will be living at Tacirua which is away from where the applicant will be staying. The applicant has no objections if strict bail conditions are imposed including a curfew, non-molestation and non-contact domestic violence restraining orders to protect both the complainants.
   
7. The applicant is also providing two sureties in support, the sureties have control over him and he assures the court that he will abide by all the terms and conditions of his bail. The applicant has been in remand since February 2021 and he wishes to rejoin his employment in a Construction Company. In respect of the prosecution submission that they have a strong case the applicant says the defence will challenge the admissions and also test the veracity of prosecution witnesses but in any event this is a trial issue.
   

RESPONDENT’S SUBMISSIONS

8. The prosecution submits that the facts of the case are very worrying. The first complainant is the wife of the applicant and the second complainant is the brother of the first complainant. The applicant is alleged to have attempted to murder the first complainant twice on 16^th January, 2021. On the first occasion the applicant was strangling the first complainant by using his hands and trying to drown her in a pot hole filled with muddy water. During this incident the complainant was rescued by her uncle and cousin brother the applicant ran away when the first complainant’s family intervened.
   
9. On the second occasion, the same day during the night the applicant returned to the house of the first complainant and allegedly used a kitchen knife to stab the complainant on her head and hands. As a result the complainant received serious injuries as per the medical report annexed to the affidavit of WPC 3916 Litiana.
   
10. The second complainant came to the rescue of the first complainant and he allegedly got stabbed few times with the same kitchen knife. The medical report of the second complainant is annexed to the affidavit of WPC 3916 Litiana.
    
11. The state counsel further submitted that the facts of the case is a concern which shows that the applicant has the propensity to cause serious harm to both the complainants in particular his wife the first complainant. Counsel also mentioned that both complainants are living in fear and no strict bail conditions can be good enough to stop the applicant judging from his behaviour. The state’s objection is also that there is a real likelihood the applicant will interfere with the complainants due to the closeness of the relationship.
    

LAW

12. Section 3 of the Bail Act states that every person has a right to be released on bail unless it is not in the interest of justice that bail should be granted. The prosecution must rebut this presumption when bail is objected to. The presumption in favour of the granting of bail inter alia gets displaced where the person seeking bail has previously breached a bail undertaking or a bail condition or has been charged with a domestic violence offence.
    
13. The relevant considerations which this court must take into account when determining whether bail is to be granted or not is mentioned in section 19 of the Bail Act. The three broad categories are:
    

a) the likelihood of surrender to custody and appearing in court;

b) the interest of the accused person,

c) the public interest and protection of the community

14. Section 19 (2) of the Bail Act states a police officer or court must have regard to all the relevant circumstances and in particular-
    

(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);

(b) as regards the interests of the accused person-

(i) the length of time the person is likely to have to remain in custody before the case is heard;

(ii) the conditions of that custody;

(iii) the need for the person to obtain legal advice and to prepare a defence;

(iv) the need for the person to beat liberty for other lawful purposes (such as employment, education, care of dependants);

(v) whether the person is under the age of 18 years (in which case section 3(5) applies);

(vi) whether the person is incapacitated by injury or intoxication or otherwise in danger or in need of physical protection;

(c) as regards the public interest and the protection of the community-

(i) any previous failure by the accused person to surrender to custody or to observe bail conditions;

(ii) the likelihood of the person interfering with evidence, witnesses or assessors or any specially affected person:

(iii) the likelihood of the accused person committing an arrestable offence while on bail.

DETERMINATION

15. There is no dispute that the facts of the alleged offending is serious arising from a domestic setting hence the presumption in favour of granting of bail is displaced. This court agrees that the facts of the alleged offending is grave and that there is a real possibility that the applicant once released on bail may seriously harm the first complainant and/or interfere with both the complainants due to the closeness of the relationship.
    
16. The Court of Appeal in Eliki Seru v State [2015] FJCA 30; AAU 0152 of 2014 (27 February, 2015) at paragraph 8 explained the meaning of likelihood of interference with witness in the following words:

As required by section 18(2) of the Bail Act 2002, the trial judge considered each of the criteria and concluded that it was in the public interest to revoke the appellant's bail in light of the fact that the complainant withdrew her police complaint a week before the trial was scheduled to commence and that there was a strong likelihood that she had been interfered with. The word likelihood as used in the Bail Act 2002 does not connote probability. In Livingstone-Thomas v Associated Newspapers Ltd (1969) 90 W.N. (Pt.1) (NSW) 223 Wallace P said at 229: "[I] think the legislature has meant 'likely' in a sense of a tendency or real possibility". This meaning was adopted by Wilson J in Kysely, Re Bail Application [1980] PNGLR 36; 14 April 1980 when considering a similar phrase in the Bail Act 1977 (PNG):

"I hold that the word "likely" in the phrase "likely to interfere with witnesses' in s. 9(1) (f) means likely in the sense of a tendency or real possibility. It does not mean "more likely than not", "probably", or "very likely".

17. A perusal of the medical report of both the complainants shows multiple injuries which also support the contention of the state that the complainants are fearful of the applicant.
18. This court is mindful that the presumption of innocence is very much in favour of the applicant and that the applicant has been in remand for about 11 months now. In State vs. Albertino Shankar and Francis Narayan, Misc. No. HAM 14 of 2003 Gates J. (as he was) at paragraph 9 had observed:
    

“The Bail Act 2002 has encapsulated long standing principles of the Common Law and provides guidance to persons charged with the duty of deciding bail, and on the priority of competing considerations. First, the Act makes clear that there is for every accused person an entitlement of bail [Section 3 (1)]. This does no more than reflect the principle of the presumption of innocence, which is also stated by the Constitution [Section 28 (1) (a)]. Section 3 (6) however also states that entitlement will fail if it is not in the interests of justice that bail should be granted.”

19. Under section 13 (4) of the Bail Act a person can be kept in remand for 2 years or more if the interest of justice so requires.
    
20. This court cannot be oblivious to the applicant’s apparent complicity or involvement in the commission of the offences he is alleged to have committed, although, the applicant strongly argues that he has a meritorious challenge to his confession and he has evidence to create a reasonable doubt in respect of his voluntariness is not a matter for consideration at this point in time but a trial issue.
    
21. After considering the evidence and the submissions made it is not in the public interest to grant bail to the applicant there is a real likelihood that the applicant may harm both the complainants whilst on bail or interfere with the prosecution witnesses. It is also for the protection of the community that the applicant not be granted bail.
    

ORDERS

a) The application for bail pending trial is refused.

b) 30 days to appeal to the Court of Appeal.

.....................
Sunil Sharma
JUDGE

At Lautoka
9 December 2021

Solicitors;
Office of the Director of Public Prosecutions for the State.
Office of the Legal Aid Commission for the Applicant.