State v Lotudina [2009] FJMC 33; Criminal Case 277.2009 (13 November 2009)

IN THE RESIDENT MAGISTRATES COURT
CENTRAL DIVISION
SUVA

Criminal Case No. 277 of 2009

STATE

V

SEVANAIA KOTOBALAVU LOTUDINA

Prosecution: Mr Bulamainaivalu, DPP
Accused: Mr Vakaloloma

Date of Hearing: 12 November 2009
Date of Ruling: 13 November 2009

RULING ON BAIL

[1] The Accused, Mr Lotudina, has been charged with the murder of one Mereseini Burelevu Lotudina at Nawaisomo Village, Beqa. He has applied to this Court for bail. The State opposes the application for bail on the grounds of the seriousness of the charge and interference with witnesses and the police investigation.

[2] The Accused is from Beqa. He has produced his uncle, Mr Olipani Baba of Nasese, Suva, as a surety. The Accused proposes to reside with his uncle in Nasese while this case is pending rather than return to his village on Beqa.

[3] The Accused has no previous convictions. He has one pending case of Criminal Trespass in Suva Magistrates Court. He is 24 years old.

[4] This Court is very mindful of the seriousness of the offence with which the Accused is charged.

[5] The Court is also mindful that the Accused is presumed innocent until proven guilty.

[6] The Bail Act 2002 provides a presumption in favour of bail in s 3 thereof. Section 19 (1) of the Bail Act provides the grounds for refusing bail as follows:

"(a) the accused person is unlikely to surrender to custody and appear in court to answer the charges laid;

(b) the interests 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."

[7] Section 19 (2) lists the relevant circumstances to be taken into account in making the determination under s 19(1).

[8] With respect to s 19 (1) (a), the State acknowledged that the Accused has strong family and community ties with his village in Beqa. He has resided there with his family until now and he is related to most of the villagers, including the victim.

[9] There is no previous failure by the Accused to surrender to custody or observe bail conditions alleged. The Accused’s counsel has stated that the Accused does not have travel documents.

[10] The very fact that the Accused is charged with murder, which carries a possible sentence of life imprisonment, raises the possibility that he would try to flee the jurisdiction. However, in the absence of a passport, that seems unlikely.

[11] The Court concludes that this Accused is not a flight risk at this time.

[12] As to s 19 (1) (b), the Accused has no pressing need to be at liberty, as he is unemployed and not schooling. He is not in need of physical protection at this time, although the Court was told by the Prosecution that tensions in his village are high.

[13] The Accused would be able to confer with his solicitor to prepare his case even if detained in custody.

[14] As to s 19(1) (c), there is no previous failure of the Accused to surrender to custody or observe bail conditions.

[15] The State has raised the issue of a relative of the Accused interfering with witnesses. That has to be dealt with by bringing charges against the relative.

[16] The State has also submitted that there is a danger of the Accused interfering with the investigation, as the Accused’s mother is still under investigation, although she has apparently been released by the Police.

[17] The Prosecution was most insistent that the Accused be kept away from Nasese and his mother, as his parents are staying with his elder sister at the Police Barracks in Nasese.

[18] The Accused has apparently been ordered by the Magistrates Court not to enter into certain premises at the Police Barracks at Nasese in connection with a criminal trespass charge as a condition of his bail.

[19] When it was pointed out that the Accused’s uncle did not live in the Police Barracks, Mr Bulamainaivalu expressed concern that the Accused would still be able to see his mother, as they attend the same church in Nasese and the uncle’s house is within a kilometer of the Police Barracks, and suggested the Accused should stay in Samabula.

[20] The Court is very concerned with possible interference with witnesses and the police investigation by the Accused and/or by persons acting on the Accused’s directions. The Court is also concerned about collusion between the Accused and his mother to conceal her possible involvement in the offence, as she is still under investigation.

[21] The Accused is related to other suspects still under investigation, to the victim and apparently to many of the State’s witnesses. It is important that the ongoing investigation not be interfered with in any way.

[22] The Court is naturally concerned over the likelihood of the Accused committing other offences while on bail. The State informed the Court that the charge was closely linked to sexual offending but stated that the State was not aware at this time of any previous incidents involving the Accused, but they were still investigating.

[23] The Court is of course aware from media reports that the victim was a very young girl. The link to sexual offending referred to by the Prosecution raises serious concerns apart from the murder charge. The Court has to consider the safety of the community at large.

[24] Mr Vakaloloma stated to the Court that he has been told that the Accused is not a violent person, but the offence for which the Accused is charged is a very violent one, and the Court does not have any information on the Accused’s history and background.

[25] While bail has been granted for murder suspects before, it is more often denied.

[26] In State v Shankar, High Court of Fiji Action No. HAM 014 of 2003 (8 May 2003), the High Court said as follows in denying bail to murder suspects held in custody for almost two years:

"As regards the public interest factor and protection of the community, the State raises the question of interference with witnesses. The two close relatives of Accused 1 who are put up as sureties are also witnesses in the case, and there is the possibility that other witnesses dealing with the linkage of the deceased’s property to the Accused, could be approached. These suggestions defence counsel urges me to brush aside as mere conjecture. However I find the State’s concerns realistic and they sensibly give rise to anxiety on that account. The other factors for consideration under this sub-head do not apply.

[27] In Deo v State, High Court of Fiji Action No. HAM 40 of 2005 (13 July 2005), the Honourable Justice Gates (as he then was) denied bail to a murder suspect who was employed and whose wife was pregnant, saying as follows:

"On balance, I believe the presumption for bail has been rebutted by the State. Though the applicant has undertaken not to consume alcohol whilst on bail and to stay away from the area where the crime is alleged to have occurred, I am mindful that

(a) if convicted of murder the applicant faces life imprisonment and may not attend for his trial therefore. Even if convicted of manslaughter he is likely to face imprisonment, and in either case he would be in breach of a suspended sentence,

(b) there is a risk that he may interfere with witnesses to lessen his involvement,

(c) and that he may re-offend

all of which together amount to circumstances where bail ought not to be granted."

[28] In State v Lal, Magistrates Court Criminal Case No 340 of 2009 (3 July 2009), the Nausori Magistrates Court denied bail to each of three murder suspects despite them being first offenders.

[29] In Tuivuya v State, High Court of Fiji Action No. HAM 40 of 2002S (30 October 2002), bail was denied on a murder charge by the High Court due to possibility of interference with witnesses by the accused.

[30] The cases granting bail to persons charged with murder generally involve circumstances such as a long period in custody and/or inhumane conditions in prison due to overcrowding. The High Court has also allowed bail after examining the strength of the case against the accused and finding a possible defence of self defence.

[31] In the circumstances, the Court is not willing to grant the Accused bail at this time because of possible interference with witnesses and the ongoing police investigation and the issue of the offence being closely linked to sexual offending, which requires information concerning the Accused’s background and history.

[32] The Accused’s application for bail is denied. The Accused is remanded in custody. This matter is transferred to the High Court of Fiji and adjourned to 26th November, 2009 in High Court.

DATED this 13th day of November, 2009

Mary L Muir
RESIDENT MAGISTRATE
SUVA