State v Tubuduadua [2013] FJMC 86; Criminal Case 243 & 244.2013 (19 February 2013)

IN THE MAGISTRATES COURT AT NASINU

Criminal Case Nos. 243/2013 and 244/2013

STATE

-v-

SEMI TUBUDUADUA

PC JF Raymond for the accused.
Mr. Tobia Ravuniwa for the accused.

RULING ON BAIL

1] The accused is charged with following offences.

Criminal Case No:243/2013

CHARGE:

Statement of Offence [a]

INDECENT ASSAULT: Contrary to Section 212 [2] of the Crimes Decree No. 44 of 2009.

Particulars of Offence [b]

SEMI TUBUDUADUA on the 13th day of February 2013, at Nasinu in the Central Division unlawfully and indecently assaulted one Adi Funaki Racavuya Marawai by touching the private part of the said Adi Funaki Racavuya Marawai.

Criminal Case No: 244/2013

CHARGE:

Statement of Offence [a]

RAPE: Contrary to Section 207 [1] [b] of the Crimes Decree No. 44 of 2009.

Particulars of Offence [b]

SEMI TUBUDUADUA on the 15th day of February 2013, at Nasinu in the Central Division penetrated his finger into the vagina of Misty Dawn Vareya without her consent.
2] The accused was arrested and produced before this court this morning. The counsel for accused filed application for bail along with affidavit of Mr. Kini Marawai, uncle of the accused. The Police objected for bail. I have carefully considered both submissions.

3] The accused is still remanded in custody and grounds for his bail application are as follows; that the accused;

A] The accused has a right to bail.

B] Presumption of innocence.

C] Voluntarily surrendered to the police.

D] Has credible sureties.

E] Willing to abide strict bail conditions

4] The State has objected to the bail on following grounds.

A] The charges are very serious.

B] The prosecution has strong case.

C] Offence prevalent in Fiji.

D] Likelihood of interfering the witness as the accused frequent visitor to the victim's home.

E] The tension between the parties, for interest of the accused.

5] Applicable law could be found in Bail Act of 26 of 2002. In section 3 of said Act provides grating of bail is the rule and refusal of bail is the exception. Every person has a right to be released on bail unless it is in the interest of justice bail could be refused. The presumption of granting bail to a person could be rebutted by the party who opposes to it. Thus, the police prosecution should rebut this presumption in this case.

6] In section 19(1) provides that how (reasons for refusing bail) prosecution could rebut this presumption.

i] The accused person is unlikely to surrender to custody and appear in court to answer the charges laid;

ii] The interest of the accused person will not be served through the granting of bail; or

iii] Granting bail to the accused would endanger the public interest or make protection of the community more difficult.

7] I consider prosecution submission in this regard. The prosecution said that they have strong case against the accused. That means if convicted the prison sentence is inevitable. The accused has two cases on same day but committed on two victims. One is a rape charge and other one is indecently assault. The charges are very serious and become prevalent in Fiji these days and community at stake if court could not take stern actions against these type of offences.

8] According to section 17(2) the primary consideration is whether accused will come to Court to answer charge against him. But court notes other factors have similar considerations in deciding bail on the accused. (Section 18(1))

9] In section 19(2) of said bail Act provides inter alias previous criminal history, failure to surrender custody or breach of bail conditions, strength of the prosecution case and the likelihood of the accused person committing an arrestable offence while on bail could be determined as rebuttal of above presumption. Therefore, if prosecution has strong case that would become a flight risk on the accused and bail application should fail.

10] The court's primary duty to safe guard the community. In THE HIGH COURT OF FIJI AT LABASA MISCELLANEOUS JURISDICTION Misc. Crim. Case No: HAM08/2013 Crim. Case No: HAC054/2012] TIMOCI ALUSENI v THE STATE on 22nd January 2013 His Lordship Justice Daniel Goundar stressed on this point. He held;

"It is not unusual for the prosecution not to oppose bail. When such a stance is taken by the prosecution, the Court is not relieved of its obligation to give due regard to the considerations under section 19 of the Act. That is what I have done in these two cases. In spite of the prosecution's decision not to oppose bail, this Court, after having considered the strength of the evidence against the applicants, the seriousness of the charges, the potential sentences that could be imposed if the applicants are convicted, and the vulnerability of the victims, is of the opinion that the applicants pose a flight risk and it is not in the interests of justice to grant bail to them." ( Emphasis added)

11] I am satisfied with that the prosecution has rebutted the presumption of bail. Therefore, the accused should be denied bail. Bail application is refused.

12] The accused is further remanded in custody. In all times production order is to be served on prison authorities to bring down the accused to the court for these cases. The case No 244/2013, is an indictable offence, is transferred to High Court forthwith for arraignment.

13] Under section 14(3) of bail Act the accused is advised not to make any bail applications on above grounds (similar grounds) again.

14] Under section 30 of Bail Act the accused may appeal against this ruling.

15] 28 days to appeal.

On this date 19th February 2013, at Nasinu, Fiji Islands

Sumudu Premachandra
Resident Magistrate