State v Rakoe [2015] FJMC 76; Criminal Case 195.2006 (6 July 2015)

IN THE MAGISTRATE'S COURT AT LABASA
CRIMINAL JURISDICTION

Criminal Case No. 195 of 2006

STATE
APPLICANT

V

PENI RAKOE
RESPONDENT

Applicant : Fesaitu. M
Respondent : Vavadakua. A
Ruling : 6 July 2015

RULING ON BAIL

1. The Applicant on 25 May 2015, filed his bail application through Legal Aid Commission by way of Motion and supported by an Affidavit in Support deposed by the Applicant.
   
2. The Applicant is charged with one count of rape, contrary to section 149 and 150 of the Penal Code, Cap.17. The particulars of the offence are that on the 2nd day of May 2006, at Raviravi, Seaqaqa, in the Northern Division had unlawful carnal knowledge of a woman, namely LR without her consent. The name of the victim is suppressed for her own benefit and interest.
   
3. The motion is first call on 3 June 2015, where there was no appearance by the Applicant and his legal counsel and it was adjourned to 8 June 2015.
   
4. On 8 June 2015, a copy of the motion and the affidavit in support is served to the counsel for the State in court where the State Counsel seeks time to response to the application as they oppose the application. The State filed their Affidavit in Reply on 9 June 2015, and the application was heard on 22 June 2015.
   
5. The Notice of Motion did not provide the section and the title of the law the Applicant's is relying upon in this application. It is important that counsel cited the relevant section and the title of the law they referring to in application like this, to assist the court in determining such application.
   
6. The Applicant's application is based on the following grounds;-
   
   1. He is a diver and the sole breadwinner to his family with four children, their age range from 7 to 14 years;
      

ii. To allow him to engage further legal advice and to give proper instruction to his counsel for the preparation of his case;

iii. He had a mistaken impression that his case was completed;

iv. Had his father in law as his surety; and

v. Is willing to abide by strict bail conditions.

7. The Counsel for the Respondent opposed the application on the following grounds;-
   
   1. Applicant has absconded bail twice and there is real likelihood that he will not attend court if he is release on bail; and
      

ii. The presumption in favour of bail is displaced by the breaching of bail conditions and for not attending his court case for the last 3 years.

8. This is one of the very long outstanding cases before this court and it is important to relook at the history of this proceeding as it may assist in the determination of this application.
   
9. When looking at the history of this case from the court file, the following information is confirmed;-
   
   1. Case already set for hearing for seven times where it was vacated three times on the Prosecution application and four times on the Defence application. On the Defence application, one occasion is because the Applicant fails to attend court.
      

ii. Bench warrant issued against the Applicant on six occasions and cancelled on three occasions.

iii. Applicant remanded on five occasions and was on bail on four occasions.

iv. Applicant has been evading his court case in total for four years and three months.

10. The presumption of bail under section 3(3) of the Bail Act 2002 is subject to section 3(1) of the same Act.
    
11. Section 18(1) of the Bail Act provides the criteria that should be considered in application like this one and they are;-
    
    1. The likelihood of the accused person appearing in court to answer to the charge laid against him;
       

ii. The interest of the accused person; and

iii. The public interest and the protection of the community.

12. On the first criteria, the Applicant is charged with a serious offence and the history of this proceeding clearly shows that the Applicant's application will not succeed. Applicant has breached his bail conditions and has been issued with bench warrant 6 times totalling to 4 years and 3 months where the case was not progressing forward due the non-appearance of the Applicant. In one occasion, hearing was vacated on the Applicant non-appearance.
    
13. On the second criteria, it was determined in Umesh Chand v State (unreported) Criminal Misc Case No. HAM 91 of 2015, that the difficulty faced by the family is not a valid ground for bail consideration and the fact that the Applicant is represented by a legal counsel guarantees a fair trial despite the detention. The grounds advanced by the Applicant under this criteria will fail.
    
14. On the third criteria, it was also determined in Umesh Chand v State (supra) that history of violating bail conditions and refusal of bail on the interest of justice is a valid ground for consideration in rejecting bail.
    
15. The submission by the Applicant that he had wrong impression that this case has been completed cannot be accepted. The Applicant is fully aware that his case is pending in court and he chose not to attend. This is not a valid ground for consideration in the pending application.
    
16. I find that none of the grounds advanced by the Applicant warrants the granting of the bail application. The presumption of bail is displaced by the history of bench warrant issued against the Applicant for failing to attend court on his court date and with the history of his failure to comply with his bail conditions.
    
17. In my ruling, I find that the presumption of bail in favour of the Applicant is displaced and accordingly I refuse the Applicant bail application.
    
18. I make the following orders;
    
    1. Applicant's application for bail is refused
       
    2. Applicant to be further remanded in custody
       
    3. Applicant can file another bail application if there are special facts or circumstances that justify a review.
       

Cama M. Tuberi
RESIDENT MAGISTRATE