Naikawakawavesi v State [2018] FJMC 34; Criminal Case 178.2018 (4 April 2018)

IN THE MAGISTRATES’ COURT OF FIJI
AT NAUSORI

CRIMINAL CASE NO: 178/2018

BETWEEN : SILIVAKADUA NAIKAWAKAWAVESI

APPPLICANT

AND : THE STATE

RESPONDENT

For the Applicant: Ms.Ravono

For the Respondent: WPC Siteri

Date of Hearing : 28th of March 2018

Date of Ruling : 04^th of April 2018

RULING ON BAIL

1. The applicant is charged with 05 counts of Sexual Assault contrary to section 210 of the Crimes Act No. 44 of 2009(“Crimes Act”).
2. The allegations against him are that from 01^st October 2017 to 02^nd March 2018 on five different occasions he sexual assaulted his step daughter by touching her breasts and vagina.
3. He is in remand from this court from 09^th March 2018 and on 15^th March 2018 the counsel for the applicant filed a motion with a supporting affidavit seeking bail.
4. The applicant in his affidavit deposed that there is presumption of bail in his favor. He is a first offender and married with 5 children including the victim in this case. The applicant is the sole bread winner of the family.
5. The respondent is objecting for this application but failed to file affidavit in response for that.
6. Both parties have filed written submission and informed this court that they would rely on those submissions for the bail ruling.
7. The counsel for the applicant in her submission whilst admitting that the presumption of bail is no longer applying for this case submitted that the applicant is a first offender and seriousness of the charge should not be a reason to refuse bail. Further the victim has moved to Suva and the applicant is willing to reside in his village. The safety of the victim can be guaranteed with DVRO. Finally the counsel submitted that even the High Court has granted bail for accused who are charged with domestic violence offences and cited HAC 358/2017 State v Ledua Masi Tiko .
8. The respondent in their submission submitted that the applicant has been charged with a serious offence with a maximum penalty of 10 years imprisonment and there is a possibility that he would interfere with witnesses.
9. Having considered the respective submissions of the parties now I proceed to pronounce my ruling in this case.
10. Section 13(1) (h) of the 2013 Constitution states that a person who is arrested or detained has right to be released on reasonable terms and conditions, pending a charge or trial, unless the interests of justice otherwise require.
11. Therefore the applicant has the right to be granted bail unless the court is satisfied for the interest of the justice he needs to be detained.
    12. The substantive law about bail is in the Act and Section 3(3) of that provides there is presumption of granting bail to an accused, but this has been amended by part 2 of the schedule of the Domestic Violence Decree.
    13. By these amendments to section 3(4) of the Act the presumption is displaced for person who is charged with a domestic violence offence.
14. In this case the victim is the step daughter of the applicant and 16 years old. The offences in this case fall in to the category of Domestic Violence offence and hence the presumption is no longer applicable for the Applicant.
15. The primary consideration in granting bail in a criminal case is the accused person appearing in the Court to answer the charge(section 17(2) of the Act )
16. Section 19(1) of the Act outlines the reasons for refusing bail in normal case and they are as follows:-
    1. The accused person is unlikely to surrender to custody and appear in court to answer the charges laid;
    2. The interest of the accused person will not be served through the granting of bail; or
    100. Granting bail to the accused would endanger the public interest or make protection of the community more difficult
17. In Isimeli Wakaniyasi v State ( 2010),FJHC 20;HAM 120/2009 (29th January 2010), his Lordship Justice Goundar held that

"All three grounds need not exist to justify refusal of bail, existence of any one grounds is sufficient to refuse bail".

18. But when an accused is charged with a domestic violence offence the court need to mindful if the safety of a specially affected person (the victim) is likely to be put at risk by granting bail.
19. In this case the Respondent is objecting to the bail on the basis that this is a serious offence and the interference of witnesses.
20. But just because the charge is serious alone is not a sufficient to deny bail to the applicant. Article 14(2) (a) of the 2013 Constitution states that every person charged with an offence has the right to be presumed innocent until proven guilty.
21. Hence without any other grounds based on this alone I am not going to deprive the liberty of the applicant.
22. But it is agreed fact that the victim is the step daughter of the applicant and only 16 years old. Even though the counsel for the applicant submitted that she is no longer staying in the village and moved to Suva the there is no evidence to confirm that . Even if she has moved to Suva, with her age and the close relationship I find there is real possibility of interference by the applicant if granted bail.
23. The facts in State v Ledua Masi Tiko is different from this case. Apart from a domestic violence there are no other similarities between these two cases. Hence I find the State v Ledua Masi Tiko is not relevant for this case.
24. Therefore based on section 19(1) (a) and (c) of the Act as well as for the safety of the victim in my view the bail should not be granted to the applicant in this case at this moment.
25. The application for the bail is refused accordingly.
26. 28 days to appeal.

Shageeth Somaratne

Resident Magistrate