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Tuivuya v The State [2002] FJHC 237; HAM0040X.2002S (9 December 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

MISCELLANEOUS ACTION NO: HAM0040 OF 2002

Between:

WAISALE TUIVUYA
Applicant

And:

THE STATE
Respondent

Hearing: 5th December 2002
Ruling: 9th December 2002

Counsel: Ms J. Nair for Applicant
Mr G. Allen for the State

RULING

On 30th October 2002, I refused a bail application in respect of this Applicant, but said that further delay in the hearing of this case may lead to the grant of bail. The Applicant now makes a fresh application for bail. He is charged as follows:

Statement of Offence

MURDER: Contrary to Sections 199 and 200 of the Penal Code, Cap. 17.

Particulars of Offence

WAISALE TUIVUYA on the 3rd day of November 2000 at Lami in the Central Division murdered ALIFERETI NIMACERE.

Although the trial was due to commence on the 9th of December of this year, counsel for the Applicant is involved in the case of State -v- Timoci Silatolu and Another before Wilson J. The trial will now commence on the 2nd of June 2003. By then the Applicant will have been in custody for 16 months. He is kept in military custody, because he is a member of the Army Reserves.

Substantial delay prior to trial is certainly a relevant (and compelling) ground for the grant of bail. However the main principle in an application for bail pending trial, is whether the Applicant will appear to stand trial.

The State strongly opposes bail on the grounds of the serious charge, of the fact that his custody is loosely supervised by the Army and is not oppressive, and of the inability of the Applicant to agree to stringent reporting conditions.

Counsel for Applicant says that the Applicant cannot report regularly to a police post, because there is no police post on Beqa Island where his family lives. She further says that going to Navua regularly to report is not an option for the Applicant because he is a poor farmer, and because travel to Navua can be erratic especially in bad weather. At the hearing of this application, she agreed that although the Applicant was kept in a cell at night, he was given small jobs to do around the Army camp during the day and that he was not uncomfortable in military custody. However she said that this shows that the Applicant has been moving freely amongst the witnesses in the case (many of whom are also reservists) and there has been no allegation of interference.

The delay in the hearing of the case is now considerable. The reason for the delay is Applicant=s counsel=s unavailability for trial. The prosecution is ready to proceed. The charge is one of the most serious in the Penal Code. The Applicant cannot report regularly (or indeed at all) and says he can only live on Beqa Island, where there is no hope of any form of police supervision. It appears that the Applicant does not have access to a telephone. He offers to report to the Catholic priest on the island, but I consider that this puts an unacceptable burden on the priest who in any event has not been consulted on the matter.

In all the circumstances I have a real doubt as to whether the Applicant will appear to stand trial, especially in the light of the circumstances I have outlined.

This application for bail is refused.

Nazhat Shameem
JUDGE

At Suva
9th December 2002