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Ledua v The State [2003] FJHC 230; HAC0019.2003S (30 December 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC0019 OF 2003S

Between:

SAMUELA LEDUA
Applicant

And:

THE STATE
Respondent

Hearing: 29th December 2003
Ruling: 30th December 2003

Counsel: Applicant in Person
Ms.P.Macanavosa for State

RULING ON BAIL PENDING TRIAL

The Applicant is charged with attempting to murder Talica Waqa Ledua. Information is to be filed today. He applies for bail.

The alleged offence occurred on the 2nd of October, 2003. The victim is the Applicant’s daughter. She is 14 years old. The grounds for the application are that the Applicant has been in custody since 2nd October 2003, that he wishes to be released on bail to pay his children’s school fees, and that he will appear to stand trial.

The State opposes bail relying on the affidavit of Police Constable Deo Raj. The State says that the Applicant has a previous conviction for Act with Intent to Cause Grievous Harm (on the 6th of December 2002), that he is likely to re-offend while on bail, that he is likely to interfere with the victim and other witnesses and that there is an on-going investigation of alleged incest against the Applicant in relation to the same victim.

The Applicant has a right to bail. The presumption in favour of bail is displaced where the applicant has previously breached a bail undertaking. In considering bail the court should consider the likelihood of surrender to court, the interest of the applicant and the public interest. Relevant matters include the applicant's character and background, any previous surrender to custody, the nature and strength of the prosecution case, the likely length of custody, the conditions of custody, the needs of any dependents, the likelihood of interference with witnesses and likelihood of committing other offences.

In this case the trial is unlikely to proceed before June 2004, because of the number of cases already listed for trial next year. By that month the Applicant will have been in custody for 8 months. The conditions of custody have not been raised in this application.

In relation to the Applicant’s background, he was convicted of the assault of his wife, with intent to cause her grievous harm in December 2002. He was bound over in the sum of $200 to be of good behaviour for 12 months. During the operational period he is alleged to have attempted to murder his daughter. If found guilty he would be in breach of the binding over order. He is also under investigation for incest. Although the Applicant says that he can avoid his wife and children (all prosecution witnesses) if granted bail, he is clearly in daily communication with them now. There is undoubtedly a risk of interference especially when the alleged victim is the Applicants teenage daughter.

There is certainly a risk of interference with the incest investigations. The Applicant tendered a letter said to be written by the victim supporting the bail application. This is itself shows the hold the Applicant would have over his daughter in relation to the conduct of his case.

Lastly although the Applicant says that he needs to be on bail to make financial arrangements for his children, he agreed that his salary continued to be paid into his bank account and that his wife did not have his “pin-number” to access the account. He gave me no satisfactory reason for his failure to give her such access since October 2003.

It appears that the financial difficulties suffered by them are caused by the Applicant’s own failure in this regard.

In all the circumstances I refuse bail in the interests of the victim in the case, and the public interest in ensuring non-interference with the investigations and with the witnesses. The State has rebutted the presumption in favour of bail. Bail is refused.

Nazhat Shameem
JUDGE

At Suva
30th December 2003