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State v Kalisewaqa [2005] FJHC 527; HAC0031.2004L (13 September 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC0031 OF 2004L

STATE

v.

PENIASI KALISEWAQA (1)
LEONE KAINASAU (2)

Mr. S. Qica for the State
Accused 1 in Person
Accused 2 in Person

Date of Hearing: 13 September 2005
Date of Ruling: 13 September 2005

EXTEMPORE RULING ON BAIL APPLICATION

This matter is listed for trial today and has been so listed since the 8^th February 2005. At that time and right up until the 7^th June 2005, each of you were represented by Mr. Iqbal Khan. On the 7^th June he withdrew from your case and on that day you were advised to obtain Legal Aid.

Despite what you have put to me, I am not satisfied that you in fact pursued your application for Legal Aid at that time. Your whole attitude towards this matter leaves much to be desired. It is your case and you each have an obligation to do all that is necessary to enable it to proceed.

You will not avoid the case by delay. You have now lodged the Legal Aid application which is currently being processed by the Legal Aid Commission.

You are both charged with murder and it is more likely than not that Legal Aid will be granted to both of you.

The charge you face is indeed a very serious charge. It carries the most serious penalty that any charge in this country can carry, that is, mandatory life imprisonment.

Ms. Nair of the Legal Aid Commission, as amicus in this matter, has referred the court to a decision of the Fiji Court of Appeal in Angela Devi & Davendra Lal v The State – Cr. App. No. AAU0017 of 1999S, there the Court of Appeal considered issues similar to those that arise in this case.

The Fiji Court of Appeal appears to have relied upon the decision of the High Court of Australia in Dietrich v The Queen [1992] HCA 57; [1992] 177 CLR 292.

Notwithstanding that the State is here today ready to prosecute the trial, the witnesses have been brought, there is an expense to the State which will be wasted as a result of your conduct, I am of the opinion that the trial regrettably cannot proceed today.

In the interest of justice, I therefore vacate today as the hearing date and I adjourn the trial to commence at 9.30am on the 31^st October 2005.

On the question of bail, section 3 of the Bail Act provides that there be a presumption in favour of the granting of bail. That presumption is however displaced where there has been a previous breach of a bail undertaking or bail condition.

Clearly, with respect to the 1^st accused, that is the case. With respect to the 2^nd accused, the primary consideration to be taken into account in considering the bail application is the likelihood of the accused person appearing in court to answer the charges. There are however other consideration to be taken into account if bail is refused including the circumstances nature of the seriousness of the offence and the length of time the persons may have to remain in custody before the case is determined.

As I have said with respect to the 1^st accused, the presumption has been rebutted by a breach of bail and the issue of bench warrant and I have no hesitation so far as he is concerned in refusing bail. So far as the 2^nd accused is concerned, I am of the opinion that the failure to adequately prepare for the trial and to instruct the Legal Aid Commission and accordingly, bail is refused.

Both accused are remanded in custody until the date of the trial, 31 October 2005.

JOHN CONNORS
JUDGE

At Lautoka
13 September 2005