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Wainimala v State [2009] FJHC 56; HAM009.2009 (26 February 2009)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

Crim. Misc. Case No: HAM 009 of 2009

BETWEEN:

SAKARAIA WAINIMALA
Applicant

AND:

THE STATE
Respondent

Hearing: 25th February 2009
Judgment: 26th February 2009

Counsel: Mr. R. Prakash with Ms P. Kenilorea for Applicant
Ms N. Ratakele for State

BAIL RULING

[1] This is an application for bail, made "pursuant to the Constitution, Section 3 of the Bail Act 2002 and the inherent jurisdiction of the court." The Applicant, who is a soldier, is 50 years old. He was charged with 10 counts of indecent assault and 3 counts of incest by male, on the 31st of March 2008. His case was first called in the Nausori Magistrates’ Court, on the 17th of December 2008. On the same day he was granted bail. One of the conditions of bail was that he was "not to approach any prosecution witnesses, directly or indirectly, or to interfere with or harass them in any way." Another condition was "to stay away from the victim for a distance of 100 yards."

[2] The case was then adjourned to the 21st of January 2009, when the Applicant was served with disclosure. The Applicant, who has filed an affidavit in support of this application then states as follows:

"6. THAT on the 24th January 2009 I went to one Mr. Anare Vale’s house at 26 Rikua Street, Samabula, Suva, Fiji to meet one Pastor Samu. I was accompanied by my wife Laisiana and son Penaia. I had requested that the said Pastor pray for me regarding my case.

7. THAT whilst the said Pastor was praying the Complainant walked into the house and sat down. Before the Pastor prayed for her she sought her parents’ forgiveness. Upon hearing her words I wept and said I forgave her. Immediately after the Pastor finished all his prayers I left the house. Till to date I am not aware how the Complainant turned up at the prayer meeting.

THAT I never arranged nor did anyone arrange on my behalf for the Complainant to attend the prayer meeting at Samabula and the only words I said was I forgave her."

[3] On the 16th of February 2009, the Applicant told the Nausori Magistrates’ Court that the complainant had asked him for his forgiveness. The prosecution then asked for revocation of bail. The Applicant told the court about the holding of the prayer meeting and the Court revoked bail. The case is to be called on the 2nd of March.

[4] There is no dispute that the Applicant is otherwise not a bail risk. He is a regular soldier, he returned from Iraq in December 2008, is the sole breadwinner in the family and has strong ties to the community and the church. He states that he is "currently looking after a newly established Redeemed Christian Church of God in Kiuva."

[5] The charges annexed to his affidavit, allege that in 1995, 1996, 1997, 1998, 1999, 2001, 2004 and 2005 he indecently assaulted his daughter Siteri Lomani. The charges of incest by male relate to the same victim. The complainant is now 20 years old but was 7 years old when the first alleged incident occurred. According to the Applicant’s caution statement to the police (also annexed to the affidavit), he never sexually assaulted his daughter. He said he was a pastor in the Assemblies of God Church.

[6] This application is made in the court’s original jurisdiction and is not an appeal from the learned Magistrates’ decision. As such the learned Magistrate’s decision and her reasons are of limited weight. I gave the State time to file the affidavit of the complainant because the facts were disputed. No affidavit was filed because the complainant could not be located in time to swear the affidavit, but she gave oral evidence instead.

[7] Siteri Lomani is now 20 years old. She will be 21 in September. She said that she now lives in Vuci Road, Nausori but prior to that she lived in Nadi with an aunt. She tried to find employment in Nadi but was unsuccessful. Her aunt in Nadi advised her that if she sought her parent’s forgiveness she would find a job. She came to another aunt’s house at Kikau Street in Samabula where she found a prayer meeting was in progress. Her aunt told her to use the opportunity to seek forgiveness from her parents who were present.

[8] Her evidence was then as follows:

"The pastor asked me if I wanted to say anything and I took the opportunity to ask for my father’s forgiveness. My dad was sitting 3 metres away from me. I just sat there and my parents sat there. I said – "Dad, Mum, since I am here can I have forgiveness." I really wanted to be employed. My aunty in Nadi told me to ask for my parents’ forgiveness. My father forgave me and gave me his blessings. After that, the pastor told me to pray. Then I prayed and the pastor told me to hold both my parents’ hands. This went on for 5 or 10 minutes. It was just a short prayer."

She then left the house.

[9] Under cross-examination she said that when she went to Kikau Street, she did not know that there would be a prayer meeting in progress, that there were 20 other people there and that the pastor told her that he had a vision that she would come. She said her father did not know she was coming to the meeting.

[10] In response to questions by me, it was apparent that the complainant blames herself for the problems faced by the family, that she feels that her complaint against her father has led to her own unemployment, and to the deteriorating relationships with her family. She said however that she was willing to give evidence "as long as my family is back to normal." She said she wanted her parents back.

[11] Both counsel then made submissions. Counsel for the Applicant relied on previous decisions of this court on revocation of bail (Rajendra Samy v. State [2007], State v. Mohamemd Kasim [2007] HAC 087.2007) to submit that the principles are to balance the public interest in ensuring court attendance with the accused’s interests being able to earn and be with the family pending trial. In both cases, bail was tightened rather than revoked although in both cases there had been a breach of bail conditions. Counsel submitted that the prayer meeting was not organized by the Applicant, that he did not know the complainant would be there, that he did not attempt to persuade her to change her statement and that he is not in fact in breach of bail.

[12] State counsel conceded that there was no direct evidence that the Applicant had known of the complainant’s attendance at the prayer session, but said that his knowledge, in all the circumstances, could be inferred. She said he must have known. She further said that the Applicant knew he was not permitted to approach the victim within a distance of 100 yards, that he knew he was in breach of bail and that he should be remanded until trial. She said that the trial was likely to proceed in April 2009.

[13] It is apparent that this prosecution arose from a family situation. It is also apparent that the complainant in this case is vulnerable to influence not only because of her age and gender, but also because the Applicant is her father. In such a situation, there is always an inherent risk that culture, religion and family loyalties will impose pressure on her not to give evidence or to retract. Social pressures often have that effect on vulnerable witnesses. From her evidence in court, this is apparent in the complainant’s case. She is unemployed and estranged from her parents as a result of the prosecution which she herself triggered. She believes, rightly or wrongly, that she will not get a job while her parents have not forgiven her. She was persuaded by her family members to approach her parents for their blessings "so she could get employment." Her emotional dependence on her father is apparent.

[14] According to the defence, she attended the prayer meeting by coincidence. According to the prosecution, she was there by the Applicant’s design. Whichever is the case, she met the Applicant and his wife (her mother), they had an emotional reunion, and she now wants her family back together again.

[15] It is impossible to overlook the fact that the Applicant is himself a pastor in the Assemblies of God Church. It is impossible to overlook the credulous and unsophisticated belief of the complainant about the power that her parents have over her future happiness. It is impossible to dismiss the effects of religion and religious rites on the willingness of the complainant to now give evidence against her father. The prosecution has already decided that it would be futile to call her mother as a witness.

[16] There is no direct evidence that the Applicant, who is himself a pastor, organized the prayer session with the intention of reconciling with his daughter, a prosecution witness. There is ample uncontradicted evidence that when he saw her at the prayer session, he did not leave. Indeed he proceeded to pray with her, held her hands, and gave her his blessings. All of this was in breach of two bail conditions. It appears that the prayer session may have had an effect on the complainant’s wish to give evidence against her father.

[17] In Kasim and Samy I did not revoke bail because the breach of bail was reported to court long after the event and there had been no recurrence. In this case, this breach was brought to the court’s attention immediately. I consider that it is a serious breach which may impact directly on the ability of the prosecution to proceed at all. Much depends on the ability to keep the complainant free from any further emotional, cultural and religious pressure prior to trial. Indeed in Samy the breaches of bail did not have an impact on the witnesses’ willingness to give evidence against the Accused.

[18] In these circumstances it is clearly in the public interest that the Applicant be remanded in custody prior to trial. I recommend that both parties move for an early hearing date, and that counsel take instructions at the remand centre.

[19] This application for bail is refused.

Nazhat Shameem
JUDGE

At Suva
26th February 2009