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Serelevu v State [2012] FJHC 1342; HAM120A.2012 (26 September 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

Crim. Misc. Case No: HAM 120A/2012

BETWEEN :

WATISONI SERELEVU
APPLICANT

AND:

THE STATE
RESPONDENT

COUNSEL : Mr Vakaloloma for the Applicant
Ms Amelia Vavadakua for the State

Hearing Date : 04/09/2012
Ruling Date : 26/09/2012

BAIL RULING

1. The applicant WATISONI SERELEVU had applied for bail pending trial.

2. The applicant has been charged for one count of Rape under section 207(1) (b) and (3) of the Crimes Decree No: 44 of 2009.

3. That applicant applies for bail on the following grounds:

(1) That he is the sole breadwinner of his family.

(2) That he is now separated from his wife and is now looking after his 3

children.

4. Section 3(1) of the Bail Act states that an accused has a right to be released on bail unless it is in the interest of justice that bail should not be granted. Consistent with this principle, section 3 (3) of the act provides that there is a presumption in favour of the granting of bail to a person, but a person who opposes the granting of bail may seek to rebut the presumption.

5. In determining whether to grant bail is the likelihood of the accused person appearing in court to answer the charges laid against him or her. (17(2)

6. Where bail is opposed, section 18(1) requires that the party opposing bail addresses the following considerations:

(a) the likelihood of the accused person surrendering to custody and appearing in court;

(b) the interest of the accused person:

(c) the public interest and the protection of the community.

7. Section 19(1) of the bail act provides that an accused person must be granted bail by court unless:

(a) the accused person is unlikely to surrender to court custody and appear in court to answer charges laid;

(b) the interest of the accused person will not be served through the granting of bail; or

(c) granting bail to the accused person would endanger the public interest or make the protection of the community more difficult.

8. Section 19(2) of the Act sets out a series of considerations that the court must take into account in determining whether or not any of the three matters mentioned in section 19(1) are established. These matters are:

(a) as regards the likelihood of surrender to custody-

(i) the accused person's background and community ties (including residence, employment, family situation, previous criminal history);

(ii) any previous failure by the person to surrender to custody or to observe bail conditions;

(iii) the circumstances, nature and seriousness of the offence;

(iv) the strength of the prosecution case;

(v) the severity of the likely penalty if the person is found guilty;

(vi) any specific indications (such as that the person voluntarily surrendered to the police at the time of arrest, or as a contrary indication, was arrested trying to flee the country)

9. State submits that the victim is only 11 years old and the eldest biological daughter of the Applicant. The incident began last year, 2011 before her mother and Applicant finally separated in December 2011. The Applicant took the advantage of his position as a person in authority in the family and abused the trust of his young daughter by his action. On number of occasions, the Applicant inserted fingers into her vagina and went to the extent of licking his own daughter's vagina. The victim's younger sister, only 7 years old was the one who after seeing these incidents on one too many occasions decided to inform an adult about it; thus leading to this alleged offendings being brought to light. Sadly the mother of the victim, who also witnessed these incidents, could not find the courage to report against her husband due to fear.

10. State submits that the circumstances of the offending and the seriousness of this offending against a child victim, especially one who is very closely related to the Applicant is such that it pleads that bail be refused.

11. The prosecution is relying on the direct evidence of the victim, her younger sister, her mother and Caution interview Statement of the Applicant.

12. The Applicant is charged with one count of Rape under Crimes Decree No: 44 of 2009. Rape is in itself viewed as most serious sexual offence which attract maximum penalty of life imprisonment.

13. Applicant in his submissions filed through his counsel stress that the strength of the evidence alone cannot justify detention is the right position of the law. Further he submits that the severity of the likely sentence on conviction cannot of itself justify a conclusion that the Applicant would abscond.

14. The Applicant is now separated from his wife. His three children are currently being looked after by a pastor. The witnesses in this case are all related to the Applicant. Thus the likelihood of interfering with state witnesses is very high.

15. Considering all these into account it is not in the interest of justice to grant bail to Applicant. Therefore the application for bail is refused.

16. 30 days to appeal.

P.Kumararatnam
JUDGE

At Suva
26/09/2012