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Waqa v State [2013] FJHC 132; HAM148.2012S (22 March 2013)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

MISCELLANEOUS CRIMINAL CASE NO. HAM 148 OF 2012S

PAULA WAQA

vs

THE STATE

Counsels : Ms. M. Savou for Accused
Ms. A. Lomani for State
Hearing : 12th October, 2012
Ruling : 1st November, 2012
Written Reasons : 22nd March, 2013

WRITTEN REASONS FOR REFUSAL OF BAIL

1. In Suva High Court Criminal Case No. HAC 294 of 2012S, the accused faced the following charges:
   

FIRST COUNT

Statement of Offence

RAPE: Contrary to Section 207(1) and (2)(b) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

PAULA WAQA on the 18th day of August, 2012 at Levuka in the Eastern Division penetrated the vagina of R. D with his tongue without her consent.

SECOND COUNT

Statement of Offence

RAPE: Contrary to Section 207(1) and (2)(b) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

PAULA WAQA on the 18th day of August, 2012 at Levuka in the Eastern Division penetrated the vagina of R. D with his finger without her consent.

2. On 7th September, 2012, the accused applied for bail. He said, he is the sole bread winner in his family and is looking after his elderly parents, and other relatives. He said, he wants to look for a lawyer, and complained that the remand facilities are not up to international standards. The prosecution replied with a submission on 11th October, 2012. The prosecution opposed the bail application.
   

3. It is well settled that, an accused person is entitled to bail pending trial, unless the interest of justice requires otherwise (section 3(1) of the Bail Act 2002). It is also well settled that, the primary consideration in deciding whether to grant bail is the likelihood of the accused person turning up in court to take his trial on the date arranged (section 17(2) of the Bail Act 2002). It is also well settled that, in order for the court to decide the above issue, it is mandatory for it to consider each of the factors mentioned in section 19 of the Bail Act 2002, that is, the likelihood of the accused surrendering to custody, the interest of the accused and the public interest and protection of the community.

4. On 12th October, 2012, I heard the parties on the bail application. On 1st November, 2012, I denied the accused's bail application, and said I would give my reasons later.

Factor No. 1: Likelihood of Accused Surrendering to Custody:

5. The accused was aged 28 years in 2012. The complainant was aged 15 years, and a Form 3 student at a secondary school in Levuka. The accused was working as a Voter Registration Officer at the time. According to the prosecution, the accused unlawfully entered the complainant's house at night, and went to the complainant when she was fast asleep on 18th August, 2012. He was drunk at the time. According to the prosecution, the accused then forced himself on her by raping her twice. According to the police, he confessed to the crime when caution interviewed by police on 21st August, 2012. If found guilty, the accused may be sentenced to 8 years imprisonment. Under this head, the accused's chances of bail are slim.

Factor No. 2: The Interest of the Accused's Person:

6. The accused will be tried later this year or early next year. The accused had been remanded in custody since 24th August, 2012, when he first appeared in the Nausori Magistrate Court. He had been in custody for approximately 7 months. However, if found guilty, time spent in custody will be deducted from his final sentence. His Legal Aid application was approved. His counsel can visit him in custody to take instructions. A new remand centre will soon be opened, and he can enjoy the new facilities. It appeared there is no need for him to be at liberty for any other lawful reasons. He is not incapacitated. Under this head, the accused's chances of bail are slim.

Factor No. 3: Public Interest and Protection of the Community:

7. This was an alleged sexual attack on a secondary school student, while she was fast asleep, at her house. The accused was allegedly drunk, entered her house at night without her permission, and allegedly raped her. Although the accused is presumed innocent until proven guilty beyond reasonable doubt in a court of law, in my view, it is in the public interest and the protection of the complainant that he be remanded in custody, until further orders of the court. Under this head, the accused's chances of bail are slim.

Conclusion:

8. Given the above, I refused bail on 1st November, 2012. The above are my reasons.
   

Salesi Temo
JUDGE

Solicitor for the Accused : Legal Aid Commission, Suva.
Solicitor for the State : Office of the Director of Public Prosecution, Suva.