IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

Crim Misc Case No: HAM 032/2013

BETWEEN :

MOSESE NATUWAWA SAUKITAKALI
APPLICANT

AND :

THE STATE
RESPONDENT

COUNSEL : Applicant in Person
Mr M Vosawale for the State

Date of Hearing : 11/06/2013
Date of Ruling : 08/07/2013
 
RULING

1. The Applicant MOSESE NATUWAWA SAUKITAKALI had applied for bail pending trial.

2. The Applicant has been charged for One Representative count of Indecent assault contrary to Section 154(1) of the Penal Code, Cap 17; One Representative count of Rape contrary to Section 149 and 150 of Penal Code, Cap 17 and One Count of Indecent Assault contrary to Section 212(1) of the Crimes Decree No: 44 of 2009 in the High Court.

3. That applicant applies for bail on the following ground

(i) No trial date set yet; and 
(ii) He has been in remand custody since December 2012; and 
(iii) He is the sole breadwinner of the family; and 
(iv) He is 50 years old and has two grown up children; and 
(v) That his wife is unemployed.

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 applicant has allegedly raped his step daughter. The state is relying on direct evidence of the victim. State fears that accused will interfere with prosecution witnesses if bail is granted. The Applicant does not have any previous failure to surrender to custody. No admission in Applicant's Caution Interview Statement.

10. The applicant is 50 years old and is in remand since 26th November, 2012. He is the sole breadwinner of the family. He looks after his two children. He under takes not to interfere with prosecution witnesses. The victim is relocated to stay with her aunty at Tailevu.

11. Rape is no doubt a serious offences but seriousness of the offence alone cannot form a ground to refuse bail.

12. In considering these matters, the court must bear in mind the presumption of innocence.

13. Having heard both parties, I am not satisfied that the State has succeeded in rebutting the presumption in favour of granting of bail to the applicant. Interest of justice can be served in granting bail on strict conditions. I grant bail to the applicant on the following conditions:

1. To secure his own attendance at the High Court by standing in his own recognizance in the sum of $1000.00 (Non-cash). 
2. To provide two sureties. They must sign a bond of $1000.00 each. 
3. He has to move out from Lepanoni Village, Deuba, Serua. New address is furnished before release on bail. 
4. Not to approach any prosecution witnesses directly or indirectly or to interfere with. 
5. To surrender his passport if any to court and not to apply for a travel document. The Director of Immigration is informed of the travel ban on the applicant. 

6. To report to nearest police station every Wednesday and Sunday between 6am to 6pm. 

7. Not to leave Suva until the case is concluded.

8. Any breach of these conditions is likely to result in cancellation of his bail. 

14. 30 days to Appeal. 

P Kumararatnam
JUDGE

At Suva 
08/07/2013