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Gaunavou v State [2014] FJHC 368; HAM060.2014 (26 May 2014)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAM 060 OF 2014

BETWEEN:

WAISIKI GAUNAVOU
APPLICANT

AND:

STATE
RESPONDENT

Counsel : Mr. Savou for the Applicant
: Ms. Madanavosa for the State

Date of Ruling : 26th May 2014

BAIL RULING

1. This is the 2nd bail application of the applicant. He is been in remand custody since 9th July 2013; for HAC 250/2013.
   
2. The applicant is charged with one count of Indecently Annoying Any Person contrary to section 213 (1) (b) and Rape, contrary to section 207 (1) (2) (a) of the Crimes Decree No. 44 of 2009. The alleged victim is his biological grand-daughter.
   
3. The previous bail application HAM 208/2013, was made on two grounds, his health condition (gastric) and difficulties of his family due to him been incarcerated.
   
4. The court was not enlightened properly, over his medical conditions. Further, due to the Domestic Nature of the alleged offence, the favourable presumption in granting bail is also displaced with (section 3(4) (c) of the Bail Act).
   
5. This application is based on four grounds:
   

● having spent in custody for over 8 months,

● not taken regularly to court,

● the alleged victim has given a withdrawal statement,

● she is no longer living in his house

6. The 3rd fact has already been addressed by the Investigating Officer in his affidavit. The alleged victim had made another statement saying that she was forced by her aunty (Applicant's daughter) to tell police that the allegations are not true.

7. This seems to be an ongoing issue with this type of bail applications, especially when it has a domestic background. Unfortunately, it is never brought to the notice of this court, either by the police or DPP that they have taken any energetic measures to respond to these interferences to their own witnesses. It has simply been used only to object bail. Anyway, this court has always taken it seriously.

8. In this back ground, this court has to agree with the DPP that even though the alleged victim is not in the accused's compound any more, the possibilities of interfering with her are high, if the applicant been enlarged on bail.

9. Thus, the Respondent has managed to rebut the presumption in favour of granting bail. But, considering the age and the comparatively long period of incarceration, this court is ready to fix the substantive matter for trial within this year.

10. Bail application is refused accordingly.

Janaka Bandara
Judge

At Suva
Office of the Legal Aid Commission for the Applicant
Office of the Director of Prosecution for State