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Qaqaturaga v State [2016] FJMC 218; Criminal Case 18.2016 (3 November 2016)

IN THE MAGISTRATES’ COURT OF FIJI
AT SUVA

CRIMINAL CASE NO: 18/2016

BETWEEN : ANANAIASA QAQATURAGA

APPPLICANT

AND : THE STATE

RESPONDENT

For the Applicant: Mr.Maimosa

For the Respondent: Mr.Yasin

Date of Hearing : 02^nd of November 2016

Date of Ruling : 03^rd of November 2016

RULING ON BAIL

1. The applicant is charged with one count of Rape contrary to section 207(1) (2) (c) of the Crimes Decree No. 44 of 2009.
2. He was produced first time to this court on yesterday and after serving full disclosures I have transferred this matter to the High Court.
3. In the meantime the counsel for the applicant made an oral bail application seeking bail for his client. In his submission the counsel submitted that there is presumption of bail under the Bail Act (“Act”) and also under the 2013 Constitution he has the right to be released on bail.
4. The respondent is objecting for bail on the grounds that this is an Indicatable Offence and based on the strength of the prosecution case.
5. Having considered the respective submissions of the parties now I proceed to pronounce my ruling in this case.
6. Section 13(1) (h) of the 2013 Constitution states that a person who is arrested or detained has right to be released on reasonable terms and conditions, pending a charge or trial, unless the interests of justice otherwise require.
7. Therefore the applicant has the right to be granted bail unless the court is satisfied for the interest of the justice he needs to be detained.
   8. The substantive law about bail is in the Act and Section 3(3) of that provides there is presumption of granting bail to an accused, but this has been amended by part 2 of the schedule of the Domestic Violence Decree.
   9. By these amendments to section 3(4) of the Act the presumption is displaced for person who is charged with a domestic violence offence.
10. In this case the applicant admitted in the court when I asked that the victim is his cousin. Even though the counsel for the applicant submitted that it is a long distance relationship, under the Domestic Violence Decree still it falls in to the definition of Domestic Relationship. Further this offence falls in to the category of Domestic Violence offence and hence the presumption is no longer applicable for the Applicant as argued by the counsel for the applicant.
11. The primary consideration in granting bail in a criminal case is the accused person appearing in the Court to answer the charge(section 17(2) of the Act )
12. Section 19(1) of the Act outlines the reasons for refusing bail in normal case and they are as follows:-
    1. The accused person is unlikely to surrender to custody and appear in court to answer the charges laid;
    2. The interest of the accused person will not be served through the granting of bail; or
    100. Granting bail to the accused would endanger the public interest or make protection of the community more difficult
13. In Isimeli Wakaniyasi v State ( 2010),FJHC 20;HAM 120/2009 (29th January 2010), his Lordship Justice Goundar held that

"All three grounds need not exist to justify refusal of bail, existence of any one grounds is sufficient to refuse bail".

14. But when an applicant is charged with a domestic violence offence the court need to also consider if the safety of a specially affected person (thevictim) is likely to be put at risk by granting bail.
15. In this case the prosecution is objecting to the bail on the basis that this is an Indictable offence and strength of the prosecution case.
16. By submitting that this is an Indictable offence it appears that the prosecution is trying to show that this is a serious offence.
17. But just because the charge is serious alone is not a sufficient to deny bail to the applicant. Article 14(2) (a) of the 2013 Constitution states that every person charged with an offence has the right to be presumed innocent until proven guilty.
18. Hence without any other grounds based on this alone I do not think the liberty of the applicant should be deprived.
19. But it appears that the prosecution got a strong case against the applicant. They are relying on the testimony of the complainant supported by medical findings as well as recent complaint which would show consistency of the victim evidence.
20. Further if the applicant is convicted for this offence considering the victim is a juvenile ,he would be serving a prison sentence of at least 10 to 16 years based on Hon. Chief Justice Gates decision in Anand Abhay Raj v State [2014] FJSC 12; CAV0003.2014 (20 August 2014)). With these factors I find there is a strong like hood that the applicant would not appear if released on bail.
21. It has been also shown that the victim is 17 years old .With her age I find there is real possibility of interference by the applicant. This is aggravates by the fact that she is related to him which put her safety also on risk by releasing him.
22. Therefore based on section 19(1) (a) and (c) of the Act as well as for the safety of the victim in my view the bail should not be granted to the applicant in this case.
23. The application for the bail is refused and the applicant is further remanded to appear in the High Court on 11^th of November 2016.
24. 28 days to appeal.

Shageeth Somaratne

Resident Magistrate