IN THE HIGH COURT OF FIJI
At Suva
Criminal Jurisdiction

MISCELLANEOUS CASE NO. 8 OF 1990

Between:

PITA VULI
Applicant

v.

STATE
Respondent

Mr. V. Parmanandam for the Applicant
Mr. I. Mataitoga for the Respondent

RULING

This is an application for bail pending trial. The applicant was charged with Rape and first appeared before the Magistrate Court, Suva last Monday the 11th of June. No election or plea was taken and although the applicant sought bail, this was refused by the learned Chief Magistrate who also remanded the applicant until the 26th of June for (m) mention and not for trial as was suggested.

Although this is a fresh application for bail and not an appeal against the Chief Magistrate's refusal it is convenient to note the police prosecutor's grounds of objection in the lower court. These were - that the offence was serious; the victim was very young being 13 years of age; high tension existed between the victim's and applicant's families and investigations were incomplete.

Learned counsel in moving the application submitted that generally-speaking Rape was not such a serious offence as to warrant the refusal of bail and in any event since the applicant's remand sufficient time had elapsed to enable police inquiries to be completed.

In opposing bail the learned Director of Public Prosecutions advanced similar grounds as those raised before the learned Chief Magistrate. In addition the learned Director stated (without dispute) that the victim was a relative of the applicant and living with him at the time of the alleged offence.

As evidence of the "tension" that existed between the parties reference was made to a confrontation that occurred between the applicant and relatives of the victim at the Lami Police Station.

The court however was not appraised of the nature or strength of the evidence in the case against the applicant or of his character and antecedents (if any).

I accept that the particular circumstances of the offence contains serious allegations against the applicant of a kind likely to engender strong feelings on the part of the victim's relatives against him. 

But the victim has since been removed to the relative safety of an aunt's home and may be considered no longer 'at risk'. As for the "safety" of the applicant himself, it is the court's view that this alone is an insufficient ground for depriving a person of his liberty.

It I might say so the protection, safety and security of persons in this country rests primarily with the police and not with prison warders. Furthermore it is not suggested that the police would not be able to carry out its normal responsibilities in regard to the applicant or that he has received serious life-endangering threats.

In Bechu and Another v. R. 8 FLR 240 MacDuff C.J. correctly espoused the 'primary test' in the exercise of the court's discretion to grant or refuse bail when he said at p.241:

"...... the discretion must be exercised judicially in the light of the paramount principle that an accused person is presumed innocent until he has been found guilty. For that reason he should not be deprived of his liberty merely because he is accused of a crime if he can satisfy the test that in all the circumstances he will appear to stand his trial on that accusation."

In this latter regard it is noteworthy that the applicant is a married man with a steady job and is the sole breadwinner in his family. It is not suggested that he is likely to abscond or would be unwilling or unable to comply with stringent conditions should he be granted bail.

Needless to say the laying of criminal charges ought not to be allowed to become an easy means of depriving or prejudicing a person's liberty nor should it be used to facilitate incomplete police enquiries unless there are real and substantial grounds to suspect interference.

In all the circumstances I can see no strong reason(s) for departing from the 'primary test' and I therefore grant the applicant bail pending trial in the sum of $200 and impose the following conditions: 

(a)	that he report to the Central Police Station daily between the hours of 7.00 a.m. and 6.00 p.m;

(b)	that he furnish a full residential address and advise the court and the police prosecutions of any change; 

(c)	that he surrender any passport he may have to the court registry; and 

(e)	that he report before the Magistrate Court, Suva on 26.6.90 when this case is next-listed for mention.

(D.V. Fatiaki)
JUDGE

At Suva,
21st June, 1990.
HAM0008D.90S