| Fiji Islands - Naceva v The State - Pacific Law Materials |
IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
MISCELLANEOUS ACTION NO. 0008 OF 1996
IN THE MATTER of an Application for Bail in Criminal Case No. 29/96
at the Magistrate's Court at Suva
AND
IN THE MATTER of an Application pursuant to Criminal Procedure Code
and in particular Section 108 (3) Cap. 21 and under the Inherent Jurisdiction
of the High Court for Bail pending trial by the High Court at Suva.
Between:
1. ROMANU NACEVA
2. TUETA NUKUVEIWAQA
3. URAIA JEKE
4. ILIASERI SAQASAQA
5. VILISI LEWENI
Applicants
AND:
THE STATE
Respondent
Mr. Moses Gago for the Applicants
Mr. S. Karavaki for the Respondent
DECISION
This is an application for bail pending trial.
The applicants have been in custody since December 1995 on a charge of murder and some of them for assault occasioning actual bodily
harm as well which allegedly took place at Quaia Village, Lami.
The learned counsel's argument in short is that the accused persons have been in custody for about five months now and it not likely
that their trial would commence in the near future judging by the fact that the Deposition is not ready as yet to be submitted to
the High Court by the Magistrate's Court.
Mr. Gago referred the Court to a number of cases in which bail was considered in murder cases and granted in some.
According to Mr. Isireli Fa's affidavit herein sworn 29 April 1996, the Paper Preliminary Inquiry was held on 17 April 1996 and the
applicants were committed for trial by the High Court. On 25 April 1996 the Magistrate's Court Criminal Registry informed Messrs.
Fa and Gago that the deposition, minutes and records of the case are still in the process of being typed and compiled before being
sent to the High Court and "it was not feasible to state how long that process will take".
In support of his application Mr. Gago further argues that the "facts of this case as alleged against the Applicants by the Prosecutor discloses prima facie that the Applicants purported to
have acted under the influence of drunkenness rather than with the necessary intent to kill, which once established, would have the
effect of reducing the offence, if any, to one of manslaughter" (paragraph 6 of affidavit).
The learned State counsel while opposing bail said that the court's discretion can only be exercised in exceptional circumstances.
In this case, he says, the applicants have been in custody for only 5 months and in previous cases where bail has been granted the
period in custody has been twelve months with the exception of a recent application by four police officers.
I have considered the submissions made on behalf of the applicants and the various cases to which reference has been made.
The applicants are facing a very serious charge. They have only been in custody for five months and that is not an unduly long time
in a case of this nature to warrant the granting of bail at this time even if ultimately the charge could amount to manslaughter.
In saying so I am not unmindful of the fact that (in the words of MNZAVAS J in JAFFER v REPUBLIC [1973] EALR p. 39 at p.40-41]):
"The primary object of remanding an accused in custody is to ensure that he will appear to take his trial and not seek to evade
justice by leaving the jurisdiction of the court. This is, in my view, the main and most important consideration to be examined before
an application for bail pending trial is granted or refused.
Then there are such less important considerations as the nature and seriousness of the alleged offence, the severity of punishment
involved and if available at the time of application for bail the strength of evidence in support of the charge."
It is my experience that in this country bail application in a murder case has been very rare and everyone concerned got used to
the fact that it is hardly granted as the offence is so serious. However, of recent, there have been a spate of applications for
bail and for reasons given in the cases that have come before the Courts bail has been granted. But one thing is clear that bail
is rarely granted except in exceptional circumstances. Each case has to be considered on its own merits.
In this case I find that there are no exceptional circumstances relating to the applicants. They are on a very serious charge which
calls for their remand in custody in the public interest, but for how long is a matter which requires some consideration.
Although it is not quite certain as to when trial will take place, bearing in mind the fact that they have not been in custody long
enough to warrant the granting of bail, there is still a possibility that before very long the depositions will be ready. There is
also the point that with the "new system" of disposal of criminal cases the trial could take place without undue delay provided the deposition is forwarded in good time.
As can be seen from the cases in which bail has been granted except for a few cases, there have been a waiting time of over 12 months.
((ASHOK CHAND and THE STATE Misc. Case No. 12/95 Suva - PAIN J and ibid 6/96; THE STATE v VIJAY KAPOOR & KAILESH CHANDRA Misc. No. HAM0001/95 - PAIN J)
The period of delay as at present is not excessive compared to some other cases that have come before the Courts. In the circumstances
of this case I adopt the words of PAIN J in JOELI MANUAVE and THE STATE (Misc. App. No. HAM0011/95) when he said:
"In my view no arbitrary period of, say, twelve months can be drawn. Each case must be considered in the light of its particular
circumstances. However, in my view, the delay in this case cannot be regarded as exorbitant and this is not a situation where Section
6 (5) of the Constitution is applicable at this stage.
There must inevitably be some delay in hearing these cases".
However, in the interests of justice and so as not to offend section 6(5) of the Constitution which requires that an accused should
be released if not tried within a reasonable time, I would direct that the Magistrate's Court, Suva give urgent attention to the
completion of the deposition for remittal to the High Court.
To conclude, for the above reasons, bearing in mind the principles involved in the granting of bail pending trial and the circumstances
of this case I do not find any exceptional circumstances to warrant the grant of bail in this case at this point in time.
D. Pathik
Judge
At Suva
17 May 1996
Ham0008d.96s
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