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State v Ledua [2004] FJHC 55; HAC0019D.2003S (20 January 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC0019 OF 2003S

STATE

v.

SAMUELA LEDUA

Counsel: Ms P. Macanavosa for State
Accused in Person

Hearing: 19th January 2004
Ruling: 20th January 2004

RULING ON BAIL (2)

On 29th December 2003, the Applicant made a bail application in this court. He is charged with attempting to murder Talica Waqa Ledua. She is his daughter. Information has been filed and a hearing date has been set for the 21st of June 2004. The Applicant has pleaded not guilty. On the 29th of December I refused bail on the grounds that he is likely to re-offend on bail, that he allegedly committed the offence while on a binding-over order, that he is in touch with his wife and daughter on his own admission, although they are prosecution witnesses in this case, and that any financial difficulties suffered by his children were caused by the Applicant’s own failure to make arrangements for access to his bank account by his wife.

He now makes a further application. He raises the conditions of his custody, offers to stay away from his wife and daughter and states that he cannot prepare for his defence whilst in custody.

In response, State counsel filed the affidavit of Police Constable Deo Raj, the investigating officer. It states that the Applicant’s circumstances have remained unchanged since the 30th of December 2003, that there is no evidence that the Applicant’s health is at risk in prison, that he has been visited in prison by his lawyer and members of his family and that it is likely that he will interfere with prosecution witnesses if granted bail.

I asked for some information on the continuing investigations into alleged incest by the Applicant with the victim. The same affidavit states that there is now sufficient evidence to charge the Applicant with the offence of incest but that the police docket has been forwarded to Director CID for onward transmission to the Director of Public Prosecutions for final advice.

While this application was pending, several letters were written to me, addressed to Justice Nazhat Shameem, High Court of Fiji, it appears by the victim in this case, on behalf of the Applicant. These letters purport to say that the Applicant did not commit the offences alleged. I disclosed these letters to the State. The Applicant said that he knew that the victim had written to the court withdrawing her complaint.

The State was then given time to verify the letters and if possible to obtain a statement from the victim. On the 19th of January, State counsel said: “A statement has now been obtained from her. She now says she does not want the case to proceed because the Applicant is the sole breadwinner.” The State further said that a letter addressed to the victim, it appears from the Applicant requesting her to withdraw her complaint, was also on the police docket. This, she said showed that the Applicant was interfering with a prosecution witness. She said that despite the victim’s position, the State was going to proceed with the prosecution.

The principles applicable to a bail application, outlined in my ruling of 30th December 2003, continue to apply to this application. I find that the Applicant raises two new matters. One is that the conditions of his custody are unacceptable to him and pose a risk to him personally, and the other is that the victim now wishes to withdraw her complaint.

As to conditions of custody, I am satisfied that while the food given to the Applicant in the remand centre, may not be the same type of food he may have eaten while at liberty, it is not so unacceptable that it might justify a grant of bail. Of particular concern in this case is the Applicant’s continued communication with his daughter. He stated in this court that his daughter continued to visit him in prison. Why has he not forbidden these visits? Further although the letter referred to by the State has not been shown to have been written by the Applicant, he is clearly aware of the letters written to the court by his daughter. It is apparent that he has done nothing to prevent his continued meetings with his wife and daughter, and is a party to his daughter’s alleged withdrawal of her complaint.

Of particular concern is the ground for withdrawal of complaint. According to State counsel, the victim requests withdrawal of charges because of the financial disadvantage suffered by her family as a result of the Applicant’s incarceration. It appears that the Applicant’s refusal to make financial arrangements for his children by giving his wife access to his bank account may have placed pressure on the victim to attempt to withdraw her complaint.

Given the State’s position in this matter, that of proceeding with the prosecution, and the imminent charge(s) of incest expected, I find that it is not in the public interest to release the Applicant on bail.

This application is refused.

Nazhat Shameem
JUDGE

At Suva
20th January 2004