IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 32 OF 2004

BETWEEN:

SENIJIELI BOILA
PITA NAINOKA
Applicant

AND:

STATE
Respondent

Counsel: Applicants – In Person
Mr. P. Madanavosa – for State

Hearing/Judgment: 12th May, 2005

JUDGMENT

The bail history of these two accused is adequately covered in several bail rulings delivered by my learned sister Justice Shameem.

In respect of Mr. Boila he was never granted bail by this court. He was however bailed by the Magistrate’s Court on unrelated charges. Despite his obligations he failed to turn up to the High Court and remained at large between the 25th of November 2004 until his arrest on the 11th of April 2005. Regarding Mr. Nainoka by a decision dated the 10th of January 2005 my sister Justice was compelled to release him on bail because of the inhumane conditions in which he was kept at the Suva Prison. He was remanded to appear for his trial on the 4th of April. He failed to appear and was arrested on the 18th of April 2005 and has been in custody since that date.

They both have filed a written application for bail in which they detail various reasons for the court to grant them bail related to their personal and family circumstances and ability to prepare and conduct a defence of their trial. These they today supplement with oral submissions emphasizing their particular personal circumstances and the difficulties they are experiencing in obtaining legal assistance to prepare for their trial. They each further offer their sincere apologies for failing to answer bail.

It is in respect of this latter matter that this decision for bail pivots.

Bail is a serious matter. It is an assurance by the accused, a promise, he will turn up to court when called upon. Courts frequently surround that promise with appropriate conditions to encourage an accused to meet his obligations and turn up when required. 

When accused fail to meet that basic promise it creates hardship for others. It is hard for those awaiting the use of the courts resources as their cases have to be re-scheduled. It creates hardship for an under-resourced State Prosecution Authority because they have to prosecute the trial at a later time. Most importantly it creates great hardship for the victims of crime and the complainants in trial who have the stress of preparing themselves to attend court and re-count the circumstances surrounding the alleged offence only to be put off. Finally a breach of bail promise delays justice and by that frustration challenges the rule of law.

Importantly in the Nainoka case her honour said at page 5 of an earlier bail ruling:

"In this case the applicant (Nainoka) should not be released. He is a bail risk who should be remanded until trial."

That prediction of bail risk has regrettably proved to be completely true. 

Mr. Nainoka you have a long record of offending. You have in the past shown little regard for the orders of the court. You have demonstrated by your failure to appear on time for your trial that you are a completely unreliable person. In those circumstances any statutory or constitutional sympathy that you may have in your favour is totally exhausted. If you choose not to obey the rules of society then there is nothing else society can do but remand you in custody to ensure that your trial is completed. Mr. Nainoka your application for bail is refused.

Mr. Boila you were never bailed by the High Court. You knew you had an obligation to attend this court. You chose to ignore that obligation for your own selfish reasons and you failed to appear in court between November of last year and April of this year. You too have shown that you are a complete bail risk that you cannot honour your promises and accordingly society is entitled to have you remanded in custody until your trial. Your bail application is refused.

The next appearance for both of you will be on the 3rd of June before my sister Justice Shameem and I direct that the consolidation application be considered on that day.

Gerard Winter
JUDGE

At Suva
12th May, 2005