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Vetau v State [2007] FJHC 82; HAM 07.2007 (8 November 2007)

IN THE HIGH COURT OF THE FIJI ISLANDS
MISCELLANEOUS JURISDICTION
AT LABASA

Criminal Miscellaneous Case No: HAM 07/2007

FILIMONI VETAU
TOMASI CAMA
MANOA RATINISIWA

V

THE STATE

Mr Malcolm Maitava for the Applicants
Ms K Bavou for the State

Date of Hearing and Ruling: 8 November 2007.

RULING ON BAIL APPLICATION

1. This is my ruling with regard to the bail applications of Filimoni Vetau, Tomasi Cama and Manoa Ratinisiwa [the applicants], submitted by their counsel.
   
2. The applicants are facing serious criminal charges in this court in Criminal Case No: HAC 055/07. In that case they are jointly charged with one count of murder, contrary to section 199 of the Penal Code Cap 17, in count 2, with Robbery with Violence contrary to section 293(1) of the Penal Code Cap 17, in count three, with Unlawful Use of a Motor vehicle, contrary to section 292 of the Penal Code Cap 17.
   
3. When their bail application was first made before me on the 24 October 2007, State Counsel objected to bail for all the applicants, on the grounds that there is real and probable likelihood that they would re-offend while on bail, especially in the case of Filimoni Vetau who has 16 cases pending in the Magistrate Court. In seven of those cases, the charge are robbery with violence, contrary to section 293 of the Penal Code, Cap 17. This pertinent to the issues for consideration under section 18(1) of the Bail Act.
   
4. I advised counsel acting for the three applicants that I will only consider bail once affidavit evidence was filed on behalf of his clients covering the following issues:
   
   • How would they ensure the court that if bail granted they would not interfere with witnesses in their case in this court;
     
   • What guarantee can they give which the court would accept that while on bail they would not commit any other offence;
     
   • Sureties will need to be provided separately for each.
     

in support of their applications for bail pending trial.

Applicable law

5. The relevant law for considering bail applications is set out in the Bail Act 2002. Under section 3 of that Act, an accused person is entitled to bail unless it is not in the interest of justice to do so. In making its determinations to grant bail or not, section 17(1) and (2) of the Act states that the primary considerations shall be:
   
   • Time the accused person will spend in custody before the trial is held;
     
   • The likelihood of the accused person appearing in court to answer the charges laid against him or her;
     
6. If the court refuse bail, it must provide its reasons addressing the three issues referred to in section 18(1) of the Bail Act.
   
7. It should be pointed out that while there is a presumption in favour of granting bail, it is only so if it is in the interest of justice: section 3 of the Bail Act. This requires the court to make an assessment that, even if the factors raised in section 17 of the Act as primary consideration are in favour of the applicants, this court can still refuse bail if it is not in the interest of justice to do so. In the opinion of this court factors that must be considered in undertaking these assessment may include the following:
   
   • The previous convictions of the accused and other charges that is pending in the courts against him or her;
     
   • To consider the likelihood of re-offending during the period of the bail and in that way take advantage of the sentencing process in the courts;
     
   • The need to protect the community;
     
   • Time already spent in custody and whether a trial date is fixed.
     
8. It should be pointed out that the court should only make the above assessment after receiving sworn evidence covering the issues above.
   

Bail Determination

9. I have carefully considered the affidavit evidence filed in support of the bail application in this case. I have also considered the applicable law I have discussed above. I therefore make the following determinations and provide the reasons for it.
   
10. In the case of Filimoni Vetau, bail is refused on the following grounds:
    
    1. on the issue of whether he will be present on the date stipulated by the court, to hear the charges against him if granted bail, the affidavit of his mother deposes that the applicant Filimoni Vetau will stay with her and their family at Nacereyaga Village, Seaqaqa. She also undertakes to see that this applicant will not travel to Labasa or Seaqaqa Town unless accompanied by her. She further deposes that the court may also consider making an order that the applicant be confined to the village of Nacereyaga during his bail. All these undertaking being made suggests that the applicant is a difficult person to control, hence all this extra measures that is being undertaken to ensure his ordered movement. In the interest of every one, he should not be given bail.
       
    2. On the issue of whether the accused person will be disadvantaged if not bail, the only here is his right to consult and brief his legal counsel. This applicant is represented by Mr Maitava from the LAC and he is able to visit the applicant without hinderance in prison. There is no disadvantage suffered by the applicant if bail is refused;
       
    3. On the need to protect public interest and to protect the community. The applicant’s mother deposes in her affidavit, that she will ensure that the applicant does not interfere with any witnesses in the case against his son. How she will ensure this undertaking is achieved is not stated. The vulnerability of witness to be interfered with is not fully satisfied by the evidence. The issue that is not addressed by the affidavit is given that the applicant has currently 16 criminal charges pending in the magistrates court, 7 of which relates to robbery with violence, there is a real and substantial public interest for the court to consider and be satisfied that if released on bail this applicant will not re-offend and in so doing bring hardship and much pain to innocent citizens of Labasa. On this issue the court is not satisfied to be sure that the applicant will not re-offend while on bail.
       
    4. The applicant has been in custody for 3 months. The trail date for this case is fixed for 5 May 2008. The period of his remand is not excessive, when considered in the context of the charges he face in this case and in the magistrates court.
       
11. In the case of Tomasi Cama and Manoa Ratinaisiwa, bail is granted on the following terms:
    
    • To report 3 time a week to a designated police station;
      
    • Separate surety in the sum of $1000.00 each;
      
    • If you hold travel documents, they are to be surrendered;
      
    • Other terms in the High Court Bail Form.
      

Isikeli Mataitoga

JUDGE

AT LABASA
8 November 2007.