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Aluseni v State; Siki v State [2013] FJHC 19; HAM08.2013; HAM09.2013 (22 January 2013)

IN THE HIGH COURT OF FIJI
AT LABASA
MISCELLANEOUS JURISDICTION

Misc. Crim. Case No: HAM08/2013
[Crim. Case No: HAC054/2012]

BETWEEN:

TIMOCI ALUSENI
Applicant

AND:

THE STATE
Respondent

Counsel: Ms M. Lemaki for Applicant
Ms P. Low for State

Misc. Crim. Case No: HAM09/2013
[Crim. Case No: HAC43/2012]

BETWEEN:

SEFANAIA SIKI
Applicant

AND:

THE STATE
Respondent

Counsel: Ms M. Lemaki for Applicant
Mr. S. Vodokisolomone for State

Hearing: 18 January 2013
Ruling: 22 January 2013

RULING

[1] These are two separate applications for bail pending trial. In both cases, the State concedes bail.

[2] Due to the seriousness of the charges against the applicants, the Court invited submissions on the strength of the evidence against them.

[3] Applicant Aluseni is charged with rape of a 5 year old girl. It is alleged that he penetrated the vagina of the victim with his finger on 14 September 2012 at Savusavu. Aluseni is originally from Suva. On the day the allegation arose, he was working as a carpenter for a construction company based in Suva. If bail is granted, he proposes to reside in Suva. A fellow worker has offered to be his surety. His employer will continue to employ him.

[4] The alleged incident of rape was witnessed by the victim's father. The victim was playing outside her home when the applicant allegedly approached her. When the victim's father came out of the house, he saw the applicant had his hand inside the victim's shorts. The father confronted the applicant. When interviewed under caution, the applicant allegedly admitted poking his finger into the victim's vagina. The victim was medically examined on the same day. The medical evidence shows penetration of the victim's vagina consistent with sexual assault.

[5] Applicant Siki is charged with thirteen counts of rape of his biological daughter between January 2002 and July 2012. The first incident of alleged rape arose when the victim was 12 years old. She is now 22 years of age and is residing away from her parents' home. The prosecution case is based on the victim's evidence and the applicant's admissions under caution.

[6] Section 3(1) of the Bail Act states that an accused has the right to be released on bail unless it is not in the interests of justice that bail should be granted. Section 3(1) of the Act provides that there is a presumption in favour of granting of bail to an accused.

[7] Although the party opposing bail is obliged to comply with section 18(1), sections 19(1) and 19(2) cast upon the court the ultimate obligation to give due regard to the following considerations:

(1) the accused person is unlikely to surrender to custody and appear in court to answer the charges laid;

(2) the interests of the accused person will not be served through the granting of bail; or

(3) granting bail to the accused person would endanger the public interest or make the protection of the community more difficult.

[8] The first consideration is weighed by:

(i) the accused person's background and community ties (including residence, employment, family situation, previous criminal history);

(ii) any previous failure by the person to surrender to custody or to observe bail conditions;

(iii) the circumstances, nature and seriousness of the offence;

(iv) the strength of the prosecution case;

(v) the severity of the likely penalty if the person is found guilty;

(vi) any specific indications (such as that the person voluntarily surrendered to the police at the time of arrest, or, as a contrary indication, was arrested trying to flee the country).

[9] The second consideration is weighed by:

(i) the length of time the person is likely to have to remain in custody before the case is heard;

(ii) the conditions of that custody;

(iii) the need for the person to obtain legal advice and to prepare a defence;

(iv) the need for the person to be at liberty for other lawful purposes (such as employment, education, care of dependants);

(v) whether the person is under the age of 18 years (in which case section 3(5) applies);

(vi) whether the person is incapacitated by injury or intoxication or otherwise in danger or in need of physical protection.

[10] The third consideration is weighed by:

(i) any previous failure by the accused person to surrender to custody or to observe bail conditions;

(ii) the likelihood of the person interfering with evidence, witnesses or assessors or any specially affected person;

(iii) the likelihood of the accused person committing an arrestable offence while on bail.

[11] The trials of the applicants are likely to be heard by July this year. The remand period in both cases is unlikely to extend 12 months. Both applicants have successfully engaged the services of the Legal Aid Commission from the remand centre. The applicants do not have any previous conviction or history of absconding bail.

[12] The matter that is of concern to this Court is the vulnerability of the alleged rape victims. In one case, the victim is vulnerable due to her tender age. In the second case, the victim is vulnerable due to her relationship with the accused. The charges are indeed very serious. If convicted, both applicants are facing custodial sentences. At this stage, I cannot say the evidence against the applicants is weak.

[13] In Tevita Sarokoqica v. The State Crim. Misc. Case No. HAM020/11 (1 December 2011), this Court directed the State to justify its decision not to oppose bail to an accused charged with the rape of his wife.

[14] The Court said at paragraph [3]:

"Although the State is conceding to the application, bail is a matter for the Court to consider having regard to all circumstances of the case."

[15] It is not unusual for the prosecution not to oppose bail. When such a stance is taken by the prosecution, the Court is not relieved of its obligation to give due regard to the considerations under section 19 of the Act. That is what I have done in these two cases. In spite of the prosecution's decision not to oppose bail, this Court, after having considered the strength of the evidence against the applicants, the seriousness of the charges, the potential sentences that could be imposed if the applicants are convicted, and the vulnerability of the victims, is of the opinion that the applicants pose a flight risk and it is not in the interests of justice to grant bail to them.

[16] The applications for bail are refused.

Daniel Goundar
JUDGE
At Labasa
22 January 2013

Solicitors:
Office of the Legal Aid Commission, Labasa for both Applicants
Office of the Director of Public Prosecutions, Labasa for the State