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Tulavu v State [2019] FJHC 202; HAM394.2018 (15 March 2019)

IN THE HIGH COURT OF FIJI
AT SUVA
[CRIMINAL JURISDICTION]
Criminal Miscellaneous Case No. HAM 394 of 2018

BETWEEN:

WAISAKE TULAVU

AND:

STATE

Counsel: Mr T Ravuniwa for the Accused
Ms L. Bogitini for the State
Dates of Hearing: 13 March 2019
Date of Ruling: 15 March 2019

RULING

[1] This is an application for bail pending trial. The Accused is a senior pastor of a church congregation known as the Agape Healing Ministry. The Accused is charged with rape and sexual assault against three different female complainants. The complainants are members of his congregation.

[2] The prosecution case is that the Accused obtained consent of the complainants in the pretext of healing them by having sexual intercourse. The offences were allegedly committed at the church premises in Cunningham in the year 2018. The prosecution’s main objection is that the Accused hold a position of power as the senior pastor of the church and since his members including the complainants are from the province of Naitasiri like him he is likely to interfere with the witnesses. There is also a possibility that the Accused may face more similar charges.

[3] The Bail Act 2002 (the Act) codifies much of the law relating to bail. Part II of the Act contains provisions of general application. The Act provides for two presumptions. An accused has an entitlement to bail (s 3(1)). This does no more than reflect the principle of the presumption of innocence, which is also stated in the Constitution. The entitlement will fail if it is not in the interests of justice that bail should be granted. Secondly, there is a presumption in favour of the granting of bail (s 3(3)). However, that presumption is rebuttable if it can be shown that the accused has previously breached a bail undertaking or bail condition, or been convicted and has appealed against the conviction, or has been charged with a domestic violence offence (s 3(4)). The Accused has no history of breaching bail. He has not been convicted of any offence in the past. He is not charged with a domestic violence offence.

[4] Section 17(2) of the Act states that the primary consideration in determining whether to grant bail is the likelihood of the accused appearing in court to answer the charge laid against him or her. The Court must also take into account the time the accused may have to spend in custody before trial if bail is not granted. This case is very likely to be heard before the end of this year. So far the remand period is about 3 months. If bail is not granted, the time in custody while on remand will be about 12 months.

[5] In his affidavit the Accused has stated that he is willing to surrender his passport and comply with any travel restrictions. However, he has failed to provide any information regarding his community ties. He has stated that he is willing to provide suitable sureties but has offered no details. The affidavit makes vague assertions without facts to support them.

[6] While the Accused has no history of absconding, he is facing serious charges. The complainants are women from his congregation. They allege that he sexually abused them using similar modus operandi. If convicted, the likely sentence is a prison sentence. He is facing a potentially strong prosecution case. These factors provide strong incentive for the Accused not to turn up for his trial.

[7] Although the primary consideration in determining whether to grant bail is the likelihood of the accused person appearing in court to answer the charge (s 17(2)), the court may refuse bail if the interests of the accused person will not be served through the granting of bail or the granting of bail would endanger the public interest or make the protection of the community more difficult (19(1)).

[8] The prosecution case is that the charges are linked to institutional sexual abuse of members by a person in authority. For that reason, there is a real possibility that the Accused will interfere with the complainants and witnesses if granted bail.

[9] For these reasons I have come to the conclusion that it is not in the interests of justice to grant bail to the Accused. The Accused will remain in custody on remand. A priority trial date will be assigned to the case.

............................................
Hon. Mr Justice Daniel Goundar

Solicitors:
Tobia B Ravuniwa for the Accused
Office of the Director of Public Prosecutions for the State