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Moceica v State [2020] FJHC 874; HAM208.2020 (23 October 2020)

IN THE HIGH COURT OF FIJI

AT SUVA

[CRIMINAL JURISDICTION]

CRIMINAL MISC. CASE NO. HAM 208 OF 2020

(High Court Case No. 219 of 2020)

KAVENI MOCEICA

V

THE STATE

Counsel: Mr J Dinati for the Accused

Ms S Shameem for the State

Date of Hearing: 16 October 2020

Date of Ruling: 23 October 2020

RULING

[1] The Accused seeks bail pending trial. He is charged with 6 counts of rape and 2 counts of attempted rape. The complainant is a child and niece of the Accused. She was being raised by the Accused and his spouse. The allegations cover a period of three years from 2017 to 2020 when the child complainant was under the care of the Accused and his spouse. She was a primary school student at the relevant time.

[2] The Accused is 54 years old and is a farmer. He does not have any relevant history of criminal conduct or breach of bail conditions.

[3] The Bail Act grants every accused with presumption in favour of the granting of bail, but that presumption is displaced if the Accused is charged with domestic violence offence. In this case, it is not in dispute that the alleged offences arose in a domestic context, when the child complainant was under the care of the Accused at his home and he was her guardian.

[4] The primary consideration is the likelihood of the Accused turning up in court for his trial. The prosecution case is based on the child complainant’s account of the allegations supported by recent complaint and medical evidence. The Accused in his caution interview denied the allegations.

[5] I have given careful consideration to all the matters under the Bail Act. The prosecution evidence at this stage is potentially strong. The allegations are serious, and if the charges are proven, the Accused is facing a prison sentence. As far as his interests are concerned he has managed to engage counsel of his choice with the assistance of his relatives. He had been in custody on remand following his first appearance in the Magistrates’ Court on 23 July 2020. He is presumed innocent until his guilt is proved beyond reasonable doubt by the prosecution. He also has a right to a fair trial and that right will be accorded to him.

[6] However, I am not satisfied that the Accused will not interfere with the prosecution witnesses if he is released on bail. The Accused is the patriarchal head in his family. He is an authority figure over the main prosecution witnesses. The likelihood of interference with the complainant and other witnesses is very high. For these reasons, it is not in the interests of justice to release the Accused on bail.

[7] Bail is refused. The case will be assigned a priority trial date after all pre-trial matters are concluded.

...........................................

Hon. Mr Justice Daniel Goundar

Solicitors:

Dinati Lawyers for the Accused

Office of the Director of Public Prosecutions for the State