IN THE HIGH COURT OF FIJI AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 200 of 2021

ALIPATE LOWANE

vs

STATE

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BAIL RULING

1.	The Applicant in this matter is charged with three counts of Rape, entailing on two occasions  contrary to Section 207 (1) together with 2 (b) and on one occasion contrary to Section 207 (1) together with (2) (a) of the Crimes Act of 2009, has filed this bail application seeking bail. This is the applicant’s first bail application, since he was arrested and remanded on the 05th October 2021. In support of this bail application, the Applicant has filed a further Affidavit, dated 17th February 2022. 

2.	The State has filed its response to this bail application, objecting to bail, supported by the affidavit dated 14th December 2021 of W/CPL 3574 NIADERA STOLZ.

3.	Submissions in support of bail on behalf of the Applicant;

i)	It is submitted by the counsel for the Applicant that for the Applicant’s credit he has no previous convictions or pending cases in courts and that the Applicant is married with a son and that he is the sole bread winner of his family. Further, it is stated that if bail is granted, the Applicant will reside in Navua, a considerable distance away from the complainant, where the complainant resides in Kinoya in Nasinu. It is submitted that the distance of residence proposed nullifies any possible influence by the Applicant on the complainant, if granted bail.
 
ii)	It is also asserted by the Applicant’s counsel that pursuant to Section 3(1) of the Bail Act of 2002, every person charged with an offence has a right to be released on bail, unless it is not in the interest of justice that bail should be granted. Further, it is contended that Section 3 (3) of the Bail Act states that there is a presumption in favor of granting of bail. 

iii)	The counsel for the Applicant brings to the attention of Court the case of  Nacewa v State [2015] HAM 128 (17th August 2015), where the Court highlighted the importance of considering Section 17 (1) of the Bail Act of 2002, which reads as follows:

 “When deciding whether to grant bail to an accused person, a police officer or Court, as the case may be, must take into account the time the person may have to spend in custody before the trial if bail is not granted.”

In this regard, it is brought to the attention of Court that the Applicant has been in custody for 4 ½ months since arrest and still a trial date is not fixed by Court.  

iv)	Further, referring to the decision in this case, counsel for the Applicant refers to the judgement, as below:

“Although there is a domestic relationship, according to the address the victim has given to police, she is residing in Nawaka while the applicant is residing in Nausori Highland. Any possible interference with victim and witnesses could be avoided by imposing strict bail conditions.”

On this premise, counsel for the Applicant invites Court to take guidance from this ruling, since the Applicant is going to live far apart from the victim, if released on bail.

v)	Still further, counsel for the Applicant reminds the Court of the provisions of Section 18(1) of the Bail Act of 2002, as to what the Respondent needs to demonstrate to overcome the presumption in favor of bail articulated in the Bail Act of 2002.

vi)	In addition, the counsel for the Applicant brings to the attention of Court the decision of the Supreme Court in the case of Kumar v State [2021] FJSC 1; CAV20 of 2020 (5 February 2021), where the key factors to be considered in granting or refusing bail was clearly enunciated by the Supreme Court. In this regard, this Court has taken due cognizance of the directions given in this case by the Supreme Court in considering bail in the current matter. 

4.	Submissions of the State in opposition to bail;

i)	Counsel for the State submits that, though there is a presumption in favour of granting of bail under the Bail Act of 2002, this presumption can be rebutted under Section 3 (4).

ii)	In the Affidavit filed of record by W/CPL NIADERA STOLZ in support of the stance taken by the State, in para 5 she states that the Applicant is the Complainant’s uncle and the Applicant is married to the Complainant’s mother’s younger sister, and therefore there is domestic violence in this matter and the presumption in favour of bail is displaced under the Bail Act of 2002.

iii)	By para 11 of this Affidavit, W/CPL STOLZ informs Court that the Complainant lives with her family and the Applicant’s wife and child at Kinoya Village.

iv)	In para 13 of this Affidavit of W/CPL STOLZ, it is stated that the Complainant and her mother are fearful of granting of bail to the Applicant as there is a high likelihood of interference as the Applicant’s family reside in the same residence as the Complainant and her family. Therefore, it is stressed that there is a need to protect public interest and our community as a whole in this matter.

v)	On a separate note, it needs to be mentioned that in relation to the professional responsibility taken in seeing a fruition in this matter by the officers of the DPP, this Court couldn’t ignore the paucity of interest shown. To start with, there was no permanent counsel assigned to this matter and every calling day a different counsel appeared and on the day of hearing a junior counsel appeared, who took courage to inform the High Court that the matter was allocated to him at the last moment.

vi)	When the junior counsel appearing for the DPP was grilled by the Court of the grounds for the State to object to bail, the counsel conceded to bail on strict conditions, though the investigating officer had objected to bail by an affidavit on very plausible grounds in accordance with the Bail Act of 2002. As a consequence, this Court was compelled to believe that the State was not ready for the hearing, which is discouraging. While admiring the courage shown by Mr. Zunaid to appear for the DPP on short notice from his senior administration, this Court is of the view that in the interest of justice, matters of this nature should be allocated in advance to allow the counsel to prepare, since the officers of the DPP are in the unblinking public eye and should act with great responsibility and should take great pride in the work they do for the community.   

 Applicable Law and Analysis of the Current Matter

5.	Pursuant to Section 13 (1) (h) of the Constitution and Section 3(1) of the Bail Act of 2002, every person charged with an offence has a right to be released on bail, unless granting of bail is not in the interest of justice. Section 3 (3) of the Bail Act of 2002 stipulates that there is a presumption in favor of granting of bail.

6.	However, this presumption in favour of granting bail will be displaced under the conditions highlighted in Section 3 (4), as below:
“The presumption in favour of the granting of bail is displaced where –

(a) the person seeking bail has previously breached a bail undertaking or bail condition;
(b) the person has been convicted and has appealed against the conviction; or
(c) the person has been charged with a domestic violence offence.”

7.	In this matter, as agreed by both parties, there is no contention regarding the Applicant previously breaching any bail undertaking or bail condition, which is a primary consideration that this Court should consider in determining bail.

8.	In the same tone of sentiment, in this matter, there is no need for this Court to consider the second ground that could displace the presumption in favour of bail, i.e. whether the person has been convicted and has appealed against the conviction.

9.	Therefore, proceeding in this process of elimination, the only ground that could displace the presumption in favour of granting bail in this matter is whether the Applicant has been charged with a Domestic Violence Offence. For this end, this Court considered the Domestic Violence Act of 2009 in determining whether the offences for which the Applicant is charged with could be considered as “Domestic Violence Offences”.

10.	In this regard, Section 3 of the Domestic Violence Act of 2009 defines that such an offence is committed, if the perpetrator (Applicant) had a family or domestic relationship with the Complainant. Section 2 of the Domestic Violence Act of 2009 defines what is meant by a “family or domestic relationship”, as below:

"family or domestic relationship" means the relationship of -
(a) spouse;
(b) other family member;
(c) person who normally or regularly resides in the household or residential facility;
(d) boyfriend or girlfriend;
(e) person who is wholly or partly dependent on ongoing paid or unpaid care or a person who provides such care;
. . .
"other family member" means any of the following -
(a) parent, grandparent, step-parent, father-in-law, mother-in-law;
(b) child, grandchild, step-child, son-in-law, daughter-in-law;
(c) sibling, half-brother, half-sister, brother-in-law, sister-in-law;
(d) uncle, aunt, uncle-in-law, aunt-in-law;
(e) nephew, niece, cousin;
(f) clan, kin or other person who in the particular circumstances should be regarded as a family member……………………..” 
11.	In this matter, the Applicant was the Complainant’s uncle, therefore the offences the Applicant is charged with fall directly within the category of domestic violence offences that could displace the presumption in favour of bail under the Bail Act of 2002. To lend a force to this argument, this Court refers to the ruling in the case of Ganita v State – (Bail ruling) [2016] FJHC 354; HAM063.2016 (3 May 2016), where this Court has refused bail to an applicant charged with rape on the premise that the presumption in favour of bail was displaced, since the applicant in that matter was the uncle of the complainant.

12.	Nevertheless, considering the submissions of the Applicant’s counsel that the Applicant has been in custody for almost 5 months now and that the substantive matter has not yet been fixed for trial, this Court considered the other material submitted to Court by parties to strike a balance between the rights of the Applicant and public interests in line with the provisions of the Bail Act of 2002.

13.	 It was submitted by the counsel for the Applicant that if bail is granted the Applicant will reside in Navua, a considerable distance away from the Complainant, where the Complainant resides in Kinoya in Nasinu. However, in the Affidavit of W/CPL STOLZ it is mentioned that the Complainant lives with her family and the Applicant’s wife and child at Kinoya Village together. This position was not disputed by the counsel for the Applicant during his written and oral submissions, as well.

14.	Contrary to the submission of the counsel for the Applicant to the place where the Applicant will live if granted bail, in the Affidavit of the Applicant submitted to Court dated 17/02/2022, in para 7 he requests the Court to grant him bail to return to his wife and child.

15.	According to the evidence submitted to this Court, if the Applicant’s wife and child live with the Complainant and if the Applicant returns to his family the Applicant will gain interminable opportunities to interfere with or threaten the Complainant causing a formidable impact on the trial due against him, where the Complainant is the prime witness.

16.	Further, W/CPL STOLZ has mentioned in her Affidavit that the Complainant and her mother are fearful of granting of bail to the Applicant as there is a high likelihood of interference as the Applicant’s family reside in the same residence as the Complainant. 

17.	In this background, this Court makes reference to Section 19 of the Bail Act which lays down reasons for refusing bail. Section 19(1)(d) reads as below:

“An accused person must be granted bail, unless in the opinion of Court, as the case may be:
a)	….
b)	….
c)	….
d) the accused person is charged with a  domestic violence offence and the safety of a specially affected person is likely to be put at risk if bail is granted taking into account the conditions that could be applied if bail were granted."

18.	Having carefully considered the above discussed reasons, I refuse the application of bail pending trial on the ground that the accused person is charged with domestic violence offences and the safety of the Complainant is likely to be put at risk if this application is allowed and bail is granted.

19.	You have thirty (30) days to appeal to the Fiji Court of Appeal.

…………………………………………………
Hon. Justice Dr. Thushara  Kumarage

At Suva
11th March 2022

cc:	1.	Office of the Director of Public Prosecutions
2.	Legal Aid Commission