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State v Baleisuva [2024] FJHC 650; HAC235.2023 (4 November 2024)

IN THE HIGH COUR OF FIJI AT SUVA
CRIMINAL JURISDICTION

Criminal Case No. HAC 235 of 2023

State

vs

Isimeli Koroi Baleisuva

For the State: Ms. S. Bibi and Mr. Vaurasi
For the Accused: Mr. P. Gade

RULING ON APPLICATION FOR VACATION OF TRIAL

1. The Accused is charged with 2 counts of Rape contrary to section 207 (1) and (2) (a) and 2 (c) of the Crimes Act 2009.
   
2. He has pleaded Not Guilty and the matter was fixed for Trial for one week commencing today the 4^th of November 2024 till the 8^th of November 2024.
   
3. As the matter was called, counsel for the Accused, Mr. Gade, made an application for vacation of the Trial date on the grounds that his client had left Suva and was currently in Moala Island and could not return until the boat returned after two weeks. He had taken his wife to the village and he was stuck there
   
4. His alibi witness was also unable to give evidence this week as she is a secondary school teacher, teaching Economics to Year 13 and the Economics paper for Year 13 is going to be held on Thursday the 7^th of November.
   
5. He has always attended his Court dates diligently and this is the first time failing to appear. He asks in the interest of justice, that the Trial be vacated and that he be allowed to return to Suva to defend this matter.
   
6. The State advised that they would also have made an application to vacate today’s Trial as they had just met the complainant today and needed time to bond and familiarise her with the proceedings. In the absence of Mr. Gade’s application they would have applied to defer the Trial until Wednesday to bond with the complainant.
   
7. The State in essence, also consents to the whole Trial being vacated as they are meeting the complainant for the first time today.
   
8. Applications for adjournment or vacation of Trial are provided for at section 223 of the Criminal Procedure Act 2009, which states: -
   

“Power to postpone or adjourn proceedings

223.-(1) If the court considers it necessary or advisable to postpone the commencement of the trial or to adjourn the trial by reason of the absence of witnesses or any other reasonable cause (which shall be recorded in the proceedings), the court may–

(a) from time to time postpone or adjourn it on such terms as it thinks fit and for such time as it considers reasonable; and

(b) may by warrant remand the accused to some prison or other place of security.

(2) During a remand the court may at any time order the accused to be brought before it.

(3) The court may grant bail to the accused person while he or she is remanded under this section”

9. After considering the application by the defence and the concession by the State, I find that there is no possibility of the Trial proceeding today, even in the absence of the Accused as the State needs time to brief and bond with their own witnesses.
   
10. The Accused has prima facie breached his bail, and he will need to explain himself to Court.
    
11. I find that it is appropriate and in the interest of justice to vacate the Trial. Accordingly I direct that the Trial fixed for today 4^th November to Friday the 8^th of November 2024, is hereby vacated.
    
12. I also issue a bench warrant for the arrest of the Accused as he has left his residence without the specific written approval of the Chief Registrar of the High Court.
    

So ordered.

Mr. Justice U. Ratuvili
Puisne Judge

cc: Office of the Director of Public Prosecutions
Legal Aid Commission