Public Prosecutor v Nemas
REFUSAL FOR BAIL APPLICATION
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1. This is a bail application with sworn statement filed in support including a surety statement.
2. The applicant / defendant says that his name is Mauricio Naieu but not Mauricio Nemas.
3. The applicant / defendant is Remanded in custody for the offence of sexual intercourse without consent, contrary to sections 90 and 91 of the Penal Code Act [CAP 135] and unlawful sexual intercourse, contrary to section 97 (1) of the Penal Code Act.
4. The applicant is 19 years old. He says he has 3 reasons to apply for bail. The first reason is that he is still innocent and his rights are protected under the Constitution and the law. The second reason is that he is a first-time offender and a chance to commit another offence is very low. The third reason is that he is a student; he attends Latan College and he is a year 11 student. He says while he is detained, he missed his classes.
5. The applicant relies on the case of Public Prosecutor -v- Borena [2023] VUSC 176, where it was held by the Court that, “… The seriousness of the offence charged alone is insufficient to overcome the presumption of innocence that the Defendants enjoy and which is their right under the Constitution.”
6. In Public Prosecutor -v- Jeajea [2016] 159, the Prosecution opposed bail because of a risk of interference with the complainant and prosecution witnesses who were all residents within the same area. Justice Fatiaki dismissed this at [8] holding. “… there is always a risk of interference with a complainant or prosecution witness but that too can be controlled and reduced by appropriate conditions and is greatly diminished by early recording of a complainants’ statement as has occurred in the present case.” It was further held at [11], “Although I accept that the grant of bail is not a right of an accused person, nevertheless, given the constitutionally protected fundamental rights and freedom of every individual, the prosecution bears a heavy one in opposing any application for bail. This means that verbalising common risk factors is not enough, there must be some evidence produced to the Court to influence its discretion to refuse bail”.
7. The defence says that even though, the applicant and the complainant lives in the same village of Lounelapen, the risk of interference could be controlled by the strict conditions of the bail. The risk of re-offending is low. Jimmy Napuk made a statement as a surety for the applicant. The bail conditions proposed to be issued are set out in the application for bail.
8. The Prosecution opposed to this bail application. This application is made under section 60 (3) of the Criminal Procedure Code Act [ CAP 136]. Bail is not a right. It is not automatic. The application must be supported by the special reasons. The Prosecutor relies on Public Prosecutor -v- Whitford [2006] VUSC 36] where the Judge said:
“When an application is made under Section 60 of the Criminal Procedure Code for someone who has been charged with an offence carrying a maximum term of life imprisonment, it is in my view essential that the applicant comes with good evidence to persuade the Court that his situation is special or such that the Court has to invoke Subsection 3. It is trite law that what is said from the bar table (said by lawyers) is not evidence to support a proposition or an application that is before the Court. It is the duty of the applicant to come to Court with all the relevant evidence to support his application or proposition”.
9. The Prosecution says that the bail conditions proposed by the applicant were advanced on three (3) grounds – (1) Still presume innocent; (2) First offender; and (3) Currently schooling at Latan College in year 11. The Prosecution says that the applicant has not provided documentary evidence that he is a year 11 student from Latan College.
10. The Prosecution says further that the proposed bail conditions number 5 stated that the defendant is to reside at Lounelapen village, not elsewhere. The Prosecution objects to this bail application based on the ground that the risk of interference is high because of the incident occurred at Lounelapen and the applicant and the complainant reside in the same village.
11. The complainant is 5 years old. She was born on the 02 of October 2020. She attends Kinder Garden school. The applicant/defendant is 19 years old. On 08 of April 2026, the complainant was playing with her friends at the kitchen when the applicant approached them and sent her two friends away. The applicant proceeded by removing the complainant’s panty and push his penis into the complainant’s vagina. The complainant felt pain and wanted to cry but the defendant told her not to cry or he will kill her. The defendant did this for some time and put on his trousers, took his knife and went to collect firewood. The complainant put on her panty, went to her friends and started feeling pain at her vagina.
12. I consider the seriousness of this case; the applicant does not show that he has a special reason for a grant of bail in this case. There is no evidence that he is a student at year 11 at Latan College. The risk of interference is high and real as the defendant and the girl complainant live in the same village. The defendant decides to live in the village but not elsewhere as part of his terms of bail, increasing the risk of interference with the complainant and prosecution witnesses. Ultimately, there must be a balance to be drawn between the presumption of innocence of the defendant’s rights and freedoms and the fairness of the trial that must be protected. So, in this case, the risk of interference is high and real, putting the fairness of the trial into question. As such, I decide to refuse the grant of bail.
13. The bail is refused.
DATED at Port Vila, this 19th June, 2026.
BY THE COURT
Hon. Chief Justice Vincent Lunabek