Tavuti v Public Prosecutor
TRANSFER OF BAIL APPLICATION TO THE MAGISTRATE’S COURT
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1. This is a bail application.
2. The applicant is charged with two (2) counts of domestic violence, contrary to sections 4 and 10 of the Family Protection Act of 2008, which are within the jurisdiction of the Magistrates’ Court under the Act.
3. The alleged offences occurred on 5 May 2026 in relation to the charges of domestic violence against his wife. The applicant and the complainant wife were recently married on February 2026.
4. The allegations and the charges were instigated in the Magistrate’s Court pursuant to the provisions of the Family Protection Act of 2008.
5. The applicant was initially bailed by the Magistrate’s Court in Port-Vila under the terms and conditions set by the Magistrate in the Magistrate’s Court in Port-Vila.
6. On 12 June 2026, the Magistrate’s Court in Port-Vila, revoked the bail of the applicant because the applicant had breached the conditions of his bail.
7. On 17 June 2026, Mrs. Malites made this fresh application for bail pursuant to sections 66,67,68 and 69 of the Criminal Procedure Code Act [CAP.136], following the revocation of the Applicant’s bail by the Magistrate’s Court on 12 June 2026 for the Supreme Court to reconsider the bail of the applicant.
8. This application was listed before me on 19 June 2026. I sat to hear and consider the application. I immediately realised that something was wrong with the application. I informed the defence counsel and the prosecutor about it.
9. In effect, the so-called fresh application for bail is made directly before the Supreme Court. It is said to be made under section 66 of the Criminal Procedure Code Act. But, section 66 deals with statements of rights to be read on refusal of bail by magistrate. It provides: -
“66. Statement of rights to be read on refusal of bail by magistrate. Upon the refusal by the Magistrates’ Court of an application for bail, the magistrate shall state the grounds for such refusal and shall read aloud to the applicant in open court the following statement –
“Your application for release from custody on bail having been refused by the Court, you now have the right to make a fresh application for bail to the Supreme Court. If you so desire, the matter will be referred immediately by this Court to the Supreme Court, which will review your application as soon a possible. You will remain in custody in the meantime but will suffer no disadvantage by reason of making a further application to the Supreme Court. Do you wish the Supreme Court to consider your application for release from custody on bail?”
10. The Provision of section 66 of the Criminal Procedure Code Act is clear and self-explanatory.
11. This is not what happened on 12 June 2026. On 12 June 2026, the Magistrate in the Magistrate’s Court in Port – Vila, enforced a breach of one of the bail conditions that the applicant had breached after the Magistrate’s Court granted him bail under conditions.
12. In summary, this so-called fresh application for bail is wrongly filed in the Supreme Court. It should first be filed and dealt with by the Magistrate’s Court. And only if the Magistrate’s Court refused to grant bail to the applicant under his fresh application for bail, then, that is the time when the provisions of sections 66, 67, 68 and 69 will be invoked.
13. I set out the provisions of sections 67, 68, 69 and 70 of the Criminal Procedure Code Act for ease reference:
“67. Presiding magistrate responsible for forwarding the file to the Supreme Court
If an applicant for bail informs the presiding magistrate that he wishes his application to be considered by the Supreme Court, that magistrate shall be personally responsible for ensuring that the relevant case file and other documents and materials are forwarded without delay to the Registrar of the Supreme Court.
68.Report by presiding magistrate to the Supreme Court
The file forwarded to the Supreme Court pursuant to section 67 shall include a written report by the magistrate addressed to the Supreme Court stating the grounds of refusing bail and setting out in detail the evidence or information upon which his conclusions were based. The report shall be dated and signed by the magistrate.
69. Decision of the Supreme Court on bail
The decision of the Supreme Court on an application referred to it pursuant to sections 67 and 68 shall be delivered in writing and copies thereof shall be issued without delay to the appropriate magistrate and all parties to the proceedings. If the Supreme Court shall order that the applicant be released from custody on bail, the magistrate shall be personally responsible for ensuring that a copy of the decision is served upon the officer in charge of the prison or other place where he is detained and that he is forthwith produced before him in court for such period and upon conditions as the magistrate shall determine.
70. No appeal against order refusing bail
There shall be no right of appeal under Part 11 against the order of a judicial officer refusing the grant of bail to any person “.
ORDER
14. I decline to hear and consider the fresh application for bail filed in the Supreme Court on 17 June 2026. I make an order to transfer it to the Magistrate’s Court in Port-Vila to deal with it under sections 66, 67, 68, and 69 of the Criminal Procedure Code Act as it is within the Magistrates Court jurisdiction.
DATED at Port Vila, this 19th June, 2026.
BY THE COURT
Hon. Chief Justice Vincent Lunabek