Qio v State [2015] FJCA 68; AAU0140.2014 (28 May 2015)

IN THE COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT

CRIMINAL APPEAL NO: AAU 0140 OF 2014
(High Court Case No: HAM 125/2014)

BETWEEN:

ERONI QIO
Appellant

AND:

THE STATE
Respondent

Coram : Chandra, JA
Lecamwasam, JA
Fernando, JA

Counsel : Appellant in Person
Mr. S. Vodokisolomone for the Respondent

Date of Hearing : 8 May 2015
Date of Ruling : 28 May 2015

JUDGMENT

Chandra JA

[1] I agree with the reasoning and conclusions of Fernando JA

Lecamwasam JA

[2] I also agree with the reasoning and conclusions of Fernando JA.

Fernando JA

[3] This is an appeal against an order of refusal for bail pending trial by the High Court on 26 September 2014.

[4] The Appellant was first produced in the Nasinu Magistrates Court on 7th May 2014.

Background

[5] The Appellant first appeared in the Magistrate’s Court at Nasinu on 7th May 2014 on a charge of aggravated robbery contrary to Section 311(1) (a) of the Crimes Decree 2009. He appeared under police custody and was representing himself. The prosecution had objected to bail being granted raising that the prosecution had a strong case against the Appellant and that the Appellant had previous convictions including offences of a similar nature and for escaping from lawful custody. The State submitted that it would make the Appellant less likely to appear in court, and it would be possible for him to interfere with evidence and that the community needed to be protected. The prosecution also raised that the Appellant had another case with police at Nausori.

[6] The State has submitted that, when his previous convictions were shown to the Appellant, he admitted them in court. The Appellant told the court that he was arrested and was in police custody for 5 days. He was harassed and punched on the mouth, left ear and forehead. His left arm is or was swollen and police refused to take him for medical examination. He also told court that he wanted bail so that he can see a doctor. He did not have his surety available at that time but if he was given time, he would be able to contact his brother.

[7] Having heard both submissions, the learned Magistrate refused bail on the basis that the offence was an indictable one; the Appellant had a previous conviction in 2006 from escaping from lawful custody; five similar previous convictions and that he does not have a suitable surety.

[8] The learned Magistrate also ordered that the Appellant be medically examined regarding his allegations of assault.

[9] The case was then transferred to the High Court and the Appellant was further remanded in police custody at Nausori and to be transferred to the “Remand Centre”.

[10] The case against the Appellant (hereinafter referred to as the substantive matter) was first called in the High Court at Suva on 21st May 2014. The prosecution was granted time to file and serve information and Disclosures and the Appellant was further remanded.

[11] By 9th July 2014, Information and Disclosures had been filed and served. The Appellant was now represented by counsel. The prosecution in the information filed, maintained the charge of aggravated robbery against the Appellant which was as follows:-

Statement of Offence

Aggravated Robbery: Contrary to Section 311(1) (a) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

ERONI QIO with others on the 11th day of March 2014, at Mulomulo Place, Nakasi in the Central Division, stole cash in the sum of $4,11.00, 1 Ripcurl bag valued at $105.00, 1 pair of canvas shoes valued at $100.00 and jewellery worth $10,000.00, all to the total value of $14,315.00 from NISHA SHAH, and immediately before stealing that property, he used force on the said NISHA SHAH.

[12] On 9th July 2014, the Appellants application for bail pending trial HAM 125 of 2014 was also called before the same High Court Judge presiding over his substantive matter. The prosecution was granted time to file its response to the notice of motion and affidavit filed by the Appellant in support of his application for bail.

[13] On 1st August 2014 the bail application was recalled and by this time the prosecution had filed and served its reply affidavit regarding the application for bail by the Appellant. The case was then adjourned for bail ruling to 15th August 2014.

[14] An affidavit of DC 3541 Isikeli Rokodrue dated 21st July 2014 was filed in the High Court in opposition to the application for bail. This affidavit was from the investigating officer in HAC 125/2014 against the Appellant.

In his affidavit he has stated that the Appellant has 18 active previous convictions. One being of escaping lawful custody, 4 for breaking entering and larceny and three for robbery with violence which are similar to the offence he is presently charged with.

[15] The bail ruling was not ready on 15th August 2014 and on 19th September 2014, but was delivered on 26th September 2014.

In his bail ruling, the learned Judge refused bail to the Appellant on the grounds that he was unlikely to surrender to custody, there was no lawful reason for him to be on bail whilst awaiting trial and that in the public interest and protection of the community, that he had to be remanded. The Court said that his chances for bail under the above heads “are slim”.

[16] Regarding the substantive matter, on 1st August 2014 the Appellant in the presence of his counsel pleaded not guilty to the information and the case was subsequently adjourned a few times for pre-trial conference and for the prosecution to provide additional disclosures. The Appellant was continually remanded.

[17] The substantive matter was recalled on 30th April 2015 for a trial date to be fixed and the Court has set the trial date as 9th May 2016.

[18] The Appellant being dissatisfied with the refusal of bail on 26th September 2014 by the High Court, has filed an appeal (in person) dated the 23rd of October 2014 which was received by the Court of Appeal registry on 20th November 2014.

[19] The Appellant has filed 11 grounds of appeal against the refusal of bail by the High Court. Each ground will be dealt with separately later in this Judgment. As such I will not set out the 11 grounds of appeal at this stage.

[20] At the outset it is relevant to set out the principles governing bail pending trial as applicable to this case.

[21] Section 9(1) of the Constitution states: “A person must not be deprived of his personal liberty except -

(a) for the purpose of executing the sentence or order of a court, whether handed down or made in Fiji or elsewhere, in respect of an offence of which the person had been convicted.

(b) for the purpose of executing an order of a court punishing the person for

contempt of the court or of another court or tribunal;

(c) for the purpose of executing an order of a court made to secure the fulfilment of an obligation imposed on the person by law;

(d) for the purpose of bringing the person before a court in execution of an

order of a court;

(e) if the person is reasonably suspected of having committed an offence;

(f) with the consent of the person’s parent or lawful guardian or upon an order made by a court, for the purpose of the person’s education or welfare during any period ending not later than the date of his or her 18th birthday;

(g) for the purpose of preventing the spread of an infectious or contagious

disease;

(h) for the purpose of the person’s care or treatment or for the protection of

the community if he or she is, or is reasonably suspected to be, of unsound

mind, addicted to drugs or alcohol, or a vagrant; or

(i) for the purpose of preventing the unlawful entry of the person into Fiji or

of effecting the expulsion, extradition or other lawful removal of the person

from Fiji.

[22] According to Section 9(1) (e) of the constitution, if a person is reasonably suspected of having committed an offence; it is a ground for depriving a person of his personal liberty.

Provisions regarding Bail is found in the Bail Act of 2002.

Section 2(1), “an accused person” or “a person accused of an offence” means a person who has been arrested for, or charged with an offence and –

(a) who is awaiting summary trial;

(b) who has been committed for trial on indictment;

(c) whose trial has been adjourned;

(d) who has been convicted and-

(i) who has been committed for sentence;

(ii) whose case has been adjourned for sentence;

(iii) who is appealing against conviction or sentence; or

(iv) whose conviction is stayed;

(e) who is under arrest for a breach of bail; or

(f) who has applied for a writ of habeas corpus;

[23] Section 3.- (1) of the Bail Act. Every accused person has a right to be released on bail unless it is not in the interests of justice that bail should be granted.

Section 3(3) - there is a presumption in favour of granting of bail to a person but the person who opposes the granting of bail may seek to rebut the presumption.

Section 3(4) - 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;

or

(b) the person has been convicted and has appealed against the conviction.

[24] Section 13 (4) –if a person charged for an offence has been in custody for over two years or more and the trial of the person has not begun, the court must release the person on bail subject to bail conditions the court thinks fit to impose. (emphasis is mine)

[25] Section 13(5) – subsection 4 does not apply where the trial of the person has begun and the court has refused to grant bail or where the person is serving a sentence for another offence.

[26] Judge Salesi Temo sitting as a High Court judge in Suva made his ruling on bail pending trial on 26th September 2014. He considered under the following grounds if bail should be granted.

(i) The likelihood of surrender to custody
(ii) The interest of the accused
(iii) The public interest and the protection of the public

He has been mindful of Section 3(1) of the Bail Act that an accused person is entitled to bail pending trial, unless the interest of justice requires otherwise. Having considered the above three grounds and for the reasons stated in his ruling, the learned Judge had concluded that under all three headings the accused’s chances of bail are slim. Therefore he has concluded for the said reasons that the accused’s application for bail is denied and that he is remanded in custody until further orders of the court.

It is pertinent to note that if any one of the above three grounds were satisfied, the High Court Judge was justified in refusing bail. It was not necessary that all three grounds had to be satisfied.

[27] Keeping in mind the afore-stated provisions governing bail, I will now examine the eleven grounds of appeal raised by the Appellant in this appeal.

Ground 1

“That I must not be deprived of my personal liberty under Section 9(1) of the 2013 constitution by police whilst they had arrested and detained me in police custody except (a) I had been convicted in respect of the offence of aggravated robbery in miscellaneous case number HAM 125 of 2014S, or for police to carry out the order of either high or lower court, to the effect of my arrest and detention at various police station both in the Western and Central division locally”.

[28] Contrary to the submission in the first ground by the Appellant, Section 9 (1) (e) of the constitution permits a person to be deprived of his personal liberty if the person is reasonably suspected of having committed an offence.

[29] In the disclosures filed by the Prosecution in the substantive matter which is contained in the court records, the Prosecution has revealed that the prosecution would rely on the following circumstantial evidence. That the Appellant was seen or recognized by a Corrections Officer near the place of offence around the material time and was seen abandoning a cane knife, pinch bar and a piece of iron when the Corrections Officer called out to him. The Corrections Officer recognized the Appellant because of the latter’s crooked finger. One of the victims who was allegedly robbed described one of the robbers to have an abnormal finger.

[30] The prosecution’s stated evidence against the Appellant is sufficient to raise a reasonable suspicion against the Appellant for having committed an offence. As such, the stated evidence satisfies the requirements of Section 9(1) (e) of the Constitution.

[31] For the said reasons the Appellant has failed to satisfy his first ground of appeal.

[32] Ground 2

“That I have the right under Section 14(2) (a) of the 2013 Supreme legal document to be presumed innocent until proven guilty according to law since I had been charged with an offence of aggravated robbery, and that I must not be deprived of my personal liberty according to section 9 (1) (a) of the 2013 instrument except I had been convicted of such offence”.

[33] The right of an accused person to be presumed innocent until proven guilty according to law is a right guaranteed under Section 14(2) (a) of the Constitution. However, a person may be deprived of personal liberty if he is reasonably suspected of having committed an offence. Therefore it is clear that whilst preserving the right of innocence of an accused person he could be still deprived of his personal liberty pending trial. The provisions of Section 9(1) (e) of the constitution and the stated evidence against the Appellant dealt with under the first ground will be applicable under this ground as well.

For the said reasons the Appellant fails to satisfy his second ground of appeal.

[34] Ground 3

“That in other words, neither the Police, the Magistrate Court nor Justice Salesi Temo had the jurisdiction to deprive me of my constitutional rights of personal liberty and presumption of my innocence until proven guilty according to law on the understanding that I had not been found guilty or convicted on the charge of the robbery allegation”.

[35] Under this ground too the Appellant’s submission is based on his right as an accused to be presumed innocent until proven guilty according to law, that the Police, the Magistrate Court, nor the learned High court had the jurisdiction to deprive him of his constitutional right of personal liberty.

As stated under grounds of appeal 1and 2, under section 9(1)(e) of the Constitution the police, Magistrates Court and the High Court were entitled to refuse bail. Such refusal would not violate the Appellants right of the ‘presumption of innocence until proved guilty’.

For the said reasons the Appellant has failed to satisfy his 3rd ground of appeal.

[36] Ground 4

That police officers have no power to arrest or detain me unless they have been given orders and issued with warrants by the Magistrate or High Court for my arrest and detention in compliance with Section 17 (3) of the Police Act and Section 9(1) (d) of the Supreme Law.

[37] The Appellant in this ground argues that the police had no power to arrest or detain him as the Magistrate or High Court did not give such order for the arrest of the Appellant. As such he submits that such arrest and detention violates Section 17(3) of the Police Act and Section 9(1)(d) of the Constitution.

[38] Section 17(3) of the Police Act not only stipulates that it is the duty of every police officer to execute all orders and warrants lawfully issued to him by any competent authority but also casts a duty amongst other duties to detect and bring offenders to justice, and to apprehend all persons whom he is legally authorized to apprehend and for whose apprehension sufficient grounds exist.

[39] Section 18(a) of the Criminal Procedure Decree authorizes any Police Officer to arrest any person without a warrant whom the officer suspects that there are reasonable grounds to believe that such person has committed an indictable offence whether triable summarily.

[40] The Appellant was arrested on suspicion of being involved in an aggravated robbery offence which is indictable. The disclosures made by the prosecution stated under Ground 2 above would be sufficient to satisfy reasonable grounds to justify arrest by the Police and bail being denied by both the Magistrate and the High Court. (The Appellant claims that he was arrested on the 2nd of May 2014 for an offence which allegedly took place on the 11th March 2014).

For the said reasons the Appellant has failed to satisfy his 4th ground of appeal.

[41] Ground 5

That the charge of aggravated robbery should not be allowed to stand, and is unreasonable having regard that I am innocent and were compelled to be charged alone with robbery offence even though section 311(1) (a) of the 2009 Crime Decree clearly stipulates that a person could only be charged with aggravated robbery ‘in company with one or more other persons’. The question is “Where are the others as stated in the particulars of the offences as in...Eroni Qio with others...”

[42] The Appellant’s contention is that under Section 311(1)(a) of the 2009 Crime Decree stipulates “ in company with one or more other persons” and that he is the only person to be charged. However, the particulars of offence under the first count of aggravated robbery clearly states “Eroni Qio with others on the 11th day of March 2014 at Mulomulo Place, Nakasi in the Central Division, stole cash in the sum of $4100, one rip curl bag valued at $105, one pair of canvas shoes valued at $100, jewelleries worth $10,000.all to the total value of $14,315.00 from NISHA SHAH and immediately before stealing that property he used force on the sais NISHA SHAH.”

[43] It appears that the prosecution’s position is that more than one person was involved in the incident but since only the Appellant has been identified as a person responsible for the said aggravated robbery, he is the only person charged for the said offence at the moment.

Therefore the particulars for the charge justifies a count of aggravated robbery contrary to Section 311(1) (a) No. 44 of 2009.

For the said reasons the Appellant has failed to satisfy his 5th ground of appeal.

[44] Ground 6

“That I must not be further deprived of my personal liberty in relation to Section 9(1) (b) of the 2013 constitution except I had been punished for contempt of either high or magistrate court or (c) I had an obligation imposed on me by law or (d) either courts had made an order for police to bring me to appear before such courts”.

[45] The Appellant’s sixth ground of appeal is that under the provisions of Section 9(1)(b) of the constitution, he could be brought before courts by the police only if conditions under Section 9(1)(c) of 9(1)(d) is satisfied.

The Appellant’s submission is therefore that the police had no right to arrest him or produce him before court.

Section 18(a) of the Criminal Procedure Decree of 2009 authorizes the police to arrest any person without an order from a Magistrate and without a warrant whom the officers suspect on reason of having committed an indictable offence (whether or not the offence is triable summarily).

[46] Therefore the right to arrest the person who is reasonably suspected of having committed an offence can be justified under Section 18(a) of the Criminal Procedure Decree of 2009 read with Section 9(1) (e) of the Constitution.

[47] For the said reasons the Appellant has failed to satisfy his 6th ground of appeal.

[48] Ground 7

“That the police were acting illegally to have brought me before the magistrate or high court on the charge of aggravated robbery since neither of the two courts had ordered them to do so”.

[49] The Appellant’s submission under this ground of appeal is that the Police acted illegally in bringing him before a court as neither the High Court or the Magistrate Court had ordered the Police to do so.

[50] Once a person has been arrested by the Police under Section 18(a) of the Criminal Procedure Decree 2009 it is necessary for the Police under Section 13(1) (f) of the Constitution to be brought before a court as soon as reasonably possible, but in any case not later than 48 hours after the time of arrest or if that is not reasonably possible as soon as possible thereafter.

[51] The above right guaranteed under the Constitution makes it imperative that an arrested person has to be brought before a court as soon as possible. As such there is no illegality in the Police producing him in court after his arrest.

[52] The Appellant asserts that he was in police custody for five days prior to him being produced before the court. The Appellant’s complaint under this ground is that it was illegal for the Police to produce him before Court. He is not complaining about the period he was in police custody. It is however observed that the Respondent has submitted that the Appellant was in police custody not only in relation to this case but also being involved in another case at Nausori.

[53] For the reasons stated above the Appellant had failed to satisfy his seventh ground of appeal.

[54] Ground 8

That the Magistrate court and Justice Salesi Temo were also acting illegally to remand me in custody because they did not make any order for police to bring me to their respective court related with offence.

[55] The Appellant submits that the Magistrate court and the High Court also acted illegally in remanding him as neither of the said two courts had ordered the Police to bring him before the respective courts.

[56] Once a person is produced in court, having being arrested without an order of court, under Section 18(a) of the Criminal Procedure Decree then the Court must consider whether he should be granted bail under Section 13(1) (h) of the Constitution unless, the interest of justice otherwise requires.

[57] Bail is defined under Section 2(1) of the Bail Act as - ‘Bail’ for a person accused of an offence means authorization for the person to be at liberty instead of in custody, on condition that the person appears for trial, for sentence, for hearing of an application or appeal relating to the offence, or for an adjournment of any of those matters;

[58] As such there was no act of illegality by the Magistrate Court and High Court in remanding the Appellant in custody simply because such courts did not order the Police to bring the Appellant to the respective court in relation with an offence.

[59] For the reasons above the Appellant has failed to satisfy his eighth ground of appeal.

[60] Ground 9

“That I had been refused bail in respect of the charge of the aggravated robbery, but the hearing of the case bail ruling were adjourned by Justice Temo on a number of several occasions until September 26 of 2014 when he finally dismissed the bail application even though Section 13(2) (a) of the 2002 Bail Act had prevented and disallowed any adjournment for more than 14 days except with my legal counsel’s consent and, (b) any further adjournment must be a period not exceeding 48 hours and must be for Justice Salesi Temo to be available to deal with the case of the alleged aggravated offence”.

[61] Appellant’s ninth ground is to the effect that if bail was refused by the Court then the High Court Judge should have not

(a) adjourned the hearing for more than 14 days except with the

Appellant’s consent.

(b) further adjournments could not exceed 48 hours.

[62] Section 13(2) of the Bail Act states that an accused person who is refused bail for an offence should have his hearing:

(a) not adjourned for more than 14 days; and

(b) that further adjustments must not exceed 48 hours.

[63] However section 13(3) of the Bail Act states that Section 13(2) will not apply if the person is in custody in connection with another offence or if the court is satisfied that there are reasonable grounds for a longer period of adjournment and that bail should continue to be refused.

[64] Section 13(2) of the Bail Act is to ensure that the hearing of a person deprived of his personal liberty should be dealt with expeditiously. However Section 13(2) is not unconditional. Section 13(2) is conditional to Section 13(3).

[65] In the Appellant’s case it has been submitted by the respondent that the Appellant was in custody for at least one more case. It is therefore a situation falling within the ambit of Section 13(3).

[66] As such although adjournments were given initially exceeding 14 days and subsequently exceeding 48 hours there was no breach of the provisions of Section 13(2) read with 13(3) of the Bail Act.

[67] For the reasons above the Appellant has failed to satisfy his 9th ground of appeal.

[68] Ground 10

Justice Temo said he would not be available to hear the case until 2016 and thus the whole imprisonment period in custody from May the 9th 2014 till March 2016 would be proven unlawful and inconsistent with Section 13 (2) (a) and (b) of the 2002 Bail Act since it had bypassed the legal time limit or frame of 14 days in subsection 2(a) and 48 hours in (b).

[69] The Appellant under this ground of Appeal challenges the validity of his continued deprivation of his personal liberty from 9th May 2014 till the case is taken up for hearing in 2016.

[70] Upon a perusal of the record it shows that the Appellant was first produced in court on the 7th of May 2014 and not on the 9th of May 2014 as stated by him. Further the Appellant says he was in police custody for five days before he was produced in court.

[71] Therefore the Appellant was deprived of his personal liberty from about the 2nd of May 2014. The hearing of the Appellant’s case has been fixed for the 9th of May 2016. Therefore by the time the Appellants hearing commences he would be in custody for two years and seven days.

[72] Although the Appellant under this ground refers to the illegality arising under Section 13(2) (a) and (b) his complaint appears to be of the total period of custody, before the commencement of the trial.

[73] I have already dealt with Section 13(2) (a) and (b) under Ground 9. However the total period in custody is dealt with under Section 13 subsection (4) onwards of the Bail Act. Section 13(4)

“If a person charged for an offence has been in custody for over 2 years or more and the trial of the person has not begun, the court must release the person on bail subject to bail conditions the court thinks fit to impose”

[74] Under Section 13(5), Subsection (4) does not apply where the trial of the person has begun and the court has refused to grant bail or where the person is serving a sentence for another offence. Therefore the period of 2 years can be exceeded once the trial has commenced. What is important is where a person is in custody that his trial should commence within a period of 2 years.

[75] In this case the trial will commence 2 years and 7 days after the Appellant was first taken into custody.

[76] In State v Shankar [2003] FJHC 50; HAM 14.2003 the Hon. Chief Justice A.H.C.T Gates, had laid out important principles of law to be followed where a person is in custody for over 2 years. In the said case in paragraphs 9 and 10 it was stated:

[9] The Bail Act 2002 has encapsulated long standing principles of the Common Law and provides guidance to persons charged with the duty of deciding bail, and on the priority of competing considerations. First, the Act makes clear that there is for every accused person an entitlement to bail [Section 3(1)]. This does no more than reflect the principle of the presumption of innocence, which is also stated by the Constitution [Section 28(1)(a)]. Section 3(6) however also states that that entitlement will fail if it is not in the interests of justice that bail should be granted.

[10] The second presumption is stated to be that in favour of the granting of bail. The presumption is rebuttable [Section 3(3)], if it can be shown that the accused has previously breached a bail undertaking or bail condition, or has been convicted and has appealed against the conviction [Section 3 (4)].

[77] In the present case it is observed that the presumption is rebutted as the Appellant has previously escaped from lawful custody.

Further considering the seriousness of the charges faced by the Appellant and his previous convictions it would not be in the interest of justice that bail should be granted to the Appellant.

[78] This is an appeal against the order of refusal to grant bail by the High Court Judge. At the time he made his order refusing bail he could not be certain that by the time the substantive matter is taken up for trial the period the Appellant would be in custody would be 2 years and 7 days. As such the refusal for bail when such order was made did not violate the provisions of the Bail Act.

[79] For the reasons above the Appellant has failed to satisfy his 10th ground of appeal.

[80] Ground 11

That section 19(1) of the 2002 Bail Act had shown that every accused person must be granted bail unless in the opinion of the court (a) the accused person is unlikely to surrender to custody and appear to answer the charges laid against him/her comment.

[81] Under this ground the Appellant challenges the refusal to grant him bail. On the ground that such refusal could be justified only if "the accused person" is unlikely to surrender to custody and appear to answer the charges laid against him. In other words that he is unlikely to re-appear in Court if granted bail.

[82] The Respondent has submitted that the Appellant has a prior conviction for escaping from lawful custody within the last 10 years. That ground itself is sufficient to justify the refusal of bail to the Appellant under Section 19(1) of the Bail Act.

[83] Further when his previous convictions are considered some of the convictions were similar to what he is charged with, the seriousness of the charges against him are further grounds that could be considered against the Appellant under Section 19(1)(a) of the Bail Act.

[84] Under Section 19(1)(c) of the Bail Act a further ground to be considered would be if granting bail to the Appellant would endanger the public interest or make the protection of the community more difficult.

[85] These reasons which were considered by the High Court Judge justifies his decision of refusal to grant bail to the Appellant.

[86] For the reasons above the Appellant has failed to satisfy his 11th ground of appeal.

Conclusion

[87] I have considered all the 11 grounds of appeal raised by the Appellant and for the reasons given under each ground come to the conclusion that he has failed to satisfy any single ground of appeal submitted by him.

[88] In addition to the 11th ground of appeal, the Appellant has made the following comments:

1. That he had voluntarily surrendered to police custody and at no stage of his detention for the offence of aggravated robbery even attempted to flee or escape from police custody and that he did not resist his arrest.
   
2. That he has a child whose livelihood and welfare depends heavily on him. That he is a Farmer by profession, working six days of the week and it is this that puts food on the table and is a source of financial income for his family.
   
3. That he did not commit the offence and was at home with his friends at the time the offence was committed.
   

[89] I have considered the above grounds (comments) raised by the Appellants.

[90] The primary consideration in deciding whether to grant bail is the likelihood of the accused person appearing in court to answer the charges laid against him or her (Section 17(2) of the Bail Act).

[91] The seriousness of the charges brought against the Appellant, strong prima facie evidence against the Appellant and his 36 previous convictions, 18 of them within the last 10 years, his committing 7 larceny type offences, 3 of them robbery with violence are all compelling reasons that justified bail being refused.

[92] When balancing the Appellant's right to be released on bail against the need to protect society I am of the view that the scales fall heavily in favour of the right to protect society.

[93] For these reasons I see no reason to interfere with the order of refusal of bail made by the learned High Court Judge.

The Orders of the Court are:

1. Order refusing bail by the High Court is upheld.
2. Appeal dismissed.
   

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Hon. Justice S. Chandra
Justice of Appeal

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Hon. Justice S. Lecamwasam
Justice of Appeal

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Hon. Justice S. Fernando
Justice of Appeal