Tukai v The State [2004] FJHC 235; HAM0053D.2004S (16 August 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

CRIMINAL MISC. CASE NO: HAM0053 OF 2004

Between:

PENI TUKAI; and
KINIJOJI ULUIVUDA
Applicants

And:

THE STATE
Respondent

Hearing: 12th August 2004
Ruling: 16th August 2004

Counsel: Mr. S. Matawalu for Applicants
Ms L. Chandra for State

RULING ON BAIL PENDING TRIAL

The two Applicants apply for bail pending trial. They are charged with shop-breaking, entry and larceny. The value of the goods alleged to be stolen, on the 26th of July 2004, is $111,260.74. Both Applicants have been held in custody since the 30th of July 2004.

The Applicants apply for bail on the grounds that there is a likelihood that both will attend court for trial, there is no history of resistance to arrest, the first Applicant has just had a baby son, and the second Applicant needs to undergo medical examination after alleged police brutality. The State opposes bail, pointing to the first Applicant’s 58 previous convictions and the second Applicant’s 5 previous convictions. Further, the State says that the first Applicant has a previous conviction for escaping from lawful custody, and that the second Applicant has one previous conviction for forfeiture of bail bond. The State further says that both Applicants are facing another charge of robbery with violence, and that there is a strong likelihood that they will interfere with prosecution witnesses.

Although both Applicants have a right to bail, the presumption can be rebutted where the State shows that there is a likelihood that the Applicant will not appear in court, or where it is not in the public interest to grant bail. In this case I have perused the previous convictions of both Applicants. Although counsel for the Applicants objects to the State tendering them, they are relevant to the question of whether they will respect their bail conditions. Section 19 of the Bail Act specifically provides for their relevance. There is no dispute about their contents.

The first Applicant has 41 recent previous convictions and they are all for house or shop breaking and robbery with violence. There are three convictions for escaping from lawful custody in 1997, 1998 and 2000 and several convictions for resisting arrest. Given this history of offending and of disobedience to lawful authority, it is clearly not in the public interest to release him on bail.

In respect of the second Applicant, the Magistrates’ Court file shows that he, on the 22nd of January 2004 failed to appear in court, causing a bench warrant to be issued. On the 26th of March 2004 his bail bond of $300 was forfeited.

In Case No. 1860/04, the learned Magistrate refused bail, giving full reasons in the presence of Mr. Kurisiqila for the prosecution, and Mr. Matawalu for the defence. He refused bail on the grounds that other co-accused were still at large, there was a history of escaping or disobeying court orders and that it was not in the public interest to allow bail. He did however order that the second Applicant be medically examined by a doctor of his own choice or at the CWM Hospital.

I agree with these reasons in respect of both Applicants and I refuse bail. However it is a matter for concern that the second Applicant has not yet been examined and order that the Prisons Department take him forthwith to the CWM Hospital for medical examination. An order will be signed today to that effect.

These applications are refused.

Nazhat Shameem
JUDGE

At Suva
16th August 2004