State v Drau [2004] FJHC 464; HAC0026.2004L (17 September 2004)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC0026 OF 2004L

THE STATE

v.

EPELI DRAU

Counsel: Mr. N. Nand for the State
Accused in Person

EXTEMPORE RULING ON BAIL APPLICATION

This is an application for bail pending trial. The applicant is charged with 2 counts of robbery with violence and 1 count of unlawful use of a motor vehicle. It is alleged that the offences were committed on the 12^th March 2003 at Lautoka and that the accused being armed robbed Westpac Bank of $22,498.76 on the 1^st count and on the 2^nd count whilst being armed, robbed one Lawrence John of $12,650.00.

It appears from the court record that the applicant has previously applied for bail before the Learned Magistrate both when the proceedings were before that court and at the time the proceedings were transferred to this court. Bail was refused. The applicant by written memorandum makes application for bail. The memorandum is dated 1^st September 2004 in support of that application, the applicant has made further oral submissions to the court.

The applicant submits that he requires bail to enable him to obtain and engage a lawyer to represent him at his trial. He says that he is married, that his wife is employed at Beachcomber Island and that he has been in custody for the last 16 months. He says he owns a farm and that he wants to work that farm or alternatively to use it to engage the services of the lawyer.

The primary consideration as expressed in section 17 of the Bail Act when considering any application for bail is the likelihood of the accused person appearing in court to answer the charge laid against him. In making a determination under section 19, I am obliged to consider not only the possibility of the accused appearing to answer his charge but also whether there will be any danger to public interest or the protection of the community, should the accused be granted bail.

I am obliged to look at his background, his community ties, his residence, his employment, his family situation and his previous criminal history and most particularly, I am required to consider any previous failure by the person to surrender to custody or to observe bail conditions and the nature and seriousness of the offences and of course the length of time he might be in custody pending determination of this matter.

I note that this matter will not come on for trial until sometime during 2005 and that the accused has been in custody since the time of his arrest in 2003.

The court record indicates and the applicant acknowledges that he previously failed to answer his bail and that he has escaped from lawful custody. He downplays the escape by saying that it was only for 2 days and that he turned up 2 days later.

The offences with which the accused is charged are indeed serious and I am advised those offences have been committed whilst the accused was on bail for a prior matter.

In the circumstances, it is not in my opinion in the public interest for the accused to be granted bail in the light of his previous record and in particular, in the light of him having escaped from lawful custody and having committed offences whilst on bail. I think those matters together with the serious nature of the offences are overwhelming and accordingly, bail is refused.

JOHN CONNORS
JUDGE

At Lautoka
17 September 2004