State v Ali [2004] FJHC 487; HAC0025, HAC0020, HAC0019.2004L (15 October 2004)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NOS. HAC0025 OF 2004L,
HAC0020 OF 2004L & HAC0019 OF 2004L

THE STATE

v.

AIYAZ ALI

Mr. K. Tunidau for the State
Accused in Person

Hearing & Ruling: 15 October 2004

RULING ON BAIL PENDING TRIAL

In these matters, the appellant seeks bail pending trial. It is perhaps necessary to set out the offences prior to considering the application.

The Matter No. 025/2004, the accused is before the court on 4 counts of robbery with violence, alleged to have been committed on the 21^st September 2003 and 1 count of resist arrest alleged to have been committed on the 25^th September 2003.

The Matter No. 020/2004, the accused is before the court on 1 count of robbery with violence, alleged to have been committed on the 17^th October 2003.

The Matter No. 019/2004, the accused is before the court on 1 count of robbery with violence, alleged to have been committed on the 23^rd October 2003.

The accused is therefore before the court and seeks bail pending trial on 6 counts of robbery with violence.

There is a presumption in favour of bail, however in considering any application, it is necessary for the court to consider the issues in section 17 of the Bail Act 2002 and in particular, whether the accused person is likely to appear to answer the charges against him. If bail is to be refused then of course the matters enumerated in section 19 must be considered.

Is the accused likely to surrender and appear in court to answer the charges?

In considering this, I am required by subsection 2 of section 19 to consider the accused persons background, community ties, residence, employment, family situation and previous criminal history. His previous criminal history is that there are some 45 convictions or may be 47 which include escapes from lawful custody and a breach of bail undertaking. There is nothing to suggest that he has any fixed place of abode or any community ties.

The section also requires and I take into account any previous failure by the person to surrender to custody or to observe bail condition.

The accused has breached his bail previously and was only arrested after a car chase, which resulted in an accident, which was subsequent to the commission of an offence of robbery with violence whilst the accused was on bail for other similar offences and as I have said, there is a record of escape from lawful custody.

The circumstances nature and seriousness of the offences have to be taken into account. The offences have been committed in company with others and are indeed serious.

Robbery with violence is an offence where the tariff in this country ranges between 6 to 10 years. It is reasonable to conclude that the starting point at least for this accused, for these offences if convicted would be at the top end of the range. There is nothing in his record which would mitigate to significantly reduce such a term.

The strength of the prosecution case has to be considered and whilst there is little before me to enable a consideration of that, what is before me certainly suggests that there is a strong prosecution case.

The severity of the likely penalty I have already dealt with. Any specific indications such as the persons voluntarily surrender to the police. The accused's behaviour in the past certainly is an indicia to refuse bail.

I am also required under section 19 to take into account the interests of the accused person. In doing that, I am required to consider the length of time he would be or may be in custody before the case is heard.

These matters are listed for call over from the 2^nd November 2004 and I do not anticipate they will be listed for hearing until at least the middle of 2005.

I am required to consider the conditions of custody. The accused submits that he is held in inhumane conditions and I take that into account. The need of the person to obtain legal advice and to prepare his defence is another matter and I take that into account. But I emphasize that is not a matter that overrides the other considerations, it is merely a matter and these are merely matters to be taken into account and given appropriate weight.

The need for the accused to be at liberty for employment, education or the care of somebody - there is nothing before me that suggests that the accused needs to have his liberty for these purposes. There is nothing to suggest that he needs physical protection.

Lastly, I am required to take into account the public interest, the protection of the community and in doing so, I am obliged to consider any previous failure of the accused to surrender to custody or observe bail conditions. I previously referred to his failure in this regard, his failure to observe bail conditions, his failure to present himself and his escape from lawful custody.

The likelihood of the person interfering with the evidence or witnesses or assessors or any specially affected person - there is nothing before me to suggest that this may occur and lastly, the likelihood of the accused committing an arrestable offence while on bail.

The history of the accused is such, that one can only conclude that there is a likelihood of commission of further offences should bail be granted, as that is what has occurred in the past. In the circumstances therefore, there is no conclusion that can be drawn other than to refuse bail with respect to the matters and on each matter, bail is refused and you are remanded to appear at this court at 9.30am on the 2^nd November 2004 when the matters will be listed for mention.

JOHN CONNORS
JUDGE

At Lautoka
15 October 2004