Tabaloa v The State [2005] FJHC 335; HBM0041.2005L (4 November 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
MISCELLANEOUS JURISDICTION

CRIMINAL MISC. CASE NO. HBM0041 OF 2005L

ESALA TABALOA

v.

THE STATE

Applicant in Person
Mr. N. Nand for the State

Date of Hearing: 4 November 2005
Date of Ruling: 4 November 2005

RULING ON BAIL PENDING TRIAL

This matter comes before the court on application lodged by the accused seeking pending his trial in the Magistrates Court, Lautoka.

The application is based upon there being a presumption of bail in favour of the applicant.

The Court has had the benefit of being able to peruse the Magistrates Court file with respect to proceeding at the Lautoka Magistrates Court and also with respect to proceedings at the Levuka Magistrates Court.

It is apparent that a bench warrant issued from the Levuka Magistrates Court on the 2^nd June 2005 as a result of the applicant’s failure to comply with the terms of his bail at that Court. His appearance at the Lautoka Magistrates Court on the 22^nd August 2005 and charged with robbery of violence and resisting arrest and he was arrested with respect of the Levuka matter.

I am also informed by a State Counsel that there is a bench warrant in existence since February of this year issued from the Nadi Magistrates Court with respect to the applicant’s failure to comply with the bail conditions at that time. The presumption in favour of bail created by the provisions of section 3 of the Bail Act are displaced by the provision of section 3(4) of that Act where the person seeking bail has previously breached a bail undertaking or bail condition. It is apparent the applicant has breached a bail condition on at least 2 occasions and accordingly there is no presumption in favour of the granting of bail.

The primary consideration pursuant to section 17 of the Bail Act in determining to grant bail or not is the likelihood of the accused person appearing in Court answer the charges laid against him. It is indeed very difficult to answer or to decide that primary consideration in favour of an applicant that comes before the Court with at least 2 prior breaches of bail, that is at least on 2 prior occasions he failed to appear in Court to answer the charges laid against him.

I cannot therefore be satisfied that the accused is likely to appear in Court in answer to the charges.

The applicant says that his family is from Levuka and that he spends most his time in Levuka working and that he returned for Lautoka because his mother was ill. It is obvious from the matters before the Court that the applicant has

been charged with the commission of offences in Levuka, Nadi and Lautoka and from that one can readily conclude that he is not a person with a firm place of residence.

The offence with which the applicant is charged is indeed serious robbery with violence. It is an offence, which if the applicant is convicted would more likely than not carry a term of imprisonment for a term of years.

The applicant says that he requires bail dominantly to enable him to engage a lawyer and his application to the Legal Aid have been rejected.

I accept that the need to obtain legal advice and to prepare a defence is certainly a matter the Court must consider in application such as this. However the public interest also has to be considered and the failure of the applicant on 2 prior occasions to answer his bail is a matter that must be considered when one looks of the public interest.

The period of time that might be spent on remand is of course also a necessary consideration. I note that the matter is back before the Lautoka Magistrates Court on the 7^th November 2005 for mention and it is my understanding that there are no undue delay in that Court in obtaining a hearing date for a matter such as this. In the circumstances therefore and for the reasons that I have detailed, the application is refused and bail is refused.

JOHN CONNORS
JUDGE

At Lautoka
4 November 2005