State v Tuimouta [2008] FJHC 177; HAC078.2008 (18 August 2008)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 078 OF 2008

BETWEEN:

THE STATE

AND:

PAULIASI TUIMOUTA

Counsel: Mr. L. Fotofili for the State
Accused in Person

Date of Hearing: Friday 15th August, 2008
Date of Ruling: Monday 18th August, 2008

RULING

[1] The accused applies for bail pending trial. He is charged with the following offence:

Statement of Offence

ROBBERY WITH VIOLENCE: Contrary to Section 293(1)(a) of the Penal Code, Cap 17

Particulars of Offence

PAULIASI KURUKIBULU TUIMOUTA together with others, on the 27th day of May, 2008 at Samabula in the Central Division, robbed JITENDRA KUMAR s/o Ram Deo of cash FJD$34.94 and USD$1.00.

[2] On 28 May 2008, the accused appeared in the Magistrates’ Court at Suva and pleaded not guilty to the charge. He elected to be tried by the High Court and applied for bail. The prosecution objected to bail on the ground that the accused allegedly committed this offence while on bail in relation to another offence.

[3] The learned Magistrate refused bail on the ground that there is a likelihood of the accused committing another offence and that it is in public interest to remand him in custody pending trial.

[4] Under Section 3 of the Bail Act the accused has a heavy presumption in his favour. The onus is on the prosecution to rebut this presumption on balance of probability.

[5] Bail must not be refused unless the court is satisfied as to any one or more of the considerations set out in Section 19(1) of the Bail Act, namely:

(a) That the accused is unlikely to surrender to custody and appear in court.
(b) The interest of the accused will not be served through granting bail.
(c) Granting bail would endanger the public interest or make the protection of the community more difficult.

[6] The prosecution relies on the third limb of Section 19(1) to oppose bail, arguing the likelihood of the accused committing an arrestable offence on bail is real.

[7] Robbery with violence is an arrestable offence. The accused does not dispute that the allegation of robbery with violence arose whilst he was on bail in an unrelated matter. The accused submits he is entitled to the presumption of innocence. The accused, of course, is entitled to the presumption of innocence. This, however, does not mean that the court has to be satisfied of the guilt of the accused before the bail is refused.

[8] A bail hearing is not a trial. In a trial the prosecution carries the burden of proof to satisfy the guilt of an accused beyond a reasonable doubt. In a bail hearing the prosecution carries the burden of proof on balance of probability that the accused should not be granted bail.

[9] I have carefully considered the application for bail by the accused and the opposition to it by the prosecution. According to the affidavit of D/IP Mansoor Ali filed by the prosecution in support of its opposition to bail, the accused has five other dockets originating from the Samabula Police Station pertaining to four cases of larceny and one case of robbery with violence.

[10] I also take into account the allegation in this case arose whilst the accused was on bail. I am satisfied that there is a real possibility of the accused committing an arrestable offence while on bail. I am satisfied that the prosecution has rebutted the presumption in favour of bail on balance of probability.

[11] Bail is refused. The accused is remanded in custody pending trial.

Daniel Goundar
JUDGE

At Suva
Monday 18th August, 2008

Solicitors:
Office of the Director of Public Prosecutions, Suva for the Accused
Accused in Person