Vunivesi v State [2010] FJHC 139; HAM057.2010 (26 April 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

Misc. Case No: HAM057 of 2010

BETWEEN:

SAULA VUNIVESI
NAVIN CHAUDHARY
Applicants

AND:

THE STATE
Respondent

Hearing: 22nd April 2010
Ruling: 26th April 2010

Counsel: Applicants in Person
Ms R. Drau for State

RULING

[1] This is an application for bail pending trial. The applicants are jointly charged with another person with two counts of aggravated robbery. The offences were allegedly committed on 13 March 2010. The victims are husband and wife and the allegations arose from one transaction. The allegations are that the applicants entered the house of the victims at night and robbed substantial cash and valuable items after threatening them with a cane knife, pinch bar and screw driver. Upon arraignment, the applicants have pleaded not guilty to the charges.

[2] The State opposes bail on the grounds contained in the affidavit of DC 3650 Semi filed herein.

[3] Section 3(1) of the Bail Act states that an accused has the right to be released on bail unless it is not in the interests of justice that bail should be granted. Consistent with this principle, section 3(3) of the Act provides that there is a presumption in favour of the granting of bail to a person, but a person who opposes the granting of bail may seek to rebut the presumption. In determining whether a presumption is rebutted, the primary consideration in deciding whether to grant bail is the likelihood of the accused person appearing in court to answer the charges laid against him or her (section 17(2)).

[4] Where bail is opposed, section 18(1) requires that the party opposing bail addresses the following considerations:

(a) the likelihood of the accused person surrendering to custody and appearing in court;

(b) the interests of the accused person;

(c) the public interest and the protection of the community.

[5] Section 19(1) of the Bail Act provides that an accused person must be granted bail by a court unless:

(a) the accused person is unlikely to surrender to custody and appear in court to answer the charges laid;

(b) the interests of the accused person will not be served through the granting of bail; or

(c) granting bail to the accused person would endanger the public interest or make the protection of the community more difficult.

[6] Section 19(2) of the Act sets out a series of considerations that the court must take into account in determining whether or not any of the three matters mentioned in section 19(1) are established. These matters are:

(a) as regards the likelihood of surrender to custody –

(i) the accused person’s background and community ties (including residence, employment, family situation, previous criminal history);

(ii) any previous failure by the person to surrender to custody or to observe bail conditions;

(iii) the circumstances, nature and seriousness of the offence;

(iv) the strength of the prosecution case;

(v) the severity of the likely penalty if the person is found guilty;

(vi) any specific indications (such as that the person voluntarily surrendered to the police at the time of arrest, or, as a contrary indication, was arrested trying to flee the country);

(b) as regards the interests of the accused person –

(i) the length of time the person is likely to have to remain in custody before the case is heard;

(ii) the conditions of that custody;

(iii) the need for the person to obtain legal advice and to prepare a defence;

(iv) the need for the person to beat liberty for other lawful purposes (such as employment, education, care of dependants);

(v) whether the person is under the age of 18 years (in which case section 3(5) applies);

(vi) whether the person is incapacitated by injury or intoxication or otherwise in danger or in need of physical protection;

(c) as regards the public interest and the protection of the community –

(i) any previous failure by the accused person to surrender to custody or to observe bail conditions;

(ii) the likelihood of the person interfering with evidence, witnesses or assessors or any specially affected person;

(iii) the likelihood of the accused person committing an arrestable offence while on bail.

[7] In considering these matters, the court must bear in mind the presumption of innocence.

[8] The 1st applicant is 33 years old. He is married with children. He says he is a farmer and offers his elder sister as surety. He has 41 previous convictions since 1994. Two convictions are for the offence of robbery and five convictions are for escaping from lawful custody. His last conviction was in 2008 for resisting arrest. He has two other pending cases.

[9] The 2nd applicant is 36 years old. He does not have any dependent. He says he is self employed. He offers his brother as a surety. He has 36 previous convictions since 2005. His last conviction was 2008 for house breaking entering and larceny. Two convictions are for escaping from lawful custody.

[10] The prosecution case is based on admissions made to the police by the applicants. The applicants say the admissions were obtained by assaults and threats by the police. The voluntariness of the admissions is a trial issue. However, admissions well proven can be strong evidence.

[11] The maximum penalty prescribed for aggravated robbery is 20 years imprisonment. If convicted, the applicants are exposed to lengthy imprisonment sentences.

[12] At the hearing, the applicants raised an issue regarding the overcrowding and conditions of the remand centre.

[13] I accept that inhumane remand conditions can be a ground for bail, but in the present case, there is no evidence of overcrowding or poor prison conditions.

[14] In my judgment, given the previous escaping history of the applicants, there is a real likelihood that the applicants will not answer their bail when called upon to do so. I also think that granting bail would endanger the safety of community because of their criminal history.

[15] Bail is refused to both applicants. The applicants are advised that they have a right of appeal to the Court of Appeal against this decision.

Daniel Goundar
JUDGE

At Suva
26th April 2010

Solicitors:
Applicants in person
Office of the DPP for State