Wakaniyasi v State [2010] FJHC 20; HAM120.2009 (29 January 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

Criminal Misc. Case No: HAM 120 of 2009

BETWEEN:

ISIMELI WAKANIYASI
Appellant

AND:

THE STATE
Respondent

Date of Hearing: 21st January 2010
Date of Judgment: 29th January 2010

Counsel: Appellant in person
Ms R. Drau for State

JUDGMENT

[1] The appellant appeals against the refusal of bail by the Nasinu Magistrates’ Court. He is charged with an offence of robbery with violence and his trial is pending in the Magistrates’ Court.

[2] An appeal against refusal of bail lies pursuant to section 31 of the Bail Act. Section 31 provides:

"(1) All grants or refusals of bail and all orders, conditions or limitations made or imposed under this Act are appealable to the High Court upon the application either of the person granted or refused bail or of the Director of Public Prosecutions.

(2) The High Court may –

(a) in its original jurisdiction grant or refuse bail upon such terms as it considers just;

(b) on an appeal under subsection (1), confirm, reverse or vary the decision appealed from."

[3] The appellant was charged on 26 October 2009. He appeared in the Magistrates’ Court on the same date and applied for bail. The prosecution opposed bail saying the appellant had previous convictions which included a conviction for escape from lawful custody. The prosecution further submitted that the charge arose while the appellant was serving a suspended sentence and that the community needs to be protected from an offence like robbery with violence.

[4] In response the appellant argued that he was the sole breadwinner in his family and that he had already been punished for his previous offences.

[5] The learned Magistrate refused bail saying she was not satisfied that the appellant will appear for trial because of his previous history of escaping from lawful custody. The appellant was remanded in custody.

[6] On his second appearance in the Magistrates’ Court, the appellant renewed his application for bail. This time he informed the learned Magistrate that his incarceration impaired his ability to contact legal aid and engage counsel.

[7] The prosecution opposed bail saying two witnesses have identified the appellant as the perpetrator and that he had two other pending cases of robbery with violence.

[8] The learned Magistrate refused bail saying there was no compelling reason to review her earlier bail decision.

[9] On 6 November and 26 November 2009, respectively, the appellant renewed his application for bail. He raised similar ground referring to the hardship to his family arising from his incarceration. On both occasions bail was refused.

[10] The appellant advised this Court that before his appeal was heard, he renewed his application for bail in the Magistrates’ Court but was refused bail for the same reasons.

[11] Section 19(1) of the Bail Act provides three broad grounds on which bail could be refused to an accused whose trial is pending. The three grounds are:

"(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."

[12] The factors relevant in assessing the above grounds are provided by subsection (2):

"(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 dependents);

(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."

[13] All three grounds need not exist to justify refusal of bail. Existence of any one ground is sufficient to refuse bail.

[14] The learned Magistrate found the applicant to be a flight risk because of his history of escaping from lawful custody and the seriousness of the charged offence. She further found the likelihood of the applicant re-offending to be real because of his previous convictions for robbery with violence offences. The learned Magistrate concluded that it would endanger public interest if the applicant will be released on bail.

[15] The refusal of bail to the appellant was within the discretion of the Magistrates’ Court. For this Court to interfere with that discretion, the appellant must demonstrate that the learned Magistrate –

(a) made an error of principle, or

(b) failed to take into account all relevant matters, or

(c) took into account irrelevant matters, or

(d) was plainly wrong.

(see R v. Payne [Burrett’s Case] [2003] 3 NZLR 638 (CA).)

[16] After considering the submissions of the appellant, I find the learned Magistrate made no error of law or fact in her exercise of discretion to refuse bail to the appellant. If this Court was to consider bail afresh, the Court would have arrived at the same conclusion that was arrived at by the learned Magistrate.

[17] Bail is refused. The appeal is dismissed.

Daniel Goundar
JUDGE

At Suva
29th January 2010

Solicitors:
Appellant in person
Office of the Director of Public Prosecutions for State