Livanasiga v State [2010] FJHC 246; HAM132.2010 (13 July 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL MISCELLANEOUS JURISDICTION

CRIMINAL MISCELLANOUS CASE NO: HAM 132 OF 2010

BETWEEN:

INOKE LIVANASIGA
APPLICANT

AND:

STATE
RESPONDENT

Hearing: 12th July, 2010.
Bail Ruling: 13th July, 2010.

Counsel: Applicant - Mr. Jitoko S.
Respondent - Ms. Lomani A.

BAIL RULING

[1] This is an application for bail pending trial in the case bearing No HAC. 59/2010 before the High Court in Suva.

[2] The accused-applicant, Inoke Livanisiga (the applicant) stands charged for having committed the offences of ‘Robbery’ of a ‘Nokia’ mobile phone and of ‘theft’ of a van on 15th February, 2010 punishable respectively under Sections 311(1)(a) and 291 (1) of the Crimes Decree No 44 of 2009. The said offences are alleged to have been committed with Veresa Naceno, the 1st accused in the case. The applicant is also charged along with the 1st accused and Ronald Jeremaia Colati and Abdul Sattar, the 3rd and the 4th accused respectively in the same case for having committed the offence of ‘Aggravated Robbery’ in respect of $ 35,000.00, an offence punishable under Section 311 (1) (b) of the Crimes Decree.

[3] The applicant applies for bail pursuant to an affidavit dated 21st June, 2010 where subjective considerations have mainly been urged on his behalf in the form of inconvenience resulted from his detention on remand.

[4] The legal basis, however, has been founded on the premise of Section 12 (a) of the Bail Act, 2002 having been reliant on the principle that the primary consideration in granting bail is the likelihood of the person appearing in court.

Section 12 (a) reads:

‘ A magistrate or a judge when not sitting as a court may at any time-

Grant bail to a person brought or appearing before the magistrate or judge and accused of an offence;

...’

[5] The State objected to the application for bail on the ground that the applicant has had criminal propensity. Learned counsel for the State invited the attention of court to five previous convictions against the applicant. Previous convictions referred to above, relate to two instances of ‘ Forfeiture of Bail Bond’ in January, 2001 and in June, 2008, possession of an offensive weapon in 2001, two instances of ‘larceny’ in June, 2008, as presented to court by Mr Ajay Singh, Acting Inspector of Nabua Police Station, Suva in his affidavit dated 9th July, 2010. The State has further submitted that the offences, as charged, were very serious in nature and have the undesired effects of affecting public order and threatening the protection of community.

[6] At the hearing before me on 12th July, 2010, learned counsel appearing for the applicant, submitted that Abdul Sattar, who is a co-accused in the case, has already been released on bail. He urged, in the circumstances, that the applicant too be released on bail on strict conditions in view of the matters placed before court in the affidavit of the applicant.

[7] I have considered the contents of the affidavits of the applicant and Mr Ajay Singh and submissions of the learned counsel bearing in mind the legal phraseology that an accused person has ‘a right to be released on bail’ and that ‘there is a presumption in favour of the granting of bail’ under Section 3 of the Bail Act.

[8] Section 3 conversely contains provisions whereby ‘interests of justice’ have been declared as a necessary factor to be considered by court in affording ‘the right to be released’ to an accused person under the Act. Moreover, the presumption favouring the accused could be rebutted by a person opposing the grant of bail by the criteria laid down in Section 18 (1) of the Act, which include the public interest and the protection of community.

[9] While the scheme of the Act provides a basis for a person opposing bail to rebut the presumption favouring an accused-person under Section 18(1) read with section 3 (3) of the Act, I am of the view that court is also invested with power independent of such opposition by a party to consider issues concerning ‘interests of justice’ and ‘public interest’ under Section 3(1) and Sections 19 (1) and 19 (2) of the Act.

[10] Having taken into account the criteria laid down in the foregoing provisions, I conclude that:

(a) There is an apparent likelihood of the applicant not observing bail conditions in view of his previous conduct as set-out in the affidavit of Mr Ajay Singh;

(b) The likelihood of the applicant committing another offence/s whilst on bail in view of his previous convictions, which has the effect of endangering the community;

(c) The circumstances, nature, seriousness of the offence are such that ‘interests of justice’ and ‘public interests ‘ override the ‘right [of the applicant] to be released on bail’.

[11] In coming to the above conclusions, I have not lost sight of the provisions of Section 19 (2) (b) with reference to the interests of the accused-person to which court should essentially pay due consideration in dealing with an application for bail. However, my consideration of the matters as set-out in Section 19 (2) (b) are outweighed by the demands of interests of justice and public interest as enumerated above.

[12] I have examined the case record as regards the contention that the 4th accused, being a co-accused in the case, has already been released on bail; and, such release should accrue to the advantage of the applicant. I find that the learned Magistrate sitting in Suva has granted bail to the 4th accused - even though he was also charged with the ‘aggravated robbery’- after duly considering his health condition, which required immediate and proper medical attention. The learned Magistrate, however, has been quite alive to the nature, the circumstances and the gravity of offences against all accused in general. I am of the view that the learned Magistrate seems to have been persuaded by the consideration as set-out above and has rightfully distinguished the case against the 4th accused on rational reasoning, which is justifiable in law.

[13] I propose to place on record that the view taken by the learned Magistrate and by this court represents uniformity and consistency in judicial approach, which are important in any judicial system to safeguard interests of justice and public interest more particularly in matters pertaining to criminal law.

[14] Having considered all the circumstances, I hold that the applicant is not entitled to be released on bail. Application is accordingly disallowed and bail is refused.

PRIYANTHA NAWANA
JUDGE
13.07.2010