Waqa v State [2010] FJHC 256; HAM122.2010 (23 July 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL MISCELLANEOUS JURISDICTION

CRIMINAL MISCELLANOUS CASE NO: HAM 122 OF 2010

BETWEEN:

MIKAELE WAQA
APPLICANT

AND:

STATE
RESPONDENT

Hearing: 21st July, 2010.
Bail Ruling: 23rd July, 2010.

Counsel: Applicant - Ms. Vaniqi, S
Respondent - Ms. Lomani, State Counsel

BAIL RULING

[1] This is an application for bail pending trial in the case bearing No HAC. 101/2010 before High Court in Suva.

[2] The accused-applicant, Mikaele Waqa (the applicant), stands charged on two counts for having committed the offences of 'Aggravated Robbery' punishable under Sections 311(1)(a) of the Crimes Decree No 44 of 2009. The offences are alleged to have been committed on 23rd April, 2010 with two other accused, who too stand charged in the above case.

[3] The charges appear to stem from alleged acts of robbery by the applicant and the other two accused on Jitendra Kumar, SC 1229, a police officer, who was returning home after visiting another police officer, Asbin Nitesh, S/CPL 1238, on off-duty. The property, being police uniform and its accessories, were alleged to have been robbed from the possession of Jitendra Kumar after using force on him and Asbin Nitesh. Jitendra Kumar had sustained hurt. The value of the property has been assessed at $ 621.

[4] The applicant applies for bail pursuant to an application submitted by him whilst on remand where subjective considerations in the form of inconvenience resulted from his detention on remand have mainly been urged.

[5] The legal basis, however, has been founded on Section 3 (5) of the Bail Act, on the premise that the accused is below 18 years of age and that he must be released on bail on that ground. The applicant also relies on the principle that the primary consideration in granting bail is the likelihood of the person appearing in court.

[6] Learned Counsel, appearing in support of the application of the applicant, relied on the judgement in State v Namba (unreported: HAC 0012/2000) to emphasize on the point that the seriousness of the charge should not be the decisive factor in determining the issue of bail.

[7] The State, on the other hand, objected to the application for bail on the ground that the applicant is charged with a very serious offence, and the release of the accused on bail at this stage would result in undesired effects of affecting public order and threatening the protection of community.

[8] I have considered contents of the application of the applicant and written-submissions of counsel for the applicant and for the state.

[9] The law pertaining to bail is now governed by statutory provisions as contained in the Bail Act of 2002 and the release of an accused person on bail has been made the subject of an objective approach by court depending on facts and circumstances of each case. I, accordingly, hold that the observations made in the case of State v Naba (supra) on matters pertaining to bail based on common law principles, as summarized in that case, are inapplicable in present context.

[10] Section 3 of the Bail Act states 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...'. Such phraseology in the section, in my view, does not invest an absolute right on an accused-person to get released on bail.

[11] Conversely, Section 3 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 on bail...' 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.

[12] 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), Sections 19 (1) and 19 (2) of the Act.

[13] The above provisions equally apply even to a person under the age of 18 years in terms of Section 3 (5) of the Act, which reads:

'Bail must be granted to an accused person under the age of 18 years, unless-

(a) the person has a previous criminal conviction;

(b) the person has previously breached a bail undertaking or bail condition; or

(c) the offence in question is a serious one.'

(Emphasis added)

[14] Having taken into account the criteria laid down in the foregoing provisions, I conclude that 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'.

[15] 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.

[16] 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
23.07.2010