Vula v State [2010] FJHC 469; HAM207.2010 (25 October 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

Crim. Misc. Case No. HAM207 of 2010

BETWEEN:

ISOA VULA
Applicant

AND:

THE STATE
Respondent

Hearing: 22 October 2010
Ruling: 25 October 2010

Counsel: Applicant in person
Mr. C. Ratakele for State

RULING

[1] The applicant is charged with one count of robbery with violence and two counts of act with intent to cause grievous harm. The trial is pending in the Magistrate's Court at Suva. He seeks bail from this Court after it was refused in the Magistrate's Court.

[2] The principles governing bail pending trial are contained in the Bail Act. Section 3(1) provides 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 right, section 3(3) of the Act declares that there is a presumption in favour of the granting of bail to an accused, 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 appearing in court to answer the charges against him. Bail can be opposed on three grounds provided by section 18(1) of the Act. Section 19(1) provides for three grounds for refusing bail. Section 19(2) sets out a series of considerations the court must take into account in determining the three grounds. Bail can be refused if the accused is a flight risk or if it is not in the accused's interest to be released on bail or it is not in the public interest to grant bail.

[3] In his affidavit, the applicant states that apart from this case, he had a case in which he was charged with burglary. While he was on bail in this case, he pleaded guilty in the other case and was sentenced to 18 months imprisonment. Due to his incarceration, he was not able to appear in this case and a bench warrant was issued against him.

[4] After he was released from prison, he was arrested on the bench warrant that was issued in this case. He was also charged with the offence of absconding bail in this case following his arrest. He explained to the learned Magistrate his reason for not appearing in this case, but it was not accepted by the court. His bail was revoked and he was remanded in custody.

[5] In the affidavit of D/Cpl. 2108 Tevita, which was filed by the State, he admits that the applicant was in prison from 19 March 2009 to 18 March 2010.

[6] However, D/Cpl. Tevita states that regardless of the applicant's reason for not appearing in this case, bail should be refused because he has previous convictions and therefore it is not in the public interest to grant him bail.

[7] I am not convinced that the State should be allowed to raise new grounds for opposing bail at this stage, particularly, when the grounds are not based on material change of circumstances.

[8] The applicant was granted bail and there is no evidence that he breached his bail conditions. When he was unable to attend court in this case after being incarcerated in another case, it was the responsibility of the prosecution to produce him in court on a production order. A production order was not sought by the prosecution nor was one issued by the Magistrate's Court for the applicant to appear in this case after he was imprisoned in another case. The applicant is not at fault for not appearing in this case.

[9] For the reasons I have given, I hold the applicant's bail was erroneously revoked by the Magistrate's Court. The applicant is granted fresh bail on the conditions:

1. He provide a surety of $500 bond from a person of good standing in the community.
   
2. He reside at a fixed address and not to change his address without the leave of the Magistrate's Court.
   
3. He report to a police station on every Saturdays between 6am – 6pm.
   
4. He must not interfere with the prosecution witnesses.
   
5. He must be of good behavior.
   
6. He must attend all court hearings, including his next appearance date in the Magistrate's Court.
   

[10] The State may apply for revocation of bail if there is a breach of any of these conditions.

Daniel Goundar
JUDGE

At Suva
25 October 2010

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