State v Nonu [2010] FJHC 549; HAC 136.2010 (1 December 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No: HAC136 of 2010

STATE

V

JOSEPH NONU

Hearing: 30 November 2010
Ruling: 1 December 2010

Counsel: Mr. F. Lacanivalu for State
Accused in person

RULING

[1] This is a review of bail by the court's own motion.

[2] On 18 July 2007, the accused was convicted of robbery with violence following a trial before Shameem J and was sentenced to 5 years imprisonment (HAC106/06). He appealed against conviction and sentence to the Court of Appeal (AAU0079/07).

[3] On 2 October 2009, the accused was granted bail pending appeal by Byrne J. The appeal was adjourned to 16 November 2009 for hearing.

[4] On 16 November 2009, the accused failed to appear for hearing. The Court of Appeal revoked his bail and issued a bench warrant for his arrest.

[5] On 23 November 2009, the accused was arrested and charged with a fresh offence of robbery with violence (HAC32/10 & CF1498/09) and on 1 July 2010, he was granted bail by Magistrate's Court.

[6] Following his release, on 19 July 2010, the accused was arrested and remanded in custody on another fresh robbery with violence charge. The case was transferred to the High Court and was called before me on 16 August 2010. I refused bail for the reasons given by the Magistrate's Court to remand him in custody.

[7] On 30 September 2010, the accused appeared before the Court of Appeal for the hearing of his appeal in AAU0079/07. For reasons unclear from the file, the Court of Appeal did not hear the appeal but granted bail to the accused. Counsel for the State appearing in the Court of Appeal was unaware of this case and therefore the Court of Appeal was not informed that the accused was in custody on remand in another case. The Prison immediately released the accused following the Court of Appeal's decision granting bail pending appeal in AAU0079/07.

[8] On 12 November 2010, this case was called before Thurairaja J. The accused was present in court when the case was adjourned to 19 November 2010 before me. His Lordship did not make any order regarding remand because he was not informed that the accused was in custody on remand.

[9] On 19 November 2010, the accused failed to appear before me and a bench warrant was issued. This was published in a newspaper. The accused's brother upon reading the newspaper took and surrendered the accused to the Office of the Director of Public Prosecutions.

[10] The accused was presented before me on 24 November 2010 on the bench warrant I had issued earlier.

[11] These events show an unsatisfactory state of affairs caused by inadvertence of State Counsel. The Court of Appeal was clearly unassisted by the State Counsel, which led the Court to grant the accused bail pending appeal, without knowing that he was in custody on remand in another case pending in the High Court. The Prison was well aware of the remand warrant in the case before me. For reasons not disclosed to me, the Prison released the accused in breach of the remand warrant in this case when the Court of Appeal granted him bail in a different case. I have observed this to be a common occurrence in relation to bail when an accused has multiple cases. These occurrences will taint the public confidence in the justice system if they are not fixed. Of course, an accused with multiple cases will remain quiet and will not disclose his remand status when he appears in different courts. The State Counsel must act diligently and provide all the relevant information so that the court considering bail can arrive at a proper decision. The Prison must also act diligently before releasing an accused with multiple cases.

[12] The accused in this case has a history of breaching bail. I refuse to grant him bail. He will remain in custody pending trial.

[13] I direct the Officer in charge of the Criminal Registry to forward a copy of my ruling to the following:

1. Chief Justice

2. Resident Justice of the Court of Appeal

3. The Acting Chief Registrar

4. The Acting Chief Magistrate

5. The Director of Public Prosecutions

6. The Commissioner of Prisons

Daniel Goundar
JUDGE

At Suva
1 December 2010

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