Goundar and Another v State [2010] FJHC 566; HAM098.2010 (10 December 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

Criminal Case No: HAC 154 of 201
Criminal Misc. Case No: 098 of 2010

BETWEEN:

1. SAI GOUNDAR
2. RONIL KUMAR

Applicants

AND:

THE STATE
Respondent

Date of Hearing : 09th December, 2010
Date of Ruling : 10th December, 2010

Counsel: Mr H A Shah – for Applicants
Mr M Korovou – for Respondent

BAIL RULING

1. This ruling is sequel to applications by the two accused-applicants (applicants) seeking bail pending trial in case No HAC 154/2010 before this court.

2. The two applicants were produced before the Magistrate's Court of Lautaoka on 11.11.2010 upon charges of committing the offences of 'Aggravated Burglary' and 'Theft' punishable under Sections 313 (1) and 291 of the Crimes Decree No 44 of 2009 respectively. The offences were alleged to have been committed on 06th November, 2010. The total value of household items, which was the subject matter of 'Theft', was around $ 26,679.00.

3. Learned Magistrate, having observed that the two applicants 'ha[d] breached conditions of bail over and over again' in that they were involved in the offences whilst on bail, refused to admit them to bail and transferred the case to High Court in terms of Section 191 of the Criminal Procedure Decree as the offences were indictable.

4. When the case was called on 06.12.2010, learned counsel appearing for the applicants made applications for bail stating that the applicants had been returned to be in the custody of Lautoka Police Station as the prison that they were ordered to be detained in, was overcrowded.

5. Submissions were invited from the State in light of the opposition by the learned counsel for the State against the grant of bail and the hearing was adjourned for 09.12.2010.

6. At the hearing, the main ground relied upon by the learned counsel in seeking bail for the applicants, was the conditions of the custody stating that they were appalling. Learned counsel submitted that the place, where the remandees including the two applicants were kept, was not spacious enough for their accommodation at all and that they did not have sufficient sanitary facilities. Learned counsel contended that the conditions of their detention themselves amounted to inhuman treatment and punishment.

7. Learned counsel for the State, in opposing the applications, underlined the undesirability of releasing the applicants on bail. The State appeared to have relied on the provisions of the Bail Act in terms of its Sections 17(2) and 19 (2) (c), which are made to ensure public interest and justice. Opposition by the State was premised on the past criminal history of the two applicants and their individual conducts of breaching conditions of bail and reoffending.

8. The State specifically submitted that criminal proceedings are pending upon similar charges of shop-breaking and larceny against the 1st applicant and few others in case Ref Nos. CF819/08, CF 09/10 and CF 521/08 where the next dates have been set for 21.12.2010, 14.12.2010 and 31.01.2010. As regards the 2nd applicant, it was submitted that criminal proceedings are pending for offences of shop breaking and larceny, Assault Occasioning Actual Bodily Harm and Robbery with Violence in case Ref Nos. 43/10, 724/10 and 812/08 respectively where the next dates have been set for 21.12.10, 13.12.10 and 10.01.11.

9. In light of the above factual positions, I propose to consider the applications for bail bearing in mind the applicable legal principles inter alia of presumption of innocence until proven guilty and statutory provisions under the Bail Act of 2002 (the Act).

10. Section 3 (1) of the Act provides:

'Every accused person has a right to be released on bail unless it is not in the interests of justice that bail should be granted'.

11. An analysis of the Section shows that the right of an accused person to be released on bail is not an absolute right. Instead, the Law requires the consideration of interests of justice for an accused person to qualify for bail and enjoy his 'right to be released on bail.' In terms of sub-section (2), the court has been vested with unrestricted power, as opposed to a police officer, to grant bail. The sub-section reads:

'Bail may be granted by a court or, subject to section 8(2), by a police officer.'

However, this power of court seems to me to be entailed with a discretion, which needs be exercised having regard to the provisions especially in Sections 3 (4), 13, 17, 18 and 19.

12. In dealing with the above provisions, I am also mindful of the salient feature in the Act that there is a presumption in favour of the granting of bail to an accused. However, a person, who opposes the granting of bail, may seek to rebut the presumption in terms of its sub-section (3). Grounds upon which the presumption could be rebutted are contained in the Section itself under sub-section (4); but, not limited to it under the scheme of the Act.

13. Sub-section (4) provides:

'The presumption in favour of the granting of bail is displaced where-

(a) The person seeking bail has previously breached a bail undertaking or bail condition; or

(b) The person has been convicted and has appealed against the conviction.'

14. Rebuttal of the presumption, which is in favour of an accused-person for bail, has been made possible even by the provisions of Section 18 of the Act insofar as refusal of bail is concerned. Section 18 significantly contains well-defined bases, which include:

(a) The likelihood of the accused person surrendering to custody and appearing in court;

(b) The interests of the accused person; and,

(c) The public interest and protection of the community.

15. Section 19 (1) of the Act further supplements the above Section with easily identifiable criteria if court or a police officer were to refuse bail. Section 19 accordingly provides grounds for refusing bail as follows:

'An accused person must be granted bail unless in the opinion of the police officer or the court, as the case may be-

(a) the accused person in unlikely to surrender to custody and appear in court to answer the charges laid,

(b) the interest 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.

16. In forming the opinion required by subsection (1) above, a police officer or court must have regard to all the relevant circumstances and in particular under Section 19(2). They are:

(a) As regards the likelihood of surrender to custody-

(i) The accused persons 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 dependants);

(v) Whether the person is under the age of 18years (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.

17. Court assumes that it is on the strength of these provisions that both counsel addressed court in advancing their respective cases. Learned Counsel for the applicants, with a view to enable court to form its opinion as set-out in Section 19(1) of the Act, stressed on the interests of the accused as laid down in Section 19(2) (b) and sought to challenge the conditions of custody, as referred to above. Learned counsel for the State, on the other hand, relied on Sections 19(1) (c) and 19 (2) (c) and resisted the applications for bail on the basis that, in view of the number of cases pending against the applicants, which is reflective of their criminal propensity, the release on bail will endanger public interest and make protection of the community more difficult.

18. The conditions of remand, as submitted by learned counsel, are certainly matters of grave concern for court to take notice of in considering application/s for bail. It is that ever degrading standards of prison or places of custody that perhaps paved the way for inclusion in the statute book of such condition as matter to be considered in dealing with applications for bail. Court, nevertheless, cannot and should not take the conditions of custody alone in making a determination in regard to bail. Instead, court should consistently and constantly consider the other criteria in order to ensure 'interests of justice' and' public interest' and the 'protection of community'.

19. Upon a careful consideration of the cases where similar charges are laid against the two applicants as set-out above, I am of the opinion that the granting of bail to the applicants would certainly have the inefficacy of affecting public interest and protection of the community at large. To put in a different perspective, the involvement of the applicants in this case, is a breach of an inherent and vital bail condition making them disentitled to the presumption to bail.

20. In the circumstances, I conclude that:

(a) . There is an apparent likelihood of the applicants not observing bail conditions in view of their previous breaches of bail conditions;

(b) . The likelihood of the applicants committing another offence/s whilst on bail in view of a number of cases pending against them is very high;

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

(d) . The presumption in favour of granting bail is displaced in view of their reoffending whilst on bail.

21. 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 applicants and more particularly conditions of their detention, 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.

22. After considering all circumstances, I hold that the applicants are not entitled to be released on bail. Applications are, accordingly, disallowed and bail is refused. I order the State to take early steps to expedite the trial, which I think would enable both parties to meet ends of justice.

10^th December.2010

Priyantha Nawana
JUDGE
High Court
Lautoka