Nasara v State [2010] FJHC 582; HAM092.2010 (7 December 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA

CRIMINAL MISCELLANEOUS JURISDICTION

CRIMINAL MISCELLANOUS CASE NO: HAM 092 OF 2010

BETWEEN:

JONE NASARA
APPLICANT

AND:

STATE
RESPONDENT

Hearing: 02nd December, 2010.

Ruling: 07th December, 2010.

Counsel: Applicant - In person.

Respondent - Mr. M Korovou

BAIL RULING

[1] This is an application for bail pending trial in case bearing No HAC143/2010 before High Court in Lautoka.

[2] The accused-applicant, Jone Nasara (the applicant), is alleged to have been involved in the commission of the offence of 'Aggravated Burglary' and 'Theft' punishable under Sections 313 (1) (a) and 291(1) respectively of the Crimes Decree No 44 of 2009. The offences are alleged to have been committed with two others.

[3] The applicant applies for bail pursuant to an application made by him whilst on remand.

[4] The legal basis has been founded on the common law principle of presumption of innocence before being found guilty and under the provisions of the Bail Act with regard to the '... right be released on bail...'

[5] Learned counsel for the State invited the attention of court to the fact that the applicant had committed the offence while he was on bail for another offence. It was further submitted that the applicant had failed to appear in court in compliance with bail in that case.

[6] At the hearing before me on 02nd December, 2010, the applicant appearing in person, urged that he be released on bail on strict conditions in view of the matters placed before court in his application. The contents of the application focused on the inconvenience that he has got to suffer because of his detention in custody.

[7] I have considered the contents of the application and his plea at the oral hearing along with submissions of the learned State 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 Sections 3(4) (a) and 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 breach of bail conditions;

(b) The likelihood of the applicant committing another offence/s whilst on bail in view of his involvement in another case;

(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'; and,

(d) The presumption in favour of granting bail is displaced in view of his failure to attend court, whilst 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 to 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.

[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

07. 12. 2010