Johansen v State [2010] FJHC 584; HAM091.2010 (9 December 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL MISCELLANEOUS JURISDICTION

CRIMINAL MISCELLANEOUS CASE NO: HAM 091 OF 2010

BETWEEN:

NELSON JOHANSEN
APPLICANT

AND:

STATE
RESPONDENT

Hearing : 06th December, 2010.

Ruling : 09th December, 2010.

Counsel : Applicant - Mr. T Terere

Respondent - Mr. M Korovou

BAIL RULING

[1] This is an application for bail pending trial in case bearing No HAC147/2010 before High Court in Lautoka.

[2] The accused-applicant, Nelson Johansen (the applicant), is alleged to have been involved in the commission of the offence of 'Aggravated Robbery' punishable under Sections 311 (1) (b) of the Crimes Decree No 44 of 2009 on 13.11.2010.

[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 to be released on bail...'

[5] Learned counsel for the State invited the attention of court to the fact that the applicant has had ten previous convictions for similar offences and that he had shown a criminal propensity. It was further submitted that granting of bail would endanger public interest and affect the protection of community. It was also submitted that there was an instance of breaching a previous bail order in September, 2009 resulting in the forfeiture of the bond. Learned State Counsel further submitted that the applicant had involved himself with the offence in this case whilst a suspended term was in operation until September, 2012.

[6] At the hearing before me on 06th December, 2010, learned counsel appearing for the applicant, 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. Learned counsel further submitted that the applicant would not reoffend and that he has paid in terms of penalties for previous offences.

[7] I have considered the contents of the application and the counsel's plea at the 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) The likelihood of the applicant committing another offence/s whilst on bail in view of his involvement in similar cases before is very high;

(b) 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,

(c) Previous breach of bail makes it uncertain that the applicant will appear in court to answer the charges.

[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. This conclusion is justified when one considers the fact that the applicant who has had a previous criminal record has drawn the 2nd and the 3rd suspects namely Robert Johansen, who appears to be his brother, and Gerard Muller also to the culture of crime in view of the leniency shown by court on previous occasions.

[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

09. 12. 2010