Nonu v State [2010] FJHC 79; HAM127.2009 (5 March 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

Crim. Misc. Case No: HAM127 of 2009

BETWEEN:

JOSEPH NONU
Appellant

AND:

THE STATE
Respondent

Hearing: 26th February 2010
Judgment: 5th March 2010

Counsel: Appellant in person
Mr. K. Waqavonovono for State

JUDGMENT

[1] On 23 November 2009, the appellant appeared in the Magistrates’ Court, charged with two counts of robbery with violence. He allegedly committed the offences with three others, against some of whom there are additional charges of larceny and resisting arrest. Bail was refused to all the accused persons upon arraignment.

[2] His subsequent applications for bail were refused. He appeals against the refusal of bail. In his submissions, the appellant highlights the relevant principles under the Bail Act.

[3] The appellant submits that there is a presumption in favour of bail because he has not been convicted of the charges and that he is innocent until proven guilty. He has no history of breaching bail conditions or absconding bail. He is a student at the University of South Pacific and wish to continue with his studies.

[4] The appellant says he has a fixed residential address and is willing to provide an acceptable surety and to report to a police station. The appellant says he had been in custody for almost four months. The appellant submits that his incarceration has hindered his ability to prepare a proper defence.

[5] The State submits that the Magistrates’ Court was correct to refuse bail to the appellant. The charges of robbery with violence are very serious, because if convicted, an imprisonment sentence is inevitable. The complainants are elderly women. The offences were allegedly committed in a gang and the incidents have instilled fear in the complainants. The prosecution case is strong because the appellant has voluntarily confessed to the offences. Finally, the State submits that the interests of the community to be protected from violence outweigh any personal interests of the appellant to be granted bail to continue his studies.

[6] The refusal of the bail was within the discretion of the Magistrates’ Court. Although the presumption is in favour of grant of bail, the presumption can be rebutted by the party opposing bail. In this case, the prosecution opposed bail on the ground of public interests because of the seriousness of the offences and the allegations of use of violence against vulnerable elderly victims.

[7] The appellant, of course, is innocent until proven guilty. However, he has confessed to the offences and a confession well proven is the best evidence. The likelihood of the appellant to abscond bail is high due to the strength of the prosecution case and the seriousness of the offences. The time that the appellant had already spent in custody is not unreasonable and the case could be heard this year. I am not satisfied that the appellant is impaired in his ability to prepare a defence due to his incarceration.

[8] I am satisfied the Magistrates’ Court did not abuse its discretion in refusing bail. Even if I am to consider bail afresh, I would refuse bail.

[9] The appeal against refusal of bail is dismissed. The appellant is advised that he has a right of appeal to the Court of Appeal within 30 days from the date of this judgment.

Daniel Goundar
JUDGE

At Suva
5th March 2010

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