Raileqe v State [2011] FJHC 366; HAA013.2011 (29 June 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal No: HAA013 of 2011

BETWEEN:

EREMASI RAILEQE
Appellant

AND:

THE STATE
Respondent

Hearing: 23 June 2011
Judgment: 29 June 2011

Counsel: Ms N. Nawasaitoga for Appellant
Mr. L. Fotofili for State

JUDGMENT

[1] On 18 March 2011, the appellant was sentenced to 3 months imprisonment after pleading guilty to breaching a bail condition in the Magistrates' Court. He filed a timely appeal against sentence to the High Court and on 5 May 2011, I granted bail pending appeal to him.

[2] Counsel for the State quite fairly brought to the attention of the court that the conviction of the appellant cannot stand because the charge disclosed no offence known to law.

[3] The charge reads:

Statement of Offence

BREACH OF BAIL: Contrary to Section 25(2) of the Bail Act 2002.

Particulars of Offence

Eremasi Raileqe, on the 16th day of October 2009 at Suva in the Central Division breached the Condition of bail by not complying with the condition imposed by the Suva Magistrate Court.

[4] Section 25(2)(b) of the Bail Act provides:

(2) A person who has been released on bail may be arrested without warrant –

(b)If a police officer reasonably believes that the person is likely to break any of the conditions of the bail, or has broken any of those conditions.

[5] In my judgment, section 25(2)(b) does not create an offence. The section gives a police officer the power to arrest without warrant an accused upon reasonable belief for breach of bail conditions.

[6] The offence of absconding whilst on bail is created by section 26 of the Bail Act. That section provides:

(1) A person who has been released on bail and who fails without reasonable cause to surrender to custody commits an offence and is liable on conviction to a fine of $2000 and 12 months imprisonment.

(2) The burden is on the defendant to prove that he or she had reasonable cause for failing to surrender to custody.

[7] The charge against the appellant was indeed defective. The offence alleged was breach of bail. There is no offence of breach of bail. The only offence under the Bail Act is absconding bail.

[8] Furthermore, the particulars failed to state the bail condition that the appellant had allegedly breached.

[9] The charge clearly did not disclose any offence. The entire proceedings were a nullity.

[10] For these reasons, I quash the conviction and sentence of the appellant. There will be no order for a re-trial.

Daniel Goundar
JUDGE

At Suva
29 June 2011

Solicitors:
Office of the Director of Legal Aid Commission for Appellant
Office of the Director of Public Prosecutions for State