IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANOUS JURISDICTION

Crim. Misc. Case No: HAM 079/2012

BETWEEN:

JONE DI ATULAGA
APPLICANT

AND:

THE STATE
RESPONDENT

COUNSEL: Applicant in Person
Ms L Koto for the State

Date of Hearing: 30/07/2012
Date of Ruling: 06/08/2012

RULING

1. The applicant JONE DI ATULAGA had applied for bail pending trial.

2. The applicant has been charged for two counts of Aggravated Robbery contrary to section 311(1) (b) of the Crimes Decree No: 44 of 2009. 

3. That applicant applies for bail on the following grounds:

1.	That the applicant has been in remand for 2 years, 2 months and is reliant on section 13(4) of the bail Act 2002 which stipulates that the court must release the person in bail if he has been in custody for over 2 years or more and the trial has not begun.

2.	That the delay in this matter is caused by the prosecution.

3.	That the right to be released on bail is an absolute right pursuant to section 13(4) of the bail Act.

4.	That the Supervisor at the Naboro Centre has disregarded the court order for the Applicant to be issued warm clothes, jumper, pompom, socks and long pants. This also includes the doctor's recommendation that the food of low fat, low diet and fruits should be given to the Applicant. 

5.	That the Applicant is innocent until proven guilty but the state intends to remand him so that that he can be physically, mentally, spiritually tortured while in remand.

6.	That the Applicant's right to be visited has been ceased by the prison officials.

7.	That his right to access and read the news paper, magazine, story book and even case documents have been taken away from him.
 
3. Section 3(1) of the Bail Act states that an accused has a right to be released on bail unless it is in the interest of justice that bail should not granted. Consistent with this principle, section 3(3) of the act provides that there is a presumption in favour of the granting of bail to a person, but a person who opposes the granting of bail may seek to rebut the presumption. 

4. The primary consideration in deciding whether to grant bail is the likelihood of the accused person appearing in court to answer the charges laid against him or her. (17 (2)

5. Where bail is opposed, section 18 (1) requires that the party opposing bail addresses the following considerations:

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

(b) the interest of the accused person:

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

6. Section 19(1) of the bail act provides that an accused person must be granted bail by court unless:

(a) the accused person is unlikely to surrender to court custody and appear in court to answer 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.

7. Section 19(2) of the Act sets out a series of considerations that the court must take into account in determining whether or not any of the three matters mentioned in section 19(1) are established. These matters are:

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

(i) the accused person's 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 interest of the accused person –

(i) the length of time the person is likely to have remained 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 defendants);

(v) 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 to surrender to custody or to observe bail conditions;

(ii) the likely hood 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.

8. State opposes for bail. The Applicant has been refused bail by Justice Thurairaja in this matter on the 14th of July 2010.A large part of the grounds raised by the Applicant in this case had been addressed by court in the first bail application.(Cri.Misc.No:103 of 2010) 

9. The Applicant is heavily relying on section 13(4) for bail to be granted because he has been in remand custody for over 2 years. The Applicant failed to take into consideration, section 13(5)(6) and(7) of the bail Act 2002.Where it is clearly stated that "subsection 4 does not apply where the trial of the person has begun and the court has refused bail. In this case the Applicant has already pleaded not guilty to the charge and the trial date has been set by the court. Secondly he has been refused bail for this matter as well Justice Thurairaja. 

10. As per section 13(6) of Bail Act the period of two years does not include any period of delay caused by the fault of the Applicant. The court record clearly shows that the delay in this matter is by the Applicant himself. He had sought for time to apply to Legal Aid Commission for legal assistance, when that was refused he had sought time to appeal against the decision. Thereafter Applicant had moved time to arrange a private counsel. Another delay was Applicant's escape from lawful custody. 

11. The Applicant is also remanded and has been refused bail for another High Court matter.(HAC 079 of 2012) 

12. Considering all these factors into account it is not in the interest of justice to grant bail to the Applicant. 

13. Bail refused.

P.Kumararatnam
JUDGE

At Suva
06/08/2012