Kreimanis v State [2012] FJHC 1316; HAM86.2012 (6 September 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA

CRIMINAL [MISCELLANEOUS] CASE NO :
HAM 86 OF 2012

BETWEEN:

AINARS KREIMANIS
APPLICANT

AND:

STATE
RESPONDENT

Counsel Applicant : Mr Thompson. Lee
Respondent : Ms Seini Puamau, State Counsel

RULING
[BAIL]

1. The applicant is charged on the basis of the information dated 01 May 2012 of the Director of Public Prosecutions (DPP) for being in unlawful possession of 5, 627.9 grams of Methamphetamine, an illicit drug, contrary to Section 5 (a) of the Illicit Drugs Control Act of 2004 of the Republic of Fiji Islands (Fiji).
   
2. Disclosures, copy of which was served on the applicant by the DPP, reveal that the applicant was apprehended on his arrival at the Nadi International Airport, Fiji, from Hong Kong on 11 November 2011, whilst being checked for customs clearance. The baggage, which contained suspected substance, was claimed by the applicant.
   
3. The applicant is a Latvian national. This is his first visit to Fiji; and, he has no specific reason to visit Fiji or any specific point of contact.
   
4. The substance, which has now been found to be Methampetamine after analysis, was alleged to have been found in small packets concealed inside four picture frames possessed by the applicant in his baggage.
   
5. The applicant has been on remand since his apprehension on 11 November 2011. The delay for his trial was caused mainly by the absence of a Latvian interpreter. The applicant also took considerable length of time to arrange legal representation. Legal representation has now been finalized with a legal counsel being assigned from the Legal Aid Commission of Fiji.
   
6. In this application, the applicant is seeking bail citing the reasons of considerably-long detention on remand pending the trial; and, the common law principle of 'presumption of innocence' until proven guilty. The applicant also relies on the fact that he is entitled to bail as of right.
   
7. The state is objecting on the basis that the applicant has no community ties in Fiji; and, that he has no any point of contact. The state also submits that there is no acceptable surety to whose custody the applicant could reliably be entrusted to, in order to secure the presence of the applicant for the trial.
   
8. I have considered the submissions on behalf of the applicant and the state in light of the statutory provisions of the Bail Act 2002 of Fiji (Bail Act).
   
9. Bail is no longer a common law relief. It is, instead, governed by the well-defined and clearly regulated provisions of the Bail Act. The primary consideration in allowing bail in favour of an applicant is his likelihood of appearing in court to answer the charge/s against him as set-out under Section 17 (2) of the Bail Act. Moreover, it has been made clear that bail could be refused to an applicant under Section 19 (1) of the Bail Act, if the applicant is unlikely to surrender to custody and appear in court to answer the charge/s laid against him.
   
10. The applicant's guilt is yet to be proved on the well-established standard of proof beyond reasonable doubt under the adversarial system of criminal justice in Fiji. Nevertheless, court, at this stage, cannot disregard the applicant's apparent complicity in the commission of the offence. This is a matter for this court to take cognizance of in dealing with his plea for bail.
    
11. Any conviction for the offence will accompany a remarkably severe punishment of imprisonment for life or a fine of $ 1,000,000.00 or both especially in view of the enormously large quantity of the illicit drug alleged to have been possessed by the applicant.
    
12. The severity of the prescribed sentence together with the fact that the applicant is an alien will, in my view, offer him the necessary incentive to abscond court proceedings without answering the charge against him. I, in the circumstances, conclude that the applicant is a flight-risk.
    
13. Judicial authorities relating to flight-risks are many. In State v Tunidau [2003] FJHC 188, court underscored the principle that prima facie, the test for the grant or refusal of bail must always be whether the accused person will appear for trial. Similarly, in Tukai v State [2004] FJHC 235, it was held that, although the applicant had a right to bail, the presumption could be rebutted where the state shows that there is a likelihood that the applicant would not appear in court; or, where it was not in the public interest to grant bail.
    
14. Recently, in Xhemali v State [2011] FJHC 148, Madigan J., dealing with an identical case of a foreigner suspected of having been in possession of a large quantity of an addictive drug, held that it was definitely in the public interest that the perpetrators in possession of such a large consignments of illicit drug be brought to justice as soon as possible; and, to that end it would be perilous to admit such suspect-applicants to bail.
    
15. Accordingly, I conclude that the grant of bail to the applicant in this case is certainly not in public interest, which attracts paramount consideration in granting bail under the Bail Act of Fiji. In the result, bail is refused. Refusal of bail, even after ten-month long detention on remand, is within the statutory framework of the Bail Act - especially under Section 13 (4) of the Act – which empowers court to detain an accused on remand for a maximum period of two years before the trial in appropriate circumstances.
    
16. I hold that the interests of justice would be met by having an early date for trial at the conclusion of the pre-Trial Conference that is due on 06 September 2012.
    

Priyantha Nāwāna
Judge
High Court
Lautoka
06 September 2012