Vatunitu v State [2013] FJHC 25; HAM232.2012 (25 January 2013)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

Crim. Misc. Case No: HAM 232/2012

BETWEEN :

JONE VATUNITU
APPLICANT

AND :

THE STATE
RESPONDENT

COUNSEL : Applicant in Person
Mr. Alvin Singh for the State

RULING

1. The applicant JONE VATUNITU had applied for bail pending trial.

2. The applicant has been charged for one count of Aggravated Robbery contrary to section 311 of the Crimes Decree No: 44 of 2009.

3. That the applicant is seeking bail on the following grounds:

i) That he is the sole bread winner of the family.

iii) That the prison facility is unhygienic, unhealthy and overcrowded and is not suitable for human beings.

4. Section 3(1) of the Bail Act states that an accused has a right to be released on bail unless it is not in the interest of justice that bail should be 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.

5. 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)

6. 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.

7. 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.

8. 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.

9. The State opposes the bail. The State submits that the accused has a pending case for which a bench warrant has been issued by magistrate's court. Further the Applicant had failed to give details of his dependents such as names, ages and reasons why they are dependent on him.

10. The applicant is charged for one count of Aggravated Robbery and he is in remand since 5th of November, 2012.He is 25 years old.

10. State submits that the applicant has 03 previous convictions.

11. Trial date has been not been set in this case.

12. The primary consideration in deciding whether to grant bail is the likelihood of the accused person appearing in court to answer charges laid against him.

13. Considering all these factors into account, especially Applicant's previous convictions and pending Magistrate's Court case, it is not in the interest of justice to grant bail to the Applicant.

14. Bail refused.

15. 30 days to appeal.

P. Kumararatnam
JUDGE

At Suva
25/01/2013