IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL APPEAL CASE NO: HAA 018 OF 2013

BETWEEN:

JOSEVATA VALA ASAI
APPELLANT

AND:

STATE
RESPONDENT

COUNSEL: Mr. J. Savou for the Appellant 
Mr. S. Babitu for the Respondent/State

Date Hearing: 13/08/2013
Date of Judgment: 16/08/2013

JUDGMENT

01.	 Josevata Vala Asai (hereinafter "the appellant") was charged with one count of Theft, contrary to section 291 of the Crimes Decree 2009. The Charge was filed in the Tavua Magistrates' Court.

02. 	The particulars of offence are:

"Josevata Vala Asai, on the 06th day of June 2013 at Vatukoula, in the Western Division, stole 10 Power gel Valued at $28.10 and 10 Detonators valued at $84.70 all the total of $ 112.80 the property of Vatukoula Gold Mines Limited"

03. 	On 17th June 2013 he has filed a Bail Application in the Magistrates' Court of Tavua. 

04. 	On 1st of July 2013, the learned magistrate refused his bail application and remanded the Applicant pending hearing of the case.

05. 	Being aggrieved, the appellant has appealed against the refusal of Bail pursuant to section 31 of the Bail Act.

06. 	The Applicant submits that he needs bail to arrange a suitable lawyer to defend his case. Further he is the sole breadwinner of the family. He has two small children and his wife is not working. He looks after his elderly mother as well.

07.	State submits that the learned magistrate refused bail as the Applicant has a pending case in Suva Magistrate Court. This offence is committed while pending that case. There is a likely hood that the Applicant if released on bail would commit another offence.

08.	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 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.

09. 	In determining 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)

10. 	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.

11. 	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.

12.	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)

13.	Applicant submits that he had not admitted the charge in his caution interview statement. Further his pending case Robbery with Violence before Suva Magistrate Case has been ongoing since 2007 and he has attended regularly even during the working days.

14.	The State submits that the items mentioned in the charge are dangerous and destructive and could cause serious damages if given or taken by wrong hands. Further the country is about to undergo an election in near future. Possession of explosive by an individual may pose threat to this process.

15.	The Applicant has three previous convictions. This offence has allegedly committed while having a pending case. 

16.	Considering all the factors mentioned above I upheld the learned magistrate's decision of refusing the Bail Application of the Applicant filed before Magistrate Court. Therefore the Appeal is dismissed. 

17.	Considering the personal and family situation of the Applicant, I order his case should be heard as soon as possible by Tavua Magistrate Court. 

P.Kumararatnam
JUDGE

AT LAUTOKA
16 AUGUST 2013