Naidiri v State [2013] FJHC 449; HAM125.2013 (2 September 2013)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

MISCELLANEOUS CASE NO. HAM 125 OF 2013S

1. KELEMEDI NAIDIRI
2. SEMESA TIKOICINA
3. SITIVENI BAINIVALU
   

vs

THE STATE

Counsels : Mr. H. Rabuku for the Applicants
Mr. J. Niudamu for State
Hearing : 21st June, 2013
Ruling : 2nd August, 2013
Written Reasons : 2nd September, 2013

WRITTEN REASONS FOR REFUSAL OF BAIL

1. In the High Court Criminal Case No. HAC 153 of 2013S, the applicants faced the following information:
   

FIRST COUNT

Statement of Offence

AGGRAVATED ROBBERY: Contrary to Section 311 (1)(a) of the Crimes Decree 44 of 2009.

Particulars of Offence

KELEMEDI NAIDIRI and SEMESA TIKOICINA on the 28th day of March 2013, at Nasinu in the Central Division, stole 1 LG brand mobile phone valued at $650.00, 4GB USB valued at $27.00 and $45.00 cash all to the total value of $741.00 from AMZAD ALI.

SECOND COUNT

Statement of Offence

AGGRAVATED ROBBERY: Contrary to section 311 (1)(a) of the Crimes Decree 2009

Particulars of Offence

KELEMEDI NAIDIRI and SEMESA TIKOICINA on the 28th day of March 2013, at Nasinu in the Central Division, stole $50.00 cash and 1 x Alcatel Mobile Phone valued at $79.00 all to the total value of $129.00 from MITESH KRISHNA.

THIRD COUNT

Statement of Offence

THEFT OF MOTOR VEHICLE: Contrary to section 291 (1) of the Crimes Decree 44 of 2009.

Particulars of Offence

KELEMEDI NAIDIRI and SEMESA TIKOICINA on the 28th day of March 2013, at Nasinu in the Central Division, stole a taxi registration no. LT 1805 the property of MITESH KRISHNA.

FOURTH COUNT

Statement of Offence

AGGRAVATED ROBBERY: Contrary to section 311 (1) (a) of the Crimes Decree 44 of 2009.

Particulars of Offence

KELEMEDI NAIDIRI and SEMESA TIKOICINA on the 13th day of March 2013, at Nasinu in the Central Division, stole $300.00 cash and an Alcatel Mobile Phone valued $39.00 all to the total value of $339.00 from RAJESH CHANDRA.

FIFTH COUNT

Statement of Offence

THEFT OF MOTOR VEHICLE: Contrary to section 291 (1) of the Crimes Decree 44 of 2009.

Particulars of Offence

KELEMEDI NAIDIRI and SEMESA TIKOICINA on the 13th day of March 2013, at Nasinu in the Central Division, stole a taxi registration no. LT 7063 the property of RAJESH CHANDRA.

SIXTH COUNT

Statement of Offence

AGGRAVATED ROBBERY: Contrary to section 311 (1)(a) of the Crimes Decree 44 of 2009.

Particulars of Offence

KELEMEDI NAIDIRI and SEMESA TIKOICINA and SITIVENI BAINIVALU on the 26th day of March 2013, at Nasinu in the Central Division stole $300 cash, 1 x Alcatel Mobile Phone valued $80.00 all to the value of $380.00 from NARDEEP KUMAR KARAN.

SEVENTH COUNT

Statement of Offence

THEFT OF MOTOR VEHICLE: Contrary to section 291 (1) of the Crimes Decree 44 of 2009.

Particulars of Offence

KELEMEDI NAIDIRI and SEMESA TIKOICINA and SITIVENI BAINIVALU on the 26th day of March 2013, at Nasinu in the Central Division, stole a taxi registration no. LT 4962 the property of NARDEEP KUMAR KARAN.

2. The applicants (accuseds) first appeared in the Nasinu Magistrate Court on 2nd April 2013, and had been remanded in custody since then. They appeared in the High Court on 19th April 2013, and their remand in custody was continued. On 28th May and 7th June 2013, all three accuseds, through their counsel, applied for bail. They filed a notice of motion and affidavits in support. The State replied with affidavits from the police investigation officer, dated 19th June 2013. I heard the parties on 21st June 2013, and refused the accuseds' bail application on 2nd August 2013. I said I would give my reasons later. Below are my reasons.
   

3. It is well settled that, an accused person is entitled to bail pending trial, unless the interest of justice requires otherwise (section 3(1) of the Bail Act 2002). It is also well settled that, the primary consideration in deciding whether to grant bail is the likelihood of the accused person turning up in court to take his trial on the date arranged (section 17(2) of the Bail Act 2002). It is also well settled that, in order for the court to decide the above issue, it is mandatory for it to consider each of the factors mentioned in section 19 of the Bail Act 2002, that is, the likelihood of the accused surrendering to custody, the interest of the accused and the public interest and protection of the community.

Factor No. 1: The Likelihood of Accused Surrendering to Custody:

(i) Kelemedi Naidiri (Accused No. 1):

4. Mr. Naidiri is 28 years old, separated but living in a de facto relationship, with 2 children aged 9 years and 1 year 7 months. He is a subsistence farmer, and resided in Khalsa Road, Nasinu. He supported his family with the income he earned from his farm. According to the prosecution, Mr. Naidiri is facing serious multiple charges, and the evidence they have against him are strong. They said, he allegedly confessed to the offences. If found guilty on the charges, he faces a possible prison sentence or more than 10 years. Under this head, the accused's chances of bail are slim.

(ii) Semesa Tikoicina (Accused No. 2):

5. Mr. Tikoicina is 25 years old and single. He said, he was studying electrical engineering at Fiji National University. However, when caution interviewed by police on 31st March 2013, he said he was unemployed. He resided with his parents at Delaivalelevu, Nasinu. According to the prosecution, he is facing multiple aggravated robbery charges, and the evidence they have against him are strong. They said, he allegedly confessed to the crimes. If found guilty of the offences, he faces a possible sentence of more than 10 years imprisonment. Under this head, his chances of bail are slim.

(iii) Sitiveni Bainivalu (Accused No. 3):

6. Mr. Bainivalu is 21 years old, single and living with his parents at Khalsa Road, Nasinu. He was working in a nightclub as a security officer. He has no previous conviction. He had been supporting his family. According to the prosecution, the accused is facing a serious charge of aggravated robbery and theft of a motor vehicle. They said, he allegedly confessed to the crime. If found guilty, he faces a possible prison sentence of 6 years and above. Under this head, the acused's chances of bail are slim.

Factor No. 2: The Interest of the Accuseds' Person:

7. I will deal with all three accuseds together under this head. The accuseds will probably be tried next year. They have been remanded in custody for the last 5 months approximately. In any event, time spent in custody, while on remand will be deducted from their final sentence, if they are found guilty as charged. On the conditions of custody, Suva now has a new remand facility worth $11 million and the accuseds can enjoy new remand facilities. They have a counsel, and he is free to visit them in custody, to prepare their defence. In my view, there is no need for them to be at liberty, for other lawful reasons. They are not incapacitated. Under this head, the accuseds' chances of bail are slim.

Factor No. 3: The Public Interest and the Protection of the Community:

8. I will deal with all accuseds together under this head. The allegations against the accuseds are very serious. It was alleged that, they deliberately targeted taxi drivers in the Nasinu area, violently robbed them of their money, and steal their taxis. These had caused taxi drivers to be alarmed, and had affected their confidence to serve the public. In my view, although the accuseds are presumed innocent until proven guilty beyond reasonable doubt in a court of law, it is the public interest and the protection of the community that, they be remanded in custody, until further orders of the court. Under this head, their chances of bail are slim.
   

Conclusion:

9. Given the above, I denied the accuseds' bail application on 2nd August 2013, and the above are my reasons. They are remanded in custody until further orders of the court.
   

Salesi Temo
JUDGE

Solicitor for Applicants : H. M. Rabuku, Gledvil Law firm, Suva.
Solicitor for the State : Office of the Director of Public Prosecution, Suva.