Mucunabitu v State [2013] FJHC 47; HAM281.2012 (12 February 2013)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
MISCELLANEOUS JURISDICTION

CRIMINAL MISCELLANEOUS CASE NO: HAM 281 OF 2012

BETWEEN :

JESE MUCUNABITU

AND:

STATE

Counsel : Applicant – In Person
Mr. T.Qalinauci for the State

Date of Ruling : 12th February 2013

BAIL RULING

[1] This is an application for bail filed by the Applicant above named.

[2] The Applicant submits following grounds:

(a) Overcrowding of prison;
(b) Engage private lawyer;
(c) Entitled for bail;
(d) Delay in proceeding of the case.

[3] State objects for bail on the following grounds:

(a) Applicant charged with serious offences namely aggravated robbery and theft;
(b) Offence alleged to have committed while on a suspended sentence;
(c) Applicant has 3 pending cases;
(d) Escaped from lawful custody on the 30th October 2012 and re-arrested.
(e) The Applicant was on bench warrant since September 2011 to February 2012. Subsequently in October he escaped from lawful custody;
(f) Public interest;
(g) Threat to the community.

[4] Section 3(1) of the Bail Act states as follows:

"3.(1) Every accused person has a right to be released on bail, unless it is not in the interests of justice that bail should be granted."

[5] Section 17(2) states as follows:

"17.(2)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."

[6] Section 18(1) state as follows:

"18(1) A person making submissions to a court against the presumption in favour of bail must deal with-

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

(b) the interests of the accused person;

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

[7] Section 19 states as follows:

(1) An accused person must be granted bail unless in the opinion of the police officer or the court, as the case may be,

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

(b) the interests 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.

(2) In forming the opinion required by subsection (1) a police officer or court must have regard to all the relevant circumstances and in particular-

(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 interests of the accused person-

(i) the length of time the person is likely to have to remain 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 be at liberty for other lawful purposes (such as employment, education, care of dependants);

(v) whether the person is under the age of 18 years (in which case section 3(5) applies);

(vi) 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 person to surrender to custody or to observe bail conditions;

(ii) the likelihood 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] Considering the objection in the light of above sections I find the Respondent State had successfully rebutted the presumption as required by Section 3(3) of the Bail Act.

[9] Considering all especially the fact that the Applicant escaped from lawful custody makes him a threat to the community hence enlarging him on bail is not to the best interest of the community. Therefore I refuse to grant bail.

[10] Application for bail is dismissed.

[11] 30 days to appeal to Court of Appeal.

S. Thurairaja
Judge

At Lautoka
12 February 2013

Solicitors: Applicant appeared in Person
The Office of the Director of Public Prosecution for State