PacLII Home | Databases | WorldLII | Search | Feedback

High Court of Fiji

You are here:  PacLII >> Databases >> High Court of Fiji >> 2015 >> [2015] FJHC 1028

Database Search | Name Search | Recent Decisions | Noteup | LawCite | Download | Help

Nagata v State [2015] FJHC 1028; HAM217.2015 (23 December 2015)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
MISCELLANEOUS JURISDICTION


HAM NO. 217 OF 2015


BETWEEN:


TIMOCI NAGATA & OTHERS
Applicant


AND:


STATE
Respondent


Counsel : Mr. Aman Ravindra-Singh and Mr. Mark Anthony for Applicant
Mr. S. Babitu for Respondent
Date of Hearing : 7th of December 2015
Date of Ruling : 23rd of December 2015
BAIL RULING


  1. The Applicants files this Notice of Motion seeking an order that they be released on bail. The Notice of Motion is being supported by an affidavit of Timoci Nagata, stating the grounds of this application.
  2. Upon being served with the Motion, the Respondent appeared in court on 7th of December 2015. The learned counsel for the Respondent was directed to file his objection on or before 14th of December 2015. However, the Respondent failed to file their objection as per the direction. I then found that the learned counsel for the Respondent has filed an affidavit of Acting Assistant Superintended of Police Loraini Seru at the registry of the High Court on 18th of December 2015. The Applicants then filed an affidavit of Timoci Nagata in reply to the affidavit of objection filed by the Respondent. However, I find the affidavit of Timoci Nagata has no date in its jurat, thus making it invalid in law.
  3. The learned counsel for the Applicants and the Respondent consented to have the hearing of this motion by way of written submissions. I accordingly invited them to file their respective written submissions. The learned counsel for the Applicants informed the court that he will adopt the written submissions that he filed in HAM 212/2015 for this application. The Respondent filed their written submissions as per the directions.
  4. This is the third bail application of the first and fifth applicants. Both the applicants were granted bail by the learned Magistrate in Lautoka, but it was subsequently revoked by the High Court on 13th of August 2015 on the ground of public interest and protection of the community. The two applicants then made another bail application, which was also refused on the ground of no change of circumstances pursuant to Section 30 (7) of the Bail Act.
  5. The first bail application of the second applicant was refused by Justice Madigan on 16th of October 2015 on the ground of public interest and protection of community.
  6. Section 30 (7) of the Bail Act states that;

"A court which has power to review a bail determination, or to hear a fresh application under section 14 (1), may, if not satisfied that there are special facts or circumstances that justify a review, or the making of afresh application, refuse to hear the review or application".


  1. According to Section 30 (7) of the Act, a hearing of afresh bail application constitutes two components. The applicant is first required to satisfy the court that there are special facts or circumstances to justify the making an application afresh. If the court is satisfied with the first component, it would then proceed to hear the bail application afresh.
  2. Donaldson L.J. in Regina v Nottingham Justices (1981) QB 38, 71 Cr.App R 178 DC) has discussed the scope of " special facts or circumstances", where his lordship found that;

"the court considering afresh the question of bail is both entitled and bound to take account not only of a change in circumstances which has occurred since the last occasion, but also of circumstances which, although they then existed, were not brought to the attention of the court. To do so is not impugn the previous decision of the court and it is necessary in justice to the accused. The question is little wider that "has there been a change". It is "are there any new consideration which were not before the court when the accused was last remanded in custody?"


  1. This present bail application of the first, second and fifth applicants are mainly founded on the ground of their personal circumstances and the investigation has failed to locate any fire arms.
  2. I.P. Seru in his affidavit deposed that there is no physical evidence as to the involvement of any fire arms, nevertheless the investigators have found some photographs of fire arms. He tendered one of such photographs, where a person is seen carrying an object similar to a fire arms. However, IP Seru did not specify the identity of that person in the said photograph and the nature of the object that person is carrying. IP Seru further stated that the investigation is still going on in order to arrest the main suspect.
  3. Accordingly, it appears that the investigation is now mainly focused on the main suspect and the prosecution have finalised their position against the other suspects as they finally consolidated the number of files they initially filed into three main actions. In the meantime, the Applicants entered their pleas of not guilty for the charges and filed there grounds for voir dire in order to challenge the admissibility of their caution interviews in evidence. Hence, I find the recent development of the investigation and the progress of the substantive case are special facts or circumstances as stated under Section 30 (7) of the Bail Act.
  4. This is the first bail application of the remaining applicants.
  5. In pursuant of Section 13 of the Constitution and the Section 3 (1) of the Bail Act, every person has a right to be released on bail unless it is not in the interest of justice.
  6. The primary consideration in granting bail is the likelihood of the accused person appearing in court. Section 18 (1) of the Bail Act has stipulated that a person making an application against the presumption in favour of bail must deal with the following grounds, that;
    1. The likelihood of the accused person surrendering to custody and appearing in court,
    2. The interest of the accused person,
    3. The public interest and the protection of the community,
  7. Having considered the objections and the submissions filed by the respondent, it appears that their objections are founded on the grounds of unlikelihood of appearing in court, the interest of the accused person and of the public interest and the protection of the community.
  8. Section 19 (2) (a) (b)and (c) stipulates some of the circumstances on which the court has to consider in determining the issue of likelihood of surrender to custody, interest of the accused person and public interest. It states, that;
    1. As regards the likelihood of surrender to custody-
      • (i) The accused person's background and community ties ( including residence, employment, family situation and previous criminal history),
      • (ii) Any previous failure by the person to surrender to custody or to observe bail conditions,
      • (iii) The circumstance, 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 surrender to the police at the time of arrest, or as a contrary indication, was arrested trying to flee the county),
    2. As regards the interest 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 condition 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 dependents),
      • (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,
    1. As regard 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 arrest able offence while on bail,

17. The learned counsel for the Respondent submitted that the main suspect is still at large and there is a possibility that the Applicants may re-group with him and abscond from the hearing. The counsel further submitted that the Applicants were arrested while they were evading the police. Moreover, the investigation is still being carried out to arrest the main suspect and locate any fire arms.


18. On the contrary, the Applicants stated that the investigation has failed to find any fire arms or destructive arms. The investigation has now being completed. Having stated their family backgrounds and difficulties, the Applicants emphasised that they will abide by any strict bail condition imposed by the court. I.P. Seru in his affidavit did not dispute the family backgrounds of many applicants apart from first and second applicants.


19. The test of refusing bail is that the court is not required to satisfy that the circumstances stipulated under Section 19 will occur in the event of bail being granted. The court is only required to satisfy that there are substantial grounds to believe that they would occur.


20. Although, the Respondent objected that the Applicants will regroup with the main suspect, who is still at large, the Respondent has failed to provide any material facts before the court to believe that it would occur in the event of bail being granted.


21. The Applicants have been in remand since August 2015 and there is no any record of previous failure to surrender to custody or observe bail conditions. The hearing of the voir dire and substantive matter has not yet being fixed and it might go mid of 2016.


22. Under such circumstances, it is my opinion that strict bail conditions with close monitoring of the adherence of such conditions could protect the interest of the public and the protection of the community.


23. Having considered the reasons discussed above, I grant the applicants bail on following conditions.


  1. Each to be released on personal bail bond in the sum of $ 1,000,
  2. To provide two suitable sureties in the similar amount ( $ 1000),
  3. To live at the given address in the bail bond and not to move without leave of the court,
  4. To report to nearest police station twice a week ( Monday and Saturday),
  5. Not to leave Viti Levu until the trial is finished,
  6. Not to meet with more than three people at any given time apart from any urgent and important family occasion,
  7. Provided two telephone numbers for contact at any given time,
  8. Not to reoffend,
  9. Not to interfere with any prosecution witnesses,
  10. The Respondent is ordered to tender a progressive report of the bail adherence of the Applicants on the next mention date.


R. D. R. Thushara Rajasinghe
Judge
At Lautoka
23rd of December 2015
Solicitors: Aman Ravindra- Singh Lawyers for Applicant
Office of the Director of Public Prosecutions


PacLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.paclii.org/fj/cases/FJHC/2015/1028.html