Naicker v State [2015] FJHC 671; HAM134.2015 (18 September 2015)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
MISCELLANEOUS JURISDICTION

CRIMINAL MISCELLANEOUS CASE NO: HAM 134 OF 2015

BETWEEN:

MUKESH NAICKER
APPLICANT

AND:

STATE
RESPONDENT

Counsel: Ms S. Nasedra for Applicant
Mr. A. Datt for Respondent

Date of Hearing: 10th September 2015
Date of Ruling: 18th September 2015

BAIL REVIEW RULING

1. The Applicant, Mr. Mukesh Naickerhas filed this Application for Bail Review, invoking jurisdiction conferred on this Court under Section 30(3) of the Bail Act.
   
2. The Application was charged with 1 count of Defilement of a young person between the age of 13 years and 16 years of age; 1 count of Abduction of person under 18 years of age with intent to have carnal knowledge; and 1 count of Criminal Trespass in Criminal Case No. 232/14 in the Magistrates Court of Rakiraki.
   
3. The Applicant had been granted bail by the Resident Magistrate of Rakiraki. One of the bail conditions was for the Applicant not to reoffend whilst on bail.
   
4. Whilst the Case No. 232/14 was pending, the Applicant was again charged with 1 count of 'Theft' in Criminal Case No. 55/15 also in the Rakiraki Magistrates Court.
   
5. Having taken judicial notice, the learned Magistrate had refused bail to the Applicant in Criminal Case No. 55/15 on the basis of Applicant's violation of bail conditions in Criminal Case No. 232/14, by bringing suspicion upon himself by being charged for 'Theft' in Criminal Case No. 55/15.
   
6. The Applicant then applied for a review of the Bail Ruling on the basis that his elderly and sickly father needed the Applicant's support.
   
7. In a written ruling dated 24th June 2015 ("the Bail Review Ruling"), the same learned Magistrate refused and dismissed the Applicant's application and fixed the matter for trial on 5th November 2015.
   
8. The Applicant has now filed this application for a review of the bail determination of the learned Magistrate of Rakiraki.
   
9. The essence of the Applicant's application is that the learned Magistrate did not properly consider the need for the Applicant to be at liberty for the purposes of caring for his elderly parents and dependents.
   
10. Power to review a bail determination made by a Magistrate is conferred on this Court by Section 30 (3) of the Bail Act of 2002.
    
11. Section 30 (7) of the bail Act reads as follows:
    

"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 fresh application, refuse to hear the review or application."

12. The power to review a decision includes the power to confirm, reverse or vary the decision [Section 30(9)].
    
13. According to Section 30 (10), the review must be by way of a re-hearing, and evidence or information given or tamed on the making of the decision may be given or obtained on review.
    
14. On a second or subsequent application for bail, Magistrates need only ask first whether there had been a material change in circumstances since the original order. If there had been no change, there was no need to look at the facts underlying the previous refusal of bail.
    
15. The Respondent submits that the learned Magistrate had reposed trust in the Applicant once and granted him bail in a prior case. The Applicant appeared before the learned Magistrate again on another charge. Thus the bail undertaking is violated.
    
16. The presumption in favour of the granting of bail is displaced where the person seeking bail has previously breached a bail undertaking or bail condition (Section 3(4) (a). It was reasonable for the learned Magistrate to form the opinion that the Applicant would commit another arrestable offence if released on bail again.
    
17. The learned Magistrate who reviewed his own previous bail decision has stated which I quote:
    

"I must state that although Accused's father's situation was never raised in the first application they are not new facts to the accused because the letter adduced showing his father's medical condition was dated 2011"

18. The learned Magistrate is both entitled and bound to take account not only of the change in circumstances which has occurred since the last occasion but also all circumstances which, although then existed, were not brought to the attention of the Court.
    

Regina v Notingham Justices, ex parte Davis; QBD (1981) QB.38,71 Cr.App.R.178 DC

The Lord Justice Donaldson said;

...The Court considering a fresh the question of bail is both entitled and bound to take account not only of the change in circumstances which has occurred since the last occasion but also all circumstances which, although then existed, were not brought to the attention of the Court.To do so is not to impugn the previous decision of the Court and is necessary in justice to the accused. The question is a little wider than 'Has there been a change?; it is Are there new considerations which were not before the Court when the accused was last remanded in custody?...

19. Even though the Applicant's father's condition was not new information to the Applicant, it had not been brought to the notice of the learned Magistrate in the first bail application. So the learned Magistrate is bound to take Applicant's father's medical condition into consideration when determining the second bail application.
    
20. It appears that the learned Magistrate had taken the Applicant's father's medical condition into consideration in the second bail determination and had taken the view that it was not a valid ground to review his previous bail ruling.
    

"As I see it this fact per se is not exceptional and not sufficient for me to consider reviewing my earlier decision".

21. The learned Magistrate in paragraph [4] of the Bail Review Ruling notes that almost all remand prisoners have families plus children who rely on them for survival and the Applicant's situation was no different. Hence the learned Magistrate had considered the Applicant's father's medical condition and had opined that there was no material change in the circumstances since the previous bail application.
    
22. Difficulty faced by the family, per se, whilst the accused is in remand, is not a valid ground for consideration of bail. Applicant's father is with his brother. There is no document to support his claim that his brother is so ill that he is unable to look after his father.
    
23. The learned Magistrate had apparently relied on Section 19 (1)(c) of the Bail Act, and considered the protection of the community is more important than the interest of the Accused. When determining bail for any person, the Courts must look at the potential inconvenience and/or risks that person would cause to members of the community if released.
    
24. According to Section 17(2) of the Bail Act, primary consideration in bail determination is the likelihood of the Applicant appearing in Court. However it is not the sole consideration. It will not be in the interest of justice if the Applicant keeps on appearing in Court violating existing bail conditions, posing a potential threat to the community. The Learned Magistrate was not incorrect to accord more weight to the protection of the community than the interest of Applicant.
    
25. In Isimeli Wakaniyasi v. The State (2010) FJHC 20; HAM 120/2009 (29th January 2010) Justice Gounder (referring to Section 19 of the Bail Act) states that:
    

"All three grounds need not to exist to justify refusal of bail. Existence of any one ground is sufficient to refuse bail."

26. As regards the public interest and the protection of the community, the accused is alleged to have committed the present crime whilst another case is pending against him in the Magistrate's Court. There is a high risk of reoffending if granted bail. Hence, refusal of bail would be in the interest of the public and to the protection of the community.
    
27. The Applicant has shown a tendency of reoffending which concerns the safety of others. Granting of bail to the Applicant would endanger the public interest and make the protection of the community more difficult.
    
28. The trial date in this matter has already been set for 5th November, 2015. This means that the applicant will not be remanded for too long before his case is heard. Hence there is minimal prejudice to the applicant. He is represented by Legal Aid Commission so his legal interests are addressed.
    
29. I am conscious of the right guaranteed to an accused under Section 3 of the Bail Act and the presumption of innocence in favour of an Accused. However, the right guaranteed under the Bail Act is subjected to the rights of other people to exercise their rights. Justice can only be achieved by striking a right balance between the rights of the Accused and the rights of the community.
    
30. I consider the bail application is frivolous and vexatious. I therefore, affirm the ruling of the Resident Magistrate of Rakiraki and refuse to grant bail to the applicant.
    
31. 30 days to appeal.
    

Aruna Aluthge
Judge

At Lautoka
18th September, 2015

Solicitors: Office of the Legal Aid Commission for Applicant
Office of the Director of Public Prosecution for Respondent