Vuniyacawa v State [2015] FJHC 682; HAM135.2015 (23 September 2015)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
MISCELLANEOUS JURISDICTION

HAM NO. 135 OF 2015

BETWEEN:

TOMASI VUNIYACAWA
Applicant

AND:

STATE
Respondent

Counsel: Ms. S. Nasedra for the Applicant
Mr. A. Dutt for Respondent

Date of Hearing: 15th of September 2015
Date of Ruling: 23rd of September 2015

BAIL RULING

1. The applicant files this Notice of Motion pursuant to Section 30 (3) of the Bail Act, to review the bail ruling delivered by the learned Resident Magistrate of Rakiraki on the 16th of July 2015. This application for review is founded on the following ground that;

1. The interest of the accused was not considered when the learned Magistrate remanded him without fixing a hearing date, but gave a mention date to fix hearing for the 18th of November 2015.
   

2. The Notice of Motion is being supported by an affidavit of the Applicant, stating his grounds for this application. The Respondent opted not to file any affidavit in opposition. Hence, the matter was set down for hearing on 15th of September 2015. The learned counsel for the applicant and the respondent informed the court, that the hearing could proceed on the written submission. I accordingly directed the parties to file their respective submissions, which they filed accordingly. Having considered the notice of motion, affidavit of the applicant and the respective submissions of the parties, I now proceed to pronounce my ruling as follows.

3. The high court is vested with jurisdiction to review any decision made by a magistrate or a police officer in relation to bail pursuant to section 30 (3) of the Bail Act.

4. 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".

5. Section 30 (10) of the Bail Act states that;

"The review must be by way of a rehearing, and evidence or information given or tamed on the making of the decision may be given or obtained on review".

6. In view of section 30 (7) and (10) of the Bail Act, it appears that the hearing of a review application constitutes two stages. Firstly, the applicant is required to satisfy the court the existence of any special facts or circumstances to justify the making of the review application. The court, having satisfied the existence of such special facts or circumstances, then could proceed to hear the review application as stipulated under section 30 (10) of the Bail Act.

7. The scope of "the existence of any special facts or circumstances" has discussed in Regina v Nottingham Justices, Ex parte Davies (1981) QB 38, 71 Cr.App R 178 DC) in an inclusive manner, where Donaldson L.J held that

"The starting point must always be the finding of the position when the matter was last considered by the court. I would inject only one qualification to the general rule that justices can and should only investigate whether the situation has changed since the last remand in custody. The finding on that occasion that schedule 1 circumstances existed will have been based upon matters known to court at that time. 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?"

8. I now turn onto this instant case. The learned Magistrate has refused the bail of the Applicant on the ground of public interest. The learned Magistrate has considered the family background of the applicant, his pending actions before him and the breach of bail conditions in order to arrive his conclusion of refusing the bail.

9. This review application is founded on the ground that the learned Magistrate has remanded the applicant without fixing a hearing date and has given a mention date to fix the hearing on 18th of November 2015.

10. According to Section 13(4) of the Bail Act, the court must not keep an accused person in custody over 2 years or more and must release the accused on bail. Hence, the learned Magistrate is allowed to refuse bail if he is satisfied in accordance with the applicable considerations as stipulated under the Bail Act and the applicant is not in custody over a period of 2 years or more.

11. However, Section 13 (2) (a) of the Bail Act states that the hearing of the case must not be adjourned for more than 14 days without the consent of the accused person, if he is refused bail. There is no material evidence before me to confirm that whether the learned Magistrate has obtained the consent of the applicant, when he adjourned the matter to 18th of November 2015.

12. Having considered the reasons discussed above, I do not find the ground advanced by the Applicant falls within the scope of "special fact or circumstance" as stipulated under Section 30 (7) of the Bail Act. I accordingly refuse this Notice of Motion and dismiss it accordingly. Furthermore, I order to produce the Applicant before the Learned Magistrate in Rakiraki on 28th of September 2015 and direct the learned Magistrate to adjourn the hearing of the substantive action in accordance with Section 13(2) (a) and 13 (4) of the Bail Act.

13. The Deputy Registrar (Western) is ordered to serve the learned Magistrate a copy of this ruling.

R. D. R. Thushara Rajasinghe
Judge

At Lautoka
23rd of September 2015

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