Turuva v State [2015] FJHC 702; HAM159.2015 (28 September 2015)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
MISCELLANEOUS JURISDICTION

CRIMINAL MISCELLANEOUS CASE NO: HAM 159 OF 2015

BETWEEN:

AISEA TURUVA
Applicant

AND:

STATE
Respondent

Counsel: Applicant in Person
Ms. Latu for the Respondent

Date of Hearing: 25th September, 2015
Date of Ruling: 28th September, 2015

BAIL RULING

1. The Applicant, who is charged with one count of Aggravated Robbery and one count of Resisting Arrest, has filed this Bail Application seeking bail pending trial.

2. The State has filed its response by way of an affidavit of D/SGT 2253 Nagata Batidegei of Namaka Police Station, in order to rebut the presumption in favour of bail. The State is objecting to bail to the accused on the grounds stated in the affidavit.

3. The presumption in Section 3 (3) of the Bail Act in favour of granting of bail can be displaced only when there are valid grounds for detention.

4. According to Section 3 (1) of the Bail Act, every accused has a right to be released on bail unless it is not in the interests of justice that bail should be granted.

Likelihood of the Accused Person Appearing in Court

5. According to Section 17 (2) of the Bail Act, the primary consideration in deciding whether to grant bail is the likelihood of the accused person appearing in court to answer the charge laid against him.
6. The charge against the accused is serious. However, seriousness of the offence per se does not preclude this court from releasing an accused person on bail pending trial.

7. Applicant has denied the charge and asserted that the case against him is unfounded and no credible evidence has been presented to Court against him. He relies heavily on the presumption of innocence as a ground for him to be at liberty pending trial.

8. SGT Nagata on the other hand, in his affidavit says that there is sufficient evidence against the Applicant and that he had been identified by the first witness, Ratu Epeli Naliva, in the crime scene. Applicant has challenged the statement of the witness Naliva. Applicant has said that witness Naliva has a grudge against him because his ex-wife Siteri Naka is now living with him in a de- facto relationship. Applicant asserts that the witness Nalivahas made a malicious statement to the Police to put him in trouble. State has not denied the claim with regard to the relationship the Applicant is said to be in with the main witness's ex-wife. Applicant has tendered documents to show that Naliva's wife had applied for a DVRO against her husband and the same had been granted. In these circumstances, reliance by Police on a statement by Naliva is highly questionable.

9. SGT Nagata has denied having obtained CCTV footage in the crime scene. However, the Applicant has tendered a copy of the search list prepared by the Police whereby CCTV footage of the crime scene had been obtained. If the CCTV footage is to be material evidence against the Applicant, the Police should have disclosed the same to the Applicant. So far, availability of such evidence has not been disclosed.

10. Proving the charge against the Applicant is a trial function. Court is not supposed, at this stage, to evaluate evidence against the Applicant. Said that, Courts must, however, when considering bail, be satisfied whether a strong case is made out against the accused so as to justify denial of his right to liberty enshrined in the Constitution.

11. I am of the view that the material placed so far before this court is not sufficient to conclude that there is a strong prima face case against the Applicant.

Interest of the Accused

12. As regards the interests of the Accused person, the Applicant states that he was brutally assaulted by the Police on his arrest and detention and is in need of medical care and treatments. The medical examination form supports the Applicant's claim. SGT. Nagata, in his affidavit, has not denied the allegation.

13. According to Section 17(1) of the Bail Act, when deciding whether to grant bail to an accused person, the court must take into account the time the person may have to spend in remand before trial, if bail is not granted. The Applicant has so far been in remand for nearly three months. Information and disclosures are yet to be filed. No immediate trial date is possible. I am of the view that granting of bail would be in the best interest of the Applicant.

Public Interest and the Protection of the Community

14. The State is heavily relying on the criminal record of the Applicant. It shows that the Applicant has 41 previous convictions during the period of past ten years. Except four, all other sentences are dated 18.06.2008. There are no previous convictions after 2008. Applicant has maintained a clear record after 2008, and has demonstrated his propensity to rehabilitate. Applicant has denied having a pending matter in Ba Magistrate Court in respect of a crime committed in 2014. So called pending matter bearing No. 31/2004 in the Ba Magistrates Court is mentioned in Previous Convictions Record filed by the Respondent.

15. I am of the view that imposition of strict bail conditions can guard against any interference with witnesses and interest of the public would not be at risk by granting bail to the Applicant.

16. For foregoing reasons, the application for bail pending trial is allowed.

17. I order the release of the Applicant subject to following bail conditions:

a) Personal surety bond for FJD$1,000.00 (non-cash)

b) Surety bond for FJD$2,000.00 with two sureties, (non-cash)

c) Report to the Nadi Police Station on every Saturday between 8.00 a.m. and 6.00 p.m.,

d) Must provide the address to court where the Applicant is intending to reside and must confine himself to that address until the conclusion of this case,

e) Not to interfere with prosecution witnesses.

f) Curfew to be imposed from 6.00 p.m. to 6.00 a.m.

g) Not to reoffend whilst on bail.

Aruna Aluthge
Judge

At Lautoka
28th September, 2015

Solicitors: Applicant in Person
Office of the Director of Public Prosecution for the Respondent