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Ali v State [2018] FJHC 755; HAM130.2018 (20 August 2018)
IN THE HIGH COURT OF FIJI AT SUVA
In the matter of an application for bail pending trial.
RIZWAN ALI
Applicant
Vs.
STATE
Respondent
CASE NO: HAM. 130 of 2018
[HAC 203/2018]
Counsel : Ms. N. Mishra for Applicant
Ms. S. Tivao for Respondent
Hearing on : 30th July 2018
Ruling on : 20th August 2018
BAIL RULING
- This is an application for bail pending trial. The applicant is charged with one count of aggravated burglary and one count of theft
contrary to section 313(1)(a) and section 291 of the Crimes Act respectively. Aggravated burglary is an offence punishable with an
imprisonment term of 20 years and theft 10 years. It is alleged that the applicant committed the offences with another.
- The respondent objects to bail stating inter alia that;
- The applicant is charged with a serious offence;
- There is a strong case against the applicant;
- The applicant has a previous conviction for the offence of theft and he has claimed that he has no previous convictions in his bail
application;
- The applicant has a pending case before the magistrate court where he is charged for theft; and
- It is not in the public interest to grant bail to the applicant.
- According to the previous conviction report filed by the respondent, the applicant had been convicted for theft in 2014. According
to the copy of the charge statement submitted by the respondent, the date of the offence in the case pending before the magistrate
court is 08/09/17. As far as the issue of bail is concerned I have sufficient reasons to conclude on a balance of probability that
the applicant is likely to commit arrestable offences if he is granted bail. Further, I find that the applicant had breached a previous
bail undertaking. Therefore, the presumption in favour of the applicant for the granting of bail is displaced in this case pursuant
the provisions of section 3(4) of the Bail Act 2002 (“Bail Act”).
- Section 3 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 isterests of justice that bailould be granted..
(2) Bail may be gr by a court or, sur, subject to section 8(2), by a police officer.
(3) There is a presumption in favour o granofil  to a person but a personoppo opposes the granting of bai0;#160;may smay seek
to k to rebut the presumption.
(4) The presumption in favour of the granting of bail isplaced where-
(a) the person seeking&#ail heviously brey breached a&#d a ba60;undertaking or ba60;bail ition;
(b) the person has beenictedhas appealed agai against the conviction; or
(c) the person has been charged rged with a domestic violence offence.
In addition to asserting that he o previous convictions in the supplementary affidavit filed by the applicant, in the initianitial
bail application he had filed in person the applicant had left the question regarding pending cases blank. However, he had mentioned
about the pending case in his supplementary affidavit. As I have said in a previous case, a person is enlarged on bail by a court
on trust, upon relying on the undertaking made by that person that he/she will not abscond and will be present in court on all the
dates as directed by the court including the trial. Therefore, it is necessary for the person seeking bail to disclose all relevant
material within his/her knowledge that is relevant to the determination on whether or not to grant bail. I have reasons to conclude
that the applicant in this case had attempted to withhold relevant information apart from giving incorrect information regarding
his previous convictions.
Section 19(1) of the Bail Act reads thus;
An accused person must be granted bail unlesshe opinion of thef the police officer or the court, as the case may be-
(a) the accused person is unlikely to surrender to custody and appear in cto answer the charges laid;
(b) the interestsrests of the accused person will not be served through the granting of bail; or
(c) granting bail to the accusedon would ould endanger the public interest or make the protection of the community more difficult.
- The applicant had come come before this court at a time where the offences against property are prevalent in the country. Given the
fact that the applicant had allegedly committed this offence whilst he was on bail for another matter and the fact that the applicant
had not been forthright in providing correct information in his bail application, I am inclined to form the opinion that the applicant
is a flight risk and further, granting bail to the applicant would endanger the public interest and make the protection of the community more difficult.
- In the circumstances, I would refuse this ahis application.
Vinsent S. Perera
JUDGE
Solicitors;
Legal Aid Commission for the Applicant.
Office of the Director of Public Prosecutions for State.
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