State v Kirikiti [2010] FJMC 132; HAC139.2010 (22 September 2010)

IN THE RESIDENT MAGISTRATE'S COURT OF SUVA

Criminal Case No HAC: - 139/10

STATE

V

ALIFASI KIRIKITI

For Prosecution: - Ms. Tikoisuva M.
Accused: - In person

BAIL RULING

1. The accused ALIFASI KIRIKITI stands charged on count for having committed the offences of 'Aggravated Robbery' contrary to Sections 311(1)(a) of the Crimes Decree No 44 of 2009. The offence is alleged to have been committed on 9th day of July 2010 with others, who are still at large from police arrest.
   
2. The accused applies for bail pursuant to a written application submitted by him on following ground.
   
   1. The likelihood of appearing in court to stand for trial, where the accused contended that the primary issue to be determined by the court in determining the granting of bail is whether the accused will appear in court in future dates to stand for the trial. In view of supporting his contention, he stated that he has a fixed address and prepared to comply with any condition of bail.
      
   2. The accused further submitted that his previous convictions should not be considered by the court in deciding bail as it would amount to a further punishment for his previous convictions.
      
   100. The right to be presumed innocent until proven guilty. He urged this contention of presumption of innocent is a stronger ground than any other ground for determination of bail under the European convention for the protection of human rights and fundamental freedom (as accused stated).
        
   4. The accused conjectured that the strength of the prosecution case rest solely on identification and that does not pass the "Turnbull" test,
      
   5. No facilities provided in prison to assist the accuse in preparation for his defence since he is conducting his own defence,
      
   6. The accused is a remanded suspect and therefore, should not be detained in prison. In addition, the condition in prison is no OHS. Wherefore; the accused is subjected to physical, mental and emotional torture and cruel, inhumane and degrading treatment.
      
   7. Interest of the Accused. He submitted that he is a part time caretaker and farmer and is helping his mother.
      
3. The learned counsel for the State submitted state's objection for bail, where she submitted the law pertaining to the bail and judicial dicta of superior courts to consolidate State's objection for the bail.
   
4. The learned counsel for the state submitted further, the accused is having a long criminal history of previous convictions and 6 of them are similar in nature of the charge of this case. Moreover, one previous conviction of escaping from lawful custody in 2004 and one previous conviction of forfeiture of bail bond in May 2010.
   
5. In her submission, the learned counsel for the state enlightened the circumstance, nature and seriousness of the offence and the strength of the prosecution case.
   
6. The state draw the attention of the court, that the accused is not incapacitated by injury or intoxication or otherwise in danger or in need of physical protection and he can remain in custody and still have access to legal advice by engaging either legal aid or a private lawyer.
   
7. In response to the accused contention of that he could not be detain in a prison, the learned counsel for the state precisely emphasized the accused falls within the classification of section 69(1) (a) of the Prison Regulation and therefore by law, the prison is the proper place where the accused should be detained.
   
8. In view of accused previous conviction, the learned state counsel contended by citing the comment made by MacDuff CJ in "Bechu and Another v Reginam ( Supreme Court 1962), where it was held " Again it is not unusual to grant bail where the person has a bad criminal record".
   
9. The learned counsel for the sate urged that in view of the accused's previous convictions record, the accused tend to re-offence in the event of releasing him on bail and the seriousness of the offence should be taken into consideration in protecting members of public and ensuring their safety and security.
   
10. The legal basis pertaining to bail has been found in section 3 of the bail act and sections 13, 17, 18 and 19 of the bail act.
    
11. Section 3 of the Bail acts states
    

(1) Every accused person has a right to be released on bail unless it is not in the interests of justice that bail should be granted.

(2) Bail may be granted by a court or, subject to section 8(2), by a police officer.

(3) There is a presumption in favour of the granting of bail to a person but a person who opposes the granting of bail may seek to rebut the presumption.

(4) The presumption in favour of the granting of bail is displaced where-

(a) the person seeking bail has previously breached a bail undertaking or bail condition; or

(b) the person has been convicted and has appealed against the conviction.

12. In view of the section 3 (1), the right to be released on bail is not an absolute right. His Loradship Justice Nawana held in MikaeleWaqa v State ( Criminal Miscellanous Case No:HAM 122 OF 2010) "The law pertaining to bail is now governed by statutory provisions as contained in the Bail Act of 2002 and the release of an accused person on bail has been made the subject of an objective approach by court depending on facts and circumstances of each case.
    

Section 3 of the Bail Act states that 'an accused person has a right to be released on bail...' and that 'there is a presumption in favour of the granting of bail...'. Such phraseology in the section, in my view, does not invest an absolute right on an accused-person to get released on bail.

Conversely, Section 3 contains provisions whereby 'interests of justice' have been declared as a necessary factor to be considered by court in affording '...the right to be released on bail...' to an accused person under the Act.

13. Moreover, the presumption in favour of granting of bail could be rebutted by the person who oppose for bail on two grounds as per section 3 (3) and (4).
    
    1. The person seeking bail has previously breached a bail undertaking or bail condition;
       
    style='text-indenindent:0pt; margin-top:0pt; margin-bottom:0pt;' value='2' >the person has been convicted and has appealed againe conviction.
    
14. Nawana J further held 'MikaeleWaqa v State ( Criminal Miscellanous Case No:HAM 122 OF 2010) " Moreover, the presumption favouring the accused could be rebutted by a person opposing the grant of bail by the criteria laid down in Section 18 (1) of the Act, which include the public interest and the protection of community.
    

While the scheme of the Act provides a basis for a person opposing bail to rebut the presumption favouring an accused-person under Section 18(1) read with section 3 (3) of the Act, I am of the view that court is also invested with power independent of such opposition by a party to consider issues concerning 'interests of justice' and 'public interest' under Section 3(1), Sections 19 (1) and 19 (2) of the Act".

15. Section 17 (2) of the bail act stipulated that "The primary consideration in deciding whether to grant bail is the likelihood of the accused person appearing in court to answer the charges laid against him or her".
    
16. The section 18 (1) of the act, stipulated the grounds for refusal of bail, where it states
    

"A person making submissions to a court against the presumption in favour of bail must deal with-

(a) the likelihood of the accused person surrendering to custody and appearing in court;

(b) the interests of the accused person;

(c) the public interest and the protection of the community".

17. I now draw my attention to the dicta of Her ladyship Justice Shameem in Tak Sang Hao v The State (2001) FJHC 15, HAM0003d.2001s (26 April 2001), where Her Ladyship succinctly outlined the primary factors that will assist the court in arriving at a conclusion in respect of bail after scrupulously considering the laws pertaining to bail in England, and European Convention on Human Rights. These relevant factors are;
    
    1. The presumption of innocence,
    2. Whether the accused to appear to stand trial,
    100. Whether bail has been refused previously,
    4. The seriousness of the charge,
    5. The likelihood of the accused re –offending on bail,
    6. Any interference with prosecution witnesses,
    7. The accused's character,
    8. The accused right to prepare his defence,
    9. The likelihood of further charges,
    10. The state's opposition to bail.
        
18. His Lordship Justice Gounder held in Isimeli Wakaniyasi v State ( 2010),FJHC 20;HAM 120/2009 (29th January 2010), that "All three grounds need not exist to justify refusal of bail, existence of any one grounds is sufficient to refuse bail".
    
19. In view of above judicial precedents and provisions of the Bail Act and careful perusal of the written bail application of the accused and the submission of the learned counsel for the state, sufficiently directed me to determine the bail of the accused.
    
20. I place a high amount of consideration on the issue of the accused"s 18 previous convictions, where 6 of them are similar in nature to the charge in this case and one of them is escaping from lawful custody and another is forfeiture of bail bond. These previous convictions specially, his previous failure to surrender to custody in May 2010 and escaping from lawful custody in 2004 are compelling factors for me to determine that there is a likelihood that the accused person is unlikely to surrender to custody and appear in court to answer the charges in the event of granting bail.
    
21. In addition, the previous convictions of the accused, specially the 6 previous convictions of similar in nature and the accused frequent nature of offending and the seriousness of the offence in this case which involve an attack and robbery of a man in public place are resultant for me to determine that the granting of bail to the accused person would endanger the public interest or make the protection of the community more difficult.
    
22. I now consider the issues relating to the interest of the accused, where he submitted that the facilities provided in prison is not adequate in preparing his defence since he is expecting to conduct his own defence. I carefully peruse the section 13 (4) of the bail act together with the provisions of Prisons Act, where I infer that the insertion of the section 13 (4) in to the bail act, clearly indicates that law pertaining to Bail has allowed to remand a person in custody for a period of 2 year subject to section 3, 17, 18, and 19 of the bail act. Wherefore, I find the accused contention of inadequate facilities in prison is not outweigh my determination in view of section 19 (1) (a) and (c) of the Bail Act.
    
23. There is no indication to support that the accused is incapacitated by injury or intoxication or otherwise in danger or in need of physical protection as urged by the learned counsel of the state.
    
24. Having considered all the circumstances, I hold that the accused is not entitled to be released on bail. Application is accordingly disallowed and bail is refused.
    

On this 22nd day of September 2010.

R.D.R.Thushara Rajasinghe
Resident Magistrate, Suva