State v Donu [2010] FJMC 42; Criminal Case 480 of 2009 (4 March 2010)

IN THE MAGISTRATE'S COURT AT LAUTOKA

Criminal Case no.s 480/09, 908/08, 37/08, 608/07 and 414/07

BETWEEN

THE STATE

AND

KAMINIELI DONU

RULING

1. A bail application was made on the 14th January 2010 on behalf of the accused, Kaminieli Donu in criminal case number 480/09 by the counsel of the accused and it was informed to court that the same bail application is applicable regarding criminal case numbers 414/07, 37/08, 908/08 and 608/07.

2. Therefore this ruling on bail should be applicable in the above mentioned cases of the accused.

3. The counsel for the accused said keeping accused persons in remand extensively without fixing the cases for hearing should not be done and it is unfair. Further he said that the accused has not breached any bail conditions previously. He informed court that there is no single bail bond which says that the accused should not re offend. The counsel informed court that in the future the court can impose such conditions if the accused is granted bail.

4. In answer to the bail application the prosecution informed court that the accused has a number of pending files for crimes of serious nature. Prosecution said that the accused has committed offences while he was on bail. Further the prosecutor said that whenever the accused was granted bail, he came with fresh charges. Therefore the prosecution objected for bail for the safety of the public.

5. The Section 3 of the Bail Act says that every accused person has a right to be released on bail unless it is not in the interests of justice that bail should not be granted.
6. Further the Bail Act says that there is a presumption in favour of the granting bail to a person but a person who opposes the granting of bail may seek to rebut the presumption.
   
7. However according to section 3(4) The presumption in favour of the granting of Bail is displaced where;
   
   1. the person seeking bail has previously breached a bail undertaking or bail condition or
      
   2. the person has been convicted and has appealed against conviction.
      
8. Thus it manifestly clear that the presumption in favour of granting bail is displaced where the person seeking bail has previously breached a bail undertaking or bail condition.
   
9. Although the accused made a bail application regarding five cases it is pertinent at this juncture to consider all the pending cases against the accused to ascertain the conduct of the accused in relation to bail conditions.
   
10. On the 22nd June 2007 the Case no 440/07, for shop breaking entering and larceny and unlawful use of motor vehicles allegedly committed on the 15th April 2007 and the case no 414/07 for robbery with violence allegedly committed on the 19th June 2007 were filed against the accused.
    
11. He was enlarged on bail on 28th June 2007. The accused absconded and Bench warrants issued. The court has even ordered to file charges for breach of bail conditions. Thus the case no 608/07 has been filed against the accused for breach of bail conditions on 05th September 2007.
    
12. The accused was charged with others again on the 21st January 2008 in the case no 37/08 for Burglary, Larceny, criminal intimidation and wrongful confinement allegedly committed on 7th January 2008 while he was on bail. He was enlarged on bail on 21st January 2008 with the condition of not to offend whilst on bail.
    
13. Fresh charges were filed against the accused on the 28th February 2008 in the case no 158/08 for robbery with violence allegedly committed on the 25th February 2008. The accused was bailed out on the 13th March 2008 on the condition of not to offend during he is on bail.
    
14. Again the accused was brought to court on fresh charges with others on the 05th May 2008 in the case no 354/08 for larceny, conspiracy to commit felony, unlawful use of motor vehicle and attempted robbery allegedly committed on the 1st and 2nd May 2008.
    
15. The accused was granted bail on the 27th June 2008 on the condition of not to offend whilst on bail. A bench warrant is issued on 06th June 2008 for non appearance and cancelled it on the 07th August 2008. The accused again absconded court on the 05th September 2008.
    
16. The accused came on fresh charges on the 19th December 2008 in the file no 903/08 for robbery with violence, burglary, larceny from a dwelling house and unlawful use of motor vehicle allegedly committed on the 13th December 2008.
    
17. The accused was granted bail on the 15th September 2009 in case number 158/08 with curfew. Although the accused had not been granted bail in the case no 903/08 he had been released when he was granted bail in the case no 158/08.
    
18. Once again the Police filed fresh charges against the accused on the 13th October 2009 for Robbery with violence and unlawful use of motor vehicles allegedly committed on the 5th October 2009.
    
19. Also police filed fresh charges on the 16th October 2009 for burglary and larceny in a dwelling house allegedly committed on the 19th April 2008.
    
20. The accused has been in remand nearly 5 months since 13th October 2009.
    
21. It appears that the accused has breached bail conditions over and over again. The counsel who appeared for the accused informed court that there is no a single case where accused was ordered bail with a condition not to re offend. But it appears that the accused has been ordered and enlarged on bail with the condition of not to re offend in four cases. Yet every time the accused was enlarged on bail he came to court on fresh charges. Therefore the representations of the defence counsel cannot be considered as true since the accused has breached bail conditions by re offending whilst on bail.
    
22. The accused has habitually breached bail conditions without honouring the undertaking he has given when bail was granted in so many previous occasions. When an accused person is granted bail on conditions the law expects the accused person to comply with such conditions attached to the bail order.
    
23. Section 22 of the Bail Act provides for the conditions which can be attached when granting bail. Accordingly it provides for the court to require the accused to enter into an agreement to observe specified requirements as to his conduct while on bail.
    
24. The main purpose of attaching conditions when granting bail is to ensure the protection of the society and to ensure surrender to custody and appear in court as and when the accused is required to do so. If an accused person repeatedly dishonours the undertakings he gives to a court the purpose of imposing such conditions becomes meaningless.
    
25. That is the very reason for the provisions of Section 3(4)(a) of the Bail which says that the presumption in favour of the granting bail is displaced where the person seeking bail has previously breached bail undertaking or bail condition.
    
26. The other contention of the defence was that the accused should not be kept in remand extensively without fixing cases for hearing. It should be noted that already two cases of this accused are fixed for hearing. These cases were not fixed for hearing due to the change of plea by the accused. However it appears that these cases where the accused has pleaded not guilty can be fixed for hearing without much delay.
    
27. Section 18 and 19 of the Bail Act sets out the aspects that the court should deal in a bail determination.
    
28. In these cases bench warrants have been issued on the accused for non appearance in several instances. Once the court has even ordered to file breach of bail charges for non appearance by the accused. The accused is charged with very serious charges and those offences warrant the court to impose very severe penalties if the accused is found guilty. Therefore it's very likely for the accused to abscond without appearing in court.
    
29. As far as the interests of the accused are concerned no material was placed before court at the bail application. Yet it appears accused has been in remand for nearly six months now. However accused has retained a counsel and there seems to be no hindrance to get legal advice for his cases. The accused has not brought to the notice of the court the need to be at liberty for other lawful purposes such as employment, education and care of dependants.
    
30. The other aspect the court has to consider is the interest of the public. The accused is charged with offences of very serious nature. These offences have become very prevalent in the society and the court has a duty to consider the protection of the members of the public too. I have already discussed the fact that the accused has breached bail conditions repeatedly in previous occasions. This fact has to be dealt with very seriously and it has a direct impact on the safety of the members in the society. The court has to strike a balance between the liberty of an individual and the safety of the public at large.
    
31. The conduct of the accused after granting bail in the previous instances does not show that he is willing to abide by the conditions imposed on him. I am not convinced that the accused will honour the conditions if he is enlarged on bail once again.
    
32. For the above reasons I decided to refuse the bail application made regarding the case numbers 480/09, 414/07, 37/08, 908/08 and 608/07.
    

Rangajeeva Wimalasena
Resident Magistrate

Lautoka
04.03.2010