State v Valetiri [2011] FJMC 94; Criminal Case 641.2011 (10 August 2011)

IN THE RESIDENT MAGISTRATE COURT AT NASINU

CRIMINAL CASE NO: 641 OF 2011
HAC: 178/2011

STATE

V

MELI VALETIRI

DATE OF RULING: 10th August 2011

For the State: Sergeant Volavola
Accused: In person

RULING ON BAIL

1] Accused is charged with offences namely;

i) Aggravated Robbery: - Contrary to section 311(1) (a) of the Crimes Decree No.44 of 2009.

ii) Theft of Motor Vehicle: - Contrary to Section 291 of the Crimes Decree No.44 of 2009.

2.] The Accused was arrested and produced before this court on 16th July 2011. Since this is an indictable offence the case was transferred to the High Court of Suva and court refused his bail application. The ex tempore ruling was given. On 01st Of July 2011, the High Court Judge, Justice Priyantha Fernando extended jurisdiction and case was sent back to this court for hearing under section 4(2) of the Criminal Procedure Decree 2009. No bail was considered. The Accused then filed two written bail application and applied for bail, the prosecution objected for bail. The accused was remanded till today. The accused applied bail on following grounds.

A] The co accused was granted bail on 08-06-2011.

B] Innocence of the accused to be presumed until guilty proven.

C] That the Accused should maintain his family, sole bread winner.

D] That the Accused should support his children's education.

E] That the Accused should prepare his defence.

3] Police prosecution opposed to the bail on following grounds.

A] That this is a serious offence.

B] That the offence pervades all over the Fiji.

C] That the accused's alibi was checked but did not support his version.

D] That the accused has positively identified by the victim.

E] That the accused has breached the bail condition of previous case ( CF No:965/2011).

4] I have carefully considered the submission by the Police Prosecution and the accused.

5] Applicable law could be found in Bail Act of 26 of 2002. In section 3 of said Act provides grating of bail is the rule and refusal of bail is the exception. Every person has a right to be released on bail unless it is in the interest of justice bail could be refused. The presumption of granting bail to a person could be rebutted by the party who opposes to it. Thus police prosecution should rebut this presumption in this case.

6] In section 19(1) provides that how (reasons for refusing bail) prosecution could rebut this presumption.

i] The accused person is unlikely to surrender to custody and appear in court to answer the charges laid;

ii] The interest of the accused person will not be served through the granting of bail; or

iii] Granting bail to the accused would endanger the public interest or make protection of the community more difficult.

7] Since the prosecution to rebut the presumption, I consider the prosecution's submission in this regard. According to section 17(2) the primary consideration is whether accused will come to Court to answer charge against him. I am mindful of that. The accused was on bail and police said that he breached to bail condition no 3 "To be of good behavior and not to commit any offence whilst on bail"

8] I wish to consider bail principles at length. In Tak Sang Hao v The State[1],where Her Ladyship Justice Shameem again, thoroughly illustrated factors are to be concerned in arriving at a conclusion in respect of bail, after carefully considering the laws pertaining to bail in England, and European Convention on Human Rights. These relevant factors are[2];

a) The presumption of innocence,

b) Whether the accused to appear to stand trial,

c) Whether bail has been refused previously,

d) The seriousness of the charge,

e) The likelihood of the accused re –offending on bail,

f) Any interference with prosecution witnesses,

g) The accused's character,

h) The accused right to prepare his defence,

i) The likelihood of further charges,

j) The state's opposition to bail.

9] Her Ladyship further enunciated;

"In England bail is governed by the 1976 Bail Act, which provides that bail may be refused where there are substantial grounds for believing that the defendant if released on bail, would fail to surrender to custody, commit an offence while on bail, interfere with witnesses, and where the Court is satisfied that the defendant should be kept in custody for his own protection and welfare (Schedule 1 Part 1 (2)). However, case law on the interpretation of the Human Rights Act 1998, and the European Convention on Human Rights shows a shift towards a more narrow approach to the refusal of bail. Article 5 (3) of the Convention states that a person charged with an offence must be released pending trial unless the state can show that there are relevant and sufficient reasons to justify his continued detention. Further, bail may be refused for only four reasons.

Firstly that there a risk that the accused will fail to appear at trial. Relevant factors are the character of the accused, his home, occupation, his assets within the country, his family ties and any other ties within the country (Newmeister – v – Austria I E.H.R.R. 91. The seriousness of the offence is relevant but not the predominant factor.

The second legitimate reasons for refusing bail is possible interference with the course of justice.

The third factor is that the accused may commit further offences on bail.

The fourth relevant factor is that the nature of the crime alleged and the likely public reaction are such that the release of the accused may give rise to public disorder. In Letellier – v – France [1991] ECHR 35; 14 E.H.R.R. 83, the Court said this factor was only relevant to offences which were particularly serious. The Fiji Courts have developed principles of bail along similar lines.

These principles echo the sentiments of the European Convention on Human Rights, and of Section 34 (6) (a) of the Constitution. The fundamental principle has always been, and continues to be, that bail will be granted unless the Court believes that the accused may not appear for trial. The factors listed above, help to assist the Court in arriving at a conclusion in respect of this fundamental principle of bail."

10] Ground for Refusal of Bail is mentioned in Section 19(2). I reproduce section 19(2) (a) and (c) of the Bail Act 2002.

(a) as regards the likelihood of surrender to custody-

(i) the accused person's background and community ties (including residence, employment, family situation, previous criminal history);

(ii) any previous failure by the person to surrender to custody or to observe bail conditions;

(iii) the circumstances, nature and seriousness of the offence;

(iv) the strength of the prosecution case;

(v) the severity of the likely penalty if the person is found guilty;

(vi) any specific indications (such as that the person voluntarily surrendered to the police at the time of arrest, or, as a contrary indication, was arrested trying to flee the country);

c) as regards the public interest and the protection of the community-

(i) any previous failure by the accused person to surrender to custody or to observe bail conditions;

(ii) the likelihood of the person interfering with evidence, witnesses or assessors or any specially affected person:

(iii) the likelihood of the accused person committing an arrestable offence while on bail.

(Emphasis is mine)

11] It is seen that prosecution has proved some of facts that in above list. Releasing the co accused on bail is not matter for this case to grant bail. But the accused is in remand nearly two months. I am not clear whether the accused got any previous criminal history, but I am mindful that he got one pending case. This matter to be fixed for hearing and no DPP counsel was allocated to this case yet. My court dairy is fully booked for trials this year and I cannot remand the accused indefinitely. Right to bail is the rule, on balance, I think, it is proper to grant bail in this scenario on strict bail conditions.

12] I tend to grant bail to the accused on strict bail conditions.

The Accused;

(I) The Accused should deposit $100 cash bail prior to releasing of this case. If the accused evaded the court, this cash bail will be confiscated without any notice.

(II) To secure his own attendance at the Magistrate Court of Nasinu by standing in his own recognizance in the sum of $ 2000, apart from that;

(III) To provide one non relative surety in the sum of $ 1000 who is to ensure the attendance of the Accused at court and that the terms and conditions of this grant of bail are complied with. A copy of this completed form should be provided to the surety. If the accused is unable to come any reason then surety should come inform the court and what is the reason.

(IV) To attend court when told to do so for mention, any pre-trial applications, and the trial of this case and to attend every court dates.

(V) To be of good behaviour and not to commit any offence whilst on bail.

(VI) To reside with current address until the conclusion of his trial.

(VII) And not to change that address without the written leave of the court which leave must be obtained before any change of address is made. The Prosecution must also be informed beforehand by the accused.

(VIII) Is not to approach any prosecution witnesses, directly or indirectly, or to interfere with or harass them, in any way.

(IX) To surrender his passport to the court before 3pm today of this order if he does have a passport ( get a letter that he does not possess a passport), the accused

* Is not to apply for a passport.

* And is not to travel overseas without further order from the court.

*Immigration to be notified by the Senior Court Officer of this court regarding the travel ban.

(X) Is to report to the (nearest) Police Station, every Thursdays and Sundays between 6am and 6pm.

(XI) And is warned that breach of any of these conditions is likely to result in the cancellation of his bail and the issuance, if necessary, of a warrant for his arrest and a return to custody till he is tried.

(XII) If the accused absconded and evaded this case, the case will proceed and the accused be tried in absentia.

Sumudu Premachandra
Resident Magistrate

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^[1] (2001) FJHC 15, HAM0003d.2001s (26 April 2001)
^[2] His Lordship Fatiaki J in Adesh Singh & Ors Miscellaneous Act No. 11 and 12 of 1988 took similar approach