State v Vuniyacawa [2011] FJMC 95; Criminal Case 664.2011 (24 August 2011)

IN THE RESIDENT MAGISTRATE COURT AT NASINU

CRIMINAL CASE NO: 664 OF 2011
HAC: 197/2011

STATE

V

TOMASI VUNIYACAWA

DATE OF RULING: 24th August 2011

For the State: Ms. Tabuakuvo
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 23th 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 S. Temo 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 in the High Court. The Accused then filed three written bail applications and applied for bail, the DPP objected for bail. The accused was remanded till today. The accused applied bail on following grounds.

A] Right to be presumed innocent until proven guilty

B] Conditions of remand prison. The Accused is being treated like a prisoner.

C] Cruel, inhumane and degrading treatments by prison officers.

D] That the Accused should support his family.

E] That the Accused should prepare his defence.

F] His co-accuseds have been given bail

3] The DPP 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 has 23 previous convictions.

D] That the Taxi driver was attacked. The victim gives a public service.

E] Because of these grounds the accused will evade the court.

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 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. It is crystal clear that the charge is serious and if convicted the prison sentence is inevitable. On top of that ,the accused has past criminal history.

8] I wish to consider bail principles at length. In Tak Sang Hao v The State (2001) FJHC 15, HAM0003d.2001s (26 April 2001) ,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 (His Lordship Fatiaki J in Adesh Singh & Ors Miscellaneous Act No. 11 and 12 of 1988 took similar approach);

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] In Fiji Independent Commission Against Corruption v Tuisolia [2009] FJHC 159; HAM045 & 048.2009 (4 August 2009) His lordship Justice Gounder enunciated;

“Under the Bail Act, the primary test for bail is whether the accused will appear for trial. Section 23(a) of the Bail Act provides that bail must be granted unconditionally unless the court considers that conditions should be imposed for the purpose of ensuring the accused’s surrender into custody and appearance in court. The conditions of bail should be reasonable, that is, considered on an objective assessment of all the relevant circumstances.” (Emphasis is mine)

12] Bail must not be refused unless the Court is satisfied of any one of the following matters outlined in s.19 (1) of the Bail Act:

a) the accused person is unlikely to surrender to custody and appear in court to answer the charges laid;

b) the interests of the accused person will not be served through the granting of bail; or

c) granting bail to the accused person would endanger the public interest or make the protection of the community more difficult.

13] In Wakaniyasi v State [2010] FJHC 20; HAM 120.209 (29 January 2010) His Lordship Justice Goundar again referred to section 19(1) and stated that "all 3 grounds need not exist to justify refusal of bail. Existence of any one ground is sufficient to refuse bail".

14] As I noted above, it is seen that prosecution has proved most of facts that in above list. Releasing co accused on bail is not matter for this case to grant bail. Further the degrading prison treatment is not relevant to the bail. If prison officers harassed him, the accused could complain to the Prison Commissioner.

15] But in In Nainoca v The State, HAM 72/2004S Her Ladyship Justice Shameem was satisfied that the facility of the prison centres are in the "UN standard minimum rules for the treatment of prisoners". Thus the accused cannot claim the facilities of the prison are inadequate.

16] Moreover, The accused got bitter criminal history. The Public interest is in danger. The accused claimed presumption of innocence. Remanding and jailing a person is two different phenomena. Remanding a person is not a punishment but jailing a person is a punishment. If the person deserved to be in remand, bail will be refused. Accused's criminal history indicates that if he is released on bail he may commit another offence while he is on bail. Accused's past history shows that he has propensity to do crimes again. I am satisfied with the prosecution submissions. Therefore I hold that public interest at stake. Accused said that he has family to look after. I lament, but this court cannot accept this is as reasonable ground for grant bail. I hold the accused does not have social background or family ties. Moreover, Court should look innocent public and their rights to be safe guarded as well. Accused's right to bail is an individual right and it is overlooked by public's rights. Accused told to court that he wants to retain counsel. Right to counsel is not an absolute right. Since legal aid counsels are regularly visiting to the prison and he could get assistances from legal aid to defend his case. Accused may lodge legal aid application through prison authorities as he did forward this bail application.

17] I now consider the important legal aspect regarding section 216 of the Criminal Procedure Decree 2009 which accused mentioned in his submissions. The golden rule of criminal law is the accused is presumed innocence until his guilty is beyond reasonable doubt proved by the prosecution. This presumption falls to each and every case that the accused has. Thus, common law rule is that character of the accused is not relevant unless he adduces good character in the trial. Therefore, character comes to play when hearing and not on bail ruling. I reproduce the section 216 of the Criminal Procedure Decree.

216. — (1) Where an information contains a count charging an accused person with having been previously convicted of any offence, the procedure shall be as follows —

(a) the part of the information stating the previous conviction shall not be read out in court, nor shall the accused be asked whether he has been previously convicted as alleged in the information, unless and until he or she has either pleaded guilty to or been convicted of the subsequent offence;

(b) if the accused person pleads guilty to or is convicted of the subsequent offence, he or she shall then be asked whether he has been previously convicted as alleged in the information;

(c) if the accused person answers that he or she has been so previously convicted, the judge may proceed to pass sentence accordingly; but if he or she denies that the previous conviction, or refuses to or does not answer such question, the court and the assessors shall then hear evidence concerning the previous conviction.

(2) If upon the trial of any person for any such subsequent offence the person gives evidence of his or her own good character, it shall be lawful for the prosecutor, in answer to the evidence, to give evidence of the conviction of the person for the previous offence or offences before a verdict is returned, and the court and assessors, shall inquire concerning the previous conviction or convictions at the same time that they inquire concerning the subsequent offence.

18] The Accused previous convictions play a vital role in deciding bail. It entangles with above section (a) (i) and deciding public interest and protection of the community court has enormous power to refuse bail in considering the attended circumstances.

19] I should say the Criminal Procedure Decree is a general statue. The Bail Act is a special statute. In Harlow v Minister of Transport [1951] 2 KB 98 English court applied that legal maxim of Generalia Specialibus non Derogant, that is General statue's provision does not override Special Statute's provision and, special statue's provision should prevail. Therefore the application of section 216 of the Criminal Procedure Decree has no effect on Bail Act Section 19(2) (a) and (c) and Bail Act prevails all times. Thus the previous convictions of the accused can be taken into account for refusal of bail.

20] For above mention reasons, I decide that granting of bail to the accused would endanger the public interest and the accused may unlikely to surrender to custody and appear in court to the charges laid against him and I am view of if he granted bail, he possibly commit another arrestable offence. I hold that the prosecution has rebutted the above presumption of granting bail. Therefore bail application must be refused.

21] Under section 14(3) of bail Act the accused is advised not to make bail applications on above grounds (similar grounds) again.

22] Bail is refused. The accused is further remanded in custody. In all times production order is to be served on prison authorities to bring down the accused to the court for this case. It seems to me that this file is idling. Therefore, the DPP is ordered to expedite the matter and hearing to be commenced forthwith.

23] Under section 30 of Bail Act you may appeal against this ruling. 28 days to appeal.

Sumudu Premachandra
Resident Magistrate