IN THE MAGISTRATE COURT OF FIJI ISLANDS
AT SUVA

Case No: 778/12

BETWEEN:

KAIPATI BAKOA
APPLICANT

AND:

STATE
RESPONDENT

Applicant : - Mr. Maisamoa (Marawai Law).
Respondent : - Mr. Fotofili, State Counsel (for DPP)

BAIL RULING

1. This is an application for bail pending trial. 

2. The accused-applicant of this case, Kaipati Bakoa (hereinafter referred as the Applicant), had been charged on following counts,

I. For committing 'Theft' of a seized item of Fiji Police Force. Namely Cannabis Sativa (marijuana). The offence is contrary to section 291(1)-(2) of the Crimes Decree 2009. The section has a maximum punishment of 10 years imprisonment.

II. Secondly 'Interfering with evidence' contrary to section 37(a) of the Illicit Drugs Control Act 2004. It carries a maximum punishment of $ 250,000/ 7 years imprisonment or both.

3. The alleged offences were committed between 26th January and 25th May 2012.

4. The applicant is a police officer attached to Nabua police station where the offences were committed. The State submits that they have adequate evidence to prove that the applicant committed the offence. 

5. When the matter was called before this Court on 04.06.2012 State objected for bail. These objections were made due to likelihood of the applicant to interfere with the witnesses using his official capacity as a police officer.

6. The Court did not liberate the applicant on bail. When the matter adjourned to 18.06.2012 for further disclosures, the State changed their stance on bail and consented for bail. But the Court invited the defendant to file affidavits disclosing the reasons for their change of stance. However Court made additional security orders to the officer in charge of Suva remand prison as the applicant claimed threats to his life from some of the inmates. 

7. The applicant has urged following grounds in his two supporting affidavits for bail,

a.	His innocence to the charges;
b.	Deteriorating conditions of his family;
c.	Willingness to surrender his travel documents; and
d.	Threat to his life in the prison.

8. Provisions of the Bail Act No 26 of 2002 provide a heavy presumption in favour of granting bail pending trial to an accused person. 

9. The party opposing bail has to rebut this presumption on the balance of probabilities. Bail should be granted unless the Court is satisfied of any one or more of the considerations set out in section 19(1); where it says,

(a) The accused is unlikely to surrender to custody and appear in Court;
(b) The interest of the accused will not be served through granting bail;
(c) Granting bail would endanger the public interest or create a situation where the protection of the community will be more difficult.

10. Section 3 of the Bail Act 2002 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'. 

11. Although the favour of these words is more towards an applicant, it does not invest an absolute right on him/ her to be released on bail. This was discussed in the case of Waqa v State [Criminal miscellaneous action 122 of 2010]. His lordship Justice Nawana held that;

"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."

12. Although the person who opposes for bail can rebut the presumption, the Court is also vested with power independent of such opposition to consider issues relating to section 18(1) of the Act.

13. The primary consideration in deciding bail is the likelihood of the accused person appearing in Court to answer charges. The applicant's background and community ties confirm that he is not a person with any previous convictions or failure to surrender to lawful custody. Apart from that he is the sole breadwinner for his family. He has two school attending children.

14. Two charges carry maximum penalties of 10 years and seven years imprisonment. The second count carries an additional fine up to $ 250,000 if the applicant found guilty. The two charges are indeed serious in nature.

15. On the other hand the affidavit filed by ASP Semisi Bokadi (the investigating officer) confirms that the applicant surrendered voluntarily to the police custody during investigations. These facts direct the Court to rule out the possibility, that the applicant is a person who is unlikely to appear in Court. 

16. Secondly the Court would like to inquire the 'interests of the accused person'. The applicant submitted that he was subjected to threats and swears words of inmates in the prison. His meals were provided with excessive salt. Although he was provided with additional security lately, his cell block was again opened for other inmates due to overcrowding of prison. 

17. It is notable that the officer in charge of the Suva prison did not respond to the orders made by this Court to submit a report pertains to the applicant's conditions in the prison. In the absence of the said report inevitably the Court has to consider applicants submissions on the issues raised by him. In general any person of law enforcing authorities will find it difficult to adjust in to prison conditions as they meet their opponents inside. The risk to their lives will depend on the efficiency of their work in respective official capacities. In the light of 'presumption of innocence' the Court would seriously consider this ground during the determination of bail.

18. The State has requested further time to furnish second phase disclosures to the applicant. Hence the Court is in an indefinite status to set a trial date for this case.

19. Finally the Court consider the issues relating to 'public interest and interfering with evidence'. When this application was first made the applicant was a serving police officer. However he was interdicted on the same day it came before this Court. The counsel for the applicant submitted a letter addressed to the applicant by the Director of Human Resources Management for Commissioner of Police. It states that the applicant had been dismissed from the Fiji police Force with effect from 15.06.2012. He was asked to handover all the properties of the police including his official quarters.

20. It appears now that the applicant does not have any authoritative power to influence witnesses as a police officer. Further the State submits that most of the prosecution witnesses are serving police officers. Therefore the possibilities will be further less to interfere with them. 

21. For the foregoing reasons the applicant will be granted bail on following conditions, 

I.	With two suitable sureties of $ 2000. (each)
II.	To reside in Suva until the conclusion of this case.
III.	Should surrender all the travel documents to the registry of this Court.
IV.	Stop departure order is in place and the registry will communicate this to the immigration authority.
V.	Not to interfere with any of the prosecution witnesses either directly or indirectly.
VI.	Should report to Central police station every Monday and Friday between 6 am-6 pm.

Yohan Liyanage
Resident Magistrate

28th June 2012