State v Mua [2012] FJMC 69; Criminal Case 911.2010 (1 May 2012)

IN THE RESIDENT MAGISTRATE COURT AT NASINU

CRIMINAL CASE No: 911/2010

DPP

-v-

METUISELA MUA

DATE OF RULING: 01st May 2012

For the State: Mr.Llisiate Fotofili (DPP's Office)
Accused: Present in person

RULING ON BAIL

1] Accused is charged with following offence namely;

CHARGE:

Statement of Offence [a]

First Count

IN POSSESSION OF AMMUNITION WITHOUT LICENSE: Contrary to Section 4 and Section 53(1) of the Arms and Ammunition Act 2003.

Particulars of Offence [b]

METUISELA MUA on the 5th day of November, 2007, at Kinoya in the Central Division was found in the possession of 5 live rounds of ammunition without a license authorizing the said METUILSELA MUA to possess the said ammunition.

2.] The Accused is a serving prisoner, but he appealed against the conviction and appeal to be heard in the Fiji Court of Appeal. Meantime his prison sentence about to be fully served without being heard his appeal. The accused said he should have granted remission for his good conduct in the prison by the Commissioner of Prison and it was still to be done. He asks that DPP may give his sanction to the Commissioner of Prison to release him from prison and remission be granted. Now the accused applied bail on following grounds. His written submission reveals;

A] The charge is defective and is an abuse of process as the trial has been prolonged unnecessarily.

B] Bail, technically is not the issue, rather it is whether the charge can stand.

C] Bail is not objected to by the State, and therefore can be granted by this Court as the Court is separate and must act independently.

D] Under the doctrine of separation of powers, the Prison Services will help determine activating his approved release on EMP.

E] The accused ought to be presumed innocent on the current charge and be granted bail.

3] The written submission is filed by the Director of Public Prosecutions are succinctly as follows;

A] The accused is a serving prisoner and under section 5(3) of The Bail Act 2003 he cannot be granted/released on bail.

B] The State has no objection to give bail if the accused was discharged from the Correction Centre.

C] In the light of doctrine of separation of powers DPP and Commissioner of Prison are separate two entities. Therefore one entity cannot dictate to the other what the other should do. If the Defendant is still a serving prisoner, the Office of the Director of Public Prosecution cannot interfere with the discretion of the Corrections Department in relation to the administration and Management of Prisoners under the custodian of the Corrections Department such as the granting of remission as per Section 61 and 63 of the Corrections Act Cap 86.

4] I have carefully considered the submission by the DPP 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. Would this presumption is applied to this case?

6] The DPP has no objection for bail but he said court cannot give bail under Section 5(3) of the Bail Act. It says;

"A person is not entitled to be granted bail if the person is in custody serving a sentence of imprisonment in connection with some other offence"

7] The accused said the charge had been defective and it had been prolonged unnecessarily and this is abuse of process. When the court considers this issue it should be noted the defective charges can be amended and the charge had been already amended and the accused had pleaded on guilty to the charge. The accused says that he had been convicted for grievous offence and this charge is already included in that offence which he was convicted and jail term was fully served. In simple word the accused says the charge is in duplicity. This is not the proper forum to address this issue and if there is any duplicity of the charge he can apply to the DPP and get it withdrawn. But I note the Accused, on 08-06-2011, had pleaded not guilty to the amended charge and he was represented by Mr. A. Naco. The Defectiveness of the charge was not enlightened at this moment to the court or DPP. Thus, it is unseen whether charge can stand or not at this stage. However the defectiveness of charge is not ground for give bail.

8] The High Court had sentenced the accused. When a Sentence is passed the Court becomes "fanctus Officio". Therefore the court cannot order that remission be granted to the accused. It is solely discretion of the Commissioner of Prison. I lament, this court cannot interfere any administrative issues of the DPP or the Commissioner of Prison. However, this court has not sentenced the accused and therefore this court cannot consider to interfere administrative matters.

9] The Accused said that the State has not objected to bail therefore bail can be granted and under the separation of powers. The Court must Act independently. In considering this issue I say that the Magistrate Court is a Creature of a Statute. In the Magistrate Court Act, Cap 14, Section 3 says;

"3.-(1) There shall be and are hereby constituted magistrates' courts subordinate to the Supreme Court.

(2) There shall be the following classes of magistrates:-

(a) Resident magistrate;

(b) Second class magistrate;

(c) Third class magistrate.

(3) There shall be, in each Division, such magistrates' courts as the Chief Justice may direct.

(4) Any power, authority, function or discretion vested in a magistrates' court by this or any other Act shall be possessed and may be exercised by a magistrate having adequate jurisdiction. [Emphasis is mine]

(5) All magistrates' courts shall be courts of record."

10] It is pertinent section 5(3) of the Bail Act does not provide powers to grant bail. The accused has no right to apply bail. The Bail Act is the special Act for bail and it overrides all other provisions of different statutes. Therefore the principle of ex debito jusitiae (A remedy which the Applicant gets as of right[1]) cannot be applied in this matter.

11] In simply, a man can give what he has, if he has money, he can give money to others. If he has foods, he can give to others. If he has kindness, he can give kindness to others. How about, if he does not have? Nothing can be given. Likewise this court has no powers to grant bail or interfere with the administrative affairs of other institutions. On that footing alone that bail application must be refused.

12] In The State v. Attorney-General of Fiji ex-parte: Joseph Nainima delivered on 21st October 1997 the court held that it is the function of the Courts only to interpret the law but not to amend it. Therefore this court cannot amend or deviate this procedure. Thus, my hands are tight in this issue and the accused may canvass to get his reliefs in the proper forums.

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

14] Bail is refused.

15] Under section 30 of Bail Act the accused may appeal against this ruling. 28 days to appeal.

Sumudu Premachandra
Resident Magistrate-Nasinu

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^[1] Leslie Rutherford and Shiela Bone( Editors) , “Osborne’s Concise Law Dictionary”, ( 1993-Eighth Edition), Sweet and Maxwell London pp136