State v Naiceru [2013] FJMC 136; Criminal Case 10.2013 (25 March 2013)

IN THE MAGISTRATE COURT OF FIJI
AT TAVUA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. 10/13

BETWEEN:

THE STATE

AND:

MANASA NAICERU

Prosecution: Inspector Nadolo
Accused: Ms Nasedra (Legal Aid Office)

Bail Ruling

1. The accused person Manasa Naiceru is charged with Theft contrary to section 291 of the Crimes Decree no. 44 of 2009.
   
2. The said offence is alleged to have been committed on 28th October 2012 and he was charged on 11th January 2013.
   
3. I also note that on 10th January 2013 the accused was also charged for another allegation of theft said to have been committed on 5th October 2013 (CF 9/13) for which bail was refused by the court. He has been in remand for two months & two weeks as per the day of bail hearing.
   
4. Ms Nasedra counsel for accused requested that his client be released on bail. The main grounds for bail are that his client pursuant to section 3 of the Bail Act. The applicant has a family to look after and has two sureties a school teacher and a pastor. Both sureties are willing to undertake and ensure that the applicant will appear in court and no new allegation will come about pending disposal of his matters. It was also submitted that applicant is the sole breadwinner and looks after his wife, son and aunty.
   
5. Prosecution objected to bail in the public interest. Prosecution submitted that applicant has six previous convictions and was on a suspended term for two years for an offence of theft in 2011 when these two new allegations came up.
   
6. According to section 3(1) of the Bail Act 2002 "Every accused person has a right to be released on bail unless it is not in the interest of justice that bail should be granted."
   
7. There is always a presumption in favor of bail for every accused person nonetheless the party opposing bail may rebut that presumption by proving on a balance of probability that accused ought not to be released on bail.
   
8. Section 19 of the Bail Act 2002 also sets out the relevant criteria for the courts consideration when determining whether bail should be refused i.e.
   
   • (i) That accused is unlikely to surrender to custody and appear in court;
     
   • (ii) The interest of the accused will not be served through granting bail;
     
   • (iii) Granting bail would endanger the public interest or make the protection of the community more difficult.
     
9. In Isimeli Wakaniyasi v The State (2010) FJHC 20; HAM 120/2009 (29th January 2010). His Lordship Justice Goundar stated that:
   

"All three grounds need not to exist to justify refusal of bail. Existence of any one ground is sufficient to refuse bail".

10. The primary objection to bail by prosecution was on the basis that the applicant was on a suspended sentence for another criminal offence when this matter came up.
    
11. It was submitted on applicant's behalf that he has a right to be released on bail, has two suitable sureties who are willing to undertake that that no new allegation arises once his released on bail and also ensure his attendance to court.
    
12. In the courts opinion since the accused was on a suspended term and brought suspicion upon himself through another two new allegations (CF 9/13/ & CF 10/13), the court is satisfied on the balance of probability that there is a likelihood of accused committing another arrestable offence if released on bail.
    
13. I've also considered accused personal and family circumstances as basis to be granted bail. I do not think that such reasons are compelling enough for granting bail.
    
14. The public interest not to release the accused on bail far outweighs the accused right to be released on bail.
    
15. Bail is refused and applicant is to be remanded in custody and at liberty to appeal this decision to the High Court.
    
16. This court will not entertain any further bail application from the accused unless there is some material change in circumstances.
    

Samuela Qica
Resident Magistrate

25th March 2013