State v Moce [2013] FJMC 166; Criminal Case 231, 232 & 233.2013 (10 April 2013)

IN THE RESIDENT MAGISTRATE COURT AT NASINU

Criminal Cases No. 231/2013 232/2013,and 233/2013

STATE

-v-

TEVITA BOSE MOCE

DATE OF RULING: 10th April 2013

For the State: Mr. Shivendra Nath
For the accused: in person

RULING ON BAIL

1] The accused was arrested and remanded till today for following cases on various counts;

Criminal Case No. 231/2013

CHARGE
FIRST COUNT

Statement of Offence [a]

BURGLARY: Contrary to Section 291 of the Crimes Decree No. 44 of 2009.

Particulars of Offences [b]

TEVITA BOSE MOCE on the 27th day of December 2012 at Nasinu in the Central Division entered into the house of one Josefa Saukali as a trespasser with intent to steal from therein.

SECOND COUNT

Statement of Offence [a]

THEFT: Contrary to Section 291 of the Crimes Decree No. 44 of 2009.

Particulars of Offences [b]

TEVITA BOSE MOCE on the 27th day of December 2012 at Nasinu in the Central Division stole a rental car key valued at $50.00, 1 x apple iphone $1500.00, 1 x nokia mobile phone valued at $1000.00, 1 x Huawar mobile phoe valued at $500.00, 1 x Pentax camera valued at $780.00 and cash of $150.00 all to the total value of $4830.00 the properties of Josefa Saukali.

Criminal Case No. 232/2013
CHARGE
FIRST COUNT
Statement of Offence [a]

THEFT: Contrary to Section 291 of the Crimes Decree No. 44 of 2009.

Particulars of Offences [b]

TEVITA BOSE MOCE Between 1st day of January, 2013 to 31st day of January,2013 at Nasinu in the Central Division stole assorted cloths valued at $200 the property of one GIMCINA RAJA.

Criminal Case No. 233/2013
CHARGE
FIRST COUNT

Statement of Offence [a]

BURGLARY: Contrary to Section 291 of the Crimes Decree No. 44 of 2009.

Particulars of Offences [b]

TEVITA BOSE MOCE on the 27th day of February 2013 at Nasinu in the Central Division entered into the house of one Luke Vueta as a trespasser with intent to steal from therein.

SECOND COUNT

Statement of Offence [a]

THEFT: Contrary to Section 291 of the Crimes Decree No. 44 of 2009.

Particulars of Offences [b]

TEVITA BOSE MOCE on the 2nd day of February 2013 at Nasinu in the Central Division stole 2 x Casio Wrist Watch valued at $200.00, a car key valued at $45.00, 1 x LG Notebook Laptop valued at $900.00, 1 x pair new balance canvas valued at $200.00, 1 x Puma bag valued at $80.00, a cane knife valued at $16.00 and a yellow cable valued at $16.00 all to the total value of $1453.00 the properties of Luke Vueta.

THIRD COUNT
Statement of Offence [a]

BREACH OF ORDER OF SUSPENDED SENTENCE: Contrary to Section 28 (1) (4) of the Sentencing and Penalties Decree of 2009.

Particulars of Offences [b]

TEVITA BOSE MOCE between 4th day of February 2013 to 4th day of January 2013 during the operation period of a suspended sentence, committed an offence punishable by imprisonment.

2 The accused was charge with indictable offence (triable summarily) for 231/2013 and 233/2013. The Accused elected High Court trial for these cases. Then, these cases were transferred to High Court and those were remitted back to this court under Extended Jurisdiction. Grounds for bail application are as follows;

A] He is the sole bread winner of the family.

B] His spouse is currently 4 months pregnant and she needs his support.

C] He will abide by any bail conditions.

D] His father has been diagnosed with cancer recently and he is a diabetic amputee.

E] His younger sister is still schooling, she needs his financial support.

F] He needs to prepare his defence.

G] The prosecution has weak cases

H] False implication and has defence of Alibi

3] The DPP has filed bail opposition and Police also relied on those oppositions.

4] The prosecution has strongly responded to the bail on following grounds.

A] Charge is very serious, if convicted custodial sentence is inevitable. They believe that they have strong case.

B] Public interest at stake.

C] the accused can have Legal Aid counsel for prepare his defence.

D] The accused has access to Prison Library, therefore he can prepare good defence for himself.

E] Protection of the community

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

6] 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 should rebut this presumption in this case.

7] 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.

8] Factors relevant to a bail application were highlighted by Shameem J in Tak Sang Hao v The State [2001] FJHC 15; HAM003d.2001S (26 April 2001). These relevant factors are:

1. The presumption of innocence;
2. Whether the accused to appear to stand trial;
3. Whether bail has been refused previously;
4. The seriousness of the charges;
5. The likelihood of the accused re-offending on bail;
6. Any interference with Prosecution witnesses;
7. The accused's character;
8. The accused's right to prepare his defence;
9. The likelihood of further charges;
10. The State's opposition to bail.
    

9] I consider prosecution submission in this regard. Prosecution said that they have strong cases; and the accused has 12 previous convictions within last ten years and the public interest at stake.

10] According to section 17(2) the primary consideration is whether accused will come to Court to answer charge against him. But court notes there are other factors have similar considerations in deciding bail on the accused. (Section 18(1))

11] In section 19(2) of said bail Act provides inter alias previous criminal history, failure to surrender custody or breach of bail conditions, strength of the prosecution case and the likelihood of the accused person committing an arrestable offence while on bail could be determined as rebuttal of above presumption.

12] The accused is known and that he has 12 previous convictions. He was charged for breach of suspended sentence in 233/2013. Therefore, he has propensity to do crimes while on bail. Thereby the accused's right to bail has to be refused. In Elia Manoa v the State (Misc. Crim. Case No: HAM095 OF 2010, 02nd June 2010) His Lordship Justice Gounder held "Although the new charges are not anyway evidence of guilt, the factor is of considerable importance when determining the likelihood of the accused person committing an arrestable offence while on bail". In R v. Crown Court at Harrow[2003] 1WLR 2756,in page 2778 Hopper LJ enunciated " The fact that the new offences appears to have been committed whilst on bail is likely to be a factor of considerable importance against the defendant when deciding whether there are substantial grounds for believing that, if released, he would commit a further offence while on bail" .

13] The grounds for bail are as common in all bail applications. While considering accused's rights, the 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. The accused's right to bail is not an absolute right. In Mikaele Waqa v State Criminal Miscellaneous Case No: HAM 122 OF 2010 His Lordship Justice Priyantha Nawana observed;

"The law pertaining to bail is now governed by statutory provisions as contained in the Bail Act of 2002 and the release of an accused person on bail has been made the subject of an objective approach by court depending on facts and circumstances of each case.

"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." (Emphasis is mine)

14] The accused informs that he need to prepare his defence. Right to counsel is not an absolute right. There are ample authorities to that effect (Ratu Jope Seniloli & Ors. v. The State Criminal Appeal No. AAU0041 of 2004 and Seremaia Balelala v. The State Criminal Appeal No. AAU0003 of 2004S). Nor is there an absolute right to counsel of one's own choosing (Eliki Mototabua v. The State CAV004 of 2005S). Since legal aid counsels are regularly visiting to the prison and he could get assistances from legal aid to defend his cases. The accused may lodge legal aid application through prison authorities. The accused may retain a counsel at his choice. Therefore this is not a compelling ground for grant bail.

15] Considering the prison situation, he can have access to Prison Library. In Nainoca v The State, HAM 72/2004S her ladyship Justice Shameem was satisfied that the facility in Fiji prisons met with the "United Nations standard minimum rules for the treatment of prisoners". Thus, this court cannot accept the derogating standard of the prison or inadequate medical facilities.

16] The safety of the public is paramount. It demands that the accused be remanded in custody until all his pending cases are cleared. He is not to be released on bail, unless there are exceptional circumstances. I cannot see any exceptional circumstances.

17] In forgoing reasons, I decline to release the accuseds on bail. The Bail applications are therefore refused.

18] 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 these cases.

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

20] Under section 30 of Bail Act the accused may appeal against this ruling.

21] 28 days to appeal.

Sumudu Premachandra
Resident Magistrate-Nasinu