State v Hill [2013] FJMC 211; Traffic Case 8905.2013 (27 May 2013)

IN THE MAGISTRATES COURT AT NASINU

Traffic Case No. 8905/2013

STATE

-v-

JESSICA JASMINE JOAN HILL

WPC Mere for the police
Mr. Naipote Vere for the accused.

Bail Ruling

1] In this case the accused is charged with following offences. This case was called this morning and the submission was made by both parties regarding bail. I now consider them.

CHARGE:

FIRST COUNT

Statement of Offence [a]

DANGEROUS DRIVING OCCASIONING DEATH: Contrary to Section 97 (2) (b) and 114 of Land Transport Act 35 of 1998.

Particulars of Offence [b]

JESSICA JASMINE JOAN HILL on the 24th day of May 2013 at Nasinu in the Central Division drove a motor vehicle registration number FB073 along Nokonoko Roundabout at speed dangerous to another person and thereby caused the death of Sereana Lesi Pratap.

SECOND COUNT

Statement of Offence [a]

DANGEROUS DRIVING OCCASIONING BODILY HARM: Contrary to Section 97 (4) and 114 of Land Transport Act 35 of 1998.

Particulars of Offence [b]

JESSICA JASMINE JOAN HILL on the 24th day of May 2013 at Nasinu in the Central Division drove a motor vehicle registration number FB073 along Nokonoko Roundabout in a manner which was dangerous to the public having regards to all the circumstances of the case as a result caused bodily injuries to Jokapeci Bale.

THIRD COUNT

Statement of Offence [a]

DANGEROUS DRIVING: Contrary to Section 98 (1) and 114 of Land Transport Act 35 of 1998.

Particulars of Offence [b]

JESSICA JASMINE JOAN HILL on the 24th day of May 2013 at Nasinu in the Central Division drove a motor vehicle registration number FB073 along Nokonoko Roundabout in a manner which was dangerous to the public having regards to all circumstances of the case.

FOURTH COUNT

Statement of Offence [a]

FAILURE TO UNDERGO BREATH ANALYSIS UPON DIRECTIONOF A POLICE OFFICER: Contrary to Section 103 (1) (b) and 114 of Land Transport Act 35 of 1998.

Particulars of Offence [b]

JESSICA JASMINE JOAN HILL on the 25th day of May 2013 at Nasinu in the Central Division upon being required by a Police Officer namely CPL 3472 Seniloli to undergo breath analysis under Section 103 (1) (b) and 114 of Land Transport Act 35 of 1998 failed to undergo breath analysis in accordance with the direction of CPL 3472 Seniloli.

2] The accused's counsel, Mr Vere, elaborated grounds for bail are as follows;

1. The Accused is employed by private company and if remanded her job will be jeopardize
2. She is looking after her elderly mother.

100. No previous record of jumping bail.

4. Right to bail and presumption of bail under section 3 of the Bail Act.
5. Presumption of innocence until guilty proven.
6. People are being given bail for serious charges such as Murder, rape ad man slaughter and this is under LTA and she should be equally treated. 3] The Accused Counsel tendered Devi v The State [2003] FJHC 200 case for consideration of this court.
   

3] The police prosecution has made only one ground for their opposition.

1. The one 14 years old school girl was injured and she is still in hospital
   

4] The law on bail is lucid. The principles on bail are highlighted as below;

• Section 3 (1) of the Bail Act states that every accused person has a right to be released on bail unless not in the interest of justice that bail should be granted.
  
• Section 17 (2) of the Bail Act 2002 states that the primary consideration for bail is the likelihood of the defendant appearing in Court to answer the charges laid against him or her.
  
• Section 19 (1) of the Bail Act 2002 states: "An accused person must be granted bail unless in the opinion of the Police Officer or the Court, as the case may be:-
  
  • (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
    
  • (c) Granting bail to the accused person would endanger the public interest or make the protection
    

5] In Isimeli Wakaniyasi v The State (2010) FJHC 20; HAM 120/2009 (29th January 2010). His Lordship Justice Goundar states that:

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

6] In this case the prosecution has not proved that the accused is flight risk. The only ground that the prosecution objects to bail is that one of victim/injured is in hospital. Even they did not say that they have strong case against the accused. Defence counsel mentioned if the accused was remanded her employment would be jeopardized. This fact comes within the second limb, the interest of the accused. I cannot see that granting of bail would be endangering to public interest. The prosecution alleges the offences are committed under the influence of liquor. But the accused failed to undergo breath test. Hence, there is no evidence that the accused was under influence of liquor at the time of offence. But if charges proved on this count the sentence is equal to driving motor vehicle BREACH OF ZERO ALCOHOL LIMIT: Contrary to Section 105 (1) (a) (2) and 114 of the Land Transport Act 35 of 1998.

7] The defence counsel tendered Devi v The State [2003] FJHC 47. I am mindful of that.

8] This court identifies that the situation is very pathetic. One has dead and gone and other one was injured critically seeking mercy of the god. Yet the court should apply the accepted norms without being emotional. The prosecution made half hearted opposition. I hold the prosecution has failed to rebut presumption of right to bail. The Accused is released on following bail conditions.

9] The Accused;

(I) To secure his own attendance at the Court by standing in his or her own recognizance in the sum of $10,000.

(ii) To provide one surety bail in the sum of $10,000 who is to ensure the attendance of the Accused at court.

(iii) To give $500 Cash bail

(iv) Driving licence of the accused is hereby suspended until further notice and LTA to be informed forthwith.

(v) To surrender his passport to the court before 4pm today, Immigration to be notified by faxing and in writing and the accused is placed travel ban out of jurisdiction till conclusion of this case.

• Is not to apply for a passport.

• And is not to travel overseas without further order from the court.

(vi) The accused should report to the nearest police station every Sundays Between 6am to 6 pm.

(vii) And is warned that breach of any of these conditions is likely to result in the cancellation of his bail and the issuance, if necessary, of a warrant for his arrest and a return to custody till he is tried.

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

11] 28 days to appeal.

On 27th May 2013, at Nasinu, Fiji Islands

Sumudu Premachandra
Resident Magistrate