State v Tawake [2013] FJMC 241; Criminal Case 329.2013 (18 June 2013)

IN THE FIRST CLASS MAGISTRATES COURT
NORTHERN DIVISION AT LABASA

Criminal Case No: 329 of 2013

STATE

–v-

MIKAELE TAWAKE

DETAILS

Before : Resident Magistrate, Tomasi Bainivalu
For Prosecution :- PC 966 Lui Daurewa
For Accused :- Appearing in person
Date of Bail Ruling :- 18th June 2013.

BAIL RULING

The Application

1. The accused person appeared before me this morning under Police custody on the alleged offence of Indecent Assault: - contrary to section 212(1) of the Crimes Decree 44 of 2009.
   
2. The accused plea was taken and he offered a plea of not guilty.
   
3. The prosecution submitted their grounds in objecting to bail as follows:-
   
   • The accused had some previous convictions of serious sexual offences of the same nature; he was convicted and sent to prison for 2 years in the year 2011 for 2 counts of indecent assault and 1 count of sexual assault. (PCs tendered in court)
     
   • Secondly, the victim in the present case is a 7 year old child.
     
4. The accused, Mikalele Tawake on the other hand, sought bail with reasons that he is a sole bread winner of his family, have 3 children who are all attending school and wife is currently 6 months pregnant.
   

The Bail Principles

5. Section 3(1) of the Bail Act creates a right to bail for an accused. This right is subject to restrictions justified in the interest of justice. Consistent with this right, section 3(3) of the Bail Act declares that there is a presumption in favour of the granting of bail to an accused person, but a person who opposes the granting of bail may seek to rebut the presumption. In determining whether a presumption is rebutted, the primary consideration in deciding whether to grant bail is the likelihood of the accused person appearing in court to answer the charges laid against him or her.
   
6. Where bail is opposed, section 18(1) requires that the party opposing bail address the following considerations:
   

(a) the likelihood of the accused person surrendering to custody and appearing in court;

(b) the interests of the accused person;

(c) the public interest and the protection of the community.

7. Section 19(1) of the Bail Act provides that an accused person must be granted bail by a court unless:

(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; or

(c) granting bail to the accused person would endanger the public interest or make the protection of the community more difficult.

8. Section 19(2) of the Act sets out a series of considerations that the court must take into account in determining whether or not any of the three matters mentioned in section 19(1) are established. Those matters are:

(a) as regards the likelihood of surrender to custody –

(i) the accused person's background and community ties (including residence, employment, family situation, previous criminal history);

(ii) any previous failure by the person to surrender to custody or to observe bail conditions;

(iii) the circumstances, nature and seriousness of the offence;

(iv) the strength of the prosecution case;

(v) the severity of the likely penalty if the person is found guilty;

(vi) any specific indications (such as that the person voluntarily surrendered to the police at the time of arrest, or, as a contrary indication, was arrested trying to flee the country);

(b) as regards the interests of the accused person –

(i) the length of time the person is likely to have to remain in custody before the case is heard;

(ii) the conditions of that custody;

(iii) the need for the person to obtain legal advice and to prepare a defence;

(iv) the need for the person to beat liberty for other lawful purposes (such as employment, education, care of dependents);

(v) whether the person is under the age of 18 years (in which case section 3(5) applies);

(vi) whether the person is incapacitated by injury or intoxication or otherwise in danger or in need of physical protection;

(c) as regards the public interest and the protection of the community-

(i) any previous failure by the accused person to surrender to custody or to observe bail conditions;

(ii) the likelihood of the person interfering with evidence, witnesses or assessors or any specially affected person;

(iii) the likelihood of the accused person committing an arrestable offence while on bail.

The Likelihood of surrender to custody

9. The accused said that he is the sole bread winner of his family with 3 children and a 6 month pregnant wife; and he will avail himself in court at any time if given any strict bail conditions.
   
10. The prosecution states out that the accused had some previous convictions of similar sexual offences in nature; and the victim in this current offence is 7 years of age.
    
11. The seriousness of the offence and the accused previous convictions are no doubts factors to be considered, but it is not a factor that alone forms a ground to refuse bail. The presumption of innocence applies to every accused person, no matter how serious the offence is.
    
12. Though there is no previous history of absconding bail or breaching bail conditions of the accused, submitted to this court by the prosecution; and the fact that prosecution had limited grounds to keep the said accused person in custody.
    
13. The court on the other hand, must not ignore the fact that the alleged incident occurred last week, together with the age of the victim and the accused previous sexual offences records; in my view at this stage, is a strong incentive grounds to refuse bail to the accused person.
    

The Result

14. For the above reasons and analysis of the brief submissions from the prosecutor and accused person, this court at this early stage of the proceedings decided not to grant bail on the accused person; therefore bail is refused accordingly.
    
15. In pursuant to section 20(3) of the Bail Act, you hereby immediately reminded and duly informed of the procedure of reviewing bail under section 30 of the Bail Act and should you wish after 14 days from to date, this court will review any further bail applications subject to any change of circumstances.
    
16. Accused is hereby remanded in custody and to be brought back to court on the 02nd day of July 2013.
    

Orders Accordingly.

........................................
Tomasi Bainivalu (Mr)
Resident Magistrate
LABASA
18th June 2013

Distributions
:-Prosecution copy
:-Accused copy
:-File copy (329/2013)