Christopher v State [2013] FJMC 4; Case 1918.2012 (10 January 2013)

IN THE RESIDENT MAGISTRATE'S COURT OF FIJI
AT SUVA

Case No: 1918/12

BETWEEN:

MICHAEL CHRISTOPHER
SUNIA GERUA
VIKASH VINAY PRASAD
APPLICANTS

AND:

THE STATE
RESPONDENT

First & second applicants : - In person.
Third applicant : - Mr. Singh.
Respondent : - Ms. Tikoisuva (for DPP).

BAIL RULING

1. This is an application for bail pending trial.
   
2. The accused-applicants, (hereinafter referred as the Applicants), stand charged on a count for having committed the offence of 'Receiving Stolen Property' punishable under Sections 306 of the Crimes Decree No 44 of 2009.
   
3. The alleged offence was committed between the 13.12.2012 and 14.12.2012.
   
4. Initially the matter was adjourned to facilitate the prosecution to provide further disclosures. In the meantime applicants made their application for bail.
   
5. The respondent did not objection for the said application. The learned state counsel further submitted oral submissions before this Court to substantiate their stance.
   
6. This application is governed by the provisions of the Bail Act No 26 of 2002, which provides a heavy presumption in favour of granting bail pending trial to the accused persons.
   
7. Section 3 of the Bail Act 2002 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'. Although the favour of these words is more towards applicants, view of this Court is, it does not invest an absolute right on them to be released on bail.
   
8. The party opposing bail has to rebut this presumption on balance of probabilities. Although the person who opposes for bail can rebut the presumption, I am of the view that the court is also vested with power independent of such opposition to consider issues relating to "interests of justice" and "public interest" under Sections 3(1), 19 (1) and 19 (2) of the Act.
   
9. Bail should be granted unless the Court is satisfied of any one or more of the considerations set out in section 19(1); where it says,
   

(a) The accused is unlikely to surrender to custody and appear in Court;

(b) The interest of the accused will not be served through granting bail;

(c) Granting bail would endanger the public interest or create a situation where the protection of the community will be more difficult.

All 3 grounds need not exist to justify refusal of bail. Existence of any one ground is sufficient to refuse bail. { Wakaniyasi v State [ 2010 FJHC 20]}

10. The primary consideration of the Court 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.
    
11. At the outset I note that the charge against the applicants carries a maximum punishment of 10 years imprisonment if found guilty. It cannot be considered as a trivial offence. The defendant states that the case for prosecution is strong. It appears that the alleged incident took place in joint enterprise. The amount received as stolen items is $ 21,900 in cash and it was submitted that this was the new currency which printed with different amendments of the face appearance by the Reserve Bank. The offence took place few days prior to the release of new currency by the government.
    
12. However the common factor in these applications is all applicants are first offenders with no evidence of previous attempts to evade lawful custody. When the Court inquired from the prosecution it was submitted that they even co-operated with the police to find all stolen items. Further it was submitted that the prosecution is satisfied with the proposed sureties for the first and second applicants. The counsel for the third applicant stated that they are in a position to provide another surety for the applicant. It was stated that all applicants face difficulties during their stay in remand custody.
    
13. When this Court requested submissions on the applicant's family ties the learned state counsel stated that they only conducted a general background check as they require further court orders to check on the actual whereabouts of the applicants. Further submitted that none of the applicants have necessary means to evade future Court proceedings.
    
14. The Court cannot accept this position of the learned state counsel. A person should not necessarily have a financial ability to evade judicial proceedings. If the charge, the circumstances and the penalty is somewhat considerable, an accused person might attempt to disregard his bail bonds if he doesn't have strong family and social ties.
    
15. It is to be noted that their individual applications for bail, do not disclose that they have strong ties with the community. In the absence of such material before this Court, it is not difficult to conclude that applicants are persons with flight risk.
    
16. Having considered the foregoing facts, I conclude that the community background of applicants are such that 'interests of justice' make ineffective the 'right of the applicants to be released on bail'.
    
17. The applicants of this case are not entitled to be released on bail pending trial. However it will be reconsidered in the event of any 'change of circumstances'.
    
18. Application for bail is dismissed accordingly.
    
19. Above named applicants are advised on their right to appeal to the High Court within 28 days.
    

Yohan Liyanage
Resident Magistrate

10th January 2013