Taniela v State [2013] FJMC 403; Criminal Case 1418.2013 (1 November 2013)

THE REPUBLIC OF FIJI ISLANDS
IN THE MAGISTRATE'S COURT
AT SUVA
IN THE CENTRAL DIVISION

Criminal Case No: 1418 of 2013
Extended Jurisdiction: 78 of 2013

Peni Taniela and David Kutty
Applicants

v

State
Respondent

For Prosecution/State: Ms Naiua and Mr Vosawale (DPP's)
Applicant/Accused : Both Present - In person

BAIL RULING

Introduction

This is an application for bail by the accused persons. Thu accused have been remanded in custody since 5th August 2013 after the case was first called and transferred to the High Court.

Section 3(1) of the Bail Act provides that an accussd has the right to be released on bail unless it is not in the esterests of justice that bail&#hould be granted. Con. Consistent with this iple,ion 3(3) of the Act provides that there is a pres presumptiumption in favour of the granting of bail to a persot a person wson who opposesgranting of bail #160;may seek tutrebe presupresumption. In determining whether a presumption is rebutted, the primary constion in deciding whether to grant bail&#16the like likelihoodihood of the accused person appearing in court to answer the charges laid against him or her (section 17(2)).

Where bail is ed, Sn 18on 18(1) of thef the Bail&#1t requires that the the party opposing bail address the fong wiree cons considerations:

(a) the likelihood of the accused pesurreng toody andy and appe appearing in court;

(b(b) the interests of the accused person;

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

Section 19(1) of the Bail Act des tn a an accused perd person must be granted bail by a court s:

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(a) the accused person is unlikely to surrender to custody and r in to answer the charges laid;

(>(b) thb) the interests of the accused person will not be served through the granting of bail; or

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

Section 19 (2) of the Act sets out a series of considerations that the cmust into account in d in determetermining whether or not any of the three matters mentioned in section 19 (1) are established. These 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 ition>

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

(iv) the strength of the prosecution case;i>(v) the severity of the likely penalty if the pthe personerson 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 dependants);

(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 tions

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

(ihe likelihood of the accused person committing anng an arre arrestable offence while on bail&#16i>

In a>In addition to these matters, the court must also bear in mind the presumption of innocence. This is that an accused person is presumed innountil proven guilty by the Court.

In this appl application the State opposes bail fch of the accused perd persons. For the 1st accused, the prosecution has submitted that he has previous history of absconding bail, the seriousness of the charg the expected sentence make the accused a flight risk. In a In addition the prosecution stated that if the accused is given bail he might re-offend.

For the 2nd accused, prosecution objects on the following ground that the accused is likely to re-offend while on bail and the seriousness of the charge makes the accused a flight risk.

The applicants have not made any substantive application for bail nor have they given adequate assurances to this Court of re-appearing in court on the next given dates.

Having considered the application for bail by the accused persons. The Court is satisfied that the applicants are a flight risk. In public interest both accused will be remanded in custody and as both have entered pleas of not guilty and made their grounds of voir dire available this case will now be set for hearing. hearing

Both accused are remanded in custody until hearing. Bail is refused. The appts are aare advised of the right to appeal this decision to the High Court within 30 days.

Chaitanya Lakshman
Resident Magistrate

Suv
1st November 2013

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