Navuda v State [2013] FJMC 48; Criminal Case 356.2007 (23 January 2013)

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

Criminal Case No. 356 of 2007

Akuila Navuda [Applicant]

.v.

State [Respondent]

For Prosecution/State: Ms Madanavosa (DPP's)
Applicant/Accused : Present – Ms Doge (Muloilagi & Associates)

BAIL RULING

Introduction

This is an application for bail by the ed. The accused has has been remanded in custody since February 2012 after he had absconded bail.

Section 3(1) of t60;Ba60;Act provides that an accused has the right to be released on bail un60;unless less it is not in the interests of justice that bail should be granted. Consistint with this principle, section 3(3) of the Act provides that there is a presumpin faof the granting of bail to a person, but a pera personerson who opposes the granting of bail may seekebut the presumptiomption. In determining whether a presumption is rebutted, the primary consideration in deciding whether to grant b160;is the likeliof thusedhused person appearing in court to answer the char charges lges laid against him or her (section 17(2)).

Where bail&#s opp Section 18(1) o(1) of the Bail&Act requiresuires that that the party opposing bail addressfollowing three cera cerations:

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

he ints of the accused person;

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

Section 19(1) of the Bail&#1t provides that an a an accused person must be granted bail&#160 court unless:

:

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

(c) >(c) granting bai0; to the accused personerson would endanger the public interest or make the protection of the community more difficult.ection 19 (2) of the Act sets out a series of conf considerations that the court must take take into account in determining 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 condition>

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

(iv) the strength of the prosecution case;

(v) the severity of the l penaf the person is f is found ound 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 conditions

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

(iii) the likelihood of the accuseson cting an arrestablstable offe offence while on bail .

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

The applicant has stated in his affidavit filed with the notice of motion that he had informed the Court about his work in Labasa and the matter was adjourned for a longer period. He further states that one Paul Cooper was to assist him and he did not do so. .

The Court has noted the law on Bail and the submissions by the applicant and the prosecution. This Court has perused the Court records and does not find any record of the accused informing the Court of his work in Labasa. The Court notes that the accused was not present for the hearing on 1st February 2011 and a bench warrant was issued for him. On 13th February 2012 the accused was presented in Court and he told the Court that he was in Vanua Levu with his wife who had given birth and that he was with them throughout. He did not inform the Court of anything else. The Court noted that the accused did not appear on hearing date and was on bench warrant and the Court has remanded him in custody until the conclusion of the hearing.

Having considered the application, The Court is satisfied that the applicant is a flight risk. He was given bail once and he did not abide by the bail conditions. He did not respect the liberty given to him by this Court. He went away to Labasa and came back when he wanted to. Having considered all matters and in the interest of justice this Court is not satisfied that the accused be granted bail. The accused is the author of his situation and by absconding when hearing was set he has set off this matter by a number of years.

This Court would now set hearing of this case and wishes to see that this matter is heard within the next month or so. The reason for this is that this is a 2007 case and it must be promptly dealt with. Accused is remanded in custody until hearing. Bail is refused. The applicant is advised that he has a right of appeal this decision to the High Court within 30 days.

Chaitanya Lakshman
Resident Magistrate

Suva
23rd January 2013