State v Ravudi [2014] FJMC 177; Criminal Case 125.2013 (19 May 2014)

IN THE RESIDENT MAGISTRATE'S COURT AT NASINU
Criminal Case No. 1251/13

STATE

v

OPETI RAVUDI

Ruling on bail

1] The accused charged with one count of Aggravated Robbery Contrary to Section 311 (a) (a) of the Crimes Decree 2009.The case was mentioned for plea on 4th February 2014 and the accused pleaded guilty of the charge against him. Then the case was adjourned for Summary of Facts on 10th of February 2014. At 10/02/2014 the Summary of Facts was read out in Court and the accused understood and admitted the same. Then the case was adjourned for Sentencing on 23rd June 2014. The accused made an application on 10th Feb 2014 for bail pending his sentence Based on the following grounds;

• Family obligation
• Right to personal liberty
• The assurance of the accused person in this court
• Bail offences
  

2] In response to the application for bail the State's raised objection that the accused has no right to bail at this stage as he has pleaded guilty since the presumption in favour of bail is displaced when an accused is convicted .therefore the accused must be kept in further remand custody until sentence issued by the court .The state counsel filed written submission with regard to their stand. This court think before considering granting or refusing of bail to the accused it might be useful to address the legal issue on jurisdiction of the magistrate court to grant bail at any stage including pending sentence, more specifically after the plea of guilty formally entered.

3] The "right" to be released on bail is canvassed in Section 3(4) of the Bail Act 2002, talking about the presumption regarding bail states:

[4] The presumption in favour of the granting of bail is displaced where:-

[a] the person seeking bail has previously breached a bail undertaking or bail condition; or

[b]the person has been convicted and has appealed against the conviction.

The Section 3(4) of the bail act specifically referring about a PERSUMPTION of granting bail or to RIGHT OF BAIL but nothing else. Meaning of this section is that an accused cannot seek bail as a right or the court has no burden over the accused citizen/person or the court should not consider bail as a right of the accused citizen/person if the said accused has previously breached the bail condition or the accused has been convicted and appeal against the conviction. This court thinks this section is a guideline to court on using of its authority at the determination of application of bail and which does not give any basis for the state to relay on when they opposing to bail. It is a Statement on changing the status of the jurisdiction or the court's powers but nothing else.

4] This legal stand has been accepted by Fiji court of appeal at Mudaliar v The State [2006] FJCA 50 (28 July 2006) [Para 6] the full Court of Appeal in deciding a bail pending appeal;

"Following conviction there is no longer a presumption in favour of bail. Bail Act 2002 s.314(b)". (per Gallen, JA Ellis, Scott, JA)

5] When the accused person/citizen has previously committed breached of bail condition or has been convicted and has filed an appeal against the conviction, the court's liberty or discretionary a power automatically shifted to a higher stand. Hence the court would act more freely on determining the application for bail. Presumption of granting bail put burden on court to justify their decision on denial of bail and if the presumption rebutted by the prosecution; granting of bail is transformed from RIGHT of the accused person/citizen to subject of discretionary power of the court. More or less yet the court has its original jurisdiction or the powers to take decision on granting or refusing the bail on the basis of available merits before it. It must be noted that what happening at this point is that the accused person/citizen is only losing the presumption on his /her favour of the right of liberty or more specifically right on granting of bail.

6] Some case authorities mentioned in state counsels submission is supporting the above mentioned stand. In the Court of Appeal decision Matai v State [2008] FJCA 89 (22 December 2008); Her Ladyship Justice Scott relied on Amina Koya v State Crim App. No. AAU0011/96 where His Lordship Sir Moti Tikaram as the President of the Court of Appeal said:

"I have borne in mind the fundamental difference between a bail applicant waiting trial and one who has been convicted and sentenced to jail by a Court of competent jurisdiction. In the former the applicant is innocent in the eyes of the law until proven guilty. In respect of the latter he or she remains guilty until such time as a higher court overturns, if at all, the conviction. It therefore follows that a convicted person carries a higher burden of satisfying the Court that the interests of justice require that bail be granted pending appeal".

More specifically even formally convicted accused has right to file application for bail and the court do have the same or may be higher discretionary jurisdiction to determine the same. This court think it is wrong in law to say that any accused that has pleaded guilty is permanently even for a certain period of time has lost his human rights with regard to personal liberty at any staged of the proceedings.

7] In Hayes v The Queen (1974) 48 ALJR 455 Mason J of the Australian High Court at 591 held:

"bail after conviction is granted in an exceptional case only"

Further In Chand v State [2011] FJHC 706 (7 November 2011); His Lordship Mr. Justice Fernando held:

"As the applicant stands convicted presumption of bail being granted is displaced in terms of Section 3(4) (b) of the Bail Act 2002. Therefore the applicant is not entitled to bail as of right"

two legal principles could be derived out of above two cases first since direct connection to personal liberty of a citizen the jurisdiction of court on determining bail application unless limits recognised by law must not subject to suspend at any stage of proceedings and secondly the section 3(4) of the bail act 2002 is not preventing any accused from make application for bail but is only providing limitations on the application of the presumption of granting bail as right.

8] Since facts of two cases mostly different from each other every case must be determined one by one as the case may be or subjectively. "There can't be hard and fast rules in law but general rules to ascertain each case on its available merits". especially when the issue is a one which is connected to a universal values or human rights such as the "right to personal liberty "or "right to life" all the institutions in the country must act subjectively and not objectively. It should be noted that all the provisions of legislature or case law might provides guidelines to court when the discretionary powers involve. But every case is a fresh case to the court which should determine subjectively to find justice.

9] According to chapter 2 – BILL OF RIGHT; article 8, 9 and 12 and 13 of the CONSTITUTION OF THE REPUBLIC OF FIJI 2013 as the member of the human society all the persons have rights which involve with the freedom of life or personal liberty. According to Section 3; since the constitution is the supreme law of the country all the other source of law including case law considered to be valid as long as which is consisting with the constitution or will be remain as invalid authorities.

10] The article 6 of the constitution has specifically stated that the judiciary is bind by the bill of rights or chapter 2 of the constitution as the executive and legislature .Therefore this court is not an exception and it has to respect, promote and fulfil the right and freedoms recognised as the other parts of the governing machine of the republic. This court is mindful of the fact that the constitution itself has provided limitation for above mention human rights such as executing of sentence , contempt proceeding or order of the court etc. Article 9(1) (a) states that "a person's personal liberty not to be deprive except for the purpose of executing of the sentence or order of the court.....in respect of an offence of which the person has been convicted". Further the constitution has imposed limitation on court desecration on detaining persons for executing orders with regard to the maintenance or debt, fine or tax unless there is wilful refusal form the person. These articles have recognised and established the universal value and untouchable nature of personal liberty of a person. The constitution is the supreme law of the country hence all the other enactments what's so ever should read with the light of the norms and article of it. Therefore provisions or lacunas of the Bail Act 2002 must be interpreted accordingly without any limitation what so ever presently existing in legislative or case law.

11] This court noted that According to section 3 of the bail act 2002 the presumption in favour of right of bail is not displaced when there is no previous breached of bail condition or the accused has not been convicted and appealed against it. After considering the case authorities mentioned this court agreed with State contention in written submission on the point of that the accused have to be considering as the convicted person since the applicant pleaded guilty and admitted the Summary of Facts, and the Court adjourned the matter for Sentencing. But since there is no formal sentence pronounced by court present case is not governing by section 3 of the bail act 2002. The learned state counsel has raised question of law that the applicant applies for bail as he awaits his sentencing but none of the provisions in the Bail Act allows for such a situation and after conviction, a bail application can only be made if the accused appeals against his conviction and in the present case, no appeal against conviction has been filed.

12] This court do agrees with the state counsel and described the situation as the lacuna in law of Fiji. More precisely the bail act 2002 is silent with regard to granting bail for the accused person/citizen whom is awaiting sentence which only has provisions on grant bail to fresh accused persons/citizens and convicted persons/citizens but no provision for the accuseds whom plead guilty and awaiting pending sentence. This court think said lacuna of the law should be interpreted in the light of the constitution of the republic the supreme law of the country. It is wrong and unacceptable in law to declare that the accused permanently has lost his/her constitutional right due to pleading guilty before the court of law time period of plea to sentencing.

13] According to day to day judicial practice of Fiji if an accused granted bail and in a later stage if the accused pleaded guilty unless there are sufficient reasons the bench will not cancel the pending bail. But adjourned the matter for sentence and the accused is using his right of freedom as the other citizens of the country and would go back to his resident and file his mitigation on next court date. Reason behind this practice is that the sentencing has no relevancy on bail and the only necessity to be considered at a ruling bail is not the conviction but surrendering of the accused to court. As long as the court is satisfied with surrendering of the accused to court any court has jurisdiction to grant bail. This court think same procedure must be adapted to present case as well.

14] The state has come to a conclusion based on The very same fact of that sentencing has been fixed for 23rd June 2014 indicates that the Court has accepted and determined the guilt of the accused by finding him guilty of the offence he is charged with and that he now stands as a guilty person awaiting sentence and the accused must be kept in further remand custody. The state further suggesting that the conviction is deemed to be entered even at this stage, therefore this court has to refuse the application for bail tendered by the accused and the only available Section for apply bail is when the accused files an appeal against conviction and so far the accused has not done it the applicant cannot rely on the presumption in favour of bail. Since the accused has convicted and still there is no appeal filed by the accused this court has to refuse the bail or the jurisdiction of this court on bail is limited.

15] This court do not agree to the above suggestion of the state since court has been granted more discretionary powers when presumption in favour of granting bail displeased than it applies. The learned state counsel submitted several case authorities to denote the word "conviction". This court agrees on those provided interpretations by higher courts of Fiji. Further noted that most of the authorities mentioned in the state written submission has different facts from the present case due to the fact this is a matter of application for bail pending sentence and therefore appeal option is not available to the accused and whom hold nil previous conviction report more precisely without previous forfeiting of bail history and has being at remand for more than 5 months. Therefore this court distinguished the all the mention cases in written submission since most of these are discussed on the topic of failure to enter conviction on the case record and/or excessive sentence except below specifically discussed case authorities.

16] This court do recognised the difference between the applicant awaiting bail pending appeal and an applicant who has been convicted. In Qarase v Fiji Independent Commission Against Corruption [2012] FJCA 102 (5 December 2012): the Court of Appeal marked this difference in an application for bail pending appeal where His Lordship Mr. Justice Suresh Chandra said at paragraph 10:

"Unlike in the case of an accused applying for bail pending that where the general presumption of bail is applicable, an Appellant after conviction has to meet the high threshold of showing that his appeal is highly likely to succeed in appeal. I would restate this position by referring to my Ruling in Monika Arora v State Criminal Appeal AAU0001 of 2012 where I have cited the dictum of His Lordship Sir Moti Tikaram in Amina Koya v State Criminal Appeal No. AAU11/96:

"I have borne in mind the fundamental difference between a bail applicant waiting trail and one who has been convicted and sentenced to jail by a Court of competent jurisdiction. In the former the applicant is innocent in the eyes of the law until proven guilty. In respect of the latter her or she remains guilty until such time as a higher Court overturns it at all, the conviction. It therefore follows that a convicted person carries a higher burden of satisfying the Court that the interests of justice require that bail be granted pending appeal".

17] But this court noted that above sited cases only relevant to a bail applicant awaiting trial or convicted and sentenced accused but not for an accused awaiting sentence. Therefore this court distinguished above 2 cases from present matter in question. The state has raised question on a specific fact that whether A PERSON CONVICTED WHEN HIS GUILT HAS BEEN DETERMINED OR IS HE CONVICTGED ONLY WHEN HE HAS BEEN SENTENCED? AND have mentioned obiter dictum of Sivaro vs State [1998] FJCA 18. Since the facts are deferent from present case said case law has no relevancy to percent case as there is no sentence entered without a formal conviction in this case. This dictum only applicable at a situation where the formal conviction is not available in the file record and which does not minimise the importance of entering the formal conviction but provide interpretation for failure of the bench when entering sentence. In short this case law only provides answer for lacuna but not a strict rule or norm on sentencing.

18] In Sivaro vs State [1998] FJCA 18 where the applicant had pleaded guilty in the High Court to the offence of robbery with violence and was sentenced to 4 years imprisonment. He appealed his sentence saying that it was harsh and excessive. However before the Fiji Court of Appeal dealt with the sentence appeal, it also considered an issue that the Court record did not disclose a conviction being entered against the appellant. The Court of Appeal at page 6 paragraph 4 of the judgment held.

"Before we deal with the quantum of sentence we wish to refer the fact that the appeal book does not disclose that a conviction was entered in this case.

Section 281 of the Criminal Procedure Code Cap. 9 states:"If the accused pleads "guilty" the plea shall be recorded and he may be convicted thereon".

The permissive "may" is designed to cater to a situation (as the present case) where the trail Judge may not wish to enter a conviction for some reason. Since the main issue of this case is jurisdiction of magistrate court on bail application but not finding interpretation on conviction this court will not consider all the other mentioned cases.

19] But this court accept the ruling in Brown v State [2007] FJHC 73 (19 November 2007). His Lordship Mr. Justice Goundar in Brown v State [2007] FJHC 73 (19 November 2007) used definition of conviction in sec: 2 of bail act 2002 for an application for bail pending appeal and at paragraph 7-8 His Lordship said:

"The terms of the above provision are broad. For the purposes of Section 17 there is no requirement that the word 'conviction' has to be recorded to constitute a conviction. A finding of guilt will suffice."

"According to the record, the learned Magistrate recorded the pleas of guilty, considered the facts and mitigation, and remanded the applicant in custody for sentencing. In my view the learned Magistrate has made a finding of guilt on the basis of the charges, guilty pleas, admitted facts and mitigation. Therefore, there has been a conviction."

According to above ruling any accused is entitled to file application for bail and it is not essential to record conviction. In fact these opinions support this court stand on bail applications. Even at this stage the accused could make application for bail and which will fall in to the category of bail pending appeal. Therefore it is incorrect in law to stop or deprive the accused from application for bail simply due to no formal conviction in the record.

20] For the above mentioned reasons this court decide to consider the accused application for bail. The accused has stated below mentioned grounds on applying for bail.

Family Obligation- Since He has a daughter who is one year old and staying with his parents at home and the mother of his child has left without his concern. His mother is not working and has taken care of what he suppose and also his responsibility to look after his daughter to care for her commit needs and to be by her side and to give a chance to engage with the mother of his child to bring her back home. Further he added before he was taken to Prison he was self-employed as a brush-cutter boy at his area in Naidiri Settlement and earns more and enough in a week to feed his daughter.

The accused has relying on the Bail Act of 2002, Section 19(2), (b), (iv),

(b) as regards the interests of the accused person- and (iv) the need for the person to be at liberty for other lawful purposes (such as employment, education, care of dependant).

Right to personal liberty – the accused mentioned Chapter 2, Bail of Rights in Section 9(1) of the Constitution of the Republic of Fiji,
"A person must not be deprived of personal liberty'

The assurance of the accused person in this Court-The accused promised that he will observe and abide the condition that is laid by this Honourable Court has given to the accused whilst on bail and the accused is to appear on the future date in Court to answer the charges laid until the case is complete.

Bail offences
The accused has no record of bail offences such as Absconding bail and forfeiture of bail bond and the accused has no travelling documents. The accused is seeking bail and had already entered a guilty plea by not wasting Court's time and tax payers' monies and also his time behind bars as he is responsible to bring his daughter back home.

21] After considering the above application this court grant bail to the accused subject to below specifically mentioned conditions.

(i) To secure his own attendance at the Court by standing in his or her recognizance in the sum of $1000;

(ii) To provide two sureties including at least one state employee in the sum of $1000 each. Who is to ensure the attendance of the Accused at Court and that the terms and conditions of this grant of bail are complied with. A copy of these conditions will be provided to each surety; and To attend Court on every Court dates;

(iii) To be of good behaviour and not to commit any offence whilst on bail; 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;

(iv) And not to change that address without the written leave of the Court which leave must be obtained before any change of address is made. The Prosecution must also be informed beforehand by the Applicant;

(v) Is place on curfew order every day between 8pm to 6 am and Is to report to the nearest Police Station, every sun day to Valalue Police Station Between 6am and 6pm;

(vi) To surrender his passport to the Court before released on bail or not to apply for a passport.

22] Application allowed. Subject to above conditions Bail granted to the accused.

23] 28 days to appeal

On this 19th day of May 2014

Neil Rupasinnghe
Resident Magistrate