Tuilekutu v State [2014] FJMC 3; Criminal Case 1986.2013 (7 January 2014)

IN THE MAGISTRATES COURT OF FIJI
AT SUVA
CRIMINAL CASE NO: 1986/2013

BETWEEN:

LEKIMI TUILEKUTU
APPPLICANT

AND:

STATE
RESPONDENT

Ms. Priya Lal from the Legal Aid for the Applicant
WPC Mere for the Respondent

Date of Hearing : 07th January 2014
Date of Ruling : 07th January 2014

RULING ON BAIL

1. The applicant is charged in this Court for one count of Attempted Rape contrary to section 208 of the Crimes Decree.
   
2. The applicant filed a bail application on 17th December 2013 seeking bail.
   
3. The reasons for bail for the applicant are as follows.
   
   1. Sole breadwinner of the family.
      
   2. Looking after the sickly mother.
      
4. The State filed the response on 07th January 2014 objecting to bail based on the seriousness of the charge.
   
5. The learned counsel from the Legal Aid also made oral submission regarding bail before me. She also submitted that the applicant is the sole breadwinner and there is no history of absconding bail or forfeiture of bail of the applicant.
   
6. Section 03 of the Bail Act of 2002 provides that the accused person has a right to be released on bail unless it is not in the interest of justice that bail should be granted. The presumption of granting bail to a person could be rebutted by the party who oppose to it and in this case the State has to rebut that.
   
7. Section 17(2) of the Act stipulates that the primary consideration in granting bail is the accused person appearing in the Court to answer the charge.
   
8. Section 19(1) of the Bail Act outlines the reasons for refusing bail and they are as follows:-
   
   1. The accused person is unlikely to surrender to custody and appear in court to answer the charges laid;
      
   2. The interest of the accused person will not be served through the granting of bail; or
      
   100. Granting bail to the accused would endanger the public interest or make protection of the community more difficult
        
9. In Isimeli Wakaniyasi v State ( 2010),FJHC 20;HAM 120/2009 (29th January 2010), His Lordship Justice Gounder held that "All three grounds need not exist to justify refusal of bail, existence of any one grounds is sufficient to refuse bail".
   
10. In Tak Sang Hao v The State [2001] FJHC 15 Her Ladyship Justice Shameem endorsed Adesh Singh & Ors and set down the factors that are relevant to a bail application. These relevant factors are:
    
    1. The presumption of innocence;
    2. Whether the accused person to appear to stand trial;
    3. Whether bail had been refused previously;
    4. The seriousness of the charges;
    5. The likelihood of the accused person re-offending on bail;
    6. Any interference with prosecution witnesses;
    7. The accused person's character;
    8. The accused person's right to prepare his defence;
    9. The likelihood of further charges;
    10. The State's opposition to bail.
        
11. I have considered the bail application, oral submission of the learned counsel as well as the response filed by the State.
    
12. Only ground for the state's objection is seriousness of the offence. I do not believe bail should be refused based only on this factor. Also even though the accused was convicted of 03 offences there is no history of him absconding bail before me.
    
13. Therefore based on the following conditions I grant bail to the accused.
    
    1. Bail in his own recognizance in the sum of $300
       
    2. With a surety in the sum of $300
       
    100. Not to interfere with the complainant and other witnesses
         
    4. Not to reoffend
       
    5. Report to Samabulla Police Station every Saturday between 8am to 6pm.
       
14. 28 days to appeal
    

07th January 2014

H.S.P.Somaratne
Resident Magistrate, Suva