State v Naborisi [2014] FJMC 47; Criminal Case 333.2013 (27 March 2014)

IN THE MAGISTRATE COURT OF FIJI
AT RAKIRAKI
CRIMINAL JURISDICTION

CRIMINAL CASE NO. 333/13

BETWEEN:

THE STATE

AND:

SIRELI NABORISI, KULINIO NASILOKIA & APOLOSI RAUSANA

Prosecution: Mr Datt (DPP Office)
Accused 1: In Person
Accused 2: In Person
Accused 3: Ms Tarai (Legal Aid Office)

Hearing: 19th March 2014
Ruling: 27th March 2014

Bail Ruling

Background

1. The three accused persons are being charged with the offences of Aggravated Burglary contrary to section 313(1)(a) of the Crimes Decree no. 44 of 2009 and Theft contrary to section 291 of the Crimes Decree no. 44 of 2009. The second and third accused persons are separately charged for the offence of Breach of Order Suspending Sentence contrary to section 28(1) of the Sentencing and Penalties Decree No.42 of 2009.

2. The alleged offences of Aggravated Burglary and Theft are said to have occurred on 3rd November 2013. All three accused persons have been remanded in custody since 8th November 2013.

3. Accused persons made separate formal application for bail. Prosecution objected to the respective applications hence matter was fixed for hearing.

Issue

4. Whether accused persons should be released on bail?

Evidence

5. PW1 – DC Petero
He's the I.O. in this matter. He compiled the docket i.e. obtained statements and conducted interview. The accused persons were charged with aggravated burglary with theft. They were arrested and interviewed. Accused 2 & 3 admitted both offences. The first accused denied the offences. $7000.00 worth of items allegedly stolen and only two items worth $90.00 were recovered. The rest of items are still missing and according to information received the missing items in village of accused 1 and 2. He's aware of their bail application.

As to first accused's application he cannot confirm whether accused is a farmer and whether he resides with his father. He can confirm that first accused has been remanded in custody for 4 months and he has previous conviction which are mostly theft related. Interest of accused will be served if he is remanded in custody. He'll unlikely surrender to custody. It's not in public interest to release him on bail.

As to the second accused he's a farmer and he can't confirm whom the accused lives with. He has 4 previous convictions that are theft related. His interest will be served if remanded in custody. He'll unlikely surrender to custody. Not in the public interest to release him on bail.

As to third accused he's a farmer and living with parents. He doesn't have traveling documents. Cannot confirm whether his going to comply with bail condition. He admitted the offence. He has a previous conviction for Setting Fire to Crops. He's also charged for Breach of Suspended Sentence. Accused had received Legal Aid when remanded in custody. Missing stolen items alleged to be in accused village. Not in public interest that he be released on bail.

In cross examination by 1st accused he stated that accused has no breach or absconding bail previous conviction. 1st accused was linked to the offence through information from source. Alleged stolen items on information received said to be in accused village.

For the 2nd accused he stated that only one long sleeve shirt and one flash net was recovered.

As to the 3rd accused they've received information that some missing items are in 3rd accused village and they haven't recovered anything yet. The 3rd accused has no previous conviction for breach of bail but only setting fire to crop. 3rd accused is not a threat to society.

In re-examination he stated that the said missing items are said to be kept at the village of accused 1 & 2 and also the village of accused 3. Their villages are close to each other.

6. Accused 1 – Sireli Naborisi
He stated that he will never breach bail condition and will attend court on all occasions. He will reside in the village pending final determination of the matter. Will look after father and farm and will not interfere with prosecution witnesses.

In cross examination he stated that he has previous conviction for shop breaking and also giving false information to police. He stated that he has already been dealt with in the said matters and he also gave false information to police when he was drunk. He admitted that the current charge is related to his previous convictions.

In re-examination he stated that he has already served for the past offences. He committed those offences through peer pressure and whilst living outside the village.

7. Accused 2 – Kulinio Nasilokia
He opted to remain silent and relied on his application.

8. Accused 3 – Apolosi Rausana
He was working as a farmer before being arrested for the alleged offences. He requests for bail as he wishes to pursue further studies and also look after his elderly parents. He'll reside at Rokovuaka village and comply with all bail conditions. He has not breached any bail condition before and promises not to interfere with witnesses and they live far from each other. His parents are sickly. He's been in custody for the 5th month now. He has no passport and is no a threat to society.

In cross examination he stated that from 2011 to 2013 he was involved in farming. In 2012 he had taken some course and because of this case he stopped doing his studies. When offence occurred he was residing at Ellington and not residing with parents then. He was cutting cane at and sending money to them. At that time he's parents were living alone and looking after themselves.

In re-examination he stated that upon returning to the village he was then charged for the offence.

Law & Analysis

9. The gist of prosecution application is that all accused persons have previous convictions. That majority of stolen items has not been recovered and still at large and two of the accused were on suspended sentences when the current allegation came about. According to prosecution it's not in the public interest that accused persons be released on bail.
On the other hand the underlying basis of the three accused person's application is the likelihood of them appearing in court to answer the charges. None of them have any previous convictions for breach of bail and they will comply with all bail conditions

10. According to section 3(1) of the Bail Act 2002 "Every accused person has a right to be released on bail unless it is not in the interest of justice that bail should be granted."

11. There is always a presumption in favor of bail for every accused person nonetheless the party opposing bail may rebut that presumption by proving on a balance of probability that accused ought not to be released on bail.

12. Section 19 of the Bail Act 2002 sets out the relevant criteria for the courts consideration when determining whether bail should be refused i.e.

(i) That accused is unlikely to surrender to custody and appear in court;

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

(iii) Granting bail would endanger the public interest or make the protection of the community more difficult.

13. The court need only be satisfied with any of the criteria's above for bail to be refused. (see para 13: Wakaniyasi v State [2010] FJHC 20)

14. I bear in mind that bail hearings are not for the purpose of determining innocence or guilt of any suspect. It is for the purpose of resolving whether an accused should be released on bail or refused bail in the interest of justice, pending the outcome of the substantive charge.

15. Apparently two accused in this matter namely Kulinio and Apolosi were on duration of their respective suspended terms when the current matter arose. The two accused by being charged for the current offences have brought suspicion upon themselves and therefore they cannot be trusted.

16. In addition the first and second accused persons have previous convictions that are theft related and said to be offences of dishonesty. The court thus has reservation that they will comply with bail conditions if released on bail. Further there are admissions by the second and third accused persons in their caution interview. A confession if accepted by the court will result in a conviction and accused persons will likely face immediate custodial sentences due to their background. In addition I further note that most of the stolen property are yet to be located and accused persons are likely to interfere with them if released on bail. Moreover I've also considered the likely time accused persons will have to spend in custody before hearing nonetheless the court can consider that for purpose of sentencing assuming there's a conviction.

17. I've considered what has been placed before the court by all three accused persons that none of them has previous offending for breach of bail. However when balancing their right with the interest of justice and the public interest, I find that the interest of justice and public interest far outweighs accused persons right to be released on bail.

18. I'm satisfied on the balance of probability that prosecution has rebutted the presumption in favor of granting bail. It's not in the interest of justice and public interest that accused persons be released on bail.

19. I therefore refuse bail and order that all accused are be remanded in custody pending hearing of the matter. All three accused are at liberty to appeal this decision to the High Court.

20. The court will ensure that this matter is heard as soon as practicably possible.

Samuela Qica
Resident Magistrate

27th March 2014