Tuwai v State [2014] FJMC 6; Criminal Case 727.2011 (14 January 2014)

IN THE MAGISTRATES COURT OF FIJI
AT SUVA

CRIMINAL CASE NO: 727/2011

BETWEEN:

KONIA TUWAI
APPPLICANT

AND:

STATE
RESPONDENT

Applicant in Person : WPC Mere for the Respondent
Date of Hearing : 14th January 2014

RULING ON BAIL

1. The applicant with two others are charged in this Court for one count of Aggravated Robbery contrary to section 311(1) (a) of the Crimes Decree No. 44 of 2009.
   
2. The applicant filed a bail application on 27th December 2013 seeking bail.
   
3. The reasons for bail for the applicant are as follows.
   
   1. He is not in a flight risk.
   2. Married with a child.
   100. The evidence is weak
        
4. The State filed the response objecting to bail based on the public interest and the likelihood of the accused surrendering to custody.
   
5. 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.
   
6. 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.
   
7. 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
        
8. 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".
   
9. 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.
       
10. I have considered the bail application as well as the response filed by the respondent.
    
11. The applicant is charged with a serious offence. The state is relying on the caution interview of the accused as well as the circumstantial evidence.
    
12. Also from the court record I note that the applicant failed to appear from 12/09/2011 to 07/10/2011 and again 25/05/2012 to 24/06/2013. On all these occasions the Court had to issue a bench warrant. This shows clearly that the applicant has a history of failing to appear in the Court.
    
13. Based on the above reasons I am not satisfied that applicant would appear in this court if granted bail to answer the charge.
    
14. Therefore I refuse granting bail to the applicant in this case.
    
15. 28 days to appeal
    

14th January 2014

H.S.P.Somaratne
Resident Magistrate, Suva