State v Tokoni [2016] FJMC 132; Criminal Case 100.2015 (4 January 2016)

IN THE MAGISTRATE'S COURT
TAILEVU
REPUBLIC OF FIJI ISLANDS

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Criminal Case No. 100 of 2015

State

v.

Vairusi Tokoni

For State: Cpl Rao
Accused Person : Present – Represented by Ms Raisua (Legal Aid)

BAIL RULING

Introduction

This is an application for bail by the accused person. The applicant is charged as follows:

Count One

Unlawful Possession of Illicit Drugs: Contrary to Section 5 (a) of the Illicit Drug Control Act, 2004

Vairusi Tokoni on the 31^st day of October 2015 at Delakado, Dawasamu, tailevu in the Central Division without lawful authority had in his possession 12.5 gramms of Cannabis Sativa or Indan Hemp an illicit drug.

Count Two

Unlawful Cultivation Drugs: Contrary to Section 5 (a) of the Illicit Drug Control Act, 2004

Vairusi Tokoni on the 31^st day of October 2015 at Delakado, Dawasamu, tailevu in the Central Division without lawful excuse cultivated 3.6 Kilograms of Cannabis Sativa or Indan Hemp an illicit drug.

Section 3(1) of the Bail Act provides that an accused has the right to be released on bail unless it is not in the interests of justice that bail should be granted. Consistent with this principle, section 3(3) of the Act provides that there is a presumption in favour of the granting of bail to a person, but a person who opposes the granting of bail may seek to rebut the presumption. In determining whether a presumption is rebutted, the primary consideration in deciding whether to grant bail is the likelihood of the accused person appearing in court to answer the charges laid against him or her (section 17(2)).

Where bail is opposed, Section 18(1) of the Bail Act requires that the party opposing bail address the following three considerations:

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

(b) the interests of the accused person;

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

Section 19(1) of the Bail Act provides that an accused person must be granted bail by a court unless:

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

(b) the interests of the accused person will not be served through the granting of bail; or

(c) granting bail to the accused person would endanger the public interest or make the protection of the community more difficult.

Section 19 (2) of the Act sets out a series of considerations that the court must 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 conditions;

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

(iv) the strength of the prosecution case;

(v) the severity of the likely penalty if the person is found 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;

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

(iii) the likelihood of the accused person committing an arrestable offence while on bail .

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

In this application the State opposes bail. The State was concerned with the quantity of drugs. There were confessions in accused caution interview and the accused is looking at a custodial term if found guilty. The chance of reoffending is high.

For the accused the defence seeks strict bail condition. They have provided a surety. The accused is not employed and is a farmer.

The Court has noted the law on Bail and the submissions by the applicant and the prosecution. The maximum for the offence is life in prison. The charges against the Applicants are indeed serious. If convicted the Applicant is facing an immediate custodial sentence. There is a strong incentive for him to abscond bail.

Having considered the application, this Court is satisfied that the Applicant is a flight risk. The Court is further satisfied that granting bail to the Applicant is not in public interest as he might not appear on the next date in Court.

Bail is refused. The accused person is remanded in custody. The Applicant is advised that has a right to review this decision or appeal against this decision to the High Court within 30 days.

Chaitanya Lakshman

Resident Magistrate

4^th January 2016