State v Waqabaca [2016] FJMC 147; Criminal Case 70.2015 (31 May 2016)

IN THE MAGISTRATE’S COURT
NAUSORI
REPUBLIC OF FIJI ISLANDS

Criminal Case No. 70 of 2015

State

v.

Tiko Waqabaca

For State: PC Abinash
Accused : Present – Mr Chand (Legal Aid)

BAIL RULING

Introduction

This is an application for bai0;by the accused. The aphe applicant is charged with a count of aggravated burglary and theft.

Section 3(1) of the Bail&Act provides that an a an accused has the right to be released on bail unless it is not in the isterests of justice that bail&#1ould be granted. Con. Consistent with this principle, section 3(3) of the Act provides thera presumption in favour of the granting of bail to a person, but a pewson whon who oppo opposes the granting of bail may seek tot the presumptiomption. In determining whether a presumption is rebutted, the primary consideration in deciding whether to &#160&#160he like likelihood of the accused person appearing in court to answer the chargesarges laid laid against him or her (section 17(2)).

Where bail is od, Se 18on 18(1) of thef the Bail&#16 requires that the the party opposing bail address the folg winee cons considerations:

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

(c) the public interesterest andt and the protection of the community.

Section 19(1) of the Bail Act provides thaa an ed perd person must be granted b160;by a court unless:

:

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

(c)i>(c) granting bail to the accused person woudd endanger the public interest or make the protection of the community more difficult

Section 19 (2) of the Act sets out a series of cons 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;

(iv) the strength of the prosecution case;

(v) the severity of the likely penalty if the pers founlty;

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(vii>(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 bailnditions;

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

additiddition to thes these matters, the court must also bear in mind the presumption of innocence. Which is that an accused person is presumed innocent uprovelty by the Court.

In this application then the Stat State opposes bail. The prosecution on thon the strength of the prosecution case and the seriousness of the offence which carries custodial sentence if the accused is found guilty. The prosecutionlso concerned with the public interest and the protection oion of the community.

The submission for the accused is that he is prepared to surrender to strict bail condition. Has got family to support.

The Court has noted the law on Bail and the submissions by the applicant and the prosecution. The Court has also noted the maximum sentence for the offence of aggravated burglary and theft. The charges against the applicant are indeed serious. The matter has already been set for hearing in September. The applicant has not submitted strong grounds that the court will consider as suitable for the grant of bail.

Having considered the application, The Court is of the view that the applicant will not respect his bail conditions if granted bail. The Court is further satisfied that granting bail to the cant would endanger nger the public interest or make the protection of the community more difficult.

Bail is refused. The appl is advs advised that he has a right of appeal against decito the High CourtCourt with within 30 days.

Chaitanya Lakshman
Resident Magistrate
Nausori/p>

31^st May May 2016