State v Vasu [2016] FJMC 178; Criminal Case 349.2016 (22 September 2016)

IN THE FIRST CLASS MAGISTRATES COURT AT SIGATOKA

IN THE WESTERN DIVISION

Criminal Case No: 349 of 2016

STATE vs KOLINIASI VASU

Details

BEFORE : Resident Magistrate, TomasiBainivalu

For Prosecution : WPC 2972 Chanika Devi

For Accused : In person

Date of Ruling : 22^nd September, 2016

BAIL RULING

The Introduction

1. The accusedKoliansiVasu appeared under Police custody before this court yesterady to the alleged two counts of Aggravated Robberycontrary to section 311(1) (b) of the Crimes Decree 44 of 2009.
   
2. The prosecution had objected to the accused be released on bail; and on the other hand the accused in person, made oral submissions in court to be released on bail.
   
3. The following are brief of the accused and the prosecution oral submissions in court.
   

The Submissions

[The Accused in person]

4. The accused asked for bail be granted in his favor and he told the court briefly as follows:-
   • I was in custody since Sunday (18/09/16) and I need to engage a private Counsel to defend my case.
   • I ask for bail as I have a family to look after and youngest child attending school in Vatuwaqa Primary; and until to date my family must be worried about e as they are not aware of my whereabouts.
   • I was taken to High court,Lautoka this morning and the Judge had directed the Prosecution to have my matter called again here in Sigatoka this afternoon;
   • Sir I’m still innocent and I reside in Suva and will abide by any bail conditions, and itas after 25 years todate I have never committed any offence; therefore I ask for bail.
   • Self- employed and running a small market and the court to also consider my rights.

[Prosecution]

5. The prosecution objected to bail be granted in favor of the accused and their grounds as per their oral submissions in court were briefly as follows:-
   • Refer to section 18( c) of the Bail Act, which detailed the refusal of bail and submit that for the interest of the public and the protection of the community, bail must not be granted,
   • The alleged victim on both these indictable offences are foreigners/tourists to our land and were in Fiji for their honeymoon when the alleged incident occurred;
   • The accused accomplice still at large and investigations still on going, should the accused be released on bail there is a likelihood that he will interfere with the current/pending investigations and also may not attend court the next date;
   • The amount of the stolen items from both counts was quite substantive and todate none of these stolen items had been recovered; accept just a piece of earing.
   • The alleged incident is quite alarming to the tourists industry and asks for bail not to be granted and accused be further remanded.
     

The Law and Authorities

6. I would consider the following statutory provisions in respect of this bail application. Section 3 (1) of the Bail Act 2002stated that every person has the right to bail unless it is not in the interest of justice to do so. Under section 3(3), there is a presumption in favor of granting a person bail, however this can be rebutted.
   
7. I also quote the provisions raised by prosecution as follows:-
   

Section 18.-(1) A person making submissions to a court against the presumption in favour of bail must deal with-

(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.

8. In a case of State v Tunidau [2003]FJHC 188;HAM 0001.2003S;b Shameem,J (as she was) stated thus:
   

“Prima facie, the test for the grant or refusal of bail must always be whether the accused person will appear for trial. Matters which might assist the court in coming to any conclusion would be whether bail has been refused previously, the seriousness of the charge, the likelihood of reoffending, and of interference with prosecution witnesses, the accused character, the possibility of further charges, the accused right to properly prepare his/her defence and any previous failure to attend court”

9. Presumption of bail is not irrebuttable or absolute; it has limitations provided by the Decree and other case laws. In Tukai v Sate [2004]FJHC 235;HAM0053D.2004S (16August2004); Shameem J. (as she was) state as follows:-
   

“Although both Applicants have a right to bail, the presumption can be rebutted where the State shows that there is a likelihood that the Applicant will not appear in court, or where it is not in the public interest to grant bail” [emphasis mine]

10. And section 19 (1) of the Bail Act 2002; outlines the three grounds which enables the court to refuse bail; and they are as follows:-
    

“An accused person must be granted bail unless in the opinion of the police officer or the court, as the case may be,

(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.”

11. Having stated the above, all theses 3 grounds need not exist to justify refusal of bail. Existence of any one ground is sufficient to refuse bail;

[Wakaniyasi v State (2010 FJHC 20)]

The Order

12. After assessing the brief oral submissions from both the accused person and the prosecution, the court is of the view; considering the seriousness of the alleged offences, being indictable and also the fact that the other accomplice still at large with those substantive stolen items yet to be recovered and off course, the granting of bail to the accused person would endanger the public interest or make the protection of the community more difficult.
    
13. Application for Bail by the accused person is hereby denied accordingly and accused is further remanded in custody.
    
14. I hereby transfer the matter to the High Court in Lautoka in pursuant to section 191 of the Criminal Procedure Decree 2009. And pursuant to section 195(b) of the Criminal Procedure Decree 2009, the said accused is remanded for 28 days and the matter to be called on the day of , 2016
    
15. You are hereby reminded and immediately being informed of the procedure for review of bail as provided in Section 30 of the Bail Act which states as follows:-

“30.-(3) The High Court may review any decision made by a magistrate or by a police officer in relation to bail.

(4) The Court of Appeal may review any decision made by the High Court in relation to bail.”

16. You may appeal this decision if you like in 14 days.
    

Orders Accordingly.

................................
TomasiBainivalu[Mr]
Resident Magistrate
SIGATOKA

Distribution Copies :- Prosecution
:-Accused in person
:- File copy