Rabakoko v State [2016] FJMC 223; Criminal Case 18.2016 (8 November 2016)

IN THE MAGISTRATES’ COURT OF FIJI
AT SUVA

CRIMINAL CASE NO: 18/2016

BETWEEN : SEMISI RABAKOKO

APISAI RATUMAIKOROLEVU VASUTURAGA

TUVA DRAUNIDALO

APPPLICANTS

AND : THE STATE

RESPONDENT

For the Applicants:Mr.Gade(LAC)

For the Respondent: Cpl Fisher

Date of Hearing: 07th of November 2016

Date of Ruling : 08^th of November 2016

RULING ON BAIL

1. The applicants are charged with one count of Aggravated Burglary contrary to section 313(1) (b) of the Crimes Decree No. 44 of 2009.
2. They were first produced to this court on 04/07/2016 and I have remanded them and transferred this matter to the High Court pursuant to section 191 of the Criminal Procedure Decree.
3. On the first day when the counsel for the applicants applied for bail, the respondent asked them to file their formal bail applications in the High Court.
4. But just because their case been transferred to the High Court, this court can’t keep them in remand pending the bail determination by the High Court. I have to be satisfied there are reasons to detain them in custody.
5. Section 13(1) (h) of the 2013 Constitution states that a person who is arrested or detained has right to be released on reasonable terms and conditions, pending a charge or trial, unless the interests of justice otherwise require.
6. Therefore an accused has right to be released on bail by this court and this can be refused only when the interest of justice require.
7. All the applicants have filed their formal bail applications seeking bail based on following grounds:

1^st applicant

1. Need to look after the family ;
2. Do not want to spoil life by going to prison.

2^nd applicant

1. Father of 4 children;
2. Sole bread winner of the family.

3^rd applicant

1. 1^st offender;
2. Got a son to look after.

8. But when this was called for bail hearing on yesterday the respondent informed this court that they would not object for the bail for the 2^nd and 3^rd applicant suddenly changing their position in this case.
9. Having considered the bail applications as well as this sudden change of the respondent, now I proceed to pronounce my ruling in this case.
10. Section 03 of the Bail Act of 2002(“Act”) 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.
11. Section 3(3) states that there is a presumption of granting bail to the accused and person who opposing it has to rebut that.
12. But this presumptionwill be displaced if an accused has previously breached a bail condition or convicted for an offence and appealing against the conviction (Section 3(4) of the Act).
13. In this case the 1^st applicant is on bail from other courts (MC 5 and MC 4) and seems to have breached his bail condition by reoffending. Hence for him this presumption is not applicable, but this is still valid for the 2^nd and 3^rd applicants who are first offenders.
14. The primary consideration in granting bail in a criminal case is the accused person appearing in the Court to answer the charge(section 17(2) of the Act )
15. Section 19(1) of the Act outlines the reasons for refusing bail in normal case 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
16. In IsimeliWakaniyasi v State ( 2010),FJHC 20;HAM 120/2009 (29th January 2010), his Lordship Justice Goundar held that "All three grounds need not exist to justify refusal of bail, existence of any one grounds is sufficient to refuse bail".
17. As mentioned earlier the 1^st applicant is on bail from other courts and seems to have reoffended. Even if I disregard that, he is got a pending case in my court for Aggravated Robbery and failed to appear for that from 03/12/2015. In fact he has been charged for Absconding Bail also for that. Therefore I consider the 1^st applicant is unlikely to appear in court if granted bail for this case (section 19(1) (a) of the Act) and refuse bail for him.
18. As mentioned earlier the Respondent has changed their mind and now not objecting to grant bail to the 2^nd and 3^rd applicants who are first offenders.
19. But in FICAC v Padarath (2013) FJHC 44, HAR019.2012,( 7th February 2013) his Lordship the Chief Justice Gates observed that " Where counsel concedes a legal point in court or does not object to bail as here, that is not the end of the matter so far as the judicial officer is concerned. The judge or magistrate should take the concession into account carefully when deliberating upon his own decision. He or she will consider why the concession has been made, and whether it is correct on the facts and the law. Ultimately however, the responsibility for deciding the pertinent issue lies solely with the judicial officer. There can be no abandonment of that public duty. It is placed upon the Magistrate here and not the prosecutor"
20. Therefore even if the prosecution concedes granting the bail to an accused the ultimate decision lies solely with the court and the court has to consider the grounds in section 19 of the Act to decide about the bail. It can’t just abandon the responsibility saying the duty is placed on the prosecution to object for the bail.
21. In this case the 2^nd and 3^rd applicants have no history of failure to observe bail conditions which may have prompted the prosecution to concede the bail.
22. Even though they have charge with a serious offence, that also is not a sufficient to deny bail to the applicants. Article 14(2) (a) of the 2013 Constitution states that every person charged with an offence has the right to be presumed innocent until proven guilty.
23. Also it appears with their family back ground, their interest lies in deciding the bail in their favor.
24. But when I inquired from the counsel for the applicants, he submitted that they would be staying in Nabua during the bail period. The allegation against them is quite serious and it appears that they have broken in to the dwelling home of the victim in Nabua with offensive weapons on 30/10/2016.
25. The 2^nd and 3^rd applicants have not undertaken to relocate to another place .Therefore I am of the view that enlarging them on bail to stay near to the victim’s residence means there is high likelihood of them interfering with evidence, witnesses and specially the victim in this case.
26. Accordingly I find for the public interest the bail should not be granted to the 2^nd and 3^rd applicants also even though the prosecution is not objecting for the bail.
27. The application for the bail is refused for all the applicants and they are remanded to appear in the High Court on 18^th of November 2016.
28. 28 days to appeal.

Shageeth Somaratne

Resident Magistrate