Pillay v Fiji Independent Commission Against Corruption [2016] FJMC 226; Criminal Case 1594.2016 (11 November 2016)

IN THE MAGISTRATES’ COURT OF FIJI
AT SUVA

CRIMINAL CASE NO: 1594/2016

BETWEEN : BINESH PILLAY

APPPLICANT

AND : FICAC

RESPONDENT

For the Applicant: Mr.S.Kumar

For the Respondent: Ms.S.Datt

Date of Hearing: 07th of November 2016

Date of Ruling : 11^th of November 2016

RULING ON BAIL

1. The applicant is charged with one count of Obtaining Financial Advantage by Deception contrary to section 318 of the Crimes Decree No. 44 of 2009.
2. He has been in remand for this case from 23^rd September 2016 and applied for bail on 14^th October 2016. The reasons are to finance his counsel to appear in the case, to be in employment to feed the family and to look after the children.
3. The respondent is objecting for the bail and filed their response on 28^th October 2016. The grounds for objections are seriousness of the charge, his previous convictions for similar offences which make the accused threat to the community and his failure to appear in court in 2009 which points that he would not appear in the court if granted on bail.
4. The bail hearing was conducted on 07^th November 2016 where both parties made oral submissions.
5. Having considered the respective oral submissions of the parties, now I proceed to pronounce my ruling in this case.
6. 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.
7. Therefore an accused has right to be released on bail and this can be refused only when the interest of justice require.
8. 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. Section 3(3) states that there is a presumption of granting bail to the accused and person who opposing it has to rebut that.
9. 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).
10. 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 )
11. 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
12. 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".
13. One of the objections by the respondent is seriousness of the charge. But in my view serious nature of an offence alone is not a sufficient to deny bail to the applicant.
14. 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.
15. But it is evident that the accused has previously failed to appear in the court and convicted for an Absconding Bail. This previous breach of bail has displaced the presumption of the bail for the applicant as well as ground that can consider in to see if the applicant would appear in future if granted bail(section 19(1) (a) of the Act).
16. Further the previous convictions submitted by the prosecution shows that the applicant got nearly 43 convictions with number of similar convictions. But majority of these convictions are more than 10 years old and from the valid convictions there is only one conviction that is similar like this that was committed nearly 10 years ago.
17. But the hearing for this case has been fixed for 31^st May 2016 based on availability of dates for FICAC counsel which means the applicant would be in remand for nearly 08 months for this case until the determination of this matter.
18. Even though this court can remand a person for 2 years pursuant to section 13(4) of the Act and whatever the period in remand would be deducted if found guilty for this offence, I find this would not serve the interest of the applicant as well as for his dependents.
19. As mentioned earlier there is a possibility of the applicant not appearing in this case if granted bail and also reoffending putting the public safety in danger .These are the main concerns for the respondent also.
20. The counsel for the applicant has submitted that his client is prepared to provide sureties, cash bond, abide with curfew and daily reporting conditions. With these strict conditions, I find that the above issues can be addressed whilst allowing the applicant to be on liberty serving his interest also.
21. Therefore I granted the bail for the applicant with following conditions:
    1. Bail in his own recognizance in the sum of $5000;
    2. With two sureties in the sum of $5000 each;
    100. Cash bail of $1000.00;
    4. Not to interfere with the complainant and other witnesses;
    5. Not to reoffend ;
    6. Report to nearest Police Station every weekday day between 8am to 6pm;
    7. Surrender the passport and other travel documents and not to apply for new documents;
    8. Curfew from 8pm – 5am daily;
    9. Not to change the address.
22. The applicant is warned that any breach of these conditions is likely to result in cancelation of the bail
23. 28 days to appeal.

Shageeth Somaratne

Resident Magistrate