Charan v State - Ruling on bail [2019] FJMC 117; Criminal Case 459 of 2019 (2 August 2019)

IN THE MAGISTRATES’ COURT OF FIJI
AT NAUSORI

CRIMINAL CASE NO: 459/2019

BETWEEN : RAKESH PRASAD CHARAN

APPPLICANT

AND : THE STATE

RESPONDENT

For the Applicant: Mr.Tuifagale

For the Respondent: Sgt.Shalend

Date of Hearing: 30^th of July 2019

Date of Ruling : 02^nd of August 2019

RULING ON BAIL

1. The applicant is charged with one count of Possession of Illicit Drugs contrary to section 5(1) of the Illicit Drugs Control Act. The particulars of the offence are “RAKESH PRASAD CHARAN on the 17th day of July 2019 at Nausori in the Central Division without lawful authority had in his possession 57.58grams of methamphetamine, an illicit drugs.”
2. The applicant was first produced to court on 19^th of July 2019 and remanded pending his formal bail application which was filed on 22^nd of July 2019.
3. In his bail application the applicant submitted that he is the sole bread winner of the family and he is prepared to provide cash bail if granted bail.
4. The prosecution is objecting to the bail and filed an affidavit of IO, D/Sgt 1898 Arvind Singh , who is in the Fiji police force for past 30 years. The officer deposed that the applicant got number of pending cases in this court where he is on bail and granting bail to him would endanger the public interest.
5. The bail hearing was conducted on 30^th July 2019, where both parties made oral submissions and the counsel for the applicant was also allowed time to provide case authorities from the High Court which he has failed to file within the stipulated time.
6. Having considered the respective submissions from both parties I would pronounce my bail ruling in the following manner.
7. 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.
8. Further 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.
9. Section 3(3) of the Act states that there is a presumption of granting bail to the accused and person who opposing it has to rebut that.
10. But this presumption will 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).
11. The applicant failed to appear in this court previously for CF 328/2014 and on bench warrant. Hence by not appearing after granted bail he has breached his bail condition and the presumption of bail is no longer applying for him.
12. 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 ).
13. Section 19(1) of the Act outlines the reasons for refusing bail in a 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
14. The counsel for the applicant submitted that this is only allegation and his client is presumed to be innocent of this charge.
15. I also concede that the applicant is presumed to be innocent till proved guilty for this charge. But at this stage pursuant to section 19 of the Act, I have to consider in this bail hearing if the applicant would appear in the court if granted bail, his interest and the public interest only.
16. As shown through the response , the applicant got following pending cases in the Nausori court :

• NAUSORI CF 328/14 - Possession of Illicit Drugs (Cannabis) Mention - 19/7/19

• NAUSORI CF 338/16 - Possession of Illicit Drugs (methamphetamine) Hearing - 29/8/19

• NAUSORI CF 602/17 - Possession of Illicit Drugs (methamphetamine) Mention - 30/7/19

• NAUSORI CF 79/19 - Possession of Illicit Drugs (methamphetamine) Mention - 14/10/19

• NAUSORI CF 596/17 - A.C.A.B.H Mention - 30/7/19

17. In CF 328/2014 on 05^th July 2019, when the case was called for the hearing in this court, the applicant was not present whilst on bail and the court has issued a bench warrant against him. When inquired during the bail hearing the reason for him not to appear, the applicant submitted on that date he had some mention matter in Suva MC 1 before the chief magistrate and because of that he failed to appear for the hearing.
18. Even if I accept his argument, the applicant is not a novice to the court system and he should have been well aware about the hearing and a mention dates and priority should be given to which case. By not appearing for the hearing he has shown his tendency to abscond.
19. Since this issue was taken without any materials to confirm by the applicant , this court also asked the registry to check this claim and found also that the applicant did not have any case on that day before the Chief magistrate in MC 1 and also he did not appear in that court .
20. The applicant also been charged with a serious offence of possession of hard drugs, Methamphetamine which is commonly known as ICE on 17^th July 2019.
21. In Abourizk v State [2019] FJCA 98; AAU0054.2016 (7 June 2019) the Fiji Court of Appeal set down the new tariffs for all hard/major drugs (such as Cocaine, Heroin, and Methamphetamine etc.)

Category 01: – Up to 05g – 02 ½ years to 04 ½ years’ imprisonment.

Category 02: – More than 05g up to 250g - 03 ½ years to 10 years’ imprisonment.

Category 03:– More than 250g up to 500g - 09 years to 16 years’ imprisonment.

Category 04:– More than 500g up to 01kg – 15 years to 22 years’ imprisonment.

Category 05 – More than 01kg - 20 years to life imprisonment

22. As the applicant is alleged to have in his possession 57.58 grams of Methamphetamine he falls in to the second category with a sentence range of 03 ½ years to 10 years’ imprisonment .
23. The prosecution also submitted that they got a strong case against the applicant in this case. According to the prosecution submission, the drugs were found inside the bed room of the applicant. The version of the applicant was changing before and during the bail hearing. When first produced to the court the applicant submitted one of his relative was trying to frame him for this charge and during the bail hearing informed that the police planted this drug inside his bed room and he also got some video clips to prove this. He was invited to submit these video clips to the court through his counsel but failed to abide with that direction. In any event these can be verified during the hearing and at this stage I find there is a strong case against the applicant which would make him unlikely to appear in the court if granted bail.
24. Further the applicant has been charged in this case also with breach of suspended sentence. In response, the prosecution submitted this was regarding a suspended sentence given in CF 746/17 for Absconding Bail offence. This shows the applicant has previously absconded and also convicted in 12th January 2017.
25. With the kind of imprisonment he would face if convicted in this charge, his previous failure to appear in the court in CF 328/2014 without a good reasons, his conviction for absconding bail in CF 746/17 I find he would be unlikely to appear in the court if granted bail pursuant to section 19 (1) (a) of the Bail Act.
26. Further the applicant has come to this court whilst on bail on 05 pending cases from Nausori court as mentioned in para 16 of this ruling. It was also shown he got number of similar pending cases regarding possession of Drugs in Suva courts where he is also on bail even though he failed to disclose them to this court.
27. It appears that he has re offended whilst on bail on number of cases endangering the public interest and community pursuant to section 19(1) (b) of the Act. He is alleged to have in possession substantive quantity of hard drugs which is highly addictive and dangerous to the society.
28. Even though the counsel for the applicant submitted in similar case a Suva magistrate court has granted bail to senior counsel recently it has to be noted that decision of a magistrate court is not binding to this court. Also the counsel for the applicant even though undertook, failed to submit any decisions from the High Court to support his argument.
29. The applicant has submitted that he is the sole bread winner of the family and got 2 small children. Even though this would apply to the interest of the applicant, he has already retained an experienced senior counsel and with the co-operation of both parties this court is prepared to give an early hearing date within this year or early 2020.
30. In Isimeli Wakaniyasi 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".
31. In this case I find the applicant is unlikely to surrender to custody considering the strength of the case, penalty for this offence and his previous history of absconding.
32. I am also satisfied with his number of pending cases in Nausori and Suva courts for similar offences granting bail would endanger the public interest and community.
33. Finally I find with his retention of a private counsel and this court willingness to grant an early hearing date, his interest would not be served with granting bail.
34. Accordingly I refuse his bail application and remand him further in this case.
35. 28 days to appeal.

Shageeth Somaratne

Resident Magistrate