Court of Appeal of Fiji

(iii) the neee 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 c interest aest and the protection of the community-

(i) any previous failure by the accused person to surrender ttody or to observe bail conditions;

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

(iii) the likelihood of the accused person committing an arrestable offence while on bail.’

[14] Thus, the legislative scheme in respect of bail in the Bail Act could be summarized as follows. Section 3 (1) of the Bail Act states that every accused person has a right to be released on bail unless it is not in the interests of justice that bail should be granted while section 3(3) states that there is a rebuttable presumption, which is displaced in the circumstances set out under section 3(4), in favour of the granting of bail to such a person. The primary coration in decn deciding whether to grant bail is the likelihood of the accused person appearing in court to answer the charges lgainst him or her [vide section 17(2) of the Bail Act] and when deciding whether to grant bant bail to such a person, the court must take into account the time the person may have to spend in custody before trial if bail is not granted [vide section 17(1) of the Bail Act]. The presumption of bail may, however, be rebutted and bail may be refused if the court, upon being satisfied and having regard to all the relevant circumstances, is of the opinion that the accused is unlikely to surrender to custody and appear in court to answer the charges or the interests of the accused person will not be served through the granting of bail or granting bail to the accused would endanger the public interest or make the protection of the community more difficult [vide section 18 & 19 of the Bail Act].

[15] Out of all relevant circumstances, section 19(2) of the Bail Act sets out what matters the court in particular should consider and have regard to as regards the likelihood of surrender to custody and appearing in court, the interests of the accused person and the public interest or the protection of the community.

[16] Needless to say that the list of relevant circumstances to be taken into account in considering releasing an accused on bail is not exhaustive and depends on the facts of each and every case. It is also well established that the bail conditions should not be punitive or excessive so as to negate the very purpose of admitting an accused to bail.

[17] Koroi v State AAU0072 of 2018: 7 March 2019 [2019] FJCA 22 laid down the test in considering an appeal under section 21(3) of the Court of Appeal Act.

‘[11] On appeal an appellate court reviews a bail decision for an error of principle or fact in the exercise of the discretion granting or refusing bail (R v Payne [Burrett’s Case] [2003] 3 NZLR 638 (CA)). The main ent of the the appellant is that the learned High Court judge failed to consider the presumption of innocence when refusing to grant him bail.

[12] The Bail Act 2002 (the Act) codifies much of the law relating to bail. Part II of the Act contains provisions of general application. Section 3(1) of the Act states that an accused is entitled to bail unless it is not in the interests of justice that bail should be granted.’

‘[13] Section 17(2) of the Act states that the primary consideration in determining whether to grant bail is the likelihood of the accused appearing in court to answer the charge against him or her. Although the primary consideration is whether the accused will turn up for his trial, section 19(1) provides for two further grounds for refusing bail, namely, that the interests of the accused will not be served through the granting of bail (subsection (b)), or that granting of bail to the accused would endanger the public interest or make the protection of the community more difficult (subsection (c)).

[18] Naidu v State AAU0030 of 2013: 2 June 2014 [2014] FJCA 83 it was held
‘[4] The refusal of bail by the High Court was within the discretion of the High Court. The principles that guide the exercise of that discretion are governed by the Bail Act. For this appeal to succeed, the appellant will have to demonstrate that the learned High Court judge erred in the exercise of his discretion by acting upon a wrong principle, or by taking into account irrelevant considerations, or by failing to take into account some relevant considerations

‘[6] A single judge has no power to grant bail pending trial. The power to grant bail pending trial lies with the Full Court. But the Full Court will only grant bail if there was an error made by the High Court in refusing bail.’

[19] The appellant’s grounds of appeal are as follows

(i) The learned judge erred in law and in fact when he refused bail of the Applicant without taking into account certain relevant considerations

(ii) The learned Judge erred in law in failing to take into consideration the presumption of innocence until proven guilty.

[20] I shall now consider each of the above grounds.

First ground

‘The learned judge erred in law and in fact when he refused bail of the Applicant without taking into account certain relevant considerations.’

[21] The appellant complains that the trial Judge had erred in deciding ‘likelihood of accused’s surrender to custody’ against him as he was entitled to the presumption of bail; he was a first offender and had no record of previous breach of bail. The only reason given by the trial Judge in the Ruling under this heading is that there is a strong case against the appellant and if found guilty he would be liable to a stiff sentence. Thus, the trial Judge had concluded that chances of the appellant getting bail are slim.

[22] It looks from the legislative scheme of the Bail Act that pending trial, granting of bail is the norm and refusal is the exception. Bail is a right only subject to the ‘interest of justice’ qualification and therefore it is not an absolute right. Interest of justice is a broad term which could encompass unlimited considerations. The list is not exhaustive. The presumption of bail under section 3(3) holds until rebutted or displaced by the opposing party under section 3(4) and (5). In addition when seeking to rebut the presumption, the party opposing bail must show that there is a likelihood of the accused absconding or it is not in the interest of the accused or it would endanger public interest or make the protection of the community more difficult if the accused is enlarged on bail. Sections 18, 19(1) and 19(2) elaborate these three aspects in detail.

[23] It was held in Khan v State AAU0067 of 2018: 29 March 2019 [2019] FJCA that if the prosecution case is potentially strong, the risk of the accused absconding bail is higher and that the strong prosecution evidence can make the appellant a flight risk.

[24] While one cannot deny that there may be a high tendency for an accused to abscond if he has a strong case against him and the sentence is heavy, it cannot be presumed that in every such case the accused would inevitably be likely not to surrender to custody and appear in court to answer the charges. It has to be decided not in isolation but in the light of all the attendant circumstances. In the light of the fact that the appellant is a first offender not having a history of breaching bail undertaking such an unequivocal inference is not warranted or justified. The affidavit of DC 3079 James filed in the High Court opposing the bail application does not speak to the possibility of the appellant not turning up for the trial. In my mind, it is an error made by the trial Judge in refusing bail.

[25] The learned Judge had also considered the interest of the appellant and concluded that under that heading too chances of bail are slim. In this regard the trial Judge had taken into account the right to keep suspects in remand for 02 years pending trial and the opportunity to deduct the period of remand from the head sentence. In my view these are not matters that could have been considered under section 19(1)(b) and 19(2)(b) of the Bail Act. He had also taken into consideration the ability of his counsel to visit him in Suva prison to prepare for his defence and the fact that the appellant is not incapacitated. He had specifically stated that there is no valid reason for the appellant to be at liberty for any other lawful purpose. There is no doubt that these are matters that could have been considered under the heading ‘interest of the accused’ [vide section 19(1)(b) and 19(2)(b)]. However, if the presumption of bail is to be rebutted under this heading the State must demonstrate to court by way of at least affidavit evidence on which the court could conclude that interest of the accused would not be served by granting bail. The affidavit of DC 3079 James opposing the bail application does not supply any such material to court. The trial Judge has also clearly taken into account some irrelevant considerations in refusing bail.

[26 ] However, under section 19(2)(b) the trial Judge had not considered the length of time which is tentatively and approximately 01 year and 07 months, the appellant is likely to have to remain in custody before the case is heard under the heading ‘interest of the accused’.

[27] The learned trial Judge had also considered ‘public interest and ‘protection of the community’. He had concluded that under this heading also the chances of bail are slim. The reasons given by the trial Judge are that the appellant allegedly raped the two complainants staying with his family and most of the witnesses are related to him. Therefore, the trial Judge had concluded that there is a likelihood of the appellant interfering with the witnesses. The likelihood of the person interfering with evidence is a legitimate consideration [vide section 19(1)(c) and 19(2)(c) of the Bail Act] in refusing bail.

[28] However, I have examined the affidavit of DC 3079 James filed in the High Court opposing the bail application and it states that one eye witness is the brother of the appellant and the other two eye witnesses are his nieces. They are supposed to have seen the appellant having sex with one of the complainants. One of the complainants is said to have been asleep when the appellant was having sexual intercourse with her.

[29] Needless to say that the incident the eye witnesses are supposed to have seen looks somewhat puzzling and baffling. One would not expect an accused to have engaged in rape in full view of witnesses leave aside them being his close relations. The eye witnesses apparently had not seen any resistance or even awareness on the part of the complainant with whom the appellant had allegedly engaged in sexual intercourse.

[30] However, the affidavit of DC 3079 James shows that the appellant intends to reside at Nadera while the complaints are currently residing at Laucala Bay and Cunningham. The present residences of the eye witnesses are not clear. The appellant in his supplementary affidavit tendered to the High Court had stated that he would be residing with his family members at Nadera.

[31] I am of the view that the risk of the appellant influencing the eye witnesses who are related to him, if he is released on bail, could be addressed by appropriate orders regarding his residence until the trial commences. The complainants appear to be living away from the usual residence of the appellant and any possible interference with them too could be arrested by suitable strict bail conditions.

[32] In all the circumstances above discussed, I am of the view that there is merit in the first ground of appeal.

Second ground

The learned Judge erred in law in failing to take into consideration the presumption of innocence until proven guilty.

[33] The trial Judge had considered specifically only section 19 of the Bail Act and the matters set out therein but said in paragraph 06 that

‘Although he is presumed innocent until proven guilty beyond reasonable doubt in a court of law, in my view, it is in the public interest and the protection of the community that he be remanded in custody, until further orders of court.’

[34] Thus, it is clear that the trial Judge had been mindful of the presumption of innocence under section 14(2) (a) of the Constitution.

[35] In Khan v State (supra) the Court of Appeal dealt with a similar ground as follows.

‘[18] Ground 5 contends that the learned High Court judge failed to consider section 13(1) (h) of the Constitution that states that an accused has the right to be released on reasonable terms and conditions pending trial, unless the interests of justice otherwise require.

[19] It is clear that the right to bail is not an absolute right. The right is subject to the overarching principle of interests of justice. Similarly, the entitlement to bail provided by section 3(1) of the Bail Act is subto the overarching prng principle of interests of justice. These provisions reflect the presumption that the court must be ul of depriving an accn accused of his or her personal liberty pending trial in the interests ofts of justice.’

[36] In State v Shankar&#1b> [2003] FJHC 50; HAM 14.2003 Justice Gates observed that an entitlement to bail does no more than reflect the principle of the presumptioinnocence, which is also coso contained in the Constitution. However, a person may be deprived of personal liberty if he is reasonably suspected of having committed an offence. Therefore it is clear that whilst preserving the right of innocence of an accused person he could be still deprived of his personal liberty pending trial (Qio v State [2015] FJCA 68; AAU0140.2014 (28 May 2015).