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Suguturaga v State [2010] FJHC 146; HAM067.2010 (28 April 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

Crim. Misc. Case No: HAM 067 of 2010

BETWEEN:

ETUATE SUGUTURAGA
Applicant

AND:

THE STATE
Respondent

Hearing: 26th April 2010
Ruling: 28th April 2010

Counsel: Applicant in person
Ms A. Lomani for State

RULING

[1] This is an application for bail pending trial. The applicant is charged with two counts of forgery. He appeared in the Magistrates’ Court and was refused bail. He has elected to be tried in the High Court and seeks fresh bail.

[2] Section 3(1) of the Bail Act states that an accused has the right to be released on bail unless it is not in the interests of justice that bail should be granted. Consistent with this principle, section 3(3) of the Act provides that there is a presumption in favour of the granting of bail to a person, but a person who opposes the granting of bail may seek to rebut the presumption. In determining whether a presumption is rebutted, the primary consideration in deciding whether to grant bail is the likelihood of the accused person appearing in court to answer the charges laid against him or her (section 17(2)).

[3] Where bail is opposed, section 18(1) requires that the party opposing bail addresses the following considerations:

(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.

[4] Section 19(1) of the Bail Act provides that an accused person must be granted bail by a court unless:

(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.

[5] Section 19(2) of the Act sets out a series of considerations that the court must take into account in determining whether or not any of the three matters mentioned in section 19(1) are established. These matters are:

(a) as regards the likelihood of surrender to custody –

(i) the accused person’s background and community ties (including residence, employment, family situation, previous criminal history);

(ii) any previous failure by the person to surrender to custody or to observe bail conditions;

(iii) the circumstances, nature and seriousness of the offence;

(iv) the strength of the prosecution case;

(v) the severity of the likely penalty if the person is found guilty;

(vi) any specific indications (such as that the person voluntarily surrendered to the police at the time of arrest, or, as a contrary indication, was arrested trying to flee the country);

(b) as regards the interests of the accused person –

(i) the length of time the person is likely to have to remain in custody before the case is heard;

(ii) the conditions of that custody;

(iii) the 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 public interest and the protection of the community –

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

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

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

[6] In considering these matters, the court must bear in mind the presumption of innocence.

[7] The State opposes bail. The State says that the applicant has a history of committing forgery offences and has pending cases in the Lautoka High Court. He allegedly committed the offences in the present case while in custody on remand. The allegations against him are that he forged committal warrants of two prisoners and thereby caused their early release.

[8] The State further submits that the applicant has given two different residential addresses and that he has failed to appear in the Lautoka cases, leading to his arrest on a bench warrant.

[9] The charges against the applicant are indeed serious. If convicted the applicant is facing an immediate custodial sentence. There is a strong incentive for him to abscond bail.

[10] There is evidence that the applicant allegedly committed further similar offences while on bail.

[11] In R v. Crown Court at Harrow [2003] 1 WLR 2756, at 2778, Hooper LJ thought that this was likely to be a factor of considerable importance:

"The fact that the new offences appear to have been committed whilst on bail is likely to be a factor of considerable importance against the defendant when deciding whether there is a substantial ground for believing that, if released, he would commit a further offence while on bail."

[12] The Bail Act emphasizes the importance of this factor in section 19(2)(c)(iii).

[13] Having considered the application, I am satisfied that the applicant would abscond bail. I am further satisfied that granting bail to the applicant would endanger the public interest or make the protection of the community more difficult.

[14] Bail is refused. The applicant is advised that he has a right of appeal against this decision to the Court of Appeal.

Daniel Goundar
JUDGE

At Suva
28th April 2010

Solicitors:
Applicant in person
Office of the Director of Public Prosecutions for State