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Mani v State [2010] FJHC 399; HAM120.2010 (28 July 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

MISCELLANEOUS CASE NO.: HAM 120 OF 2010

BETWEEN:

APARAMA MANI

AND:

THE STATE

Counsel: In Person
Ms. Mareta Tikoisuva for the State

Date of Hearing: 27th July 2010
Date of Ruling: 28th July 2010

RULING

[1] The applicant Aparama Mani had applied for bail, the alleged offence is Aggravated Robbery Punishable under Section 311(a) of the Crimes Decree 44 of 2009.

[2] The applicant submits that he is entitled for bail under Section 3(1) of the Bail Act.

[3] The applicant further submits that the remand prison is over crowded and he does not have adequate free time to prepare for his case.

[4] The applicant is not provided with proper sleeping facilities and it is violation of his individual rights.

[5] The State objects for the application of bail and filed, written submission stating reasons for their objections.

[6] State called the officer-in-charge of Suva Prison Mr. Vitoriano to give evidence regarding the present living condition at the remand prison.

[7] Now I consider Section 3(1) of the Bail Act:

"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"

[8] I agree with the applicant that he is entitled to bail under the section above discussed but the above section is subject to several limitations, especially Section 17(2) and Section 19(1) of the Bail Act.

[9] Section 17(2) states as follow:

"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"

[10] The question before the Court is whether this applicant will surrender himself for the trial in the High Court. For this purpose let me consider the nature of the charge leveled against the applicant. As per the information:

"Aparama Mani is charged with the following offence:

FIRST COUNT
Statement of Offence

AGGRAVATED ROBBERY: Contrary to Section 311 (1) (b) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

Aparama Mani, on the 1st day of May, 2010 at Samabula in the Central Division, armed with an offensive weapon stole $350.00 cash, a black berry mobile valued at $800.00 and a Gold diamond ring valued at $1000.00, all to the total value of $2,150.00 from ANTHONY PRICE.

SECOND COUNT
Statement of Offence

GRIEVOUS HARM: Contrary to Section 258 of the Crimes Decree No. 44 of 2009.

Particulars of Offence

APARAMA MANI, on the 1st day of May, 2010 at Samabula in the Central Division, unlawfully and maliciously did grievous harm to FILIMONI BOGILEKA".

[11] The applicant has 19 previous convictions among them two for escaping from lawful custody. This clearly shows that he may not present himself for trial if he is enlarged on bail.

[12] The Officer-in-charge of Suva Prison submits that this applicant attempted to escape from prison on the 18th July 2010 and presently kept at Naboro Prison. It should be noted that this applicant's application was taken up on the 12th July 2010 and adjourned to 27th July 2010 in the meantime he tried to escape from the remand prison.

[13] There are two pending cases against this applicant. The present case is for Aggravated Robbery which is punishable under Section 311(a) of the Crimes Decree 2009.

[14] As per the summary of facts available to the Court from the trial file this applicant has robbed things worth over $2150 and caused injuries to the Security guard with a knife.

[15] It was submitted by the State that this applicant has a similar case of Aggravated Robbery which is pending in the High Court for trial.

[16] The State submits that the present case against the applicant has sufficient material evidence and can be proved beyond reasonable doubt.

[17] Considering these facts the State Counsel submits that this applicant has the likelihood of not appearing in Court to answer the charges against him.

[18] I seriously considering the following factors submitted by the State Counsel:

a) The Applicant does not have a family of his own to look after.

b) The Applicant is unemployed and is not currently enrolled in any educational programmes.

c) The Applicant states in his application that he is married.

Evidence obtained from one Mere Taleilakeba suggests that he isn't. She confirms being his girlfriend and that she is married to another.

d) He can remain in custody and still have access to legal advice by engaging either Legal Aid or a private lawyer. He will not be denied his right to a fair trial.

e) The Remand centre allows access to the Prison Library where the applicant can prepare his defence.

f) The remandees are spread amongst the Suva and Naboro prison to cater for high numbers thus avoiding overcrowding.

g) That the applicant is a seasoned offender having 20 previous convictions. State submits that this portrays an indifference to Prison and accommodations therein.

[19] The above factors were informed to the applicant and he has not countered any of these factors which receives my attention. I find the applicant has no attachment to the Society to stay and present himself for the trial.

[20] In the case of Adesh Singh vs State (1988 FJHC8, (14 July 1988) Fatiaki J summarized the following factors to consider a bail application.

"The Fiji courts have developed principles of bail along similar lines. In the authorities cited to me by counsel, the factors relevant to a bail application, were summarized as follows (Fatiaki J in Adesh Singh & Ors Miscellaneous Act No. 11 and 12 of 1988):

1. The presumption of innocence;
2. Whether the accused to appear to stand trial;
3. Whether bail has been refused previously;
4. The seriousness of the charges;
5. The likelihood of the accused re-offending on bail;
6. Any interference with prosecution witnesses;
7. The accused's character;
8. The accused's right to prepare his defence;
9. The likelihood of further charges;
10. The State's opposition to bail".
    

[21] It is pertinent to observe that the above principles were set out in the European Convention on Human Rights also. The fundamental principle has always been, and continues to be that bail will be granted unless the Court believes that the accused may not appear for trial.

[22] Now I consider Section 19(1) of the Bail Act.

"19. (1) An accused person must be granted bail unless in the opinion of the police officer or the court, as the case may be –

(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 serve through the granting the bail; or

(c) Granting bail to the accused person would endanger the public interest or make the protection of the community more difficult"

[23] Considering the present charge which carries a maximum imprisonment of 20 years under the Crimes Decree, I doubt that this applicant will present himself for the trial.

[24] Considering Section 19(1) of the Bail Act in the light of his previous convictions:

Namely, the applicant has:

- 3 convictions for breaking and entering
- 3 convictions for burglary
- 2 convictions for larceny in dwelling house
- 2 convictions for larceny
- 1 conviction for damaging property
- 4 convictions for robbery with violence
- 2 convictions for escaping from lawful custody
- 1 conviction of Rape
- 1 conviction of unlawful use of Motor vehicle

[25] In considering all the above facts as the circumstances, the State Counsel has satisfied me that there is a substantive risk that if released, the applicant may not appear at the trial of these charges.

[26] For the reasons stated above, this application for bail is refused.

S Thurairaja
JUDGE

At Suva

Solicitors
Accused in Person
Office of the Director of Public Prosecution for State