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Xhemali v State [2011] FJHC 148; CRC 050.2011 (8 March 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. 050 OF 2011

BETWEEN:

ELTON XHEMALI
APPLICANT

AND

STATE
RESPONDENT

Mr. E. Maopa for the Applicant
Ms L. Vateitei for the State

Date of Hearing: 8 March 2011
Date of Ruling: 8 March 2011

RULING

[1] The applicant applies for bail pending trial on one holding charge of engaging in the transportation of illicit drugs contrary to section 5(b) of the Illicit Drugs Control Act 2004.

[2] It is alleged by the prosecution that on the 26th January 2011 the applicant in company with one other imported an unknown quantity of cocaine which was absorbed in clothing into Fiji, through Nadi Airport.

[3] Fiji not being fully equipped to deal with the exhibit, the case of clothing has been sent to Melbourne, Australia for analysis as to the quantity of cocaine purportedly being imported into the country. The nature of the drug was able to be ascertained here.

[4] The applicant, only claiming to be entering Fiji as a tourist at the time, obviously has no family or friends here who could act as a surety for him; nor does he have a place where he could reside. He is a citizen of the USA, having been born in Albania. He offers $1000 cash bail and says that he will reside in a hotel in Nadi, near the Police Station, the hotel to be paid for by his mother. He offers daily reporting to the Police.

[5] The State, in opposing the application, stresses the seriousness of the charge and the very strong evidence against the applicant and his co-accused. A certificate from the chemist in Melbourne will determine the ultimate seriousness of the case.

[6] The Bail Act 2002 has a presumption in favour of bail by its section 3(3), however that presumption is to rebutted if the award of bail is not in the public interest or if he is unlikely to surrender to custody (section 19 of the said Act).

[7] The applicant is a US citizen and has never been exposed to the lifestyle and culture of the Fijian people. He will of course for some time be alienated and homesick. That fact together with the certain prospect of a long term of imprisonment should he be convicted of trafficking in a large amount of cocaine means that there is every likelihood that he will not appear for trial.

[8] The potential charge will be very serious. Never before in Fiji have dangerous and addictive drugs in such quantity been imported by such sinister means. The method displays obvious sophisticated planning and the latent risk to the vulnerable and uninformed consumers in our society is alarming. It is definitely in the public interest that the perpetrators of this consignment be brought to justice as soon as possible, and to this end it would be perilous to admit this applicant to bail.

[9] Unlike his co-accused, this applicant has not been taken up by a high profile surety who would provide accommodation for him. He plans to stay in a hotel in our prime tourist area. The vacillating ramifications of such residence are troubling. The accommodation is unable to be easily monitored; the funds to pay for it are not guaranteed; he may fall prey to the louche elements inevitably found in a tourist milieu. Hotel accommodation paid for from afar is not appropriate accommodation for an accused awaiting trial on a major drugs case.

[10] The application is refused, but the applicant may ask the Court of Appeal to review this decision (pursuant to section 30(4) of the Bail Act) or he may make another application [pursuant to section 14(1)] if his circumstances change. [An advantageous circumstance would be the presence of a parent or person in loco parentis who could assume the role of a Court sanctioned surety].

Paul K. Madigan
JUDGE

At Lautoka
8 March 2011