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Naidu v State [2013] FJHC 61; HAM021.13 (21 February 2013)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL MISCELLANEOUS JURISDICTION

CRIMINAL MISCELLANOUS CASE NO : HAM 021 OF 2013

BETWEEN :

SUDESH MANI NAIDU

AND:

THE STATE

Accused-Applicant in person
Ms Shelyn Kiran for the State

Date of Hearing : 15 February 2013
Date of Ruling : 21 February 2013

RULING
[BAIL]

1. The accused-applicant, Sudesh Mani Naidu (the applicant), is charged for having committed the offence of 'Robbery' punishable under Section 310 (1) (a) of the Crimes Decree (the Decree). He is also charged for having committed the offence of 'Murder' under Section 237 of the Decree. The offences are alleged to have been committed on 13 January 2013.

2. The applicant applies for bail pending trial before this court.

3. The legal basis has been founded on the common law principle of presumption of innocence before being found guilty and under the provisions of the Bail Act with regard to the '... right to be released on bail...'

4. Learned counsel for the State invited the attention of court to the record of seventeen previous convictions and to two instances of forfeiting bonds for the breach of bail in 2001.

5. At the hearing, the applicant urged that he be released on bail on strict conditions in view of the matters placed before court in his application. The contents of the application focused on the inconvenience that he has got to suffer because of his detention in custody. He particularly submitted that he had to look after his 17 year old son, who is prevented from attending to studies at school due to his detention on remand. He also urged that he had to look after his sickly mother.

6. I have considered the contents of the application and the applicant's plea at the hearing along with the submissions of the learned State Counsel bearing in mind the legal phraseology that an accused person has 'a right to be released on bail' and that 'there is a presumption in favour of the granting of bail' under Section 3 of the Bail Act.

7. Section 3 contains provisions whereby 'interests of justice' have been declared as a necessary factor to be considered by court in affording 'the right to be released' to an accused person under the Act. Moreover, the presumption favouring the accused could be rebutted by a person opposing the grant of bail by the criteria laid down in Sections 3(4) (a) and 18 (1) of the Act, which include the public interest and the protection of community.

8. While the scheme of the Act provides a basis for a person opposing bail to rebut the presumption favouring an accused-person under Section 18(1) read with section 3 (3) of the Act, I am of the view that court is also invested with power independently to consider issues concerning 'interests of justice' and 'public interest' under Section 3(1) and Sections 19 (1) and 19 (2) of the Act.

9. Having taken into account the criteria laid down in the foregoing provisions, I conclude that:

(a) There is an apparent likelihood of the applicant not observing bail conditions in view of his previous breaches;

(b) There is a likelihood of the applicant committing another offence/s whilst on bail in view of his past record;

(c) The circumstances, nature, seriousness of the offence are such that 'interests of justice' and 'public interests' override the 'right [of the applicant] to be released on bail'; and,

(d) The presumption in favour of the granting bail is displaced in view of his failure to attend court, whilst on bail before.

10. In coming to the above conclusions, I have considered the provisions of Section 19 (2) (b) of the Bail Act with reference to the interests of the accused-person. However, my consideration of the matters set-out in Section 19 (2) (b) are outweighed by the demands of interests of justice and public interest.

11. Having considered all the circumstances, I hold that the applicant is not entitled to be released on bail. Application is, accordingly, disallowed and bail is refused.

Priyantha Nāwāna

Judge

High Court

Lautoka

21 February 2013