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Vibose v State [2014] FJHC 14; HAA33.2013 (30 January 2014)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL APPEAL CASE NO.: HAA 33 OF 2013

BETWEEN:

SIVANIOLO VIBOSE
Appellant

AND:

STATE
Respondent

Counsels: Mr. R. Kumar for the appellant
Mr. A. Singh for the Respondent

Date of Judgment: 30 January 2014

JUDGMENT

1. The appellant has five pending cases before Ba Magistrate Court.
   
   • (i) CF 4/2013 - 19.5.2013 - 10 counts of Burglary and theft
   • (ii) CF 444/2013 - 22.7.2013 - 2 counts of Aggravated robbery
   • (iii) CF 443/2013 - 24.7.2013 - 1 count of Aggravated robbery
   • (iv) CF 445/2013 - 26.5.2013 - 2 counts of Aggravated robbery
   • (v) CF 446/2013 - 27.7.2013 - 1 count of Brach of bail condition
     
2. He was granted bail from Ba Magistrate Court on 23.5.2013 for CF 4/2013. Two conditions of bail are:
   
   • (i) Curfew imposed from 6.00 p.m. to 5.00 a.m. to remain indoors,
   • (ii) Not to re-offend.
     
3. He is alleged to have breached the above bail conditions as there are three allegations of similar nature now pending against the appellant.
   
4. The learned Magistrate by his Ruling dated 30.9.2013 had refused bail to the appellant.
   
5. This appeal was filed within time on 25.10.2013. The grounds of appeal are:
   
   • (i) That the learned Magistrate erred in his ruling because he failed to properly consider the Bail Act provisions when giving reasons in refusing bail especially my right to bail and being innocent until proven guilty,
     
   • (ii) That the learned Magistrate erred in his ruling because he did not consider the Juvenile Act when giving his bail ruling,
     
   • (iii) That the learned Magistrate erred in the reasoning of his ruling in considering that he may be a threat to community without any evidence adduced by State to that effect,
     
   • (iv) The appellant reserve his rights to add further grounds upon receipt of Court records.
     
6. Both parties have filed written submissions.
   
7. The learned Magistrate in his ruling dated 30.9.2013 had considered Section 3 (1), 3 (3), 17 (2), 18 (1), 19 (1) & 19 (2). So there is no merit in the ground that the learned Magistrate had not considered the Bail Act in giving reasons in refusing bail.
   
8. Further there is no material before this Court that the appellant is a Juvenile, in order to consider the Juvenile Act.
   
9. Section 3 of the Bail Act states as follows:
   

(1) 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.

(2) Bail may be granted by Court, subject to Section 8 (2), by a Police officer.

(3) 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.

10. This Court is in total agreement with the Appellant that under the Bail Act, bail is the rule and refusal is exception. But Section 3 of the Bail Act it has limitations.
    
11. Considering the decision made by Justice Shameem in Tak Sang Hoa v The State (2001)

FJHC 15 and Justice Fatiaki in Adesh Singh & Others Miscellaneous case No. 11 and 12 of
1998 following factors need consideration:

1. The presumption of innocence;
2. Whether the accused to appear to stand trial;

100. 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.
    

12. Considering both the application for bail and submission by the State, Court is of the view that the appellant falls within the ambit of Section 19 of the Bail Act.
    
13. 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 served through granting bail; or
(c) Granting bail to the accused person would endanger the public interest or make the protection of the community more difficult.

14. In Isimeli Wakaniyasi v. The State (2010) FJHC 20; HAM 120/2009 (29th January 2010) Justice Gounder states that:
    

"All three grounds need not to exist to justify refusal of bail. Existence of any one ground

is sufficient to refuse bail."

15. Considering all above, the court is of the view that it is with public interest that the appellant remain in remand pending trial.
    
16. Appeal not allowed. Bail refused. The learned Magistrate directed to give priority to the cases against the appellant. If there is a delay, the learned Magistrate could reconsider bail for the appellant.
    

Sudharshana De Silva
Judge

At Lautoka
30th January 2014

Solicitors : Office of the Legal Aid Commission for Appellant
Office of the Director of Public Prosecution for Respondent