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Nukunawa v State [2011] FJMC 116; Criminal Case 529.11 (6 October 2011)

IN THE RESIDENT MAGISTRATE'S COURT
AT LAUTOKA
IN THE WESTERN DIVISION
CRIMINAL JURISDICTION

IN THE MATTER OF AN

APPLICATION FOR BAIL

CRIMINAL CASE NO.529/11

BETWEEN

JOELI NUKUNAWA
APPLICANT

AND

STATE
RESPONDENT

For Applicant: In Person
For Respondent: Sgt. Paul Taito

BAIL RULING
INTRODUCTION

This is an application for Bail Pending Trial. The accused is charged with the following mentioned offences.

The accused is in remand for this case since 07.09.2011.

THE LAW

The 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 likely hood of the accused person appearing in court to answer the charges laid against him or her. [Section 17(2)]

Where bail is opposed, section 18(1) requires that the party opposing bail addresses the following considerations.

1. The likelihood of the accused person surrendering to custody and appearing in court.
2. The interests of the accused person.
3. The Public interest and the protection of the community.
   

The section 19(1) of the Bail Act provides that an accused person must be granted bail by a Court unless

1. The accused person is unlikely to surrender to custody and appear in court to answer the charges laid.
2. The interests of the accused person will not be served through the granting of bail or
3. The granting of bail to the accused person would endanger the public interest or make the protection of the community more difficult.
   

The 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.

1. The accused person's background and community ties (including residence, employment, family situation, previous criminal history).
2. Any previous failure by the person to surrender to custody or to observe bail conditions.
3. The circumstances, nature and seriousness of the offence.
4. The strength of the prosecution case.
5. The severity of the likely penalty if the person is found guilty.
6. Any specific indications (such as that the person voluntarily surrendered to the Police at time of arrest, or as a contrary indications, was arrested trying to flee the country).
   

(B) As regards the interests of the Accused person.

1. The length of time the person is likely to have to remain in custody before the case is heard.
2. The conditions of that custody.
3. The need for the person to obtain legal advice and to prepare a defence.
4. The need for the person to beat liberty for other lawful purposes [such as employment, education care or dependants].
5. Whether the person is under the age of 18 years (in which case section 3(5) applies).
6. Whether the person is incapacitated by injury or intoxications or otherwise in danger or in need of physical protection.
   

(C) As regards the Public interest and the protection of the community:-

1. Any previous failure by the accused person to surrender to custody or to observe bail conditions.
2. The likelihood of the person interfering with evidence witnesses or assesses or any specially affected person.
3. The likelihood of the Accused person committing an arrestable offence while on bail.
   

In considering all these matters, the Court has to bear in mind the presumption of innocence.

The grounds raised by the accused for bail are as follows;

• The accused is presumed to be innocent until proven guilty.
• The accused's mother is sickly and he needs to provide for the mother.
• The accused has no history of breach of bail.
  

The State opposes bail mainly due to the following grounds;

• The offence of "Burglary" and "Theft" are prevalent in Fiji.
• The granting of bail to the accused person would endanger the public interest or make the protection of the community more difficult.
• The accused allegedly committed the offence during the pending of the suspended term.
  

OBSERVATION

According to the Section 17 (2) of the Bail Act 2002, 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.

While I am conscious of the presumption in favour of bail that presumption is rebutted when it is likely that the accused may not surrender to custody and appear in court to answer the charges laid. [Section 19 (1) (a) of the Bail Act 2002].

Hence the two fundamental principals are:

1. The fundamental right to bail and the presumption in favour of that right.
   
2. Whether the bail will report to Court to answer his/her case.
   

With those principals as a foundation stone the Court then must have regard to the reasons for refusing bail as provided for in section 19 of the Bail Act 2002. Section 19(1) of the Bail Act reads as follows:

"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 an appear in Court to answer the charges laid;

(b) The interests of the accused person will not be served through the granting of bail;

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

The charge laid against the accused is indeed serious. If convicted, the accused will be facing an immediate custodial sentence.

"But in my view, seriousness of the offence is not a factor that should be predominant in bail applications."

According to the Section 17 (2) of the Bail Act 2002, 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.

The accused was convicted by this Court on 28th of July 2011, for the offence of "Burglary" and "Theft". The accused was sentenced to twenty (20) months imprisonment and the operation of the term of imprisonment is suspended for two years. [Lautoka Magistrate Court Case No. 421/11].

About 1 ½ months after the above conviction and sentence, the accused allegedly committed the offence in the instant case. The accused re-offended during the pendency of the suspended term.

Hence there is a possibility of committing another offence if the accused is released on bail. The bail act emphasized the importance of this factor in section 19 (2) (c) (iii).

In "R vs Crown Court at Harrow" [2003], 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 in bail is likely to be a factor of considerable importance against the accused when deciding whether there is a substantial ground for believing that if the accused, is released, he would commit a further offence while on bail".

CONCLUSION

I am satisfied that the prosecution has rebutted the presumption in favour of bail.

Bail is refused.

The accused is advised that he has a right of appeal to the High Court. This Court will not entertain any subsequent application for bail unless the application is founded on some material change of circumstances.

Dated at Lautoka on this 06th day of October, 2011.

...........................................
Jude Nanayakkara
RESIDENT MAGISTRATE
MAGISTRATE COURT – 03
LAUTOKA.