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Ratulevu v State [2011] FJMC 117; Criminal Case 549.2011 (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. 549/11

BETWEEN

MESULAME RATULEVU
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 one count of "Theft" Contrary to Section 291 of the Crimes Decree No.44 of 2009

The accused is in remand for this case since 19.09.2011.

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 needs to provide for his family.
• The accused needs to get Legal advice on his plea.
  

The State opposes bail mainly due to the following grounds;

• The offence of "Theft" is prevalent in Fiji.
• The prosecution has a strong case.
• The accused has a total of six (06) previous convictions all are similar in nature.
• The accused allegedly committed the offence within six (060 months after being released from prison.
• The granting bail to the accused person would endanger the public interest or make the protection of the community more difficult.
  

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."

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 has a total of 47 previous convictions out of which 38 were of similar nature. In view of this adverse record, I am of the view, that granting bail to the accused would endorse the public interest or make the interest of the community more difficult.

The accused has a total of six (06) previous convictions. All are theft related offences. In view of this adverse record, I am of the view, that granting bail to the accused would endanger the public interest or make the interest of the community more difficult.

The last conviction of the accused was on 25/08/2010. The accused had been sentenced to 12 months imprisonment for the offence of "Burglary" and "Theft" [Lautoka Magistrate's Court Case No. 406/10 and 399/10]. The accused was released from the prison in April 2011. About six (06) months after being release from the prison, the accused allegedly committed the offence in the instant case.

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".

As regards the interests of the accused to engage legal representation and prepare for his Trial, he can utilize the procedure available to him in the remand centre.

The ruling of Mataitoga J. in Filimoni Vetau – HAM 07/07 rings true:

"On a claim that an accused person will be disadvantaged in consulting legal counsel if bail is refused; there is no hindrance to accused's counsel visiting the accused in prison".

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.