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State v Urai [2011] FJMC 144; Criminal Case 1688 of 2011 (9 November 2011)

IN THE RESIDENT MAGISTRATE'S COURT OF SUVA

Criminal Case No: - 1688/2011

STATE

V

DANIEL URAI

For Prosecution : - Ms. Whippy I
Accused : - Mr. Nand N.

BAIL RULING

1. The accused person is charged with the offence of "Urging Political Violence" contrary to section 65 (1) (b) of the Crimes Decree No 44 of 2009 which entails a punishment up to 15 years of imprisonment period. The learned counsel for the accused person made an application for bail for which the prosecution strongly objected when he was brought before the court on the said charge on 7th day of November 2011.
2. The learned counsel for the Prosecution objected for bail on following grounds;
   
   1. The offence for which the accused is charged is serious in nature and falls under the ambit of treason and other offences against the Government,
      
   2. The accused has breached his existing bail condition which was granted by the Nadi Magistrates' court where he is charged and stands for hearing for the offence of "Unlawful Assembly". The learned counsel further emphasized that the one of the main bail conditions imposed by the learned magistrate in Nadi magistrates' court is that to be in good behavior and not to commit an offence whilst on bail.
      
   3. For the interest of public and the protection of the community. The accused is charged with a serious offence and which may endanger the public interest. It is likely to entails violence if her granted bail. The learned counsel urged that the accused may go back and raise other people against the government.
      
   4. The accused is already charged with the offence of "Unlawful Assembly" in Nadi Magistrate's court. He has breached one of his bail conditions which were imposed by the Nadi Magistrate court in respect of the said charge. By breaching his bail conditions imposed by the Nadi Magistrate's court, the accused has shown his lack of respect for the law enforcement authority,
      
3. The learned counsel of the Accused in his oral submission in response to the objections of the learned counsel for the prosecution vehemently denied that the accused person has breached his bail conditions which were imposed by the Nadi Magistrates' court. The learned counsel urged that the accused person is merely charged for an offence of "Urging Political Violence" which does not mean that he has committed the said offence in line with the common law principle of "presumption of innocent until proven guilty". He pointed out that the accused is not a convicted person.
   
4. Answering the issue of "public Interest and the protection of the community' the learned counsel urged that there is no evidence presented by the prosecution to substantiate its concern on the contention that the accused is likely to entails violence if he granted bail and the accused may go back and raise other people against the government. Accordingly the learned counsel pleaded to disregard such component alleged by the prosecution in this bail determination.
   
5. At the conclusion of the oral submissions of the prosecution and the Defence, I further invited both learned counsel for the prosecution and the defence to file further submission if they wish before 1 p.m on 8th of November 2011 which they filed accordingly and adjourned the bail ruling on 9th of November 2011.
   
6. The learned counsel for the prosecution submitted a detailed submission on the issue of "presumption in favour of bail. The learned counsel for the prosecution having discussed the laws relating to the issue of "presumption in favour of bail" submitted that the presumption in favour of bail was displaced when the accused reoffended and was charged for this second offence. In addition it was further submitted that the accused has breached his pre – existing bail condition and should be remanded in custody.
   
7. The learned counsel for the defence contended in his written submission that the prosecution's assertion that the accused has breached a bail condition by committing another offence is misleading. He further submitted that the accused stands charged with an offence and he has not been found guilty by the court but the prosecution has submitted that the accused committed another offence whilst on bail. The learned counsel upon citing the laws and international covenants and declarations on human rights forcibly argues that the accused is presumed to be innocent until proven guilty.
   
8. Moving from the issue of "presumption in favour of bail' the learned counsel stated in his submission that there is no evidence whatsoever rather by way of affidavit evidence or oral evidence before this court from the prosecution to alleged that the accused is a real and serious threat to the public at large and there is an existing threat that he will abscond the country. In view of the issues of "public interest and the protection of community" and " the likelihood of the accused person surrendering to custody and appearing in court" the learned counsel for the Defence contended that since the prosecution has not led any material evidence to support their claims either by way of affidavit evidence or oral evidence in court, the material presented from the bar table is not evidence in any court and that is the trite law applicable in all common law jurisdictions. The court cannot make a ruling on a matter where there is no evidence before it.
   
9. In conclusion the learned counsel of the Defence submitted that the presumption in favour of bail has not been displaced as the accused person is presumed innocent until proven guilty contrary to the position of the prosecution.
   
10. Having considered the oral and written submissions of the prosecution and the defence, I now proceed to examine the laws pertaining to bail. Section 3 of the bail act and sections 17, 18 and 19 of the bail act deals with the grounds in relation to bail determination.
    
11. Section 3 of the Bail acts states
    

(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 a court or, 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.

(4) The presumption in favour of the granting of bail is displaced where-

(a) the personing bail has prev previously breached a bail undertaking or bail condition; or

(b) the person has been convicnd has appealed against the conviction.

1. In view of the section 3 (1), the right to be released on bail is not an absolubsolute right. His Loradship Justice Nawana held in MikaeleWaqa v State ( Criminal Miscellanous Case No:HAM 122 OF 2010) "The law pertaining to bail is now governed by statutory provisions as contained in the Bail Act of 2002 and the release of an accused person on bail has been made the subject of an objective approach by court depending on facts and circumstances of each case.
   

Section 3 of the Bail Act states 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...'. Such phraseology in the section, in my view, does not invest an absolute right on an accused-person to get released on bail.

Conversely, 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 on bail...' to an accused person under the Act.

13. In view of the section 3 of the bail act and the finding of his lordship Justice Nawana in MikaeleWaqa v State ( Supra) I find that the granting of bail is not an absolute right of the accused person and it is a judicial decision based on judicial discretion. The court has to consider the issue of "interest of justice" in determination of bail.
    
14. Section 3 (3) of the Act further stipulates that "there is a presumption in favour of the granting of bail to a person but a person who oppose the granting of bail may seek to rebut the presumption".
    
15. In view of the section 3 (3) of the act, I find this sub section provides the legal basis for a person who intend to oppose the granting of bail to rebut the presumption in favor of bail. The grounds for rebut the presumption in favour of granting bail are enunciated in section 3 (4) and section 18 (1) of the Bail Act.
    
16. Section 3 (4) of the Act stipulates that " the presumption in favour of granting of bail is displaced where;
    
    1. The person seeking bail has previously breached a bail undertaking or bail condition;
       
    2. the person has been convicted and has appealed against the conviction.
       
17. Section 18 (1) of the Act states that; "A person making submissions to a court against the presumption in favour of bail must deal with-
    

(a) the likelihood of the accused person surrendering to custody and appearing in court;

(b) the interests of the ac perd person;

(c) the public interest an protection of the community".

18. Thee grounds stipultipulated in section 18 (1) of the act is further elaborated under sectionction 19 (1) of the act which states that; ' an accused person must be granted bail unless in the opinion of the Police Officer or the court as the case may be –
    
    1. The accused person is unlikely to surrender to custody and appear in court to answer the charges laid,
    2. The interest of the accused person will not be served through the granting of bail,
    3. Granting bail to the accused person would endanger the public interest or make the protection of the community more difficult,
       
19. Moreover, section 19 (2) further provides that " In forming pinion required ired by subsection (1) a police officer or court must have regard to all the relevant circumstances and in parti-
    

(a) asrds the likelihood of surf surrender to custody-

(i) the accused person's background and community ties (including residence, employment, family situation, previous criminal history);

(ii) any previous failure by the person to surrender to custody or to observe bail conditions;

(iii) the circumstances, nature and seriousness of the offence;

(iv) the strength of the prosecution case;

(v) the severity of the likely penalty if the person is found guilty;

(vi) any specific indications (such as that the person voluntarily surrendered to the police at the time of arrest, or, as a contrary indication, was arrested trying to flee the country);

(b) as regahe interests of the the accused person-

(i) the length of time the person is likely to have to remain in custody before the case is heard;

(ii) the conditions of that custody;

(iii) the need for the person to obtain legal advice and to prepare a defence;

(iv) the need for the person to beat liberty for other lawful purposes (such as employment, education, care of dependants);

(v) whether the person is under the age of 18 years (in which case section 3(5) applies);

(vi) whether the person is incapacitated by injury or intoxication or otherwise in danger or in need of physical protection;

(c) as regards the public interest and the protection of the community-

(i) any previous failure by the accused person to surrender to custodyo observe bail conditions;

(ii) the likelihood of the person interfering with with evidence, witnesses or assessors or any specially affected person:

(iii) the likelihood of the accused person committing an arrestable offence while on bail.

20. Having considered the section 3, 18, and 19 of the Act, His lordship Justice Nawana held 'MikaeleWaqa v State ( Supra ) " Moreover, the presumption favouring the accused could be rebutted by a person opposing the grant of bail by the criteria laid down in Section 18 (1) of the Act, which include the public interest and the protection of community.
    

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 independent of such opposition by a party to consider issues concerning 'interests of justice' and 'public interest' under Section 3(1), Sections 19 (1) and 19 (2) of the Act".

21. Section 17 of the bail act deals with the general provisions for bail determination where sub section 2 stipulates that "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".
    
22. In respect of the grounds laid down in section 18 (1) and 19 (1) His Lordship Justice Gounder held in Isimeli Wakaniyasi v State ( 2010),FJHC 20;HAM 120/2009 (29th January 2010), that "All three grounds need not exist to justify refusal of bail, existence of any one grounds is sufficient to refuse bail".
    
23. I now draw my attention to the dicta of Her ladyship Justice Shameem in Tak Sang Hao v The State (2001) FJHC 15, HAM0003d.2001s (26 April 2001), where Her Ladyship succinctly outlined the primary factors that will assist the court in arriving at a conclusion in respect of bail after scrupulously considering the laws pertaining to bail in England, and European Convention on Human Rights. These relevant factors are;
    
    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 charge,
    5. The likelihood of the accused re –offending on bail,
    6. Any interference with prosecution witnesses,
    7. The accused's character,
    8. The accused right to prepare his defence,
    9. The likelihood of further charges,
    10. The state's opposition to bail.
        
24. Bearing in mind the above judicial precedents and provisions of the Bail Act and careful consideration of the oral and written submissions of the prosecution and the defence, I now proceed to determine the bail of the accused.
    
25. Upon careful perusal of the oral and written submission of the learned counsel for the prosecution, I find that the prosecution relies on section 3(4), 18 (1) (a), (c), together with section 19 (1) (a), (c) and section 19 (2) (a) and 19 (2) (c) of the act in order to displace the presumption in favour of the granting bail.
    
26. The prosecution main contention is that the accused has breached his bail undertaking of not offending whilst on bail wherefore the presumption in favour of granting of bail is displaced. The learned counsel of the defence vehemently denied such assertion as the accused only stands charges with an offence and he is to be presumed innocent until proven guilty. The learned counsel in his submission stated that the decision of State v Muskaan Balagaan ( Crim Misc No HAM 128 of 2011) does not apply in this instance case where the accused in that case has pleaded guilty for her subsequent charged in Magistrate court whilst on bail.
    
27. The cruxes of the argument of the defence is that the accused is to be presumed innocent until proven otherwise and mere charging of the accused for this offence does not amount to a breach of bail undertaking in Nadi Magistrates' court. His lordship Justice Nawana in "Goundar and Another v State [2010] FJHC 566; HAM098.2010 (10 December 2010) considered the issue of previous breach of bail undertaking. Justice Nawana having considered the accused person's pending cases where they were charged with offences similar in nature to the charges in that instance case held that " Upon careful consideration of the cases where similar charges are laid against the two applicant as set –out above I am of the opinion that the granting of bail to the applicants would certainly have the inefficacy of effecting public interest and protection of the community at large. To put in a different perspective, the involvement of the applicants in this case is a breach of an inherent and vital bail condition making them disentitled to the presumption to bail".
    
28. In view of the finding of Justice Nawana in Goundar and Another v State ( Supra) I find that the subsequent charge of an accused person who is having a pending case against him for which he undertook not to offend whilst on bail will amount to a breach of bail undertaking upon his subsequent charging. In order to reach to such conclusion, I am assisted by the remarks made by His Lordship Justice Marshall in Muskan Balaggan v State ( Misc Case No 31 0f 2011) where his lordship held that " finding of fact on bail application are necessarily prima facie finding tentative nature on limited material".
    
29. Under this circumstance the accused person previous breach of bail undertaking must be dealt with sufficient consideration to the principle of "presumption of innocent until proven guilty". The principle of right to bail is mainly based on cardinal principle of presumption of innocent until proven guilty in common law jurisdiction. In order to consider such rights enshrined in the common law jurisdiction the court has to exercise its judicial discretion within the larger spectrum stipulates in section 19 (2) (a) in order to deal with the instances where the subsequent charge of an accused person who is having a pending case against him for which he undertook not to offend whilst on bail will amount to a breach of bail undertaking upon his subsequent charging. His lordship Justice Madigan observed in State v Muskaan Balaggan ( Criminal Misc No HAM 128 of 2011) that " to the extend the state's submission that she re –offended while on bail is correct, and thereby she is in breach of her bail conditions as amended by Thurairaja J. That in itself would not necessarily be reason to revoke her bail which is an extreme course for any court to make".
    
30. In view of the findings of Justice Madigan in State v Muskaan Balaggan ( supra), I am of the view that court must look in to all the criteria laid down in section 19 (2) in order to determine the bail in this instance case.
    
31. Apart from prosecution main contention that the accused has breach his previous bail undertaking, the prosecution contended that accused may abscond the country in the event of granting him bail. In order to ascertain such a contention the prosecution must provide material evidence and fact to support such contention which prosecution failed to do so in this case. In order to draw an inference that the accused person may abscond the country in the event of granting him bail must be based on proper evidence or fact; otherwise the drawing of inference based on improper facts or mere speculations indeed an erroneous judgment. The prosecution does not provide such material facts in order to draw such inference against the accused person in this bail determination.
    
32. Moreover, the prosecution does not provide any material facts to the court to ascertain the strength of the prosecution case, which is a vital consideration in bail determination. The mere contention of possibility of the accused person may go back and raise other people against the government without providing any material facts to support such contention prevented the court to determine such contention in order to ascertain the issue of Public interest and the protection of the community.
    
33. In view of the reasons set out above, I am of the view that the prosecution has failed to displaced successfully any of the grounds elaborately stipulates in section 18 (1) and section 19 (1) of the Bail Act. The prosecution has only established that the accused person has breached his previous bail undertaking in the Nadi Magistrates' court. By virtue of the finding of Justice Madigan in State v Muskaan Balaggan ( supra) where his lordship held " to the extend the state's submission that she re –offended while on bail is correct, and thereby she is in breach of her bail conditions as amended by Thurairaja J. That in itself would not necessarily be reason to revoke her bail which is an extreme course for any court to make" I am of the view that court should determine in favour of the accused person since the prosecution has not displaced any of other grounds stipulates in section 18 (1) and 19 (1) (2) of the bail Act apart from that the accused has breached his previous bail undertaking.
    
34. Having considered the reasons set out above, I hold that the accused is entitled to be released on bail. Application for bail is accordingly allowed and prosecution's objection for bail is dismissed.
    

On this 9th day of November 2011.

R.D.R.Thushara Rajasinghe
Resident Magistrate, Suva