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State v Raj [2011] FJMC 78; CRC 743.2011 (20 July 2011)

IN THE RESIDENT MAGISTRATE COURT AT NASINU


CRIMINAL CASE NO. 743 OF 2011


STATE


v


JAMES ASHWIN RAJ


DATE OF RULING: 20th July 2011


For the State: Sgt Volavola
Accused: Present in person


RULING ON BAIL


1] Accused is charged with offences namely;


i) Burglary: - Contrary to section 312(1) of the Crimes Decree No.44 of 2009.


ii) Theft: - Contrary to Section 291 of the Crimes Decree No.44 of 2009.


2.] The Accused was arrested and produced before this court on 18th July 2011. He applied for bail and the prosecution objected for bail. The accused was remanded till today. The accused applied bail on following grounds.


A] That he does not have any pending cases and he was acquitted by the High Court for Nausori Court cases. This was later confirmed by the prosecution.


B] That he supports his school going daughter.


C] That he is the sole bread winner of the family.


D] That he can produce his mother as surety.


E] That he works as market vendor and his goods were locked if not bail granted those good will be perished.


F] That he asks second chance and says he will obey any bail condition.


3] Police prosecution strongly opposed to the bail on following grounds.


A] That they said that they have a strong case against the accused.


B] That the Accused has similar list of previous convictions. He has 15 previous convictions.


C] That the accused has not reformed or learnt lessons from the past.


E] That Public interest at stake.


4] I have carefully considered the submission by the Police Prosecution and the accused.


5] Applicable law could be found in Bail Act of 26 of 2002. In section 3 of said Act provides grating of bail is the rule and refusal of bail is the exception. Every person has a right to be released on bail unless it is in the interest of justice bail could be refused. The presumption of granting bail to a person could be rebutted by the party who opposes to it. Thus police prosecution should rebut this presumption in this case.


6] In section 19(1) provides that how (reasons for refusing bail) prosecution could rebut this presumption.


i] The accused person is unlikely to surrender to custody and appear in court to answer the charges laid;


ii] The interest of the accused person will not be served through the granting of bail; or


iii] Granting bail to the accused would endanger the public interest or make protection of the community more difficult.


7] Since the prosecution to rebut the presumption, I consider the prosecution's submission in this regard. Police Prosecution said that they have a strong case; further the Prosecution enlightens the court that he has similar nature of these crimes and he has not reformed or learnt lessons from the past. The prosecution said the part of the stolen items was recovered and purchaser of those items has identified the accused positively. Thus the police said that they have strong case. The prosecution said there is an accomplice and he is to be arrested.


8] According to section 17(2) the primary consideration is whether accused will come to Court to answer charge against him. But court notes other factors have similar considerations in deciding bail on the accused. (Section 18(1))


9] In section 19(2) of said bail Act provides inter alias previous criminal history, failure to surrender custody or breach of bail conditions, strength of the prosecution case and the likelihood of the accused person committing an arrestable offence while on bail could be determined as rebuttal of above presumption.


10] Accused's criminal history indicates that if he is released on bail he may commit another offence while he is on bail. Accused's past history shows that he has propensity to do crimes again. I am satisfied with the prosecution submissions. Therefore I hold that public interest at stake at this scenario and bail application must be refused.


11] I now turn to the Accused's grounds; the Accused said that he has to supports his schooling daughter. I lament, but this court cannot accept this is as reasonable ground for grant bail. If so, every accused that has children must to be granted bail. Hence I hold the accused does not have social background or family ties. Moreover, Court should look innocent public and their rights to be safe guarded as well. The Accused's right to bail is an individual right and it must be overlooked by public's rights.


12] Ground for Refusal of Bail is mentioned in Section 19(2). I reproduce section 19(2) (a) and (c) of the Bail Act 2002.


(a) as regards the likelihood of 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);


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


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


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


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

(Emphasis is mine)


13] Thus, the Accused previous convictions play a vital role in deciding bail. It entangles with above section (a) (i) and deciding public interest and protection of the community court has enormous power to refuse bail in considering the attended circumstances. Charges levelled against the accused are serious. If convicted the prison sentence is inevitable. Prosecution says that they have strong case.


14] For above mention reasons, I decide that granting of bail to the accused would endanger the public interest and the accused may unlikely to surrender to custody and appear in court to the charges laid against him and I am view of if he granted bail, he possibly commit another arrestable offence. I hold that the prosecution has rebutted the above presumption of granting bail. Therefore bail application is refused. Accused is presumed innocent until proven guilty. Therefore I set an early hearing date and review. This then case could be decided on merits.


15] Under section 14(3) of bail Act the accused is advised not to make any bail application on above grounds (similar grounds) again.


16] Bail is refused. The accused is further remanded in custody. At all times production order is to be served on prison authorities to bring down the accused to the court for this case.


17] Under section 30 of Bail Act you may appeal against this ruling. 28 days to appeal.


Sumudu Premachandra
Resident Magistrate


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