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State v Nari [2011] FJMC 83; CRC749.2011 (27 July 2011)

IN THE RESIDENT MAGISTRATE COURT AT NASINU

CRIMINAL CASE NO. 749 OF 2011

STATE

v

ROBLYN NAIR

DATE OF RULING: 27th July 2011

For the State: PC Ravi
Accused: Present Represented by Mr. Sheik Shah

RULING ON BAIL

1] Accused is charged with offences namely;

i) Abduction of person under 18 years of age with intent to have carnal knowledge: - Contrary to section 211 of the Crimes Decree No.44 of 2009.

ii) Defilement of a young person between 13 and 16 years: - Contrary to Section 215(1) of the Crimes Decree No.44 of 2009.

2.] The Accused was arrested and produced before this court on 25th July 2011. He applied for bail through his counsel Mr. Shah and the prosecution objected for bail. The accused was remanded till today. The accused applied bail on following grounds.

A] The Accused will come to the court and face the trial. (Primary concern of the Bail Act 2002)

B] Innocence of the accused to be presumed until guilty is proven.

C] That the Accused has been police custody since Saturday (23-07-2010)

D] That the Accused can give his mother as surety.

E] That the Accused is the sole bread winner of the family.

F] That the Accused denies the charges and has no previous convictions.

G] That the Accused ready to stay away from the vicinity.

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

A] That this is a serious offence.

B] That the offence pervades all over the Fiji.

C] That the accused is likely to interfere with the victim and the prosecution witness as they are living in same settlement. .

D] That in the interest of accused.

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. The accused is a first offender and he has not breached any bail condition previously. Thus court notes that there is less chance of evading the court or custody. According to section 17(2) the primary consideration is whether accused will come to Court to answer charge against him. I am mindful of that.

8] In the interest of the Accused should the accused be remanded? The Prosecution says that the tension is high between parties and the victim's party might harm the accused.

9] I wish to consider bail principles at length. In Tak Sang Hao v The State (2001) FJHC 15, HAM0003d.2001s (26 April 2001),where Her Ladyship Justice Shameem, thoroughly illustrated factors are to be concerned in arriving at a conclusion in respect of bail, after carefully considering the laws pertaining to bail in England, and European Convention on Human Rights. These relevant factors are (His Lordship Fatiaki J in Adesh Singh & Ors Miscellaneous Action No. 11 and 12 of 1988 took similar approach);

a) The presumption of innocence,

b) Whether the accused to appear to stand trial,

c) Whether bail has been refused previously,

d) The seriousness of the charge,

e) The likelihood of the accused re –offending on bail,

f) Any interference with prosecution witnesses,

g) The accused's character,

h) The accused right to prepare his defence,

i) The likelihood of further charges,

j) The state's opposition to bail.

10] Her Ladyship further enunciated;

"In England bail is governed by the 1976 Bail Act, which provides that bail may be refused where there are substantial grounds for believing that the defendant if released on bail, would fail to surrender to custody, commit an offence while on bail, interfere with witnesses, and where the Court is satisfied that the defendant should be kept in custody for his own protection and welfare (Schedule 1 Part 1 (2)). However, case law on the interpretation of the Human Rights Act 1998, and the European Convention on Human Rights shows a shift towards a more narrow approach to the refusal of bail. Article 5 (3) of the Convention states that a person charged with an offence must be released pending trial unless the state can show that there are relevant and sufficient reasons to justify his continued detention. Further, bail may be refused for only four reasons.

Firstly that there a risk that the accused will fail to appear at trial. Relevant factors are the character of the accused, his home, occupation, his assets within the country, his family ties and any other ties within the country (Newmeister – v – Austria I E.H.R.R. 91. The seriousness of the offence is relevant but not the predominant factor.

The second legitimate reasons for refusing bail is possible interference with the course of justice.

The third factor is that the accused may commit further offences on bail.

The fourth relevant factor is that the nature of the crime alleged and the likely public reaction are such that the release of the accused may give rise to public disorder. In Letellier – v – France [1991] ECHR 35; 14 E.H.R.R. 83, the Court said this factor was only relevant to offences which were particularly serious. The Fiji Courts have developed principles of bail along similar lines.

These principles echo the sentiments of the European Convention on Human Rights, and of Section 34 (6) (a) of the Constitution. The fundamental principle has always been, and continues to be, that bail will be granted unless the Court believes that the accused may not appear for trial. The factors listed above, help to assist the Court in arriving at a conclusion in respect of this fundamental principle of bail."

11] If I consider the refusal of bail in the interest of the accused, this following judgment would be helpful. In Pita Vuli – v – The State Miscellaneous Act No. 8 of 1990, His Lordship Justice Fatiaki said;

"As to the safety of the applicant himself, it is the Court's view that this alone is an insufficient ground for depriving a person of his liberty.

If I might say so, the protection, safety and security of persons in this country rests primarily with the Police and not with prison wardens. Furthermore it is not suggested that the Police would not be able to carry out its normal responsibilities in regard to the applicant or that he has received life-endangering threats".

10] Therefore the safety of the accused is lies on the Police and I cannot hold this contention as a valid reason for refusal of bail.

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] None of the grounds are patent in this instant application. In line of the above principle I hold that presumption of right to have bail has not been rebutted by the prosecution.

14] For above mention reasons, I decide to grant bail to the accused on strict bail conditions.

The Accused;

(I) To secure his own attendance at the Magistrate Court of Nasinu by standing in his own recognizance in the sum of $ 2000, apart from that;

(II) To provide one non relative surety in the sum of $ 1000 who is to ensure the attendance of the Accused at court and that the terms and conditions of this grant of bail are complied with. A copy of this completed form should be provided to the surety.

(III) To attend court when told to do so for mention, any pre-trial applications, and the trial of this case and to attend every court dates.

(IV) To be of good behaviour and not to commit any offence whilst on bail.

(V) To reside with current address until the conclusion of his trial.

(VI) And not to change that address without the written leave of the court which leave must be obtained before any change of address is made. The Prosecution must also be informed beforehand by the accused.

(VII) Is not to approach any prosecution witnesses, directly or indirectly, or to interfere with or harass them, in any way.

(VIII) To surrender his passport to the court within 3 days of this order if not so deposited already,

* Is not to apply for a passport.

* And is not to travel overseas without further order from the court.

*Immigration to be notified by the Senior Court Officer of this court regarding the travel ban.

(IX) Is to report to the (nearest) Police Station, every Sundays between 6am and 6pm.- Valelevu Police Station

(X) And is warned that breach of any of these conditions is likely to result in the cancellation of his bail and the issuance, if necessary, of a warrant for his arrest and a return to custody till he is tried.

Sumudu Premachandra
Resident Magistrate