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State v Baleivanulevu [2012] FJMC 170; Criminal Case 169.2012 (16 July 2012)

IN THE MAGISTRATE'S COURT
AT SUVA,FIJI,

MAGISTRATES COURT CRIMINAL CASE HAC NO; 169/2012

BETWEEN:

THE STATE
PROSECUTION

AND:

SAILOSI BALEIVANULEVU
2ND ACCUSED PERSON,

BEFORE: Resident Magistrate Mr. Thushara Rajasinghe,

COUNSEL: Ms. Vinti Prasad for the Prosecution,
Accused in person,

Date of Ruling: 16th day of July 2012.

BAIL RULING

The accused is charged with the offence of "Aggravated Robbery" contrary to section 311 (a) (b) of the Crimes Decree No 44 of 2009 which entails a punishment up to 20 years of imprisonment period.
The accused filed his written bail application wherein he stated that he is the sole bread winner of the family which consist his wife and three children. He further stated that his children need his support. The deteriorating condition of the remand prison was also brought into my attention by the accused in his written bail application.
The learned Counsel for the prosecution submitted her objection and objected for bail on following grounds;
1. The Accused person's back ground and his previous adverse criminal history. Accused has total of 28 of previous convictions including 2 convictions of escaping from lawful custody and 1 conviction of forfeiture of bail bond.
2. Seriousness of the offence for which he is charged,
3. The Strength of the prosecution case,
4. The Severity of the likely penalty if the accused is found guilty.
5. Interest of the accused person,
6. Public interest and community protection.
The accused filed his response to the State objection which I dully considered in this ruling.
Having considered the written bail application of the accused, state's objection and the accused person's response, 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 deal with the grounds in relation to bail determination.
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 person seeking bail has previously breached a bail undertaking or bail condition; or

(b) the person has been convicted and has appealed against the conviction.

The right to be released on bail pursuant of section 3 (1) of the Bail Act is not an absolute right. His Loradship Justice Nawana held in MikaeleWaqa v State ( Criminal Miscellanous Case No:HAM 122 OF 2010) "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.

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.
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".
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.
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. 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 accused person;
  - (c) the public interest and the protection of the community".
3. The three grounds stipulated in section 18 (1) of the act is further elaborated under section 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,
4. 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 particular-
  - (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);

(b) as regards the interests of 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 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.
1. 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".
2. Her ladyship Justice Shameem in Tak Sang Hao v The State (2001) FJHC 15, HAM0003d.2001s (26 April 2001), has 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,
  1. Whether bail has been refused previously,
  1. The seriousness of the charge,
  2. The likelihood of the accused re –offending on bail,
  3. Any interference with prosecution witnesses,
  4. The accused's character,
  5. The accused right to prepare his defence,
  6. The likelihood of further charges,
  7. The state's opposition to bail.
3. Bearing in mind the above judicial precedents, provisions of the Bail Act, laws pertaining to granting of bail and careful consideration of the written bail application and objection filed by the Accused and state respectively, I now proceed to determine the bail ruling of the accused.
4. The prosecution main contention is that the accused has an adverse record of criminal history with 28 convictions including two convictions for escaping from lawful custody and one conviction of Forfeiture of bail bond. State argues that the accused person previous criminal history which includes the previous breach of bail undertakings and condition falls within the ambit of section 3 (4) (a) of the bail act which I agree. Having considered the state's contention to rebut the presumption in favor of bail, I am satisfied that the Prosecution has successfully rebutted the presumption in favor of bail pursuant to section 3 (4) of the Bail Act.
5. The accused long history of criminal record and the seriousness of the offence he is charged with, allow me to form a reasonable inference that the accused may not appear in court to answer the charges laid against him in the event of granting him bail.
6. In view of forgone reasons, I refuse the bail application of the accused person and direct the prosecution to proceed with pre trial matters expediently in order to fix an early hearing date for this instance case.
On this 16th day of July 2012.

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

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