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State v Magitigusuna [2012] FJMC 194; Criminal Case 1225.2010 (17 August 2012)

IN THE RESIDENT MAGISTRATE COURT AT NASINU

(Extended Jurisdiction of HAC 265 of 2010)
Criminal Case No. 1225/10

STATE

-v-

TIMOCI MAGITIGUSUNA

DATE OF RULING: 17th August 2012

For the State: Mr. Sekoanaia Vodokisolomone (DPP Counsel)
Accused: Ms. Samanunu Vaniqi

RULING ON BAIL

1] This accused is charged on following counts;

CHARGE

Statement of Offence [a]

AGGRAVATED ROBBERY: Contrary to Section 311 (1) of the Crimes Decree No. 44 of 2009.

Particulars of Offence [b]

TIMOCI MAGITIGUSUNA on the 4th day of December, 2010, at Nasinu in the Central Division, stole 2 x mobile phone (Samsung & Alcatel) valued $900.00, 1 x Hello Taxi Meter valued $250.00, 1 x Gold Bracelet valued $150.00 and $120.00 cash total valued $1400.00 the property of Nimish Deo Singh.

2] The Accused was arrested and produced in custody on 10th July 2012 for this case. Bail hearing was done on 03rd August 2012. He had filed an affidavit along with "A" which was issued by Fiji Prisons and Corrections Service stating that the accused was in remand on Case No 386/12 from 10th April 2012 to 22th May 2012. He was bail out for this case before and failed to appear. Later bench warrant was issued by this court and he was arrested and remanded up to now. His previous bail has been revoked. The accused in his affidavit and his counsel's oral submissions at bail hearing gives grounds for bail which can be summarized as follows;

A] Sole bread winner of the family.

B] Ask strict bail conditions

C] Willing to report to Valelevu police station.

D] The accused has fixed address and has fixed community ties.

E] He was in Suva prison for unrelated matter and to prove annexure "A" marked.

F] Other case has been disposed which he is free now

G] Remorsefulness of not appearing and seeking mercy.

H] Presumption of innocence to be given to him until guilty is proven.

I] Previous conviction cannot be taken and those are evidence from the bar table and objecting to paragraph "e" of the State's Response.

3] The State has strongly responded to the bail on following grounds.

A] Most of the properties are still missing.

B] Items yet to be recovered are $900 value of two mobile phones.

C] The offence is indictable offence, carries maximum sentence of 20 years and tariff of 8 to 14 years. .

D] State has strong case against the accused including confession.

E] The Accuse has previous Criminal history and has absconded bail in 2006.

F] The applicant has no respect for count orders.

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

6] 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 should rebut this presumption in this case.

5] 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.

6] I consider prosecution submission in this regard. Prosecution said that they have strong cases; and the accused has previous convictions and the public interest at stake.

7] 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))

8] 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.

9] The Accused is known and he has propensity to do crimes while on bail. The accused counsel said that these previous histories are evidence from the bar table. But these facts could be judicially noticed by this court.

10] On 01st March 2011, the accused has been released by this court on strict bail conditions. He was given;

a) $50 Cash bail

b) $500 Surety Bail

c) to report every Mondays and Thursdays between 6am to 6pm to Valelevu Police station

d) warn not to re offend while on bail

e) placed on curfew order everyday between 7pm to 6am

f) should not interfere with the prosecution witnesses

10] But on 02nd February 2012 the accused committed Burglary and theft. He was charged in 386/2012. Thus, he has violated above bail conditions. He re offended while on bail. He was remanded for that case from 10—04-2012 to 22-05-2012( See Annexure "A")

11] Therefore the accused's right to bail has been ceased by his own acts. In Elia Manoa v the State (Misc. Crim. Case No: HAM095 OF 2010, 02nd June 2010) His Lordship Justice Gounder held "Although the new charges are not anyway evidence of guilt, the factor is of considerable importance when determining the likelihood of the accused person committing an arrestable offence while on bail". In R v. Crown Court at Harrow [2003] 1WLR 2756,in page 2778 Hopper LJ enunciated " The fact that the new offences appears to have been committed whilst on bail is likely to be a factor of considerable importance against the defendant when deciding whether there are substantial grounds for believing that, if released, he would commit a further offence while on bail" .

10] In State v Tawake^[1] Madam Justice Shameem refused bail, considering the past criminal history of the accused. She noted;

"The Applicant has previous convictions from 1993, and of these, two are for robbery with violence. In 2000 he gave a false name and address to a police officer. Further he has a pending case dating from 2007, and this current allegation arose whilst he was on bail awaiting trial for the 2007 case. These matters render him a flight risk. In the interests of the community, I must refuse bail."

11] Therefore past criminal history is a vital point of deciding bail when public interest has come forward. The accused has propensity to do crimes again if he was released on bail and he is risk of public. He was given bail before considering his family plight but was unable to maintain himself as law abiding person. Therefore no second chance can be given.

12] I am satisfied with the prosecution has rebutted the presumption of right to be released on bail. The accused is flight risk. Therefore I hold that public interest at stake at this scenario and bail application is refused. Earlier bail is revoked.

14] The Accused is presumed innocent until proven guilty. This is an extended jurisdiction matter; this court gives priority to extended jurisdiction matters. Therefore, I set early hearing date when my next year's diary arrives. Till then he has to be in remand.

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

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

17] Under section 30 of Bail Act the accused may appeal against this ruling.

18] 28 days to appeal.

Sumudu Premachandra
Resident Magistrate

^[1] [2008] FJHC 238; HAC164D.2008S (30 September 2008)