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State v Kuniko [2012] FJMC 234; Criminal Case 392.2011 (2 October 2012)

IN THE MAGISTRATE'S COURT OF NAVUA

Criminal Case : 392/2011

STATE

VS

APOLOSI KUNIKO

For Prosecution : Sgt. Lenaitasi
For Accused : Mr. Tawake from Legal Aid

Date of Hearing : 25/09/2012
Date of Judgement 02/10/2012

Judgement

[1] The accused is charged with Absconding Bail contrary to s.25 (1) (c) and 26(1) of the Bail Act of 2002. The charge reads as follows;

Statement of Offence [a]

[2] The accused pleaded not guilty for the offence and this was taken for trial on 25/09/2012.

SUMMARAY OF EVIDENCE

[3] At the trial the prosecution called only one witness and tendered 04 documents as exhibits.

PW 1-PC Matei; He interviewed the accused. Through him following documents were tendered and marked as exhibits.

[a] The caution interview- EX-1

[b] The charge statement- EX-2

[c] The court record-Ex-3

[d] The bench warrant -EX-4

[4] The PW1 was not cross examined and the prosecution closed their case. Based on evidence this court found a case against the accused and he was given the rights under the Criminal Procedure Decree. The accused opted to give sworn evidence.

[5] DW1- Apolosi Kunikoro; He said the court gave him the date as 18/09/2011 and he was following that date. It was written in a piece of paper and he thought the next court date was on 18/09/2011.

[6] In cross examination the accused said the date was given on May and it was written in a piece of paper. But he said he did not have the paper with him.

[7] In re- examination the accused said last time he was in court was in May 2011 and that day the court gave him the next date as 18/09/2011, therefore he did not come on 18/07/2011. The defence did not call any other witnesses and closed their case. Both parties opted not to file closing submissions.

THE LAW

[8] The accused is charged with Absconding Bail contrary to s. 25 (1) (c) and s. 26 (1) of the Bail Act of 2002. I consider the relevant sections applicable in this case are s. 25 (1) (c), s. 26(1) and s. 26(2) of the Bail Act .

25.-(1) If an accused person who has been released on bail-

(c) absents himself or herself from the court without the court's leave at any time after he or she has surrendered to custody; or

the court may issue a warrant for the arrest of the accused person.

26.-(1) A person who has been released on bail and who fails without reasonable cause to surrender to custody commits an offence and is liable on conviction to a fine of $2000 and 12 months imprisonment.

26- (2) The burden is on the defendant to prove that he or she had reasonable cause for failing to surrender to custody.

[9] In Woolmington v DPP (1935) AC 462. Viscount Sankey LC said that ' Throughout the web of the English criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt subject to what I have already said as to defence of insanity and subject also to any statutory exceptions'

[10]The standard of proof required to discharge the legal burden varies according to whether the burden is borne by the prosecution or defence. If the legal burden is borne by the prosecution, the standard required is proof beyond reasonable doubt. (Woolminton V DPP) If the legal burden is borne by the accused, the standard required is proof on a balance of probabilities (Carr- Briant [1943] KB 607); the accused never bears the heavier burden of proof beyond reasonable doubt (Blackstone's Criminal Practice 2009 page 2355)

[11] The classic definition of proof on a 'balance of probabilities '' is that of Denning J in Miller v Minister of Pensions [1947] 2 ALL ER 372, at p. 374: 'If the evidence is such that the tribunal can say: "We think it more probable than not, the burden is discharged, but, if the probabilities are equal, it is not.' (Blackstone's at p. 2374)

[12] In view of the s. 26 (2) of the Bail Act the burden has been placed on the defendant to prove that he has reasonable cause for not surrendering. As mentioned in paragraph 12 therefore he has to prove that on balance of probabilities.

ANALYSIS OF THE EVIDENCE

[13] There is no dispute that the accused failed to appear in court on 18/ 07/2012. The explanation given by the accused is that the court gave a wrong date and that's why he did not come.

[14] I reject the accused's version on following grounds.

[a] The accused said the wrong date was written in a piece of paper, but he did not produce that in his evidence. The accused also failed to give an explanation for not producing that paper to the court.

[b] The accused did not call any other witnesses to prove his claim.

[15] This court also had the opportunity to watch the accused in the witness box and was not satisfied with the demeanor of the accused.

CONCLUSION

[18] Based on above reasons I conclude that the defence has failed to discharge the burden placed on them.

[19] Accordingly, I find the accused guilty for Absconding Bail contrary to s. 25 (1) (c) and s. 26(1) of the Bail Act of 2002.

[20] 28 days to appeal

02/10/2012

H.S.P.Somaratne
Resident Magistrate