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State v Namua [2012] FJMC 253; Criminal Cases 100.09; 391.09; 388.09 (7 August 2012)

IN THE MAGISTRATE'S COURT AT LAUTOKA

Criminal Case No 100/09, 391/09 & 388/09

BETWEEN

THE STATE

AND

PAULA NAMUA

RULING

1. The accused in these three cases made an application for bail on the 23rd July 2012. The Prosecution objected to bail and this is the ruling on the bail application made by the accused.
   
2. Before the merits of the bail application is considered, I believe it would be worthwhile to briefly analyse the history of these cases.
   
3. The accused had multiple cases before this Court and he was refused bail with written reasons by his worship Mr Usaia Ratuvili, Resident Magistrate, Lautoka on the 23rd February in case numbers, 388/09, 392/09, 100/09, 386/09, 387/09, 391/09.
   
4. Later the accused pleaded guilty in a few cases and was sentenced to prison whilst he was in remand custody.
   
5. On the 23rd July 2012 the prosecution produced the accused saying that the accused was released by the Prison authorities ignoring the fact that he should be in remand custody for his other cases. The Prosecution requested that the accused be remanded in custody again as his release is clearly a blunder done by the Prison authorities.
   
6. At this point I am compelled to make a remark regarding this issue. This is not the first time that accused persons who ought to be in remand custody were released wittingly or unwittingly by the Prison authorities. In numerous occasions this Court has come across situations where accused persons were released in violation of court orders for reasons best known to the Prison authorities.
   
7. Unfortunately the Prison Department has turned a deaf ear to the numerous requests made by this Court to look into this serious issue. Undoubtedly this poor state of affairs of the relevant authorities could pave the way to a breakdown of the criminal administration of justice system. If the Prison department fails to detain an accused person who is remanded in custody by a Court of law, that reflects nothing less than irresponsible rash and unaccountable performance by the authorities concerned.
   
8. Be that as it may, the accused in these cases was also released from prison after he served his sentences in few of his cases. However it appears on the perusal of the records of these cases that the accused had been refused bail and had been in remand custody. Thus I am satisfied that the accused should be in remand custody after he completed serving his term of imprisonment in his other cases.
   
9. Therefore I am of the view that the Prosecution has the right to move this Court to rectify the mistake, in absence of any attempt by the Prison authorities to rectify their own fault.
   
10. Accordingly the accused was remanded in custody to rectify the gross administrative fault on the part of the Prison Department.
    
11. Now the question before this Court is to consider whether the accused is entitled to be released on bail, based on his application.
    
12. The accused said that he appeared in court willingly after he was released from prison. He said that he has changed his lifestyle. He said that his father will stand as the surety and he may be released on strict bail conditions.
    
13. The prosecution objected to bail saying he has a number of pending cases with serious charges. Further it was informed that there is no guarantee that the accused will appear in court if he is granted bail. The prosecution informed Court that the accused has 29 previous convictions. Also the Prosecution informed Court that they rely on their previous submissions made in respect of bail.
    
14. The Court is mindful of the presumption in favour of bail. The Section 3(1) of the Bail Act states that an accused person has the right to be released on bail unless it is not in the interests of justice that bail should be granted. However this presumption is displaced if the accused has breached bail conditions. Under section 18 of the Bail Act the Court has to consider the likelihood of the accused surrendering to custody and appearing in Court; the interests of the accused person; and the public interest and protection of the community. Further Section 19(2) of the Bail Act sets out the considerations which have to be taken into account when determining bail.
    
15. I have considered the reasons put forward by the accused in his bail application. It should be noted that the accused has not submitted any facts pertaining to a substantial change of circumstances.
    
16. At this point it would be pertinent to re iterate the reasoning given in the ruling made on the 23rd February 2010 refusing bail for the accused. It has been noted that the accused has breached bail conditions whilst on bail in previous instances. The accused has come on fresh charges whilst on bail. Further the Court has considered that the offences he is charged with are of very serious in nature and they attract severe punishments.
    
17. In view of the severity of the charges I am satisfied that there is a likelihood that the accused may abscond if bail is granted. I have considered the personal circumstances of the accused as well. But I do not think those are sufficient reasons to consider as grounds for bail. Further case number 100/09 is partly heard and the accused cannot complain of long delay in fixing cases for hearing. If at all, the delay had been mostly due to the conduct of the accused itself. It appears that if the accused is released on bail the interest of the community can be at stake as the accused has a history of offending whilst on bail.
    
18. Further I have not observed any change of circumstances since the last bail ruling made on the 23rd February 2010. Therefore I am of the view that the grounds for refusal of bail enshrined in that ruling are still valid.
    
19. In the circumstances the application for bail is refused.
    

28 days to appeal.

Rangajeeva Wimalasena
Resident Magistrate
Lautoka.

07.08.2012