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You are here: PacLII >> Databases >> Magistrates Court of Fiji >> 2012 >> [2012] FJMC 91

State v Mateiviti [2012] FJMC 91; Bail Ruling 641,650,649,563,564,850-2010 (11 May 2012)

IN THE RESIDENT MAGISTRATE COURT
AT NASINU

CRIMINAL CASE NOS: 850 OF 2009, 1347 OF 2009, 563 OF 2010,564 OF 2010,
641 OF 2010, 649 OF 2010 and 650 OF 2010,

STATE

-v-

EMA MATEIVITI

DATE OF RULING: 11th May 2012

For the State: Ms. Jayneeta Prasad (State Counsel for DPP)
Accused: in person

RULING ON BAIL

1] This accused is charged with 7 cases on following counts;

i) Criminal Case No. 850/09

CHARGE:

Statement of Offence [a]

First Count

OBTAINING MONEY BY FALSE PRETENCE: Contrary to Section 309 [a] of the Penal Code Act 17.

Particulars of Offence [b]

EMA MATEIVITI, on the 13th day of February 2009, at Nasinu in the Central Division, with intent to defraud obtained $86.00, cash from ONYEMA DIKE, by falsely pretending that the money was for Magistrates Court Registration Fees.

Second Count

OBTAINING MONEY BY FALSE PRETENCE: Contrary to Section 309 [a] of the Penal Code Act 17.

Particulars of Offence [b]

EMA MATEIVITI, on the 13th day of February 2009, at Nasinu in the Central Division, with intent to defraud obtained $536.00, cash from ONYEMA DIKE, by falsely pretending that the money was for Magistrates Court Application Fees.

Third Count

OBTAINING MONEY BY FALSE PRETENCE: Contrary to Section 309 [a] of the Penal Code Act 17.

Particulars of Offence [b]

EMA MATEIVITI, on the 13th day of February 2009, at Nasinu in the Central Division, with intent to defraud obtained $217.00, cash from ONYEMA DIKE, by falsely pretending that the money was for Magistrates Court Summon Fees.

Fourth Count

OBTAINING MONEY BY FALSE PRETENCE: Contrary to Section 309 [a] of the Penal Code Act 17.

Particulars of Offence [b]

EMA MATEIVITI, on the 20th day of February 2009, at Nasinu in the Central Division, with intent to defraud obtained $117.00, cash from ONYEMA DIKE, by falsely pretending that the money was for High Court Registration Fees.

Fifth Count

OBTAINING MONEY BY FALSE PRETENCE: Contrary to Section 309 [a] of the Penal Code Act 17.

Particulars of Offence [b]

EMA MATEIVITI, on the 6th day of March 2009, at Nasinu in the Central Division, with intent to defraud obtained $1215.00, cash from ONYEMA DIKE, by falsely pretending that the money was for High Court Injunction Fees.

Sixth Count

OBTAINING MONEY BY FALSE PRETENCE: Contrary to Section 309 [a] of the Penal Code Act 17.

Particulars of Offence [b]

EMA MATEIVITI, on the 20th day of March 2009, at Nasinu in the Central Division, in incurring a debt or liability to ONYEMA DIKE, obtained credit to the amount of $1500.00 from the said ONYEMA DIKE, by falsely showing a WESTPAC BANK LETTER that she had a fix deposit in Westpac Bank.

Seventh Count

OBTAINING MONEY BY FALSE PRETENCE: Contrary to Section 309 [a] of the Penal Code Act 17.

Particulars of Offence [b]

EMA MATEIVITI, on the 26th day of March 2009, at Nasinu in the Central Division, in incurring a debt or liability to ONYEMA DIKE, obtained a credit to the amount of $3000.00 from the said ONYEMA DIKE, by falsely pretending that she needed the money to pay installment of her motor vehicle to the Finance Company.

Eighth Count

OBTAINING MONEY BY FALSE PRETENCE: Contrary to Section 309 [a] of the Penal Code Act 17.

Particulars of Offence [b]

EMA MATEIVITI, on the 16th day of March 2009, at Nasinu in the Central Division, with intent to defraud obtained from ISABELLA DIKE, three DESIGNER BOUSE'S VALUED at $350.00 by falsely pretending that she wanted to copy the designs.

Nineth Count

OBTAINING MONEY BY FALSE PRETENCE: Contrary to Section 309 [a] of the Penal Code Act 17.

Particulars of Offence [b]

EMA MATEIVITI, on the 20th day of March 2009, at Nasinu in the Central Division, with intent to defraud obtained from ISABELLA DIKE, DESIGNER BEADS and CRYSTAL NECKLACE valued at $450.00 by falsely pretending that she will make payment for the said DESIGNER BEADS and the CRYSTAL NECKLACE.

ii) Criminal Case No. 1347/2009

AMENDED CHARGE:

Statement of Offence [a]

First Count

OBTAINING MONEY BY FALSE PRETENCE: Contrary to Section 309 [a] of the Penal Code Act 17.

Particulars of Offence [b]

EMA MATEIVITI, on the 8th day of August 2009, at Nasinu in the Central Division, with intent to defraud obtained $100.00 by virtue of ANZ Cheque 114 from R. B. Patel Supermarket by falsely pretending that the said ANZ Cheque was good and valid order for payment of $100.00.

Second Count

OBTAINING MONEY BY FALSE PRETENCE: Contrary to Section 309 [a] of the Penal Code Act 17.

Particulars of Offence [b]

Third Count

OBTAINING MONEY BY FALSE PRETENCE: Contrary to Section 309 [a] of the Penal Code Act 17.

Particulars of Offence [b]

Fourth Count

OBTAINING MONEY BY FALSE PRETENCE: Contrary to Section 309 [a] of the Penal Code Act 17.

Particulars of Offence [b]

Fifth Count

OBTAINING MONEY BY FALSE PRETENCE: Contrary to Section 309 [a] of the Penal Code Act 17.

Particulars of Offence [b]

Sixth Count

OBTAINING MONEY BY FALSE PRETENCE: Contrary to Section 309 [a] of the Penal Code Act 17.

Particulars of Offence [b]

Seventh Count

OBTAINING MONEY BY FALSE PRETENCE: Contrary to Section 309 [a] of the Penal Code Act 17.

Particulars of Offence [b]

Eighth Count

OBTAINING MONEY BY FALSE PRETENCE: Contrary to Section 309 [a] of the Penal Code Act 17.

Particulars of Offence [b]

Ninth Count

OBTAINING MONEY BY FALSE PRETENCE: Contrary to Section 309 [a] of the Penal Code Act 17.

Particulars of Offence [b]

iii) Criminal Case No. 563/10

CHARGE:

Statement of Offence [a]

ABSCONDING BAIL CONDITION: Contrary to Section 25 [1] (b) and 26 of the Bail Act 2002.

Particulars of Offence [b]

EMA MATEIVITI, on the 23rd day of December 2009, at Nasinu in the Central Division, being an accused person released on bail to appear at the Nasinu Magistrate Court on the 12th day of April, 2010 with conditions fail to surrender to custody without a reasonable cause.

iv) Criminal Case No. 564/10

CHARGE:

Statement of Offence [a]

ABSCONDING BAIL CONDITION: Contrary to Section 25 [1] (b) and 26 of the Bail Act 2002.

Particulars of Offence [b]

EMA MATEIVITI, on the 12th day of December 2009, at Nasinu in the Central Division, being an accused person released on bail to appear at the Nasinu Magistrate Court on the 23rd day of December, 2009 with conditions fail to surrender to custody without a reasonable cause.

v.) Criminal Case No. 641/10

CHARGE:

Statement of Offence [a]

First Count

OBTAINING MONEY BY DECEPTION: Contrary to Section 317 [1] of the Crimes Decree No. 44 of 2009.

Particulars of Offence [b]

EMA MATEIVITI, on the 4th day of February 2010, at Nasinu in the Central Division, with intent to defraud dishonestly obtained $1200.00, cash belongings to MELAIA TAVENISA LAIYAWA, with the intention of permanently depriving the said MELAIA TAVENISA LAIYAWA, on false pretext of paying tuition fees at University of the South Pacific.

vi.) Criminal Case No. 649/10

CHARGE:

Statement of Offence [a]

OBTAINING MONEY BY DECEPTION: Contrary to Section 317 [1] of the Crimes Decree No. 44 of 2009.

Particulars of Offence [b]

EMA MATEIVITI, on the 16th day of January 2010 and 9th day of April 2010, at Nasinu in the Central Division, with intent to defraud dishonestly obtained $1500.00, cash belonging to VASIMI VUETI, with the intention of permanently depriving the said VASIMI VUETI, on false pretext that she will make the tomb stones for his parents.

vii) Criminal Case No. 650/10

AMENDED CHARGE:

Statement of Offence [a]

OBTAINING SERVICES BY DECEPTION: Contrary to Section 318 of the Crime Decree No. 44 of 2009.

Particulars of Offence [b]

EMA MATEIVITI, between 9th day of April 2010 and 11th day of April 2010, at Nasinu, in the Central Division, with intent to defraud dishonestly obtained services from PAULIASI TORA, on false pretext that a WESTPAC BANK Cheque Leaf Number 000008 amount of $70.00 dated 11th April 2010, was in good and valid order for the payment of $70.00.

2] The Accused was initially bail out for first two cases and she evaded the court after that. While she was absconding, the accused committed other similar offences and multiplied her cases. She was arrested and bail was refused by my predecessor. In fact these cases were heard in court number two and my sister magistrate made recusal herself and sent those cases to this court for hearing. The accused was remanded in custody and bail was refused on 10th December 2010. The accused applied bail revision application to High Court and it was refused too on 24th May 2011. The accused now applied bail on following grounds on the eve of lapse of two years in remand.

A] Pursuant to section 13(4) of the Bail act 2002 that she is entitled to get bail.

B] Adverse effect on her family, she is divorced and has 4 year old daughter.
C] Time wasted is life wasted and loss of work and continuous education.

D] Need to find work to support legal fees as she draws to closure all matters before the court.

E] Remand centre is extremely full.

F] Privately financing the foods and supplements in the remand prison as she is diagnosed anemic.

G] Less medical facilities in remand prison.

H] Due to long period of remand her property and chattel has become an issue, it causes lots of stress and mental frustration.

3] The accused filed certificate of good conduct in the remand prison stating her behavior and activities by the PCO-OC Women of Fiji Prison and correction service. I am mindful of that.

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

A] The Applicant has seven pending cases in Nasinu, one criminal matter in Nadi and Two criminal matters in Suva courts.

B] The Applicant had absconded bail and later she was arrested and declined to give bail by this court.

C] The Applicant had applied bail to the High Court and High Court refused her application.

D] The State has prima facie strong case in all seven matters.

E] The Applicant has tendency to abscond bail if bail granted and likelihood of the applicant appearing in court for her trial is minimal as her previous conduct amply demonstrates.

F] The Applicant breached previous bail condition and reoffended while on bail and the public interest at stake.

G] The two years of delay to begin the hearing was mainly caused by the Applicant and period of two years does not include the delay caused by the Accused person under section 13(6) of the Bail Act.

5] I have carefully considered the submission by the Director of Public Prosecutions 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, DPP should rebut this presumption in this case.

7] 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.

8] I consider prosecution submission in this regard. Prosecution said that they have seven strong cases; and the accused is flight risk and breached bail condition (has reoffended) and absconded bail.

9] 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))

10] 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.

11] The Accused reoffend while she was on bail. Thereby the accused has breached bail conditions. 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" . In this matter it is crystal clear that the accused has breached bail conditions and absconded and reoffended while on bail.

12] Therefore the accused has propensity to do crimes again if she was released on bail and she is flight risk. I am satisfied with the prosecution submissions. Therefore I hold that public interest at stake at this scenario and bail application must be refused.

13] Now I turn to Accused's grounds, Accused said that she has child to look after and her education, time and young life were wasted in the remand. I lament, but this court cannot accept this is as reasonable ground for granting bail. The Children are to be looked after, loss of companionship of the family; elderly parents to be supported are common grounds in every bail application and cannot be treated as reasonable ground for bail. If so, every accused be entertained bail for every application and law of bail become absurdity. I am mindful of loss of motherhood to the young child. It is not anyone but the Accused past behaviour has been prevented her to be with her loved ones. If the accused has real sense of the family life she could not have entangled with these things. Hence I hold the accused does not have strong family ties. Moreover, Court should look innocent public and their rights to be safe guarded as well. Accused's right to bail is an individual right and it is overlooked by public's rights. The accused's right to bail is not an absolute right. In Mikaele Waqa v State Criminal Miscellaneous Case No: HAM 122 OF 2010 His Lordship Justice Priyantha Nawana observed;

"The law pertaining to bail is now governed by statutory provisions as contained in the Bail Act of 2002 and the release of an accused person on bail has been made the subject of an objective approach by court depending on facts and circumstances of each case.

"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." (Emphasis is mine)

14] The accused told to the court that she wants to retain a counsel of her choice and to find legal fees for that she be granted bail. Right to counsel is not an absolute right. There are ample authorities to that effect (Ratu Jope Seniloli & Ors. v. The State Criminal Appeal No. AAU0041 of 2004 and Seremaia Balelala v. The State Criminal Appeal No. AAU0003 of 2004S). Nor is there an absolute right to counsel of one's own choosing (Eliki Mototabua v. The State CAV004 of 2005S). Since legal aid counsels are regularly visiting to the prison and she could get assistances from legal aid to defend her cases. The accused may lodge legal aid application through prison authorities as she did forward this bail application. The accused may retain a counsel at her choice but it is not a compelling ground for grant bail.

15] The accused said that prison is full and she is anaemic. She privately supports her foods and supplements. There is no proof that the accused is suffering from anaemia. In Nainoca v The State, HAM 72/2004S her ladyship Justice Shameem was satisfied that the facility in Fiji prisons met with the "United Nations standard minimum rules for the treatment of prisoners". Thus, this court cannot accept the derogating standard of the prison or inadequate medical facilities.

16] Now, I shall turn to the important legal aspect regarding section 13(4) of the Bail Act. Does this accused entitle to get bail under this provision? I reproduced it for clarity.

"If a person charged for an offence has been in custody for over 2 years or more and the trial of the person has not begun, the court must release the person on bail subject to bail conditions the court thinks fit to impose." (Emphasis is mine)

17] The accused has nearly spent two years in remand prison. The accused has been incarcerated since 01st June 2010 and she has been rehabilitated as prison authorities letter indicates. She will be completing 2 years in remand on 01st of June 2012. Therefore, can she get bail despite of interest of public at stake? For this the State relied on section 13(6) of the Bail Act. It says;

"For the purpose of subsection (4), the period of 2 years does not include any period of delay caused by the fault of the person".

18] The State said that the delay caused by the accused therefore she is not entitled to get bail. The Applicant was charged initially for case number 850/2009 in August 2009. She was released on bail and she multiplied the cases while on bail. Further, she absconded. Then her bail was refused by my predecessor and the High Court. The 850/209 was set for hearing on 12th April 2010 for a week and the accused evaded court and bench was warrant issued. These matters were fixed for hearing on 19th September 2010 and went down since the Magistrate was on leave. On 22nd to 25th July 2011 and 27th, 28th February, 5th, 6th and 9th March 2012 these cases were set for hearing. On these occasions, the accused moved adjournments that she needs to be represented by a lawyer. As I noted in my judgment the right to counsel is not an absolute right but the accused delayed the trials stating that ground. The State was ready to proceed with the trials but the accused prevented the cause of justice. In pursuant to Section 13(4) of the Bail Act the accused must release on bail if the trial was not begun. In these cases the trials were postponed on application of the accused to get legal assistance. She now demands that she be released to find legal fees. Ulterior motive of the accused of postponing the hearing is unclear.

19] In State v. Takiveikata Cr. Case HAC005.04S (22 July 2004) Gates J (as he then was) held that "the right of counsel of choice must be balanced against other competing interests that exists in the criminal justice system. Some of these competing rights are the right to be tried within a reasonable time, the rights of other litigants awaiting trials, and above all, the right to a fair trial. Regard must be made to the overall interests of justice." If trials were concluded some outcomes may have been reached, but the accused delayed and hindered that procedure. I hold this delay was caused by fault of the accused and it clearly falls into the section of 13(6). Thus, she cannot have entitlement for bail under 13(4) of the Bail Act.

20] When I go through the records I came across High Court Bail Ruling for these cases, which was delivered on 24th May 2011 by his Lordship Justice Salesi Temo. Justice Temo ruled out "In my view, the safety of the public demands that the accused be remanded in custody until all her pending cases are cleared. She is not to be released on bail, unless there are exceptional circumstances. Her pending cases must be cleared first, before bail is entertained. I rule so accordingly". In her submission I cannot see any exceptional circumstances. This court is bound to follow above directions of the High Court and invariably the bail application fails.

21] In forgoing reasons, I decline to release the accused on bail. The Bail application is therefore refused. The Accused is presumed innocent until proven guilty. Therefore, I set early hearing dates though my diary is fully booked for this year and these cases could be decided on merits. The accused are advised to get legal advices at her choice while she is in remand. Her counsel may visit her and get proper instructions.

22] 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 these cases.

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

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

25] 28 days to appeal.

Sumudu Premachandra
Resident Magistrate

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