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Naqera v State [2013] FJMC 3; Criminal Case 1460.2012 (3 January 2013)

IN THE RESIDENT MAGISTRATE'S COURT OF FIJI
AT SUVA

Case No: 1460/12

BETWEEN:

LIVAI NAQERA
MAIKA VAKATAWABAI
APPLICANTS

AND:

THE STATE
RESPONDENT

Applicants : - In person.
Respondent : - Mr Nath .S, State Counsel (for DPP).

BAIL RULING

1. This is an application for bail pending trial.
   
2. The two accused-applicants, (hereinafter referred as the Applicants), stand charged on a count for having committed the offence of 'Aggravated Robbery' punishable under Sections 311(1)(a) of the Crimes Decree No 44 of 2009. Further the first applicant is charged for 'Breach of Suspended Sentence' contrary to section 28(1) of the Sentencing and Penalties Decree 2009.
   
3. The alleged offences were committed on 25.10.2012.
   
4. Initially the matter was referred to the High Court on a jurisdictional concern and later it was remitted back to this Court with extended jurisdiction of the High Court. In the meantime applicants made their application for bail.
   
5. The respondent raised objection for the said application. The learned state counsel further submitted a written submission to substantiate their objection.
   
6. This application is governed by the provisions of the Bail Act No 26 of 2002, which provides a heavy presumption in favour of granting bail pending trial to the accused persons.
   
7. Section 3 of the Bail Act 2002 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'. Although the favour of these words is more towards applicants, view of this Court is, it does not invest an absolute right on them to be released on bail.
   
8. The party opposing bail has to rebut this presumption on balance of probabilities. Bail should be granted unless the Court is satisfied of any one or more of the considerations set out in section 19(1); where it says,
   

(a) The accused is unlikely to surrender to custody and appear in Court;

(b) The interest of the accused will not be served through granting bail;

(c) Granting bail would endanger the public interest or create a situation where the protection of the community will be more difficult.

All 3 grounds need not exist to justify refusal of bail. Existence of any one ground is sufficient to refuse bail. { Wakaniyasi v State [ 2010 FJHC 20]}

9. The primary consideration of the Court 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.
   
10. At the outset I note that the charges against the two applicants carry a maximum punishment of 20 years imprisonment if found guilty. It is indeed a serious offence. The defendant states that the case for prosecution is strong. The alleged incident took place in joint enterprise. It states that the victim was assaulted during the course of robbery and there were visible injuries on the forehead. The State submits that this was committed before another eye witness. The total value of the robbed items was $ 900. Though the amount of value is comparatively less, the circumstances which it occurred cannot be considered as trivial.
    
11. The defendant further submits that the first applicant has 7 previous convictions during the past 10 years and out of his convictions 1 is for robbery with violence. The second applicant has 12 previous convictions. He too has 4 similar previous offences.
    
12. The common factor is both applicants have previously convicted for Escaping from Lawful Custody. Further their individual applications for bail, do not disclose that they have strong ties with the community. When the two positions compared it is not difficult to conclude that both applicants are persons with flight risk.
    
13. Having considered the foregoing facts, I conclude that the previous criminal history and the community background of both applicants are such that 'interests of justice' make ineffective the 'right of the applicants to be released on bail'.
    
14. The two applicants of this case are not entitled to be released on bail pending trial.
    
15. Application for bail is dismissed accordingly.
    
16. Both applicants are advised on their right to appeal to the High Court within 28 days.
    

Yohan Liyanage
Resident Magistrate

03rd January 2013