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DPP v Elbourne [2013] FJMC 82; Criminal Case 101.2013 (15 February 2013)

IN THE MAGISTRATES COURT AT NASINU

Criminal Case No. 101/2013

DPP

-v-

THOMAS DANIEL ELBOURNE

Ms. A Fatiaki for the DPP.
Mr. Irshad Samad for the accused.

RULING ON BAIL

1] The accused is charged with following offences.

CHARGE:

FIRST COUNT

Statement of Offence [a]

OBTAINING FINANCIAL ADVANTAGE BY DECEPTION: Contrary to Section 318 of the Crimes Decree No. 44 of 2009.

Particulars of Offence [b]

THOMAS DANIEL ELBOURNE between 1st March to 31st May 2010, in Nasinu, in the Central Division, by a deception being a project consultant and coordinator to Danona Communities Projects Limited, a registered company, dishonestly obtained the total sum of FJD$4,500.00 belonging to the Pyreness Investment Limited, a registered company.

SECOND COUNT

Statement of Offence [a]

MONEY LAUNDERING: Contrary to Section 69 (2) (a) & (3) (a) – (b) of the Proceeds of Crime Act 27 of 1997 and Section 25 (a) of the Proceeds of Crime Act 7 of 2005.

Particulars of Offence [b]

THOMAS DANIEL ELBOURNE between 1st March to 31st May 2010, in Nasinu, in the Central Division, engaged directly or indirectly in transaction that involved money, or other property and received and used the total sum of FJD$4,500.00, knowing or ought reasonably to know, that the money was derived, directly or indirectly from some form of unlawful activity.

2] The accused was arrested and produced before this court on 23rd January 2013. The accused applied bail and the State objected for bail and after consideration this court has refused his application for bail. He then filed notice of motion to get bail along with the affidavit of Alifereti Fisaitu. He supported with a Medical Certificate of the accused, issued by the CWM Hospital.

3] The State filed response to this bail application along with affidavit of D/sgt 2344, Aiyaz Ali. The State at this stage opposed to bail but opposition is half hearted as the State said that if the court is mindful to give bail, strict bail may be imposed.

4] The accused is still remanded in custody and grounds for his bail application are as follows; that the accused;

A] separated from his wife.

B] has 6 matured children over age 21 years.

C] voluntarily surrendered to the police.

D] is sickly person and he is in constant medical care

E] hearing date will not be assigned soon as the court dairy is full.

F] is an Accountant by profession

G] needs to be released to effectively give instructions to his solicitor to defend the case.

H] has credible sureties.

I] willing to abide strict bail conditions

5] The State has objected to the bail on following grounds.

A] The charges are very serious.

B] the accused did not surrender himself.

C] tried to evade police investigations.

D] he is flight risk.

E] he is clinically stable and prison can provide necessary treatment when he needs.

F] The Applicant can give instruction to his counsel while is in remand.

G] the accused has 23 previous conviction and public interest is at stake.

6] I have carefully considered the submission by the Director of Public Prosecutions and the accused.

7] 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.

8] 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.

9] I consider prosecution submission in this regard. The prosecution said that the accused had evaded the police investigation and they telecasted the accused's name and details in the Crime Stopper Programme and he was brought to the police by his relative. Therefore, he is flight risk. The prosecution stressed that the accused has 23 similar kinds of previous convictions and interest of community is at stake.

10] 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))

11] 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.

12] The accused, in his reply, said that those 23 previous convictions are over 10 years and he has rehabilitated and therefore he should be granted bail. Then, a question arises if he has really rehabilitated how this case crop up against him. The court notes that over 10 years old previous convictions can be considered when sentencing but not when granting bail. In this regards he has similar nature of previous convictions and it seems to me that volcano has irrupted again. This is simply means that he started his criminal activities again therefore public interest is at stake.

13] The court's primary duty to safe guard the community. In THE HIGH COURT OF FIJI AT LABASA MISCELLANEOUS JURISDICTION Misc. Crim. Case No: HAM08/2013 Crim. Case No: HAC054/2012] TIMOCI ALUSENI v THE STATE on 22nd January 2013 His Lordship Justice Daniel Goundar stressed on this point. He held;

"It is not unusual for the prosecution not to oppose bail. When such a stance is taken by the prosecution, the Court is not relieved of its obligation to give due regard to the considerations under section 19 of the Act. That is what I have done in these two cases. In spite of the prosecution's decision not to oppose bail, this Court, after having considered the strength of the evidence against the applicants, the seriousness of the charges, the potential sentences that could be imposed if the applicants are convicted, and the vulnerability of the victims, is of the opinion that the applicants pose a flight risk and it is not in the interests of justice to grant bail to them."

14] These are white collar crimes and charges are serious if convicted prison sentence is inevitable. Therefore, the accused is flight risk. I am satisfied with that the accused should be denied bail. The other grounds of the accused are common in every bail application has no weight which I do not consider now. Therefore I hold that public interest at stake at this scenario and bail application is refused.

15] The court will set up early hearing date when the case is ripe.

16] 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.

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

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

19] 28 days to appeal.

On this date 15th February 2013, at Nasinu, Fiji Islands

Sumudu Premachandra
Resident Magistrate