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State v Tokoni [2016] FJMC 132; Criminal Case 100.2015 (4 January 2016)

IN THE MAGISTRATE'S COURT
TAILEVU
REPUBLIC OF FIJI ISLANDS

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Criminal Case No. 100 of 2015

State

v.

Vairusi Tokoni

For State: Cpl Rao
Accused Person : Present – Represented by Ms Raisua (Legal Aid)

BAIL RULING

Introduction

This is an application for bail by the ad person. The appliapplicant is charged as follows:

Count One

Unlawful Possession of Illicit Drugs: Contrary to Section 5 (a) of the Illicit Drug Control Act, 2004

Vairusi Tokoni on the 31^st day of October 2015 at Delakado, Dawasamu, tailevu in the Central Division without lawful authority had in his possession 12.5 gramms of Cannabis Sativa or Indan Hemp an illicit drug.

Count Two

Unlawful Cultivation Drugs: Contrary to Section 5 (a) of the Illicit Drug Control Act, 2004

Vairusi Tokoni on the 31^st day of October 2015 at Delakado, Dawasamu, tailevu in the Central Division without lawful excuse cultivated 3.6 Kilograms of Cannabis Sativa or Indan Hemp an illicit drug.

Section 3(1) of the Bail Act provides thaa an ed hasd has the right to be released on bail unless it is n thininteresterests of justice that b160;should be granted. Con. Consistent with princ section 3(3) of the Act provides that there is a is a pres presumption in favour of the granting of bail to a n, but a person wson who op the granting of bail&bail may so rebut the presumptiomption. In determining whether a presumption is rebutted, the primaryideration in deciding whether to grant bai0;is this the likelihoodihood of the accused person appearing in court to answer the charges laid against him or her (section 17(2)).

Where bail is ed, Sn 18on 18(1) of thef the Bail&#1t requires that the the party opposing bail address the fong wiree cons considerations:

(a) the likelihood of the accused personendero cusand appd appearinearing in court;

(b) the inte interests of the accused person;

(c) the public interest and the protection of the community.

Section 19(1) of the B160;Act provides that an a an accused person must be granted bai0;by a court unless:

(a) the accused person is unlikely to surrender to custody and appear in court to answe chalaid;

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(b) the interests of the accused person will not be served throughrough the granting of bail; or(c) grantgranting bail e accpersonerson would endd endanger the public interest or make the protection of the comm more difficult.

Section 19 (2) of the Act sets out a series of considerations tons that the court must take into account in determining whether or not any of the three matters mentioned in section 19 (1) are established. These matters are:

(a) as regards the likelihood of surrender to custody –

(i) the accused person's background and community ties (including residence, employment, family situation, previous criminal history);

(ii) any previous failure by the person to surrender to custody or to observe bail conditions

(v) the severity of the likely penalty ifpersofound guilty;;

(vi) any specific indications (such as that the person voluntarily surrendered to the police at the time of arrest, or, as a contrary indication, was arrested trying to flee the country);

(b) as regards the interests of the accused person –

(i) the length of time the person is likely to have to remain in custody before the case is heard;

(ii) the conditions of that custody;

(iii) the need for the person to obtain legal advice and to prepare a defence;

(iv) the need for the person to beat liberty for other lawful purposes (such as employment, education, care of dependants);

(v) whether the person is under the age of 18 years (in which case section 3(5) applies);

(vi) whether the person is incapacitated by injury or intoxication or otherwise in danger or in need of physical protection;

(c) as regards the public interest and the protection of the community –

(i) any previous failure by the accused person to surrender to custody or to observe bail conditions;

(ii) (ii) the likelihood of the person interfering with evidence, witnesses or assessors or any specially affected persi>(iii) the likelihood of the accused person committing an arrestable offence whce while oile on bail .