Home | Databases | WorldLII | Search | Feedback Magistrates Court of Fiji

Naidu v Fiji Commerce Commission [2016] FJMC 205; Criminal Case 292.2014 (18 October 2016)

IN THE MAGISTRATES’ COURT OF FIJI
AT SUVA

CRIMINAL CASE NO: 292/2014

BETWEEN : MUKESH NAIDU

APPPLICANT

AND : FIJI COMMERECE COMMISSION

RESPONDENT

For the Applicant:Mr.A.Singh

For the Respondent: Mr.Lagilevu

Date of Ruling : 18^th of October 2016

RULING ON BAIL

1. The applicant is charged with one count of Refusing or Failing to Furnish Information contrary to section 119(4) (a) of the Commerce Commission Decree (“Decree”), one count of Misleading or Deceptive conduct contrary to section 75(1) of the Decree, one count of False or Misleading Representation contrary to section 79(1) of the Decree and one count of Accepting payments without being able to supply contrary to 88 of the Decree in this case.
2. He was arrested and produced to this court on 07/10/2016 and in remand from that time. Through his counsel he applied for bail on that day and accordingly the bail hearing was conducted on 12/10/2016. For some unknown reason the prosecutor failed to appear for the hearing and hence I had opportunity to hear only the submission of the counsel for the applicant.
3. The counsel for the applicant submitted during the bail hearing that the failure of the prosecutor to appear during the bail hearing was disrespectful to the court and on that basis alone bail need to be granted.
4. Further the applicant is prepared to provide 2 suitable sureties who would make sure the appearance of the applicant in the court.
5. Finally when I inquired the reason for the applicant to failure to appear in the court for long time, the counsel submitted he was under tremendous pressure with number of cases against him in the court which made him to stay away from the court.
6. Having considered the submission of the counsel of the applicant now I proceed to pronounce my ruling in the following manner.
   7. Section 03 of the Bail Act (“Act”) provides that the accused person has a right to be released on bail unless it is not in the interest of justice that bail should be granted.
   8. This presumption is displaced when the person applying for bail breach his bail conditions or convicted and appealing against that conviction [3(4) of the Act].
   9. In this case the applicant was granted bail by this court on 31/03/2014 and he started absconding from 03/02/2015. Hence he has already breached his bail conditions and the presumption is no longer available for him under the Act.
10. Section 19(1) of the Act outlines the reasons for refusing bail and they are as follows:-
    1. The accused person is unlikely to surrender to custody and appear in court to answer the charges laid;
    2. The interest of the accused person will not be served through the granting of bail; or
    100. Granting bail to the accused would endanger the public interest or make protection of the community more difficult
11. In IsimeliWakaniyasi v State( 2010),FJHC 20;HAM 120/2009 (29th January 2010),his Lordship Justice Goundarheld that

"All three grounds need not exist to justify refusal of bail, existence of any one grounds is sufficient to refuse bail".

12. As noted earlier he started absconding from 03/02/2015 until he was arrested and produced to the court on 07/10/2016. The reason of the applicant getting anxious of number of cases which prevented him from appearing in the court is in my view not acceptable and in fact would be counterproductive to his bail application.
13. Presently in this court alone he got 19 pending files and I am aware he is got number of cases in other courts in Suva and Nasinu and there is a possibility of new charges filed against him in future. Hence the reason for his initial absconding has been in fact aggravated presently giving him more incentive to abscond if granted bail again.
14. Even though the counsel for the applicant sought bail on the basis of the absent of the prosecutor during the bail hearing,I do not think that would be a valid reason to grant bail to the applicant. It is unfortunate that the prosecution’s failure has deprived this court from hearing their objections. But ultimately the court has to be satisfied that the applicant would be appearing in the court to answer to the charge as stipulated in section 17(2) of the Act.
15. In this case with the history of the applicant I am not satisfied even with strict bail conditions he would appear again if enlarged on bail.
16. Hence I refuse bail to the applicant and remand him further in this case.
17. 28 days to appeal

Shageeth Somaratne

Resident Magistrate