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Hicks v State [2016] FJMC 59; Criminal Case 727.2016 (6 May 2016)

IN THE MAGISTRATES’ COURT OF FIJI
AT SUVA

CRIMINAL CASE NO: 727/2016

BETWEEN:

BERNAND HICKS
APPPLICANT

AND:

THE STATE
RESPONDENT

For the Applicant: Ms.Daunivesi(LAC)
For the Respondent: PC Shaw
Date of Hearing: 06^th of May 2016
Date of Ruling : 06^th of May 2016

RULING ON BAIL

1. The applicant is charged with one count of Murder contrary to section 237(a) (b) (c) of the Crimes Decree No. 44 of 2009.
2. He was produced yesterday and was remanded by the court pending the determination of his bail.
3. Today the bail hearing was conducted where both parties made their submissions. The learned counsel for the applicant submitted that there is a presumption of bail under the Bail Act (“Act”) which needs to consider in favor of the applicant and also he is willing to abide by the strict bail conditions. Further he got children to look after and his interest would not serve by remanding him. Even though the applicant is charged with Indictable offence this is not sufficient to deny his liberty.
4. The prosecution in their submission said the accused was charged with Indictable offence and also this is a domestic violence offence. He has made full admissions which they would rely on during the hearing.
   5. Section 03 of the 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.
   6. The presumption of granting bail to a person has to be rebutted by the State. But this presumption is displaced under the Domestic Violence offence.
   7. The primary consideration in granting bail is the accused person appearing in the Court to answer the charge(section 17(2) of the Act )
8. 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
9. In Isimeli Wakaniyasi v State ( 2010),FJHC 20;HAM 120/2009 (29th January 2010), his Lordship Justice Goundar held that

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

10. Having considered the respective submissions and relevant I would pronounce my ruling in the following manner.
11. Under the Bail Act there is a presumption of bail for an accused. But as mentioned earlier this is displaced in a domestic violence offence. Even if court granted bail in such an offence the court has to issue strict bail conditions for the safety of the victim. The purpose of this is to protect the victim from further violence. But since this is a murder case these provisions are not much relevant.
12. Section 19(1) of the Act has given the grounds the court has to consider when deciding about the bail and as mentioned Isimeli Wakaniyasi v State(supra) any one of the grounds is sufficient to refuse bail
13. Therefore I am going to consider these grounds to decide about the bail for the accused in this case.
14. The like hood of the accused surrender to custody or appearing in court

The applicant is charged with a murder which is serious offence. If found guilty the he has to serve a mandatory sentence of life imprisonment. Even though he has no previous convictions as admitted by the prosecution and willing to provide sureties the prosecution informed me that he is a diver by profession which allow him the access to the ports. With him charged with this serious offence which carries a life imprisonment there is a real possibility of flight risk. Finally there are full admissions according to prosecution which they would rely on during the hearing. The applicant has so far not indicated that these admissions were taken in an improper manner. Therefore under this heading I find the Prosecution has discharge the burden.

15. The interest of the accused person
    

The counsel for the applicant informed me that if he is remanded the children would face difficulty. But there is no evidence before me to show that he is looking after the children. Already the legal aid is appearing for him as a duty solicitor and he has indicated that he wants the legal aid to represent him during this case which he can easily get even through the correction center. Further the prosecution informed that there is a danger for the applicant from the relatives of the deceased and this has not been denied by the counsel for the applicant during the bail hearing. With the nature of the offence I find this has to be seriously taken in to consideration also. Therefore under this heading the bail has to be refused.

16. Public interest and the protection of the community

Even though the prosecution objected that granting bail would affect that public interest there is not sufficient evidence to show that he would be interfering with the witnesses or that he would reoffend. Therefore the Prosecution has failed to discharge this ground.

17. For the above mentioned reasons I find that the applicant is unlikely to appear in court if granted bail and also his interest will not be served by that.
18. Accordingly I refuse bail in this court and remand the applicant further in this case. Pursuant to section 191 of the Criminal Procedure Decree this is also transferred to High Court.
19. 28 days to appeal

Shageeth Somaratne

Resident Magistrate