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State v Vosalevu [2004] FJHC 479; HAC0023.2003L (8 October 2004)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC0023 OF 2003L

STATE

V

TOMASI VOSALEVU

Mr. N. Nand for the State
Accused in Person

Hearing & Ruling: 8 October 2004

RULING ON BAIL APPLICATION

The applicant has previously made application for bail before this court. Such application having been dealt with by Mr. Justice Govind and bail was refused.

Subsequent to that application, the applicant sought to appeal His Lordship’s decision to the Court of Appeal. The Court of Appeal refused that application but did so without considering the merits, solely on the basis that the application was incompetent and that it had to be dealt with by a full court and not by a single judge of the Court of Appeal.

In support of this application, the applicant relies upon an undated 4-page document which I have marked with the letter A and which is filed with the papers.

I note in passing that the first point that the applicant makes, is the undue delay by this court in hearing matters of this type. This matter was listed for trial on the 4^th October and that date has been vacated. The applicant is unrepresented and has arranged no representation for his trial. That was one of the basis on which the hearing date has been vacated.

The delay in hearing this matter is in part due to the applicant.

Bail is opposed by the State and in opposing bail, the State does so on the basis of section 18(1)(c) of the Bail Act that is the public interest and the protection of the community.

The Bail Act provides that all persons have a right to bail. The presumption in favour of bail is rebutted where the applicant has been in breach of bail conditions or bail undertaking. Deciding whether or not to grant bail, the court must consider the likelihood of appearance at trial, the interest of the accused and the public interest.

There is no doubt that the applicant is facing a most serious charge. However, the seriousness of the charge itself is no longer sufficient on its own to justify the refusal of bail. All other relevant matters must be weighed up to decide whether the State has rebutted, the presumption in favour of bail.

In opposing bail, the State submits that the applicant committed the offences for which he is before this court, whilst on bail from the Sigatoka Magistrates Court for a similar offence and in addition, it is submitted that the applicant committed this offence whilst on bail for offences from the Suva Magistrates Court of a slightly different nature.

Given the antecedent that are placed before the court as to the conduct of the applicant in committing offences whilst on bail in the past, I cannot be satisfied that the public interest and the protection of the community would be served by the accused being granted bail for these offences. I give consideration to the issues raised by the appellant and the matters set out in section 19 of the Bail Act. I take into account the delay in fixing a trial date but note that the date has been vacated due to the accused not having organized his counsel.

I consider that giving as a reason for bail, the need to engage counsel to be a ground of little wait in this instance. The court has been informed that an application has not been made by the applicant for Legal Aid. In those circumstances, there appears to be no merit in the submission that he makes that he requires bail to organize legal representation. Not only has there been no application for Legal Aid, there has been nothing placed before the court to suggest that the applicant has made any attempt to engage a lawyer on his behalf. This he can do by mail from jail or he can have someone do it on his behalf.

To try and confuse the right to counsel with the right to bail is inappropriate. Taking all of these matters into account, I see no merit in the application and bail is refused.

JOHN CONNORS
JUDGE

At Lautoka
8 October 2004