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State v Ali [2010] FJHC 403; HAC070.2010 (2 August 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 070 OF 2010

STATE

V

ZULFIKAR ALI

Date of Hearing: 2 August 2010
Date of Ruling: 2 August 2010

Ms M. Fong for the State
Mr. H.A. Shah with Mr. S. Nandan for the Accused

BAIL RULING

[1] This is an application for bail pending trial.

[2] The accused applicant was first produced before the Resident Magistrate at Nadi on the 29th July 2010 on a charge of cultivating an illicit drug, contrary to section 5(a) of the Illicit Drugs Control Act 2004. The charge was founded on the discovery of 139 plants of suspected marijuana on a plot some meters from where he lives.

[3] The accused submits that he needs to further his boxing career with fights being imminent, and there being no previous indication of criminal behaviour.

[4] Section 3 of the Bail Act stipulates that every person has a right to be released on bail unless it is not in the interests of justice; and furthermore there should be a presumption in favour of bail unless the State opposing can persuade the Court that that presumption be rebutted.

[5] Under section 17(2) of the Bail Act the primary consideration in deciding whether to grant bail is the likelihood of the accused person appearing in Court to answer the charges against him or her.

[6] The applicant is a boxer of some renown in Fiji. He is of such renown that his name and distinctive appearance is known in almost every village or community in the country. However fame leads to no advantage in this Court. Every applicant or accused person stands as an equal before me; an application is judged on its merits and not on the personal status of the applicant. However with that principle of fairness uppermost in my mind, I concede that his fame can operate on another level. Because he is famous (and distinctive in appearance) it is most unlikely that he would be able to hide from due process, should try to do so. He would be instantly recognized and identified, and immediately apprehended.

[7] Cultivation of illicit drugs is indeed a serious offence. It is more serious than possession of illicit drugs in that it provides a continuous and future supply of the narcotic, thereby increasing the latent risk to the would be consumer. However seriousness of the alleged crime is not always a deciding factor in a bail application. There are many persons accused of murder at large in this jurisdiction.

[8] Two other factors apart from likelihood of surrender to custody are to be considered by the Court in hearing an application for bail and by the terms of section 18(1) of the Act they are –

(a) the interests of the accused person; and

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

[9] Apart from latent risk to consumers of illicit drugs, already referred to supra; there is virtually no risk to the community in this applicant being admitted to bail: he is not accused of violence or dishonesty, and I am sure that he will continue to indulge himself in his boxing activities whilst awaiting trial. His own interests are not a factor to be considered; the fact that he has imminent fixtures for fights do not influence me one way or the other; indulging in behaviour bringing suspicion upon oneself is in itself a waiver of one's right to carry on with ones normal professional life.

[10] I recognize that the applicant would face personal difficulties in remand should bail be refused. Given his notoriety and his profession, I am sure that he would be challenged both literally and figuratively in custody; but then again this is not a factor weighing on my decision.

[11] Being of no risk to the community, and I am sure there being no risk that he will flee from justice I admit the applicant to bail on the following strict terms:

(i) Cash bail of $1000.

(ii) Surety in his own recognizance of $1000.

(iii) To live at a named address and not to move from that address without leave of this Court (either Judge or Registrar).

(iv) To report to Nadi Police Station every Saturdays and Wednesdays between 6.00am and 6.00pm.

(v) Surrender all travel documents.

(vi) Not to contact any potential prosecution witnesses.

Paul K. Madigan
Judge

At Lautoka
2 August 2010