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Vunigasau v State [2016] FJHC 780; HAM130.2016 (9 September 2016)

IN THE HIGH COURT OF FIJI

AT LAUTOKA

MISCELLANEOUS JURISDICTION

HAM NO. 130 OF 2016

SULUVENUSI VUNIGASAU

V

STATE

Counsel: Mrs. S. Hazelman for the Applicant

Mr. S. Nath for Respondent

Ruling: 9th of September 2016

RULING ON BAIL REVIEW

1. The Applicant files this Notice of Motion pursuant to Section 30 (3) of the Bail Act, seeking an order to review the bail ruling delivered by the Learned Magistrate of Rakiraki on the 1st day of June 2016 on following grounds, which I reproduce as follows;
   1. The interest of the Applicant was not considered when the learned Magistrate failed to fix a hearing for the matter to be heard given that he is in remand but had adjourned the matter to the 7th of December for mention to fix hearing,
   2. There was no evidence lead by prosecution on the strength of their case against the applicant when their main ground of objection had been that whilst the applicant was on bail on a theft matter he allegedly committed another similar offence,
   3. The learned Magistrate did not consider the Constitutional Principle of presumption of innocence until proven guilty in his bail ruling,
   4. The learned Magistrate did not consider the fact that there was no record of previous conviction against the applicant,
2. The notice of motion is being supported by an affidavit of the Applicant, stating his grounds for this application.
3. The matter was first mentioned before the court on the 29th of July 2016, where the Respondent was directed to file an affidavit in objection. Instead of it, the Respondent has filed a written submissions. The Applicant then filed his reply submissions. Having carefully considered the affidavit of the applicant, the respective written submissions of the parties and the copy of the record of the proceedings of the Magistrates’ court, I now proceed to pronounce my ruling as follows.
4. The Applicant has been charged in the Magistrates’ court of Rakiraki for one count of Burglary contrary to Section 312 (1) of the Crimes Decree and one count of Theft contrary to Section 291 (1) of the Crimes Decree. The Applicant was first produced before the Magistrates’ court on the 27th of April 2016. He made an application for bail and it was objected by the Prosecution. The learned Magistrate refused the bail of the Applicant on the ground of public interest and protection of the community. The learned Magistrate has reached such conclusion on the ground that there is a likelihood that the Applicant might commit an offence while on bail.
5. Section 30 (3) of the Bail Act has given the High Court a jurisdiction to review any decision made by a magistrate in relation to bail. However, the court could refuse such an application on the ground that there is no special facts or circumstances to justify a review pursuant to Section 30 (7) of the Bail Act. Section 30 (7) of the Bail Act states that;

“A court which has power to review a bail determination, or to hear a fresh bail application under Section 14 (1), may, if not satisfied that there are special facts or circumstances that justify a review, or the making of afresh application, refuse to hear the review or application”

6. Having considered Section 30 (3) and (7) of the Bail Act, I now draw my attention to consider whether there are special facts or circumstances to justify this review application pursuant to Section 30 (7) of the Bail Act.
7. The learned Magistrate in his ruling has considered that the Applicant has one pending criminal action in the Magistrates court of Rakiraki. He has then considered whether the said pending action can be considered in determining the likelihood of the Applicant committing an offence if he is granted bail.
8. Justice Gounder in Deo v State [2013] FJHC 71; Criminal Case 16.2013 (25 February 2013) held that;

The learned Magistrate relied on the bail decisions in State v Tuimouta Criminal Case No. HAC 078/2008 (18 August 2008) and Williams v State Criminal Misc. Case No. HAM 079/2008 (8 October 2008) where the Court held that when an accused is faced with a new allegation while on bail, the test is whether there is a likelihood of the accused committing a further arrestable offence on bail.

It was held in R v Crown Court at Harrow [2003] 1 WLR 2756, at 2778 that "the fact that new offences appear to have been committed whilst on bail is likely to be a factor of considerable importance against the defendant when deciding whether there is substantial grounds for believing that, if released, he would commit a further offence while on bail.”

In Etuate Suguturaga v The State Crim. Misc. Case No. HAM 067 of 2010 this Court stated that the Bail Act emphasizes the importance of this factor in Section 19 (2) (c) (iii). Section 19 (2) (c) (iii) states that the court must have regard to:

"the public interest and the protection of the community – the likelihood of the accused person committing an arrestable offence while on bail."

9. Having considered the above observation made by Justice Gounder in Deo v State (supra) and section 19 (1) (c) (i) of the Bail Act, it is my opinion that any pending criminal action against the Applicant could be considered in determining whether there is a substantial ground to believe that the Applicant would commit an offence if he is granted bail.
10. Moreover, the learned Magistrate has considered the personal and family circumstances of the Applicant and concluded that there is no any exceptional grounds to grant him bail on his family and personal circumstances.
11. In view of these reasons discussed above, I do not find any special facts or circumstances to review the bail ruling of the learned Magistrate dated 1st of June 2016. I accordingly refuse this application and dismiss it accordingly.
    

R. D. R. Thushara Rajasinghe

JUDGE

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