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State v Raqauqau [2010] FJMC 174; Criminal Case 1034.2010 (14 December 2010)

IN THE RESIDENT MAGISTRATE COURT AT NASINU

CRIMINAL CASE NO. 1034 OF 2010

STATE

V

SAVENACA RAQAUQAU

DATE OF RULING: 14th December 2010

For the State: Sgt Volavola
Accused: Present in person

RULING ON BAIL REVIEW

1] Accused is charged with two counts namely; burglary and Theft. The accused applied bail on 21-10-2010 on following grounds.

A] he wants to retain a counsel to defend his case

B] he has a son to look after who is schooling

C] he is the sole bread winner of the family.

D] he will abide by any strict bail conditions.

E] he promised that he will appear in court without evading

2] Police prosecution strongly opposed to the accused’s bail application and considering all the matters before this court, a written ruling delivered on 04th November 2010. Bail was refused. The accused now applies Bail review on following grounds.

A] The accused has an extended family to look after. (Including pay school fees, water bills and electricity etc...)

B] The accused is being detained under degrading and an inhumane condition in the prison.

C] The accused is being detained with convicted criminal prisoners and which is against the law.

D] Shelter of presumption of innocence under the criminal law should be given to the accused.

E] Need to be a liberty for other lawful purposes.

F] Choice to find an own legal counsel had been prevented.

G] The Magistrate erred in law when refusing bail which solely based on 10 old previous convictions and it is contravention with the section 216 of the Criminal Procedure Decree.

H] Accused is not a bail risk as he has not previously breached any bail conditions.

3] The prosecution still relies on their former grounds of objection. I think it is noteworthy to re iterate it.

A] They said that they have a strong case against the accused.

B] The accused is undergoing a suspended sentence which was imposed in last April 2010.

C] The accused has 40 previous convictions, similar nature of these crimes and he has not reformed or learnt lessons from the past.

D] Five of those previous convictions were escaping from prison custody.

E] Most of them (previous convictions) were home invasions and robberies.

F] If accused wants to retain a counsel since legal aid counsels regularly visit to the prison and he could get assistances for legal aid.

G] Public interest at stake.

4] I have carefully considered the submission by the Police Prosecution and the accused.

5] I have considered the presumption of granting bail and reasons for refuse in my earlier ruling thoroughly. Therefore I shall now address on new grounds that the accused placed before me.

6] The accused’s review ground A and F I have earlier addressed in my ruling and I still stand for it. But I wish to add some essence that right to counsel is not an absolute right. This is held in Eliki Mototabua v State CAV 004 of 2005S. Right of accused to be defended stems from Section 165 of the Criminal procedure Decree. It says;

“Any person accused of an offence before any criminal court, or against whom proceedings are instituted under this Decree in any court, may of right be defended by a lawyer.”

7] It is to be noted the section indicates”may” not “shall”. According to the principles of Interpretation of Statutes, the wording, terminology itself speaks that the accused may be defended in a criminal case. If accused wish to retain a lawyer of his own choice, he has ample opportunity to get service of a private lawyer through the prison authorities. I note according to Prison Act, that there are no impediments to meet an untried accused in the remand prison to his own lawyer.

8] The accused’s review ground B and C is beyond control of this court. Fiji is a developing country and the prisons facilities should be within the affordable scope of resources. As this court notes prison facilities are very high in Fiji than other jurisdictions. New facilities and correctional centres are launched recently by the Government and it seems that prison facilities are satisfactory. It could be reasonably imagined since the accused has five prison escapes from the past, he is being severely screened and scrutinized and the accused may think this is a degrading and inhumane treatment. If the accused is experiencing some encumbrances in the prison it could be told to the Visiting Justice of Suva to resolve the problem. However this court admits that mingle of untried accuseds with convicted criminal prisoners must be avoided. Therefore Senior Court Officer is directed to forward a copy of this ruling to the Prison Commissioner for information and necessary arrangements.

9] I now turn to the review grounds D and E. It is really offending this court. Is the accused denied shelter of presumption of innocence under the criminal law by refusing bail? Is the accused should be freed for other lawful purposes? As Justice Nawana articulated in MikaeleWaqa v State ( Criminal Miscellanous Case No:HAM 122 OF 2010) "The law pertaining to bail is now governed by statutory provisions as contained in the Bail Act of 2002 and the release of an accused person on bail has been made the subject of an objective approach by court depending on facts and circumstances of each case.

“Section 3 of the Bail Act states that 'an accused person has a right to be released on bail...' and that 'there is a presumption in favour of the granting of bail...'. Such phraseology in the section, in my view, does not invest an absolute right on an accused-person to get released on bail.

Conversely, Section 3 contains provisions whereby 'interests of justice' have been declared as a necessary factor to be considered by court in affording '...the right to be released on bail...' to an accused person under the Act.”

10] This case the accused has 40 previous convictions, similar nature of these crimes; five of those previous convictions were escaping from prison custody. Most of them (previous convictions) were home invasions and robberies. I draw my attention to his Lordship Justice Nawana’s proposition and bail ruling should be made in objective approach by court depending on facts of each case. The past behavior of the accused gives me ample discretion to refuse bail in this regard as above proposition. I note further his Lordship mentioned ‘MikaeleWaqa v State (supra) “Moreover, the presumption favouring the accused could be rebutted by a person opposing the grant of bail by the criteria laid down in Section 18 (1) of the Act, which include the public interest and the protection of community. ...While the scheme of the Act provides a basis for a person opposing bail to rebut the presumption favouring an accused-person under Section 18(1) read with section 3 (3) of the Act, I am of the view that court is also invested with power independent of such opposition by a party to consider issues concerning 'interests of justice' and 'public interest' under Section 3(1), Sections 19 (1) and 19 (2) of the Act". (Emphasize is mine)

11] In this scenario, this court will be failing his duty if due attention is not given to this type of cases. Courts are meant for proper administration of justice. It is the interest of justice and protection of the community are prime concern and an individual right of the accused will be superseded by that proposition. I would like to draw my attention to “Salus Civitatis Suprema Lex”- “The security of that state is of the highest possible legal value”. The state comprises the community and state is the agent of the community. Osborn’s Concise law Dictionary[1] interprets “state” as “The organized Community; the central political authority”. If security of community at stake this principle would come to play. I would like to call this principle as “Protection of Community Syndrome”. If this syndrome is present in a bail application, the presumption of granting bail will be ceased for the sake of community and invariably bail is refused such a kind of accused. Court can refuse bail ex mero motu (Its own motion) or by application of the prosecution or opposing (aggrieved party) party.

12] Now I wish to deal with ground H, which the accused is not a bail risk as he has not previously breached any bail conditions. I draw my attention to following guiding judgment. In Tak Sang Hao v The State (2001) FJHC 15, HAM0003d.2001s (26 April 2001), where Her Ladyship Justice Shameem illustrated factors are to be concerned in arriving at a conclusion in respect of bail, after carefully considering the laws pertaining to bail in England, and European Convention on Human Rights. These relevant factors are;

a) The presumption of innocence,

b) Whether the accused to appear to stand trial,

c) Whether bail has been refused previously,

d) The seriousness of the charge,

e) The likelihood of the accused re –offending on bail,

f) Any interference with prosecution witnesses,

g) The accused's character,

h) The accused right to prepare his defence,

i) The likelihood of further charges,

j) The state's opposition to bail.

13] Accused charged with serious offence. If charges are proved prison sentence is inevitable. The accused is undergoing a suspended sentence. Five times he has escaped from prison custody. Therefore, this court is view of that there is a high bail risk and if bail is granted he may not face the trial and will evade the court.

14] In State v Kirikiti [2010] FJMC 132; HAC139.2010 (22 September 2010), my brother Resident Magistrate Mr.R.D.R.Thushara Rajasinghe rightly pointed out this situation. It was a similar kind of this offence and the accused of that case had 18 previous convictions. His Worship went on saying;

“20. I place a high amount of consideration on the issue of the accused"s 18 previous convictions, where 6 of them are similar in nature to the charge in this case and one of them is escaping from lawful custody and another is forfeiture of bail bond. These previous convictions specially, his previous failure to surrender to custody in May 2010 and escaping from lawful custody in 2004 are compelling factors for me to determine that there is a likelihood that the accused person is unlikely to surrender to custody and appear in court to answer the charges in the event of granting bail.

21. In addition, the previous convictions of the accused, specially the 6 previous convictions of similar in nature and the accused frequent nature of offending and the seriousness of the offence in this case which involve an attack and robbery of a man in public place are resultant for me to determine that the granting of bail to the accused person would endanger the public interest or make the protection of the community more difficult.”

14] Now I shall turn to the important legal aspect regarding section 216 of the Criminal Procedure Decree 2009. Did this Court err in law? The golden rule of criminal law is the accused is presumed innocence until his guilty is beyond reasonable doubt proved by the prosecution. This presumption falls to each and every case that the accused has. Thus, common law rule is that character of the accused is not relevant unless accused adduces good character in his trial. Therefore, character comes to play when hearing (on determination of guilt) and not on bail ruling. I reproduce the section 216 of the Criminal Procedure Decree.

216. — (1) Where an information contains a count charging an accused person with having been previously convicted of any offence, the procedure shall be as follows —

(a) the part of the information stating the previous conviction shall not be read out in court, nor shall the accused be asked whether he has been previously convicted as alleged in the information, unless and until he or she has either pleaded guilty to or been convicted of the subsequent offence;

(b) if the accused person pleads guilty to or is convicted of the subsequent offence, he or she shall then be asked whether he has been previously convicted as alleged in the information;

(c) if the accused person answers that he or she has been so previously convicted, the judge may proceed to pass sentence accordingly; but if he or she denies that the previous conviction, or refuses to or does not answer such question, the court and the assessors shall then hear evidence concerning the previous conviction.

(2) If upon the trial of any person for any such subsequent offence the person gives evidence of his or her own good character, it shall be lawful for the prosecutor, in answer to the evidence, to give evidence of the conviction of the person for the previous offence or offences before a verdict is returned, and the court and assessors, shall inquire concerning the previous conviction or convictions at the same time that they inquire concerning the subsequent offence.

15] Hence, this provision applies for hearing and not deciding of bail. I reproduce section 19(2) (a) and (c) of the Bail Act 2002.

(a) as regards the likelihood of surrender to custody-

(i) the accused person's background and community ties (including residence, employment, family situation, previous criminal history);

(ii) any previous failure by the person to surrender to custody or to observe bail conditions;

(iii) the circumstances, nature and seriousness of the offence;

(iv) the strength of the prosecution case;

(v) the severity of the likely penalty if the person is found guilty;

(vi) any specific indications (such as that the person voluntarily surrendered to the police at the time of arrest, or, as a contrary indication, was arrested trying to flee the country);

c) as regards the public interest and the protection of the community-

(i) any previous failure by the accused person to surrender to custody or to observe bail conditions;

(ii) the likelihood of the person interfering with evidence, witnesses or assessors or any specially affected person:

(iii) the likelihood of the accused person committing an arrestable offence while on bail.

16] The Accused previous convictions play a vital role in deciding bail. It entangles with above section (a) ( i) and deciding public interest and protection of the community court has enormous power to refuse bail in considering the attended circumstances. In these cases, the accused has committed another offence while he is undergoing a suspended sentence. Charges levelled against the accused are serious and attracts for refusal of bail.

17] In confronting of this legal issue, I should say the Criminal Procedure Decree is a general statue. The Bail Act is a special statute. In Harlow v Minister of Transport [1951] 2 KB 98 English court applied that legal maxim of Generalia Specialibus non Derogant, that is General statue’s provision does not override Special Statute’s provision and, special statue’s provision should prevail. Bail Acts specially enacted for granting bail and refusal of bail. But Criminal Procedure Decree is enacted for streamline the criminal proceedings and it is a general statute. Therefore the application of section 216 of the Criminal Procedure Decree has no effect on Bail Act Section 19(2) (a) and (c) and Bail Act prevails all the times. Therefore, the accused’s legal argument is misconceived. As I earlier mention “Protection of Community Syndrome” will prevail.

18] Analyzing in depth, in section 19(1) provides that how (reasons for refusing bail) prosecution could rebut this presumption.

i] The accused person is unlikely to surrender to custody and appear in court to answer the charges laid;

ii] The interest of the accused person will not be served through the granting of bail; or

iii] Granting bail to the accused would endanger the public interest or make protection of the community more difficult.

19] In Isimeli Wakaniyasi v State ( 2010),FJHC 20;HAM 120/2009 (29th January 2010), His Lordship Justice Gounder held that "All three grounds need not exist to justify refusal of bail, existence of any one grounds is sufficient to refuse bail".

20] In this case, Court finds the factors of i] and iii] are patently present. As I mentioned, Law of Bail is very lucid and placid in this regard.

21] For above mention reasons, I decide that granting of bail to the accused would endanger the public interest and the accused may unlikely to surrender to custody and appear in court to the charges laid against him and I am view of if the accused is granted bail, the community at stake. I hold that the prosecution has rebutted the above presumption of granting bail and it is still prevail.

22] Under section 14(3) of bail Act the accused is advised not to make bail applications on above grounds (similar grounds) again.

23] Bail Review is refused. The accused is further remanded in custody. In all times production order is to be served on prison authorities to bring down the accused to the court for this case.

24] Under section 30 of Bail Act you may appeal against this ruling. 28 days to appeal.

Sumudu Premachandra
Resident Magistrate

^[1] Rutherford L and Bone S( Edit), (1993) “Osborn’s Concise Law Dictionary”( 8^th Edition) Sweet and Maxwell, London p 310