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State v Vunicawa [2011] FJMC 139; Criminal Case 1390.2011 (7 November 2011)

IN THE RESIDENT MAGISTRATE'S COURT OF SUVA

Criminal Case No: - 1390/2011

STATE

V

MOSESE VUNICAWA

For Prosecution: - Sgt. Luck.
Accused: - In person

BAIL RULING

1. This is an application for Bail in pursuant of section 14 (1), 30 (2) of the Bail Act.
   
2. The accused person's initial bail application was heard and refused by this court on 30th of August 2011 on the ground of public interest and the protection of the public pursuant to section 18 (1) ( c) of the bail act. Subsequent to the ruling dated 30th of August 2011, the accused made a written application for bail on 13th of September 2011. The prosecution filed their objection on 27th of September 2011.
   
3. Upon considering the bail application of the accused person and the objection filed by the prosecution, I now proceed to pronounce my ruling on this application for bail as follows;
   
4. The accused Mr. Mosese Vuniacawa is charged and stands for trial for one count of "Burglary" contrary to section 312 (1) of the Crimes Decree No 44 of 2009, one count of "Indecent Assault" contrary to section 212 (1) of the Crime Decree No 44 of 2009, and one count of "theft" contrary to section 291 (1) of the Crimes Decree No 44 of 2009. The accused pleaded not guilty for all three counts on 27th of September 2011 with the assistance of legal aid counsel as the duty solicitor.
   
5. The accused applies for this bail review application pursuant to a written application submitted by him on following ground.
   
   1. Right to be presumed innocent until proven guilty.
      
   2. The accused urged that his young child who is now living with his parent and his elderly parent need his support as he is the sole bread winner for them.
      
   100. The accused contended that there is no material evidences that link him to these alleged offences though the offences which he is charged are serious in nature.
        
   4. The accused further submitted that his previous convictions should not be considered by the court in deciding bail in pursuant to section 216 of the Criminal Procedure Decree.
      
6. The learned prosecutor submitted state's objection for bail on the following grounds;
   
   1. Accuse is a Habitual offender who has 14 previous convictions.
      
   2. Accuse may re-offend again if released on bail.
      
   3. Accuse has committed offense of Robbery with Violence seven (7) times and served sentence.
      
   4. The strength of prosecution case, accuse may interfere with police witnesses.
      
   5. The offense charged is serious one.
      
   6. Accuse may absconded if bail is granted.
      
   7. In the interest of public and protection of the community (section 18(1)(c) of the Bail Act.
      
   8. Granting of bail accuse may endanger the public interest ......[19(1)(c) of the Bail Act.
      
   9. Prosecution is seeking for early hearing to be fixed.
      
   10. Please find attached pervious conviction of the accuse.
       
7. Having considered the bail application of the accused person and the objections tendered by the prosecution, I now draw my attention to the laws pertaining to the bail review application. The legal basis pertaining to bail review or a fresh Bail application in pursuant of section 14 (1) of the Bail Act stipulates in section 30 of the Bail Act.
   
8. Section 30 of the Bail Act states that;
   

"(1) A magistrate may review any decision made by a police officer in relation to bail.

(2) A magistrate may review a decision made by another magistrate, including a reviewing magistrate, in relation to bail.

(3) The High Court may review any decision made by a magistrate or by a police officer in relation to bail.

(4) The Court of Appeal may review any decision made by the High Court in relation to bail.

(5) The Supreme Court may review any decision of a magistrate, the High Court or the Court of Appeal, in relation to bail.

(6) A court may not review a decision under this Part if the court is prohibited from making a decision in relation to the grant of bail by any other written law.

(7) A court which has power to review a bail determination, or to hear a fresh application under section 14(l), 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.

(8) The power to review a decision under this Part in relation to an accused person may be exercised only at the request of-

(a) the accused person;

(b) the police officer who instituted the proceedings for the offence of which the person is accused;

(c) the Attorney General;

(d) the Director of Public Prosecutions; or

(e) the victim of the offence.

(9) The power to review a decision under this Part includes the power to confirm, reverse or vary the decision.

(10) The review must be by way of a rehearing, and evidence or information given or tamed on the making of the decision may be given or obtained on review.

(11) The regulations may limit the powers of review conferred by subsections (1), (2) and (3)".

9. The accused person emphasized in his written bail application the status of his family back grounds and his presence is vital for his young child and elderly parent since he is the only bread winner for them. Further he forcibly argued that his previous convictions could not be considered adversely against him in his bail determination. In view of these grounds contended by the accused person in this bail application, I am satisfied that there are special facts and circumstances that justify a review of my previous bail ruling dated 30th of August 2011 and to hear this bail application under the section 30 (1) and 30 (7) of the Act.
   
10. I now turn to the laws governing the grant of bail. Section 3 of the bail act and sections 13, 17, 18 and 19 of the bail act deals with the grounds for granting bail.
    
11. Section 3 of the Bail acts states
    

(1) Every accused person has a right to be released on bail unless it is not in the interests of justice that bail should be granted.

(2) Bail may be granted by a court or, subject to section 8(2), by a police officer.

(3) There is a presumption in favour of the granting of bail to a person but a person who opposes the granting of bail may seek to rebut the presumption.

(4) The presumption in favour of the granting of bail is displaced where-

(a) the person seeking bail has previously breached a bail undertaking or bail condition; or

(b) the person has been convicted and has appealed against the conviction.

12. In view of the section 3 (1), the right to be released on bail is not an absolute right. His Loradship Justice Nawana held 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.

13. Moreover, the presumption in favour of granting of bail could be rebutted by the person who oppose for bail on two grounds as per section 3 (3) and (4).
    
    1. The person seeking bail has previously breached a bail undertaking or bail condition;
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    2. the person has been convicted and has appealed against the conviction.
       
14. Nawana J further held '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".

15. Section 17 (2) of the bail act stipulates that "The primary consideration in deciding whether to grant bail is the likelihood of the accused person appearing in court to answer the charges laid against him or her".
    
16. The section 18 (1) of the act, stipulates the grounds for refusal of bail, where it states
    

"A person making submissions to a court against the presumption in favour of bail must deal with-

(a) the likelihood of the accused person surrendering to custody and appearing in court;

(b) the interests of the accused person;

(c) the public interest and the protection of the community".

17. His Lordship Justice Gounder held in Isimeli Wakaniyasi v State ( 2010),FJHC 20;HAM 120/2009 (29th January 2010), that "All three grounds need not exist to justify refusal of bail, existence of any one grounds is sufficient to refuse bail".
    
18. I now draw my attention to the dicta of Her ladyship Justice Shameem in Tak Sang Hao v The State (2001) FJHC 15, HAM0003d.2001s (26 April 2001), where Her Ladyship succinctly outlined the primary factors that will assist the court in arriving at a conclusion in respect of bail after scrupulously considering the laws pertaining to bail in England, and European Convention on Human Rights. These relevant factors are;
    
    1. The presumption of innocence,
       
    2. Whether the accused to appear to stand trial,
       
    100. Whether bail has been refused previously,
         
    4. The seriousness of the charge,
       
    5. The likelihood of the accused re –offending on bail,
       
    6. Any interference with prosecution witnesses,
       
    7. The accused's character,
       
    8. The accused right to prepare his defence,
       
    9. The likelihood of further charges,
       
    10. The state's opposition to bail.
        
19. Bearing in mind the above judicial precedents and provisions of the Bail Act and careful perusal of the written bail application of the accused and the objection of the learned prosecutor I now proceed to determine the bail of the accused.
    
20. The prosecution mainly contended that accused is recorded adversely with 14 previous convictions. Three out of these fourteen convictions are escaping from lawful custody. Moreover nine out of these fourteen convictions are related to the offences which are similar in nature to the offences for which the accused is charged in this case.
    
21. The accused vehemently opposed the prosecution objection to consider his previous convictions in order to determine bail pursuant to section 216 of the Criminal Procedure Code.
    
22. The section 216 of the Criminal Procedure Code is placed under part XIV of the code which deals with the procedures in trails before the High court. In view of this reason, I am of the view that section 216 is not applicable in this bail hearing. Moreover I find in pursuant of section 3 (4) the Bail Act, the previous convictions on breach of bail undertaking or bail condition could be considered adversely in order to displace the presumption of granting bail. Therefore, I dismiss the accused person contention that the record of his previous convictions could not be considered adversely against him in this bail determination.
    
23. The accused is recorded with three previous convictions of escaping from lawful custody. In view of this adverse record of breach of bail conditions and undertakings by the accused I hold the prosecution has successfully displaced the presumption of bail pursuant to section 3 (3) and 3 (4) of the Bail Act.
    
24. The accused is charged with two counts of serious offences of Burglary and Theft which entail maximum punishment of 14 years of imprisonment and 10 years of imprisonment respectively. With accused person's adverse record of escaping from lawful custody and the serious nature of his charges, I find negatively the likelihood of the accused person appearing in court to answer the charges laid against him.
    
25. I now turn to the frequent nature of accused person offending over the last six years starting from 2005. During the period of six years that accused was convicted for nine counts of offences similar in nature to the first and third counts in this case. The accused person's frequent nature of offending compel me to draw an adverse inference on the accused that there is a positive likelihood of accused person committing an arrestable offence while on bail which endanger the public interest and the protection of the community pursuant to section 18 (1) (c ) and section 19 (2) ( c) (iii) of the Bail act.
    
26. I now consider the issues relating to the interest of the accused, where he contended his young child and elderly parent need his support because he is the only bread winner for them. At this juncture, it is a duty of this court to judicially evaluate the contrasting contentions of the prosecution and the defence in order to determine the bail of the accused person within the relevant provisions of the Bail Act.
    
27. Having considered the adverse record of accused person's previous convictions, and his frequent nature of committing offences similar in nature to the offences he now charged for, I determine that the unlikelihood of the accused person appearing in court to answer the charges laid against him and the interest and security of the community have over weighted the accused person's interest on his family as their only bread winner.
    
28. Having considered the reasons set out above, I hold that the accused is not entitled to be released on bail. Application for bail is accordingly disallowed and bail is refused.
    

On this 07th day of November 2011.

R.D.R.Thushara Rajasinghe
Resident Magistrate, Suva