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State v Ali - Bail Ruling [2012] FJMC 120; Criminal Case 203.2012 (8 June 2012)

IN THE MAGISTRATE'S COURT
SIGATOKA
WESTERN DIVISION
REPUBLIC OF FIJI ISLANDS\

Criminal Case No. 203 of 2012

State

v.

Aiyaz Ali

For State: WPC Chanika
Accused : Present – In person

BAIL RULING

Introduction

This is an application for bail by the accused. This is his first appearance in Court. The applicant is charged with Obtaining Financial Gain by Deception.

Section 3(1) of the Bail Act provides that an accused has the right to be released on bail unless it is not in the interests of justice that bail should be granted. Consistent with this principle, section 3(3) of the Act provides that 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. In determining whether a presumption is rebutted, 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 (section 17(2)).

Where bail is opposed, Section 18(1) of the Bail Act requires that the party opposing bail address the following three considerations:

(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.

Section 19(1) of the Bail Act provides that an accused person must be granted bail by a court unless:

(a) the accused person is unlikely to surrender to custody and appear in court to answer the charges laid;

(b) the interests of the accused person will not be served through the granting of bail; or

(c) granting bail to the accused person would endanger the public interest or make the protection of the community more difficult.

Section 19 (2) of the Act sets out a series of considerations that the court must take into account in determining whether or not any of the three matters mentioned in section 19 (1) are established. These matters are:

(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);

(b) as regards the interests of the accused person –

(i) the length of time the person is likely to have to remain in custody before the case is heard;

(ii) the conditions of that custody;

(iii) the need for the person to obtain legal advice and to prepare a defence;

(iv) the need for the person to beat liberty for other lawful purposes (such as employment, education, care of dependants);

(v) whether the person is under the age of 18 years (in which case section 3(5) applies);

(vi) whether the person is incapacitated by injury or intoxication or otherwise in danger or in need of physical protection;

(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 .

In addition to these matters, the court must also bear in mind the presumption of innocence. Which is that an accused person is presumed innocent until proven guilty by the Court.

In this application the State opposes bail. The State says that the applicant is well known and according to the Crime Officer is well known in other districts. Accused has stated that he is from Lautoka and he has committed the offence in Sigatoka.

The applicant has stated the law and has got two persons as surety, namely, Meredani Tokivau and Kitione Kalawa. The first surety states she is the girlfriend of the applicant. While the second surety states he is the cousin of the 1st surety. The applicant further informed the Court the condition in remand is not good and it is over-crowed. The applicant stated that the sum is small and the offence is not serious. The accused also wished to have bail to get a lawyer.

The Court has noted the law on Bail and the submissions by the applicant and the prosecution. The maximum for the offence is 10 years imprisonment. Unlike what the applicant is stating the charges against the applicant are indeed serious. If convicted the applicant is facing an immediate custodial sentence. There is a strong incentive for him to abscond bail.

The Court is also not satisfied with the sureties provided in Court. They have virtually no influence over the accused which will ensure that the accused appears in Court at the next hearing. The Court also in its enquiry with the accused noted that the accused is lying when he states he is originally from Lautoka when he is from Ba.

The Court is mindful of the remand conditions but just be because a Prison is overcrowded the Court will not let persons who are flight risk to have their way. Overcrowding is an issue the Corrections Authorities need to address. The Court will deal with bail application on case by case baisis according to law. The Applicant who is knowledgeable can inform the Corrections authorities that he needs to consult the lawyers and they will guide him and assist him.

Having considered the application, The Court is satisfied that the applicant would abscond bail. I am further satisfied that granting bail to the applicant would endanger the public interest or make the protection of the community more difficult.

Bail is refused. The applicant is advised that he has a right of appeal against this decision to the High Court within 30 days.

Chaitanya Lakshman
Resident Magistrate
Sigatoka
8th June 2012