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Tokivakadua v State [2012] FJMC 146; Case 1882.2011 (3 July 2012)

IN THE MAGISTRATE COURT OF FIJI ISLANDS
AT SUVA

Case No: 1882/11

BETWEEN:

BILIQITA TOKIVAKADUA
NEMANI RADABI
APPLICANTS

AND:

THE STATE
RESPONDENT

Applicants: - In person.
Respondent: - Mr Sovau, State Counsel (for DPP).

BAIL RULING

1. This is an application for bail pending trial.

2. The two accused-applicants, (hereinafter referred as the Applicants), stand charged on three counts for having committed the offences of 'Aggravated Robbery' punishable under Sections 311(1)(a) of the Crimes Decree No 44 of 2009.

3. The alleged offences were committed on 01.12.2011.

4. Initially the matter was referred to the High Court on a jurisdictional concern and later it was remitted back to this Court with extended jurisdiction of the High Court.

5. The respondent amalgamated the charges with CF 1850/11 on 18.04.2012 and sought time to furnish further disclosures on the applicants. In the meantime applicants made their application for bail.

6. The respondent raised objection for the said application. The state counsel further submitted a written submission to substantiate their objection. This Court proceeded in to a summery hearing on bail as there was a dispute on the previous convictions records submitted by the respondent.

7. This application is governed by the provisions of the Bail Act No 26 of 2002, which provides a heavy presumption in favour of granting bail pending trial to the accused persons.

8. Section 3 of the Bail Act 2002 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'. Although the favour of these words is more towards applicants, view of this Court is, it does not invest an absolute right on them to be released on bail.

9. The party opposing bail has to rebut this presumption on balance of probabilities. Bail should be granted unless the Court is satisfied of any one or more of the considerations set out in section 19(1); where it says,

(a) The accused is unlikely to surrender to custody and appear in Court;

(b) The interest of the accused will not be served through granting bail;

(c) Granting bail would endanger the public interest or create a situation where the protection of the community will be more difficult.

All 3 grounds need not exist to justify refusal of bail. Existence of any one ground is sufficient to refuse bail. {Wakaniyasi v State [ 2010 FJHC 20]}

10. The primary consideration of the Court 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.

11. At the outset I note that the charges against the two applicants carry a maximum punishment of 20 years imprisonment if found guilty. It is indeed a serious offence. The defendant states that the case for prosecution is strong. The alleged incident took place during night hours in joint enterprise. The total value of the robbed items was $ 15900.

12. The defendant submits that the first applicant has four previous convictions during the past 10 years and out of his convictions 3 are for robbery with violence. The second applicant has six previous convictions. He too has similar previous offences. In addition he had been convicted for absconding bail in 2008.

13. The two applicants disputed their previous convictions. Police Constable 4310 Vodo of the Criminal Records Division testified on the procedure of recording previous convictions. The Court was informed that the uplifting of PCs will be done only after considering the fingerprint database of the Crimes Division. During the cross examination of the witness, none of the accused applicants were able to draw any adverse inference on the accuracy and the procedure followed by the Criminal Records Division. Thus the Court does not hesitate to act on the PCs of the applicants submitted by the respondent during this bail ruling.

14. In fact the first applicant stated on 01.05.2012 that he was not convicted in 2004 and 2007. The second applicant stated that he had never been to prison. It appears that both applicants misled the Court on these issues.

15. Further their individual applications for bail, do not disclose that they have strong ties with the community.

16. Having considered the foregoing facts, I conclude that the previous criminal history and the community background of both applicants are such that 'interests of justice' make ineffective the 'right of the applicants to be released on bail'.

17. The two applicants of this case are not entitled to be released on bail pending trial.

18. Application for bail is dismissed accordingly.

19. Both applicants are advised on their right to appeal to the High Court within 28 days.

Yohan Liyanage
Resident Magistrate

03rd July 2012