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State v Naidiri [2013] FJMC 135; Bail Ruling 441,437,440,439.2013 (3 April 2013)

IN THE RESIDENT MAGISTRATE COURT AT NASINU

Criminal Cases No. 437/2013 439/2013, 440/2013 and 441/2013

STATE

-v-

KELEMEDI NAIDIRI
SEMESA TIKOICINA
SITIVENI BAINIVALU

DATE OF HEARING/RULING: 03rd April 2013

For the State: PC Ravi Narayan
For the 1st accused: Mr. Jolame Uludole, others in person

RULING ON BAIL

1] When these accused were arrested and produced this morning they asked bail. The State strongly objected for bail. They have 4 cases (except Sitiveni, has only one case 441/2013) on following counts;

Criminal Case No. 437/2013

CHARGE

Statement of Offence [a]

AGGRAVATED ROBBERY: Contrary to Section 311 [1] [a] of the Crimes Decree No. 44 of 2009.

Particulars of Offences [b]

KELEMEDI NAIDIRI and SEMESA TIKOICINA on the 28th day of March 2013 at Nasinu in the Central Division robbed one Amzad Ali and stole 1 LG brand mobile phone valued $650.00 4GB valued $27.00, $45.00 and $19.00 taxi fare total value of $741.00 the properties of one Amzad Ali.

Criminal Case No. 439/2013

CHARGE

FIRST COUNT

Statement of Offence [a]

AGGRAVATED ROBBERY: Contrary to Section 311 [1] [a] of the Crimes Decree No. 44 of 2009.

Particulars of Offences [b]

KELEMEDI NAIDIRI and SEMESA TIKOICINA on the 28th day of March 2013 at Nasinu in the Central Division rob one Mitesh Krishna, cash $50.00, 1 x Alcatel Mobile Phone valued at $79.00 the property of Mitesh Krishna, immediately before stealing uses force on the said Mitesh Krishna.

SECOND COUNT

Statement of Offence [a]

THEFT: Contrary to Section 291 of the Crimes Decree No. 44 of 2009.

Particulars of Offences [b]

KELEMEDI NAIDIRI and SEMESA TIKOICINA on the 28th day of March 2013 at Nasinu in the Central Division stole a taxi registration number LT1805 value at $23,000.00 the property of Mitesh Prasad.

Criminal Case No. 440/2013

FIRST COUNT

Statement of Offence [a]

AGGRAVATED ROBBERY: Contrary to Section 311 [1] [a] of the Crimes Decree No. 44 of 2009.

Particulars of Offences [b]

KELEMEDI NAIDIRI and SEMESA TIKOICINA on the 13th day of March 2013 at Colo-i-Suva Crest Farm Road, Colo-i-Suva, Nasinu in the Central Division stole $300.00 cash and an Alcatel mobile phone valued $39.00 to the total value of $339.00 the property of Rajesh Chandra and immediately before stealing they used force on the said Rajesh Chandra.

SECOND COUNT

Statement of Offence [a]

THEFT: Contrary to Section 291 of the Crimes Decree No. 44 of 2009.

Particulars of Offences [b]

KELEMEDI NAIDIRI and SEMESA TIKOICINA on the 13th day of March 2013 at Colo-i-Suva Crest Farm Road, Colo-i-Suva, Nasinu in the Central Division stole a taxi registration number LT7063 value at $10,000.00 the property of Rajesh Chandra.

Criminal Case No. 441/2013

CHARGE

FIRST COUNT

Statement of Offence [a]

AGGRAVATED ROBBERY: Contrary to Section 311 [1] [a] of the Crimes Decree No. 44 of 2009.

Particulars of Offences [b]

KELEMEDI NAIDIRI and SEMESA TIKOICINA on the 26th day of March 2013 at Nasinu in the Central Division rob one Nardeep Kumar Karan, cash $300.00, 1 x Alcatel mobile phone valued at $80.00 the property of Nardeep Kumar Karan, immediately before stealing uses force on the said Nardeep Kumar Karan.

SECOND COUNT

Statement of Offence [a]

THEFT: Contrary to Section 291 of the Crimes Decree No. 44 of 2009.

Particulars of Offences [b]

KELEMEDI NAIDIRI, SEMESA TIKOICINA and SITIVENI BAINIVALU on the 26th day of March 2013 at Nasinu in the Central Division stole a taxi meter valued at $223.00 at $225.00 and Taxi Registration Number LT 4962 value at $23,000.00 the property of Nardeep Kumar Karan.

2 I now deal with my ruling. Grounds for application are as follows;

A] Bail is a statutory right.

B] Presumption of bail is in favour of the accused, unless if it is rebutted by the prosecution, which has not been done in this occasion.

C] There is no likelihood that the accused will evade the case.

D] He has good surety and good parents who could control him.

E] The accused had three previous convictions but he did not evade the court on those occasions.

F] They rely on The State v Francis Kean [2007] FJHC 69 and Wakaniyasi v State {2010} FJHC 20 has no relevance to this case.

G] Section 18 of the Bail Act has no relevancy to this case

3] The second accused said that he his supporting his family, if he be remanded he would lose his job. He employed at Osaka Tire Centre at Valelevu. The third accused said that he works in Sand dunes night club and he is the sole bread winner of the family. They both seek bail and rely on the first accused contention and submissions.

4] The Police prosecution has strongly responded to the bail on following grounds.

A] Charge is very serious, if convicted 20 years imprisonment. They have strong case.

B] Public interest at stake.

C] These Offences are prevalent in Fiji

D] There are 4 pending cases.

E] Protection of the community

F] Right to bail is not absolute

G] Under section 18, all three factors need not to be proved. (Copy of Wakaniyasi v State {2010} FJHC 20 is tendered)

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

6] Applicable law could be found in Bail Act of 26 of 2002. In section 3 of said Act provides grating of bail is the rule and refusal of bail is the exception. Every person has a right to be released on bail unless it is in the interest of justice bail could be refused. The presumption of granting bail to a person could be rebutted by the party who opposes to it. Thus, police should rebut this presumption in this case.

7] 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.

8] I consider prosecution submission in this regard. Prosecution said that they have strong cases; and the accused has previous convictions and the public interest at stake.

9] According to section 17(2) the primary consideration is whether accused will come to Court to answer charge against him. But court notes other factors have similar considerations in deciding bail on the accused. (Section 18(1))

10] In section 19(2) of said bail Act provides inter alias previous criminal history, failure to surrender custody or breach of bail conditions, strength of the prosecution case and the likelihood of the accused person committing an arrestable offence while on bail could be determined as rebuttal of above presumption.

11] The first accused is known and he himself disclosed that he had 3 previous convictions. Therefore, he has propensity to do crimes while on bail. Thereby the accused's right to bail has to be refused. In Elia Manoa v the State (Misc. Crim. Case No: HAM095 OF 2010, 02nd June 2010) His Lordship Justice Gounder held "Although the new charges are not anyway evidence of guilt, the factor is of considerable importance when determining the likelihood of the accused person committing an arrestable offence while on bail". In R v. Crown Court at Harrow[2003] 1WLR 2756,in page 2778 Hopper LJ enunciated " The fact that the new offences appears to have been committed whilst on bail is likely to be a factor of considerable importance against the defendant when deciding whether there are substantial grounds for believing that, if released, he would commit a further offence while on bail" .

12] Now I turn to 2.3 Accuseds' grounds, Accused said that he is the sole bread winner of the family. These offences are committed on public transport vehicles and public interest at stake. Court should look innocent public and their rights to be safe guarded as well. Accused's right to bail is an individual right and it is overlooked by public's rights. The accused's right to bail is not an absolute right. In Mikaele Waqa v State Criminal Miscellaneous Case No: HAM 122 OF 2010 His Lordship Justice Priyantha Nawana observed;

"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." (Emphasis is mine)

13] As defence relied on, I considered State v Francis Kean [2007] FJHC 69 case. But I am afraid that was case of sentencing for manslaughter and has no application to these bail applications. But the court is well aware of the principles of bail. I am satisfied with the prosecution submissions. Therefore I hold that public interest at stake at this scenario and bail applications must be refused.

14] In forgoing reasons, I decline to release the accuseds on bail. The Bail application is therefore refused. The Accused are presumed innocent until proven guilty. These are indictable offences and High Court has the jurisdiction to try these cases. This court cannot accommodate any trial dates as my diary is fully booked for this year. I now transfer these cases to the High Court for arraignment. You may canvass this order to vary by the High Court, if dissatisfied.

15] All accused are 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 these cases.

16] Under section 14(3) of bail Act the accuseds are advised not to make any bail applications on above grounds (similar grounds) again.

17] Under section 30 of Bail Act the accused may appeal against this ruling.

18] 28 days to appeal.

Sumudu Premachandra
Resident Magistrate