Home | Databases | WorldLII | Search | Feedback Magistrates Court of Fiji

State v Nakau [2013] FJMC 324; Criminal Case 151, 152.2013 (27 August 2013)

IN THE MAGISTRATE COURT OF FIJI
AT TAVUA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. 151 & 152 OF 2013

BETWEEN:

THE STATE

AND:

VILIAME NAKAU

Prosecution: PC Dinesh
Accused: In Person

Bail Ruling

1. The accused Viliame Nakau was charged on 2nd August 2013 for two offences. The said offences are:
   
   • Breach of Bail Condition contrary to section 25(1)(d) and 26(1) of the Bail Act No.26 of 2002 and the Bail Amendment Decree No.28 of 2012 (CF 151/13); and
     
   • Assault Occasioning Actual Bodily Harm contrary to section 275 of the Crimes Decree No.44 of 2009 (CF 152/13).
     

2. The said offences were alleged to have been committed on 27th July 2013.

3. A formal application for bail was lodged by the accused. In the bail form accused requested for bail on the basis that he is the sole breadwinner and that he needs to look after his wife and children. He also needs to secure the services of a lawyer to defend his case and he also needs to repair his house which was damaged by the hurricane at the end of 2012.
   

In court he reiterated that no one is looking after his family and children are schooling. He also confirmed that apart from these two matters he has two other pending matters before the court which are to be called on 23rd September and 4th October 2013 respectively.

4. Prosecution strongly objected to bail on the basis that whilst accused was bailed in CF 221/08 and CF 136/13, the offence in CF 152/13 was allegedly committed by him. It was further submitted that if accused is released on bail, there is a real likelihood that he will commit another arrestable offence.
   

In addition it was also submitted that he has a previous conviction for similar offence of Assault Occasioning Actual Bodily Harm and that he has no respect for bail conditions imposed by the court.

5. According to section 3(1) of the Bail Act 2002 "Every accused person has a right to be released on bail unless it is not in the interest of justice that bail should be granted."

6. There is always a presumption in favor of bail for every accused person nonetheless the party opposing bail may rebut that presumption by proving on a balance of probability that accused ought not to be released on bail.

7. Section 19 of the Bail Act 2002 also sets out the relevant criteria for the courts consideration when determining whether bail should be refused i.e.

(i) That accused is unlikely to surrender to custody and appear in court;

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

(iii) Granting bail would endanger the public interest or make the protection of the community more difficult.

8. The court need only need be satisfied with any of the criteria's above for bail to be refused. In Isimeli Wakaniyasi v The State (2010) FJHC 20; HAM 120/2009 (29th January 2010). His Lordship Justice Goundar stated that:

"All three grounds need not to exist to justify refusal of bail. Existence of any one ground is sufficient to refuse bail".

9. I bear in mind that bail hearings are not for the purpose of determining innocence or guilt of any suspect. It is for the purpose of resolving whether an accused should be released on bail or refused bail in the interest of justice, pending the outcome of the substantive charge.

10. The gist of prosecution submissions is the likelihood of accused committing an arrestable offence if he was to be released on bail. Apparently the accused was on bail in two other pending matters when he allegedly committed the two offences which is the subject matter of this bail ruling.

11. When an accused is released on bail in one matter and then whilst on bail he brings suspicion upon himself in another new allegation, then the test is whether there is a real likelihood of accused committing another offence if released on bail? In State v Adriu Tuilagi & 2 Others Criminal Case HAC 69 of 2008, referring to two other decisions namely State v Tuimouta Criminal Case No. HAC 78/2008 and Williams v State Criminal Misc. Case No. HAM 99/2008 his Lordship Justice Goundar stated at paragraph 12, that when an accused is faced with a new allegation while on bail, the test is whether there is a likelihood of the accused committing a further arrestable offence whilst on bail.

12. I've considered what has been placed before the court by accused and also prosecution. On the balance of probability the court is of the view that there is a real likelihood of accused committing another arrestable offence if released on bail. If that was to happen then the protection of community would be endangered and made more burdensome.
    

13. In my view, it would not be in the public interest that accused be released on bail. The right of accused to be released on bail is far outweighed by the public interest factor that he not be released on bail. I'm also satisfied that prosecution has rebutted the presumption in favor of bail.

14. I thus order that the accused be remanded in custody pending hearing of his matters. Bail is refused. He is at liberty to appeal this decision to the High Court.
    

________________________________
Samuela Qica
Resident Magistrate

27th August 2013