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State v Rokomaraivalu [2014] FJMC 162; Criminal Case 1295.2012 (10 December 2014)

IN THE RESIDENT MAGISTRATE COURT AT NASINU
CRIMINAL CASE NO. 1295/12

STATE

V

1.LEONE ROKOMARAIVALU
2.INOKE GADRE
3.SEFANNAIA TURAGADAMUDAMU

DATE OF RULING: 10th of December 2014

For the State: DPP Counsel Mr. Meli Vosawale
Accused: Present in person

RULING ON BAIL

1] All Accused are charged with 2 counts of offence namely;

Aggravated Robbery: contrary to section 311(1) (a) of the Crimes Decree 2009.

2] The 1st Accused was arrested and produced to this court on 16/10/2012. On the same day the 1 accused orally seek bail and bail refused by this court. Matter was transfer to high court and remitted to this court. The 1 accused plead not guilty to all 1st, 2nd and 3rd counts on 6/11/2012. At the very first date the accused made complaint to the magistrate about the assaulting of police officers. Therefore medical report was called. On the 08/01/2013 The 1st Accused applied for bail in writing and the prosecution objected for bail .bail refused by the court on 18/02/13 bail refused for the 1st accused on the same day the 1st accused file voir dire grounds filed by the 1st accused as his admissions were not volunteered but due to assaulting of police officers. And the accused tendered medical report to court on 24/6/2013. voir dire trail commenced on 15/11/2013 and yet to be concluded. 0n 21/10/2014 the 1st accused made fresh application for bail and on 28/10/14 The State opposed to the bail and filed its objection. The accused was remanded in custody up to date.

3] The 1 accused seek bail on following ground.

A] That the 1st accused was in remand for 2 years.

B] As per the available evidence so far at the voir dire trial the prosecution has failed to prove the 1st accuseds connection to crime and poor in quality. Therefore the circumstances have changed.

C] The accused was the sole bread winner of his 2 daughters who were depend on his mother and now since the mother is getting old and unfit no one to looks after them.

4] The prosecution filed objection based on following grounds.

A] That the offence is serious carries 20 years maximum sentence if convicted.

B] That the accused has 15 previous convictions most of them are similar in nature with the present case.

C] That the accuseds likelihood of surrender to custody as he previously convicted for escaping from lawful custody.

D] That the accused is serving a sentence therefore as per sec:5 (3) of bail act he is not entitle for bail.

5] I have carefully considered the application and objection by the State and accused. And the main legal issues to be resolved by this court could be listed as follows.

A] Whether the application limit mention in the sec: 5(3) is applicable to the accused or not?

B] Whether the time limit mention in the sec: 13(4) is applicable to the accused or not?

C] Whether the poor quality of evidence could be consider as changing of circumstances or not?

6] The issue Number [A] - Whether the application limit mention in the sec: 5(3) is applicable to the accused or not? .Section 5(3) mentioned under "Right to release for certain offences" provide;

"a person is not entitled to be granted bail if the person is in custody serving a sentence of imprisonment in connection with some other offence" .

It is noted that to find out the real meaning of section 5(3) of bail act one must be read that within the contexts but not the isolated part of it.

"Right to release for certain offences

5.-(1) This section applies to-

(a) any offence not punishable by a sentence of imprisonment;

(b) any offence under the Minor Offences Act (Cap. 18); and

(c) any offence punishable summarily that is of a class or description prescribed by the regulations for the purposes of this section.

(2) A person accused of an offence to which this section applies-

(a) is entitled to be granted bail unless-

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

(ii) in the opinion of the police officer or the court, as the case may be, the person is incapacitated by intoxication, injury or use of a drug or is otherwise in danger of physical injury or in need of physical protection;

(iii) the person stands convicted of the offence or the person's conviction for the offence is stayed; or

(iv) the requirement for bail is dispensed with, as referred to in section 6;

(b) is entitled to be granted bail either-

(i) unconditionally; or

(ii) subject to any bail conditions the police officer or the court considers reasonable and appropriate.

(3) A person is not entitled to be granted bail if the person is in custody serving a sentence of imprisonment in connection with some other offence."

As per heading of the section and 5(1) the legislatures meant to introduce bail provisions for any offence minor in nature. this court noticed that this section has no relevancy to this matter as the accused serving for a offence which has not falling to the listed 3 categories in this section but more serious offence more specifically aggravated robbery. Therefore this court will not consider the accused as disqualified for bail under section 5(3) of bail Act; as it is not the appropriate section for this case. This court ruled that the accused has entitlement for granting bail.

7] The law Applicable for bail could be found in Bail Act of 26 of 2002. Nevertheless the accused is about to complete his current serving after one day of this ruling. Therefore it is unrealistic to consider that the accused as serving even though he is serving at this moment but he is about to released from the prison by tomorrow. The intention of the legislatures with regard to section 5(3) of the bail act was to provide limitation on granting bail to a serving prisoner whom has charged with count of minor offence or offence which has not prescribed with imprisonment as it defiantly leads to a complication of liberty status of prisoner.

8] The relevant section of limitation for bail at this point has mentioned in the Bail Act is under the heading of "Entitlement to bail". The Section 3 of Bail 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. Sec:3 provides as follows;

"3.-(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"

Therefore as per provisions of the bail Act the accused has full right to apply for bail unless the court found any above mention disqualifications.

9] The issue Number [B]- Whether the time limit mention in the sec: 13(4) is applicable to the accused or not?. This is one of the ground mentions by the accused as he has been remanded for 2 years therefore he entitle for bail. The accused did not mention the section but this court find the relevant section is 13(4) of the bail act. Firstly it is impotent to say that this accused was serving therefore this section is not relevant or the accused cannot rely on the same. 2 years limitation is only applicable to a person who was in remand and the prosecution has failed to start the trail for 2 years. When a similar situation arose even the court does not privileged with its usual wide discretion and according to wordings of "....the court must released the person on bail....."the court must grant bail. But this provision is subject to some limitations and not absolute one. The sec:13(4) is subject to other remaining sub sections of the same .More specifically this section will not applicable to serving prisoners or if the delay caused due to own conduct of the person who is in remand. The intention of the legislatures is very clear with regard to sec: 13(4) .it is for persons who has been remanded for 2 years or more due to the prosecution inefficiency as this leads to breach of well accepted norms on personal liberty which has been recognized by 2013 constitution of the republic of Fiji at the "BILL OF RIGHTS". This provides as follows.

"Right to life

8. Every person has the right to life, and a person must not be arbitrarily deprived of life."

"Right to personal liberty

9.—(1) A person must not be deprived of personal liberty except—

(e) if the person is reasonably suspected of having committed an offence;"

"Rights of arrested and detained persons

13.—(1) Every person who is arrested or detained has the right—

(h) to be released on reasonable terms and conditions, pending a charge or trial, unless the interests of justice otherwise require;"

10] The section 13 provides as follows;

"Sec: 13 (4) If a person charged for an offence has been in custody for over 2 years or more and the trial of the person has not begun, the court must release the person on bail subject to bail conditions the court thinks fit to impose.

(5) Subsection (4) does not apply where the trial of the person has begun and the court has refused to grant bail or where the person is serving a sentence for another offence.

(6) For the purpose of subsection (4), the period of 2 years does not include any period of delay caused by the fault of the person.

(7) In subsection (4), "trial" means the trial proper of the person in respect of the offence which the person has been charged with and does not include committal proceedings or the determination of any preliminary or interlocutory application.

Since the voir dire trail has commenced and the accused was serving at the time of remand this court ruled as per sub section 13(7) that the accused's remand period does not give right of bail under this section.

11] The issue Number [C]- Whether the poor quality of evidence could be consider as changing of circumstances or not?. The accused made an application for bail and bail rejected on 18/2/2013.It is well settled principle in Fiji that any subsequent application for bail after ruling done by the court within same case could be file only at a situation if the circumstances has changed. When ruling the previous application of bail this court had accepted Prosecutions objections and refused bail. According to response the prosecution has based there objection upon seriousness of the offence, strength of the case and the severity of the penalty if found guilty. Even though the prosecution stated that they have sufficient evidence to prosecute this case at the hearing of voir dire trail it was revealed that the prosecution has not done the identification pared and nothing has recovered from the accused and the prosecution is solely relay on caution interview. And tendered medical report by the accused to court on 24/6/2013 is positive for some sort of assaulting.

12] Any court of law will not consider the merits at the application for bail. But this principle is not absolute and it does have exceptions. The intentions of the legislators on bail act regarding review of own ruling of magistrate court is limited to facts and not on law. The meaning of words "frivolous or vexatious" is subsequent changes of facts or circumstances. Therefore this court considers the facts revealed at trial as change of circumstances.

13] In Deel Chand v DPP [2005] SCJ, 215, Justice Balancy had explained about the risks of not granting bail.

"In carrying the balance of risks the Court must bear in mind the risk of prejudice to the accused and his next of kin. If he is not granted bail, namely the risk in the event he is acquitted, that an innocent person would have been unjustly detained and suffer prejudice along with his next of kin, that risk is greater and not worth taking when the quality of the evidence is particularly poor whilst it can be more readily taken when the evidence is particularly strong in view of nature"

14] The State's objection specially relies on past criminal history of the 1st accused. The State illustrates.

"The Applicant in this case is 27 years old, taxi driver and, resides at flat 21 Government Barracks Narere– the Applicant has numerous convictions within the past 10 years.

The 1 previous convictions range from:

(i) 1 Unlawful use of motor vehicle;

(ii) 4 Larceny;

(iii) 3 Burglary;

(iv) 2 Larceny of Dwelling;

(v) 1 House Braking Entering;

(vi) 1 Assault with intent to cause grievous harm,

(vii) 1 Escaping from lawful custody

15] In Section 19 (2) of said Bail Act provides inter alias previous criminal history, failure to surrender custody to breach of bail conditions, strength of the Prosecution case and the likelihood of the accused person committing an arrest able offence while on bail could be determined as rebuttal of above presumption.

16] To accuse a person or to remand an accused it is necessary to have reasonable ground to believe that one has connection to crime in question. It is the strength of prosecution but nothing else. Past crime history not always warrant the prosecution or the court to limit any citizen's fundamental right of personal liberty which has been recognized by the constitution of the republic of Fiji [2013].

17] This court is concern about the fact that the 1st accused has been remanded in custody for 2 years over an unproved allegation. On the other hand this court is aware of Section 13(4) of the Bail Act which stipulates that a person can be remanded in Prison for a period of 2 years or more if the applicant has been arrested with sufficient evidence to prove a case against the applicant.

18] At this application I can see new issue on fact has risen by accused and I think I have jurisdiction to vary previous decision of this court. Therefore I allowed the application and grant bail to the 1st accused for the above mentioned reasons which are subject to below mentioned specific conditions;

A] The 1st accused must surrender his passport to this court if not must not apply for a passport.

B] The 1st accused must provide 2 sureties in the sum of $3500 each, and at least one must be government employee.

C] To attend Court when told to do so for mention, any pre-trial applications, and the trial of this case and to attend every Court dates.

D] To be of good behavior and not to commit any offence whilst on bail.

E] And is warned that breach of any of these conditions is likely to result in the cancellation of his bail and the issuance, if necessary, of a warrant for his arrest and a return to custody till he is tried.

F] And not to change that address without the written leave of the Court which leave must be obtained before any change of address is made. The Prosecution must also be informed beforehand by the Applicant.

G] Is not to approach any Prosecution witnesses, directly or indirectly, or to intervene or harass them, in anyway.

H] Is place on curfew order every day between 9 pm to 6 am .

I] is to report to the nearest Police Station, every Sunday between 6am and 6pm .

19] Under section 31 of Bail Act 3rd the Director of Public Prosecution may appeal against this ruling.

20]28 days to appeal.

Neil Rupasinghe
Resident Magistrate-Nasinu