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State v Talala [2015] FJMC 17; Criminal Case 37 of 2015 (13 February 2015)

IN THE FIRST CLASS MAGISTRATES COURT AT SIGATOKA
IN THE WESTERN DIVISION

Criminal Case No: 37 of 2015

STATE

vs

1) MANASA TALALA
2) SERUVI CAQUSAU
3.) KELEVI SEWATU
4) PENAIA DRAUNA
5) FILISE VERE
6) VILIAME VEREIVALU
7) JONA DAVONU
8) PITA MATAIRAVULA
9) SENITIKI NATAKASAVU

Details

BEFORE : Resident Magistrate, Tomasi Bainivalu
For Prosecution : Ms Fatiaki of ODPP
For Accused : Mr Iqbal Khan for accused 1,2,3,4,5,6,7,& 9
Mr Boseiwaqa with Mr Rabuku for the accused 8

Date of Oral Submissions:13th February, 2015 @ 10.30am
Date of Ruling : 13rd February, 2015 @ 1.00pm

BAIL RULING

The Introduction

1. All the above mentioned accused's' had appeared under Police custody before this court to the alleged following charges:-
   

Count One

Manslaughter: Contrary to Section 239 (a) (b) (c) (ii) of the Crimes Decree No. 44 of 2009.

Alternative Count

Rape: Contrary to Section 207 (1) & (2) (b) of the Crimes Decree No. 44 of 2009

Count 2

Assault Occasioning Actual Bodily Harm: Contrary to Section 275 of the Crimes Decree No. 44 of 2009.

Count 3

Perverting the Course of Justice: Contrary to Section 190(e) of the Crimes Decree No. 44 of 2009

Count 4

Perverting the Course of Justice: Contrary to Section 190(e) of the Crimes Decree No. 44 of 2009

2. At this preliminary stage, considering the fact that the alleged counts 1 & alternative count are indictable offences, this summary court has the jurisdiction to hear bail applications or refusal to the same, prior transferring the substantive matter to the High Court in compliance with section 191 of the Criminal Procedure Decree 2009.
   
3. The court had allowed oral submissions from the State and the two Defence counsels on the bail and refusal to the latter, applications this morning.
   

The submissions

4. I have heard the submissions from the State, opposing to bail be granted to all the accused persons and likewise oral submissions from both the defense Counsels for the same be granted.
   

[State Submissions]

5. The state based their objections for bail being granted via sections 18 and section 19 (2)(a)(3),(4),& (5) of the Bail Act.
   
6. The state further submitted to court the following in brief:-
   
   • All the accused are charged with indictable offences, on count 1 and the alternative count i.e. manslaughter and rape respectively and they are very serious offences.
   • All accused persons acted outside the scope of their authorized duties as police officers.
   • State has strong evidence to secure convictions if all accused are found guilty to the alleged charges.
   • Count 1 and the alternative count entails punishment of 25 years and life imprisonment respectively.
   • And in light to counts 3 & 4, there is a likelihood that all accused persons will interfere with the States witnesses and the case in totality if granted bail.
   • Ask for bail be refused.
     

[Defence Submissions- Mr I. Khan]

7. Mr Khan had asked for bail for the accused 1,2,3,4,5,6,7, & 9 and briefly submitted to court the following grounds:-
   
   • Firstly, there are no disclosures ready for the defense to peruse today, as it is encumbered on the State to have the same ready for the defence perusal in order for the defence and all accused persons to have equal standing.
   • Defence, refer to section 3 of the Bail Act that every person's has right to bail.
   • The learned defense counsel also elaborate brief the factors outlined by former Justice Shameem as in the case of Tak Sang Hao vs State (2001) FJHC 15; I do not wish to reproduce the same as the court record has it.
   • The fundamental factor is whether all the accused will appear in court on the next date.
   • The State had failed to rebut this presumption of bail as per the factors outlined in the relevant case above.
   • All accused are presumed innocence until proven otherwise, and the court to exercise its decision on bail judicially, considering the relevant factors raised above.
   • There are hundreds of murder cases where bail were granted by the court and the current case is manslaughter; for instance just yesterday a case in the Lautoka High Court that is State vs. Rakesh Kumar where it was revert to the High Court from the Court of Appeal that the Learned Judge should have granted bail (not authority showed by Defence Counsel).
   • The Defence Counsel further submitted that they will be challenging the caution interview on the basis that they were given involuntarily, they were induced and obtained under undue influence and oppressions.
   • Therefore this court has powers to grant the same to the accused persons considering the above factors as in the case Tak Sang Hao vs State (2001) FJHC 15.

[Defence Submissions- Mr Bosewaqa]

8. Mr Bosewaqa for accused 8, concur the same sentiments raised by Mr Khan and further submitted the following:
   
   • that his client will undertake to attend court on the next occasions and thereafter,
   • he is entitle to bail to give full instructions and engage counsels for legal advice,
   • he is a member of the Discipline force and will abide to any bail conditions imposed by the court,
   • Married man with children to support,
   • Concur with the state counsel and consider the seriousness of the offence, but client is innocence until proven otherwise.
   • Ask therefore for bail in favor of Accused 8.

[Brief reply-State Submissions- Ms Fatiaki]

9. In brief, Ms Fatiaki submitted that the court to consider this case on its merits alone and not because other courts had granted bail on 100 plus murder cases, it should also do the same on this one.
   

The Law and Authorities

10. The Bill of rights applies to all the laws in force at the time of the coming into force of the Constitution. One of these is the Bail Act 2002.
    

Section 13(1)(h) of the Constitution 2013 provides:

"Every person who is arrested or detained has the right to be released on reasonable terms and conditions, pending a charge or trial, unless the interest of justice otherwise require."

11. And section 3 (1) of the Bail Act 2002 stated that every person has the right to bail unless it is not in the interest of justice to do so. Under section 3(3), there is a presumption in favor of granting a person bail, however this can be rebutted.
    
12. In a case of State v Tunidau [2003]FJHC 188;HAM 0001.2003S;b Shameem,J (as she was) stated thus:
    

"Prima facie, the test for the grant or refusal of bail must always be whether the accused person will appear for trial. Matters which might assist the court in coming to any conclusion would be whether bail has been refused previously, the seriousness of the charge, the likelihood of reoffending, and of interference with prosecution witnesses, the accused character, the possibility of further charges, the accused right to properly prepare his/her defence and any previous failure to attend court"

13. Presumption of bail is not irrebuttable or absolute; it has limitations provided by the Decree and other case laws. In Tukai v Sate [2004]FJHC 235;HAM0053D.2004S (16August2004); Shameem J. (as she was) state as follows:-
    

"Although both Applicants have a right to bail, the presumption can be rebutted where the State shows that there is a likelihood that the Applicant will not appear in court or where it is not in the public interest to grant bail"

14. And section 19 (1) of the Bail Act 2002; outlines the three grounds which enables the court to refuse bail; and they are as follows:-
    

An accused person must be granted bail unless in the opinion of the police officer or the court, as the case may be,

(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.

15. Having stated the above, all these 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)]

16. Since this authority was raise by the defence counsel, I decided to detail the same as follows:-
    

Tak Sang Hao vs State (2001) FJHC 15; Her Ladyship Justice N Shameem had referred to Adesh Singh & Others v State (1988) FJHC 8 and stated, that the following factors should be considered.

1. The presumption of innocence;
2. Whether the accused to appear to stand trial;
3. Whether bail has been refused previously'
4. The seriousness of the charges;
5. The likelihood of the accused re-offending on bail;
6. Any interference with prosecution witnesses;
7. The accused's character;
8. The accused's right to prepare his defence;
9. The likelihood of further charges;
10. The State's opposition to bail.
    

The Analysis and Order

17. I have given careful consideration to all the submissions before me. I keep the primary consideration for bail, the provisions of the Bail Act, and the onus and standard of proof uppermost in my mind in determining this application.
    
18. In this, I find that there is no evidence before this court, that all the nine accused persons named above are unlikely to surrender to custody and appear in Court to answer the charges against them.
    
19. Nor is there anything that suggests that their interests will not be served through the granting of bail. Furthermore, there is no evidence before me to indicate that granting bail to all the nine accused persons would endanger the public interest or make the protection of the community more difficult neither they are flight risks nor have any previous history of absconding bail.
    
20. Indeed, I am satisfied that the prosecution's concerns may be adequately dealt with by imposing strict bail conditions.
    
21. Accordingly, I allow all the above named nine accused persons bail at the sum $3,000. 00 each with sureties of like amount with the following conditions:
    
    1. All accused persons are not to live the Fiji Island jurisdiction without the leave of the court;
       
    2. All accused persons are to each surrender their valid passport with all travel documents to the Magistrate's Court registry within 48 hours from todate;
       
    3. Not to apply for a passport whilst these proceedings are pending in Court;
       
    4. Not to contact the victims and other state witnesses by any means whatsoever;
       
    5. They are all to report to the their nearest Police Station every Mondays, Wednesdays and Saturdays between 6am – 6pm;
       
    6. They are all not to commit any offence whilst on bail.
       
22. Considering the fact in respect to count 1 and the alternative count of manslaughter and rape respectively; as one of Indictable offence, all the accused persons are to appear in the Lautoka High Court on the 23rd February 2015 at 9.00 am
    

Orders Accordingly.

..............................
Mr Tomasi Bainivalu
Magistrates Court
Sigatoka

Distribution
:- State Counsel
:- Mr Khan.I
:- Mr Boseiwaqa
:- File copy