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Vakarisi v State [2016] FJMC 225; Criminal Case 1886.2016 (8 November 2016)

IN THE MAGISTRATES’ COURT OF FIJI
AT SUVA

CRIMINAL CASE NO: 1886/2016

BETWEEN : JONE VAKARISI

APPPLICANTS

AND : THE STATE

RESPONDENT

For the Applicant: Mr.Rawaya

For the Respondent: Cpl Fisher

Date of Hearing:07^th of November 2016

Date of Ruling : 08^thof November 2016

RULING ON BAIL

1. The applicant is charged with 2 counts ofAct intended to cause Grievous Harm contrary to section 255(a) of the Crimes Decree No. 44 of 2009.
2. He was first produced in a special court sitting on 05/11/2016 and remand from that time. I transferred this matter to the High Court pursuant to section 191 of the Criminal Procedure Decree on 07/11/2016.
3. In the meantime the learned counsel for the applicant applied bail in this court and submitted that his client is a first offender and willing to abide with strict bail conditions.
4. The respondent submitted that they are objecting for the bail because this is Indictable offence and for the safety of the applicant.
5. Having considered the respective submissions of the parties, now I proceed to pronounce my ruling in this case.
6. Section 13(1) (h) of the 2013 Constitution states that a person who is arrested or detained has right to be released on reasonable terms and conditions, pending a charge or trial, unless the interests of justice otherwise require.
7. Therefore an accused has right to be released on bail and this can be refused only when the interest of justice require.
8. Section 03 of the Bail Act of 2002(“Act”) provides that the accused person has a right to be released on bail unless it is not in the interest of justice that bail should be granted. Section 3(3) states that there is a presumption of granting bail to the accused and person who opposing it has to rebut that.
9. But this presumptionwill be displaced if an accused has previously breached a bail condition or convicted for an offence and appealing against the conviction (Section 3(4) of the Act).
10. The primary consideration in granting bail in a criminal case is the accused person appearing in the Court to answer the charge(section 17(2) of the Act )
11. Section 19(1) of the Act outlines the reasons for refusing bail in normal case and they are as follows:-
    1. The accused person is unlikely to surrender to custody and appear in court to answer the charges laid;
    2. The interest of the accused person will not be served through the granting of bail; or
    100. Granting bail to the accused would endanger the public interest or make protection of the community more difficult
12. In Isimeli Wakaniyasi v State ( 2010),FJHC 20;HAM 120/2009 (29th January 2010), his Lordship Justice Goundar held that "All three grounds need not exist to justify refusal of bail, existence of any one grounds is sufficient to refuse bail".
13. The respondent is objecting because this is an Indictable offence, indirectly submitting that the applicant is charged with a serious offence. But in my view charged with a serious offence alone is not a sufficient to deny bail to the applicant.
14. Article 14(2) (a) of the 2013 Constitution states that every person charged with an offence has the right to be presumed innocent until proven guilty.
15. But the counsel for the applicant informed the court that the applicant is facing threat from nearly 20-30 people who the police have so far failed to arrest. If this is true then in my view for his personal safety he need to be kept in custody.
16. Further the counsel concedes that the applicant got a pending case in Nasinu where he is on bail for a Common Assault. Even though he further submitted that it would soon settle, it is evident that he seems to have reoffended during the bail period displacing the presumption in Act as well showing his failure to observe bail conditions. This shows also that he may commit another offence if granted bail.
17. Hence I find that that applicant is unlikely to surrender to custody if granted bail and his interest lies in keeping him in custody.
18. I refuse his bail application and remand him further to appear in High Courton 18^th of November 2016.
19. 28 days to appeal.

Shageeth Somaratne

Resident Magistrate