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State v Tuilagi [2008] FJHC 317; HAC069.2008 (13 November 2008)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 069 OF 2008

BETWEEN:

THE STATE

AND:

ADRIU TUILAGI
ULIANO WAQA
VILIAME COLATI

Counsel: Mr. A. Rayawa for the State
All Accused in Person

Date of Hearing: Friday 7th November, 2008
Date of Ruling: Thursday 13th November, 2008

RULING

[1] All three accused persons are jointly charged with the offence of robbery with violence. The Information and disclosures filed by the State allege that the accused persons forcefully entered the home of the complainant and robbed him of properties valued $9,860.00 after threatening him and his spouse with violence. The prosecution case is substantially depended on confessions made to the police by the accused persons. No trial date has been fixed because the accused persons are awaiting for their legal aid applications to be processed. As soon as their applications are processed and legal representation secured, the trial could take place early next year, that is, within a year after being charged.

[2] The accused persons were arraigned in the Magistrates’ Court on 7 March 2008. They entered a plea of not guilty and were remanded in custody. Before being charged in this case, all three Accused persons had previous convictions. The 2nd Accused person allegedly committed this offence whilst serving a suspended sentence for theft.

[3] On 6 May 2008, the case was transferred to the High Court for trial upon application by the prosecution.

[4] On 16 May 2008, all three Accused persons were granted bail by this Court on similar terms and conditions. The following conditions were included:

(i) To attend court when told to do so for mention, any pre-trial applications, and the trial of this case, and to attend next on Monday 2/6/08 at 9.30am at the Suva High Court.

(ii) To be of good behaviour and not to commit any offence whilst on bail.

[5] After being released on bail, the 1st and 3rd Accused persons were convicted of an unrelated offence in the Magistrates’ Court on their own pleas of guilty and were sentenced to custodial terms of imprisonment. Because their circumstances changed, their bail in the present case was revoked on 15 August 2008. They will now have to make a fresh application for bail in the present case after they had served the sentences imposed in the other case.

[6] The circumstances of the 2nd Accused are different.

[7] On 25 July 2008, the 2nd Accused failed to appear in Court. A warrant was issued for his arrest. On 28 July 2008, the 2nd Accused voluntarily appeared in Court and explained his earlier non appearance. He informed the Court that he got confused with the dates. His warrant was cancelled and his bail was extended. On 8 August 2008, the 2nd Accused again failed to appear in Court and a warrant was issued for his arrest. Later on the same day he appeared and informed the Court that he was in police custody on a new allegation of robbery with violence. He was charged on a new allegation and was remanded in custody. The second matter is pending in the Magistrates’ Court. Following his second charge, the 2nd Accused was remanded in custody in this case on 15 August 2008. He now applies for fresh bail pending trial.

[8] The application is made under the Bail Act 2002. The Act provides for a heavy presumption in favour of granting bail pending trial to an accused. The party opposing bail carries the onus to rebut the presumption on the balance of probability. Bail should be granted unless the Court is satisfied of any one or more of the considerations set out in Section 19(1). They are:

(a) That the accused is unlikely to surrender to custody and appear in court.

(b) The interest of the accused will not be served through granting bail.

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

[9] The State relies on the third limb to oppose granting of bail to the 2nd Accused. In considering this limb, the Court must have regard to factors such as any previous failure by the accused person to surrender to custody or to observe bail conditions, and the likelihood of the accused person committing an arrestable offence while on bail (s. 19(c)).

[10] Counsel for the State submits that the 2nd Accused has forfeited his entitlement to bail by breaching his earlier bail conditions. Counsel says that the 2nd Accused now faces a new charge of robbery with violence, which arose after he was granted bail. Counsel further says that bail should be refused on public interest ground.

[11] The Accused submits that the new charge is merely an allegation and not evidence of guilt. He says he is entitled to presumption of innocence because he has pleaded not guilty to the charge.

[12] Of course, the 2nd Accused is entitled to the presumption of innocence. However, a bail hearing is not a trial where the prosecution carries the burden of proof to prove guilt beyond a reasonable doubt. The purpose of a bail hearing is not to determine guilt or otherwise of the Accused, but to consider on balance of probability whether to restrict his personal liberty by remanding him in custody or to release him on bail pending determination of the charge against him. In two earlier decisions, this Court held 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 on bail (State v Tuimouta, Criminal Case No. HAC 078/2008 (18 August 2008), Williams v State, Criminal Misc. Case No. HAM 099/2008 (8 October 2008).

[13] I take into account the submissions of the 2nd Accused and the State. Robbery with violence is a serious offence which is punishable by maximum penalty of life imprisonment. The charge in this case arose while the 2nd Accused was serving a suspended sentence for theft. Shortly after he was granted bail in this case, a new allegation of robbery with violence arose against him.

[14] The offence of robbery with violence is prevalent in our community. The public has legitimate concern for their safety and security because of the increase in this offence. I need not to be satisfied that the 2nd Accused is guilty of these offences before remanding him in custody pending trial. It is sufficient if I am satisfied that the interests of justice, which includes the public interests, outweighs the Accused’s right to personal liberty in order to remand him.

[15] I am satisfied on balance of probability that there is a likelihood of the 2nd Accused committing a further arrestable offence while on bail and therefore it is in the public interests that he remains in remand pending trial.

[16] The application for bail is refused. The 2nd Accused is remanded in custody pending trial.

[17] The 2nd Accused is advised that he has a right of appeal or review to the Court of Appeal.

Daniel Goundar
JUDGE

At Suva
Thursday 13th November, 2008

Solicitors:
Office of the Director of Public Prosecutions, Suva for the State
All Accused in Person