ROYAL COURT
(Samedi Division)
13 September 1999
Before: F C Hamon, Deputy Bailiff,
Jurats Le Breton, Potter
AG
v
Mohammed Nafkha
Application for review of Magistrate’s refusal of bail
On 27 July 1999 the applicant reserved his plea to one count of grave and criminal assault; a bail application was refused and he was remanded in custody.
On 6 and 9 August and on 6 September bail applications were refused: on 6 September the applicant entered a plea of not guilty.
Application refused
C E Whelan, Crown Advocate
Advocate R Tremoceiro for the Accused
JUDGMENT
THE DEPUTY BAILIFF: The rules on a bail application are clear. Counsel must demonstrate on a review that there has been a demonstrable error by the Magistrate or the Magistrate must be shown to have been capricious or it must be shown that no reasonable Magistrate could have reached the decision that he did.
We have revisited the Superior Number sentencing of Nafkha and his co-accused on 16 November last year. At the end of that long trial the Crown moved for a total of 16 months imprisonment for Nafkha. The Superior Number on the medical and other background reports took a different view and he was sentenced in this way: 3 years Probation and 100 hours Community Service but on condition that he seek counselling from the Alcohol and Drugs Service for such a period as the Probation Service might require.
The Magistrate has cited in this bail application the principle set out in AG v Makarios (1979) JJ 1985, that is the seriousness of the offence that matters. That, in our view, would have been entirely sufficient. Nafkha apparently struck his victim on the head with a broken glass and the victim has required thirty stitches. Part of his ear has been severed and there is an uncertain prognosis. There may be, according to the Acting Attorney General, incipient gangrene.
It is a plea of not guilty but the Crown will produce, apart from the victim, apparently four independent witnesses to the alleged assault. In our view we need go no further. Bail is refused.
Authorities
A.G. -v- Makarios (1979) JJ 85.