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Chandra v The State [1994] FJHC 68; HAM0005d.1994s (24 June 1994)

IN THE HIGH COURT OF FIJI
CRIMINAL JURISDICTION

MISC. NO. HAM 0005 OF 1994

In the matter of an application for bail
in Criminal Case No. 22311 of 1994 at the
Magistrates Court at Suva.

Between

KAYLESH CHANDRA
(f/n Ramesh)
of Suva, lecturer
Applicant

And

THE STATE
Respondent

Counsel: Mr. Raza for Applicant
Mr. Tuiqereqere for Respondent

Dates of Hearing: 10, 15, 22 & 24 June 1994
Date of Decision: 24th June 1994

ORAL DECISION OF PAIN J.

This is an application for bail. The accused is one of two persons jointly charged with murder. The basic prosecution allegation is that they, or one of them, deliberately stabbed the deceased with a knife thereby causing his death. The State opposes the grant of bail.

It has long been accepted that the granting of bail on charges of murder is exceptional, but bail is granted on occasions. The practice in England prior to the passing of the Bail Act is found in Archbold 36th Edition where it is stated in paragraph 203 that "it is not usual to grant bail on charges of murder". The Bail Act contains a presumption in favour of granting bail. However according to Blackstone's Criminal Practice l993 at paragraph D5 24 "it is still unusual for bail be granted in murder cases but it is not as exceptional as it once was".

In Fiji there is no legislation similar to the English Bail Act. The attitude of this Court has always been that bail is not usually granted in murder cases. I mention two of the authorities that have been referred to me. Mr. Justice Fatiaki in Criminal Appeal 2 of 1991 referred to "the well established rule that bail is only granted in exceptional cases where the charge is murder". Bail was refused by him in that case although a later bail application was in fact granted. The Learned Chief Justice in Criminal Case 942 of 1987 said "as a general rule bail in cases of murder is sparingly and rarely granted". In that case exceptional circumstances were found for the granting of bail to some of the accused.

In accordance with these authorities, I must look to see whether there are exceptional circumstances in this case justifying the grant of bail.

The main point submitted on behalf of the accused is that the case for the prosecution is weak and there is little or no sufficient evidence. It is submitted that, at best, the charge should be reduced to manslaughter. In support of this submission counsel has highlighted a number of matters from the evidence to be tendered today at the preliminary investigation. His submission is that the various inconsistencies and other matters question the credibility of the witnesses and weaken the prosecution case. For instance he referred to the fact that on the evidence of the prosecution witnesses the deceased was left lying on the footpath for some 40 to 45 minutes. He points out that there was no identification parade. He points to an inconsistency in the evidence of Police Witness 1 which he suggests leads to the conclusion that she was giving evidence of what she saw Police Witnesses 9 & 10 do and not what the two accused were doing. He also points out an inconsistency in her evidence with the evidence of others when she says that one of the assailants went away in a taxi after the attack. He also points out that the statement of Police Witness 1 which implicates the present applicant was taken at 5.55am. A statement was subsequently taken from the applicant but he was not charged on that day and was not charged until a considerable time later. These are just some of the matters submitted by counsel and are given as illustrations of the nature of his submissions. In addition counsel points to the personal circumstances of the applicant including his good character and hardship to others because he is a lecturer at the Fiji Institute of Technology. Counsel also submits that the applicant would be unlikely to abscond if granted bail and could meet any condition imposed by the court.

The State opposes the application for bail and submits that there are no exceptional circumstances to warrant it being granted. Counsel has also referred to the evidence and submits that there is clearly sufficient evidence to justify a charge of murder. The reliability or credibility of the witnesses cannot be decided at this hearing merely on the depositions. The State raises strong objection to the granting of bail on such a serious charge.

I do not propose to traverse the facts in any great detail, but I have carefully considered the preliminary investigation evidence to assess the nature and strength of the prosecution case. I have also carefully considered the submissions of both counsel. I note that three witnesses give evidence of seeing two Indians attacking a Fijian man in a striped shirt. There is evidence identifying these two Indians as the two accused. The man in a striped shirt is identified as the deceased. One of the eye witnesses said that she saw the Indian man wearing a black vest, pull out a pocket knife and stab the deceased twice. There is evidence that this accused was that man in the black vest. Two other witnesses gave evidence supporting this allegation. The post mortem revealed an incised wound on the right cheek of the deceased, a skin abrasion across the right cheek, three incised wounds on the left arm and four incised wounds to the general chest area. This is indicative of eight or nine stabs with a knife. In my view the facts disclosed in the evidence raise a strong prima facie case against this accused even though he was not immediately charged with the offence. I can see no basis for a submission made by counsel at an earlier hearing that the stabbing occurred at some other place and at some other time. Counsel has highlighted inconsistencies in the evidence and there are matters that can properly be raised at trial to test credibility. However it is not appropriate for this court on this application to resolve such conflict. I repeat there is a strong prima facie case on the evidence. The accused has good references and is in regular employment. However I do not see any exceptional circumstance in that nor in the disadvantage his incarceration may have for his students.

In all the circumstances I cannot say that this is an exceptional case for the grant of bail.

The application is refused.

JUSTICE D.B. PAIN

HAM0005D.94S