IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL MISC. ACTION NO. HAM0031 OF 1996

IN CHAMBERS

BETWEEN:

KULDIP SINGH
f/n Daya Singh
APPLICANT

AND:

THE STATE
RESPONDENT

Mr. Raza for Applicant
Mr. Wilkinson for the Respondent

DECISION

This is the second application for bail pending trial by the Applicant who was committed for trial on 11 April 1996 for murder allegedly committed by him on 17 January 1996. He has been in custody since the month of January 1996.

Mr. Raza for the Applicant referred to the case in the Fiji Court of Appeal of KAYLESH CHANDRA v. THE STATE Misc. No. HAM0005 of 1994 where there is but fleeting reference by Sir Moti Tikaram to undue delay grounding successive applications if necessary, for bail pending trial. This case merely states the obvious.

Then THE STATE v. VIJAY KAPOOR and KAILESH CHANDRA Misc. No. HAM0001 of 1995 was cited, a decision by Mr. Justice Pain on 10 February 1995. The Applicants had been in custody since April and May 1994. Trial could not be before April or May 1995 or it could be later. He therefore held that the delay was now getting so long i.e. 15 months as to constitute exceptional circumstances which must exist before bail in a murder case (which is sparingly granted) could be granted. This is far in excess of the present case.

Pain J. also noted there was no evidence of a premeditated plan to kill although a knife was used. But he also said that the nature of the alleged murder, the particular evidence against an accused, and the strength of the prosecution case were all equally factors with delay in coming to trial, in reaching a decision on bail pending trial.

Mr. Wilkinson for the State relied on these latter considerations mentioned by Pain J. as justifying a refusal of bail. He also submitted trial was imminent.

Mr. Raza also referred to the decision of Kepa J. on 29 January 1995 in THE STATE v. IOWANA TAROGAand TEVITA ROSADRIWA HAC0015 of 1994. This was a case of two police officers facing a man brandishing a knife in a public place. The alleged murder occurred on 21 January 1994. Trial could not be reasonably foreseen before the latter part of 1995. This was a period of over 18 months, far in excess of the present case.

Mr. Raza's last case was that of PRABHA WATI and SARWAN SINGH v. THE STATE HAM0008 of 1995. There the murder occurred on 11 August 1994. It appeared to Kepa J. that trial would not occur until late 1995 or early 1996, a period of well over 12 months. Again this is a greater period than has elapsed or will elapse in the case of the present Applicant.

Mr. Wilkinson for the state cited ASHOK CHAND v. THE STATE HAM0012 of 1995 a decision of Mr. Justice Pain on 7 December, 1995 for the proposition that there was no magic in the mere lapse of 12 months.

There the murder took place on 25-26 November 1994. The Appellant was in custody from his arrest on 9.12.94. He was committed on 31.4.95 but after 8 months depositions had still not arrived at the High Court! (They have finally arrived on 20.8.96 16 months later! This is a scandalous state of affairs!)

Pain J. refused bail. Factors were:

1. Grave category of murder.

2. A pre-meditated crime.

3. Victim a prosecution witness in an upcoming trial against the Appellant.

4. Victim struck over head with piece of wood as she slept.

5. Quite different from other cases in which bail granted.

6. Appellant in custody almost 12 months and further delay expected.

7. Previous convictions for criminal trespass and assault occasioning actual bodily harm.

At p.3 of his judgment, Pain J. said: "An accused is not automatically entitled to bail if the trial is not heard within say, 12 months. What is a reasonable period depends upon the particular case and all the prevailing circumstances. It could be a shorter or a longer period. In cases where bail has been granted, the prospective delay has been well in excess of 12 months."

On the question of delay, I advised Mr. Raza that I had no trials set down for this year at this moment and his client could come to trial immediately before me.

Mr. Wilkinson indicated the prosecution were ready and could start on Monday 3rd February 1997.

Mr. Raza said he was not suited as he was starting a trial in Lautoka expected to go 5 days.

I advised Mr. Raza his client could go to trial immediately after that. He declined to commit himself.

So, in my view the question of delay evaporates. If the Appellant wished to avail himself of other Counsel, who was available, his trial could be first of my trials for the year.

It is not a weak case by any means, as the State quite rightly pointed out. The attempted rape of the victim may not have been planned ahead, but once the assault started on her, it went on for a considerable period. On the State's case, if made out, it was a sustained and brutal bashing of the victim's head on the ground, causing death almost immediately from large blood clots from intra-cranial bleeding.

As I said in my short ex tempore ruling, there is no magic in a 12-month delay, the case is a serious and strong one, and trial can be had as early as 3 February 1997, but the Applicant's Counsel declines it.

Bail is refused and the application is dismissed.

K.J. TOWNSLEY
JUDGE

24th January, 1997
SUVA
HAM0031.96S