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Kumar v The State [2002] FJHC 68; HAM0032.2002 (2 August 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

CRIMINAL MISC. NO.: HAM O32 OF 2002

BETWEEN:

SATISH KUMAR
APPLICANT

AND:

THE STATE
RESPONDENT

Mr. G O'Driscoll - For the Applicant
Mr. B Solanki - For the Respondent

RULING ON BAIL PENDING TRIAL

By a motion dated 19^th July 2002 and filed on 26^th July 2002 the applicant SATISH KUMAR has applied for bail pending trial. He has been charged with two others with the offences of ROBBERY WITH VIOLENCE and RECEIVING STOLEN PROPERTY. The case has been adjourned to 6, 7^th and 8^th November 2002 for hearing by the Suva Magistrate's Court. The accused has been remanded in custody.

It is agreed that two others accomplices have pleaded guilty and have been sentenced while two are still at large. The amount of money involved in the robbery is 38,000.00 US dollars and $500.00 Fijian currency; a mobile phone valued $500.00, one gold chain valued $1,000.00 and a wristwatch valued $50.00.

The State is opposing bail on the grounds that two accused are still at large, some of the money has not been recovered and because accused knows the two suspects whoa re at large so there is substantial risk that the applicant might contact items or vice versa. This would hinder police investigations.

Secondly, the State alleges that since a number of accused are charged in one count, the trial could be sabotaged if accused begin to take turns in not turning up on trial dates.

The Court agrees the possibility of accused not turning up for trial especially in a serious case that this is always there. However, the remedy too is there by way of bench warrant. An accused who fails to turn up in Court is unlikely to get any sympathy from a Court and unless he has very cogent reasons, failing which he can expect to remain remanded until trial is over.

Bail is also being resisted for the reason that release of the applicant could hinder investigation and arrest of two accomplices still at large. The offence was committed on 26^th June 2002. It appears that police enquiries are completed and it is only the issue of arresting two suspects. The Court does not know when these two would be located and arrested. If I may say so this hardly appears by itself to constitute a good ground for resisting bail. It may be a valid ground for increasing the numbers of an excessively overworked police force but not for ........... a citizen until this ideal state has been attained.

In Bechu v. R. 8 F.L.R. 240 at page 241 Macdrift C.J. commented that the trial for granting or refusing bail as follows:

"In the first place while a Court has, subject to statutory restriction, a discretion in granting bail such discretion must be exercised judicially and in the light of the paramount principle that an accused person is presumed to be innocent until he has been found guilty. For that reason he should not be deprived of his liberty merely because he is accused of a crime if he can satisfy the test that in all the circumstances he will appear to stand his trial on that accusation."

The sentiments expressed by Macdrift C.J. in Bechu have been strengthened further by inclusion of such principles in the Constitution for our country. Section 28(1) refers to the presumptions of innocence while section 27(3)(c) reads –

"Every person who is arrested for a suspected offence has the right to be released from detention on reasonable terms and conditions pending trial, unless the interest of justice otherwise require."

This section raised a presumption in favour of bail being granted on reasonable terms unless justice requires otherwise. So the Court has to do a balancing act between the right to bail and interest of justice which includes the public interest.

The factors which a Court considers in considering an application for bail are helpfully set out by Justice Fatiaki as he then was in Adesh Singh v. The State 34 F.L.R. 1. There is no need for me to risk the ten factors he enumerated there except to say that he too considered that the primary test was whether the accused would appear to stand trial.

From the affidavit filed on behalf of the applicant, I note that the applicant is a married man; he has one child and has substantial business interests in Suva even though his business is operating from rented premises. He also has a one third share in a residential property at Nasese. In other words he has substantial monetary interest and commitments in Fiji which would counter balance any excuse to abscond.

He has offered to surrender his passport and provide two sureties who are named in the affidavit. The trial date is three months away.

I have come to the conclusion that the applicant's personal circumstances and particularly the fact that he has a very peripheral role to play in the offence favour bail. He played no active role in planning or executing the robbery. He only provided a car.

I do not see how public interest demands continued .......... of his particular accused. Accordingly I grant bail in the sum of $1,000.00 with two sureties in the sum pending trial to the applicant on following terms and conditions:

1. that he report to the Central Police Station daily between 9.00 a.m. to 1.00 p.m.
   
2. that he surrenders his passport to the Court.
   
3. That he provide his full residential address and telephone number (if any) to the Court and police and advise the Court and police of any change in address and telephone numbers.
   
4. That he reports to the Magistrate's Court, Suva when the case is next listed for mention on August 12^th.
   
5. The applicant is to desist from communicating in any way with two accomplices who are at large.
   

Jiten Singh
JUDGE

At Suva
2^nd August 2002