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Singh v The State [2004] FJHC 201; HAM0027.2004 (6 May 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

CRIMINAL MISC. CASE NO.: HAM0027 OF 2004

BETWEEN:

ABHAY KUMAR SINGH
Applicant

AND:

STATE
Respondent

Counsel: Mr. M. Raza - for the Applicant
Mr. G. Allan – for the State

Date of Hearing: 6th May, 2004
Date of Ruling: 6th May, 2004

RULING

This application came before me requesting variation of the bail order and conditions I imposed on the 28th of April, 2004.

In terms of condition 5 I devised a way to ameliorate the harshness of restricted bail for an accused who is attempting to further his education overseas. I asked the DPP to assess the appropriateness of periods of study leave by the accused and confirm in writing to the Registrar that it was appropriate to release his passport to him for the purposes of that study leave.

The first such application to the Director of Public Prosecutions was made about the 29th of April, 2004.

It was a robust application seeking leave between the 7th of May and the 25th of June, 2004. The DPP quite naturally asked for proof of the need for the study leave and was met with mounting indignation from the applicant.

The applicant and the DPP ended in a stand off on the issue. The result of which was that the applicant exercised his right of leave to bring the matter back before me for decision.

I heard counsel in chambers on the 6th of May. They detailed their submissions in writing and addressed those briefly.

It became clear that the applicant had class and study commitments in Brisbane, Australia at least between the 13th of May and the 24th of June. Through counsel he gave his undertaking that he was proceeding to Brisbane, Australia for study leave and for no other purpose. He further undertook that his attendance at these classes was obligatory.

In addition during that time period he has to complete some assignments and undertake a take-home open book examination. The assignments and the examination could be undertaken in Fiji. The argument essentially is that as he will be in Brisbane, Australia for classes anyway it makes sense for him to stay for a continuous period and make the most of that study opportunity presented to him.

Regrettably the applicant’s approach to the DPP was unhelpful. It appears that it was not until the matter was before me that the full importance of the requested leave was adequately demonstrated.

The State quite rightly points out that this accused is facing a serious charge of perverting the course of justice. It is further stated and I agree that the opportunity for him to have periods of absence from Fiji is a privilege that must be circumscribed by appropriate conditions.

I reminded the applicant that he must be treated exactly the same as any other accused. He accepts that.

After consideration I granted the application for variation in part in that I permitted study leave and authorized the release of the applicant’s passport to him accordingly.

I am satisfied that he has a genuine family and professional commitment to Fiji. In addition he has filed a personal cash by a bond in the sum of $5,000.00. His work and life remain here. Accordingly as much as possible the risk of flight has been minimized.

Accordingly in terms of condition 5 of the original bail I grant permission for study leave between the 7th of May and the 25th of June. The applicant is warned that he must return his passport to the Registry within 24 hours of his return to Fiji.

I further vary the condition by removing the requirement that the DPP scrutinize future applications for study leave. That condition to now read:

“Passport to be surrendered to the High Court Registry and maybe uplifted for the purposes of travel to and from Australia on occasions of study leave. Before uplifting the passport the accused is to supply the Court on notice with a certified copy of itinerary, return ticket and affidavit specifying the exact nature of purposes of the study leave applied for. The Court if satisfied that the application is genuine will grant release of the passport either 24 hours prior to the departure or in the event of travel with a departure or return or flight schedule for Saturday or Sunday the passport may be uplifted on the preceding Friday and returned the next Monday. The passport is to be re-deposited within 24 hours of return to Fiji. Travel may only be to and from Australia on a specified itinerary for a specified purpose.”

The remaining bail terms are to stay in place although I note during periods when the accused is absent from Fiji the residence and reporting clauses will be varied accordingly.

The accused applicant is to sign a fresh bail bond containing this amended term on his return to Fiji in the week of the 25th of June, 2004.

Gerard Winter
JUDGE

At Suva
May, 2004