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Kumar v State [2005] FJHC 726; HAM008.2005S (12 April 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

MISCELLANEOUS ACTION NO. HAM008 OF 2005S

RAJESH KUMAR

V

THE STATE

Gates J

Mr M. Raza for the Accused
Ms P. Mudunavosa for the State

11, 12 April 2005

RULING

Bail Act [No. 26 of 2002] bail pending trial; 33 fraud related charges; dishonesty involving $121,000; foreign national with no fixed address or resident relatives; failed to return from overseas leave; no immigration record of his departure; returned to Fiji voluntarily; likely 6 months wait till trial; no previous adverse history; two sureties proposed of limited or nil acquaintanceship; definition of surety s.2(1); duties of a surety; unlawful for Accused to pay for cash surety or to offer to reimburse surety; acknowledgment by surety of acquaintanceship with Accused s.22(2)(b); exceptional circumstances; need for stringent bail conditions and substantial cash surety.

[1] The Accused has already been refused bail pending trial in a ruling which was delivered by Shameem J on 23 March 2005. Shameem J was concerned about the inadequacy of the surety offered.

[2] The Accused awaits High Court trial on 33 fraud related counts:

"The Information filed by the Director of Public Prosecutions, alleges offences of forgery, uttering forged documents, obtaining on forged document and larceny by servant. The total amount allegedly stolen is approximately $121,000. The alleged victim is the Charan Jeet Group of Companies."

[3] It is unlikely his trial will take place before October of this year. The Accused has been in custody since 31 December 2004.

[4] The Accused is a national of India with no relatives residing in Fiji. Whilst he was remanded at the Suva Prison however, his plight was noticed by a Mr Aman Prasad when visiting his own brother at the prison. Mr Prasad has come forward and offered to provide food and accommodation for the Accused until the trial is over.

[5] Other grounds for caution as listed by Shameem J in the previous ruling included the fact that the Accused had failed to return from his overseas leave and that his departure from Fiji had not been recorded in immigration records.

[6] The Accused did however return to Fiji voluntarily once he knew the police wanted him in Fiji. He is of previous good character.

[7] Over properly argued and evidenced objections, Shameem J had nonetheless indicated that the court would be prepared to grant bail with stringent conditions and a suitably substantial surety. Mr Prasad could not provide sufficient financial surety, though he could still stand as a surety and oversee the Accused’s housing and general movements. Shameem J had heard Mr Prasad on oath.

[8] In this the second application, Mr Ravendra Kewal stepped forward to fulfil the lack of a substantial surety. Mr Kewal gave sworn evidence before me. He is a prominent businessman in Fiji. He frankly informed me that he had only met the Accused for the first time at court at yesterday’s hearing. He offered to sign bail in a sum of between $30-50,000.

[9] A foreigner in the Accused’s situation may find it very difficult to obtain suitable sureties who know him well enough to vouch for him. That does not mean that such a person cannot be granted bail. In this case two persons have offered to help the Accused, though they have either limited acquaintanceship or no previous acquaintanceship with him.

[10] A surety is defined in the Bail Act 2002 at section 2(1) as:

"... a person, other than an accused person or a person under 18 years, whom a Police Officer or Court determines to be acceptable to provide confirmation of the accused persons bail undertaking, or security that such undertaking will be complied with"

[11] He needs to "be able to confirm a bail undertaking or to ensure the bail undertaking or conditions will be compiled with, and perhaps most important of all bail issues, to ensure that the accused person bailed will attend for his trial or the mention of his case when notified to do so": The State v Anthony Fredrick Stephens (unreported) Misc. Action HAM0004.97S, 26 May 2003.

[12] In the Stephens case the Accused informed the court that he had put up the cash surety himself to enable his brother to stand as surety. This was neither appropriate or lawful, and the court had to observe in that case at p.3:

"Because the surety has a duty to ensure the accused’s attendance at court, which is a duty independent of the accused’s obligation, and to ensure compliance with bail undertakings and conditions on the part of the accused, it is not possible for an accused himself to put up the cash surety, or to guarantee reimbursement to the surety in the event of a bail default by the accused. Indeed in England such conduct amounts to an offence (see Section 9 Bail Act, 1976)."

[13] In providing for conditions of bail section 22(2) of the Act provides:

"(b) that one or more sureties acknowledges that he or she is acquainted with the accused person and regards the accused person as a responsible person who is likely to comply with a bail undertaking;

......

(f) that one or more sureties enters into an agreement, and deposits acceptable security, to forfeit a specified amount of money if the accused person fails to comply with his or her bail undertaking;"

[14] However because the Accused is a foreigner and perhaps genuinely unable fully to comply with section 22(2)(b), I am prepared to accept the two sureties offered with the words of caution I have already uttered. In doing so, I am treating the circumstances as exceptional, for normally, the lack of proper acquaintanceship with the Accused would undermine the effectiveness and suitability of a surety, and disqualify him or her from standing as surety.

[15] The independent duty of a surety is first to ensure the attendance of the Accused at court whenever the Accused is required to attend, and secondly to see that he complies with the terms and conditions of his bail. A copy of the Bail Terms and Conditions form or undertaking signed by the Accused and his sureties will be provided to each surety as well as to the Accused.

[16] If the sureties selected for the Accused can abide by these conditions and perform these duties, the Accused is to have his bail. I consider the presumption in favour of the grant of bail has not been rebutted. His right to bail can be accorded in the interests of justice though upon strict conditions. Mr Aman Prasad is approved to stand as a surety in the sum of $2,000 [non-cash], and Mr Ravendra Kewal as a surety in the sum of $30,000 [cash deposit]. The Accused is to be released as soon as the bail bond is signed and the cash deposit lodged with the High Court Criminal Registry.

[17] I annex to this ruling the bail terms and conditions. It is of the utmost importance that you comply strictly with the conditions of bail. A failure to do so will almost certainly result in the cancellation of your bail and your return to the inconvenient conditions of the remand prison. You could also face prosecution for any breach of bail. The penalty for absconding if convicted is a fine of $2,000 and 12 months imprisonment [Bail Act section 26(1)].

[18] The case will be for mention on 21 April 2005 at 9.30 am before Shameem J, to fix PTC and trial date.

[19] You have a right to seek review of these bail conditions pursuant to section 30(4) of the Bail Act in the Court of Appeal. Your counsel will advise you further.

A.H.C.T. GATES
JUDGE

Solicitors for the Accused: Messrs M. Raza & Associates, Suva
Solicitors for the State : Office of the Director of Public Prosecutions, Suva