Home | Databases | WorldLII | Search | Feedback High Court of Fiji

Singh v State [2011] FJHC 390; HAM 106.2011 (27 July 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
MISCELLANEOUS JURISDICTION

CR. MISC. NO. HAM 106 OF 2011

BETWEEN:

AMIT KUMAR SINGH
s/o Asneet Kumar Singh
Applicant

AND:

STATE
Respondent

Mr. I. Khan for the Applicant
Ms S. Kiran for the Respondent

Date of Hearing : 27 July 2011
Date of Ruling : 27 July 2011

RULING
[Bail Application]

[1] By way of notice of motion and affidavit in support the applicant applies for bail pending trial in this Court. He was refused bail in the Magistrates Court at Lautoka before the matter was transferred.

[2] The applicant faces one count of digital rape, contrary to section 207(2)(b) of the Crimes Decree 2009. The complainant is a 15 year old Japanese student studying English in Fiji. She is about to return to Japan in three days' time. She has been living in a dwelling next door to the applicant.

[3] The learned Magistrate, while mindful of the presumption in favour of bail, found that given the imminent departure of the complainant, there was a "a likelihood that he would not appear in Court to defeat the ends of justice given the special circumstances of this case". He therefore refused to admit this applicant to bail. It is rather difficult to fathom what the Magistrate meant by this seemingly illogical finding.

[4] Section 17(2) of the Bail Act provides that the primary consideration in deciding whether to grant bail is the likelihood of the accused person appearing in Court to answer the charges laid against him. Although the Magistrate did not particularize his concerns about this consideration, it can only be presumed that he was of the view that in knowledge that the complainant was about to depart, the applicant would therefore delay his appearances in answer to the charge until there was no complainant present to give evidence against him.

[5] The State objects to the application on the basis that it is in the public interest he should be kept in custody to prevent any possible interference with the complainant and other witnesses who Counsel says are "out there". They submit that it is a very serious offence on a visitor to this country and that the offence is aggravated by the fact that the alleged victim is but 15 years old. Counsel for the State submits that given the victim's imminent departure, the State are examining ways in which her evidence can be adduced. They refer to previous examples of evidence given by CCTV and by skype.

[6] In very comprehensive and useful submissions Mr. Khan for the applicant stresses that the seriousness of the offence is not a relevant consideration, that the applicant aged 34 years has no previous history of offending nor therefore of breach of bail. He offers to move from the family home where he lives with his wife and 10 year old daughter and live 5 kilometres away with his grandfather thereby removing himself from possible contact with the complainant. He works as a driver in the civil service and needs to return to work very soon or he will risk losing his employment.

[7] The Court accepts that the seriousness of the offence is not a factor that should be predominant in bail applications. There are numerous examples of persons charged with murder being at large in the community.

[8] Interference with potential prosecution witnesses must always be a concern, but as Mr. Khan submits, this is a concern that can usually be dealt with by imposing strict conditions of bail.

[9] It is clearly very relevant that the complainant is about to leave the jurisdiction and has expressed an unwillingness to return to assist in the prosecution. The prosecution until now have taken no steps to secure her evidence as they could have done by making application to issue a commission for example under section 120 of the Criminal Procedure Decree 2009. Given that the complainant is leaving in three days time it is too late for that now.

[10] The State's case is unlikely to be able to be sustained, given the uncertainty of presenting her evidence by internet or other means. That being so, it would be most iniquitous to punish this applicant by keeping him in custody while they try to shore up their case.

[11] In the most unusual circumstances, I allow the application and would admit him to bail on the following strict bail conditions:

1. Bail in his own recognizance of $1000.
   
2. Two Court approved sureties in the sum of $1000 each in their own recognizance.
   
3. Applicant to live in Rifle Range with his grandfather until further order.
   
4. Report to Lautoka Police Station every Mondays and Thursdays between 6.00am and 6.00pm.
   
5. Observe curfew hours of 6.00pm to 6.00am every day until 3 August 2011.
   
6. Surrender his passport to the Registry of this Court.
   
7. Report to Court every time his case is called.
   
8. Not to reoffend while on bail.
   
9. Not to contact potential prosecution witnesses.
   
10. Not to leave Viti Levu.
    
11. Report next for mention in this Court on 23 August 2011.
    

Paul K. Madigan
JUDGE

At Lautoka
27 July 2011