IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

IN THE MATTER of an application for bail pending trial.

Crim. Case No. 401/11-403/11
M. C. Lautoka

BETWEEN:

SANTOK SINGH
Applicant

AND:

STATE
Respondent

COUNSEL
Mr. F Koya - For Applicant-Accused
Ms. S. Kiran - For Respondent

JUDGMENT

1.	The accused-applicant (the applicant), Santok Singh, is seeking to review the decision dated 12 July 2011 of the Learned Magistrate, Lautoka refusing bail under Section 30 (3) of the Bail Act, 2002.

2.	The applicant was produced before the learned Magistrate on or about 07 July 2011 upon charges of obtaining property by deception, offences punishable under Section 317 (1) of the Crimes Decree No 44 of 2009 in the three case mentioned above.

3.	The application of the applicant for bail pending trial was refused by the learned Magistrate holding that the prosecution had rebutted the presumption in favour of the accused for bail under Section 3 (3) of the Bail Act 2003. 

4.	The learned Magistrate obviously, as borne-out by the record, was quite conscious of all relevant provisions of the Bail Act including those of Sections 3(1), 3(3), 17(2), 18 (1) and 19. He, nevertheless, fell into error when he concluded that the accused would not surrender to court or appear for trial on the basis of his observations that:

'The charges laid against the accused [were] indeed serious. If convicted, the accused [was] facing immediate custodial sentence[s]. Hence[,] there is a strong incentive for the accused to abscond bail'

without correctly considering other factors set out in Section 19 (2) (a) and (b) of the Act.

5.	A perusal of the ruling of the learned Magistrate shows that it lacks any sufficient reasoning as to the likelihood of absconding trial apart from the observation that the date of offence is '2010' and 'the accused had been evading police arrest and finally he was arrested in 2011'.

6.	The learned Magistrate himself was vague and imprecise by simply relying only on years without specifying the dates in order to measure the exact length of 'evading', if any, by the applicant. In any event, any time gap between the date of offence and the date of arrest, without any material to show that it was caused by the conduct of an accused-person, is not a safe criterion to consider in an application for bail.

7.	It appears, therefore, that the learned Magistrate has failed to assess the criteria objectively and come to a finding. Instead, the learned Magistrate has given weight only to the criterion of a possible conviction and ensuing jail term in deciding the issue of bail. Such an approach, in my view, is not permissible to deal with an application for bail in light of the express provisions of the Bail Act.

8.	Learned state counsel relied on an affidavit of Detective Constable 2867 Harif to resist the application for bail before this court. DC Harif had deposed to that the applicant had not surrendered even though Police had looked for him from 25 May 2011.

9.	At the hearing before me, the learned state counsel, accordingly, relied on the fact that the applicant did not volunteer to surrender himself until 07 July 2011. The affidavit of D.C.Harif shows that the Police had agreed to call him on 06 July 2011 in relation to the alleged offences, when the applicant was contacted on 01 July 2011. However, there is no indication that the police did, in fact, contact the applicant on 06 July 2011 or on any other date earlier. Instead, it appears that he was arrested on 07 July 2011 straightway without making any further contact, which police, indeed, is empowered to do.

10.	 Therefore there is no evidence before this court to confirm that the applicant had been evading arrest so as to infer that he would abscond the trial, if bail is granted.

11.	 In the circumstances, I hold that the refusal of bail by the learned is without any factual or legal basis. 

12.	 Learned state counsel has failed to submit any material before this court that is capable of rebutting the right of the accused to be released on bail or presumption that is in his favour, as required by Section 18 (1) of the Bail Act. 

13.	 Accordingly, the applicant is admitted to bail on conditions that may be imposed in a further order.

Priyantha Nawana
Judge

High Court
Lautoka
05 August 2011.