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State v Balagaan [2011] FJHC 431; HAM123.2011 (12 August 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
MISCELLANEOUS JURISDICTION

CRIMINAL MISC. NO. HAM 128 OF 2011

BETWEEN:

STATE
Applicant

AND:

MUSKAAN BALAGAAN
Respondent

Ms I. Whippy for the State
Ms Q. Vokanavanua (28th)
Mr. R. Chaudhry for the Respondent (11th)

Date of Hearing : 28 July, 11 August 2011
Date of Judgment: 12 August 2011

BAIL RULING

[1] By way of notice of motion dated 28 July 2011, and with accompanying affidavit, the applicant seeks revocation of bail granted to the respondent.

[2] The respondent is charged with another with possession of illicit drugs (cocaine) which she is said to have been in possession of at Nadi Airport en route to Australia on 26 January 2011. The drugs were in a solution which saturated clothes in a suitcase she had with her.

[3] Represented by counsel now appearing, the respondent was granted bail in the Nadi Magistrates' Court on the 11th February 2011 with Mr. Chaudhry as her surety and accommodation provider. One of the conditions of bail was that she not commit any other offence while on bail.

[4] On the 13th June 2011, the respondent made a statement to the police that Mr. Chaudhry had raped her and sexually abused her.

[5] As a result of this allegation, the matter was called in the High Court at Suva, on the 15th June 2011 with new counsel appearing (Legal Aid) and Mr. Justice Thurairaja renewed bail with different sureties (three), a new residential address (Rakiraki) and daily reporting conditions.

[6] On the 4th July 2011 the respondent sought to resile from the complaint by having yet another counsel, Mr. K. Marawai, write to the Criminal Investigation Department of the Police in Suva enclosing an affidavit of the respondent in which she deposed that "I now withdraw all those allegations and my complaint in totality". She also deposed in that affidavit that she had made the allegations in "anger and desperation" and "upon talking to certain people".

[7] On the 8th July 2011 she was charged pursuant to section 201(a) of the Crimes Decree for giving false information to a public servant. She appeared with Counsel Mr. Maraiwai in the Magistrates Court in Suva to answer the charge on the 5th August 2011 where she entered a plea of guilty. The matter was adjourned for sentence until 16th September next.

[8] The essence of the State's application for revocation of bail is founded on the breach of a condition of bail in that she has not been of good behaviour and committed an offence whilst on bail.

[9] The revocation of bail matter was first heard in this Court on the 28th July 2011 when Mr. Chaudhry, continuing to be instructed, was out of the country.

Being told that he would return to Fiji on February 10th, the Court adjourned the hearing until February 11th so that Mr. Chaudhry could be heard. As an interim precautionary matter the bail of the respondent was revoked pro tem.

[10] Mr. Chaudhry appeared on February 11th filing comprehensive written submissions and affidavits. He addressed the Court at some length in opposing the application. All of his material both written and oral have been well considered.

[11] The affidavit filed in response, rather than being a recital of facts as it should be, contains much by the way of the respondent's personal hypotheses on the intention of personae in the administration and in the Police, towards her and her counsel, Mr. Chaudhry.

[12] Be her statements true or not, and it is not for this Court to make findings of credibility, her personal deductions on the course of events following the false accusation of sexual abuse by her counsel have no place in an affidavit nor are they relevant to legal argument regarding her right to be admitted to bail.

[13] A large portion of the respondent's written submissions on the application is devoted to the reasons why she made a false complaint against Mr. Chaudry; but then that material becomes redundant after she pleaded guilty to making the false complaint in the Court below. While that material might well be of use in mitigation before the Magistrate, it is of no use to her in defending an application to revoke her bail, especially when she makes further serious and unsupported allegations against the Attorney General and against Police Officers.

[14] Whatever the reason be for her making the complaint, the point is she made it, then withdrew it, thereby lending a great deal of support to the postulation that the original complaint was false. No amount of submission regarding the complicity and motivation of the Attorney General and others can exonerate her from making an untrue complaint of rape.

[15] To that extent the State's submission that she re-offended while on bail is correct, and thereby she is in breach of her bail conditions as amended by Thurairaja J. That in itself would not necessarily be reason to revoke her bail which is an extreme course for any Court to make. Mr. Chaudhry submits that the technical breach of bail is disproportionate to the whole question of bail granted to his client and the breach can be corrected by imposing terms even stricter than those in place. That may be so, but the breach is yet one factor in the assessment of bail risk for this respondent, an assessment that this Court now takes upon itself, of its own motion.

[16] Two fundamental principals must first be elucidated:

(i) There is a fundamental right to bail and a presumption in favour of that right.

(ii) The whole question of bail must have regard to whether the bailee will report to Court to answer his/her case.

[17] With those principals as a foundation stone the Court then must have regard to the reasons for refusing bail as provided for in

section 19 of the Bail Act 2002. Section 19(1) of the Bail Act reads as follows:

"19(1) – An accused person must be granted bail unless in the opinion of the police officer, or the Court as the case may be –

(a) The accused person is unlikely to surrender to custody and appear in Court to answer the charges laid;

(b) The interests of the accused person will not be served through the granting of bail;

(c) Granting bail to the accused person would endanger the public interest or make the protection of the community more difficult."

[18] The Court is of the view that apart from breach of bail terms, there are serious misgivings about all three limbs of this legislative proviso.

[19] The respondent has already made two applications to vary her bail; once to be permitted to leave Fiji and return to her studies in Melbourne and another to vary her reporting condition from daily reporting to fortnightly. The first application was unacceptable and the second not yet ruled on, because this instant application intervened. The applications in themselves signal a dissatisfaction with her bail conditions and a desire to return to Melbourne.

[20] The respondent is an Indian national with absolutely no ties to Fiji. Apart from Mr. Chaudhry and his staff, she knows no-body here and there is nothing that would induce her to stay in Fiji. Her family live in India, her studies are in Melbourne.

[21] The case against the respondent is serious if proved. It involves possession and/or trafficking of an illicit drug through our major gateway airport at Nadi. The evidence against her is strong, despite the fact that Mr. Chaudhry tells me that admissions she made under caution are to be challenged. Should the case be proved against her, then she would be facing a term of imprisonment of perhaps 10 years or more.

[22] Severity of case against an accused with no ties to the country coupled with an application to return to Australia to study all cause concern to the Court and creates a real doubt as to whether she will surrender to custody.

[23] Gates J. (as he then was) said in Albertino Shankar & Another – HAM 014/03:

"The seriousness of the charge faced is particularly relevant to the possibility of the failure to answer bail. This is for the reason that the more serious the charge, the heavier the potential penalty hanging over the accused, the greater is the incentive for the accused to try to abscond particularly when facing a strong case and having associations with an overseas country. Experience suggests that certain crimes, such as drug importing or drug manufacture being the most obvious, present a high risk of such behaviour. The administration of justice can be made to look foolish in the eyes of the public and correspondingly devalued when absconding occurs after bail is granted."

These dicta could hardly be more apposite to the present case.

[24] Throughout her submissions, the respondent refers in detail to people who have been harassing her about the complaint against Mr. Chaudhry and its subsequent withdrawal. These people, whom the respondent opines are agents of the Attorney General, include various Police Officers of high seniority, staff from the Legal Practitioners' Unit, and other officers who mistreated her in CID headquarters. People going to her house, to the home of her elderly surety and even the Deputy Police Commissioner who the respondent says followed her from Court to prison and spoke to her twice during rest stops, asking why she had withdrawn the complaint.

It would therefore certainly be in the respondent's interest that she be kept free from such interference and that she be kept in custody where control could be kept over her "visitors".

[25] A drug trafficking case of this magnitude and with such novelty of method is certainly a matter of great public interest. Would the drugs have been successfully landed in Melbourne, the latent risk to the class of potential consumers there would have been enormous. The Fijian public would not like to see Fiji becoming a known transit point for international drug trafficking and to this end the evidence against the respondent and her co-accused must be aired. The trial is fixed to commence on September 26 next which is just over six weeks hence and to prevent the trial from collapsing on that date, the public interest would require that both accused be kept in custody.

[26] Mr. Chaudhry is concerned that should his client be held in custody, she would be unable to properly prepare for trial and give him adequate instructions. The Women's Prison is at Walu Bay, very near Central Suva and not nearly as inconvenient a venue for Mr. Chaudhry to visit as Rakiraki (her home while on bail).

The ruling of Mataitoga J. in Filimoni Vetau – HAM 07/07 rings true:

"On a claim that an accused person will be disadvantaged in consulting legal counsel if bail is refused; there is no hindrance to accused's counsel visiting the accused in prison."

[27] In consideration of a breach of bail condition, the interests of the accused, the interests of the community and the likelihood of surrender to custody, the Court is firmly of the view that it would be inappropriate to re-admit the respondent to bail and therefore the application by the State to revoke bail is granted.

[28] The respondent has 30 days to appeal this ruling to the Fiji Court of Appeal.

Paul K. Madigan
JUDGE
At Lautoka
12 August 2011