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

State v Dean [2021] FJHC 371; HAM027.2021 (8 December 2021)

IN THE HIGH COURT OF FIJI

AT LABASA

[CRIMINAL JURISDICTION]

CRIMINAL MISC NO. HAM 027 OF 2021

STATE

V

ZUHAIR DEAN

Counsel: Ms A Vavadakua for the Applicant

Mr J Rabuku for the Respondent

Date of Hearing: 18 November 2021

Date of Ruling: 8 December 2021

RULING

[1] The State seeks to revoke the respondent’s bail on the ground that he had breached a condition of his bail by interfering with a prosecution witness namely, Kishore Singh. The respondent is facing charges of arson, attempted murder and murder with his co-accused. The trial is pending. The respondent was released on bail pending trial to allow him to continue with his tertiary studies.

[2] The respondent denies the allegation of interference with the prosecution witnesp>

[3] The State rete relies upon the affidavit of Acting Inspector Kamlesh Chand. In his affidavit Inspector Chand has stated that he has recorded a statement from Kishore Singh alleging interference by the respondent and his father, Kamalu Dean. Inspector Chand has stated that the contact with the witness was made on 22 June 2021 at the Labasa Bus Stand and that the witness was told to change his police statement.

[4] The respondent relies upon the affidavits of his father, Kamalu Dean and his father’s friends, Moyuid Din and Raymond Ray. I affidavit, Kamalu Dean hean has stated that on the morning of 22 June 2021 he was at his taxi base at the RB Supermarket, main town, Labasa with his colleagues Moyuid Din and Raymond Ray. He s contacting Kishore Singh ingh at the Labasa Bus Stand as alleged. He has stated that the respondent was not with him at all on the morning of 22 June 2021. Kamalu Dean’s version is supported by Moyuid Din and Raymond Ray.

[5] On the basis of the affidavits, I am satisfied that the respondent’s bail condition was not to interfere with the prosecution witnesses. I am further satisfied that Kishore Singh is a material witness for the prosecution. The issue is whether the respondent had interfered with the prosecution witness by making contact with him at the Labasa Bus Station on 22 June 2021. Inspector Chand has not attached Kishore Singh’s statement with his affidavit. There is some indication that the alleged interference was witnessed by a third party by the name Vinod. However, it is not clear whether Vinod has given a statement to support Kishore Singh’s account of the alleged interference by the respondent and his father.

[6] I am mindful that the rules of evidence are relaxed in cases of bail determination, but when faced with two different accounts of the event, it is not possible to ascertain the truth from the hearsay evidence of a police officer. The respondent deniesallegallegation of interference. His denial is supported by his father’s affidavit. His f’s account is s is supported by his two friends.

[7] After police investigation, the respondent was char charged with the offence of breach of bail. The respondent is contesting harge. The truth of the chae charge is a matter for the Magistrates’ Court to decide. As far as this application is concerned, a charge itself is not evidence that the allegation of interference with a witness is true.

[8] Revocation of bail on the ground of interference with a witness based on the hearsay evidence of a police officer is an extreme step. I am not satisfied that the State has discharged the evidential burden that the respondent had interfered with a prosecution witness for me to take the extreme step of revoking the respondent’s bail.

[9] The State’s application is dismissed.

[10] The respondent seeks costs against the prosecution. This is not a case where the prosecution has acted unreasonably in making the application for revocation of bail. Costs refused.

. ...........................................

Hon. Mr Justice Daniel Goundar

Solicitors:

Office of the Director of Public Prosecutions for the State

Law Solutions for the Respondent