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State v Lal [2009] FJMC 9; Criminal Case 340.2009 (3 July 2009)

IN THE FIRST CLASS OF MAGISTRATES COURT
AT NAUSORI
FIJI ISLANDS

Criminal Case No.340 of 2009

STATE

V

1. BHARAT LAL
2. JAYANT LAL
3. MOREEN LATA PRAKASH

Before: C. LAKSHMAN
Resident Magistrate

3rd July 2009

For Prosecution: Inspector Ali
All 3 Accused: Present
For Accused No.1: Mr. Sunil Kumar
For Accused No. 2: Nil
For Accused No. 3: Mr. Sushil Sharma

Ruling on Bail Application

All the three accused are charged for murder and are applying for bail. The three Accused are alleged to have murdered Shalesh Prakash between the 20th day and the 21st day of June 2009. The victim is the husband of the 3rd accused, Moreen Lata Prakash.

The application for bail is opposed by the State. The 1st and the 3rd accused were represented while the 2nd accused was unrepresented at the time initial bail application was made.

In considering an application for bail pursuant to the Bail Act, the Court is required to consider the matters that arise under Section 17 of that Act.

The primary consideration being the likelihood of the accused person appearing to answer the charges laid against him or her.

Murder is one of the most heinous crimes. Upon conviction it carries an immediate life sentence. However, the court is mindful that the seriousness of the charge is not sufficient on its own to justify the refusal of bail.

For the 1st and the 3rd accused submissions were made by their respective counsels. The 2nd accused was given the opportunity to submit an application for bail, but he told the Court that he did not wish to state anything or add anything to the submissions made additional submission by counsel.

Applicable Law

The relevant law for considering bail applications is set out in the Bail Act 2002. Section 3 of the Bail Act entitles an accused person to bail unless it is not in the interest of justice to do so.

Section 17(1) and (2) of the Bail Act makes provision for the factors that a Court may consider in deciding whether to grant bail to an accused person. It can be briefly summarised as follows:

• the time the accused person will spend in custody before the trial is held if bail is not granted;

• the likelihood of the accused person appearing in court to answer the charges laid against him or her;

If the court refuses bail, it must provide its reasons addressing the three issues referred to in Section 18 (1) of the Bail Act. In the opinion of this court factors that must be considered in undertaking these assessments include the following:

• the likelihood of the accused persons surrendering to custody and appearing in court;

• interests of the accused persons;

• public interest and the need to protect the community;

Bail Determination

I have carefully considered the submissions made for bail in this case or the three accused. I have also considered the applicable law which I have set out, above.

Having considered the law and having heard the submissions for the accused and prosecution the court does not feel that on the balance of probabilities bail should be granted to any of the accused.

In the circumstances therefore, I think it is appropriate that bail be refused for all the accused for the reasons I now outline.

Likelihood of accused person surrendering to custody and appearing in Court

The court notes that all the accused are first offenders. No sureties were tendered for the 1st and the 2nd accused. No substantive guarantees were given to the Court by the accused or anyone else on their behalf that they will ensure that the accused person will attend court to answer the charges laid. A crime of such seriousness carrying a jail sentence of life imprisonment must always place some doubt as to the likelihood of the accused appearing to answer the charge.

For the 1st and the 2nd accused persons background and community ties were not elaborated on. The Court was not given details of their residence, employment and family situation.

For the 3rd accused her counsel stated residence and family situation, but not on her employment status, however the counsel for the 3rd accused told the Court that she needed to be bailed to clear her mortgage. No submission was made on what she was doing or how she was going to clear her mortgage if she was bailed. The counsel for the 3rd accused submitted that the brother of the 3rd accused who is a businessman in Sigatoka will be her surety. He further submitted that the 3rd accused will reside in Bilalevu, Sigatoka. No details of the surety (name of surety, type of business the surety was engaged in, whether he was present in Court, and whether the surety had been explained his responsibilities as a surety and he understood and agreed to take on the responsibility of the surety) was submitted. These were some of the issues the Court expected the Counsel for the 3rd accused to submit in the bail application. The Court cannot be expected to make assumptions and rely on truncated submissions to draw conclusions.

Public interests and interest of the community

With regards to the third accused, an issue which this court has given due consideration in this case is that the wife of the victim is one of the three accused with two other male persons. The prosecution has pointed out that there may be tension if she is released. While the counsel for the 3rd accused has stated that the families have performed certain rituals together and there was no tension. No matter what one may say there is bound to be tension and ill-will where a wife of the victim is alleged for murder. She will surely be treated with contempt by her late husband’s family. It is in the best interest of the 3rd accused that emotions subsided.

Interests of the accused person

The court has considered the interest of the accused and the need for them to prepare legal defence. The 1st and the 3rd accused already have lawyers and are in contact with them. The 2nd accused has made known to the court that his family is arranging a lawyer for him. The court notes that the accused will have legal representation and arrangements are being made for the one who does not have one.

The accused have been in custody for a short time now and with the Courts operational it should not be long before their case would be heard.

While the court is concerned for the welfare of the two children of the 3rd accused it feels that family members of the victim and the third accused can provide for children or arrangements can be made with appropriate authorities if family members refuse to take on the responsibility.

After considering all factors the court in the interest of justice refuses bail.

Chaitanya Lakshman
Resident Magistrate

3/07/09