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Naushad v State [2022] FJSC 53; CAV 11 of 2022 (30 November 2022)

IN THE SUPREME COURT OF FIJI
[ORIGINAL JURISDICTION]

Miscellaneous Case No. CAV 11 of 2022
IN THE MATTER of an Application for Review of Bail Ruling in the case of Mohammed Naushad v State HAM 126/2022 in the Lautoka High Court of Fiji pursuant to section 30(5) of the Bail Act 2002.

BETWEEN:

MOHAMMED NAUSHAD
Applicant

AND:

THE STATE
Respondent

Miscellaneous Case No. CAV 12 of 2022
IN THE MATTER of an Application for Review of Bail Ruling in the case of Nazreen Nisha Khan v State HAM 127/2022 in the Lautoka High Court of Fiji pursuant to section 30(5) of the Bail Act 2002.

BETWEEN:

NAZREEN NISHA KHAN
Applicant

AND:

THE STATE
Respondent

Coram : Hon. Mr. Justice Anthony Gates, Judge of the Supreme Court

Counsel : Mr. Iqbal Khan for the Applicants
Ms. Sadaf Shameem for the Respondent

Date of Hearing : 21^st November 2022
Date of Judgment : 30^th November 2022

RULING ON REVIEW APPLICATIONS
BAIL PENDING TRIAL

Introduction

[1] The two applicants seek from the Supreme Court bail pending trial. Both had been refused bail by the Lautoka High Court on the 27^th September 2022.

[2] On the 20^th November 2022, separate notices of motion were lodged with the Supreme Court seeking review of the High Court refusal. The motions are stated to be brought pursuant to section 30 (5) of the Bail Act, section 13(1) (h) of the Constitution and the inherent jurisdiction of Supreme Court.

[3] Each applicant swore an affidavit in support and filed the same with the motions. The matter was first mentioned before the Hon. President of the Court, Kumar CJ, on 3^rd November 2022 when orders were made for the State to file an affidavit in opposition to each and also a submission. Leave was given to the applicants to file their submissions with a right of reply to the State. The matter came before me for mention on the 11^th of November 2022. A hearing date was fixed in consultation with the parties for the 21^st of November 2022.

[4] At the hearing, both counsel indicated that they had nothing further to add to the papers already filed.

[5] After their arrest on the 9^th of July 2022 both applicants were jointly charged for murder contrary to section 237, read with section 45 of the Crimes Act. The applicant Mohammed Naushad, was also charged with one count of criminal intimidation contrary to section 375 (1) (a) (i) (iv). On the 8^th of September 2022 an information was filed by the Director of Public Prosecutions containing the above charges. Both applicants entered pleas of not guilty.

[6] The applicants are husband and wife. The complainant in count 2 [Criminal Intimidation] Farnaaz Nahid Nisha, is the elder of their two daughters. She was aged 17 at the time and her sister who is now 16 years old is staying with the mother’s brother in law in Saweni, Lautoka.

[7] The applicants knew that their elder daughter Farnaaz had a romantic relationship with the victim, Samuel Jeet Singh [Jeet]. They strongly disapproved of it. Originally Farnaaz and Jeet had attended the same school. According to the daughter, her father had already made threats to Jeet that if there were any complaints “he will chop him”. Even her mother had threatened her that if she catches the daughter with Jeet “she will chop me”.

[8] On the day in question at 1am, Jeet visited Farnaaz’s house. She said he wanted assistance on his English project, and he was missing her also. She said they first attended to the project. Later they laid on the bed together playing games on Jeet’s phone. Then the father checked on her room, opened the door, and found them together.

[9] She said her father alerted the mother. The daughter and Jeet were asked to take off their clothes so that he could take pictures of them naked. She said this was done to show they were having sex. The father held a dagger and threatened to chop them if they moved.

[10] Her father instructed the mother to bring some ropes and cables and to tie up Jeet’s legs and hands. She said her father told Jeet he had been looking for him for some time so that he could kill him. Jeet was taken to the porch to sit on a chair. Meanwhile Farnaaz was taken to her mother’s bedroom. The mother then took pictures of her fully naked. Later Farnaaz escaped to her own room and from there called the police, and then a classmate.

[11] She heard her father telling Jeet to drink, and asking the mother to bring the chemical. Shortly afterwards she heard Jeet “screaming, shouting and struggling” and she noticed his voice had changed. She managed to get out and saw Jeet on the floor and, she says, “dying”. The father tried to seize hold of her, but she ran into the jungle. Jeet’s body was later found in a nearby drain.

In the High Court.

[12] The learned Judge referred to the evidence against the applicant as taken from Corporal Vunisa’s affidavit:

“the applicant tied up the deceased’s hands and legs. The applicant and his wife had then forced the deceased to drink chemicals namely Gluphosinate Ammonium and Glyphosate which are herbicides, which led to his death. It is deposed that these chemical substances were found in the stomach content of the deceased-a copy of the Fiji Police Forensic Chemistry Laboratory report has been attached to the affidavit.”

[13] The deponent said that in view of the hostile attitude of the father towards his daughter Farnaaz, there was a high likelihood that if granted bail, the applicant would interfere with her. He referred to there being strong evidence of the applicants’ joint involvement. The father was said to be the main perpetrator in the crime. He had given instructions on what was to be done to the deceased, which instructions the wife had willingly executed.

[14] The Judge referred to the fact that this was a domestic violence offence. The presumption in favour of bail was therefore displaced [section 3(4) Bail Act, as amended]. The Court was particularly mindful of the safety of this “specially affected person”, in this case the complainant in the criminal intimidation charge [count 2]. It was to be borne in mind that Farnaaz was a crucial witness for the prosecution. Although she was to remain with a foster family, and that the exact residence has not been revealed by the State, she continued schooling at Nadroga Arya College.

[15] Besides noting that this was a very serious offence carrying mandatory life imprisonment as penalty, the main ground for refusal of bail was set out in the judge’s ruling [P6 para 34-35:]

“the applicant is the father of the complainant and as such is a person in authority. The complainant has turned 18 merely a month ago. Therefore, this court is of the opinion that if granted bail, there is a high likelihood that the applicant will interfere with his daughter, Farnaaz Nahid Nisha, who is said to be the most vital witness for the prosecution in this matter. This threat would not be diminished even if the applicant is ordered to reside at Saweni, Lautoka, with his brother-in-law Sharuf Khan.”

Application to the Supreme Court.

[16] The affidavits of the applicants do not explain why review is sought from this court, and not from the Court of Appeal. No letter from the Court of Appeal registry is exhibited with the affidavits confirming that an application had been filed with the Court of Appeal registry or that the court would be unable to hear the review.

[17] In having to consider jurisdiction in this regard in Daya Ram –v- The State CAV 10/2022: 3^rd of October 2022, I had concluded at para 38 that jurisdiction did exist to hear a review after a by-passing of the Court of Appeal, “unless it fails on grounds of being vexatious or lacking in proper justification [section 30 (7 Bail Act].” I will return to this issue further on.

[18] What is the applicants’ case for bail? Each deposes that they are unable to give proper instructions from prison to their solicitor. In particular they are restricted from demonstrating the actions they took at the scene and restricted from visiting their defence witnesses. In addition, they state they are prepared to move away from Maro and the Sigatoka District and to relocate to Saweni, Lautoka. This would be over a 100 km away, they say, from the vulnerable witness. Both state that the prosecution case against them is not a strong one.

[19] That is all that is said on the strength of the case against them. Nothing is said, by either side on whether the disclosures included caution interviews or whether they elected to remain silent. Nothing is said as to whether anyone else at the residence was responsible for the death of the victim. More importantly, nothing is said regarding the serious allegation of threats to kill the crucial witness, their own daughter Farnaaz.

[20] In the trial, the applicants may stand upon their rights and remain silent. However, in a bail application, the court is concerned with the strength of the prosecution case and with assessing risks that might endanger a “specially affected person,” a child witness or indeed any witness.

[21] The issue has been neatly put by Aluthge J quoted in another bail matter, in Daya Ram [supra]

“The vital questions to be asked in deciding bail is whether there is a real likelihood of accused interfering with the witnesses and whether the safety of a specially affected person (complainant) is likely to be put at risk if bail is granted, even if strict bail conditions are put in place.”

[22] In a bail application before trial, any allegations made must be approached on the basis that what has been stated has yet to be tested in court, and witnesses are yet to be subjected to cross examination. Nevertheless risk assessment has to be undertaken on this material.

[23] Additional evidence was brought to the courts attention in the form of forensic analysis of the victim’s stomach contents with certain bottles at the residence. This confirmed that the victim had imbibed herbicides. No post mortem was exhibited.

Determination

[24] There is much more freedom available to make full preparation of one’s defence case if an accused person is out on bail. That much is obvious. However, much preparation can be undertaken from prison. It will not be possible to accompany one’s solicitor, inspecting premises, demonstrating what happened, where and when, and going around speaking to witnesses or potential witnesses. But a trial will not miscarry because an accused person has not been granted bail in order to make such preparations. Solicitors can still receive, inside the prisons, detailed instructions on all of these matters.

[25] Daya Rama is not an authority for permitting a premature bail application straight up to the Supreme Court from the High Court. Bail was granted in that case since a trial date had already been set and was very near at hand. The court decided to make orders for bail whilst stating that the application should first have been made to the Court of Appeal. The tier structure of the courts is to be respected though in exceptional circumstances there existed a power in the Supreme Court to review bail without a prior hearing in the Court of Appeal. In Daya Ram, the applicant should have applied again to the High Court because of the change of circumstances and the removal of objection to bail by the State. There was no need to proceed for a review of bail.

[26] In the instant case there is no change in circumstances, no inability of the Court of Appeal to hear the review urgently, and no imminent trial date. These applications lack proper justification for approaching the Supreme Court and are to be dismissed for those reasons alone.

Additional Risks

[27] The prosecution case is that threats to kill Jeet were made prior to the murder itself. Those threats were followed through and Jeet was killed. Threats were made to Farnaaz, their own daughter, the subject of count 2 criminal intimidation. At this stage, there is a real risk that Farnaaz would be interfered with or prevented from giving evidence in accordance with her statements to the police.

[28] But in the circumstances of this case, there are risks to Farnaaz herself, either because of her conduct with Jeet, or because she remains a crucial witness against them. Her removal would either weaken the case or cause it to fail completely.

[29] Farnaaz could easily be traced and found. Her school, which she still attends, is known to the applicants. It would not be a difficult matter to find out from where she travelled to attend that school, and to which home she returned daily. She is not in witness protection.

[30] The risks to this child witness are too great and cannot be cured by a mere change of residence for the applicants.

[31] On its merits, this review application fails and must be refused.

Hon. Mr. Justice Anthony Gates
Judge of the Supreme Court

Solicitors:
Messrs Iqbal Khan and Associates for the Applicant
Office of the Director of Public Prosecutions for the Respondent