State v Kapoor [1995] FJHC 180; Hac0006.1994 (10 February 1995)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 0006/94
MISC. NO. HAM0001/95

THE STATE

V

VIJAY KAPOOR
and
KAILESH CHANDRA

Counsel: Mr. Tuiqereqere for State
Mr. Nagin for Kapoor
Mr. Raza for Chandra

Hearing: 7th February, 1995

Decision: 10th February, 1995

ORAL RESERVED DECISION OF PAIN J.
ON APPLICATION FOR BAIL

The two accused are jointly charged with murder. By application dated and filed on 18th January 1995 they have applied for bail pending the hearing of the charge.

Three earlier applications for bail have been heard and refused by me. I confirm the matters of principle relating to the grant of bail in murder cases and the consideration of the prosecution evidence in this case as set out in my earlier decisions of 24th June 1994, 28th September 1994 and 21st October 1994. As a general rule bail is sparingly granted in murder cases and exceptional circumstances must be shown for this to be done. Such factors as the nature of the alleged murder, the particular evidence against an accused, the strength of the prosecution case and delay in the hearing of the charge are likely to be relevant.

In this case I have already held that the facts do not disclose exceptional circumstances. The evidence in the depositions raises a clear prima facie case. There is no evidence of a premeditated plan to kill but the killing occurred in the course of an attack upon the victim in which a knife was used to inflict fatal wounds.

However the delay in proceeding to trial is a matter of increasing concern. The two accused have been in custody since their respective arrests on 24th April 1994 (Kapoor) and 27th May 1994 (Chandra). The Preliminary Inquiry was held in the Magistrates Court on 24th June 1994 and the accused were committed to this Court for trial. A fixture was made for the 26th September 1994 but the trial was unable to proceed because the accused Kapoor changed his counsel. Subsequently a further fixture was made for the 7th February 1995. The case could not proceed on that day as an earlier trial (already well over the time estimate) is still proceeding and is now unlikely to be completed until some time in April. Accordingly the trial of these accused cannot proceed during this present session. I am presiding over the part heard trial and the other Judge in the criminal jurisdiction has fixtures made for the current session. The case must therefore be adjourned until the next session for which fixtures will be made on the 11th April 1995. The trial is estimated to take 4 to 6 weeks and reasonable notice must be given to arrange the attendance of witnesses including an expert from overseas. At best it could be expected to commence at the end of April or early in May. It could be later.

On this basis the accused will have been in custody for periods in excess of 12 months before trial.

I agree with the comments of Fatiaki J. in State v Wakana & Ors. (Crim. Case. 17 of 1989, decision 19th September 1989). A judicial system should not allow a person to remain remanded in custody for 12 months or more without trial. Moreover Section 6 (5) of the Constitution provides that a person detained after arrest for a criminal offence who is not tried within a reasonable time shall be released on such conditions as are reasonably necessary to ensure he appears for trial.

State v Taroga and Rosadriwa (Crim. Case No. l5 of 1994 decision of Kepa J., 24th January 1995) is a recent case where bail has been granted to accused on murder charges where the delay will exceed 12 months.

In my earlier decision of 21st October, 1994 I concluded that there were no exceptional circumstances when the trial in this case was to commence on 7th February 1995. The further adjournment for at least another 3 months makes the delay so inordinate as to be exceptional. The two accused have no previous convictions. There is no suggestion that they present any danger to the community or are likely to abscond re-offend or interfere with witnesses. It is proper that bail should now be granted, but with stringent conditions.

Accordingly I make the following orders:

1. Both accused are granted bail on the following terms:
   

(a) To enter into a bond for the sum of $10,000 with two sureties for $10,000 each;

(b) To report to the Police at Valelevu Police Station (Kapoor) and Samabula Police Station (Chandra) on Mondays, Wednesdays and Saturdays between 7am and 6pm.;

(c) To surrender to the Court all passports and other travel documents held and not to apply for any further such documents.

(d) To reside permanently and continuously with their respective fathers at Wainivula Road, 42 miles (Kapoor) and Lot 27, Sarju Prasad Road, Caubati (Chandra) and to remain in the premises each night from 10 pm until 7 am the following day.

(e) Not to directly or indirectly communicate in any way with any prosecution witness.

2. Leave is reserved to the Director of Public Prosecutions and to both accused to apply for cancellation of bail or variation of any of the terms thereof.
   
3. The case is adjourned to the commencement of the next sessions on 11th April 1995.
   

JUSTICE D.B. PAIN