Singh v State [1997] FJHC 268; HAM0006.1997 (24 March 1997)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

MISC. APPLN. NO. 0006 OF 1997

Between

Kuldip Singh
Applicant

And

The State
Respondent

Counsel: Mr. Raza for applicant
Mr. Auld for respondent

Hearing: 14th and 18th March 1997

Decision: 24th March 1997

ORAL RESERVED DECISION OF PAIN J
ON APPLICATION FOR BAIL

The applicant is charged with murder. This is his third Application for bail, prior applications having been refused on 18th July 1996 and 24th January 1997.

The applicant is alleged to have murdered Mohini Lata on the 17th January 1996 and he has been in custody since that date. The preliminary inquiry was held on 11th April 1996. The file was received in the High Court on 20th August 1996. The information was filed by the Director of Public Prosecutions on 10th September 1996. The trial is now set for hearing in this Court on 13th May 1997.

The applicant has now been held in custody for 14 months. If not granted bail he will have been in custody for 16 months when the trial begins.

The substantial ground raised by counsel for the applicant is the lengthy period for which the applicant will have been held in custody prior to trial. Counsel for the State concedes that "the delay has been fairly lengthy" but it is now finite and bail should not be granted for the remaining period until trial.

It is not necessary for me to review the principles applied by the Court for granting bail in murder cases. I apply the principles I have recited in such earlier decisions as Kalesh Chandra v The State (No.1) Misc. Case No.5 of 1994 and Joeli Manuavi v The State (Misc. Case No. 11 of 1995).

Bail is only sparingly granted in murder cases but the Court must have regard to Section 6 (5) of the Constitution of Fiji. This provides that a person who is arrested and detained shall be released if he is not tried within a reasonable time. What is a reasonable time depends upon all the circumstances of a particular case including, of course, the fact that the charge is murder. There can be no fixed period for reasonable delay and in cases where bail has been granted the actual or expected delay until trial has been substantial. This can be seen from several decisions of this Court on bail in murder cases of which I am aware:

The State v Atunaisa Wakana & ors (Cr. Case No.17 of 1989. Decision 19th September 1989). The accused were granted bail after 13 months in custody on a charge of murder "of a highly tentative nature". (After the filing of an amended information for manslaughter and two further adjournments a nolle prosequi was entered on 5th February 1990.)

The State v Iowane Taroga and Tevita Rosadriwa (Cr. Case No.15 of 1994. Decision 24th January 1995). The accused were granted bail after being in custody for 12 months with an anticipated further delay of up to 12 months before trial. (The trial actually started on 9th July 1995).

The State v Vijay Kapoor and Kailesh Chandra No.4 (Misc. Appln. No.1 of 1995. Decision 10th February 1995.) The accused were granted bail after having been in custody for 10 months. However no trial date could then be fixed and the earliest possible date would be at least a further 4 months away and probably longer (In fact, the trial did not commence for a further 14 months.)

Davendra Singh v The State (Misc. Action No. 9 of 1995. Decision 22nd November 1995). Bail was granted after a period of 11 months in custody but with a total prospective delay before trial expected to be at least 18 months. In fact the trial has still not been heard.

Ashok Chand v The State (Misc. Case No.12 of 1995. Decision 7th December 1995). Bail was refused after a period of 12 months in custody because an early hearing was anticipated. It was subsequently granted on 20/2/96 (Misc. Appln. No. 6 of 1996) as the committal file had not been forwarded to this Court by the Magistrates Court as directed. Substantial further delay was then expected (The file was subsequently received ond 20th August 1996 but has been returned because the committal was defective. The case is still not ready for trial in this Court).

Tevita Rogorogo v The State (Misc. Action No. 10 of 1996. Decision 3rd June 1996). The accused was granted bail after being in custody for 16 1/2 months and this period was realistically expected to extend to at least 2 years before trial. The trial has still not been heard.

The State v Felix Vusonitokalau (Crime Case No. 5 of 1996. Decision 2 September 1996). Bail was granted where the accused had been in custody for 1 year 9 months and the trial was due to start in 10 days.

In the present case the total time in custody before the trial is to commence will be 16 months. That is an appreciable period. However it is not a delay that is so inordinate that, in itself, it would automatically entitle an accused person to bail. On the basis of pevious cases and having regard to the functioning of the law enforcement and justice systems in Fiji with their limited resources, some, and at times lengthy, delays can be expected.

In each case the delay must be considered against all the facts and circumstances of the particular case. In this case there are some particular features.

At the hearing of the last application for bail the matter of delay was the significant issue before the Court. The prosecution indicated that it was ready to proceed to trial. The learned judge offered an immediate fixture which counsel for the accused declined to accept because of other commitments. The learned judge said that in that situation "the question of delay evaporates". At a subsequent call-over, the prosecutor advised that the State was not ready for trial as the pathologist had left Fiji and could not be contacted. The learned judge noted that "the Court was not told the full facts", sympathised with the defence and invited counsel to file this further application for bail.

The situation now is that the pathologist is known to be in the Phillipines. The prosecutor intends to call him as a witness but has not yet been able to contact him. He cannot be compelled to attend the trial. In these circumstances there must be considerable doubt as to whether he will be available as a witness. The absence of expert evidence as to the cause of death would not be fatal to the prosecution. However it could significantly weaken the case in respect of the charge of murder.

In the particular circumstances of this case there is little likelihood of the applicant being able to interfere with prosecution witnesses and this has not been suggested. Nor, apart from his alleged commission of the present offence, is there anything to suggest that the applicant would present a danger to the public if granted bail. The affidavit from a law clerk giving details of the applicant is inadmissible hearsay. However an affidavit by the applicant filed in respect of an earlier application for bail does show that he is a young married man in a settled and stable situation with family support. It is unlikely that he would abscond.

Having regard to the present delay and the particular circumstances and features of the case I am satisfied that bail should now be granted. This will be on appropriate terms.

ORDER

Accordingly I order that the applicant be granted bail on following terms:

1) On his own recognisance for the sum of $5,000 with two sureties of $5,000 each.

2) To report to the Police at Nasinu Police Post, on Tuesdays and Fridays between 7 a.m. and 6 p.m.

3) To surrender to the Court all passports and other travel documents (if any) and not to apply for any such documents.

4) To reside permanently and continuously with his father Daya Singh at Narere, 8 miles, Nasinu.

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

6) To abstain from consumption of alcoholic liquor, during the continuance of bail.

Justice D. B. Pain