IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No: HAC0038 of 2004S

STATE

v.

SUKHENDRA PRASAD

Hearing: 17th June 2005
Ruling: 20th June 2005

Counsel: Mr. D. Toganivalu for State
Ms B. Malimali for Accused

Bail Ruling

This is the most recent of a number of bail applications made by the Applicant. He is charged with the murder of his wife and has been in remand since the 9th of September 2004. Previous bail applications have been refused on the grounds that the alleged offence is serious, he is kept in the Sacau Dormitory or the infirmary which do not constitute inhumane or degrading conditions of custody, there is a real risk of interference with two prosecution witnesses who are his (minor) children, and that his medical condition of gastritis, is treatable in custody. I have previously heard the evidence of the Officer-in-Charge of the Korovou Prison, in respect of the conditions of the Applicant’s custody.

This application, which is the first made by counsel on the Applicant’s behalf, raises no new grounds. However counsel says that the Applicant is now kept in a cell block but should be moved to the infirmary. She agrees that the Applicant himself refused to be shifted to the infirmary, but suggests that the Prisons Department should simply move him by force.

It would be most unusual for a court to give any such directives to the Commissioner of Prisons. Presumably, the question of who should be in the infirmary, is a matter resolved on medical advice. The Bail Act permits the courts to consider the conditions of custody in dealing with bail applications, but such conditions only constitute a factor to be balanced with the other factors listed in section 19 of the Bail Act. It is only if these conditions are in the opinion of the court, inhumane and degrading, that bail must be granted. If the Commissioner of Prisons continues to place prisoners in conditions which have been declared inhumane and degrading, that is a matter for him and his employer. He is no doubt aware, that the direct consequence of his actions, will be the inevitable grant of bail.

In this case however, the Applicant has apparently chosen not be housed in the Sacau Dormitory or the infirmary. His reasons are unclear, but the State suggests that he has made the decision in the hope that it will strengthen his bail application. Where he is housed, and under which conditions, is a matter for the Prisons Authorities. He has been given the option to move to the infirmary, but he has refused. Whether he can refuse, in a prison governed by strict rules and regulations, and by a disciplined service, is not a matter on which I am competent to rule. I am however satisfied, that every effort has been made to accommodate him humanely, that his diet is provided according to his medical condition, and that the conditions of custody do not justify his release on bail.

Further, the key witness in this case, Christal Crishneel Kumar, who is 12 years old, is the Applicant’s daughter. She is particularly vulnerable to influence and interference, and the fact that she now lives in another town does not necessarily prevent any interference.

Lastly, this trial is now fixed for hearing for next month. Although counsel has indicated her lack of availability in July, she has not confirmed that she will represent him, because his application for legal aid is still being assessed. Certainly, the trial will commence with 3 months.

For these reasons, I refuse bail.

Nazhat Shameem
Judge

At Suva
20th June 2005