State v Chand [2005] FJHC 277; HAC0032.2005 (2 December 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC0032 OF 2005L

THE STATE

v.

ASHWIN CHAND
s/o Jai Chand

Mr. S. Qica for the State
Accused in Person

Date of Hearing: 2 December 2005
Date of Ruling: 2 December 2005

RULING ON BAIL

The applicant applies for bail pending his trial in this Court.

Information has been laid wherein the accused is charged with the offence of murder which allegedly occurred on the 13^th October 2005 at Nadi.

The accused appeared before the Nadi Magistrates Court on the 17^th October 2005 at which time he was remanded to this Court on the 28^th October 2005.

In support of this application for bail, the applicant submits that he is not guilty of the offence with which he is charged and says that he needs his liberty to obtain the services of a lawyer to prove the fact that he is not guilty or more correctly properly answered the charge. He also says that he requires his liberty to the benefit of his family for the education of his sister and the care of his 57 year old father which he says has suffered a stroke. He says that he has been in custody since the time of his arrest for this offence.

The application for bail is opposed by the State who most relevantly submits the accused criminal record which shows that he has been convicted of offences dating back to 1998 and perhaps most relevantly has been convicted for 5 offences for breach of bail for which a bench warrant issued and for which he was ultimately arrested when charged with the offence which is now before the Court.

The Bail Act provides in section 3 that there is a presumption in favour of granting bail however that section also provides that the presumption in favour of the granting of bail is displaced where the person seeking bail has previously breached a bail undertaking or bail condition and accordingly there is no presumption in favour of the applicant by virtue of his convictions for breach of bail. Notwithstanding that the primary consideration on any bail application is as specified in section 17 of the Bail Act, the likelihood of the accused person appearing to answer the charge which is being made against him.

The factors or issues that the Court must consider on an application such as this are set forth in section 19 of the Bail Act and the factors to be taken into account include not only the likelihood of the accused attending to answer the charge but to facilitate the determination of that dominant issue one must consider the accused background, his community ties, his prior history and in particular any failure of the applicant to surrender or to observe bail conditions. The circumstances and the seriousness of the offence and the length of time he might be on remand awaiting trial and of course the need for him to obtain legal representation.

I am of the opinion that the legal representation issue can be solved whilst the accused is in custody. I consider the other issues that have been raised by the applicant that is the maintenance of his family, the education of his sister and the care of his father however the public interest and the protection of the community are factors that also must be taken into account but the prior history of the applicant is such that I cannot be satisfied that he would appear to answer the charge if granted bail and accordingly under the circumstances, bail is refused.

Matter is adjourned to the 16^th January 2006 and the accused is remanded to that date.

JOHN CONNORS
JUDGE

At Lautoka
2 December 2005