Kumar v The State [2005] FJHC 59; HAM0008D.2005S (23 March 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

Criminal Misc. Case No: HAM0008 of 2005S

Between:

RAJESH KUMAR
s/o Chaman Lal
Applicant

And:

THE STATE
Respondent

Hearing: 22nd March 2005
Ruling: 23rd March 2005

Counsel: Mr. M. Raza for Applicant
Mr. D. Toganivalu for State

RULING

The Applicant awaits trial on thirty-three fraud-related counts in the High Court. He applies for bail pending trial. The Information filed by the Director of Public Prosecutions, alleges offences of forgery, uttering forged documents, obtaining on forged document and larceny by servant. The total amount allegedly stolen is approximately $121,000. The alleged victim is the Charan Jeet Group of Companies.

The Applicant has been in custody since the 31st of December 2004. He asked for bail on the 4th of January 2005. Bail was refused by the learned Magistrate on the grounds that the offences were serious, the Applicant was a foreign national with a high risk of absconding and with no fixed local address.

On the 13th of January 2005, the Applicant asked for bail again. Unusually, although the prosecution was represented by counsel for the DPP, the alleged victim was represented by Mr. Nagin and Mr. Lala. The court gave them leave to represent the victim but no argument was heard on the issue. On the 2nd of February, Mr. Raza who appeared for the first time as defence counsel, objected to the appearance of counsel for the victim, but he was told that leave had already been granted.

The bail application was eventually heard on the 3rd of February 2005. The Applicant produced a witness, one Aman Prasad, who offered a fixed address for the Applicant. He gave evidence on oath saying that he was a bakery manager, that his brother was also remanded at Suva Prison, that he had met the Applicant 4 times altogether and that he was prepared to offer the Applicant a place to stay and surety of $20,000. He earns $180 per week.

The prosecution continued to object to bail, saying that the Applicant was a flight risk, and that the surety offered was not acceptable to the State.

Bail was refused on the grounds that the Applicant had no fixed address in Fiji, he is an Indian national, he is charged with serious offences, that he left Fiji on the 9th of October 2004 but that his departure is not recorded in the immigration records and that the surety offered was not suitable.

He now applies for bail in the High Court on substantially the same grounds. They are set out in the affidavit of Rajesh Kumar (the Applicant), Aman Prasad and Hemant Kumar. The latter is a Senior Legal Executive at Messrs. Mehboob Raza and Associates and his affidavit states that the Applicant is held in remand in conditions which are inhumane and degrading.

The State continues to oppose bail on the same grounds put forward in the Magistrates’ Court. State counsel filed the affidavit of Corporal Maha Ram, who also gave sworn oral evidence.

The evidence before me is that the Applicant left the country for India on the 9th of October 2004, for his mid-year leave. On the 10th of October 2004, the alleged fraud was discovered. The Applicant was expected to return to Fiji on the 15th of November, but he failed to return. He did return, with his former employer, on the 29th of November 2004. The Applicant states that he had gone to New Zealand because he had been offered a job by a company associated with Charan Jeet Holdings and that he returned to Fiji voluntarily after he was shown a letter which stated that the police wanted him in Fiji. On his return to Fiji he was arrested by Corporal Maha Ram who took him to the police station. There is no trace of his departure from Fiji on the immigration records, but there is a record of his return on the 29th of November.

The Applicant has no relatives and no money in Fiji. He has a wife and son in India. The surety offered earns $180 a week and has $2000 in the bank. He can obtain $20,000 but only after arrangements are made with the bank. His acquaintance with the Applicant is slight. He cannot be said to hold any authority or influence over the Applicant. The Applicant no longer has a fixed address in Fiji. The State says that the Applicant is likely to interfere with witnesses, but offers no evidence to substantiate such an assertion.

The overriding principle in bail applications, is whether the applicant will surrender to bail. Most applicants for bail, who have no history of absconding or of re-offending on bail, can offer safeguards against a failure to so surrender. Sureties are usually offered, who are in a position to ensure the applicant’s presence in court, not only because of the fear of losing the money guaranteed if there is non-appearance, but also because of some ability to insist on the applicant’s obedience to bail conditions.

In this case, the Applicant has a right to bail. His trial is not likely to be heard before October of this year, and such a long period of remand is most undesirable. He is of previous good character and I accept that he is in an over-crowded and uncomfortable remand facility at the Korovou Prison.

However, he himself agrees in his affidavit that he returned to Fiji after being persuaded to do so by the alleged victim who used police correspondence to so persuade him. He agrees that he only came to New Zealand as a result of collusion between the victim and his agents in New Zealand. It is not disputed that he failed to return to Fiji on the 15th of November when he was expected to return.

I am satisfied on this evidence that the Applicant may not surrender to custody without stringent conditions and precautions. One of those conditions must be the provision of a surety who is acceptable to the court, not only because his earnings could not provide adequate security but also because his relationship with the Applicant is relatively new. Although the Applicant has no fixed address, I would accept Mr. Aman Prasad’s address provided the Applicant were to remain there until trial. It is not an easy proposition for any person to offer free food and accommodation to a foreign national who cannot earn here until trial which will not commence for several months. However, I would be prepared to accept the address of Mr. Aman Prasad in that regard.

Bail however must be refused on the ground that the surety offered is inadequate. If the Applicant is able to produce a better surety I would be happy to reconsider bail. Bail is refused.

Mr. Raza raised in the course of this application, his concern that the alleged victim was separately represented in the Magistrates’ Court at the bail application. In the past, applications for representation have been made by other victims, including banks and corporations. They have been refused because it has always been felt that the State represents all interests in a fair and balanced manner. The role of State counsel in a criminal proceeding goes beyond the representation of the victim. State counsel is expected to balance the interests of the accused, the victim and the community in his or her appearances in criminal matters. The victim’s interests may sometimes need emphasis, for instance in a sentencing hearing or an application for compensation or restitution. There are provisions in the Criminal Procedure Code which allow the victim, with the leave of the court, to give evidence to allow the court to understand the victim’s feelings on the commission of the offence.

However it is unusual to allow counsel for the victim to “hold a watching brief.” In this case, leave was granted to two senior lawyers to appear for the victim when the Applicant had no counsel at all and when the DPP was represented by counsel. In the circumstances, the Applicant may well have felt that he had no voice at all in the proceedings.

Without statutory authority, the courts must not permit lawyers to appear to hold a brief for persons who are not parties in the case. If victims wish to be heard in criminal proceedings, they must make representations to the DPP, so that their views can be transmitted to the court through State counsel. In this way, the victim can be heard without prejudice to the accused, or to the special independent status of the Director of Public Prosecutions in criminal proceedings.

Nazhat Shameem
JUDGE

At Suva
23rd March 2005