Deo v State [2005] FJHC 750; HAM40.2005S (13 July 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

MISCELLANEOUS CASE NO. HAM40 OF 2005S

TAJ DEO

V

THE STATE

Gates J.

Ms B. Malimali for the Applicant [Accused]
Mr D. Toganivalu for the Respondent [The State]

1^st, 13^th July 2005

RULING

Bail pending trial; Accused charged with murder; case with Magistrates Court; right to bail unless interests of justice require otherwise section 27(3) Constitution, entitlement to bail and presumption of bail s.3 Bail Act 2002 [No. 26 of 2002]; delay as a factor s.17(1); criteria to be considered s.18(1); prior convictions; conviction for escaping, relevance of; full disclosure yet to be completed; issue of intention to cause grievous bodily harm in contention; assault on victim involved punching, kicking and hitting with blunt weapon; no previous failure to surrender; spouses not suitable as sureties; affidavits addressing duties expected of sureties; in breach of suspended sentence if convicted; application to be renewed if circumstances change s.14(1).

[1] The applicant is charged with a single count of murder. He is alleged to have assaulted and injured his mother on 31st May 2005 from which injuries she later died in hospital. He was originally charged with assault occasioning actual bodily harm.

[2] The applicant’s case is presently before the Magistrates Court, and an order of transfer has yet to be made for trial in the High Court. He applies for bail pending trial. This ruling was to have been delivered on 8^th July 2005 but had to be deferred since I was indisposed last week.

[3] The applicant applies by Notice of Motion supported by three affidavits. The State opposes the application and has filed two affidavits from the investigating officer, DC Virendra Deo.

[4] The Constitution provides that a person who is arrested for a suspected offence has the right to be released from detention on reasonable terms and conditions pending trial unless the interests of justice otherwise require [section 27(3)]. This right is reflected in the entitlement to bail and the presumption in favour of bail provided in section 3 of the Bail Act 2002 [No. 26 of 2002]. Section 3 relevantly states:

“3.—

(1) Every accused person has a right to be released on bail unless it is not in the interests of justice that bail should be granted.

(2) .......

(3) There is a presumption in favour of the granting of bail to a person but a person who opposes the granting of bail may seek to rebut the presumption.”

[5] The present state of the list in the Criminal Division in Suva is likely to result in the applicant’s trial being delayed. I bear this factor in mind [section 17(1) Bail Act], though at this stage any delay has yet to occur. The primary consideration here is whether the applicant is likely to attend for his trial [section 17(2)].

[6] It is now necessary to review each of the criteria of section 18(1) in arriving at a decision as to whether this is an appropriate case for bail.

Likelihood of Surrendering to Custody

[7] The applicant is a 35 year old carpenter, who says he is working for a construction company. He is living with his de facto wife in Vatuwaqa at his father-in-law’s home. His wife is expecting their child, she being now 6 months pregnant.

[8] Amongst the applicant’s reasons for wanting bail is to be available to assist and to give support to his wife during the last stages of her pregnancy, and in order to be more easily available to consult and to instruct his lawyers. At this stage, prior to birth, the best interests of the child as a primary consideration does not arise [Art. 3, 9 CRC].

[9] The State points to his previous offending and tendered a list of 20 prior convictions, including 6 involving varying degrees of violence [section 19(2)(c)(i)]. No evidence was tendered of any previous absconding, though he is recorded as having a conviction in 2000 for escaping from lawful custody. The offence of escaping whilst in custody does not involve a breach of trust in quite the same way as a breach of a bail condition. However it may unsettle the willingness of the court to invest trust in an applicant and in that sense has a limited relevance to the likelihood of surrendering to custody.

[10] It goes without saying that the allegation here of the murder by the applicant of his own mother is an extremely serious charge. It occurred, so it is claimed, whilst the applicant was intoxicated by alcohol, and involved the victim being punched, kicked and hit on the head with a frozen chicken [section 19(2)(c)(iii)].

[11] This case has yet to be transferred to the High Court as I have already indicated. Full disclosure has not taken place. I am not aware if there were an independent eye witness to the assault. The post mortem, in usual form, does not say with what the injuries, external and internal, might be consistent. An additional statement may yet be taken from the pathologist and this may have bearing on whether this case remains a murder case or whether it will proceed on manslaughter. It is too early to say. Ms Malimali suggested that in the tussle, the applicant’s shopping bag containing the frozen chicken “swung” and this is how the mother received the serious blow to the head. Again, this is a trial issue, an uncertainty, unless subsequently this account is accepted by the prosecution. It is too early to be certain, but the prosecution are on notice to investigate that account at the earliest, and to serve a notice of additional evidence of further significant evidence.

[12] The interview appears to have been conducted, not surprisingly, on the basis of the initial injuries, for externally they were slight. The mention of the frozen chicken by the applicant only came up in the second statement. The applicant denied any intention of wanting to kill his mother. The penalty for murder is mandatory life imprisonment [section 19(2)(a)(v)]. The applicant was interviewed in the crime officer’s office at Divisional Headquarters Nausori. There is no suggestion before me that the applicant was trying to avoid the investigation [section 19(2)(a)(vi)].

Interests of the Accused

[13] I have referred to the likely delay in a trial for murder in this case. No doubt it would be convenient for the applicant and for his family if he were granted bail. He could continue his employment and provide for his wife’s support and assist his in-laws. No other criteria are special or relevant under this head.

The Public Interest

[14] There have been no instances pointed out of the applicant’s previous failure to surrender to custody or to observe bail conditions [section 19(2)(c)(i)]. At this stage I do not know if there were any independent witnesses to say what happened on the day of the assault who might be interfered with. However because of the applicant’s previous frequent offending I harbour some doubt on that score. Similarly I cannot be sure he would not re-offend [section 19(2)(c)(iii)].

The Sureties

[15] The applicant’s wife Mohini Lata is put forward as a surety. Spouses are not suitable sureties. The court requires someone with a greater independence from the Accused than a person with the emotional attachments of marriage or of informal spousal unions. The courts look to persons who are in a position to have a firm influence and control over the person to be bailed; whereas spouses usually have too close an identity of interest with each other for such a role: Tawake Cakacaka v The State (unreported) HAM045.04S Ruling No. 1 2nd August 2004; The State v Anthony Frederick Stephens (unreported) HAM0004.97S, 26th May 2003.

[16] The solicitor for the Accused has correctly addressed the relevant issues in the affidavits of the proposed sureties. Each deposed on what each would ensure would be done, or not done, by the applicant. Each undertook to ensure that the applicant would report to the suggested police station, that he would attend court for the preliminary hearings and the trial, and that he would meet any bail conditions. These affidavits demonstrated (a rare but welcome occurrence) a proper grasp of the duties expected of sureties put up to the court, and provided the necessary evidence from the sureties that each understood the duties expected of them.

Conclusion

[17] On balance, I believe the presumption for bail has been rebutted by the State. Though the applicant has undertaken not to consume alcohol whilst on bail and to stay away from the area where the crime is alleged to have occurred, I am mindful that

(a) if convicted of murder the applicant faces life imprisonment and may not attend for his trial therefore. Even if convicted of manslaughter he is likely to face imprisonment, and in either case he would be in breach of a suspended sentence,

(b) there is a risk that he may interfere with witnesses to lessen his involvement,

(c) and that he may re-offend

all of which together amount to circumstances where bail ought not to be granted.

[18] This is a case where circumstances, as I have indicated, may change. If so, this application for bail could be renewed [section 14(1)].

[19] The application for bail is refused. You have a right to appeal this decision to the Court of Appeal [section 31(1)] or to seek review from the same court [section 30(4)]. If so, this will be in the form of a re-hearing. By this ruling you are informed of the reasons for refusal and your counsel will advise you further [section 20].

A.H.C.T. GATES
JUDGE

Solicitors for the Applicant: Legal Aid Commission, Suva
Solicitors for the Respondent[The State]: Office of the Director of Public Prosecutions, Suva