State v Naidu [2006] FJHC 34; HAC0001.2006 (30 January 2006)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC0001 OF 2006

BETWEEN:

STATE
Respondent

AND:

DEO NAIDU
Applicant

Counsel: Mr. A. Ravindra-Singh – for State
Mr. N. Shivam – for Accused

Date of Hearing/Ruling: 30th January, 2006

RULING ON BAIL

Background

The applicant is charged with the murder of Epeli Lesi Baleijamani and has been in custody for 45 days pending trial.

He relies on the provisions of the Bail Act and the Constitution to support his application for bail and in particular the rebuttable presumption that he is entitled to bail. Counsel appearing for him this morning presented a written submission in which the classic Bail principles are repeated.

Counsel says there is a strong likelihood of the accused surrendering to custody and appearing in court. He emphasizes the co-operative nature of the accused, the fact that he has got property and family interests in Fiji and is not likely to abscond. He raises other matters that are less impressive such as the need to prepare a defence, medical needs and also the conditions of the remand centre.

Not that the aspect of the conditions of the remand centre are unimportant but they are in this instance unsupported by clear evidence or an independent report so are of less merit.

Counsel emphasizes that his client is unlikely to re-offend whilst on bail.

Primarily counsel relies on the fact that although the charge is one of murder there is an open issue on self defence.

The State opposes bail. Despite the fact that the applicant has property and family interests and was co-operative with police, the State are concerned that he won’t answer to his bail. They emphasize that the case of murder is strong and bearing in mind the ultimate penalty for murder of life imprisonment counsel submits there would be a sufficient motivation for the applicant to abscond.

The State advise the applicant has one previous conviction for assault; some 6 years ago; for which he received a fine.

The State have no evidence of this applicant disobeying court orders or being charged with absconding while on bail.

Decision

There is a rebuttable presumption in favour of bail. This is underscored in both the Bail Act and the Constitution.

The State have to convince me that there are good and special grounds why an offender should be denied bail.

In this case the State rely on the seriousness of the charge.

While an offence of murder is at the top of the criminal calendar and the most serious offence nonetheless merely charging someone with murder does not characterize the particular offending.

This was a case of an extended fight between the accused and deceased that erupted over a disputed taxi hail.

I find in this case the circumstances are best characterized by reference to question 65 in the voluntary confession given by the accused:

“Where did you strike the second time with the knife? And his answer I only recall one strike in the front near to his chest. I did not mean to injure him just trying to save myself”.

That statement to the police clearly sets up the possibility of an argument of self-defence which if accepted could at least reduce the charge from one of murder to manslaughter or may even result in a complete acquittal.

I keep in mind the fact that a weapon was used would aggravate the ultimate finding of manslaughter but nonetheless the defence of self-defence does appear to be available.

That being the case I then turn my mind as to whether there is any evidence that would support or detract from the likelihood of the applicant surrendering to his bail.

I find that he has property and family interests. These ties are likely to keep him in Fiji. I find that he was co-operative with the police. I also find that although he has one previous charge of assault he is not known for disobeying court orders. So I accept he is the sort of person who will answer to his bail.

Accordingly I propose granting him bail. That bail will be granted on standard bail terms and conditions.

1. He is to provide one surety, that is a cash surety in the sum of $1,000.00 who is to ensure his attendance at court and that the terms and conditions of this grant of bail are complied with. A copy of this completed form will be provided to the surety. I emphasize this is to be a cash deposit.
   
2. That cash sum is to be deposited with the court prior to his release.
   
3. He is to attend court when told to do so for mention and any pre-trial applications and the trial of his case and he is to attend next for a trial call-over on Friday the 3^rd of March before my sister Justice Shameem in her usual criminal list callover at 9.30am at the Suva High Court.
   
4. He is to be of good behaviour and not to commit any offence whilst on bail.
   
5. He is to reside at the named address until the conclusion of his trial. He is to be under curfew at his named residence from 7.00pm to 6.00am. He is not to change his address without the written leave of the Deputy Registrar of the Suva High Court for which leave must be obtained before any change of address is made. The DPP at Suva Office must also be informed beforehand by the applicant. If he is aggrieved by any refusal to permit a change of address application can be made to a judge of the High Court to vary is address on one day’s notice.
   
6. He is not to travel out of the greater Suva District bounded by Nausori Airport in the East, Lami Township in the West and Sawani in the North for any purpose pending the conclusion of the trial.
   
7. He is not to approach any known prosecution witness directly or indirectly or to interfere with or harass them in any way.
   
8. He is to surrender his passport to the court within 3 days of this order, if not so deposited already. He is not to apply for a passport. He is not to apply for any travel documents that is any tickets or overseas currency without further order from the court.
   
9. He is to report to the Nabua Police State three times a week on Mondays, Wednesdays and Fridays between 6.00am and 6.00pm and I am about to warn that any breach of these conditions is likely to result in the cancellation of his bail and the issuance where necessary of a warrant for his arrest and a return to custody until he is tried.
   
10. He is to sign this bail form and acknowledgement that he understood these terms and conditions and an acknowledgement agreement to be bound by them during the period of bail.
    

Gerard Winter
JUDGE

At Suva
30th January, 2006