Samy v State [2007] FJHC 58; HAM065.2007 (14 August 2007)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL MISCELLANEOUS NO.: 065 OF 2007

BETWEEN:

THE STATE
Applicant

AND:

RAJENDRA SAMY
Respondent

Mr. A.R. Singh: Counsel for the State
Mr. M. Raza: Counsel for the Accused

Date of Hearing: 10th August 2007
Date of Ruling: 14th August 2007

BAIL RULING

The Respondent, who is awaiting trial on three counts of attempted murder in the High Court, was granted bail on the 13th of October 2006. The conditions were:

1. A surety in the sum of $500.00.

2. He must reside at Lot 5 Senibua Road, Howell Road with his brother-in-law Dewa Nand and must not change his address.

3. He must attend all court hearings.

4. He must be of good behaviour and not re-offend whilst on bail.

5. He must report daily at the Samabula Police Station between 6.00 a.m. and 9.00 a.m.

6. He must observe a curfew from 6.00 p.m. to 6.00 a.m.

7. He may drive a taxi but may not approach any of the victim’s homes.

8. He must not speak to any of the witnesses.

9. He must not apply for a passport and any travel documents must be surrendered to the court.

In a motion and affidavit filed in court on the 9th of August 2007 the Director of Public Prosecutions applies for revocation of bail. The affidavit of Detective Sergeant Rajesh Naidu states that the Applicant "is in serious breach of his bail conditions". He states that on the 30th of July 2007 he met the Applicant’s brother, one Rajendra Sami who told him that the Applicant had returned to the family home at Lot 55 Tikoko Lane, Nadawa, and that he had lived there for two months. On the 31st of July D/Sgt Naidu personally visited Lot 55 Tikoko Lane, Nadawa with Police Constable Lognadan and Detective constable Iqbal. They saw a white taxi parked outside the house and they spoke to the brother-in-law of the Applicant, one Suresh Chand. They also spoke to the applicant’s nephew Ashneel Chand. Both confirmed that the Applicant had lived there for two months. The house at Lot 55 Tikoko Lane is next to the homes of alleged victims Ram Kumari and Ashneel Chand. It is also the alleged crime scene. D/Sgt Naidu has also discovered that the Applicant is in breach of his bail reporting conditions. He tendered the bail register from the 14th of October 2006 to the 5th of August 2007 and states that out of 296 days on bail the Applicant has failed to report on 205 days. The State therefore asks for bail to be revoked.

The Applicant has filed an affidavit in reply. He denies living at Lot 55 Tikoko Lane and says that he continues to live in Howell Road with his brother-in-law. He agrees however that he has not always reported at Samabula Police Station, saying that he drives long hours and is unable to report within the hours of 6.00 a.m. and 9.00 a.m. He asks for reporting conditions to be varied to allow him to report twice a week and that he be allowed to visit his family at Nadawa. He also asks for the curfew to be removed.

As I said at the hearing of this application this case demonstrates the difficulties caused by delay in the hearing of trials. There is a need to balance the public interest in ensuring that accused persons attend court and obey court orders and the accused’s interests in being able to earn and live with his family whilst awaiting trial. Often the balance is achieved by imposing strict bail conditions.

In this case the Applicant was released on bail despite evidence that the alleged victims were frightened of having him live near them, because of the delay in finalizing a hearing date and because the accused was to be given an opportunity to continue to earn to support his family. Further, by ordering him not to return to Nadawa, there was an attempt to balance the victims’ intents. To no avail.

The Applicant concedes that he has visited the very home he was ordered not to approach (his counsel agreed that he had visited Nadawa) and has failed to report daily to the police station. The answer cannot be to loosen the bail conditions for his convenience, but either to tighten them to protect the interests of the victims or to revoke them altogether. He is in breach of bail.

However, in court I asked counsel for the prosecution and the defence if they could commence the trial in the next two weeks before Winter J. They both agreed.

It is not desirable that the applicant be remanded in custody at this late stage when he needs to give daily instructions to his counsel, but I cannot permit him to continue to drive his taxi, or to leave his brother-in-law’s home at any time other than to report to Samabula Police Station. It is unfortunate that he will not be able to earn while he awaits trial, but in the circumstances he has only himself to blame. The court has given him ample latitude.

I therefore order that the bail conditions be varied as follows:

1. 24 hour curfew. The Applicant may only leave Lot 5 Senibua Road, Howell Road to report daily at Samabula Police Station or to attend court.

2. He may not drive his taxi at any time.

3. He may not speak to any witnesses.

4. This case is transferred to Hon. Winter J to set an early hearing date. It will be called before him at 2.15 p.m. today.

Any further breach of bail may result in revocation of bail and remand in custody.

[ Nazhat Shameem ]
JUDGE

At Suva
14th August 2007