State v Kasim [2007] FJHC 70; HAC087.2007; HAM087.2007 (2 November 2007)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL MISCELLANEOUS JURISDICTION

Crim. Misc. Case No: HAC063 of 2007
& HAM 087 of 2007

STATE

v.

ZAIN KASIM

Hearing: 30th October 2007
Ruling: 2nd November 2007

Counsel: Ms J. Shah for State
Ms L. Goundar for Accused

RULING

State counsel applies to revoke the bail of the 2nd Accused Zain Kasim, on the ground that he has interfered with a prosecution witness and is therefore in breach of his bail conditions. He is charged with one count of housebreaking entry and larceny. The date of the alleged offence is the 27th/28th of April 2006. The total value of the stolen items is $34,280.00.

This case was transferred to the High Court on the 30th of April 2007. The 2nd Accused was granted bail on the 25th of May 2006 and one of the conditions was that he should not "at any time approach or interfere with witnesses connected with the case ..." A reporting condition was lifted by the High Court in August 2007.

The Director of Public Prosecutions filed a notice of motion to revoke bail on the 18th of October 2007. In support was the affidavit of Gary Cline, the complainant. In his affidavit, Gary Cline said that in June 2007, he was driving in Ratu Dovi Road when the 2nd Accused confronted him in a taxi. He made faces and said words to him in Hindustani. Gary Cline had two passengers in his car, Stephanie Mow and Karan Prasad. He reported the matter to the police on the 9th of October 2007. He, Stephanie Mow and Karan Prasad all gave statements to the police which corroborated his account of what had occurred.

The State called all three witnesses to give evidence as the 2nd Accused disputed the incident. Gary Cline and Stephanie Mow gave evidence that the 2nd Accused. Karan Prasad gave evidence twice, once on the 15th of October 2007, and next on the 25th of October 2007. Gary Cline’s evidence that the 2nd Accused pulled up in front of his car, made faces at him and said something to him in Hindustani. Stephanie Mow corroborated this evidence. Karan Prasad gave evidence firstly that corroborated this version on October 15th. On the 25th of October he became hostile to the prosecution and said that it was Gary Cline who was abusing the 2nd Accused, and swearing at him. Under cross-examination he said he had been bribed by Gary Cline to tell the police otherwise and that he was not telling the truth. Clearly this witness either told lies on oath on the 15th of October or was doing so on the 25th. I consider that he ought to be investigated for perjury. However this is a decision for the Director of Public Prosecutions and the Commissioner of Police.

For the purposes of this application I then heard the evidence of Rajend Kishore and Najmun Nisha, both of whom said they had been passengers in the 2nd Accused’s taxi in June 2007 and that it was Gary Cline who had obstructed their car and abused the 2nd Accused. The evidence suggests no further alleged harassment between June 2007 and October 2007.

Counsel for the 2nd Accused submits that there is no acceptable evidence of a breach of bail and that in any event breach of bail need not lead to a revocation of bail. She referred to the decision of this court in State v. Rajendra Samy HAM 065.2007 to suggest that even if there had been a breach, the court could simply tighten bail conditions.

I accept the evidence of Gary Cline and Stephanie Mow and accept that there was an incident in June 2007 during which the 2nd Accused blocked Gary Cline’s car, and abused him in Hindustani. However, the lapse in time, the fact that the incident has not been repeated and the delay before trial in 2008 indicate tighter bail conditions rather than pre-trial remand. In Rajendra Samy I responded to a non-obedience to bail conditions by imposing a 24 hour curfew and a prohibition of the driving of the accused’s taxi. I consider that the same decision must be made in this case.

Bail is not revoked but the 2nd Accused bail conditions are varied as follows:

1. 24 hour curfew. The 2nd Accused must live at Lot 4 Nawanawa Road, Nadera.

2. He may not drive a taxi or private car at any time.

3. He may not speak to, or approach, or harass any witnesses.

The remaining conditions remain.

Nazhat Shameem
JUDGE

At Suva
2nd November 2007