State v Sinha [2008] FJHC 336; HAM107.2008 (2 December 2008)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

CRIMINAL MISC. CASE NO.: HAM 107 OF 2008

BETWEEN:

THE STATE
Applicant

AND:

1. SALENDRA SEN SINHA
2. CHERYL S. KUMAR

Respondents

Counsel: Mr. P. Bulamainaivalu for the State
Mr. J. Semisi for the Respondents

Date of Hearing: Tuesday 18th November, 2008
Date of Ruling: Tuesday 2nd December, 2008

RULING

[1] The State by way of Notice of Motion seeks the following orders:

(a) Revocation of the 1st Respondent’s Bail;
(b) Forfeiture of $5,000.00 cash posted for security by the 1st Respondent; and
(c) Payment of $5,000.00 surety by the 2nd Respondent.

[2] The motion is supported by an affidavit of D/Sgt. Arun Singh. The 1st Respondent opposes the motion. He has filed an affidavit in response.

[3] The 2nd Respondent is the 1st Respondent’s spouse. She was present during the hearing. The Court gave her an opportunity to respond to the State’s application but she elected to rely on the 1st Respondent’s affidavit.

[4] On 3 April 2008 the 1st Respondent was charged with fraud related offences involving substantial amount of monies. He was granted cash bail in a sum of $5000.00 with conditions after arraignment in the Magistrates’ Court and the case was transferred to the High Court for trial.

[5] On 25 April 2008 the High Court extended the 1st Respondent’s bail. He signed fresh bail form containing the following terms and conditions:

(i) To secure his own attendance at the High Court by standing in his or her own recognizance in the sum of $5,000.00.
(ii) To provide one surety namely Cheryl S. Kumar in the sum of $5,000.00 who is to ensure the attendance of the Accused 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 each surety.
(iii) To attend court when told to do so for mention, any pre-trial applications, and the trial of this case, and to attend next on 16/5/08 at 9.00am at the Suva High Court.
(iv) To be of good behaviour and not to commit any offence whilst on bail.
(v) To reside with Cheryl Kumar at Namaka Nadi until the conclusion of his trial.
(vi) And not to change that address without the written leave of the Deputy Registrar of the Suva High Court which leave must be obtained before any change of address is made. The DPP at its 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 on 1 day’s notice.
(vii) Is not to approach any prosecution witnesses, directly or indirectly, or to interfere with or harass them, in any way.
(viii) To surrender his passport to the court within 3 days of this order if not so deposited already,

• Is not to apply for a passport.
• And is not to travel overseas without further order from the court.

(ix) Is to report to the Namaka Police Station, every Mondays and Fridays between 6am and 6pm.
(x) And is warned that breach of any of these conditions is likely to result in the cancellation of his bail and the issuance, if necessary, of a warrant for his arrest and a return to custody till he is tried.

[6] The 2nd Respondent signed the surety for the 1st Respondent in sum of $5,000.00. In the surety form the 2nd Respondent disclosed her relationship with the 1st Respondent as his wife’s sister.

[7] The requirement for surety is included in the conditions for bail provided under s.22 of the Bail Act. The relevant provisions are:

(a) ......
(b) that one or more sureties acknowledges that he or she is acquainted with the accused person and regards the accused person as a responsible person who is likely to comply with a bail undertaking;
(c) that the accused person enters into an agreement, without security, to forfeit a specified amount of money if the accused person fails to comply with his or her bail undertaking;
(d) that one or more sureties enters into an agreement, without security, to forfeit a specified amount of money if the accused person fails to comply with his or her bail undertaking.

[8] Under s. 22(3) of the Bail Act, before a person is accepted as surety the court must ascertain under oath, if necessary, the ability of the surety to provide the security. If the court forms the view that security is required, it must set with reference to the capacity of the surety to meet the obligation. The agreement between the court and the surety must be in Form 2 that is provided in the Schedule. As a matter of practice the courts do not accept surety from the spouse of an accused and an addendum to that effect is made to Form 2. Form 2 is filled and signed by the proposed surety before a court clerk at the criminal registry.

[9] In this case, the 2nd Respondent disclosed her relationship to the 1st Respondent as his wife’s sister, when as a matter of fact she is his wife. It is fair to say the 2nd Respondent provided false information about her relationship to the 1st Respondent in the surety form which may require criminal sanction.

[10] In these circumstances and the fact that there is no evidence before me on what enquiries were made from the 2nd Respondent about her ability to provide the security, I do not think it would be appropriate to order her to pay the security sum. I do however think that she should be investigated. But, it is entirely up to the Director of Public Prosecutions to direct a police investigation with a view of charging her.

[11] The 1st Respondent does not dispute that he had breached his bail conditions. He seeks another opportunity to abide by conditions if he is granted bail. He seeks bail so that he can get employed and pay his counsel’s fee. He says he also has a family to support. Furthermore, the Respondent says it is difficult to have access to his counsel while in remand center and prepare a meaningful defence.

[12] The Bail Act 2002, in accordance with s. 27(3)(c) of the Constitution provides for a right to bail. The State must rebut that presumption when bail is objected to, and in considering bail, the relevant considerations for the courts are those set in s.19 of the Bail Act. The three categories of criteria are: the likelihood of surrender to custody and appearing in court; the interest of the accused person; and the public interest.

[13] In this case there is an admission of breach of bail conditions by the 1st Respondent. The breach is serious. The 1st Respondent absconded from the jurisdiction of this Court knowing his case was set for trial. According to his travel history provided by the Immigration Department, the 1st Respondent travelled under the name of Vinod Prasad and with a passport number 721417 while his passport was with the court registry. He did not seek this Court’s consent before travelling overseas. By his conduct the 1st Respondent changed his place of residence without the Deputy Registrar’s consent and further he failed to report to the police station as ordered by the Court.

[14] After taking into account the 1st Respondent’s admission of breach of bail conditions, and the serious charges he is facing in various courts in Fiji, I am satisfied that he is a flight risk, and if granted bail he will not appear for his trial.

[15] I find the 1st Respondent’s ground for bail for the purpose of securing an employment to be unrealistic. He was granted bail but instead of securing employment he absconded from the jurisdiction of the courts in Fiji. I am not satisfied that the 1st Respondent is impaired to adequately prepare his defence in remand.

[16] I make the following orders:

(a) The 1st Respondent’s bail is revoked and he is remanded in custody pending trial.

(b) The cash security of $5,000.00 posted by the 1st Respondent is forfeited to the State.

(c) The 2nd Respondent is discharged of her duties as a surety. No Order is made for her to pay the security sum.

Daniel Goundar
JUDGE

At Suva
Tuesday 2nd December, 2008

Solicitors:
Office of the Director of Public Prosecutions, Suva for the State
John Semisi, Barristers and Solicitors, Suva for the Respondents