Kasim v State [2008] FJHC 6; HAM 106.2007 (25 January 2008)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

Criminal Misc. Case No. : HAM 106 of 2007

BETWEEN:

MOHAMMED ZAIN KASIM
Applicant

AND:

THE STATE
Respondent

Counsel: Ms. L. Goundar for the Applicant
Ms. J. Shah for the Respondent

Date of Hearing: Wednesday 16th January, 2008
Date of Ruling: Friday 25th January, 2008

RULING

[1] This is an application for variation of bail conditions.

[2] The applicant is charged with the offence of house breaking, entry and larceny. He was on bail pending trial when the State applied to revoke his bail on the ground that he had interfered with a prosecution witness, and was therefore in breach of his bail conditions. Shameem J heard the application and found that the accused was in breach of his bail conditions. However, Shameem J considered revocation of bail would be too extreme measure in the circumstances of the case, and therefore instead of revoking bail, she imposed the following bail conditions:

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 witness.
   

[3] The applicant seeks to vary conditions one and two on the ground that he has to earn a living and support his family.

[4] At the hearing of the application, counsel for the State raised an issue about the Court’s jurisdiction to vary bail conditions which were imposed by another judge. I invited the parties to file submissions on the issue of jurisdiction. I have received helpful submissions from counsel.

[5] Ms. Shah submits there is nothing in the Bail Act that gives the Court jurisdiction to hear this application. However, both parties accept that the application can be heard under the inherent jurisdiction of the Court. In the past, the Court has entertained similar applications (see, Seniloili v State Crim. Misc Case HAM 029/04; Macartney v State Misc. Case No. HAM004 of 2008).

[6] There can be no doubt that the Bail Act is not a code. It is therefore useful to trace the history of the procedures for bail applications.

[7] All bail applications are rooted in the law of habeas corpus (Sharpe R, The Law of Habeas Corpus, 2nd ed at p.134)

[8] In R v Spilsbury [1898] UKLawRpKQB 156; [1898] 2 QB 615, Lord Russel of Killowen CJ said that it would take unmistakably clear and precise language to abrogate the inherent jurisdiction of a superior court of first instant to grant bail.

[9] There is, and remains, a general right to bail at common law, independent of statute (Re Wong Tai (1911) 6 HKLR 67, 69 per Sir Francis Piggott CJ). It is a residual jurisdiction and is not therefore parallel to the Bail Act.

[10] In my view, this Court has inherent jurisdiction over all bail applications including an application to vary bail conditions imposed by another judge.

[11] The applicant in his affidavit states that he has a wife and a 3 months old child who are financially dependant on him and since November 2007 he has not been able to earn a living because of the curfew and the driving restriction imposed on him.

[12] The curfew was imposed on the applicant because of the serious breach of bail conditions. He is fortunate that his bail was not revoked. However, I am of the view that the welfare of the applicant’s child should be taken into account (see, Sanjana Devi v The State Misc. Action No. HAM 011 of 2003S). The growth and welfare of a child is the parent’s responsibility. I can understand that without his wife working, the applicant must be finding it difficult to meet his responsibility as a parent.

[13] In the circumstances and bearing in mind the presumption of innocence, I vary the applicant’s bail conditions so that he can earn a living for his family.

[14] The new bail conditions are:

1. 24 hour curfew from Monday to Thursday. The accused must live at Lot 4 Nawanawa Road, Nadera.
   
2. The accused may drive a taxi from Friday 6am to Sunday 12pm.
   

[15] The remaining conditions remain.

Daniel Goundar
JUDGE

At Suva
Friday 25th January, 2008

Solicitors
Office of the Director of Public Prosecutions, Suva for the State
Messrs Sherani & Co. for the Applicant