State v Chandra [2008] FJHC 66; HAC012.2008 (11 April 2008)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No.: HAC 012 OF 2008

BETWEEN:

THE STATE
Applicant

AND:

MICHAEL ASHLEIGH CHANDRA
Respondent

Counsel: Ms. W.M. George for the State
Mr. A. Kohli for the Accused

Date of Hearing: Monday 7th April, 2008
Date of Ruling: Friday 11th April, 2008

RULING

[1] This is an application by the State to revoke the respondent’s bail.

[2] The respondent is charged with the offence of "Found in Possession of An Illicit Drug" in four separate matters.

[3] The State contends that the respondent has breached his bail condition by re-offending.

[4] In the Criminal Case No. HAC 23/06, the respondent is charged as follows:

"...between 7th and 8th day of April 2005 at Nasinu in the Central Division, without lawful authority engaged in a dealing with another person for the sale of an illicit drug namely Cannabis or Indian Hemp weighing 2,322.7 grams."

[5] On 21st December 2005, the respondent appeared in the Magistrates’ Court and pleaded not guilty to the charge. He was released on bail on conditions which included:

"To be of good behaviour and not to commit any offence whilst on bail."

[6] Subsequently, the case was transferred to the High Court for trial. On 16th June 2006, the Director of Public Prosecutions filed the Information. The respondent pleaded not guilty and his bail was extended.

[7] In the Criminal Case No. HAC 041/06, the respondent allegedly committed an offence on 3rd October 2005, but was not charged until 3rd August 2006. He pleaded not guilty and was released on similar bail conditions as in the Criminal Case No. HAC 023/06.

[8] In the Criminal Case No. HAC 12/08, the respondent is charged with an offence allegedly committed on 27th December 2005. The charge was not filed until 4th January 2008.

[9] In the Criminal Case No. HAC 173/07, the respondent is charged with an offence allegedly committed on 2nd April 2007. The alleged quantity of drugs is relatively small in this case when compared with the quantities in the other three matters.

[10] The last two allegations arose when the respondent was on bail in the Criminal Case No. HAC 23/06.

[11] Counsel for the respondent submits that the allegations are not proof of commission of offences whilst on bail. The respondent is entitled to the presumption of innocence because he has denied all the allegations and is contesting the charges.

[12] I accept that the respondent is entitled to the presumption of innocence. At the same time, I cannot turn a blind eye to an accused who continues to appear in court on similar separate allegations whilst on bail. The allegation in the Criminal Case No. HAC 12/08 arose 6 days after the respondent was granted bail. The allegation in the Criminal Case No. HAC 173/07 arose on 7th April 2007.

[13] Such conduct is enough to justify revocation of bail. However, in the Criminal Case No. HAC 12/08 the charge was filed after two years from the date of the alleged commission of the offence. In the Criminal Case No. HAC 173/07, the charge was filed after seven months from the date of the alleged commission of offence. The delay in filing the charges is a matter of concern.

[14] The hearing of the trial is set on 2nd June 2008. The respondent has been attending the court proceedings. He has engaged a counsel from Labasa. The counsel would find it extremely difficult to meet and prepare for the trial if the respondent is remanded in custody.

[15] In the circumstances I consider revocation of bail to be too extreme a step. However, I do consider that the bail should be varied to ensure the respondent is on good behaviour whilst on bail. The respondent will be released upon posting cash bail of $1,000.00 with the following conditions which will apply to all four matters before this Court:

To attend court when told to do so for mention, any pre-trial applications, and the trial of this case.

To be of good behaviour and not to commit any offence whilst on bail.

To reside with (his girlfriend) Rai Ragai Lata at Lot 22 Vatoa Road, Narere until the conclusion of his Criminal Case.

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 or she 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.

Is not to approach any prosecution witnesses, directly or indirectly, or to interfere with, or harass them, in any way.

To surrender his passport to the court before proceeding on bail if not so deposited already,

• is not to apply for a passport
• and is not to travel overseas without further order from the court
• not to be in possession of travel documents, foreign currency or travel ticket
• to be in the watch list of Immigration Department.
  

Is to report to the Nasinu Police Station every Mondays and Fridays between 6.00am and 6.00pm.

[16] The respondent is to sign a Bail form in acknowledgement of having understood these terms and conditions and in acknowledgment of agreeing to be bound by them during the period of bail.

[17] The respondent is warned that any breach of his bail conditions may result in the forfeiture of the $1000.00 posted by him or revocation of bail.

Daniel Goundar
JUDGE

At Suva
Friday 11th April, 2008

Solicitors:
Office of the Director of Public Prosecutions, Suva for the State
Kohli & Singh, Barristers & Solicitors, Labasa for the Accused