State v Chand [2010] FJHC 395; CRC050.2010 (21 July 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. 050 OF 2010

STATE

V

SACHEND CHAND
s/o Brij Raj

Date of Hearing: 20 July 2010
Date of Ruling: 21 July 2010

Mr. J. Singh for the State
Mr. K. Tunidau for the Accused

RULING

[1] The accused appeared before me today on a routine mention of his case and in the course of the appearance his Counsel made an informal application for bail pending trial on his behalf.

[2] The accused who is 50 years old is facing one charge of oral rape of a 4 year old girl, contrary to section 207(1)(2)(c) of the Crimes Decree 2009. It is alleged that on the 13th June of this year the little girl who lives in a neighbouring house came to the accused’s house where he was resting alone. When she entered the accused took her into a room and closed all doors. He removed her clothes and his own shorts and rubbed his penis on her back and between her thighs. He then instructed her to take his penis in her mouth, which she did. He subsequently ejaculated on to the bed and told the girl to dress and not to tell anybody. She went home and told her grandmother.

[3] Whilst it is unnecessary to rehearse the full facts on a bail application, I consider that in this case it is imperative that the seriousness and depravity of the alleged deeds be abroad.

[4] This application is of course governed by the provisions of the Bail Act 2002, which Act provides for a heavy presumption in favour of granting bail pending trial to the accused. The party opposing bail carries the onus to rebut the presumption on the balance of probabilities. Bail should be granted unless the Court is satisfied of any one or more of the considerations set out in section 19(1) pertain. They are;

(a) that the accused is unlikely to surrender to custody and appear in Court;

(b) the interest of the accused will not be served through granting bail;

(c) granting bail would endanger the public interest or make the protection of the community more difficult.

The State in its vehement objection to the granting of bail relies on limb (c) in that they believe that (i) there is every likelihood that the accused may interfere with an extremely vulnerable witness, and (ii) that feelings in the community are "running high" and it would not be in the interests of the accused to be admitted to bail.

[5] In the case of Semi Turagabete, Jone Sotia and Nemani Tui v State (2005) HAM 0001/05B, Shameem J. said where the applicants and witnesses all come from the same community, it is

not in the public interest to release the applicants on bail in order to protect the vulnerability of (in that case) 13 and 16 year old witnesses to a murder. Children are notoriously easy to intimidate or influence.

[6] And so in this instant case. For a four year old to be subjected to such indignities and to give evidence about it will be an ordeal almost impossible to contemplate. The accused maintains his innocence, and of course the law presumes that innocence, in spite of the overwhelming case against him. There is a full confession under caution, which I am told will be challenged, and there is a statement from the young victim which discloses cogent and compelling evidence. The accused’s counsel tells me that the evidence of the 4 year old will be challenged and tested in cross examination.

[7] This Court is mindful of the presumptions to bail and of innocence but nevertheless in the circumstances is pulled to the State’s side on the balance of probabilities. The accused offers to live miles away from the area where the crime is alleged to have been committed and he offers to be the subject of the strictest conditions.

[8] No degree of strict condition can prevent an accused in some way returning either himself or through intermediaries to the scene and contact witnesses. No degree of distance can dilute what is obviously an overwhelming case which could be an indication of flight from justice.

[9] It is most unlikely that this matter can go to trial in Lautoka until early 2011. To prevent the accused being on remand for a long period, this Court proposed trial dates during the latter part of this week. This offer was refused by Counsel for the accused who says he is engaged in another matter in the Nadi Magistrates Court.

[10] The accused made one previous application for bail through a duty solicitor for the Legal Aid Commission, just 5 days before this ruling. The Court on that day refused bail for the protection of the community where sexual offences are prevalent. Counsel today appearing for the accused can offer no new circumstances for the granting of bail and therefore in the premises this application is refused.

[11] It is to be noted that this ruling is premised more on strength of evidence and protection of witnesses, rather than seriousness of the crime.

[12] The accused is to be brought up for a mention of his case on 6 August next and he may appeal this ruling to the Fiji Court of Appeal.

Paul K. Madigan
Judge

At Lautoka
21 July 2010