Chaudhary v State [2010] FJHC 554; HAM150.2010 (6 December 2010)

IN THE HIGH COURT OF FIJI
AT SUVA

MISCELLANEOUS JURISDICTION
Crim. Misc. Case No: HAM150 of 2010

BETWEEN:

MAHENDRA PAL CHAUDHARY
Applicant

AND:

THE STATE
Respondent

Hearing: 2 December 2010
Ruling: 6 December 2010

Counsel: Mr. R. Chaudhary for Applicant
Ms A. Tuiketei for State

RULING

[1] The applicant seeks variation to his bail conditions that were imposed in the Magistrates' Court. His current bail conditions are:

1. To secure his own attendance at the High Court by standing in his own recognizance in the sum of $1000.00.
   
2. To attend court when told to do so for mention, any pre-trial applications, and the trial of his case, and to attend next on 28th January 2011 at 9.30am at the Suva High Court.
   
3. To provide one (1) surety namely Sachindra Chaudhary in the sum of $1000.00 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.
   
4. To be in good behavior and not to commit any offence whilst on bail.
   
5. To reside at 3 Hudson Street, Suva Point, Laucala Bay until the conclusion of his trial.
   
6. 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.
   
7. Is not to approach any prosecution witnesses, directly or indirectly, or to interfere with, or harass them, in any way.
   
8. 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. (The passport was dispatched by Suva Magistrates' Court to the High Court registry on 30/7/10).
     
9. Is ordered to report to Suva Point Police Post on every Wednesday between 6am to 6pm.
   

[2] By way of a motion supported by an affidavit from him, the applicant seeks the following variations:

1. He be granted unconditional bail;
   
2. His passport be released and he be permitted to travel to Australia for medical treatment between 28 December 2010 and 26 January 2011; and
   
3. His reporting condition be dispensed with.
   

[3] Counsel for the State consents to the variations that the applicant be permitted to travel overseas and his weekly reporting condition be dispensed with, provided he does not deal with funds held in Australia in the following accounts:

(a) Commonwealth Managed Investment Fund Balanced Fund Account;

(b) Perpetual Investment Management Limited Perpetual Monthly Income Fund;

(c) Commonwealth Bank of Australia Cash Management Call Account;

(d) Commonwealth Bank of Australia.

[4] Counsel for the applicant opposes to any condition restricting access to the above accounts by the applicant. Counsel submits that the applicant will require access to his funds to pay for his reasonable medical expenses in Australia.

[5] Counsel for the State submits that the funds in these accounts are subject of the charges and any access to the accounts by the applicant will constitute an interference with the evidence.

[6] Section 23 of the Bail Act provides:

"(1) Bail must be granted unconditionally unless the police officer or the court, as the case may be, considers that one or more of the conditions mentioned in section 22 should be imposed for the purpose of –

(a) ensuring the accused person's surrender into custody and appearance in court;

(b) protecting the welfare of the community; or

(c) protecting the welfare of any specially affected person.

(2) Conditions must only be imposed –

(a) to protect the welfare of the community;

(b) to protect the welfare of any specially affected person; or

(c) in the interests of the accused person,

and may only be imposed if required by the circumstances of the accused person."

[7] Section 22 states:

"(1) Bail may be granted unconditionally or subject to written conditions imposed by the police officer or the court, as the case may be.

(2) If conditions are attached to the granting of bail, they may only be one or more of the following –

(a) that the accused person enters into an agreement to observe specified requirements as to his or her conduct while on bail;

(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;

(e) that the accused person enters into an agreement, and deposits acceptable security, to forfeit a specified amount of money if the accused person fails to comply with his or her bail undertaking;

(f) that one or more sureties enters into an agreement, and deposits acceptable security, to forfeit a specified amount of money if the accused person fails to comply with his or her bail undertaking;

(g) that the accused person deposits with an authorized officer of the court a specified amount of money in cash and enters into an agreement to forfeit the amount deposited if the accused person fails to comply with his or her bail undertaking;

(h) that one or more sureties deposits with an authorized officer of the court a specified amount of money in cash and enter into an agreement to forfeit the amount deposited if the accused person fails to comply with his or her bail undertaking."

[8] Counsel for the applicant submits that surrendering of passport and restriction on overseas travel are not specified in section 22 as conditions of bail and therefore those conditions cannot be imposed. I disagree.

[9] In my judgment section 22 does not provide an exhaustive list of bail conditions. The use of the word 'may' indicate that granting conditional bail is a matter of discretion for a court and the conditions specified in subsection (2) are discretionary. A court may impose any condition to meet the purposes specified in section 23.

[10] In Iliaseri Saqasaqa v The State HAM005.06S Gates J (as he was then) said:

"Bail conditions, imposing as they must restrictions on persons awaiting trial, must therefore be reasonable and commensurate with the gravity of the offence and with the individual risks identified as applicable. Bail must not be fixed excessively, in effect, denying the applicant an opportunity to take up the grant of bail. This has been a principle of great antiquity in the common law."

[11] In Qarase v FICAC HAM039/09 this Court said:

"The right to liberty is a basic human right. Bail for a person accused of an offence means authorization for the person to be at liberty instead of in custody, on condition that the person appears for trial. Conditional bail is granted as an alternative to pre-trial detention. Permissible conditions include the surrendering of travel documents, imposition of a residence requirement and the provision of a surety assessed in relation to the means of the accused. These restrictions on the right to liberty are consistent with international law (Wemholl v Germany (1968) 1 EHRR 550)."

[12] Clearly the interests of the community and the prosecution are relevant in determining the reasonableness of the proposed bail conditions. The State is not opposing the applicant from travelling overseas on medical ground. What the State is concerned is that he may interfere with the evidence by accessing funds that are subject of the charges pending before the court.

[13] I accept the State's concession that the applicant be permitted to travel is fair, provided that he does not interfere with funds that are subject of the charges. In my opinion a condition that an accused does not interfere with any evidence subject of a criminal charge is a reasonable bail condition that protects the welfare of the prosecution and the community.

[14] I grant fresh bail to the applicant on the conditions:

1. To secure his own attendance at the High Court by standing in his own recognizance in the sum of $1000.00.
   
2. To attend court when told to do so for mention, any pre-trial applications, and the trial of his case.
   
3. To provide one (1) surety namely Karam Chand Bidesi f/n Bedesi in the sum of $1000.00 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.
   
4. To be in good behavior and not to commit any offence whilst on bail.
   
5. To reside at 3 Hudson Street, Suva Point, Laucala Bay until the conclusion of his trial.
   
6. And not to change that address without the written leave of the court.
   
7. Is not to approach any prosecution witnesses, directly or indirectly, or to interfere with, or harass them, in anyway.
   
8. Is permitted to travel to Australia for medical treatment between 28 December 2010 and 26 January 2011. His passport is to be released to him forthwith. Upon return the passport must be surrendered to the Registry within 24 hours. For any further overseas travel written order from the court must be obtained.
   
9. He is not to directly or indirectly access funds held in the following accounts in Australia pending his trial:
   

(a) Commonwealth Managed Investment Fund Balanced Fund Account;
(b) Perpetual Investment Management Limited Perpetual Monthly Income Fund;
(c) Commonwealth Bank of Australia Cash Management Call Account;
(d) Commonwealth Bank of Australia.

10. He is to appear in court on the 28 January 2011 at 9.30am.
    

Daniel Goundar
JUDGE

At Suva
6 December 2010

Solicitors:
Messrs. Gordon & Chaudhary Lawyers for Applicant
Office of the Director of Public Prosecutions for State