Chand v State [2012] FJHC 1373; HAM166.2012 (17 October 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
MISCELLANEOUS JURISDICTION

CRIMINAL MISCELLANEOUS CASE NO: HAM 166 OF 2012

BETWEEN:

UMLESH CHAND
[Applicant]

AND:

STATE
[Respondent]

Counsel : Mr. A. Singh for the Applicant
Ms. Seini Puamau for the State

Date of Ruling : 17th October 2012

BAIL RULING

1. This is an application for bail filed by the Biological mother of the Accused.
   
2. The Biological mother submits the following factors for consideration:
   
   • (a) The Accused is in custody since 16th August 2012;
   • (b) Seeking stringent bail conditions;
   • (c) Not flight risk;
   • (d) To engage a Counsel;
   • (e) Daughter of the Accused is a Form 4 student.
     
3. At the hearing the Counsel for the Applicant submits that the Accused has no previous conviction for white collar crimes, he is not a threat to the community and public interest.
   
4. State Counsel objects for bail and submits that:
   
   • (a) The Accused is charged with serious offence;
   • (b) The Accused previously breached bail conditions and escaped from lawful custody;
   • (c) The Accused has a long and varied criminal record – threat to community. Flight risk;
   • (d) The Prosecution has a strong case.
     
5. According to Section 3(1) of the Bail Act the Applicant is entitled for bail, but this section has its limitations.
   
6. According to the information filed by the Director of Public Prosecution that the Accused is charged with Possession of Counterfeit Currency Notes with intent to utter or put off. Punishable under Section 166 (3) of the Crimes Decree. The Prosecution submits that the Accused had 27 x $20.00 and 11 x $50.00 counterfeit currency notes in the undergarments that he was wearing at that time.
   
7. In State v Tunidau (2003) FJHC 188; HAM 001 of 2003S (1 January 2003) the Court held:
   

"Prima facie, the test for the grant or refusal of bail must always be whether the accused person will appear for trial. Matters which might assist the court in coming to any conclusion would be whether bail has been refused previously, the seriousness of the charge, the likelihood of re-offending, and of interference with prosecution witnesses, the accused's character, the possibility of further charges, the accused's right to properly prepare his/her defence and any previous failure to attend court."

8. In State v Singh (2010) FJHC 600; HAM 187. 2010 (2 September 2010) the Court observed:
   

"[2] The principles governing bail pending trial are contained in the Bail Act. Section 3(1) provides that an accused has the right to be released on bail unless it is not in the interests of justice that bail should granted. Consistent with this right, section 3(3) of the Act declares that there is a presumption in favour of the granting of bail to an accused, but a person who opposes the granting of bail may seek to rebut the presumption. In determining whether a presumption is rebutted, the primary consideration in deciding whether to grant bail is the likelihood of the accused appearing in court to answer the charges against him. Bail can be opposed on three grounds provided by section 19(1) of the Act. Section 19(1) provides for three grounds for refusing bail. Section 19 (2) sets out a series of considerations the court must take into account in determining the three grounds. In broad terms, bail can be refused if the accused is a flight risk or if it is not in the accused's interest to be released on bail or it is not in the public interest to release an accused on bail."

9. The Applicant above named has 25 previous convictions since 1986. He has number of previous convictions for forfeiture of bail bonds and escaping from lawful custody.
   
10. Section 3(4) of the Bail Act states as follows:
    

"(4) The presumption in favour of the granting of bail is displaced where-

(a) the person seeking bail has previously breached a bail undertaking or bail condition."

11. Considering Section 3(4) of the Bail Act the previous conviction of the Applicant displaces the presumption of granting bail.
    
12. Considering the decision made by Justice Shameem in Tak Sang Hoa v The State (2001) FJHC 15 and Justice Fatiaki in Adesh Singh & Others Miscellaneous Act No. 11 and 12 of 1988. I consider the following factors:
    
    1. The presumption of innocence;
    2. Whether the accused to appear to stand trial;
    100. Whether bail has been refused previously;
    4. The seriousness of the charges;
    5. The likelihood of the accused re-offending on bail;
    6. Any interference with prosecution witness;
    7. The acccused's character;
    8. The accussed's right to prepare his defence;
    9. The likelihood of further charges;
    10. The State's opposition to bail.
        
13. Section 19 (1) of the Bail Act states as follows:
    

"19.-(1) An accused person must be granted bail unless in the opinion of the police officer or the court, as the case may be,

(a) the accused person is unlikely to surrender to custody and appear in court to answer the charges laid;

(b) the interests of the accused person will not be served through the granting of bail; or

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

14. Considering all materials before the Court the Respondent State convinced me that the Applicant Umlesh Chand falls within the ambit of Section 19 of the Bail Act hence I refuse bail.
    
15. Application for bail is dismissed.
    
16. 30 days to appeal to Court of Appeal.
    

S. Thurairaja
Judge

At Lautoka
17th October 2012

Solicitors: Messrs Anil J Singh Lawyers for the Applicant
The Office of the Director of Public Prosecution for the Respondent