Prasad v State [2014] FJHC 4; HAM462.2012L (14 January 2014)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No: HAM462 of 2012L

BEFORE THE HON. CHIEF JUSTICE, MR. JUSTICE ANTHONY GATES

BETWEEN:

RONEEL PRASAD
Applicant

AND:

THE STATE
Respondent

Counsel: Mr. J. Singh for the Applicant
Ms M. Fong for State

Date of hearing: 30th December 2013, 9th January 2014
Date of ruling: 14th January 2014

RULING ON BAIL

[1] This is an application for variation of bail. The Accused seeks variation of the conditions that imposed a stop departure order on his travel preventing him from making a visit to his present home in Sydney. His travel documents were to be handed over to the Magistrates Court Registry as part of that order.

[2] By notice of motion filed on 18th December 2013 with an affidavit in support he sought an order permitting him to return to Australia. He has permanent residence in Australia and is concerned that he will lose his employment there where he is a maintenance officer. Additionally he is paying off a mortgage on a residential property and is afraid he will lose it if he is unable to work, and to earn and thus keep the repayments current.

[3] The Accused is facing the very serious charge of rape contrary to section 207 of the Crimes Decree. Rape attracts a maximum sentence of life imprisonment.

[4] The State objects to the variation on the ground that the Accused is a flight risk. The issue here is likelihood of surrender to custody or put simply, “will the Accused return to Fiji to attend his trial?” [Section 18(1)(a) Bail Act]

[5] On 12.12.13 the learned Magistrate at Lautoka granted bail in the following terms:

1. $2,000.00 cash bail.

2. Two sureties with $5,000.00 dollar bail

3. Stop departure ordered is issued against the accused. Accused is ordered to hand over all travel documents to the registry before serving the bail bond.

4. Report to Ba Police Station on every Saturday from 9am – 5pm.

5. Ordered to stay away 200 meters from the victim and ordered not to interfere with the witness.

6. Curfew from 11pm – 5am.

[6] The accused has handed over his passport and paid into court his cash bail of $2,000.

[7] The matter came on for hearing in the High Court on 30th December 2013. This being the legal vacation the matter was heard in Suva.

[8] No affidavit was filed by the State. This was a mistake. In forming an opinion for refusal of bail a court must consider and have regard to all relevant circumstances. Those considerations are set out at section 19(2) of the Act and I set them out now:

(a) as regards the likelihood of surrender to custody -

(i) the accused person’s background and community ties (including residence, employment, family situation, previous criminal history);

(ii) any previous failure by the person to surrender to custody or to observe bail conditions;

(iii) the circumstances, nature and seriousness of the offence;

(iv) the strength of the prosecution case;

(v) the severity of the likely penalty if the person is found guilty;

(vi) any specific indications (such as that the person voluntarily surrendered to the police at the time of arrest, or, as a contrary indication, was arrested trying to flee the country);

[9] The relevant circumstances were therefore left unaddressed by the State on 30th December 2013 at the first hearing. This was not a frivolous or hopeless application by the Accused and therefore the State needed to take the matter seriously. It was necessary to assist the court in its decision and to ensure an informed decision would be arrived at, and to do so by the production of relevant evidence.

[10] Because there was no evidence adduced by the State, this matter had to be put back to 9th January 2014 to allow for this to be done.

[11] Two affidavits were then filed for the State, both from the Investigating Officer Corporal Ana Navunisinu. One was filed on 2nd January 2014 and the other on 6th January 2014. The Accused filed an affidavit in response on 8th January 2014.

The Application for Variation
[12] In his first affidavit filed with the Notice of Motion, the applicant gave details of his place of employment in Sydney, his job, and his weekly earnings. He said he was paying rent but had also built a house for which he had to contribute mortgage repayments. He wished to return to Sydney to keep his job, so that he could keep up the mortgage repayments, pay the rent where he was staying, and pay for his lawyers fees to defend this charge.

[13] He categorically denied the offence and denied all the elements of the offence. This is not a case of consensual sexual intercourse. The incident never happened, he says.

[14] The Accused says he has strong family ties here. He still has his Fiji passport and his mother and father reside in Korovuto, Ba. He has a fiancé in Fiji, a school teacher in Ba. He was arrested and interviewed, then released. When called by the police he surrendered himself into their custody.

[15] If he stays away for long, the applicant believes he will lose everything – rental property, mortgaged house, and his job.

[16] On 30th December 2013 Ms Latu appeared for the State. I adjourned the matter so that the State could supply the missing evidence. I stated that I required proper information on the strength of the prosecution case, a consideration relevant to this particular application. Obviously the stronger the case against the Accused, the greater the incentive to abscond, and not to face up to the likelihood of conviction.

[17] The Investigating Officer deposed in her first affidavit that the applicant’s offence was alleged to have occurred on 27th November 2013. He was charged on 12th December 2013. The report was made on 29th November 2013. According to Ms Fong, from the Bar table, it was the father of the complainant who laid the complaint on 29th, he having spoken to the complainant at the hospital 2 days after the alleged incident. She was in hospital because of injuries arising from the traffic accident. Her injuries had nothing to do with the allegation of rape. It is not suggested that that act of rape had injured her in any way.

[18] At paragraph 9 of the first affidavit the Investigating Officer stated:

“That the complainant/victim is still admitted in the Trauma Ward at the Lautoka Hospital and as such investigations from her depends on when she is able to talk.”

[19] Nothing was said by the Investigating Officer to make clear that these injuries had indeed nothing to do with the allegation of rape. Her bald statement was highly misleading and emotive. No statements taken in the investigation were exhibited to the affidavit.

[20] When the officer swore the first affidavit on 31st December 2013 she said the “investigations from her (the complainant) depends on when she is able to talk”. But the complainant had already talked and told her father all about the incident 2 days later when she was in the hospital. And according to the statement of the complainant exhibited to the Investigating Officer’s second affidavit, the complainant could “talk” sufficiently to make statements both on 29th November 2013 and on 10th December 2013. So, unexplained, the Investigating Officer’s statement about the complainant being unable to talk does not carry much conviction.

[21] The only other evidence provided at this stage is a medical report arising from a medical examination conducted on the complainant some 22 days after the incident on 19.12.13. The doctor, who had obstetric qualifications, noted that “ideally examination needs to be done within 24-48 hours.” The allegation of rape can gain no supporting evidence from the examination conducted or from this report.

[22] Strangely the caution interview of the Accused was not exhibited. When as here the stories of the suspect and complainant are divergent, it is specially important to take statements from all potential witnesses. From such a careful and independent approach one may obtain more support for one rather than for the other. There must be no axes to grind. Only a sober non-partisan forensic approach will reveal in the investigation where the truth lies, bearing in mind the prosecution has the un-shifting burden of proving its case beyond reasonable doubt.

[23] The applicant claims the investigation has been one sided. His alibi witnesses, or witnesses of where he was and what he was doing that afternoon and evening have not been recorded. The Investigating Officer admits she has only recorded the complainant’s statement and “the people she mentioned in her statement.” She went on to say the complainant’s evidence “as far as her reasons for travel and time of travel is concerned has been corroborated by other witnesses (family members).”

[24] The Investigating Officer herself did not see fit immediately to inquire what other witnesses present at events that day at which both the suspect and the complainant were in the same company, might have to say. She said she was directed by the State Prosecutor to interview a further 5 witnesses from the suspect’s side or who were mentioned in his story. Those witnesses up to date of the hearing had still not had their statements taken, a month after the suspect had already been charged with rape.

[25] The complainant, an 18 year old female, says in her first statement that she was standing at the Yalalevu Shopping Centre, Ba waiting for a Viti Mini Bus to take her to Vitogo to her sister’s place. This was at 10pm on Wednesday 27th November 2013. A white private car approached with 2 male occupants. She noticed the one in the backseat was Avinit, who also lives in Vaqia where she lives. He talked to her, and asked her where she was going. She said Lautoka. Avinit offered her a lift and told her to get in the front passenger seat. She saw they were having a few bottles of stubbies.

[26] After the accident the police properly breathalysed the driver, the Accused. The reading was nil for alcohol, and the accused was not charged with any drink driving offences. That part of the complainant’s account against the Accused was therefore not supported by the independent evidence.

[27] Next the complainant said the Accused touched her thighs and threatened her. This was at a time during the journey when Avinit had apparently fallen asleep. The Accused she said turned off the road and then raped her in the car, whilst Avinit was asleep in the back seat. The threats were that the Accused would crash the car if she refused. She therefore succumbed but then he still crashed the car. The Investigating Officer considered that the Accused had caused the accident, whilst the complainant in her first statement said that he was sleeping, when it happened.

[28] On 3rd December 2013 3 potential witnesses presented themselves at Lautoka Police Station. The Accused says the Investigating Officer refused to take their statements. If that is so, one wonders why? For there is a fundamental dispute on the facts concerning when and how they met up. The Accused says she was picked not at 10pm but at 4.30pm – 5.15pm from Tauvegavega, Ba. The occupants of the car, the witnesses yet to be interviewed by police, included Avinit, Adi, and Sitiveni. Adi had telephoned the complainant who she knew and invited her to accompany them to Lautoka. The complainant agreed that she was collected. They all checked into the Sea Breeze Hotel at around 8.35pm.

[29] Avinit stated in his informal statement exhibited to the Accused’s affidavit that it was the complainant who was drunk. They were told off for the noise they were making in the room by the security guard Ame. The time they were at the hotel, who was there and what they were doing is thus of some relevance. This is an entirely different story to that of the complainant that she was casually accepting a lift at 10pm at night from Ba to be dropped off at Vitogo at her sister’s place.

[30] Of course none of this evidence has been tested in cross-examination in court. Indeed these other witnesses have still not had their side of the story recorded into written statements.

[31] The car landed in some water at the side of the road. The police were called and escorted 3 of them back to Lautoka Police Station. Then they were taken to the Lautoka Hospital, again by the police. It is said the complainant was not only conscious during these processes but also talking to her colleagues and to the police. But there was no complaint made to the police of the allegation of rape. That came 2 days later.

[32] Such a serious allegation needed a thorough investigation speedily. This case has not had that thorough effort directed to it.

[33] It is wholly improper to lay a charge of rape as a holding charge whilst pre-charge investigation is then conducted post-charge. This is irresponsible. It is a very grave matter to lay such a charge without first inquiring into the matter and conducting a proper investigation. It is far too early to say what such an inquiry might reveal.

Conclusion
[34] To make matters worse, at least for the complainant, as a result of the accident, the complainant has suffered the tragedy of an amputation of one of her legs near the knee. At this stage no more specific Report on her condition has been made available.

[35] This application has presented difficulties of resolution. The Accused does present a flight risk, though at present as things stand, the case against him is weak. At this stage I decline to allow variation. Instead I propose to make orders to expedite the trial. If the State is unable to comply, it is likely that a renewed application for variation will have to be allowed.

[36] In the result I order:

(i) Motion for variation of bail to allow Accused to visit his home in Sydney declined;

(ii) State to file Information with Lautoka High Court by 21st January 2014;

(iii) All prosecution disclosures to be served on the Accused by 22nd January 2014;

(iv) Expedited trial to be fixed at Lautoka High Court, notification of dates to be given to counsel on 23rd January 2014.

[37] Your counsel will inform you that you have rights of appeal against this order.

A.H.C.T. Gates

Chief Justice

At Suva

14th January 2014

Solicitors:

Messrs. Samusamuvodre Sharma Law for the Applicant

Office of the Director of Public Prosecutions for the State