Prasad v State [2021] FJHC 402; HAM146.2021 (23 December 2021)

IN THE HIGH COURT OF FIJI

AT SUVA

[CRIMINAL JURISDICTION]

CRIMINAL MISC NO. HAM 146 OF 2021

ATESHWAR PRASAD

V

STATE

Counsel: Ms M Tuaci for the Accused

Ms K Semisi for the State

Date of Hearing: 23 December 2021

Date of Ruling: 23 December 2021

RULING

[1] The Accused is charged with a spate of offences involving abduction, wrongful confinement, aggravated robbery, aggravated burglary, rape and sexual assault in two separate cases (HAC 72/21, HAC 74/21). One of the complainants is a child. I refused to grant him bayl. My reasons are contained in a ruling dated 6 April 2021.

[2] On 28 October 2021, the Accused renewed his application for bail. The Accused and his father have filed affidavits in support of the application for bail.

[3] The State objects to the granting of bail on the grounds set out in the affidavit of WDC Silivia.

[4] Section 14 (1) of the Bail Act states that subject to subsection (3) an accused person may make any number of applications to a court for bail. The caveat provided by subsection (3) is against frivolous or vexatious applications. The court has discretion not to entertain an application for bail if it is satisfied that the application is frivolous or vexatious.

[5] Section 14 (1) has to be read together with section 30 (7) of the Bail Act. Section 30 (7) states:

A court which has power to review a bail determination, or to hear a fresh application under section 14(1), may, if not satisfied that there are special facts or circumstances that justify a review, or the making of afresh application, refuse to hear the review or application.

[6] In his affidavit the Accused has set the period of his remand and his personal and family circumstances to seek bail. He has stated that there are now strict protocols to follow due to Covid-19 pandemic to meet with his counsel to prepare for his trial at the remand centre. He has stated that his elderly parents and his family business have suffered during the pandemic. He has stated that he needs access to his counsel to prepare for his trial. He is willing to post cash bail and provide suitable sureties and abide by all the bail conditions imposed by the Court.

[7] In my earlier ruling I gave detailed reasons for my decision to refuse to grant bail to the Accused. The Court has power to reconsider its earlier decision if there are special facts or circumstances that justify a review or the making of afresh application.

[8] The remand period so far is about 10 months. Although the case has not been assigned a trial date, the court can indicate that the trial can be heard by mid next year. Some delay in the hearing of the trial is to be expected due to the Covid-19 pandemic. The delay is not unreasonable to constitute special circumstance to release the Accused on bail pending trial.

[9] As a result of the Covid-19 pandemic, the Department of Corrections have placed restrictions on accessing people on remand by their family and lawyers. The health pros are for thor the safety of the remandees. It is not that a lawyer is completely denied access to his or her client in custody on remand. Lawyers are free to contact and consult their clients in custody on remand following the protocols of the Department of Corrections. I note that counsel managed to take instructions from the Accused at the remand centre and prepare his affidavit for this application for bail. There was no hurdle in that regard.

[10] Whether there are special facts or circumstances is a matter for the court to decide. As this Court said in Ho v State [2019] FJHC 820; HAM146.2019 (23 August 2019) at [8]:

The Bail Act has not defined the phrase ‘special facts’ or ‘special circumstance’ but has left it to the courts to decide on case by case basis. The word ‘special’ has been given the meaning exceptional or unusual in a number of cases. For the facts to be special they must be “peculiar to the particular case which set it apart from other cases" (Lyon v Wilcox [1994] 3 NZLR 422Re M [1993] NZFLR 74). For cirance special it must be exceptional, abnormal or unusual (Crabtree v Hinchliffe (Ife (Inspecnspector of Taxes) [1971] 3 All E,976 (Lord Rerd Reid), 983 (Viscount Dilhorne)).

[11] No special facts or circumstances have been shown to grant baithe Accused.

[12] The application for bail is refused.

. ...........................................

Hon. Mr Justice Daniel Goundar

Solicitors:

Office of the Director of Public Prosecutions for the State.

Law Solutions for the Accused