Lal v State - Bail Ruling [2023] FJHC 447; HAM43.2020 (4 July 2023)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

MISCELLANEOUS CASE NO. HAM 43 OF 2020

NILESH LAL

vs.

STATE

Counsels:

Mr. Zunaid Z - for State

In person - for Accused

BAIL RULING

1. The Applicant in this matter is charged in the case HAC–04–2022 with the following counts:
   

Count 1 - Aggravated Burglary contrary to section 313(1) (a) of the Crimes Act 2009;

Count 2 - Theft contrary to section 291 (1) of the Crimes Act 2009;

Count 3 - Assault causing Actual Bodily Harm contrary to section 275 of the Crimes Act 2009; and

Count 4 - Unlawful Possession of Illicit Drugs contrary to section 5 (a) of the Illicit Drugs Control Act 2004.

2. The Applicant has filed this bail application seeking bail from this Court. The Applicant had been arrested and remanded on the 25^th of December 2021 on the allegation of above counts. This is the second bail application filed by the Applicant, where his first bail application was rejected by this Court on 16^th January 2023. In this application, though the Applicant appears in person, he had filed his submissions in Court supporting this bail application
   
3. The State has filed its response to this bail application, objecting to bail, supported by the Affidavit tendered by A/CPL 4995 Simon Chand.
   
4. Submissions in support of bail on behalf of the Applicant;
   
   1. The Applicant tenders that under Section 14 (2) (a) of the Constitution of our country he has to be considered innocent, until proven guilty, and the burden of proving the guilt lies with the Prosecution.
      
   2. It is contended by the Applicant that under Section 26 (3) (a) of the Constitution of Fiji that he should not be unfairly discriminated directly or indirectly on the grounds of his personal circumstances in the proceedings filed against him.
      
   3. The Applicant also submits that though the Prosecution has highlighted a list of his previous convictions against this bail application, at this juncture he has served and concluded all these sentences and that there are no pending sentences against him.
      
5. Submissions of the State in opposition to bail;
   
   1. In the Affidavit filed of record by A/CPL 4995 Simon Chand in support of the stance taken by the State he states that the Applicant has 46 previous convictions for committing offences of similar nature as the case subject to this bail application.
      
   2. On the strength of the facts highlighted above, A/CPL 4995 Simon Chand contends that granting bail to the Applicant will endanger the protection of the community and Section 19 (1) (c) of the Bail Act of 2002 makes clear provisions for the Court to consider and refuse bail if granting bail would endanger the public interests and make the protection of the community more difficult.
      
   3. However, when this Court inquired from the State Counsel about the previous convictions and pending cases against the Applicant it was informed to Court that though the Applicant was given custodial sentences on his previous convictions by Court the Applicant has now served all the sentences imposed against him. Further, it was informed by the State Counsel that at the moment there are no operating suspended sentences against the Applicant.
      

Applicable Law and Analysis of the Current Matter

6. Pursuant to Section 13 (1) (h) of the Constitution and Section 3(1) of the Bail Act of 2002, every person charged with an offence has a right to be released on bail, unless granting of bail is not in the interest of justice. Section 3 (3) of the Bail Act of 2002 stipulates that there is a presumption in favor of granting of bail.
   
7. At present the Applicant has been in custody for 19 months, since his initial arrest for this matter on 25^th of December 2021. According to Section 13 (4) the Bail Act of 2002 an accused person can only be kept in custody for 2 years (24 months), and should be released on bail thereafter.
   
8. In considering the position informed to this Court by the state, this Court comprehends that the Applicant has now served all the previously imposed sentences against him by Court. Therefore, to address the present circumstances in this matter, this Court intends to take guidance from the Supreme Court decision of Abhinesh Kumar v The State [2021] FJSC 1; CAV 20 of 2020 (5 February 2021), where His Lordship the Chief Justice stated, as below:

“Before coming to a decision to deprive personal liberty of a person, interests of public and interests of the accused must be rightly balanced. In balancing competing interests, courts must be mindful of the primary consideration in determining bail; that is the likelihood of the accused person surrendering to custody and appearing in court to face his or her trial.”

9. As stipulated above, the Supreme Court of Fiji has highlighted the priority that should be given in granting bail to the consequent probability of the accused appearing in Court to face his charge. In thorough consideration of the present status in this matter, this Court decides to grant bail to the Applicant on very strict bail conditions, as follows:
   
   1. Applicant to enter into a cash bail bond of $250.00
   2. Applicant to tender two sureties for non-cash bonds of $2000 each.
   3. Applicant to report to the Nabua Police Station between 6 am and 12 pm of every Monday of the week.
   4. A curfew is imposed against the Applicant on every day between 10 pm and 6 am the following day.
   5. Applicant not to commit any other offences while on bail for this matter.
      
10. You have thirty (30) days to appeal to the Fiji Court of Appeal.
    

...........................................
Hon. Justice Dr. T. Kumarage

At Labasa
This 4^th day of July 2023

cc: Office of Director of Public Prosecutions
Office of Legal Aid Commission