State v Nand [2010] FJMC 81; Criminal Case 1483 of 2010 (14 September 2010)

IN THE RESIDENT MAGISTRATES' COURT
AT SUVA

CRIMINAL CASE NO. 1483 OF 2010

STATE

V

VINESH WARA NAND and ABHILASH SHARMA

Prosecution: Sgt. Lautabui
Accused 1: Mr. Ramesh Prakash and Ms J Jattan of Mishra Prakash & Associates
Accused 2: Mr Tirath Sharma of Tirath Sharma Lawyers

RULING

[1] This is an application for bail by both Accused. They are charged with 2 Counts of Presenting Counterfeit Note contrary to section 166(1)(b) of the Crimes Decree. They have pleaded not guilty and no trial date has been set by the Court.

[2] The case was first called on 23/8/10 and the Accused were remanded in custody until 3/9/10.

[3] On 3/9/10, Counsels for both Accused applied for Bail. Mr Prakash for Accused 1 submitted that there is another Court proceeding in Ba Magistrate's Court and that the Accused are required to attend Ba Magistrates Court on 16/9/10. He further submitted that both Accused have been remanded in Police custody by Ba Magistrate's Court but that the Accused should not be hidden from them.

[4] Mr Sharma concurred with Mr Prakash's submissions with respect to Bail for Accused 2.

[5] Mr Prakash has tendered a Ruling on Further Remand by the Resident Magistrate, Mr Usaia Ratuvili of Ba Magistrate's Court dated 19/8/10.

[6] The Police Prosecutor objected to Bail and submitted that both Accused are brought from Ba Police Station and are kept at Korovou Prison.

[7] This Court had granted 3 days for the Defence to make formal application for Bail and 3 days thereafter for Police Prosecution to file a reply. The case was adjourned to 8/9/10 for Submissions on Bail.

[8] On 8/9/10, both Defence Counsel submitted that they will be relying on their Submissions in support of Bail application and the case adjourned for Ruling on 14/9/10.

[9] The Police Prosecution sought further time to file their Response to Bail and were granted 2 further days. However, their Response to the Bail application was not filed until 13/9/10.

[10] The grounds for application for bail are set out in the Affidavits of both Accused. The Affidavit of the Applicant Vinesh Wara Nand (Accused 1) was sworn on 3rd September, 2010. He stated that he is a Canadian citizen with a fixed address in Canada and while in Fiji, he also has a fixed address at Varadoli, Ba which is the address of his proposed surety. The main purpose of his visit to Fiji was for taking part in a soccer tournament held at Sigatoka.

[11] Accused 1 further submitted that he is a person of good character and he does not have any Previous Convictions except for similar fraud related charges in Ba Magistrate's Court. He is also able to provide sureties and deposit his passport with the Court as well as provide a Bond as security. Furthermore, he is asking for bail in order for him to give full and proper instructions to his Counsel . He will abide by conditions of bail imposed by the Court.

[12] The Affidavit of the other Applicant Abhilash Sharma (Accused 2) was sworn on 3rd August, 2010. This Affidavit would appear to have been sworn before the Accused appeared in Court. The grounds for bail are that Accused 2 is a Fiji citizen but holds a Canadian Permanent Residence Visa. He also submitted that he has a fixed address at 21 Yasi Road, Delainavesi, Lami.

[13] Accused 2 further submitted that this is a summary offence and that he should not be detained in Police custody for so long. His other submission is that he has no Previous Convictions except for similar fraud related charges in Ba Magistrate's Court.

[14] Furthermore, he submitted that he is a person of good character, he is willing to deposit his passport with the Court and to provide surety to the Court. Accused 2 is also willing to abide by any conditions of bail imposed by the Court.

[15] The Prosecution opposes Bail but its statements are not in Affidavit form. The grounds opposing bail are contained in its response filed on 13/9/10.

[16] The Prosecution submitted that the Accused allegedly committed the offences at Nausori, Suva and Ba and that there is a new development in that the accused persons are wanted for police investigations for a similar case at Nadi Police Station.

[17] The Prosecution further submitted that it has strong evidence of admissions by the Accused in their Caution Interview Statements given to the Police.

[18] There is a presumption in favour of granting bail to an Accused person unless it is not in the interests of justice that bail should be granted (section 3(1) of the Bail Act). However, a person who opposes the granting of bail may seek to rebut the presumption (section 3(3) of the Bail Act).

[19] Section 17(2) of the Bail Act provides that the main consideration in deciding whether to grant bail is the likelihood of the Accused person coming to court to face his or her trial.

[20] When bail is opposed, the Court must consider the grounds for refusing bail in section 19(1) as follows:

(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.

[21] Section 19(2) lists the circumstances to be taken into consideration when determining the 3 grounds set out in section 19(1).

[22] This Court is mindful that both the Accused are presumed innocent until proven guilty.

[23] This Court also takes judicial notice of the Ruling by the Resident Magistrate Mr Usaia Ratuvili in Ba Magistrates Court Criminal Case No. 305/10 in which both Acccused have pleaded guilty to 3 Counts of Presenting Counterfeit Money and have been convicted as charged.

[24] Their sentence is pending in Ba Magistrates Court and they were further remanded in Police custody for investigation in the Southern Division for similar offences.

[25] Each of the Accused is 31 years of age. Accused 1 is a Canadian citizen and Accused 2 is a Permanent Resident of Canada. They are in Fiji on a temporary permit or visitor's visa. As they normally reside in Canada, they have no fixed address in Fiji. The addresses which they propose residing in Fiji will be addresses on a temporary basis for the purposes of bail.

[26] As the Accused persons normally reside in Canada, they are a flight risk. Defence Counsel have made strong submissions for bail stating that the Accused are willing to surrender their passports to the Court and that they are able to provide suitable sureties as they have family ties in Fiji. They will abide by any strict bail conditions imposed by the Court.

[27] Defence Counsel have also submitted that this is a summary offence and the Accused should not be detained in custody for so long. However, the exact length of time the accused have been in custody is not certain.

[28] This is not a serious offence and, if convicted, the Accused faces a maximum penalty of 5 years imprisonment. The seriousness of the offence is a relevant factor but it is not the predominant factor in deciding whether or not to grant bail (Tak Sang Hao v The State [2001] FJHC ham 003 of 2001S).

[29] On the other hand, the Prosecution submitted that the Accused allegedly committed offences at Nausori, Suva and Ba and that they are required for Police investigation of further alleged offences of a similar nature at Nadi Police Station.

[30] The Prosecution further submitted that they have strong evidence against the Accused in their admission of the offences in their Caution Interview Statements.

[31] The Accused have been convicted in Ba Magistrates Court Criminal Case No. 305/10 and they face similar charges in this Court. They are also required in Nadi Police Station for questioning on alleged offences of a similar nature.

[32] In Elia Manoa v The State, High Court Misc. Criminal Case No. HAM095 of 2010 (Unreported), Judge Goundar stated at para. 13:

"Although the new charges are not in anyway evidence of guilt, the factor is of considerable importance when determining the likelihood of the accused person committing an arrestable offence while on bail. As was said by Hopper L.J. in R v Crown Court at Harrow [2003] 1 WLR 2756,2778:

'The fact that the new offences appear to have been committed whilst on bail is likely to be a factor of considerable importance against the defendant when deciding whether there are substantial grounds for believing that, if released, he would commit a further offence while on bail.' "

[33] The circumstances of these alleged offending are similar and the possibility of the accused committing further offences when released on bail is high.

[34] Bail has been refused by the Resident Magistrate in Ba Magistrates Court and the Accused remanded in Police custody for the purposes of Police investigation in the Southern Division.

[35] In Wakaniyasi v State, [2010] FJHC 20; HAM 120.209 (29 January 2010) (Unreported) Judge Goundar referred to section 19(1) and stated that "all 3 grounds need not exist to justify refusal of bail. Existence of any one ground is sufficient to refuse bail".

[36] Although this is a summary offence, I consider that it is in the public interest and the interest of justice that the accused be remanded in custody. Bail is therefore refused.

[37] Accused is represented by Counsel and a hearing date will be fixed by the Court.

[38] Defence Counsel has also raised the issue of Prison Wardens forcefully cutting the hair of the Accused persons while remanded in custody. They are not serving prisoners.

[39] The Court Registry is therefore directed to contact the Commissioner of Prisons and draw this matter to his attention for Prison Wardens to treat remand prisoners in accordance with lawful authority.

[40] Finally, the Prosecution is to notify the Canadian Consular Representatives of the next court date whether they wish to be involved in these proceedings.

Date this 14th September, 2010

Makereta Hiagi Mua

RESIDENT MAGISTRATE