State v Chand [2013] FJMC 194; Criminal Case 581.2013 (17 May 2013)

IN THE MAGISTRATES COURT AT NASINU

Criminal Case No. 581/2013

STATE

-v-

VINESH CHAND

PC Ravi Narayan for the police
Mr. Naipote Vere for the accused.

Bail Ruling

1] In this case the accused is charged with following offences.

CHARGE:

FIRST COUNT

Statement of Offence [a]

ABDUCTION: Contrary to Section 282 (C) of the Crimes Decree No. 44 of 2009.

Particulars of Offence [b]

VINESH CHAND on the 11th day of May, 2013, at Nasinu in the Central Division, abducted Vishal Navitesh Ram that Vishal Navitesh ram may be subjected to the unnatural lust.

SECOND COUNT

Statement of Offence [a]

SEXUAL ASSAULT: Contrary to Section 210 (1) (a) of the Crimes Decree No. 44 of 2009.

Particulars of Offence [b]

VINESH CHAND on the 11th day of May, 2013, at Nasinu in the Central Division, procured Vishal Navitesh Ram to commit an act of gross indecency of unnatural offences.

THIRD COUNT

Statement of Offence [a]

CRIMINAL INTIMIDATION: Contrary to Section 282 (C) of the Crimes Decree No. 44 of 2009.

Particulars of Offence [b]

VINESH CHAND on the 11th day of May, 2013, at Nasinu in the Central Division, without lawful excuse, threatened Suman Lata with a stick with intent to cause alarm to the said Suman Lata.

FOURTH COUNT

Statement of Offence [a]

CRIMINAL INTIMIDATION: Contrary to Section 282 (C) of the Crimes Decree No. 44 of 2009.

Particulars of Offence [b]

VINESH CHAND on the 11th day of May, 2013, at Nasinu in the Central Division, without lawful excuse, threatened Cpl 1877 Daveta Tuiraviravi with a pinch bar with intent to cause alarm to the said Cpl 1877 Daveta Tuiraviravi.

FIFTH COUNT

Statement of Offence [a]

RESISTING ARREST: Contrary to Section 277 (b) of the Crimes Decree No. 44 of 2009.

Particulars of Offence [b]

VINESH CHAND on the 11th day of May, 2013, at Nasinu in the Central Division, resisted arrest by Cpl 1877 Daveta Tuiraviravi in due execution of his duty.

SIXTH COUNT

Statement of Offence [a]

ANNOYING ANY PERSON: Contrary to Section 213 (1) of the Crimes Decree No. 44 of 2009.

Particulars of Offence [b]

VINESH CHAND on the 11th day of May, 2013, at Nasinu in the Central Division with the intent to insult the modesty of Cpl 1877 Daveta Tuiraviravi, uttered the words "Fuck you" my god will kill you intending that such words be heard by the said Cpl 1877 Daveta Tuiraviravi.

SEVENTH COUNT

Statement of Offence [a]

ANNOYING ANY PERSON: Contrary to Section 213 (1) of the Crimes Decree No. 44 of 2009.

Particulars of Offence [b]

VINESH CHAND on the 11th day of May, 2013, at Nasinu in the Central Division with the intent to insult the modesty of PC 4499 Sharon Kumar, uttered the words "maichod" meaning mother fucker intending that such words be heard by the said PC 4499 Sharon Kumar.

2] The accused's counsel elaborated grounds for bail are as follows;

1. Right to bail and presumption of bail under section 3 of the Bail Act.
2. That no immediate trial date can be set as the court's diary is fully booked for this year.

100. That He is supporting his family and two children. Both children are in secondary school.

4. Best interest of the children should be paramount
5. That He is the sole bread winner of the family
6. That he will provide sureties and abide by any bail condition
7. No previous record of jumping bail.
8. No record of interfering any prosecution witnesses.
9. Accused has never been imprisoned.
10. His previous convictions are more than 10 years old and should be ignored under Rehabilitation of Offenders Act.
11. DVRO is only for annoying persons

50. PW1 is homosexual. PW1 Vishal Navitesh Ram did not complain against him it is only his wife complained.

13. Presumption of innocence to be considered.
    

3] The Accused Counsel tendered Devi v The State [2003] FJHC 200 case for consideration of this court.

4] The police prosecution has made lengthy opposing submission.

1. Accused has previous matters in Magistrates Court and he breached the bail conditions.
2. The Accused undergoing suspended sentence

100. Charges are serious and they have strong case.

4. One charge relates to domestic violence.
5. Public interest is at stake
6. Victims are sensitive persons
   

5] The prosecutor relied on Waqa v State [2010] FJHC 256, Masirewa V State [2013] FJHC 27 and Wakakaiyasi V The State, HAM 120 of 2009 cases.

6] The accused has pending cases and he has never disputed this fact. The prosecution claims that he breached those bail conditions as he was warned not to re offend whilst on bail.

7] The law on bail is lucid. The principles on bail are highlighted as below;

• Section 3 (1) of the Bail Act states that every accused person has a right to be released on bail unless not in the interest of justice that bail should be granted.
  
• Section 17 (2) of the Bail Act 2002 states that the primary consideration for bail is the likelihood of the defendant appearing in Court to answer the charges laid against him or her.
  
• Section 19 (1) of the Bail Act 2002 states: "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
    
  • (c) Granting bail to the accused person would endanger the public interest or make the protection
    

8] In Isimeli Wakaniyasi v The State (2010) FJHC 20; HAM 120/2009 (29th January 2010). His Lordship Justice Goundar states that:

"All three grounds need not to exist to justify refusal of bail. Existence of any one ground is sufficient to refuse bail".

9] While pending cases the accused created this case as well. In Elia Manoa v the State (Misc. Crim. Case No: HAM095 OF 2010, 02nd June 2010) His Lordship Justice Gounder held "Although the new charges are not 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". In R v. Crown Court at Harrow[2003] 1WLR 2756,in page 2778 Hopper LJ enunciated " The fact that the new offences appears 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" .

10] The accused claimed that he is a sole bread winner and to the best interest of the children bail should be granted. If he really loves his children he should have evaded from doing these things. In Crim. Misc. Case No: HAM 120A/2012, WATISONI SERELEVU vs THE STATE His Lordship Justice P.Kumararatnam on 26/09/2012 held that being a sole breadwinner of his family and he is now separated from his wife and is now looking after his 3 children are not good grounds for grant bail. Thus, no best interest factor can be taken in this regard.

11] When court considers his previous convictions the accused has 11 previous convictions. 9 of them are within ten years of period and the accused was bound over for 3 years on 20th June 2011. The prosecution mentioned there are pending cases as well. Thus the accused has breached previous bail conditions on bound over and earlier cases. This was considered in Lautabui v State [2010] FJHC 397; HAM142.2010 (27 July 2010) in giving reasons Hon Justice Gounder said "I am satisfied that the applicant breached his bail condition.... Under the Bail Act, the presumption in favour of bail is displaced when there is a breach."

12] The prosecution informed the complainant is in the case is the accused wife. There is a charge related to domestic violence. According to the new amendments to the Bail Act 2002, the presumption of right to bail is displaced when the accused has been charged with domestic violence offence. Therefore there is no presumption of right to bail as it has been already displaced.

13] The accused resisted on law enforcement officers. His past history shows that he had been doing this for few times and charged and pleaded guilty. This is the third time. When considering section 19(2) of said bail Act provides inter alias previous criminal history, failure to surrender custody or breach of bail conditions, strength of the prosecution case and the likelihood of the accused person committing an arrestable offence while on bail could be determined as rebuttal of above presumption.

14] In Bete v Stu> - Bail Ruling [ing [2012] FJHC 1101; HAM62.2012 (10 May 2012) Justice Thurairaja stressed the granting bail to the accused person would endanger the public interest or make the protection of the community more difficult is strong ground for refusal of bail.

15] It is true that this court's diary is fully booked, but to expedite this case the Chief Magistrate can appoint new magistrate to hear this case. That cannot be sound ground to grant bail.

15] I am satisfied that the prosecution has rebutted the presumption of right to be released on bail. Bail is refused.

16] Under section 14(3) of bail Act the accused is advised not to make any bail applications on above grounds (similar grounds) again.

17] Under section 30 of Bail Act the accused may appeal against this ruling.

18] 28 days to appeal.

On 17th May 2013, at Nasinu, Fiji Islands

Sumudu Premachandra
Resident Magistrate