State v Nand [2013] FJMC 344; Criminal Case 646.2013 (29 July 2013)

IN THE MAGISTRATE'S COURT
AT NADI, FIJI

CRIMINAL CASE N0: 646/2013

BETWEEN:

THE STATE
PROSECUTION

AND:

KRISHAN VIJAY NAND
MIHUIYUN
ACCUSED PERSONS

BEFORE: Resident Magistrate Mr. Thushara Rajasinghe,

COUNSEL: Cpl Chand for the Prosecution,
Mr. Anil Singh for the second Accused,

Date of the Sentence: 29th of July 2013.

RULING

1. The second accused person is sought to vary the bail condition of overseas travel restriction on her pursuant to the bail order dated 10th of July 2013. The accused person stated in her affidavit in support that she is on a guardianship visa with her two children and they are attending school in Fiji. She further stated that she sustained severe injuries as a result of the incident for which she is now being charged in this court and need to travel back to South Korea for medical treatment. Apart from her affidavit in support, the learned counsel of the accused person also provided some information and facts from the bar table to support her application during the hearing of this notice of motion.
   
2. Initially the prosecution did not object for this application and then informed that they object but do not wish to file any objection in affidavits. Ironically the prosecutor did not provide any specific and clear ground for his objection. His lordship the Chief Justice Gates in FICAC v Padarath (2013) FJHC 44, HAR019.2012,( 7th February 2013) observed that " Where counsel concedes a legal point in court or does not object to ba ;as60;as here, that is t is not the end of the matter so far as the judicial officer is concerned. The judge or magistrate should take the concession into account carefully when deliberating upon his own decision. He or she will consider why the concession has been made, and whether it is correct on the facts and the law. Ultimately however, the responsibility for deciding the pertinent issue lies solely with the judicial officer. There can be no abandonment of that public duty. It is placed upon the Magistrate here and not the prosecutor". Furthermore, Justice Gounder in Aluseni v State (2013) FJHC 13, HAM08.2013 (22 january 2013) held that "It is not unusual for the prosecution not to oppose bail. When such a stance is taken by the prosecution, the Court is not relieved of its obligation to give due regard to the considerations under section 19 of the Act".
   
3. In view of the above judicial precedence, it is a judicial obligation of this court to give due and sufficient regards to the material evidence and facts provided by the parties and consider them with the relevant provisions of the Bail Act. I accordingly proceed with my ruling on this bail variation application as follows.
   
4. Pursuant to Section 4 (1) of the Bail Act the accused person who is granted bail is entitled to enjoy his own liberty. The section 4 (1) states that " An accused person who is in custody for an offence and who had been granted bail is entitled to be released, upon giving a bail undertaking, and subject to section 25, to remain at liberty until required to appear before a court in accordance with the bail undertaking".
   
5. Bail may be granted unconditionally, however the court is empowered to grant bail subject to conditions pursuant to section 22 (1), (2) of the bail act.
   
6. The purpose and effect of granting bail conditionally or unconditionally has discussed in Iliaseri Saqasaqa v The State ( HAM 005.065;) where His Lordship Justice Gates (as he then was) held that "Bail condition, imposing as they must restrictions on persons awaiting trial, must therefore be reasonable and commensurate whe gravity of the offence and with the individual risks ides identified as applicable. Bail must not be fixed excessively, in effect, denying the applicant an opportunity to take up the grant of bail. This has been a principle of great antiquity in the common law".
   
7. Observing the reasonableness of granting of conditional bail, justice Goundar held in Laisenia Qarase v FICAC (HAM 038 0f 2009) that "The right to liberty is a basic human right. Bail for a person accused of an offence means authorization for the person to be at liberty instead of in custody, on condition that the person appears for trial. Conditional bail is granted as an alternative to pre-trial detention. Permissible conditions include the surrendering of travel documents, imposition of a residence requirement and the provision of a surety assessed in relation to the means of the accused. These restrictions on the right to liberty are consistent with international law (Wemhoff v Germany (1968)RR 550)".
   
8. Having considered the purpose and reasonableness of the conditional bail, I nrn to review the laws pertapertaining to the application for variation of overseas travel restriction.
   
9. Hon Justice Gounder held in Laisenia Qarase v FICAC (HAM 038 0f 2009) that "Whilst the need to secure the accused's attendance at hearings is a paramount consideration in this kind of application, the purpose of the overseas visit, the length of time the accused will be abroad and the inconvenience caused to the administration of justice are equally relevant factors for consideration".
   
10. In view of the above judicial precedence, the main consideration that the court is required to consider in an application of this nature is likelihood of accused person appearing in court to answer the charges laid against him. This main consideration is specifically stipulated under section 17 (2) of the Bail Act. Apart from that the purpose of the overseas visit, the duration of the visit and the inconvenience caused to the administration of justice are also need to be considered.
    
11. Section 19 (2) (a) has provided the relevant circumstances that is required to consider in order to form a proper judicial opinion on the issues of likelihood of surrender to custody. The accused person background and community ties ( including residence, employment, family situation, previous criminal record) is one of such circumstances among others stipulated under section 19 (2) (a).
    
12. Upon considering the laws and relevant provisions pertaining to the application for variation of overseas travel restriction, I now proceed to analyze the evidence and information presented by the learned counsel of the accused person and the prosecution with these legal principles.
    
13. The accused person is not a citizen of this county and she is on a guardianship visa and looking after her two children who are studying in Fiji. The defence did not provide any evidence of the duration of her guardianship visa apart from merely stating that she is on such visa. The learned counsel of the accused informed the court from bar table that she will take her two children with her if she is granted permission to leave the country. The only fact that she is connected to Fiji apart from her guardianship visa is her visa bond of $ 5000 and the furniture of her that is worth of $12,000.
    
14. In view of these facts, I am of the view that she has no permanent or any sufficient temporary ties to this country. Since I am not provided with the details of her visa status apart from mere indication of the nature of her visa, I am not in a position to form a positive opinion of her commitment to return the country. She has no permanent residence, employment or family connection to the country. Hence I find the accused person personal background and community ties are not sufficient to form a positive opinion in favor of the accused person.
    
15. I now draw my attention to the issue of purpose of the visit. The main purpose of her proposed visit is medical ground. She stated that she sustained severe injuries. However she did not provide any material evidence to prove that she is suffering from any form of severe injuries apart from a letter from a dentist. I could find from the facts provided by the accused person that the accused person alleges that she is suffering from two types of injuries; one is the injuries she sustained in her mouth and second is head injuries.
    
16. In respect of this alleged mouth injuries, the dentist report tendered by the accused person itself speaks that she could get treatment in Fiji. The dentist has given her recommendation for required treatment and also provided her with estimated cost for it. The accused contended that she could obtain required medical treatment in negligible amount in South Korea. Again the accused did not provide any material evidence to substantiate her contention. It is the onus of the accused person to satisfy the court that she could obtain better and less expensive treatment than in Fiji which she failed to provide.
    
17. She further stated that she suffered head injuries and as a result of it she is currently having dizziness, vomiting, loss of vision and severe headache. The accused again merely stated those and did not provide any medical evidence that she is actually suffering from such medical conditions. The learned counsel again showed two photographs from the bar table but did not bother to provide them as annexure to the affidavit in support. The learned counsel stated that she needs to have a scan which Fiji does not have such facilities. The counsel answered that she needs to have a CT scan to ascertain the damages to her head. However the counsel then changed his position and informed that she needs to have a MRI scan when the court informed that CT scan is available in Fiji.
    
18. The accused alleged that she was discharged by the Nadi Hospital without due care and treatment. She did not specify the date of such discharged. However, I could presume that she may discharge soon after this incident took place on 4th of July. Though the accused alleges that she is in need of urgent medical care and severe medical condition, there is no record of her obtaining further medical treatment apart from the dentist report.
    
19. At this point, I reiterate the observation of Justice Gounder in Laisenia Qarase v FICAC (HAM 038 0f 2009) that "Conditional bail is granted as an alternative to pre-trial detention". In order to vary or change such conditions, the accused person must provide substantial and sufficient evidence to satisfy the court that there is real need for such variation or alteration. Instead of providing such material evidence, the learned counsel went on explaining the long standing bilateral relationship between the governments of Fiji and South Korea and financial assistance given by the Korean government to upgrade the Fiji medical system. I do not find any relevancy of these facts with this application before me.
    
20. In view of these reasons set out above, I do not find that there is a need of urgent medical care and valid reason for her to travel back to South Korea at this moment on the ground of medical reason.
    
1. I do concur with the learned counsel of the accused that she is not charged with serious offences and all of them are reconcilable offences. Indeed the seriousness of the offence is one of such circumstances stipulated under section 19 (2) (a) of the Bail Act. However, it is a judicial obligation to comparatively assess and weight all of those circumstances in order to ascertain the interest of justice in order to grant bail as it is required under section 3 (1) of the Bail Act. Gounder J, held in Isimeli Wakaniyasi v State ( 2010),FJHC 20;HAM 120/2009 (29th January 2010), that "All three grounds need not exist to justify refusal of bail, existence of any one grounds is sufficient to refuse bail".
   
21. Section 18 (1) (b) states the interest of the accused person is one of main considerations for the determination of bail. Furthermore, section 19 (2) (b) (iv) and (Vi) states that the need for the accused person to be at liberty for his other lawful purposes such as employment, education, care of dependants and the accused person's health should be considered in order to ascertain the interest of the accused person.
    
22. In view of the issue of interest of the accused person, I find she has all the liberty to access the medical facilities available in Fiji. If she still needs further medical attention that is not available in Fiji, she has the liberty to make an application under section 30 or 31 of the Bail act with sufficient evidence to prove such claim.
    
23. In conclusion, having considered the reasons setout above, I refuse the application of the accused person for the variation of overseas travel restriction and dismiss the notice of motion.
    

On this 29th day of July 2013.

R.D.R.Thushara Rajasinghe
Resident Magistrate, Nadi.