State v Prasad [2014] FJMC 73; Criminal Case 202.2011 (6 May 2014)

IN THE MAGISTRATE COURT OF FIJI
AT TAVUA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. 202/11

BETWEEN:

THE STATE

AND:

SALEN PRASAD

Prosecution: PC Dinesh
Accused: Ms J Singh (Legal Aid)

Hearing: 29th April 2014
Ruling: 6th May 2014

Bail Ruling

Background

1. The accused person Salen Prasad is charged with Obtaining Financial Advantage by Deception contrary to section 318 of the Crimes Decree No. 44 of 2009.
   
2. The said offence is alleged to have been committed between 1st of October 2011 to 31st October 2011. He was charged and first appeared in court on 5/12/11. He was then bailed by the court. Accused was bailed on the sum of $500.00 bail bond and part of the condition he agreed to comply with as per the bail papers (dated 5/12/11) was that:
   
   • He must continue to appear at any time and place at which proceedings in respect of the offence are committed, whether upon adjournment, committal or otherwise.
   • He must reside at Kashmir Lautoka and continue to reside there until the case is disposed.
     
3. In light of the above back drop I apparently note from the record that the court had issued five bench warrants against the accused for non-appearance. The 1st bench warrant was issued on 17/2/12 and was cancelled on 5/3/12 as accused came on his own and informed the court that he was sick but no sick sheet was produced before the court.
   

Then on 10/9/12 a 2nd bench warrant was issued against accused and this was cancelled on the returnable date 29/10/12 and bail extended. Accused appeared on his own and informed the court that he couldn't take leave from work.

On 17/12/12 a 3rd bench warrant was issued and this was cancelled on 22/1/13 and bail extended. Accused appeared on his own and informed the court that he had forgotten the date.

On 25/2/12 a 4th bench warrant was issued against accused for non-appearance and this was cancelled on 16/4/13 and bail extended. On this occasion accused appeared with counsel (Mr Rosa) and the court was informed that accused was working in the Islands and couldn't make it to court.

On 24/6/13 a 5th bench warrant was issued against accused for non-appearance and this time his counsel appearing requested to withdraw for insufficient instructions and that accused had lied to him. Leave was granted to counsel to withdraw. On 1/4/14 accused appeared in court on his own and the court refused to grant him bail. He was instructed to file a fresh application for bail.

4. This matter was called again on15/4/14 and accused appeared with his new counsel from Legal Aid (Ms J Singh). The matter was then adjourned to 29/4/14 for bail hearing.
   
5. Prosecution objected to bail and briefly stated that the court had granted bail to accused and he has refused to obey bail conditions. He has forfeiture of bail conviction (PC's tendered). Has history of breaching bail as per court record. Strongly objecting to bail. Court record speaks for itself.
   
6. Accused counsel requested for bail and stated that the previous conviction for forfeiture of bail was in the year 2000 and that is more than 10yrs old. There is a strong presumption in favour of bail. Section 3(1) of the Bail Act, bail should be granted unless it's not in the interest of justice to do so. Constitution presumes accused being innocent until proven guilty. It was also submitted that the court consider the primary consideration for bail which is likelihood of accused appearing court. Also the court to consider interest of accused and public interest. Accused came on his own to court for cancellation of B/W. He was working in the Islands and that is why he came to court to cancel his B/W. There is nothing in the evidence of alleged offence. He's an asthmatic. He needs to get in touch with counsel. Ask that bail be granted.
   
7. According to section 3(1) of the Bail Act 2002 "Every accused person has a right to be released on bail unless it is not in the interest of justice that bail should be granted."
   
8. There is always a presumption in favor of bail for every accused person nonetheless the party opposing bail may rebut that presumption by proving on a balance of probability that accused ought not to be released on bail.
   
9. Section 19 of the Bail Act 2002 also sets out the relevant criteria for the courts consideration when determining whether bail should be refused i.e.
   
   • (i) That accused is unlikely to surrender to custody and appear in court;
     
   • (ii) The interest of the accused will not be served through granting bail;
     
   • (iii) Granting bail would endanger the public interest or make the protection of the community more difficult.
     
10. In Isimeli Wakaniyasi v The State (2010) FJHC 20; HAM 120/2009 (29th January 2010). His Lordship Justice Goundar stated that:
    

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

11. When deciding on the issue of bail in this case, I bear in mind that this bail hearing is not for the purpose of determining the innocence or guilt of accused person. This hearing is basically to resolve whether it would be in the interest of justice that bail be granted or refused.
    
12. When considering this application I also borne in mind that the burden is on prosecution to rebut the presumption in favor of bail on the balance of probability. Having said that I pertinently note that the gist of prosecution objections to bail is based on what is reflected on the court record.
    
13. As I noted earlier the court record clearly shows that accused had not been appearing on several occasions the reason why bench warrants were issued on five separate occasions.
    
14. It is well recorded that accused had either appeared on his own or with counsel with excuses for non-appearance. On one occasion accused informed the court that he was sick and was unable to attend his case. No sick sheet was produced. I further note that on another occasion accused appearing with former counsel informed the court that he was working in the islands and that was why he couldn't appear for his case. Having given this excuse both former counsel and accused should have been aware that according to the bail condition signed in the bail form, accused was not too reside elsewhere unless the case had been disposed. Having said that there is nothing in the record to show that leave had been granted by the court for accused to go to the Islands where he had been working.
    
15. The court record shows that it has become a norm for accused to present himself to court at his own whim. I'm inclined to agree with prosecution that accused is toying around with the system. Through his former and current counsel he has admitted going to the Islands to work. He left his residence at Kashmir Lautoka without leave of the court. Accused has failed to comply with the bail conditions. Now his asking for bail and expecting the court to accept that his going to comply with bail conditions if granted bail. The accused through he's own action as reflected on record and through his own admission has breached the trust previously placed on him by the court.
    
16. This is a 2011 matter. According to the record much of the delay in this matter has been the result of accused action to delay proceedings by seeking representation and non-appearance in court.
    
17. I've also considered accused personal and family circumstances as basis to be granted bail. I do not think that such reasons are compelling enough for granting bail.
    
18. I'm satisfied on the balance of probability that accused will unlikely appear and surrender to the custody of the court. The presumption in favor of bail has been rebutted by prosecution.
    
19. In the interest of justice bail is refused and accused is to be remanded in custody pending hearing of substantive matter.
    
20. Accused is at liberty to appeal this decision to the High Court.
    
21. This court will not entertain any further bail application from the accused unless there is some material change in circumstances.
    
22. Accused counsel is directed to take instructions from accused and if need be file within fourteen (14) days grounds for voir dire hearing.
    
23. Matter to be called again in fourteen (14) days to check on grounds for voir dire hearing. Once grounds are filed prosecution will be given a further 14 days to serve necessary disclosures for voir dire.
    
24. Considering that this is a 2011 matter a hearing date will also be fixed today.
    

Samuela Qica
Resident Magistrate

6th May 2014