Kumar v State [2021] FJSC 1; CAV 20 of 2020 (5 February 2021)

IN THE SUPREME COURT OF FIJI
APPELLATE JURISDICTION
Criminal Appeal No. CAV 20 of 2020

BETWEEN:
ABHINESH KUMAR
Applicant

AND:
THE STATE
Respondent

Coram: Hon. Mr. Justice Kamal Kumar, President of the Supreme Court

Counsel: Mr. R. Singh for Applicant
Mr. M. Vosawale, Ms S. Shameem and Mr. J. Nasa for Respondent

Hearing: 4 February 2021
Ruling: 5 February 2021

RULING
(REVIEW – BAIL PENDING TRIAL)

1.0 Introduction

1.1 On 30 December 2020, Applicant filed Application for Review of His Lordship Justice Hamza’s ruling delivered on 9 November 2020, and for an Order that Applicant be granted bail pending trial on such terms and conditions as the Court may determine (“Application”).

1.2 Applicant relied on his Affidavit sworn on 24 December 2020 and filed on 30 December 2020 (hereinafter referred to as “Applicant’s Affidavit”).

1.3 Application was called on 27 January 2021 when parties were directed to file and serve Affidavit/Submission and the Application was adjourned to 4 February 2021, for hearing.

1.4 On 29 January 2021, Respondent filed Affidavit in Opposition of the complainant in Criminal Case No. HAC 282 of 2020 (hereinafter referred to as “Complainant’s Affidavit”).

1.5 Both parties filed Submissions as directed by the Court.

2.0 Background Facts

2.1 On or about 28 September 2020, Applicant was charged with one count of rape contrary to section 207(1)(2)(a) of Crimes Act 2009 (“Crimes Act”) in High Court Criminal Case No. HAC 282 of 2020.

2.2 On 23 October 2020, Applicant pleaded not guilty to the charge and filed Application for Bail pending trial.

2.3 Applicant had been in custody from 28 September 2020 (date of arrest).

2.4 On 23 October 2020, High Court heard the Bail Application and on 9 November 2020, delivered the ruling whereby Applicant was denied bail pending trial.

3.0 Notice of Motion filed on 30 December 2020

3.1 Counsel for the Respondent (Ms Shameem) raised the issue that Notice of Motion stated that Application is made pursuant to section 30(4) of the Bail Act 2002 (“Bail Act”) which deals with review by Court of Appeal.

3.2 Counsel for the Applicant responded by stating that it was an error and is not prejudicial.

3.3 This Court is of the view that the error does not affect the Application in any respect and has not caused any prejudice or confusion.

3.4 In fact on 27 January 2021, Applicant’s Counsel specifically submitted that Application is made under section 30(5) of Bail Act.

3.5 This Court will therefore proceed to deal with the Application as if it has been filed under section 30(5) of Bail Act.

4.0 Application for Review

4.1 Section 30 of Bail Act provides as follows:

“30 (1) A Magistrate may review any decision made by a police officer in relation to bail.

(2) A Magistrate may review a decision made by another Magistrate, including a reviewing Magistrate, in relation to bail.

(3) The High Court may review any decision made by a Magistrate or by a police officer in relation to bail.

(4) The Court of Appeal may review any decision made by the High Court in relation to bail.

(5) The Supreme Court may review any decision of a Magistrate, the High Court or the Court of Appeal, in relation to bail."

(6) A court may not review a decision under this Part if the court is prohibited from making a decision in relation to the grant of bail by any other written law.

(7) A court which has power to review a bail determination, or to hear a fresh application under section 14(1), may, if not satisfied that there are special facts or circumstances that justify a review, or the making of a fresh application, refuse to hear the review or application.

(8) The power to review a decision under this Part in relation to an accused person may be exercised only at the request of –

(a) the accused person;

(b) the police officer who instituted the proceedings for the offence of which the person is accused;

(c) the Attorney-General;

(d) the Director of Public Prosecutions; or

(e) the victim of the offence.

(9) The power to review a decision under this Part includes the power to confirm, reverse or vary the decision.

(10) The review must be by way of a rehearing, and evidence or information given or obtained on the making of the decision may be given or obtained on review.”

4.2 Respondent relied on comments made by Honourable Judges in Masirewa v State [2017] FJHC 956; HAM 178 of 2017 (29 December 2017), Gadre v State [2018] FJHC 1154; HAM 103 of 2018 (5 December 2018) and Ratu v State [2019] FJHC 316; HAM 06 of 2019 (9 April 2019) in support of its submission that Applicant should have exhausted appeal procedure prior to applying for review.

4.3 In Masirewa (supra) Court stated:-

“The key distinction between an appeal and a review is that on appeal the decision on bail is considered for errors in the exercise of discretion by the lower court, while on review, the decision on bail is considered afresh.

In the present case, the applicant justified invoking the review procedure on the ground that he had exhausted the appeal procedure and was unsuccessful. However, there is no record that an appeal was ever filed in this matter. In my judgment the review procedure is unavailable if the bail decision could have been appealed. As was said by Scott J in Abhay Kumar Singh v State Miscellaneous Application 1/2004 (23 June 2004) that ‘review is only available where, for one reason or another, the appeal procedure cannot be resorted to.” (emphasis added)

4.4 In Gadre (supra) Court stated as follows:

“It’s important to realize that the scope of an appeal will be limited because the appellate court is only interested in learning if the court below exhibited an abuse of its discretion. This means that one can expect an appellate court to uphold the original bail decision unless it is obvious that it was erroneous, unreasonable, or arbitrary. If the appellate court determines that the bail decision appears to be supported by facts and the law, then the bail determination will not be changed.

A bail decision typically needs to be final for there to be an option to appeal. Orders for bail can be interlocutory, meaning that they are subject to change and may not be subject to appeal. In this jurisdiction, bail orders are generally considered not final, which means that a party aggrieved by a bail determination can ask the court that made the order to review its previous bail determination. When a subsequent bail review application has been refused erroneously, unreasonably, or arbitrarily, the order becomes final and an aggrieved party can come to this court by way of an appeal. Review in High Court is only available where, for one reason or another, the appeal procedure cannot be resorted to for example where the applicant had exhausted the appeal procedure.”

4.5 In Ratu (supra) Court stated as follows:

“As it was mentioned before, a Court will not entertain an application for bail review if the Applicant has not exhausted the appeal procedure. The law is very clear pertaining to bail reviews. The Applicant has not appealed against any of the orders made previously refusing bail. Therefore, this application for bail review is not a tenable application.”

4.6 There is no provision in Bail Act or any other written law to say that a party has to invoke and exhaust the Appeal procedure before he/she can seek review of decision of lower court.

4.7 This Court takes into account that in Masirewa, Gadre and Ratu, Court noted that pursuant to section 31 of Bail Act a party has right to Appeal from Magistrates Court to Court. Hence section 31 has no implication in respect to section 30(5) of Bail Act.

4.8 Courts jurisdiction to review a decision is independent of a party’s right to appeal to the higher court.

4.9 This Court is of the view that the right to review granted to parties can be exercised by the party irrespective of whether that party appeals the decision or not.

4.10 This is due to the manner and grounds for review is distinct from the manner and grounds of appeal.

4.11 Party applying for review is not legally obliged to appeal against the Order that will require superior court to re-look at the evidence and facts in the ruling delivered by lower court.

4.12 Mere fact that the Legislature enacted section 30 in the Bail Act shows the importance it gives to rights of individuals.

4.13 Refusal of bail obviously affects a person’s right to liberty, freedom of movement and right to work, right to have valuable time with family.

4.14 Grant of bail may affect the community, or specified person adversely.

4.15 These are the reasons Courts, when entertaining bail applications should exercise their discretion judicially, in the interest of justice and ensure that a person’s fundamental rights are not curtailed without just or lawful exercise.

4.16 This is the reason Bail Act granted superior courts the independent discretion to review lower courts decision.

4.17 Furthermore, if review was the subject to a party exhausting the appeal procedure, I doubt if “Magistrates Court” appear in section 30(5) of Bail Act.

4.18 Respondent also submitted that if the Court entertains the Application then it will open a floodgate whereby accused whose bail application is refused will seek review of lower court’s ruling to this Court.

4.19 The Court is of the view that there is merit in learned Counsels’ submissions.

4.20 Even though this Court is of the view that Application for Review is independent the correct approach is that expressed by Justice Scott in Singh v State Miscellaneous Application 1/2004 (24 June 2004) and adopted in Masirewa v State.

4.21 In this instance, Applicant had put following in evidence:-

(i) Applicant filed Appeal and on 4 December 2020 application for Review in Court of Appeal;

(ii) Since, 4 December 2020, Applicant’s Solicitors have been liaising with Court of Appeal Registry for a date to be assigned but todate no date has been assigned.

4.22 Applicant has invoked the process of appeal.

4.23 In view of the evidence produced to this Court it is apparent that there is no way the Application would be dealt with by Court of Appeal before the trial date, as the next session of Court of Appeal will commence on 6^th April 2021.

4.24 Therefore, interest of justice demands that the Application filed in this Court be dealt with.

4.25 It is apparent from Ruling delivered by His Lordship Hamza that he did not consider the evidence in detail and explained why he was of the opinion that granting bail to Applicant would endanger public interest and make protection of community more difficult.

4.26 His Lordship whilst taking into consideration that this is a domestic violence case and safety of specified person is likely to be at risk failed to consider the evidence fully and consider if bail is granted subject to strict condition it would guard the risk to the specified person as was case referred to by Applicant’s counsel.

4.27 In view of what is expressed at the paragraphs 4.25 and 4.26 this Court has no option but to determine the Bail Application afresh.

4.28 This Court will need to determine that whether on the basis of evidence produced in this Court Applicant should be granted bail or bail should be refused.

4.29 Section 3(1) to (4) of the Bail Act provides:-

“3(1) Every accused person has a right to be released on bail unless it is not in the interests of justice that bail should be granted.

(2) Bail may be granted by a court or, subject to section 8(2), by a police officer.

(3) There is a presumption in favour of the granting of bail to a person but a person who opposes the granting of bail may seek to rebut the presumption.

(4) The presumption in favour of the granting of bail is displaced where –

(a) the person seeking bail has previously breached a bail undertaking or bail condition;

(b) the person has been convicted and has appealed against the conviction; or

(c) the person has been charged with a domestic violence offence.” (emphasis added)

4.30 Section 17(1)(2) of the Bail Act provides:-

“17(1) When deciding whether to grant bail to an accused person, a police officer or court, as the case may be, must take into account the time the person may have to spend in custody before trial if bail is not granted.

(2) The primary consideration in deciding whether to grant bail is the likelihood of the accused person appearing in court to answer the charges laid against him or her.” (emphasis added)

4.31 Section 19 of the Bail Act provides as follows:-

“19 (1) 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 of the community more difficult; or

(d) the accused person is charged with a domestic violence offence and the safety of a specifically affected person is likely to be put at risk if bail is granted taking into account the conditions that could be applied if bail were granted.

(2) In forming the opinion required by subsection (1) a police officer or court must have regard to all the relevant circumstances and in particular –

(a) as regards the likelihood of surrender to custody-

(i) the accused person’s background and community ties (including residence, employment, family situation, previous criminal history);

(ii) any previous failure by the person to surrender to custody or to observe bail conditions;

(iii) the circumstances, nature and seriousness of the offence;

(iv) the strength of the prosecution case;

(v) the severity of the likely penalty if the person is found guilty;

(vi) any specific indications (such as that the person voluntarily surrendered to the police at the time of arrest, or, as a contrary indication, was arrested trying to flee the country);

(b) as regards the interests of the accused person –

(i) the length of time the person is likely to have to remain in custody before the case is heard;

(ii) the conditions of that custody;

(iii) the need for the person to obtain legal advice and to prepare a defence;

(iv) the need for the person to be at liberty for other lawful purposes (such as employment, education, care of dependents);

(v) whether the person is under the age of 18 years (in which case section 3(5) applies);

(vi) whether the person is incapacitated by injury or intoxication or otherwise in danger or in need of physical protection;

(c) as regards the public interest and the protection of the community –

(i) any previous failure by the accused person to surrender to custody or to observe bail conditions;

(ii) the likelihood of the person interfering with evidence, witnesses or assessors or any specially affected person;

(iii) the likelihood of the accused person committing an arrestable offence while on bail; or

(d) as regards the safety of a specially affected person when the accused is charged with a domestic violence offence –

(i) the nature and history of alleged domestic violence by the accused in respect of the person against whom the alleged offence has been committed and any other specially affected person;

(ii) the views of the person against whom the alleged offence has been committed and any other specially affected person about the risk, if any, that the accused may pose to the safety and well-being of a specially affected person while on bail;

(iii) whether a domestic violence restraining order is in effect for the protection of a relevant specially affected person;

(iv) the likelihood of the accused person committing a further domestic violence offence while on bail.” (emphasis added)

4.32 In Nacewa v State [2015 HAM 128 of 2015 (17 August 2015) the Accused was charged with the offence of Rape contrary to section 207(1)(2)(a) of Crimes Act 2009.

4.33 In opposing the Bail Application, State submitted that:-

“(a) Charge against the applicant is serious and entails severe punishment, if found guilty.

(b) Applicant is alleged to have committed the offence against his distance niece who is mildly intellectually impaired. There is a domestic violence relationship.

(c) Strong likelihood of interference with State witnesses.

(d) Case against the applicant is strong and likelihood of not appearing in court to face trial is high, if granted bail.”

At paragraph 11 of the Ruling, Court stated as follows:-

“The charge against the Applicant in the present case is serious and carries a severe punishment, if found guilty. However, seriousness of the charge alone cannot be a good justification to refuse bail. In Tak Sang Hao v the State (2001) FJHC 15L; HAM 003d.2001, Justice Shameem stated that even though the seriousness of the offence is relevant but not the predominant factor.” (emphasis added)

Court after considering provisions 17(1) of the Bail Act granted bail with strict conditions and noted that:-

“18. The Applicant has no history of violating bail conditions.

19. There is no high risk of reoffending, if granted bail.

20. Although there is a domestic relationship, according to the address Victim has given to Police, she is residing in Nawaka while the Applicant is residing in Nausori Highland. Any possible interference with victim and witnesses could be avoided by imposing strict bail conditions.

21. Hence, refusal of bail would not substantially benefit the interests of the public. Keeping the Applicant for a long time without trial is not proportionate to the object to be achieved.”

4.34 In Mikaele v State [2019] FJHC HAM 32 of 2019 (11 March 2019) Accused paternal uncle of the complainant was charged with one count of Rape contrary to section 207 of Crimes Act.

State objected to bail on the ground that Accused is likely to interfere with the complainant who was main witness.

Court granted bail on strict conditions.

4.35 In Raoma v State [2020] HAM 48 of 2020 (14 July 2020), the Accused was charged with two counts of rape, one count of sexual assault and one count of indecent assault. The prosecutrix is a 5 year old girl.

State objected to bail on following grounds:-

“(a) There is a domestic relationship between the prosecutrix and the applicant where the applicant is her paternal uncle and therefore, the presumption in favour of bail is displaced;

(b) The charges against the applicant are very serious;

(c) The prosecutrix is 5 years old;

(d) There is a dispute between the applicant and the family of the prosecutrix;

(e) There is high likelihood of interference of prosecution witnesses who are related to the applicant; and

(f) It is not in the public interest or in the interest of justice to have the applicant release on bail.”

Court after finding that there was some ambiguity in respect allegation of a family dispute granted bail subject to strict conditions.

4.36 In Lagicere v State [2016] HAM 97 of 2016 (23 June 2016), Accused was charged with offence of rape contrary to section 207 of Crimes Act. Accused is the paternal uncle of the complainant who was fourteen (14) years old.

Court granted bail subject to strict conditions.

At paragraph 4 of the Ruling Court stated as follows:

“However, even in a case where an applicant is charged with a domestic violence offence, unless the court is satisfied that the safety of the complainant is likely to be put at risk if bail is granted; bail must be granted [Ganita v State HAM 060/2016; 03 May 2016].”

4.37 In Waqa v State [2017] HAM 22 of 2017 (16 March 2017), Accused biological father of the complainant was charged with one count of Indecent Assault and 72 counts of Rape contrary to section 212(1) and 207(1)(2)(a) of Crimes Act respectively.

State objected to bail on the ground that there is a high likelihood that Accused will interfere with the complainant. Court in granting bail on strict conditions stated as follows:

“11. There cannot be any doubt, given the domestic relationship the Applicant has with the victim, that there is high likelihood of interference with the victim if bail is granted to the Applicant. However, the State concedes that, after the arrest of the Applicant, the victim has been relocated and taken into the care of her maternal grandmother in Naiborebore. They also confirm that the victim is currently engaged in an employment and fully supported by her maternal family. Applicant says that Naiborebore is located 180-200 kms away from her place of residence in Tailevu.

12. 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.” (emphasis added)

4.38 In Birju v State [2019] HAM 33 of 2019 (8 March 2019), the Accused was charged with one count of rape with complainant being his wife. State objected to bail on the conditions that Accused would interfere with witness (the complainant).

Court granted bail subject to strict conditions.

4.39 In Gounder v State [2015] HAM 95 of 2015 (2 July 2015), Applicant was charged with murder of his wife. State objected to bail on the ground that Applicant breached Domestic Violence Restraining Order (DVRO) against his wife and it is likely that Applicant will interfere with his 7 year old son, a witness in the case. Applicant gave undertaking that he will not interfere with the witness and will stay in Lautoka instead of Raviravi, Ba (children’s residence).

Court after holding that DVRO was not a bail condition and strict bail conditions can guard against interference, granted bail to Applicant with strict conditions.

4.40 Legislative scheme of Bail Act is very aptly stated by Court of Appeal in Waqalevu v State [2019] Criminal Appeal No. 52 of 2019 (3 October 2019) in following terms:-

“[14] Thus, the legislative scheme in respect of bail in the Bail Act could be summarized as follows. Section 3(1) of the Bail Act states that every accused person has a right to be released on bail unless it is not in the interests of justice that bail should be granted while section 3(3) states that there is a rebuttable presumption, which is displaced in the circumstances set out under section 3(4), in favour of the granting of bail to such a person. The primary consideration in deciding whether to grant bail is the likelihood of the accused person appearing in court to answer the charges laid against him or her [vide section 17(2) of the Bail Act] and when deciding whether to grant bail to such a person, the court must take into account the time the person may have to spend in custody before trial if bail is not granted [vide section 17(1) of the Bail Act]. The presumption of bail may, however, be rebutted and bail may be refused if the court, upon being satisfied and having regard to all the relevant circumstances, is of the opinion that the accused is unlikely to surrender to custody and appear in court to answer the charges or the interests of the accused person will not be served through the granting of bail or granting bail to the accused would endanger the public interest or make the protection of the community more difficult [vide section 18 & 19 of the Bail Act].” (emphasis added)

4.41 When exercising discretion to determine Bail Application, Court must have regard to particulars provided in section 19(2) of Bail Act and relevant circumstances.

4.42 This Court takes following circumstances into consideration:-

(i) Applicant is married with one daughter aged twenty one (21) years, was in full time employment prior to being in remand and has no previous criminal history.

(ii) Since, there is no criminal history there is no issue to any failure to surrender to custody or observe bail conditions.

Applicant in this case after receiving call from Police went to the Police Station himself (Annexure “AK6” of Applicant’s Affidavit – paragraph 28).

(iii) Even though offence is quite serious there is conflicting evidence in Applicant and Complainant’s Affidavit evidence as to circumstance of the offence.

(iv) Prosecution needs to prove its case beyond reasonable doubt and as stated in the preceding paragraph, the Affidavit evidence of Applicant and Complainant has conflicting matters, which need to be tried by the High Court.

(v) Applicant has been in custody from 28 September 2020 (more than four months) and if bail is refused then he will be in custody for almost six months.

(vi) Applicant needs to be able to consult his lawyer and seek advice to prepare for his case.

(viii) No evidence has been adduced to show that Applicant is incapacitated by injury or intoxication or otherwise in danger or in need of physical protection.

(ix) Only evidence of complainant that there was interference are as follows:

(a) Applicant in association with Kunal Rajnesh Kumar filed Application for DVRO against Complainant, and two others.

(b) Applicant under oath said that he was angry with complainant and he approached some of his family members to bring her to him to deal with her.

This is actually contrary to what appears at paragraph 7 of Resident Magistrates Ruling where he states as follows:-

“[7] The 1^st applicant testified that his wife had initially told him about a sexual allegation that was made by the 1^st respondent. The 1^st respondent was spreading this around the family. The 1^st respondent is the 1^st applicant’s niece. He became so angry at this allegation. He approached some of the other family members to take him to the respondent’s residence to have the matter sorted out. He categorically denies any wrong doing. The family heard that the 3^rd respondent had forced the 1^st respondent to make the allegation. The applicant seeks protection from the court because the 1^st respondent is still allegation of a criminal act. He believes that soon the police will be involved.”

(Annexure “D” of Complainant’s Affidavit)

It should be noted that 1^st Applicant referred to by Resident Magistrate is Kunal Rajnesh Kumar.

(c) At paragraph 21 of Complainant’s Affidavit she emphasizes that Applicant’s family has threatened her.

As rightly pointed out by Applicant’s Counsel, no evidence has been adduced as to who threatened, how was she threatened and on whose instructions that was made and what was the threat.

(x) No evidence has been adduced that Applicant has interfered or likelihood of him interfering with complainant or witness.

In fact Applicant is currently not staying with Complainant or her mother and has given an undertaking to move out of current address and move to either Nadawa or Navua.

(xi) No evidence has been adduced to establish that Applicant is likely to commit any arrestable offence.

(xii) There is no evidence of any domestic violence against the complainant apart from allegations made in High Court proceedings.

(xiii) After analysing the Affidavit evidence and Submissions, there does not appear to be any likelihood of Applicant posing any risk to the complainant. In any event any likelihood of interference or posing any risk can be guarded by strict bail conditions.

(xiv) There is no DVRO in place for protection of complainant. However, as stated in preceding paragraph protection of complainant can be guarded by imposing strict bail conditions.

(xv) With strict bail conditions likelihood of Applicant committing further domestic violence does not exist.

4.43 This Court after analysing the case authorities, Affidavit evidence and Submissions made holds that Applicant should be granted bail on strict conditions.

4.44 Applicant’s Counsel raised the issue that High Court failed to comply with section 13(2) of the Bail Act which provides as follows:-

“If an accused person is refused bail in respect of an offence –

(a) the hearing of the case must not be adjourned for more than 14 days except with the person’s consent;

(b) any further adjournment must be for a period not exceeding 48 hours and must be to a court available to deal with the case.”

4.45 In this instance bail was refused on 9 November 2020 and trial date has been set down for 22–26 March 2021 which is well beyond the 14 day period.

4.46 There is no evidence that Court called the Applicant for review of Bail within 14 day period.

4.47 This Court does not have the High Court Record and as such it cannot say if trial date was fixed with Applicant or his Counsel’s consent.

5.0 Bail Conditions

5.1 Court takes note that Applicant is presenting two sureties namely Lal Chand and Satya Lal who are in a position to pay reasonable bond amount.

5.2 Applicant has also indicated that he can move to Navua with his family pending trial, will report to designated Police Station and undertakes not to commit any offence and abide by any other Orders Court makes.

6.0 Orders

6.1 I order that Applicant be released on bail pending trial of Criminal Case No. HAC 282 of 2020 on following conditions:-

(i) Applicant as from 6.00pm today to reside at 55 Ravodrodro, Nakaulevu, Navua;

(ii) Not to change the address without leave of the High Court;

(iii) Applicant enter into a personal bond of $2000.00 (non-cash);

(iv) Sureties Lal Chand and Satya Lal to sign Bail Surety Form (Form 2);

(v) Sureties enter into a bail bond in the sum of $2000.00 (non-cash) each;

(vi) The Applicant is subject to a curfew between the hours of 7.00pm and 6.00am each day;

(vii) The Applicant is to report to Navua Police Station between 6.00am and 6.00pm each Monday, Wednesday and Friday;

(viii) The Applicant is to surrender any passport and any travel documents to Court;

(ix) The Applicant is not to commit any offence in any manner whatsoever;

(x) Applicant is not to interfere with the complainant or any witness in any form or manner;

(xi) Applicant is not to harass or threaten the complainant.

Hon. Justice Kamal Kumar
President, Supreme Court

Solicitors
Messrs. Munro Leys for the Applicant
Office of the Director of Public Prosecutions for the Respondent