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State v Chand [2004] FJHC 9; Hac0025.2004 (20 September 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL APPEAL NO.: HAC 25 OF 2004

BETWEEN:

STATE

AND:

DHARMEND CHAND

Date of Hearing: 20th September, 2004
Date of Judgment: 20th September, 2004

Counsel: Mr. W. Kuruisaqila – for State
Accused – In Person

EXTEMPORARY RULING ON BAIL

Background

The applicant is charged with rape. The information is to be filed today. He denies the charges. He applies for bail.

The alleged offence occurred on the 26^th of July 2004.

The victim and the accused live in the same community. The allegation is that he persuaded her to take up an opportunity for employment. He used this excuse to continue to visit the applicant. On one occasion when she was alone he demanded sexual intercourse. He used a glass louver blade to threaten her and then took her and raped her.

As a result of the investigation he was arrested and charged for the offence. At interview under caution he admitted the offence (question 55).

He brings this application for bail. He relies on the presumptions contained in the Bail Act and the Constitution.

He has outlined reasons in writing why bail should be granted for him these include:

1. That he will have difficulty preparing his case and obtaining a lawyer.
2. He will faithfully abide any conditions the Court may oppose on him.
3. He will not interfere with any state witness.
4. That he has been in custody for 2 months and further because of the conditions at the Suva Prison he is being confined to his cell for 23½ hours a day.
   

The State reply is supported by an affidavit of Detective Corporal 348 Josateki Vunidakai. In that affidavit the detective confirms the factual background concerning the case and the accused's admission of the offence.

He also confirms that he has spoken to the victim who vigorously opposes the granting of bail because she fears for her safety and the safety of her children if the accused is released on bail.

I remind myself of the provisions of the Bail Act and the Constitution. I do however temper the presumption in favour of bail by recording that this accused has a criminal history of several offences for dishonesty, assaults and importantly confinement and attempted rape as recently as April of 2003. His last offending was on the 1^st of March 2004 for larceny. He was given a sentence of 6 months imprisonment.

While there is a Constitutional presumption in favour of bail that is supported by Statute there are nonetheless occasions when bail must be refused. This is one such occasion.

This accused has a significant series of previous convictions including larcenies, assaults, wrongful confinement and attempted rape. He has received sentences of imprisonment. I can infer from this previous history of offending that the accused may be motivated to approach the victim and attempt to get her to change her story. I am able to infer that at least there is a strong risk that he would do so. No amount of strict conditions could ameliorate that risk.

I am concerned about his likelihood of surrender to custody and honour of his bail conditions. The circumstances, nature and seriousness of this offence when put into the context of his previous offending leave the Court with no certainty whatsoever that he would answer to bail when called.

At this time the strength of the Prosecution case is significant. There is good evidence from the victim concerning the identification of this accused. There is good evidence from her of what she said occurred. There is a confessional statement from the accused.

I balance against these factors the interests of the accused applicant. He complains of the conditions in custody. However, that is a bare complaint without any support and is advanced in a very general fashion. I put little weight by that argument.

I similarly reject that remand of this accused will cause any difficulties in obtaining legal advice or preparing for a defence.

He has demonstrated no need to be at liberty for any other purpose.

It is likely that this matter could reach trial as early as this year. However, even if it doesn't and has to be remanded for hearing in early 2005 the accused will only have been in custody for under a year. That is within an acceptable and reasonable time frame for Fiji bearing in mind the allocation of resources for the hearing and disposal of cases.

Accordingly, for these reasons the application is refused and the accused is remanded in custody. The accused has requested that he remain on a 14 day remand and appearance. Accordingly, he will make his next appearance in Court on Monday the 4^th of October and I order his production before me on that day.

Gerard Winter
JUDGE

At Suva
20th September, 2004