IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
Criminal Miscellaneous Case No. HAM 180/2013

BETWEEN:

MAHENDRA PAL CHAUDHARY
Applicant

AND:

THE STATE
Respondent

BEFORE : THE HON. JUSTICE P. MADIGAN

Counsel : Mr. A. Singh for Applicant
 : Mr. M. Korovou for State

Date of hearing : 16 October 2013
Date of ruling : 1 November 2013

RULING

1. The applicant makes application to vary his conditions of bail pending trial in that he seeks to have removed a condition that he not "directly or indirectly access funds held" in four specified Australian Bank accounts pending his trial.

2. The application is worded exactly as:

 "The order restraining the applicant from directly and or indirectly accessing the monies held in his Australian Bank accounts varied and or discharged wholly on account of the Applicant being cleared of the indictments of money laundering pursuant to the Proceeds of Crimes Act 1997 and further that the orders as made by Goundar J. on 6th December 2010 were made beyond the jurisdiction of the Bail Act 2002."

3. In written submissions produced in Court, Counsel for the Applicant argues that the subject funds are not tainted or derived from any criminal activity. He adds that the intent of the Bail Act is only to ensure the attendance of an accused in Court and that the only conditions that can be attached to an award of bail must be within those prescribed by S.22 of the Bail Act, which conditions do not include restraining property. Furthermore, he submits, S.23 of the Bail Act mandates that conditions only be imposed if required by the circumstances of the accused person (his emphasis); he argues that no circumstances peculiar to the applicant justify the imposition of any conditions.

4. Mr. Singh submits that the Bail Act "does not have the power to make property seizure orders as it operates on the presumption of innocence". He adds that property seizure orders can only be made under the Proceeds of Crime Act 1997 which provides for the use of "tainted" monies reasonable living and legal expenses.

5. Mr. Singh submits that the monies held in Australia are not evidence. He says that "its proof or otherwise vests with the Court during trial", and therefore the Court cannot make pre-emptory orders on these allegations as no evidence has been led in Court to show that the alleged funds violate exchange control laws. He finally submits that it is not now for the Court to "make any presumptive finding on the monies allegedly held in the Applicant's Australian Bank Account".

6. The State, in reply, argues that the funds are the subject of charges presently before the Court. They rely on a previous bail ruling made by Goundar J. in Mahendra Pal Chaudhry v. State HAM 150/2010 where the learned Judge in allowing an application for Mr. Chaudhry to travel overseas, imposed the restrictions on him accessing his accounts in Australia.

7. The State maintains that all of the money is the exhibit in the forthcoming trial faced by the applicant on charges under the Exchange Control Act, and as it is an exhibit it should not be interfered with by the accused. In addition State Counsel submits that should the applicant be found guilty after trial, the funds are liable to forfeiture and for that reason the funds should be protected.

Discussion

8. Counsel for the State has fallen into error in assuming that Justice Goundar was refusing an application for the accused to have access to the funds when he made his ruling on December 6th. The learned Judge added the financial condition when allowing the applicant to travel to Australia for medical treatment. This was despite the then counsel in this same application making submissions that no conditions can be imposed on an accused enlarged on bail unless those conditions are provided for in Section 22 of the Bail Act.

9. The applicant's present counsel makes the same submission. He claims that section 22 does not permit the restraining of property as a condition of bail.

10. Section 22 of the Bail Act reads:

 "(1) Bail may be granted unconditionally or subject to written conditions imposed by the police officers or the Court, as the case may be.

 (2) If conditions are attached to the granting of bail, they may only be one or more of the following –

(a) that the accused person enters into an agreement to observe specified requirements as to his or her conduct while on bail;

(b) that one or more sureties acknowledges that he or she is acquainted with the accused person and regards the accused, person, as a responsible person who is likely to comply with a bail undertaking;

(c) that the accused person enters into an agreement, without security, to forfeit a specified amount of money if the accused person fails to comply with his or her bail undertaking;

(d) that one or more sureties enters into an agreement, without security, to forfeit a specified amount of money if the accused person fails to comply with his or her bail undertaking;

(e) that the accused person enters into an agreement, and deposits acceptable security, to forfeit a specified amount of money if the accused person fails to comply with his or her bail undertaking;

(f) that one or more sureties enters into an agreement, and deposits acceptable security, to forfeit a specified amount of money if the accused person fails to comply with his or her bail undertaking;

(h) that the accused person deposits with an authorized officer of the court a specified amount of money in cash and enters into an agreement to forfeit the amount deposited if the accused person fails to comply with his or her bail undertaking."

11. Mr. Singh is correct when he submits that not one of those conditions refers to making orders with regard to property; however subsection (a) allows for "specific requirements" to be conditions to the granting of bail.

12. These "specific requirements" are regularly incorporated into bail conditions:- for example the requirement to live in a certain place, the requirement not to contact prosecution witnesses, the requirement to observe a curfew and the requirement not to interfere with evidence.

13. In his bail ruling on 6 December 2012, Goundar J, made it a condition of bail that the accused "does not directly or indirectly access funds held" in specific Australian Banks. He also made his granting of bail to the applicant conditional that he reside at a particular address in Suva, and that he not approach prosecution witnesses. Neither of these two latter conditions are included in the conditions set out in section 22 and they are conditions that go with nearly every bail order made in this jurisdiction. Goundar J. may not have said so, but his making of these conditions was pursuant to s.22 (2)(a) of the Bail Act. The applicant's submission on this point has no merit and it fails.

14. The monies held in Australian Banks are obviously the subject matter of the offences that the applicant faces under the Exchange Control Act ("ECA"). If the money wasn't here, there would be no charges and to that extent the money must be evidence. The applicant submits "the Court cannot make pre-emtory orders on those allegations as no evidence has been led in Court to show that the alleged funds violate exchange control laws". It is not a matter of pre-judging the issues and therefore declaring that the monies are "tainted". It is a matter of going to trial with the monies being the subject matter of a trial. The very reason that we are having a trial is to determine whether "the alleged funds violate exchange control laws". It is not for this Court at this stage to make a finding on or even express an opinion on whether those funds might be held in violation of the laws, but the funds must be kept intact pending determination of the matter by trial.

15. The monies being the pivotal focus of the forthcoming trial, it is in the interests of justice that they remain intact and therefore the application is dismissed. The condition that the accused does not access directly or indirectly those funds remains as a condition of his bail.

P.K. Madigan
Judge

At Suva
1st November, 2013