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Kumar v State [2016] FJHC 87; HAM209.2015 (8 February 2016)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL MISCELLANEOUS JURISDICTION

CRIMINAL MISCELLANEOUS CASE NO: HAM 209 OF 2015

BETWEEN:

EDWIN ALVIN KUMAR
Applicant

AND :

STATE
Respondent

Counsel : Mr. K. Tunidau for Applicant
Mr. A. Singh for Respondent
Date of Hearing : 05th February, 2016
Date of Ruling : 08th February, 2016

BAIL RULING

1. The Applicant applies for bail pending trial. Applicant is charged with one Count of Rape contrary to Section 207 and one Count of Sexual Assault contrary to Section 210 of the Crimes Decree 44 of 2009. Notice of motion is supported by an affidavit of the Applicant.
   
2. The State has filed its response supported by an affidavit of the Complainant, Sofia Begum, who is the legally married wife of the Applicant. The State is objecting to bail on the grounds stated in the affidavit.
   
3. The Applicant was granted bail by this Court on the 12th of June, 2015 with stringent bail conditions. He was ordered not to interfere with the State's witnesses. In addition to that, Domestic Violence Restraining Order (DVRO) imposed by the Nadi Magistrates Court was also in place against the Applicant.
   
4. The presumption in favour of granting of bail in Section 3 (3) of the Bail Act is displaced:
   
   1. Where the Accused is charged with an offence amounting to domestic violence or;
   2. Where the Accused has violated an existing bail condition.
      
5. The day after his release from remand custody, the Applicant had gone to the Complainant's house in Sabeto around 7. p.m and tried to enter the premises forcibly. When he was denied entry, he had started swearing at her in the presence of her mother and children. Applicant had contacted her over the telephone on the 14th of June, 2015 and had visited her at her work place on the following day. Complainant in her affidavit says that she was intimidated by his actions and feared for her life. She has made a complaint to Namaka Police on the 17th of June, 2015.
   
6. Applicant has not denied any of the averments in the Complainant's affidavit. He failed to give any valid reason for his absence in Court when he was produced before this Court for violating bail conditions. Accused has violated an existing DVRO also.
   
7. According to Section 17 (2) of the Bail Act, the primary consideration in deciding whether to grant bail is the likelihood of the Accused person appearing in Court to answer the charge laid against him. By violating bail conditions, Applicant has indicated that he is not worthy of release on bail again.
   
8. Trial date is already fixed in this case for August, 2016.
   
9. The State is concerned that if the Applicant is released on bail, it is highly likely that the Applicant will interfere with the witnesses and this high risk of interference cannot be avoided unless the Applicant is remanded in custody.
   
10. The proposed purpose to be achieved by restricting Applicant's liberty is avoidance of undue interference with administration of justice process. Applicant has already indicated to Court his tendency to interfere with State witnesses. I am of the view that imposition of strict bail conditions is not sufficient to guard against interference with witnesses. Interest of the public would be at risk by granting bail to the Applicant.
    

11. For the reasons given, application for bail pending trial is refused.

12. 28 days to appeal to the Court of Appeal.

Aruna Aluthge
Judge

At Lautoka
8th February, 2015

Solicitors: Kevueli Tunidau Lawyers for Applicant
Office of the Director of Public Prosecution for the Respondent