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Sharma v State - Bail Ruling [2017] FJHC 888; HAM198.2017 (22 November 2017)

IN THE HIGH COURT OF FIJI AT SUVA

In the matter of an application for bail pending trial pursuant to the provisions of the Bail Act 2002.

ANIL DUTT SHARMA

Applicant
Vs.

STATE

Respondent

CASE NO: HAM. 198 of 2017
(HAC 337/2017)

Counsel : Mr. K. Singh for the Applicant
Mr. T. Tuenuku for Respondent
Date of Ruling : 22^nd November 2017

BAIL RULING

1. This is an application for bail pending trial. The applicant is charged with the offence of rape under section 207(1) and 2(b) of the Crimes Act 2009. The victim is a 7 year old child.
   
2. The Counsel for respondent informed the court on 16/11/17 that he is not objecting for bail. However the respondent was directed to file a written response.
3. Accordingly, the respondent had filed an affidavit of one WDC 3614 Ana stating that inter alia;
   1. there is no domestic violence relationship between the applicant and the complainant;
   2. the complainant is no longer residing at the place of the alleged incident;
   100. there is a current tension between the mother of the complainant and the applicant’s family and the mother has reported that the family members of the applicant have been calling her about this case;
   4. the applicant is the brother-in-law of the defacto husband of the complainant’s mother; and
   5. there is a strong case against the applicant.
      
4. Though the respondent had submitted that the alleged offence is not a domestic violence offence, given the following interpretations provided in the Domestic Violence Act, the relationship between the complainant and the applicant clearly falls within the meaning of ‘family or domestic relationship’ under the said Domestic Violence Act;
   

"family or domestic relationship" means the relationship of -

(a) spouse;

(b) other family member;

(c) person who normally or regularly resides in the household or residential facility;

(d) boyfriend or girlfriend;

(e) person who is wholly or partly dependent on ongoing paid or unpaid care or a person who provides such care;

. . .

"other family member" means any of the following -

(a) parent, grandparent, step-parent, father-in-law, mother-in-law;

(b) child, grandchild, step-child, son-in-law, daughter-in-law;

(c) sibling, half-brother, half-sister, brother-in-law, sister-in-law;

(d) uncle, aunt, uncle-in-law, aunt-in-law;

(e) nephew, niece, cousin;

(f) clan, kin or other person who in the particular circumstances should be regarded as a family member,

provided that, if a person was or is in a de facto relationship with another person the relationship of other family member includes a person who would be included if the persons in that de facto relationship were or had been married to each other; [emphasis added]

5. Therefore the offence alleged to have been committed by the applicant falls under the definition of the term ‘domestic violence offence’ and the presumption in favour of the applicant for granting of bail in this case is displaced in terms of section 3(4)(c) of the Bail Act.
   
6. According to the respondent the victim’s mother has already been contacted by the relatives of the applicant with regard to this matter. This indicates that there is a high likelihood of interference in this case.
   
7. In the case of State vs AV (Criminal Case No 192/2008), Justice Goundar held that;

“Children below the age of 14 years are the most vulnerable victims, and therefore, the need for protection of law is greater..... By ratifying the convention, the State is obliged to take all appropriate legislative measures to protect children of this country from all forms of physical or mental violence, injury or abuse or exploitation or sexual abuse. The Convention also allows for judicial involvement to carry out the protective measures for children”

8. The victim of the alleged offence is only 7 years old. Considering that she is in the category of most vulnerable victims in the light of the aforementioned judgment, the likelihood of interference and the fact that the applicant is alleged have committed a domestic violence offence; I am inclined to form the view that it is not appropriate to grant bail to the applicant.
   
9. This application is accordingly refused.
   

Vinsent S. Perera
JUDGE

Solicitors for the State : Office of the Director of Public Prosecutions, Suva.

Solicitors for the Accused : K. S. Law, Barristers & Solicitors, Suva.