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Kumar v State [2016] FJMC 204; Criminal Case 1759.2016 (17 October 2016)

IN THE MAGISTRATES’ COURT OF FIJI
AT SUVA

CRIMINAL CASE NO: 1759 /2016

BETWEEN : AVINESH KUMAR

APPPLICANT

AND : THE STATE

RESPONDENT

For the Applicant: Mr.J.Reddy

For the Respondent: Cpl Shaw

Date of Ruling : 17^th of October 2016

RULING ON BAIL

1. The applicant is charged with 2 counts ofRape contrary to section 207(1) (2) (a) of the Crimes Decree No. 44 of 2009.
2. He was produced first time to this court on 14^th October 2016 and after serving of full disclosures I have transferred this matter to the High Court.
3. In the meantime the counsel for the applicant made an oral bail application seeking bail for his client. In his submission the counsel submitted that there is presumption of bail and his client is prepared to reside in Labasa until the conclusion of this matter with other strict bail conditions.
4. The prosecution is objecting to the bail and the reasons given are that this is an Indictable offence and also they got a strong case.
5. When I inquired further the prosecution informed that the parties were in a relationship and presently the victim who is 18 years old is staying in Nandawa.
6. Having considered the respective submissions of the parties now I proceed to pronounce my ruling in this case.
   7. Section 3(3) of the Bail Act of 2002(“Act”) provides that there is presumption of granting bail to an accused, but this has been amended by part 2 of the schedule of the Domestic Violence Decree.
   8. By these amendments to section 3(4) of the Act the presumption is displaced for person who is charged with a domestic violence offence.
   9. In this case according to the defence the applicant had a relationship with the complainant and this was not disputed by the prosecution also. Even though they are no longer in a relationship this still falls in to the domestic relationship and the offences falls in to the domestic violence offences. Hence in this case the presumption for bail is displaced for the applicant.
   10. The primary consideration in granting bail in a criminal case is the accused person appearing in the Court to answer the charge(section 17(2) of the Act )
11. Section 19(1) of the Act outlines the reasons for refusing bail in normal case and they are as follows:-
    1. The accused person is unlikely to surrender to custody and appear in court to answer the charges laid;
    2. The interest of the accused person will not be served through the granting of bail; or
    100. Granting bail to the accused would endanger the public interest or make protection of the community more difficult
12. In IsimeliWakaniyasi v State ( 2010),FJHC 20;HAM 120/2009 (29th January 2010), his Lordship Justice Goundar held that

"All three grounds need not exist to justify refusal of bail, existence of any one grounds is sufficient to refuse bail".

13. But when an applicant is charged with a domestic violence offence the court need to also consider if the safety of a specially affected person (thevictim) is likely to be put at risk by granting bail.
14. In this case the prosecution is objecting to the bail on the basis that this is an Indictable offence and strength of the prosecution case.
15. By submitting that this is an Indictable offence it appears that the prosecution is trying to show that this is a serious offence.
16. But just because the charge is serious alone is not a sufficient to deny bail to the applicant. Article 14(2) (a) of the 2013 Constitution states that every person charged with an offence has the right to be presumed innocent until proven guilty.
17. Hence without any other grounds based on this alone I do not think the liberty of the applicant should be deprived.
18. The other ground advanced by the prosecution is the strength of the prosecution case and submits that there are partial admissions in the caution statement where the applicant admits having sexual intercourse with the victim. But it appears that he said this was committed with the consent and according to the submission of the accused counsel this would be the disputed point in the hearing. As for the testimony of the complainant and other witnesses this will be decided in the court by the assessors and I would not comment on that.
19. Hence I find the objections by the prosecution are sufficient to deny bail for the applicant.
20. But as this is a domestic violence offence as noted earlier, Iam obliged to consider if the safety of the complainant would be affected by granting bail to the applicant.
21. Even though I did not have the opportunity to hear the victim, the counsel for the applicant has already indicated to this court that until the conclusion of this case he is prepared to reside in Labasa which would minimize the contact with the victim in this case who is staying in Suva.
22. The applicant got a similar case against the same victim from Labasa happened in 2015 but this is also called first time in this court and there is no evidence before me to show that he breached any domestic violence restraining orders during this period.
23. Further with other strict bail conditions like non-contact and reporting conditions I believe the safety of the victim can be ensured apart from the applicant appearing in the court.
24. Hence subject to following conditions I grant bail to the applicant :
    1. Bail in his own recognizance in the sum of $2000 ;
    2. With two sureties in the sum of $ 2000 each;
    100. Not to interfere with the complainant and other witnesses;
    4. Not to reoffend ;
    5. Report to nearest Labasa Police Station every Monday, Wednesday and Saturday between 8am to 6pm. ;
    6. Surrender the passport and other travel documents to the registry and stop departure order issued ;
    7. Reside in the address in the Labasa and not to travel to Viti levu without the permission of the court. Only exception is to attend to this case in Suva.
25. The applicant is warned that any breach of these conditions is likely to result in cancelation of the bail and prosecution for an offence.
26. Further for the safety of the victim I grant in interim non-molestation order as well as interim non-contact order with standard conditions.
27. 28 days to appeal .

Shageeth Somaratne

Resident Magistrate