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State v Sharma [2008] FJHC 311; HAC45.2008 (3 November 2008)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

Criminal Case No. HAC 45 of 2008

STATE

V

DASWA NAND SHARMA

Date of Hearing: 31st October 2008
Date of Ruling: 3rd November 2008

Ms. Lidise for the State
Mr. Shah for the Accused

BAIL RULING

1. This is an application by the State to revoke the Respondent’s bail.

2. The State contends that the Respondent has breached his bail condition by approaching and interfering with witnesses in the case against him.

3. The Respondent, Daswa Nand Sharma, is charged with Attempt to Murder, under Section 214(a) of the Penal Code Cap 17. This is a serious offence. Anyone convicted of this offence is liable to be imprisoned for life.

4. The Respondent was first released on bail in Nadi Magistrates Court on 1 April 2008. His bail conditions were, amongst other things, that he must not at any time approach or interfere with witnesses connected with the case against him.

5. The Court record shows that on 27 June 2008, this matter came before Justice Govind. On that occasion, the Applicant complained that the Respondent, who was on bail, had been making offensive gestures to the Complainant.

6. On this occasion, the Respondent was warned by Justice Govind that he was to stop making any sort of contact with the complainant at all.

7. Justice Govind also introduced a further condition of bail. The Respondent was "not to approach directly or indirectly or be within 100 metres of the Complainant or her family".

8. The rest of the existing bail conditions were to remain.

9. Since then, the Complainant says that she has been approached by the Respondent.

10. On 29 September 2008, the State filed a motion that the Respondents bail be revoked and that he be remanded pending trial on the basis that he has breached his bail condition not to interfere with witnesses.

11. On 3 October 2008, the Respondents bail was revoked by Justice Datt.

12. The States Motion was heard before me on Friday, 31 October 2008.

13. At the hearing of the States Motion, the Complainant said on oath that she had been approached by the Respondent on several times. In particular, she said that on one occasion he made a hand gesture to her, signifying that he was going to cut her throat.

14. The Complainant said that on 12 August 2008, the Respondent said to her "the first time I hit you, you did not die, the second time I will kill you." She also said that on 15 September 2008, the Respondent warned her "not to play around and that he would kill her".

15. The Complainant also said in evidence that on one other occasion, while at the Supermarket with here husband and children, they ran into the Respondent who said words to the effect "Your Mother’s Virgina".

16. The Respondent also gave evidence. He said that he had not come into contact with the Complainant, and that he had not made threatening remarks to her.

17. Bail is a Constitutional right for all accused persons unless it is not in the interests of justice that bail should be granted. The presumption in favour of bail is displaced, under section 3(4) of the Bail Act where the person seeking bail has breached bail conditions. Section 17 of the Bail Act requires a court to consider the length of time a person may have to spend in custody pending trial, the likelihood of the accused appearing in court to answer the charges, the interests of the accused, the public interest, the nature and seriousness of the case, the likelihood of interference with witnesses and previous failure to observe bail conditions. Other conditions are listed in section 19 of the Bail Act.

18. Whilst the provisions of the Bail Act create a presumption in favour of granting bail, that presumption is displaced where the accused has previously breached a bail undertaking or bail condition.

19. Regrettably, in this instance, I find that despite the warning given by Justice Govind on 27 June 2008, the accused has continued to approach and interfere with the complainant who is named in the charge, and likely to be a witness in this case.

20. It is clear from this chronology of events that the Applicant has failed to respect his bail conditions in the past, and that he has persisted in approaching and interfering with the this witness.

21. In the circumstances, I am satisfied that the prosecution has rebutted the presumption in favour of bail.

22. Accordingly, there being no presumption in favour of granting bail, and in the light of the behaviour of the accused, as explained by Ms. Malti Devi, whose evidence I accept, I cannot be satisfied that he will discontinue with this unacceptable behaviour, should he be released on bail.

23. The offence of attempted Murder is a serious one. The penalty that may ultimately be imposed would more likely than not be a lengthy custodial sentence. In the circumstances therefore, I think it is appropriate that bail be refused for the reasons I have outlined.

24. I am conscious that there may be some delay in the accused coming to trial. All possible efforts should be made by the Court and prosecution to ensure, as best one can that the matter comes for trial as soon as possible.

Order

1. The States Motion is granted. The Respondents Bail is revoked and he shall be remanded pending trial; and

2. This matter is adjourned to 14 November 2008 for mention.

Anthony J Sherry
Judge

Lautoka
3 November 2008