Saqasaqa v State [2012] FJCA 52; AAU0116.2011 (28 September 2012)

IN THE COURT OF APPEAL
[ON APPEAL FROM THE HIGH COURT OF SUVA]

Criminal Appeal No. AAU 0116 of 2011
(High Court Criminal Action HAC 115 of 2009S]

BETWEEN:

ILIASERI SAQASAQA
Appellant/Applicant

AND:

THE STATE
Respondent

BEFORE: Hon. Justice Eric Basnayake
COUNSEL: Applicant in person
Mr. L. Fotofili for the Respondent

Date of Hearing: 20th September, 2012
Date of Ruling: 28th September, 2012

RULING

1. This is a bail pending appeal application. In a letter dated 6th September, 2012, addressed to His Lordship, The Chief Justice, the applicant sought bail. In his application, the applicant mentioned two grounds that he would urge the Court of Appeal to consider, namely:

1. Defective charge.
2. Disclosing the previous convictions of the applicant by the High Court Judge at the trial.
   

2. The applicant submitted that what is contained in the Indictment is different to what the applicant was told by the police about the charge. However that was a matter to be raised at the trial in the High Court. The applicant has failed to raise this matter in the High Court. The learned Judge would have considered it if that point was taken up at the trial.

3. With regard to the disclosing of the previous convictions, the applicant stated that the learned Judge had referred to him in his summing up to the Assessors as "a General of the criminal world". The learned counsel for the State submitted that it was not something prompted by the State. However an application was made for a redirection of the Assessors. The Record does not bear such an application for a redirection and such redirection had not been made.

4. The applicant in this case was convicted by the High Court, after trial on a count of "Robbery" contrary to section 293 (1) (a) and for "Unlawful Use of Motor Vehicle" contrary to section 292 of the Penal Code (Chapter 17). He was sentenced to 8 years imprisonment on the 1st count and 3 months imprisonment on the 2nd. Both sentences were to run concurrently with a non parole period of 6 years. The applicant appealed against the conviction. Pending this appeal he is seeking bail.

5. The presumption in favour of granting bail is displaced as the applicant had been convicted. Section 3 (4) (b) of the Bail Act 2002 is as follows:-

(4) The presumption in favour of granting bail is displaced where

-(b) The person has been convicted and has appealed against the conviction.

6. The factors that should be taken in to consideration in a bail pending appeal application are laid down in the Bail Act under section 17 (3).
Section 17 (3) is as follows:-

(3) When a court is considering the granting of bail to a person who has appealed against conviction or sentence the court must take in to account-

(a) The likelihood of success in the appeal;

(b) The likely time before the appeal hearing;

(c) The proportion of the original sentence which will have been served by the applicant when the appeal is heard.

The likelihood of success in appeal

7. "The likelihood of success has always been a factor the court has considered in applications for bail pending appeal and section 17 (3) now enacts that requirement. However, it gives no indication that there has been any change in the manner in which the court determines the question and the courts in Fiji have long required a very high likelihood of success. It is not sufficient that the appeal raises arguable points and it is not for the single Judge on an application for bail pending appeal to delve into the actual merits of the appeal. That (as was pointed out in Kova v The State unreported criminal appeal No. 1 of 1996) is the function of the Full Court after hearing full argument and with the advantage of having the trial record before it" (Ward P in Ratu Jope Seniloli and Others v The State-Unreported criminal appeal No. 41 of 2004).

8. "It has been well established by cases decided in Fiji and in other common law jurisdictions that bail pending appeal should only be granted where there are exceptional circumstances (Calanchini AP in Cama and others v The state (2012 FJCA 30). "It has been a rule of practice for many years that where an accused person has been tried and convicted of an offence and sentenced to a term of imprisonment, only in exceptional circumstances will he be released on bail during the pendency of an appeal...The mere fact that an appeal is brought can never of itself be such an exceptional circumstance and a court to which an application for such bail is made is very seldom in a position to assess the appellant's chances of success in appeal" (Apisai Vuniyayawa Tora and Others v R [1978] 24 F.L.R. 28, Edward Fitzgerald [1924] 17 Criminal Appeal Reports 147, R v Watlon [1979] 68 Criminal Appeal Reports 293, Simon John Macartney vs The State Crim. Appeal No. AAU 03/08). The applicant in this case has failed to show any exceptional circumstances warranting the court to consider the application for bail pending appeal.

9. The applicant in this bail application has invited court to consider the misdirections in the summing up. "It is important for the Court to recognize on an application of this nature that it would be wrong to canvas in any other than a superficial way the merits or de-merits of the grounds of appeal. That is the task for the full court on the hearing of the appeal". [Byrne J in Uraia Tirai v The State (AAU 0018/2009)].

10. The applicant submitted that the trial Judge referring to the applicant as "General in the Criminal World" has caused a serious miscarriage of justice. It appears that the assessors in this case have expressed their unanimous opinion that the applicant was guilty of the charges. Therefore considering the evidence led in this case, even if one considers this as a misdirection, the applicant has failed to show that this appeal has every chance of success.

The likely time before the appeal hearing and the proportion of the original sentence which will have been served by the applicant when the appeal is heard

11. The applicant was sentenced to a total of 8 years imprisonment on 11.11.2011. It is very likely that this appeal would be heard in the first or second session of the Court of Appeal in the year 2013. By that time the applicant would not have served a substantial portion of the sentence.

12. It appears that the applicant has failed to satisfy court with regard to any grounds to consider bail. Hence I am of the opinion that the above application is without merit. Hence this application for bail pending appeal is dismissed.

Hon. Justice Eric Basnayake
Justice of Appeal