Chand v State [2013] FJCA 1; AAU15.2012 (18 January 2013)

IN THE COURT OF APPEAL
AT SUVA

CRIMINAL APPEAL AAU 15 OF 2012
(High Court HAC 32 of 2005)

BETWEEN:

ASHWIN CHAND
Appellant

AND:

THE STATE
Respondent

Coram : Calanchini AP

Counsel : Appellant in person.
Ms S Puamau for the Respondent.

Date of Hearing : 9 January 2013
Date of Decision : 18 January 2013

DECISION

[1]. This is an application for bail pending appeal.

[2]. Following a second trial in the High Court, the Appellant was unanimously found guilty by the assessors on the charge of murder by the assessors. He was convicted on 14 March 2012 by the learned High Court Judge and sentenced to life imprisonment with a non-parole term of 22 years. He has appealed against conviction and sentence to this Court and in the meantime seeks bail pending appeal.

[3]. Under section 33 (2) of the Court of Appeal Act Cap 12 (the Act) the Court of Appeal may grant bail to an appellant pending the determination of the appeal. Pursuant to section 35 (1) of the Act that jurisdiction may be exercised by a single judge of the Court.

[4]. The circumstances under which bail pending appeal may be granted have been well settled by this Court in decisions going back many years. The factors that were regarded as relevant by the Court have to a large extent been codified in section 17 (3) of the Bail Act 2002.

[5]. Apart from the factors that are required to be considered under section 17 (3) this Court has consistently taken the view that bail pending appeal should only be granted in exceptional circumstances. This requirement means that even when the factors in section 17 (3) are considered, the Court must still ask itself whether there are exceptional circumstances that justify the granting of bail pending appeal. The exceptional circumstances requirements has also been accepted as meaning that even when an appellant may not satisfy all the factors, or any of them, there may still be exceptional circumstances that may justify the granting of bail pending appeal. This may arise in the case of terminal illness.

[6]. Under section 17 (3) of the Bail Act, the court must consider (a) the likelihood of success of the appeal; (b) the likely time before the appeal hearing and (c) the proportion of the original sentence which will have been served by the applicant when the appeal is heard.

[7]. This Court has stated that the first factor to be considered, namely the likelihood of success in the appeal, means that the Appellant is required to establish a very high likelihood of success. (See Seniloli and Others –v- The State unreported AAU 41 of 2004; 23 August 2004). That requirement is consistent with the requirement of exceptional circumstances.

[8]. The Appellant has submitted that his appeal meets this requirement. The Appellant submitted that he did not receive a fair trial. He submitted that he was denied an adjournment to obtain legal representation. He claimed that the trial should have been brought to an end after he threw an object at the learned trial Judge during the course of the trial in the presence of the assessors. He submitted that there was a misdirection to the assessors and that the learned Judge made prejudicial comments in the presence of the assessors.

[9]. Although it is not the task of a single judge hearing an application for bail pending appeal to delve into the merits of the appeal, it is necessary to consider the grounds of appeal in order to determine whether the Appellant's appeal has a very high chance of success. The mere fact that a ground or grounds of appeal may be arguable and hence justifying the granting of leave to appeal, does not satisfy the much higher test of a very high chance of success in order to be granted bail pending appeal.

[10]. In his submissions before me the Appellant devoted much of his time to the ground of appeal that relates to the incident involving the Appellant's throwing of an object (a fragment of concrete) at the learned trial judge during the course of the Appellant's cross-examination of a State witness. The Appellant conceded in his submission that this action was aimed at bringing the trial to a premature conclusion. In relation to this ground of appeal it is sufficient at this stage to say that the Appellant cannot rely on his own disruptive behaviour during the course of his trial before a judge and assessors as a ground of appeal against subsequent conviction. It would be fair to say that the Appellant's conduct constituted contempt and had the charge been less serious the Appellant may well have received an additional term of imprisonment for his disruptive behaviour (See Aquarius –v- The State (1974) 59 Crim. App. R 165).

[11]. As for the summing-up in relation to the murder charge and in relation to the evidence in general, I can find no basis for concluding that the learned Judge erred or that there was any aspect of it that was unfair to the Appellant. I am satisfied that the Appellant had been given adequate opportunity to secure legal representation.

[12]. Whether or not any of the grounds of appeal raise an arguable point, there is no material before me that would lead me to conclude that any of them have a very high chance of succeeding. None of the grounds of appeal raised by the Appellant constitute exceptional circumstances. The Appellant has not raised any other matter that might have constituted exceptional circumstances outside of the factors listed in section 17(3). As a result the application for bail pending appeal is dismissed.

Hon. Justice W. D. Calanchini
Acting President