Koroi v The State [2017] FJCA 67; AAU050.2014 (19 June 2017)

IN THE COURT OF APPEAL, FIJI
[On Appeal from the High Court of Fiji]

CRIMINAL APPEAL NO. AAU00 50 of 2014
[High Court Case No. HAC 399 of 2012]

BETWEEN:

WASEROMA KOROI
Appellant

AND:

THE STATE
Respondent

Before : Hon. Mr Justice Daniel Goundar

Counsel: Mr. S. Waqanaibete for the Appellant
Mr. Y. Prasad for the Respondent

Date of Hearing: 13 June 2017

Date of Ruling : 19 June 2017

RULING

[1] This is an application for bail pending appeal. The appellant was charged with 2 counts of rape and 1 count of incest. After trial, he was convicted of incest only. On 19 June 2015, he was granted leave to appeal against both conviction and sentence on the following grounds:

1. The Learned Trial Judge erred in law and fact by failing to acquit the Appellant on all charges even though the Learned Trial Judge opined at paragraph 3 of his Judgment that the complainant was mentally and emotionally handicapped and that he perceived that she was coached to a certain degree.
2. The Learned Trial Judge erred in law and in fact when he convicted the Appellant for the offence of incest when the evidence of the complainant had been suggestive for the offence of rape and not incest.
3. The learned Trial Judge erred in fact when he stated at paragraph 9 of the sentence that the complainant was mentally and emotionally handicapped when there was no medical finding to suggest the same.
   

[2] The application for bail was filed by the appellant in person. The appellant’s main contention is that he had been granted leave to appeal and that he had already served a significant period of his 13 years’ imprisonment sentence.

[3] The test for bail pending appeal is more stringent than the test for leave. When considering granting of bail to a convicted person, the court must bear in mind that the presumption in favour of grant of bail is displaced. The Bail Act 2002 specifically requires the court to consider the following factors when considering bail pending an appeal:

(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 appellant when the appeal is heard.

[4] The threshold for the likelihood of success is very high. Bail is granted only if the appeal has a very high likelihood of success (Zhong v The State unreported Cr App No. AAU44 of 2013; 15 July 2014, Tiritiri v The State unreported Cr App No. AAU9 of 2011; 17 July 2015). At the hearing of this application, Mr Waqanaibete submitted that since the learned trial judge had perceived the complainant to be coached, he should have rejected her evidence entirely and acquitted the appellant. The complainant was the appellant’s biological daughter. At trial, she was referred to have been suffering from some form of mental disability, but neither party was able to explain the extent and nature of that disability to this Court. Mr Waqanaibete was also not able to assist the Court regarding the basis for the trial judge’s reference that the complainant was coached. In other words, if there was no evidence that the complainant was coached, then the trial judge’s perception that the witness was coached was based on an assumption and not evidence led at the trial. The assumption that the complainant was coached arguably prejudiced the prosecution and not the appellant. I am not satisfied that this appeal has a very high likelihood of success.

[5] It therefore follows that the two remaining factors set out in section 17(3) are less significant when the threshold of a very high likelihood of success has not been met (Seniloli & Others v The State unreported Cr App No. AAU0041/04S; 23 August 2004). So far the appellant has served one fourth of his sentence. There has been some indication made to the appellant by the President of the Court that this appeal could be heard at the end of this year or early next year.

[6] When considering the factors under section 17(3), the court may also consider exceptional circumstances, that is, “circumstances which drive the court to the conclusion that justice can only be done by granting bail” (Mudaliar v The State unreported Cr App. No. AAU0032 of 2006; 16 June 2006, at [5] per Ward P). The appellant does not rely on exceptional circumstances. For these reasons, the application for bail fails.

[7] Result

The application for bail pending appeal is refused.

The Hon. Mr. Justice Daniel Goundar
JUSTICE OF APPEAL

Solicitors:

Office of the Legal Aid Commission for the Appellant
Office of the Director of Public Prosecutions for the Respondent