Naituku v The State [1995] FJHC 47; HAM0004s.1995s (3 March 1995)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

MISC. ACTION NO: HAM0004 OF 1995

Between:

VILIAME NAITUKU and TEVITA MALASEBE
APPELLANT

And:

THE STATE
RESPONDENT

Counsel: Mr. T. Savu for Appellant
Mr. D. Tuiqereqere for Respondent

Hearing: 2nd March 1995.
Decision: 3rd March 1995.

DECISION FOR PAIN J. ON APPLICATION
FOR BAIL

The applicants pleaded guilty in the Magistrates Court to charges of Robbery with Violence, Abduction and rape. They were unrepresented. They were remanded for sentence.

At the further hearing the appellants were represented. Counsel on their behalf sought leave to withdraw the pleas of guilty that had been entered. That application was refused by the learned Chief Magistrate. The Appellants have appealed that decision. The record has not yet been supplied by the Magistrates Court and that appeal is not ready for hearing.

The applicants have applied to this Court for bail. Counsel on their behalf advises that the application is made pursuant to Section 315 of the Criminal Procedure Code for bail pending the determination of the appeal.

Counsel for the appellant gave details of the hearings in the Magistrates Court and submitted that the learned Chief Magistrate should have allowed the appellants to change their pleas. He said that he is confident that the appeal will succeed. He submitted that, as it is not known when the appeal will be heard the appellants ought to be granted bail in the meantime. He confirmed that the appellants are seeking a defended hearing and said any assurances required for their attendance at Court will be given.

Counsel for the Respondent opposes the application. He outlined the facts upon which the charges are based and the nature of the evidence against the appellants. He referred to decisions of this Court and the Court of Appeal and submitted that no sufficient grounds had been established for the grant of bail.

I deal with the application for bail pursuant to Section 315 of the Criminal Procedure Code which is relied upon by counsel for the appellants. However the principles for the granting of bail pending appeal may not all be appropriate or sufficiently extensive for a case where an appellant has not been sentenced in the Magistrates Court.

As matters stand at this moment the appellants have pleaded guilty in the Magistrates Court to offences which can be expected to attract a very substantial penalty. The learned Chief Magistrate refused their application to change pleas. He was not bound to allow them to withdraw their original pleas. The matter is entirely one of discretion which should only be exercised in clear cases and on proper grounds. Until the full record is available this Court cannot determine whether the appeal against the refusal to exercise the discretion is likely to succeed or not. The charges are very serious and the evidence against the appellants is strong. It is not a case where the presumption of innocence presently operates in their favour as they pleaded guilty to the charges. No details of their personal circumstances or history have been given from which the Court could assess any special reasons for bail or their likelihood of abiding the terms of thereof.

In all the circumstances bail pending the hearing of the appeal is inappropriate. The application is refused.

In conclusion I exhort everyone concerned to do everything possible to expedite the completion of the record in the Magistrates Court and hearing of the appeal in this Court. The proceedings in the Magistrates Court (whether on a defended or undefended basis) should be continued as soon as possible.

JUSTICE D.B. PAIN

HAM0004S.95S