Pillay v The State [2003] FJHC 211; HAM0026D.2003S (4 July 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

MISCELLANEOUS CASE NO: HAM0026 OF 2003S

Between:

AVINASH CHANDRA PILLAY
Applicant

And:

THE STATE
Respondent

Counsel: Applicant in Person
Mr N. Nand for State

Hearing: 26th June 2003
Ruling: 4th July 2003

RULING

The Applicant was convicted of the offence of Shop-breaking Entering and Larceny in the Suva Magistrates’ Court, and sentenced to two years imprisonment on the 20th of May 2003. He now applies for bail pending appeal. The affidavit of his mother Maya Wati states that the Applicant was unrepresented, that he pleaded guilty on the directions of police officers “who had informed him that nothing will happen to him”, that her son was merely the driver at the commission of the offence and that he is the family’s sole breadwinner.

On the dates fixed for the hearing of this application, counsel for the Applicant did not appear, instead sending messages to the court that he was ill (on the 11th of June 2003) that he had been injured by a moth (on the 18th of June 2003) and that he was appearing in the Nadi Magistrate’s Court on the 25th of June 2003. I declined to adjourn the application any further and ordered the production of the Applicant himself for the 26th of June 2003. On that date, counsel failed again to appear and I proceeded in his absence, ordering instead that he be given time to respond to State counsel’s written submissions. He has filed skeleton submissions which I have considered.

The High Court prioritises all bail applications. This is because the liberty of every individual is considered very important indeed. Bail applications are heard quickly and rulings delivered expeditiously. This means that if the Applicant is dissatisfied with the ruling (or indeed if the State is so dissatisfied) an appeal from that decision can be lodged quickly in the Court of Appeal. If the High Court is prepared to treat bail applications with urgency, then counsel should similarly be prepared to appear and make submissions at short notice. It is unfortunate that in this case, counsel for the Applicant did not appear to argue his client’s case. I have had to proceed to judgment on the basis of his written submissions and the oral submissions of his client. His conduct in this case constitutes more than discourtesy to the court, it amounts to a derogation of counsel’s duty to his client.

I was further handicapped in this case by State counsel’s inability to discover any details about the case from the police docket. I was sent a message that the police docket was lost. Counsel initially said in court that he was unable to make any submissions about bail because he did not know what the case was about, and whether the appeal had any merit. He referred to section 17 of the Bail Act saying that the Act now provided that the merits of the appeal was relevant on an application for bail pending appeal, which he said was a new requirement in the law on bail applications.

In respect of the merits of the application itself, State counsel did later, file written submissions opposing bail saying that the Applicant had failed to satisfy the requirement of section 17 of the Bail Act.

However he is mistaken in submitting that section 17(3) changes the law on bail pending appeal. Section 17 of the Bail Act goes no further than to restate the common law principles of bail pending appeal. As Tikaram P said in Amina Begum Koya –v- The State Crim. App. No. AAU0011/96S:

“if an accused is likely to spend the whole or a substantial part of his or her term in prison before his or her appeal is heard then this situation may constitute a good ground for granting bail. If bail is not granted in such a case and the conviction is subsequently quashed or sentence substantially reduced than an injustice will have been done. At the same time it must be borne in mind that some delay in the hearing of appeals is inevitable. Generally, delay in hearing should not be looked at in isolation ...... When dealing with delay the prospects of the appeal being successful and the length of the sentence are factors, that are usually taken into account.”

In Mark Lawrence Mutch –v- The State Crim. App. No. AAU0060 of 1999, Reddy P refused bail pending appeal on the ground that although the petition of appeal contained arguable grounds of appeal, he was not satisfied that the appeal had “every chance of success.”

The merits of the appeal have therefore always had some relevance to an application for bail pending appeal, the onus being on the Appellant to show that there was a clearly meritorious appeal. It was on that basis that bail was granted by me in Semisi Lasike –v- The State Misc Case No. HAM0017 of 2002.

Section 17(3) of the Bail Act 2002 provides:

“When a court is considering the granting of bail to a person who has appealed against conviction or sentence the court must take into 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 appellant when the appeal is heard.”

Section 3(3) of the Bail Act provides:

“There is a presumption in favour of the granting of bail to a person but a person who opposes the granting of bail may seek to rebut the presumption.”

Subsection (4) provides:

“The presumption in favour of the granting of bail is displaced where –

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

The papers filed in court show that the Applicant was convicted and sentenced on his own plea of guilty. In court he told me that he had been given the right to legal representation but that he had waived it because he did not have enough money. Although the court file has not been made available to me, (apparently because the officer-in-charge of the Magistrate’s Court Registry is on leave) it appears that there was nothing in the proceedings to suggest an equivocal plea. The crux of the Applicant’s complaint is that his sentence was harsh and excessive and failed to take into account his marginal role in the criminal enterprise as the driver of the getaway vehicle. The sentence itself is within the tariff for house/shop breaking offences. There is no suggestion that the Applicant received a heavier sentence than his accomplices. On the material available to me, I cannot say that the appeal is likely to succeed.

As for the delay in the hearing of the appeal, the Criminal Procedure Code requires appeal records to be sent to the High Court within 28 days of the filing of the appeal petition. This means that the record must arrive in the High Court on or before the 8th of July 2003. Thereafter it is the practice of this court to list the appeal for hearing immediately for a date within 3 weeks. By the time the appeal is heard, the Applicant will have been in custody for a period of just over 2 months. This is not excessive, compared with the length of his sentence.

In all the circumstances the Applicant has failed to show any reason why he should be granted bail pending his appeal. His application is dismissed.

Nazhat Shameem
JUDGE

At Suva
4th July 2003