Vuli v The State [2004] FJHC 171; HAA0105.2004 (29 November 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL APPEAL NO.: HAA0105 OF 2004

BETWEEN:

JEKESONI VULI
Appellant

AND:

STATE
Respondent

Hearing & Ruling: 29th November, 2004
Counsel: Mr. A. Vakaloloma – for the Appellant
Ms. A. Prasad – for State

EXTEMPORARY RULING ON BAIL

Introduction

This is an extemporary ruling on bail pending appeal. As such I reserve my rights to perfect and amend the judgment in any way appropriate.

The applicant is asking the Court to exercise its discretion to provide him with bail pending his appeal. He was convicted on the 16th of July, 2003 on one count of unlawful use of a motor vehicle contrary to Section 292 of the Penal Code (Cap. 17) and one count of robbery with violence contrary to Section 293 of the Penal Code (Cap. 17). He received a six-month and 5 year concurrent sentence respectively. An effective term of imprisonment of 5 years. He is going to be eligible for early release parole in the month of June 2006.

His appeal has been scheduled before me on the 11th of February 2005. At that time he will have served 19 months of his effective 5 year term of imprisonment or a little over half of the practical term of imprisonment before his eligibility for early parole date.

Decision

In the recent Court of Appeal Judgment Ratu Seniloli & Others v The State, Criminal Appeal No. AAU0041/04S, the learned President of the Court of Appeal had a full opportunity to consider the Bail Act. His honour noted there is a considerable difference between a person who has not been convicted and to whom the presumption of innocence still applies and a person who has been convicted and sentenced to a term of imprisonment.

His honour noted that the presumption in favour of the granting of bail is displaced where the person has been convicted. His honour was there echoing the statutory prescripts whereby the presumption of the innocent to bail is displaced once conviction is entered.

In earlier decisions I have reviewed the cases of Quire and the State [1996] unreported AAU 0011/1996 and Apisai Tora v The Queen [1978] 24 FLR 28.

When commenting on those earlier decisions I have borne in mind the fundamental difference recognized by the learned President in the Seniloli appeal had gone on to comment that Section 17(3) of the Bail Act can only be used when there is an outstanding chance of success of an appeal. Each of the provisions of Section 17(3) are disjunctive and must be independently taken into account. However, the overriding feature that one has to consider on appeal is whether or not on the papers there is an outstanding chance of success for the appellant. If there is not the other elements of the section become somewhat redundant.

I am prepared to accept that learned counsel for the Legal Aid Commission will seek my leave to amend the appeal and I indicate that leave is likely to be granted. However, even if I were to consider a much more focussed appeal the heart of the case concerns exercises of discretion by the judge at first instance. Appeal review of such exercises of discretion are inevitably the subject of speculative but not outstanding appeal. Learned Counsel was unable to point me to any particular passages in the record of the Magistrate’s Court proceedings where the learned Magistrate fell clearly into error. Accordingly, the very fact that the Court may be asked on appeal against conviction to review the exercise of the learned Magistrate’s discretionary judgment must mean that the chances of success are not outstanding.

Section 17(3) goes on to require the Court to consider the likely time before the appeal hearing. As I have earlier analyzed in this judgment; by the time the appeal hearing comes on the 11th of February next year, the appellant will only have served an effective 19 months of his practical jail sentence. That is one month over the half way period before his eligible parole date. In those circumstances I don’t consider that as a lengthy time for him to spend in custody pending appeal.

In my view there is also not a significant impact on time served versus overall sentence. At the sentencing date he will have served 19 months of a 60 month sentence, that is, not a significant nor troublesome proportion of the original sentence for an appellant to have served prior to his appeal. There are no other ‘exceptional’ bail circumstances.

Conclusion

For all of these reasons while the application is well bought, at this time I am not in favour of granting Mr. Vuli bail pending appeal. However, I do note for the record two things. Firstly, I indicate that if Counsel chooses to make an application for leave to bring an amended appeal I will grant it. Secondly, if for any reason the appeal can’t be scheduled for the 11th of February 2005 and cannot proceed then I invite counsel to re-consider lodging a further bail application at that time. I am obliged to counsel for the diligence and thoroughness of his submissions.

Gerard Winter
JUDGE

At Suva
29th November, 2004