Vasu v The State [2004] FJHC 251; HAM0066D.2004S (13 October 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

CRIMINAL MISC. CASE NO: HAM0066 OF 2004S

Between:

JOSEPH BEN VASU
Applicant

And:

THE STATE
Respondent

Hearing: 12th October 2004
Ruling: 13th October 2004

Counsel: Ms S. Devan for Applicant
Ms P. Madanavosa for State

RULING

The Applicant applies for bail pending appeal. He was convicted on two counts of rape on the 2nd of July 2004 and sentenced to 6 years imprisonment. The appeal against conviction and sentence is listed for hearing on the 16th of November 2004. The State opposes the application.

Both counsel agree on the factors relevant to a bail pending appeal application, and both counsel referred me to the decision of Ward P in Ratu Jope Seniloli & Others v. The State Crim. App. No. AAU0041.2004S. In that case, his Lordship referred to section 17 of the Bail Act saying that relevant factors were the likelihood of success in the appeal, the likely time before the appeal is heard, the proportion of the original sentence which will have been served when the appeal is heard and any other relevant matter giving rise to exceptional circumstances. This last factor is a common law principle and is not excluded from consideration simply because section 17 is silent on it.

The grounds of appeal were filed in person. In a letter dated the 12th of July 2004, the Applicant simply said that the conviction was wrong in law because there was no corroboration. This ground is clearly destined to failure because a court properly directed, can convict in the absence of corroboration in a rape case.

The Applicant is now represented by counsel and she submits that she will file better grounds of appeal when she receives the court record. Since the court file shows that the record was sent to the Applicant in person on the 23rd of September, it is a matter of surprise that he has not informed his counsel about the record and the listed court date. Indeed, in a letter to him dated 23rd September 2004 signed by S. Ledua, Court Officer, he was told that his appeal will be called for mention on the 18th of October and for hearing on the 16th of November. In the circumstances, I cannot assume that there are better grounds of appeal which are likely to succeed when nothing further has been filed. In respect of sentence, a 6 year term is one year below the tariff and any appeal against sentence cannot be said to be bound to succeed, although of course it is open to argument at the appeal proper.

In respect of section 17(3)(b) of the Bail Act, the appeal will proceed to hearing on the 16th of November, by which time the Applicant will only have served 5 months in custody, of his 6 year term. This is not excessive in the circumstances.

There is nothing in the circumstances of this application, or in the affidavit of Kiti Sorovaki, the sister of the Applicant which are exceptional, and which might justify the grant of bail.

Bail is refused.

Nazhat Shameem
JUDGE

At Suva
13th October 2004