Yarolevu v The State [2004] FJHC 269; HAM0070.2004 (6 December 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

CRIMINAL MISC. CASE NO.: HAM0070 OF 2004

BETWEEN:

SULIASI YAROLEVU
Applicant

AND:

STATE
Respondent

Counsel: Applicant – In Person
Mr. W. Kuruisaqila – for State

Hearing & Ruling: 6th December, 2004

RULING ON BAIL

The applicant applies for bail pending appeal. He was convicted in February of this year but sentenced on the 28th of June 2004 to an effective term of 6 years imprisonment for robbery, unlawful use of a motor vehicle and resisting arrest charges.

The appeals against conviction are listed for hearing before me on the 13th of December, 2004. The State opposes the application.

I considered similar applications from this applicant’s co-accused on the 19th of November 2004 and in an extempore decision made reference to the Fiji Court of Appeal’s decision (the Hon. President) in Ratu Jope Seniloli and Others v The State, Criminal Appeal No. AAU0041.2004S.

In that case the learned President referred to section 17 of the Bail Act and noted that the relevant factors for bail pending appeal were:

1. The likelihood of success in the appeal.
2. The likely time before the appeal is heard.
3. The proportion of the original sentence which will have been served when the appeal is heard.
4. Any other relevant matters 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.

Grounds of Bail Application

This matter sees a common history and factual background with that of the co-accused. The three were arrested and brought before the Court originally on the 20th of January 2004. Their case was remanded to the 3rd of February 2004 for plea. Their case was listed for hearing on the 13th of February 2004.

It was on this last date that the applicant tended a green piece of paper having hand written on it a note from the Legal Aid Commission’s representative confirming a further 4 to 6 weeks would be required for the processing of the legal aid application. Based on that information this applicant asked the learned Magistrate for an adjournment of the fixture to enable him to obtain his legal aid lawyer.

The learned Magistrate gave an immediate decision, refused the request for adjournment and pressed on with the trial.

This applicant and his co-accused firmly believe that their constitutional rights had been unfairly attacked as a result of the learned Magistrate’s decision and accordingly stood mute throughout the entire trial. They were inevitably convicted, inevitably sentenced and appealed that conviction and sentence.

The basis of the appeal is that the learned Magistrate was wrong not to grant this applicant an adjournment of the fixture to enable his legal representation through Legal Aid to be finalized. The green note was tended as an exhibit for the purposes of the bail hearing and I have marked it for identification only as B1.

I now deal with each of the grounds for bail detailed above.

Likelihood of Success in the Appeal

The bail application proceeded before me in a simple way. The applicant was unrepresented. Despite constitutional and legal aid warnings he elected to proceed on his own. The State takes objection to the introduction of exhibit B1 and says it should not be relied on as its not properly tested in evidence. They say it should carry little weight for the purposes of this bail hearing. I accept that submission from the State. The document needs to be properly tendered in evidence and the maker of it called to identify its content and the reasons why the note was issued.

If the note is valid, then it underscores the importance of the application made to the learned Magistrate that a short adjournment was required to enable this applicant to finalize his legal aid applications before proceeding with the hearing or making alternate arrangements for the instruction of a private lawyer. I am not prepared at this time to rely on the informally tendered note. I will leave it to the applicant to make whatever arrangements he considers necessary to ensure the author of this note is present in Court at the appeal.

Likely time before the Appeal is heard

I have made special arrangements to hear this appeal during the legal vacation. It will proceed next Monday the 13th of December 2004. I do not consider this factor sufficiently motivates me to grant bail.

Proportion of the original sentence which will have been Served

By the 13th of December the applicant will only have served one year of a six year sentence. That is not a lengthy time to remain in custody pending consideration of an appeal.

Exceptional Circumstances

The applicant did his best to raise family and personal circumstances to support his bail application but the matters he raised were not exceptional and do not motivate me to grant him bail pending appeal.

Onus

The burden and onus of proving a right to bail under Section 17(3) lies with the applicant appellant. He accepts his extensive previous criminal history, indicates a disposition to refuse court directions but says he will honour his bail this time. He will accept every condition.

Decision

The chances of success at appeal are not outstanding. They are at best very arguable. The hearing will be on the 13th of December which means that the appeal will be considered and disposed of within a short time frame not affecting either the proportion of the served sentence or creating an overly lengthy period in jail pending appeal. There are no other exceptional circumstances. The application is dismissed. Mr. Yarolevu will remain in custody pending his appeal on the 13th of December. Orders for his production in Court have been made on that date.

Gerard Winter
JUDGE

At Suva
6th December, 2004