State v Ali [2004] FJHC 486; HAA0100.2004L (15 October 2004)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA0100 OF 2004L

AIYAZ ALI
f/n Hafizul Rahiman
Appellant

v.

THE STATE
Respondent

Appellant in person
Mr. K. Tunidau for the respondent.

Hearing & Ruling: 15 October 2004

RULING ON BAIL PENDING APPEAL

The appellant was convicted at the Ba Magistrates Court and was sentenced on the 28^th June 2004 to a total of 6 years imprisonment for the offences of robbery with violence, unlawful use of a motor vehicle and resisting arrest.

The appellant has appealed against the conviction and sentence and seeks bail pending the determination of that appeal.

Section 17 of the Bail Act sets forth the message that must be taken into account and says in subsection 3:

“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 applicant when the appeal is heard.”

This section and the relevant considerations were most recently considered by the President of the Court of Appeal in Ratu Jope Seniloli and Others v The State, in that decision, the president reviewed the authorities in this country with respect to bail pending appeal. In doing so, the president in particular referred to the general restriction on granting bail pending appeal as established by the Court of Appeal and he said I quote:

“The rule was stated by Gould VP in Apisai Tora v R, [1978] 24 FLR 28:

It has been a rule of practice for many years that where an accused person has been tried, convicted of an offence and sentenced to a term of imprisonment, only in exceptional circumstances will he be released on bail during the pendency of an appeal. This is still the rule in Fiji. The mere fact an appeal is brought can never of itself be such an exceptional circumstances...”

The President went on to say:

“The rule was confirmed by Tikaram P. in Koya v The State [1996] AAU0011.1996 and Reddy P in Mutch v State [2000] AAU0060.1999. The latter case was decided after the Bail Act had come into force and Reddy P specifically accepted that bail would still only be granted in exceptional and rare cases.”

The appellant comes before the court seeking bail pending appeal when it is apparent that the offence and the conviction which he appeals was committed whilst he was on bail for other matters of a similar nature. In these circumstances, it is inconceivable how it could possibly be established that exceptional circumstances exist to grant the appellant bail.

However, it is necessary to consider the issues prescribed by section 17 of the Bail Act. The first of those as I said, is the likelihood of success in the appeal. This requires a consideration not only of the court record but also of the strength of the prosecution case.

Without going into great detail, I am of the opinion that the prosecution case is indeed strong and the likelihood of ultimate success at least on appeal is slim.

The second issue is the likely time before the appeal hearing. As I indicated earlier today, it is proposed that this appeal be transferred to Suva to be dealt with there to avoid this prisoner and others being transported from Korovou to Natabua on a regular basis. This appeal will be lifted for mention before the High Court at Suva on the 28^th of October 2004.

Lastly, is the proportion of the original sentence, which you all have been served by the applicant when the appeal is heard.

The applicant was sentenced to a total of 6 years imprisonment with respect to the offences under appeal. Should it be that 6 months from now is lapses prior to the appeal being dealt with, then the proportion of the sentence that will have been dealt with pending the appeal being determined is small.

The appellant submits that the conditions under which he is held in prison are such that they just justify the granting of bail. That matter is a matter for the prison authorities. There is more than one prison in this country and it is a matter for the prison authorities to address that issue appropriately should there be a need to so do.

There is nothing as I have said that has been placed before me that would satisfy the test as expressed by the President of the Court of Appeal that is, that there be exceptional circumstances justifying the granting of bail and accordingly, bail is refused.

The appeal of Aiyaz Ali and Suliasi Tarolevu is adjourned to the High Court Suva on the 28^th October 2004 for mention. You are remanded until that time and date with respect to that matter.

JOHN CONNORS
JUDGE

At Lautoka
15 October 2004