Bukarau v The State [2005] FJHC 183; HAM0044D.2005S (15 July 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

Criminal Misc. Case No: HAM0044 of 2005S

Between:

TEVITA VAKAYARATABUA QAUQAU BUKARAU;
METUISELA MUA;
VILIAME SAUSAUWAI;
ERONI LEWAQAI; and
JOJI BAKOSO.
Applicants

And:

THE STATE
Respondent

Hearing: 14th July 2005
Ruling: 15th July 2005

Counsel: Mr. R. Matebalavu for Applicants
Mr. W. Kuruisaqila for State

BAIL RULING

The 5 Applicants apply for bail pending appeal. They were charged with the offence of consorting with people carrying firearms, and unlawful assembly. A trial was conducted in the Magistrates’ Court and they were convicted. They were sentenced on the 5th of May 2005. The 1st Applicant received a total term of 2½ years imprisonment, the 2nd Applicant, a total of 2½ years imprisonment, the 3rd Applicant, a term of 2 years imprisonment, the 4th Applicant with a term of 2½ years imprisonment and the 5th of 15 months imprisonment. They have served approximately 2½ months of their terms. The High Court is yet to receive the certified copy record for the purpose of setting a hearing date for the appeal.

The affidavit of the 1st Applicant sets out the grounds for bail in respect of all the Applicants. They are that the appeal is likely to succeed, that substantial portions of the terms imposed are likely to be served when the appeal is heard and that the personal circumstances of each Applicant are such as to constitute special circumstances. In particular the 1st Applicant, who is a lawyer, is the sole breadwinner for his family of young school-aged children, the 2nd Applicant is a retired public servant who supports his family on his FNPF pension, and who is wounded by a bullet in his hip bone, the 3rd Applicant has dependent children who rely on his earnings, a disabled wife and his own spinal injury which is aggravated by prison conditions, and the 4th Applicant looks after his 8 children on his Verata farm. In relation to the 5th Applicant, he relies on the ground that much of his 15 month sentence will have been served when the appeal is heard.

At the hearing of this appeal, counsel for the Applicants submitted that the learned Magistrate had erred in reversing the burden of proof on the charge of consorting, and had found (contrary to the charges) that the Applicants had not personally committed any acts of violence. He said that these grounds were certain to succeed. He further argued that the affidavit of the 1st Applicant had set out exceptional circumstances which justified the grant of bail pending appeal.

State counsel objected to bail for all the Applicants, relying on the decisions of the Court of Appeal in Amina Begum Koya v. The State Crim. App. AAU0011 of 1996S and Ratu Jope Seniloli and Others v. The State Crim. App. AAU0041/04S. State counsel said that merely suggesting that there were arguable grounds of appeal was not sufficient to prove that the appeal has every chance of success. He said that the Applicants would only have spent a small portion of their terms of imprisonment when their appeal is heard and that there were no exceptional grounds justifying the grant of bail.

In Ratu Jope Seniloli & Others, Ward P held that apart from the considerations listed in section 17(3) of the Bail Act, the court could also consider the applicant’s character, personal circumstances and any other relevant matters. He referred with approval to the decision of Gould V.P. in Apisai Tora v. R [1978] 24 FLR 28 in the course of which he said:-

“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 circumstance ...”

In R v. Watton [1978] Cr. App. R. 293, it was held that – “exceptional circumstances are such as will drive the court to the conclusion that justice can only be done by granted bail.” (Ward P in Ratu Jope Seniloli at p.3).

The relevant considerations in this case are the likelihood of success of the appeal, the length of the sentences, the likely date of the appeal hearing and all other relevant circumstances, including the personal circumstances of the Applicants.

I am not persuaded, on the basis of the material before me, that this appeal is bound to succeed. A reversal of the onus of proof would indeed be a compelling ground of appeal, but on a perusal of the learned Magistrate’s judgment, it appears that he was referring to the reversal of the onus on a negative averment. Nor do I consider that a ground that he found, in his sentencing remarks, that the Applicants did not personally do any act of violence despite consorting with those who did, to be necessarily fatal to the conviction. Certainly counsel has arguable grounds of appeal, but they will not necessarily succeed.

Further all the Applicants (except for the last) have terms of imprisonment of two years or more to serve. The appeal will certainly be heard by (at the latest) September of this year. The Magistrates’ Courts have a statutory time limit for the sending of records to the High Court. Although they are out of time already by a week, the High Court Registry will send them a reminder today. By September, the Applicants will have served only 5 months of their terms of imprisonment. This is not unconscionably excessive. In Ratu Jope Seniloli, one of the Applicants was serving a 12 month term, and a 4 month delay was held not to be a ground for granting bail. The same principle applies here for the 5th Applicant.

Further, although I consider that the imprisonment of each Applicant has brought hardship to his family, I do not accept that these circumstances constitute exceptional grounds. The families of all prisoners suffer hardship when the prisoners, usually the sole breadwinners of those families, are imprisoned. It is a regrettable consequence of the sentence of imprisonment. But on its own, it cannot constitute exceptional grounds. In particular, I have considered the medical condition of the 2nd Applicant and the disability of the spouse of the 3rd Applicant. I do not consider that on their own, they are sufficient reason to grant bail in this case.

For these reasons bail is refused.

Nazhat Shameem
JUDGE

At Suva
15th July 2005