Rizwan v The State [2005] FJHC 394; HAM0077.2005 (30 November 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

CRIMINAL MISC. CASE NO.: HAM0077 OF 2005

BETWEEN:

MOHAMMED RIZWAN
Applicant

AND:

STATE
Respondent

Counsel: Applicant – In Person
Mr. A. Ravindra-Singh – for State

Date of Hearing & Ruling: 30th November, 2005

EXTEMPORÉ RULING

This is an Extemporé Ruling given at the conclusion of an application for bail pending appeal.

Background

The applicant was convicted on 19 counts of fraud related offending and sentenced by the learned Magistrate to a term of 4 years imprisonment on the 23^rd of September of this year.

He has filed his appeal against conviction and sentence and accompanied that with this application for bail pending the determination of appeal.

He advances his case on the basis that there was a miscarriage of justice at his trial. The charges against him were in his words “not right” and that he was not given a fair hearing in particular because of his lack of access to a lawyer.

I remind myself of the Court of Appeal’s decision of Ratu Jope Seniloli & Others vs The State, AAU0041.2004S, a decision of the President that clearly sets out the legal grounds for consideration of such an application. In that decision the learned President said:

“The general restriction on granting bail pending appeal as established by cases in Fiji and many other common law jurisdictions is that it may only be granted where there are exceptional circumstances. That is still the position and I do not accept that, in considering whether such circumstances exist, the Court cannot consider the applicant’s character, personal circumstances and any other matters relevant to that determination. I also note that in many cases where exceptional circumstances have been found to exist, they arose solely or principally from the applicant’s personal circumstances such as extreme age and frailty or serious medical condition...... Exceptional circumstances are such as will drive the court to the conclusion that justice can only be done by granting bail”; R v Watton [1978] Cr. Appeal R.293.

The Bail Act which largely consolidates the law on bail provides by Section 3 that there shall be a rebuttable presumption in favour of granting bail to a person charged with a criminal offence. That presumption can be rebutted where the person has been convicted and he has appealed against that conviction. The fundamental difference between a bail applicant awaiting trial and one who has been convicted and sentenced to jail by a court of competent jurisdiction is that in the former situation the applicant is innocent in the eyes of the law until proven guilty. In respect of the latter he or she remains guilty until such time as a higher court overturns, if at all, the conviction. It, therefore, follows that a convicted person carries a higher burden of satisfying the court that the interests of justice require that bail be granted pending appeal. Cf Amina Koya v The State [1996] (unreported) AAU011.1996.

The burden on the applicant appellant to establish a proper case for bail is therefore high. In considering his bail I bear in mind Section 13 of the Act and in particular sub-section 3.

I don’t consider the likelihood of success in the appeal is strong as described. The appeal complaints are routine and there is nothing exceptional about the charges not being right nor the absence of counsel.

The likely time before the appeal hearing is not great. I will list this matter for hearing in my February appeal sessions.

At that stage the proportion of the original sentence which will have been served by the applicant when the appeal is heard is not large. It will only be a matter of several months.

Accordingly for these reasons I decline the application to grant the appellant bail pending appeal. He is remanded in custody. His appeal will, however, be considered by me on Monday the 20th of February, 2006 at 9.30am.

Gerard Winter
JUDGE

At Suva
30th November, 2005