Tora v The State [2005] FJHC 539; HBM0034.2005L (28 September 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HBM0034 OF 2005L

APISAI TORA
PENIASI SABOLO
VILIAME RAKULI
PAULA SAUKURU
NAPOLIONI VASU
MOSESE TUISA
PENE RAICEBE
VELA TAWAKE
PENIASI QORO
ANANAIASA MOCEI
APENISA NAYATE
ACA TUIGALOA
KINISIMERE QORO

v

STATE

Mr. I. Khan for the Applicants/Appellants
Mr.K. Tunidau for the Respondent

Date of Hearing: 28 September 2005
Date of Ruling: 28 September 2005

EXTEMPORE RULING
ON BAIL APPLICATION PENDING APPEAL

In this matter the applicants filed a Notice of Motion seeking bail pending appeal pursuant to section 315 of the Criminal Procedure Code and section 17 of the Bail Act.

The applicants were convicted by this Court following an appeal by the State from an order of acquittal of the Learned Magistrate at Nadi. The applicants were sentenced by this Court yesterday. The 1^st applicant being sentenced to 8 months imprisonment and the other 12 applicants each to 4 months imprisonment.

The applicants rely on the affidavit of Apisai Tora sworn on the 27^th September 2005 so far as is relevant.

Section 315 of the Criminal Procedure Code applies to appeals to the High Court from the Magistrates Court but has no application to appeals from the High Court.

Section 22 of the Court of Appeal Act governs appeals from the High Court in its appellate jurisdiction to the Court of Appeal.

Section 22 (1) of the Court of Appeal Act relevantly provides:

“22 (1) – Any party to an appeal from a magistrate’s court to the Supreme Court may appeal, under this Part, against the decision of the Supreme Court in such appellate jurisdiction to the Court of Appeal on any ground of appeal which involves a question of law only (not including severity of sentence).

........................

(7) - Without prejudice to the application of sections 33 and 35, in any case where an appeal under the provisions of this section is pending a judge of the Supreme Court (High Court) may in his discretion grant bail to any convicted person who is a party to such appeal.”

It follows therefore that the enabling provisions for the consideration of the applicants motion is section 22 (7) of the Court of Appeal Act.

The pre-requisite for the application of that subsection is that there be a pending appeal to the Court of Appeal under section 22. That means an appeal against conviction on a ground which involves a question of law only.

Counsel for the applicants relies on his written submissions and his further oral submissions and asks that the Motion be considered on the first ground of appeal only. That is the first ground of appeal in the Notice of Appeal filed with the Fiji Court of Appeal today. That ground is:

“(a) That the Appeal Judge erred in law in totally omitting to direct his mind to the fact that this was a joint trial and therefore the need to consider evidence against each appellant separately.”

The Bail Act 2002 makes provision for the granting of bail and codifies matters that the Court must consider. Section 3 of that Act provides for a presumption in favour of granting bail but that presumption by virtue of section 3 (4) (b) is displaced where the applicant has been convicted and has appealed against the conviction.

The burden is on the applicant to establish that this is a proper case for the Court to exercise its discretion to grant bail.

Section 17 (3) of the Bail Act mandates that the Court when considering the granting of bail to a person who has appealed takes into account:

“(a) the likelihood of success in the appeal;

(b) the likely time before the appeal hearing;
(c)
(d) the proportion of the original sentence which will have been served by the applicant when the appeal is heard.”

The Court is also required to consider “the general restrictions 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” – Ratu Jope Seniloli & Ors v The State – Cr. App. No. AAU0041 of 2004S. In that same case, the President of the Court of Appeal considered earlier authorities of the Fiji Court of Appeal including Apisai Tora v R [1978] 24 FLR 28 where the Court 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...”

The President went on at page 3 in the same case to say:

“The rule was confirmed by Tikaram P in Koya v State [1996] AAU 0011/96 and Reddy P in Mutch v State [2000] AAU 0060/99. 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 President further considered the issues and said in Ratu Inoke Takiveikata v The State – Cr. App. No. AAU0065 of 2004S at page 3:

“The test for the Court when determining the likelihood of success is that bail will only be granted if the issues raised show the appeal has every chance of succeeding and that there are exceptional circumstances such as will drive the court to the conclusion that justice can only be served by the grant of bail.”

At pages 9 and 10 of the judgment of this Court on the 19^th September 2005 is set out:

“Apisai Tora said:

I deny all the allegations against me.

I did not have any weapons whatsoever when soldiers had guns. Whatever I did was exercising my constitutional rights to assemble and demonstrate peacefully with others.

My actions did not commit any breach of peace.

All other respondents merely agreed with or adopted this statement.”

The applicants have therefore all admitted that they assembled.

It is therefore apparent that 3 or more persons assembled. The remaining elements of the offence do not, for the reasons given in the judgment, require any analysis of the evidence with respect to each of the applicants.

“It is not sufficient that the appeal raises arguable points and it is not for the single judge on an application for bail pending appeal to delve into the actual merits of the appeal” – Ratu Jope Seniloli & Ors v The State.

At page 4 of that same decision, the President went on and quote:

“In Sharda Nand v DPP, FCA Application 3 of 1979, Marsack JA repeated the warning that the court should not, on such an application, give any ruling on the legal issues raised and then stated:

‘All that is necessary ... is to decide whether [the issues] show, on the face of it, that the appeal has every chance of success’.”

The President further said at page 4 of Ratu Jope Seniloli’s case that that principle was confirmed still to be the test by Reddy P in Mutch’s case.

I am not satisfied that the single ground of appeal that I must consider satisfies that test. Whilst it raises an arguable point that is far short of saying that it has every chance of success.

The two remaining matters set out in section 17(3) (b) and (c) are only relevant if the Court finds that there is a real likelihood of success. If the Court does not so find then their determination, as held by the President of Fiji Court of Appeal in Ratu Seniloli, becomes otiose.

Having reached this conclusion, the Court is still required to consider whether any of the applicants have established what amounts to exceptional circumstances.

The only evidence before the Court is the affidavit of Apisai Tora sworn on the 27^th September 2005 in which he says, with respect to himself, that he is 71 years of age and very sickly person and had a backbone operation this year and that he cannot look after himself without assistance and he is unable to move around without crutches. There is no evidence before me to support any of these propositions.

He further says that he suffers from severe backache due to a hip “constructions operation” due to which he is unable to sit properly and whilst sitting gives him severe pain.

He says that the 5^th and 13^th applicants are suffering from severe heart problems and that they always experience severe pain which requires immediate medical attention.

I have no medical evidence before me to support that statement. If it was intended that I should take notice of those propositions then counsel should have placed before the Court appropriate medical evidence.

He further says that the 2^nd to 9^th and 11^th to 13^th applicants are first offenders and that they have been consistently attending Court. That in itself cannot possibly be considered and exceptional circumstance.

He then raises on behalf of himself that he is sentenced to 8 months imprisonment and that he will serve approximately 5 months and 4 days. By the time his appeal is heard, he may have served his sentence and the appeal would be rendered nugatory.

He says on behalf of the other applicants that they will serve approximately 2 months and 7 days and by the time the appeal is heard, they would have served their sentence and the appeal would be rendered nugatory.

Lastly he says on his own behalf and on behalf of the others, if they are kept in prison, it would cause extreme hardship to their families.

Whilst I am concerned that the sentences are short and that the delay in the hearing of the appeal, I can only grant bail, by virtue of the decisions of the Fiji Court of Appeal, if I am satisfied that the appeal has every chance of succeeding. I am of the opinion that the applicants have failed to discharge the burden of satisfying the court that bail should be granted pending appeal and accordingly, the application is refused.

John Connors
JUDGE

At Lautoka
28 September 2005