Agnu v State [2008] FJHC 91; HAM038D.2008 (18 April 2008)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

Criminal Miscellaneous. Case No: HAM 038 of 2008

BETWEEN:

ROBYN AGNU
Applicant

AND:

THE STATE
Respondent

Hearing: 15th April 2008
Ruling: 18th April 2008

Counsel: Mr. M. Raza for Applicant
Ms L. Lagilevu for State

RULING ON BAIL

The Applicant was convicted in the Suva Magistrates’ Court on one count of indecent practices between males, contrary to section 177 of the Penal Code. He was sentenced to 12 months imprisonment. He now applies for bail pending appeal. He makes the application by motion and affidavit. Annexed to his affidavit is a petition of appeal which he proposes to file.

The grounds of appeal set out in the proposed petition of appeal are that:

1. There was a failure to evaluate the inconsistencies in the evidence of the complainant.
   
2. There was a failure to consider an admission by PW1 that he deliberately lied.
   
3. There was an error in accepting the evidence of two prosecution witnesses who gave hearsay evidence.
   
4. The magistrate should have directed herself on the need for corroboration because of the inconsistencies in the evidence.
   
5. The evidence of "recent" complaint was not recent.
   
6. The magistrate failed to consider the fact that the complainant had been discredited under cross-examination.
   
7. The magistrate was biased.
   
8. The burden of proof was shifted.
   
9. The prosecution did not prove its case beyond reasonable doubt.
   

The affidavit of Hemant Kumar, Chief Legal Executive states that after conviction was entered and before sentence was imposed, counsel made an application to the presiding magistrate to refer the conviction to the High Court under section 323 of the Criminal Procedure Code. The learned magistrate refused the application. He made this application on the ground (inter alia) that the magistrate had failed to consider that PW1’s evidence was inconsistent with the history given to the medical practitioner who examined him. However the learned Magistrate said that the medical report had not been tendered. This is disputed by counsel.

The affidavit also raises the issue of apprehended bias. It annexes documents which show that Sherani & Company has instituted a civil action against the Applicant in relation to a will. The civil action alleges that the Applicant forged a will from which he had benefitted. The statement of claim annexed claims that Mr. H. Nagin was the only lawyer trusted by the deceased to prepare her wills and is a ground for the allegation of fraud. The learned Magistrate is married to Mr. H. Nagin. Both state counsel and defence counsel agree that the learned magistrate did not disclose this to the court before the trial commenced.

The application for bail is made on two grounds. Firstly, that the appeal is bound to succeed, and secondly that a substantial part of the applicant’s sentence will have been served when the appeal is heard. The sentence was imposed on the 3rd of April 2008. He has now served 2 weeks of it. If the appeal is heard at the end of May 2008, he would have served almost 2 months of his 12 months sentence.

I have not had the benefit of perusing the court record, and I am unable to assess the likelihood of the success of this appeal. State counsel handed me a copy of the judgment, and from it I am able to say that the evidence came principally from the complainant Takuia Iaoniea. The prosecution case was that on the 28th of April 2005, while the complainant was watching television the Applicant came to his house and asked him to help him clean the flat next door. The complainant went with him. The Applicant asked him to change a light bulb. He lifted the complainant onto his shoulder and while the complainant was changing the bulb, he touched the complainant’s penis. When the complainant told him to stop it the Applicant put him down. However, he kissed him, touched his penis and sucked it. He repeated it. The complainant did not resist. His mother came to the door of the Applicant’s flat and spoke to the Applicant. Once the complainant’s mother left, the Applicant again kissed the complainant, touched him and sucked his penis. He later told his older brother. A few days later, he told his sister. There was evidence from the complainant’s brother and sisters. The Applicant denied the allegations under caution. In court he remained silent. The complainant was 10 years old at the time of the incident. The learned Magistrate found some discrepancies in the evidence but said that they were to be expected in a 2005 case. She made no reference to the medical evidence.

Based on this judgment, while I accept that the Applicant has an arguable appeal, I cannot say that it is bound to succeed. I also accept that if the learned Magistrate knew that her husband’s law firm had brought civil proceedings against the Applicant alleging fraud, she should have disclosed it to counsel. However she may not have known. Further the Applicant must have known and failed to raise it through counsel, before the trial. Of course the right to an impartial court cannot be waived because it is a public right, and not just the right of the litigants. Nevertheless, before concluding that the ground alleging bias is likely to succeed, it is necessary to read the record to see how the proceedings themselves were conducted. If the proceedings were conducted with scrupulous fairness, an allegation of apprehended bias is unlikely to succeed.

On the issue of the length of sentence, and the timing of the appeal, I consider that 2 months out of a 12 month term (or even 9 months if the Applicant receives a one-third remission from the Prisons Authorities) is not a substantial length of the term.

For these reasons I am not persuaded that bail should be granted. I will set a mention date a month hence to check on the availability of the court record and to set an early hearing date.

Nazhat Shameem
JUDGE

At Suva
18th April 2008