Lal v State [2013] FJHC 178; HAM034.2013 (11 April 2013)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

CRIMINAL MISCELLANEOUS CASE NO: HAM 034/2013

BETWEEN:

SALESH SATEN LAL
APPLICANT

AND:

STATE
RESPONDENT

COUNSEL : Mr Nandan for the Applicant
Mr J B Niudamu for the Respondent/State

Hearing Date : 02/04/2013
Ruling Date : 11/04/2013

RULING ON BAIL PENDING APPEAL

01. Salesh Saten Lal (hereinafter "the applicant") was charged for the offence of Dangerous Driving Occasioning Death contrary to Section 97 (2)(c) and 114 of the Land Transport Act No:35 of 1998.

02. After full trial, the Applicant was found guilty of the charge and sentenced accordingly.

03. On 25th January 2013 the Applicant was sentenced to 02 year imprisonment. The Applicant's sentence was partly suspended where he would serve 14 months imprisonment and the remaining 10 months will be suspended for two years. Up to now the Applicant has served 02 months and 16 days of the sentence.

04. The Applicant lodged his Petition of Appeal on 13th of February 2013.He is Appealing against both conviction and the sentence imposed by Learned Magistrate Navua.

05. Applicant filing this application submits that the Applicant will serve whole or substantial part of his prison term before his Appeal is heard.

06. Bail Pending Appeal is governed under section 17(3) of the Bail Act 2002. According to section 17(3) of the Bail Act;

(3) When a court is considering the granting of bail to a person who has appealed against conviction and sentence court must take into consideration-

(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.

07. The presumption in favour of the granting bail is displaced where the person has been convicted and has appealed against conviction. The Applicant therefore has to prove the existence of exceptional circumstances or any consideration under section 17(3) of Bail Act.

08. In James Praneel Singh v State Misc. Ac. No. HAM 25/04, Madam Shameem J, stated at Paragraph 3

:

"The principles relevant to this application are whether a substantial portion of the sentence will have been served at the time of the appeal is heard, the merit of the appeal and any exceptional grounds justifying bail. There is no right to bail pending appeal"

09. The appeal hearing is not set yet. It will take some time to fix for hearing. The total sentence he has to serve as per the judgement is 14 months. He is entitle for 1/3 remission. Considering all these into account the Applicant will have been served substantial portion of the sentence when this court deliver the judgement. I consider this is a special circumstance.

10. Considering above factors the Applicant's bail Pending Appeal application has some merit. Therefore I decided to grant bail subject to following conditions.

1. To secure his own attendance at the High Court by standing in his own recognizance in the sum of $1000.00 (Non-cash).
   
2. To provide two sureties. They must sign a bond of $1000.00 each.
   
3. To surrender his passport if any to court and not to apply for a travel document. The Director of Immigration is informed of the travel ban on the applicant.
   
4. To report to nearest police station every Wednesday and Sunday between 6am to 6pm.
   
5. Not to leave Suva until the case is concluded.
   
6. Any breach of these conditions is likely to result in cancellation

of his bail.

P Kumararatnam
JUDGE

At Suva
11/04/2013