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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT LAUTOKA
MISCELLANEOUS JURISDICTION
CRIMINAL MISCELLANEOUS CASE NO: HAM 182 OF 2023
BETWEEN
FARASIKO ADROLE
Applicant
AND
STATE
Respondent
Counsel: Applicant in Person
Mr. Baleilevuka for Respondent
Date of Hearing : 16 November 2023
Date of Ruling : 17 January 2024
RULING ON BAIL PENDING APPEAL
Introduction
The Law Relating to Bail Pending Appeal
When a court is considering the granting of bail to a person who has appealed against conviction or sentence, the court must take into account;
a. The likelihood of success in the Appeal.
b. The likely time before the appeal hearing.
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.
I have borne in mind the fundamental difference between a bail applicant waiting Trial and one who has been convicted and sentenced to jail by a court of competent jurisdiction. In the former 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.
Once it has been accepted that under the Bill Act there is no presumption in favour of bail for a convicted person appealing against conviction and/or sentence, it is necessary to consider the factors that are relevant to the exercise of the discretion. In the first instance these are set out in section 17 (3) of the Bail Act which states: " When a Court is considering the granting of bail to a person who has appealed against conviction or sentence the Court must take into account:
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 appellant when the appeal is heard.
Although Section 17 (3) imposes an obligation on the Court to take into account the three matters listed, the Section does not preclude a Court from taking into account any other matter which it considers to be relevant to the application. It has been well established by cases decided in Fiji that bail pending appeal should only be granted where there are exceptional circumstances.
In Apisai Vuniyayawa Tora & Others –V- R (1978) 24 FLR 28, the Court of Appeal emphasized the overriding importance of the exceptional circumstances requirement:
It has been a rule of practice for many years that where an accused person has been tried and convicted of an offence and sentenced
to a term of imprisonment, only in exceptional circumstances will he be released on bail during the pending of an appeal.
The requirement that an applicant establish exceptional circumstances is significant in two ways. First, exceptional circumstances may be viewed as a matter to be considered in addition to the three factors listed in Section 17 (3) of the Bail Act. Thus, even if an applicant does not bring his application within Section 17 (3), there may be exceptional circumstances which may be sufficient to justify a grant of bail pending appeal. Secondly, exceptional circumstances should be viewed as a factor for the Court to consider when determining the chances of success.
This second aspect of exceptional circumstances was discussed by Ward P in Ratu Jope Seniloli & Others –V- The State (Unreported Criminal Appeal No. 41 of 2004 delivered on 23rd August 2004) at page 4:
The likelihood of success has always been a factor the Court has considered in applications for bail pending appeal and Section 17 (3) now enacts that requirement. However, it gives no indication that there has been any change in the manner in which the Court determines the question and the Courts in Fiji have long required a very high likelihood of success. 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. That as was pointed out in Koya'scase (Koya –V- The State unreported AAU 11 of 1996 by Tikaram P) is the function of the full Court after hearing full argument and with the advantage of having the trial record before it.
It follows that the long standing requirement that bail pending appeal will only be granted in exceptional circumstances is the reason why "the chances of the appeal succeeding" factor in Section 17 (3) has been interpreted by this Court to mean a very high likelihood of success.
Analysis
[a]. High Likelihood of Success
[b] The likely time before the appeal hearing
Proportion of original sentence served when appeal is heard:
(i). Surety bail bond of FJD 500 with two sureties.
(ii). Reporting to Lautoka Police Station on every last Saturday of the month between 8 a.m. to 4 p.m.
(iii). Not to re-offend whilst on bail.
Aruna Aluthge
Judge
At Lautoka
17 January 2024
Counsel: Applicant in Person
Office of the Director of Public Prosecution for Respondent
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