Jione v The State [2006] FJSC 9; MISC.0013.06S (10 October 2006)

IN THE SUPREME COURT OF the FIJI ISLANDS
AT SUVA

MISC. APPEAL NO. 0013/2006S
(Fiji Court of Appeal No. AAU0094/06S)

BETWEEN:

FORAETE EPINISI JIONE
Petitioner

AND:

THE STATE
Respondent

Coram: The Hon Justice Robert French, Judge of the Supreme Court
The Hon Justice Kenneth Handley, Judge of the Supreme Court
The Hon Justice David Andrew Ipp, Judge of the Supreme Court

Hearing: Tuesday, 10th October 2006, Suva

Counsel: Petitioner in Person
R Gibson for the Respondent

Date of Judgment: Tuesday, 10th October 2006, Suva

REASONS FOR JUDGMENT OF THE COURT

[1] This application, designated as a petition of appeal, seeks the reversal of the concurrent and unanimous decisions of Ward P, and the Full Court of the Court of Appeal refusing the petitioner’s application for bail pending the hearing of his appeal to that Court from his conviction and sentence by the High Court.

[2] An appellate court grants bail to a convicted prisoner only in exceptional circumstances and an application for bail pending the hearing of an appeal invokes a judicial discretion. An appellate Court, asked to review a decision made in the exercise of a judicial discretion, does not automatically re-exercise the discretion, but only intervenes if the exercise of the discretion by the primary Judge miscarried. The principles which guide an appellate court in reviewing a discretionary decision are well established, being set out by the High Court of Australia in House v. The King (1936) 55 CLR 499, 504-5.

[3] The petitioner has not established that the President made any error of law, principle, or fact, in his exercise of the discretion, or that the Full Court erred in their review of the President’s decision. The petition must therefore fail.

[4] A petitioner seeking special leave to appeal to this Court in a criminal case normally has to establish more than just error on the part of the Court of Appeal. Section 7(2) of the Supreme Court Act provides:

"In relation to a criminal matter, the Supreme Court must not grant special leave to appeal unless –

(a) a question of general legal importance is involved;

(b) a substantial question of principle affecting the administration of criminal justices is involved; or

(c) substantial and grave injustice may otherwise occur."

[5] If the present "petition" had been intended as a special leave petition, none of these conditions could have been satisfied in this case. However on 25 September the Director of Public Prosecutions for the first time took an objection to the competency of the petition based on the Constitution. Section 122(1) of the Constitution provides that this Court has jurisdiction "to hear and determine appeals from all final judgments of the Court of Appeal." A decision refusing bail pending the hearing of an appeal is not a final judgment because it does not finally determine whether the appellant is entitled to be liberty. It is an interlocutory judgment.

[6] In this case, the petitioner relies upon section 30 (5) of the Bail Act 2002 which provides:

"The Supreme Court may review any decision of a Magistrate, the High Court or the Court of Appeal, in relation to bail."

There is a question about the scope of the word "review". In our opinion it does not, in this context, extend to review on "the merits" of bail decisions of lower courts. Error in the exercise of the discretion to grant or refuse bail must be shown. A less constrained approach would be inconsistent with the otherwise confined jurisdiction of the Supreme Court in the exercise of its appellate functions and its role as the final appeal court.

[7] The Constitution does not confer any jurisdiction on the Supreme Court to entertain an appeal from the decision of a Magistrate or of the High Court, and only permits an appeal by special leave from a final decision of the Court of Appeal. This may be one of the situations contemplated by section 30(6) of the Bail Act which provides:

"A court may not review a decision under this Part if the court is prohibited from making a decision in relation to the grant of bail by any other written law."

[8] The Supreme Court has power to grant bail pending the hearing of an appeal to that Court, this power being within the general powers of the Court to make interlocutory orders incidental to such an appeal that are conferred or recognised by sections 8 and 11 of the Supreme Court Act. This power is original and not appellate, and is not available where the pending appeal is to the Court of Appeal.

[9] There may be a question whether section 30(5) of the Bail Act is inconsistent with section 122(1) of the Constitution, and as such invalid and of no effect. However, before deciding that question finally this Court would wish to have the benefit of full professional argument, which would have to take account of section 119 of the Constitution. There is also an argument that section 30(5) of the Bail Act confers a separate grant of jurisdiction to the Supreme Court, and that this is permissible under the Constitution.

[10] Since this Court has formed the clear view that there is no error shown in the exercise of the discretion by Ward P and the Court of Appeal there is no ground for interfering with the decisions of Ward P, and the Full Court of the Court of Appeal we dismiss the petition on that ground.

Hon Justice Robert French
Judge of the Supreme Court

Hon Justice Kenneth Handley
Judge of the Supreme Court

Hon Justice David Andrew Ipp
Judge of the Supreme Court

Solicitors:

Petitioner in Person
Office of the Director of Public Prosecutions, Suva for the Respondent

MISC.0013/06S