Tawatatau v State [2022] FJSC 6; CAV 4 of 2021 (26 January 2022)

IN THE SUPREME COURT OF FIJI
CRIMINAL JURISDICTION

Criminal Appeal No. CAV 4 of 2021
AAU 40 of 2017
HAC 886 of 2011

JOELI TAWATATAU
Applicant

THE STATE

Respondent

CORAM: Hon. Mr. Justice Kamal Kumar,

President of Supreme Court

COUNSEL: Applicant in Person

Ms P. Madanavosa for the Respondent

Hearing: 8 September 2021

Ruling: 26 January 2022

RULING
(REVIEW – BAIL PENDING APPEAL)

Introduction

1. On 19 January 2021, Applicant filed Application for Review of Honourable Justice Prematilaka’s ruling delivered on 20 May 2020 (“the Application”).
   
2. The Application was called on 20 July 2021, when parties were directed to file and serve Submission and the Application was adjourned to 8 September 2021, for hearing.
   
3. The Application was heard on 8 September 2021 and adjourned for Ruling on Notice.
   
4. Both parties filed Submissions as directed by the Court.
   

Background Facts

5. The Applicant was charged with one count of aggravated robbery contrary to section 311(1) of the Crimes Act 2009 and one count of resisting arrest contrary to section 277(a) of Crimes Act 2009.
   
6. Details of the charge as appears from Court of Appeal Ruling are as follows:-
   

“FIRST COUNT

Statement of Offence

AGGRAVATED ROBBERY: Contrary to section 311(1)(a) of the Crimes Act No. 44 of 2009.

Particulars of Offence

JOELI TAWATATAU and LEONE VAKARUSAQOLI on the 31^st day of March 2011, at Naduru Road, Nausori in the Central Division, immediately before committing theft, used force and robbed Ravin Prasad of assorted jewelleries valued $9500.00, cash $200.00, one easy-telephone valued $90.00, one nokia phone valued at $50.00, one Samsung mobile valued at $2000.00 and all to the total value of $12,140.00.

SECOND COUNT

Statement of Offence

RESISTING ARREST: Contrary to section 277(a) of the Crimes Decree.

Particulars of Offence

JOELI TAWATATAU on the 31^st day of March 2011 at Tacirua in the Central Division resisted lawful apprehension.”

7. After the trial the Learned Magistrate in exercise of extended jurisdiction found the Applicant guilty as charged.
   
8. On 29 May 2017, the Applicant was sentenced to ten (10) years imprisonment with a non-parole period of nine (9) years on the first count and nine (9) months on the second count.
   
9. The Applicant appealed the decision against conviction and sentence.
   
10. The Applicant filed three grounds of appeal on conviction and one on sentence.
    
11. The Applicant also filed Application for Bail Pending Appeal in Court of Appeal.
    
12. Single Judge of Court of Appeal refused the Applicant Leave to Appeal against the conviction and Sentence.
    
13. On 21 May 2020, the Applicant filed Renewal Notice of Appeal Against Conviction in Court of Appeal.
    
14. Court of Appeal also refused the Applicant’s Application for Bail Pending Appeal.
    

Application for Review

15. Section 30 of Bail Act provides as follows:-
    

“30 (1) A Magistrate may review any decision made by a police officer in relation to bail.

(2) A Magistrate may review a decision made by another Magistrate, including a reviewing Magistrate, in relation to bail.

(3) The High Court may review any decision made by a Magistrate or by a police officer in relation to bail.

(4) The Court of Appeal may review any decision made by the High Court in relation to bail.

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

(6) 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.

(7) A court which has power to review a bail determination, or to hear a fresh application under section 14(1), may, if not satisfied that there are special facts or circumstances that justify a review, or the making of a fresh application, refuse to hear the review or application.

(8) The power to review a decision under this Part in relation to an accused person may be exercised only at the request of –

(a) the accused person;
(b) the police officer who instituted the proceedings for the offence of which the person is accused;
(c) the Attorney-General;
(d) the Director of Public Prosecutions; or
(e) the victim of the offence.

(9) The power to review a decision under this Part includes the power to confirm, reverse or vary the decision.

(10) The review must be by way of a rehearing, and evidence or information given or obtained on the making of the decision may be given or obtained on review.”

16. This Court in Kumar v State [2021] CAV 20 of 2020 (5 February 2021) and Dutt v State (2022) CAV 18 of 2020 (13 January 2022) stated the principles to be applied in respect to Application for Review of Bail Ruling by the lower Court(s) and Application for Bail Pending Trial/Appeal.
    
17. This Court will consider the factors listed in section 17(3) of the Bail Act 2009.
    

Likelihood of Success – Appeal filed in Court of Appeal

18. The grounds of appeal as produced in Court of Appeal Ruling are as follows:-
    

“Ground One

The Learned resident Magistrate erred in law and fact when he considered the admissions of the appellant’s co-accused in his judgment and considering the admissions of the appellant’s co-accused as part of the evidence that led the learned Magistrate to convict the appellant.

Ground Two

The Learned Resident Magistrate erred in law and fact when he failed to properly assess the lack of evidence on the identification of the Appellant and convicting the Appellant with no identification evidence at all which was improper and raises an arguable error made by the Learned Magistrate.

Ground Three

The Learned Resident Magistrate erred in law and fact when he failed to properly assess the evidence of recent possession.

Jurisdiction

19. Single Judge of Court of Appeal refused the Applicant’s Application for Leave to Appeal against conviction and sentence.
    
20. Since, there was no appeal on foot, the Application for Bail was also dismissed.
    
21. This Court takes judicial notice of the fact, the Applicant has filed Appeal to the Fiji Court of Appeal.
    
22. The proper course is for the Applicant to file Application for bail pending appeal to Full Court of Appeal.
    
23. This Court accepts that this Court in this instance has no jurisdiction to deal with the Applicant’s Application.
    

Costs

24. This Court takes into consideration that parties filed submissions whilst they realized on at the hearing and the Applicant is an inmate.
    

Orders

25. This Court makes the following Orders:
    
    • (i) The Applicant’s Application for Review of Bail Pending appeal is dismissed and struck out;
    • (ii) Each party bear their own costs.
      

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

Hon. Justice Kamal Kumar

President, Supreme Court

Solicitors

Applicant in Person

Office of the Director of Public Prosecutions for Respondent