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Vunivanua v State [2012] FJCA 62; HAC053.2010 (4 October 2012)

IN THE COURT OF APPEAL, FIJI.
ON APPEAL FROM HIGH COURT OF FIJI

MISCELLANEOUS ACTION NO. 27 OF 2010
[High Court Criminal Case No. HAC 053 of 2010,
Lautoka]

BETWEEN

SAKIUSA VUNIVANUA
Appellant

AND

THE STATE
Respondent

Counsels : Appellant in Person
Ms. P. Madanavosa for Respondent
Hearing : 31st August, 2012
Ruling : 4th October, 2012

RULING ON LEAVE TO APPEAL HIGH COURT'S REFUSAL OF BAIL

1. In Lautoka High Court Criminal Case No. HAC 053 of 2010, the appellant, with two others, faced the following information:
   

Statement of Offence

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

Particulars of Offence

MALAKAI KOTOBALAVU, SAKIUSA VUNIVANUA and JONE SAVOU and another, on the 30th day of May 2010, at Rakiraki in the Western Division, committed theft on LIANG GUAN ZHI by dishonestly appropriating his Samsung mobile phone, a white WP500 Korean electronic dictionary, a Seiko wristwatch, a back bag and $24,430.00 cash, all to a total value of $30,240.00 and immediately before such robbery used force by assaulting LIANG GUAN ZHI.

2. On 10th March 2011, the High Court of Lautoka denied the appellant's application for bail pending trial. The court found the appellant was a resident in Suva, and it was alleged he travelled to the West with two others to commit the offence. It was alleged that after committing the offence, he fled back to Suva. The court found the appellant had 4 previous convictions of burglary, larceny and house-breaking. In his police caution interview statements, it was alleged that he made a confession. The offence was serious and carried a maximum sentence of 20 years imprisonment. Considering the factors outlined in section 19 of the Bail Act 2002, the High Court denied the appellant's bail application. He was aggrieved with the decision, and he applied to this court for leave to appeal against the refusal of bail.
   
3. Section 21(3) of the Court of Appeal Act, Chapter 12, under the heading "Right of Appeal in Criminal Cases", reads as follows:
   

"...The Court of Appeal may, if it gives leave, entertain an appeal from the High Court against the grant or refusal of bail, including any conditions or limitations attached to a grant of bail, upon the application either of the person granted or refused bail or of the Director of Public Prosecutions..."

4. Section 35(1) and (2) of the Court of Appeal Act, under the heading "Powers of a single judge of appeal", reads as follows:
   

"...35(1) A judge of the Court may exercise the following powers of the Court –

1. to give leave to appeal to the Court;...
   

d) to admit an appellant to bail...

2) If on the filing of a notice of appeal or of an application for leave to appeal, a judge of the Court determines that the appeal is vexatious or frivolous or is bound to fail because there is no right of appeal or no right to seek leave to appeal, the judge may dismiss the appeal..."

5. On 24th July 2012, the matter was called for mention before the Hon. Acting President of the Court of Appeal, Mr. Justice W. Calanchini. The appellant was not present. The matter was again called before myself on 31st August 2012. The appellant was again not present. I was advised by the Registry that Lautoka Criminal Case No. 053 of 2010 is still pending. I was also advised that the appellant had been on the run from this case since 5th December 2011. A bench warrant was issued against him on 5th December 2011, and that bench warrant had been pending since then. The Registry advised that the case was last called before His Lordship Mr. Justice Priyantha Nawana on 30th July 2012, at Lautoka High Court. The appellant was absent, and the bench warrant pending against him was extended to the 25th October 2012, at 9.30 am.
   
6. I was also advised by the Registry that the appellant was granted bail by the Lautoka High Court on 3rd August 2011, that is, approximately 5 months after the bail ruling he's appealing against. I take judicial notice of the appellant's reluctance to attend to this matter, and the fact that he had been on the run from Lautoka High Court since 5th December 2011. In my view, his application for leave to appeal against the Lautoka High Court refusing his bail on 10th March 2011, is merely academic, because he was granted bail on 3rd August 2011.
   
7. In my view, his application for leave to appeal against the refusal of his bail on 10th March, 2011 is vexatious and/or frivolous. There is no need to keep the file "alive" in the system. It will serve no purpose. It is a waste of taxpayers' resources. I therefore dismiss his application for leave to appeal the Lautoka High Court refusal of his bail on 10th March 2011. I order so accordingly.
   

Salesi Temo
Justice of Appeal

Solicitor for Appellant : In Person
Solicitor for Respondent : Office of the Director of Public Prosecution, Suva.