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Court of Appeal of Fiji |
IN THE COURT OF APPEAL, FIJI
[On Appeal from the Magistrates Court]
CRIMINAL APPEAL NO.AAU 054 of 2018
[Magistrates Court of Nausori Case No. 221 of 2013]
BETWEEN:
PENI MATAIRAVULA
Appellant
AND :
STATE
Respondent
Coram : Prematilaka, JA
Counsel : Appellant in person
: Mr. R. Kumar for the Respondent
Date of Hearing: 22 September 2020
Date of Ruling : 23 September 2020
RULING
[1] The appellant had been tried along with two others in the Magistrates court in Nausori under extended jurisdiction on a single count of aggravated robbery contrary to section 311(1) of the Crimes Act, 2009 committed on 01 May, 2013 at Mokani, Bau Road, Nausori in the Central Division. The appellant had also been charged with resisting lawful arrest on 06 May 2013 but found not guilty and acquitted by the Magistrate. The charge of aggravated robbery against the appellant was as follows.
‘FIRST COUNT
Statement of Offence
AGGRAVATED ROBBERY:
Particulars of Offence
SOSICENI TIKOMAIRJOPE KOVEI AND PENI MATAIRAVULA on the 1
[2] >[2] After trial, the learned Magistrate had found the appellant guilty as charged in her judgment dated 18 January 2018 and case had been remitted to the High Court for sentencing. The appellant was sentenced on 18 May 2018 by the High Court to an imprisonment of 08 years and 01 month with a non-parole period of 06 years and 01 month.
[3] The appellant in person had appealed against conviction and sentence within time on 07 June 2018. The appellant had tendered additional grounds of appeal and submissions from time to time and at the stage of leave to appeal hearing he relied on his amended grounds of appeal and submissions filed on 12 July 2019, 04 March 2020 and 21 July 2020. He had also filed an application for bail pending appeal on 18 June 2019. The State had tendered its written submissions on 24 June 2020 and 24 July 2020.
[4] In terms of section 21(1)(b)and (c) of the Court of Appeal Act, the appellant could appeal against conviction and sentence only with leave of court. The test for leave to appeal is ‘reasonable prospect of success’ (see Caucau v State AAU0029 of 2016: 4 October 2018 [2018] FJCA 171, Navuki v State AAU0038 of 2016: 4 October 2018 [2018] FJCA 172 and State v Vakarau AAU0052 of 2017:4 October 2018 [2018] FJCA 173, Sadrugu v The State Criminal Appeal No. AAU 0057 of 2015: 06 June 2019 [2019] FJCA87 and Waqasaqa v State [2019] FJCA 144; AAU83.2015 (12 July 2019) in order to distinguish arguable grounds [see Chand v State [2008] FJCA 53; AAU0035 of 2007 (19 September 2008), Chaudry v State [2014] FJCA 106; AAU10 of 2014 and Naisua v State [2013] FJCA 14; CAV 10 of 2013 (20 November 2013)] from non-arguable grounds.
[5] Further guidelines to be followed for leave to appeal when a sentence is challenged in appeal are well settled (vide Naisua v State CAV0010 of 2013: 20 November 2013 [2013] FJSC 14; House v The King [1936] HCA 40; ;(1936) 55 CLR 499, Kim Nam Bae v The State Criminal AppeaAAU0015 and
(i) Acted upon a wrong principle;
(ii) Allowed extraneous or irrelevant matters to guide or affect him;
(iii) Mistook the facts;
(iv) Failed to take into account some relevant consideration.
Labail peil pending appeal.
[6] In Tiritiri v State [2015] FJCA 95; AAU09.2011 (17 July 2015) the Court of Appeal reiterated the applicable legal provisions annciples in bail pending appg appeal applications
as earlier set out in Balaggan v The State AAU 48 of 2012 (3 Dec 2012 2012) [2012] FJCA 100 and repeated in Zhong v The State AAU 44 of 2013 (15 2014)4) as follow/p>
‘[5] There is also before the Court an application for bail pail pending app160; pursuantection 33( the Act. Act. The power of the Court of Appeal teal to grant
[6] In Zhou>Zhong –v- The State (4 of 15 July 2I 4) I made made some observations in relation toon to the granting of bail pending appeal
"[25] [25] Whether bending appeaappeal> shou granted is a mator ther the exercise of the Court's discretion. The words usds used in section 33 (2) are clear. The Court may, if it sees fit, admit pella bail penl pending appeal. The discretion ison is to be exercised in accordance with established guidelines. Those guidelines are to be found in the earlier decisions of this court and other cases determining such applications. In addition, the discretion is subject to the provisions of the Bail Act 2002. The discretion must be exercised in a manner that is not inconsistent with the Bail Act.
[26] The starting point in considering an application for baiding l is to reto recall the distonction between aeen a person who has not been convicted and enjoys the presumption of inno and a person who has been convicted and sentenced to a term of imprisonment. In the formerormer case, under section 3(3) of the ef="http://www.paclii.olii.org/fj/legis/num_act/ba200241/">Bail Act there is a rebuttableumptiomption in favour of gng bail. In the latter case, under section 3(4) of the Bail a>, the presumption in favour of granting bail is displaisplaced.
[27] Once it has been accepted that under the Bail Act there is no pption in fain favour of bail for a convicted person appealing against conviction and/or sentence, it is necessary to consider the factors that are releva the exercise of the discretion. In the first instance ance these are set out in section 17 (3) of the Bail Act which s:
"Wh> "When a court is considering the gra of bail to a person who has appealed against conviction or sentence the court must take inke into account:
(a) the lhood of success in the appe 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."
[28] 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 b> should only be granted wheee there are exceptional circumstances. In Apisai Vunia Tora anda and Others –v- R (1978) 24 FLR 28, ourt of Appeal emphasised the overriding importance of the 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."
[29] 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 appealS Secondly, exceptional circumstances should be viewed as a factor for the court to consider when determining the chances of success.
[30] This second aspect of exceptional circumstances was discussed by Ward P in Ratu Jope Sen and Othd Others –v- The State (unreported criminaeal No. No. 41 of 2004 delivered on 23 August 2004) at page 4:
"The likelihood of success has always been a factor the court has considered ilications for bail pending ap#160;andb>and sect 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 app160;to b>to delve into the actual merits of the appeal. That as was pointed out in Koya's case (Koya v The State unred AAU 11 of 1996 by Tiky Tikaram P) is the function of the Court after hearing full arll argument and with the advantage of having
the trial record before it."
[31] It followt the long standing requirequirement that bail pending l will only be gran 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 a verh likod of succesuccess."
[7] Inn Rate Seniloli & Ors. v s. v The State AAU 41 of 2004 ( 23 Augus4)2004) the Court of Appeal said that the likelihood
of success must be addressed first, and the two remaining matters in S) of 160;Bail Act  namely "the litime before tore the appeal
hearing" and "the proportiportion of the original sentence which will have been served by the applicant when the appeal is heard"
are directly relevant ' only if the Court accepts there is a real likelihood of success' otherwise, those latter matters 'are otiose'
(See also Ranigal v State [2019] FJCA 81; AAU0093.2018 (31 May 2019)
[8] In Kumar v State [2013] FJCA 59; AAU16.2013 (17 June 2013) the Court of Appeal said ‘This Court has applied section 17 (3) on the basis that the three matters
listed in the section are mandatory but not the only matters that the Court may take into account.’
[9] In Qurai v State [2012] FJCA 61; AAU36.2007 (1 October 2012) the Court of Appeal stated
‘It would appear that exceptional circumstances is a matter that is considered after the matters listed in section 17 (3) have been considered. On the one hand exceptional circumstances may be relied upon even when the applicant falls short of establishing a reason to grant bail under section 17 (3).
On the other hand exceptional circumstances is also relevant when considering each of the matters listed in section 17 (3).’
[10] In Balaggan the Court of Appeal further said that ‘The burden of satisfying the Court that the appeal has a very high likelihood of success rests with the Appellant’
<
"... The fact that the material raised arguable points that warranted the Court of Appeal hearing full argument with the benefit o trial record does not by itself lead to the conclusion than that there is a very high likelihood that the appeal will succeed...."
[12] Justice Byrne in Simon John Macarv. Thv. The State Cr. Ap. AAU0103 of 2008 in 8 in his Ruling regarding an application for bail pending appeal;#160; said with reference tumentsments on iuacy of the summisumming up of the trial [also see
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URL: http://www.paclii.org/fj/cases/FJCA/2020/180.html
