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Galevu v The State [1990] FJHC 51; HAM0013d.90s (18 July 1990)

IN THE HIGH COURT OF FIJI
At Suva
Criminal Jurisdiction

MISCELLANEOUS CASE NO. 12 OF 1990

Between:

APISALOME GALEVU
Applicant

v.

THE STATE
Respondent

MISCELLANEOUS CASE NO. 13 OF 1990

Between:

ETIKA BULAMAIBAU
Applicant

v.

THE STATE
Respondent

Applicants in Person
Mr. J. Prakash for the State

RULING

Although these application originated from separate letters and have been given separate case numbers, there are numerous features that are common to both such as, the fact that the applicants were charged together as joint offenders in the Magistrates Court and were dealt with under the one Magistrate Court Criminal Case File; the almost identical similarity of the grounds submitted in their application letters and the joint written submission that was produced by them in urging their respective applications.

In the circumstances it is convenient to deal with the applications together and in particular to begin with the undisputed matters that were provided to the court at the hearing.

For instance, both applicants were jointly charged with several counts of Bulkstore Breaking Entering and Larceny before the Magistrate Court and both were convicted on their guilty pleas to the charges. They were thereafter sentenced respectively to concurrent terms of 2 1/2 years and 3 1/2 years imprisonment on the 15th of January, 1990.

In the absence of the relevant Magistrate Court record I am grateful to State Counsel for his assistance as to the facts of the case which very briefly concerned the breaking, entering and stealing from bulkstores and shops over a period of 6 months between June 1989 and January 1990. In one instance the bulkstore was broken into twice. In all the charges averred that an assortment of electrical and photographic goods and other items were stolen with a total value in excess of $60,000 of which only $10,000 has been recovered.

I remind myself that this is an application for bail pending appeal and although it is inappropriate to make observations on the sentence at this stage, on the face of it having regard to the limited information available to the Court, the success of the applicants proposed sentence appeals is by no means inevitable such as to warrant their release on bail on that ground.

Then it is urged that "....... there is a strong possibility in (the) appeals not being heard until near the expiration or completion of the sentences........"

This is a ground which is more likely to be acceded to where the sentence is of short duration such as a sentence of imprisonment of 12 months or less, but by no stretch of the imagination can it be said that the sentences in this case fall into that category.

If I may say so some delay is inevitable in the appeal process where court records need to be compiled, typed up and certified correct and notices need to be served but such delay can only be classed as "inordinate" where it exceeds 6 months whatever might be its cause, especially where the accused has pleaded guilty!

Accordingly, although these present applications must be refused as disclosing no exceptional circumstances at this stage, this is perhaps an appropriate occasion to sound a "warning" that in future applications for bail pending appeal, the court will look closely at the delay occasioned by the preparation of the relevant Magistrate Court record and the reason(s) for it and the court may be constrained (as it was in Misc Case No. 13/88 Ernest Whippy v. The State), to hold that such delay is per se an exceptional circumstance sufficient to warrant the release on bail of a prospective appellant.

(D.V. Fatiaki)
JUDGE

At Suva,
18th July, 1990.

HAM0013D.90S