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Shekhar v The State [2004] FJHC 192; HAM0015.2004 (2 April 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

CRIMINAL MISC. CASE NO.: HAM0015 OF 2004

BETWEEN:

CHANDRA SHEKHAR f/n Shiu Sundar
BIMAL SHANKAR f/n Hari Shankar
Applicants

AND:

STATE
Respondent

Counsel: Mr. M. Raza - for the Applicants
Mr. B. Solanki - for State

Hearing: 2nd April, 2004
Judgment: 2nd April, 2004

EX TEMPORE JUDGMENT

This is an ex tempore decision in response to an urgent application for bail made by the applicants as such I reserve the right to amend or perfect this judgment.

Background

The applicants were charged with corrupt practices contrary to Sections 376(b) and 377 of the Penal Code (Cap. 17). On the 1st of March 2004 they were found guilty of the charges and sentenced on the 31st of March to six months imprisonment on each count to run concurrently. They were not satisfied with that decision and applied to the presiding magistrate for bail and he refused that application stating that even if the appeal was heard within 28 days it would not be tantamount to them having served a substantive sentence.

The trial itself was a contested matter. It took approximately 6 days of hearing time. I have not had the benefit of the full Magistrates Court file. I have been given the decision that led to the conviction. Because of the urgency of the matter I must proceed on the basis of the papers that I have been able to review in the short time available.

Bail Pending Appeal

The starting point for this bail determination is the Bail Act of 2002, Section 17(3) of which reads:

“when a court is considering a granting of bail to a person who has appealed against conviction or sentence the court must take into account:

(a) the likelihood of success in the appeal;
(b) the likely time before the appeal hearing;

(c) the proportion of the original sentence which will have been served by the applicant when the appeal is heard.”

In my view those provisions are not linked or conjunctive. They must each be separately weighed and then the court is to stand back and assess the competing interest of the individual and society. In respect of those who are convicted and seek to appeal against conviction and sentence they remain guilty until such time as a higher court overturns the conviction. Therefore it follows that a convicted person carries a higher burden of satisfying a court that the interests of justice require that bail be granted pending appeal.

I have been greatly assisted by both counsel and their thoughtful submission. I was provided with a decision of the Fiji Court of Appeal Koya and the State Appeal AAU0011 of 1996. Although this decision was made before the enactment of the present Legislation it nonetheless encapsulates the law. It is a useful and instructive decision. I adopt in principle the expressions by the learned President contained at page 5 of that decision. At page 5 the learned President was concerned at any injustice done to the convicted accused by a substantial delay in the hearing of his appeal.

I return now to the Bail Act and consider the principles one by one.

The first principle is the likelihood of success in the appeal. What does that phrase mean? Frequently these appeals come before the court as this one has without a complete record from the lower court. So the phrase cannot mean that the court is required to measure the merits of the appeal. That’s often an impossibility. In my view what is required is an assessment between the frivolous and vexatious appeal thrown upon the court by a belligerent accused who will not accept his conviction or sentence versus the reasonable appeal made on an arguable case. That principle was for shadowed in the Koya decision and I refer in particular to page 8 of the decision where the learned President comments on the arguability of cases as opposed to those that are wholly unmeritorious.

In this case counsel has in the short time available to him identified several points that he says are arguable. Firstly counsel argues that the learned magistrate misconstrued the provisions of Section 378. Having heard from counsel for the State I have to say in a preliminary way that was not the appellants strongest ground. I give it little weight.

The second point is apparent contradictions that counsel says are raised in the record. Contradictions are always a matter of interpretation. I don’t have the record in front of me. I would at best record that some slight weight.

Next a counsel raises the issue of bias. Again I have to say that is a matter best left to the appeal court. It can be of no assistance to me either way.

Next is a failure to properly consider the defence case. That again is an arguable point but I am not in a position to fully assess it.

In terms of corroboration it is said by appellants counsel that there has been an error of law and again that’s a matter of interpretation best left to appeal. However, it might be arguable and I accept learned counsel’s submission from the bar in that regard.

The final point and perhaps the strongest is reflected in the final paragraphs of the decision on conviction where at page 20 the learned magistrate said “in my view this particular accused too had a lot of explaining to do. However, he opted to remain silent. Question asked here is was this the defence plan so is not to open up the Pandora's box.”

Now it may be that this paragraph of the learned magistrate’s decision is capable of rational explanation when considered in the light of the full trial record. However, the rights of accused to silence and the demands of courts to remain uninfluenced by that choice have long been enshrined in common law. That may be an arguable matter. It certainly appears to be so on the face of the information I have before me today.

I should say that counsel for the State, Mr. Solanki was able to convince me in his thoughtful submissions that each of those points were not strong but he did properly concede that they may be (and I emphasise the phrase “may be”) arguable as opposed to simply vexatious.

The next matter to consider is the likely time before the appeal hearing. This matter is complicated by the personal circumstances of counsel for the appellant accused. Respecting his privacy I can record in this judgment that he has a long scheduled serious operation that is about to be performed on the 5th of April. I have seen the pre-operative instructions given to him in that regard. The surgery is of such a nature that it will take him some weeks before he is in a position to resume work and in particular consider reading and focussing on such things as a trial record.

I asked counsel for their best estimates of when this matter might be capable of hearing. They were not far apart. In their view firstly the record will take approximately two weeks. Secondly checking the record of a six-day trial would take some time and I am prepared to allow 2 weeks for that. Lastly, partly complicated by the unavailability of counsel but also allowing time for this court to schedule the appeal one might say a further 4 weeks is required in all a total of some 2 months.

The question is whether 2 months is a significant portion of time or not.

Section 17(3)(c) requires consideration of the proportion of the original sentence which will have been served by the applicant when the appeal is heard. Quite logically the longer the amount of time that passes compared to the overall length of sentence is an important consideration for the court. This principle is reflected in the Koya decision and enshrined in statute.

I adopt again the words of the learned President in Koya when he describes the need for the court to assess whether there will be an injustice done if convicted accused remain in prison and substantially serve the sentence while awaiting appeal. In other words will the appeal be rendered nugatory or ineffective or substantially so by virtue of the fact that the prisoner has spent time in gaol waiting his hearing of the appeal.

Decision

Short sentences make for difficult decisions in these matters. The shorter the sentence the greater the risk of prejudice to a convicted appellant if his sentence is subsequently quashed or the conviction overturned. In this case by an extremely slim margin I am persuaded that the granting of bail to these accused is appropriate. I do so primarily on an assessment of the likely time before the appeal hearing and the proportion of the original sentence which will have been served by the time the appeal is heard. This is not to be taken as any indication whatsoever of the likely outcome of the appeal. Indeed I am advised from the bar today that the Crown intend cross-appealing the sentence as they consider it too lenient. It then requires me to conclude with an order that these two applicants be released on bail. I now wish to settle conditions in discussion with counsel before concluding my decision.

Conditions

1. Both applicants to enter into a personal bond in the sum of $5,000.00.
   
2. Both provide a surety in a like amount.
   
3. They are to appear before the High Court and surrender themselves to that Court for hearing for their appeal in terms set out in the prescribed Bail Form.
   
4. They are not to leave Fiji in the meantime. This being a condition provided for them in the prescribed Bail Form. I also want them to surrender their passports to the Registrar. They are not to undertake any overseas travel.
   
5. The accused are to remain under curfew at their homes at 36 Shalimar Street, Samabula and at Lot 2 Vishnu Deo Road, Nakasi. I am proposing a curfew at those addresses between the hours of 9.00pm and 6.00am each day.
   
6. I will also want a reporting provision – as far as the 1st accused is concerned Raiwaqa Police Station and the 2nd accused the Nakasi Police Post – Wednesdays between the hours of 6.00am to 6.00pm.
   
7. I am going to order that they do not engage in any activity directly or indirectly which would be inconsistent with them being out on bail pending appeal. I would consider such an inconsistency being any discussion with the media concerning their conviction, sentence or appeal.
   

Comment

And although Mr. Raza I can’t make it an order, I want it clearly understood that these applicants and their friends and relatives have been given the privilege of being reunited. They need to leave the issues of appeal to the floor of the appeal court.

Addendum

The court reserves the right to cancel or vary the bail bond at any time either of its motion or on the application of the Director of Public Prosecutions.

I further order the Controller of Prisons to produce the applicants before the Registrar of the Court, any Magistrate, Deputy Registrar or authorised Court personnel to enable them and their surety to execute the bail bond and upon being notified that such has been executed to release the applicants from custody to await the determination of their appeal by the High Court.

Gerard Winter
JUDGE

At Suva
2nd April, 2004