IN THE HIGH COURT OF FIJI
AT LAUTOKA
MISCELLANEOUS JURISDICTION

CRIMINAL MISC. CASE NO. HBM0037 OF 2005L

KAMAL PRATAP
s/o Bhan Pratap

v.

THE STATE

Mr. H.A. Shah for the Applicant
Ms. L. Chandra for the State

Date of Hearing: 12 October 2005
Date of Ruling: 12 October 2005

RULING ON BAIL PENDING APPEAL

This matter comes before the court by way of Notice of Motion filed on the 3rd October 2005 wherein the applicant seeks bail pending the hearing of his appeal.

In support of the Notice of Motion is an affidavit sworn by the wife of the applicant, Shireen Lata. Annexed to that affidavit is a copy of the judgment of the Learned Magistrate on the 23rd September 2005 together with a copy of the petition appeal filed on the 30 September 2004.

The Notice of Motion is brought as a result of the Learned Magistrate in Ba finding the applicant guilty on one count of abduction of a girl under the age of 18 years with intent to have carnal knowledge and a further count of defilement of a girl between the age of 13 and 16 years.

The applicant was ultimately sentenced to 12 months imprisonment with respect to the first count and 18 months with respect to the second count. Both sentences were to be concurrent.

Section 3 of the Bail Act provides:

“That the presumption in favour of the granting bail is displaced where the applicant has been convicted and has appealed against conviction.

The relevant considerations for the Court to take into account on the application have been considered by the Fiji Court of Appeal in Ratu Jope Seniloli & Others v The State – Cr. App. No. AAU0041 of 2004S. In that ruling, the President of the Court of Appeal considered several earlier decisions in the Fiji Court of Appeal both prior to and after the introduction of the Bail Act 2002.

The President highlights the matters required to be taken into account which include the likelihood of success in the appeal, the likely time before the appeal hearing and the proportion of the original sentence to have been served by the applicant when the appeal is heard.

The President also makes the point that it is not sufficient for the appeal to raise arguable points and that it is not for a single judge on an application for bail pending appeal to look to the actual merits of the appeal and confirms that whilst that is a requirement now under section 17 of the Bail Act that the Court must take into account, it is also a consideration at common law and one can rely upon the authorities that predate the Bail Act 2002.

The two remaining matters in section 17 that is the likely time before the appeal hearing in the proportion of the sentence which may be served only become relevant if the Court accepts that there is a real likelihood of success in the appeal and even then it is necessary, as the President pointed out, to consider if there are exceptional circumstances that warrant the granting of bail.

The matter now before the Court has an appalling history. It commenced before the Ba Magistrates Court on the 18th September 2001 and then has approximately 30 adjournments until such time as the matter ultimately came on for hearing on the 10th August 2005 when the applicant appeared and his lawyer didn’t. I am told by way of submission that his lawyer was engaged in the trial in Suva High Court but that his lawyer had indicated to the accused that he would be present for the hearing. It is also submitted that the accused had received the disclosures and had given them to his lawyer.

The Learned Magistrate in Ba was quite justified in wanting the matter to proceed to the hearing in view of the atrocious history but in doing so, unfortunately the accused was forced to proceed with the trial in the absence of his lawyer or I should say unexpected absence of his lawyer and without copies of the disclosures.

I accept the submission made on behalf of the State that the provisions under section 28 (1) (d) of the Constitution do not give an absolute right or mandatory requirement that the accused have a lawyer. As has been pointed out by the authorities the relevant test and the purpose of the provision is to ensure that each and every accused gets a fair trial. 

Whilst being cautious not to deal with the merits of the appeal any further than is necessary to determine that the appeal has a real likelihood of success, I am of the opinion that to force the accused on in the circumstances that appear from the draft court record and the submissions made on behalf of the applicant, unfortunately creates the risk that it was in fact not a fair trial. A risk that I consider to give the appeal a reasonable likelihood of success. 

Having formed that opinion it is then necessary to consider when the appeal might be dealt with I am unable to indicate precise dates so far as to say the matter will be listed for call-over evidence on the 16th November 2004. 

The third essential element is to look to the proportion of the sentence that might be served. The effective sentence is 18 months. I think it might be a reasonable conclusion that up to 6 months, that is up to one-third of that time be served prior to the appeal being disposed of.

Earlier in the course of hearing the motion, I expressed the view that the most prudent course for all concerned, in particular the State, would be for the appeal to be dealt with as quickly as possible and if appropriate, any retrial to take place without further delay. 

It is for the prosecutors to take action to ensure that Magistrates are not led into granting unnecessary adjournments and to ensure that matters are dealt with in a timely manner in accordance with the Constitutional requirements.

In all the circumstances and for the reasons that I have stated, I am of the opinion that the motion should be granted and that applicant should be granted bail pending appeal.

I grant bail with the following conditions:

1.	Self and one surety in the sum of Five Hundred Dollars ($500.00)

2.	You are to surrender any travel documents.

3.	You are not to interfere with prosecution witnesses; and

4.	 You are to report to the Tavua Police Station each Saturday between 6.00am and 6.00pm.

JOHN CONNORS
JUDGE

At Lautoka
12 October 2005