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Singh v The State [2005] FJHC 494; HAM0057.2005 (12 August 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

CRIMINAL MISC. CASE NO.: HAM0057 OF 2005

BETWEEN:

PRAVIN CHANDRA PAL SINGH
Applicant

AND:

STATE
Respondent

Counsel: Mr. S. Shah – for Applicant
Mr. D. Prasad – for State

Date of Hearing & Decision: 12th August, 2005

EX TEMPORE DECISION

As this is an extemporary decision I reserve the right to recall and perfect the judgment as I see fit.

Background

The applicant applies for bail pending appeal. He was convicted of one count of attempted rape and sentenced on the 6^th of June of this year to 7 years imprisonment. In a recent decision by the Fiji Court of Appeal the President of the Court in Ratu Jope Seniloli and Others in the State Criminal Appeal No. AAU0041 of 2004S referred to Section 17 of the Bail Act and the factors to be considered for bail pending appeal.

These are:

1. The likelihood of success in the appeal.
   
2. The likely time before the appeal is heard.
   
3. The proportion of the original sentence which will have been served when the appeal is heard.
   
4. Any other relevant matters giving rise to exceptional circumstances.
   

That last factor is a common law principle. It is not excluded from consideration simply because section 17 of the Bail Act is silent on it.

As for the grounds of appeal this essentially involved an allegation by a step- daughter that her step-father rubbed his erect penis against her vagina. Step-father on police interview denied those charges. The complainant maintained her complaint at trial and the learned Magistrate preferred her version of that simple story and rejected the defence put up by her step-father. His defence was in effect a simple denial.

The judgment is brief it considers the necessary matters. Counsel before me today advances his case on the likelihood of strength and success of the appeal upon the basis that there was a breach of the constitutional rights to representation. He says and he is correct in this regard that no where in the record is it recorded that the accused was reminded of his rights to counsel. That however does not automatically mean that an accused can take the benefit of such a constitutional breach. The lack of reminder of rights to counsel has to be considered and coupled with the prejudicial effect on the trial if indeed it is factually found that such a right was denied.

The remaining grounds of the appeal seeking to challenge the brief judgment of the learned Magistrate are not such that I would characterize them even as above average. Therefore the constitutional grounds seem to remain the strongest point.

I cannot say at this stage objectively looking at the materials that the chances of success on appeal are outstanding. In my view the chances of success on appeal have to be outstanding for the test in section 17 of the Bail Act to be met.

In terms of the other factors in my view they don’t influence me significantly. The appeal is listed for hearing on the 26^th of August a matter of some several days away. The accused will have only served a small portion of the original sentence by the time the appeal is heard and a decision given and I find nothing outstanding in respect of any of the other exceptional circumstances advanced by counsel that would persuade me that bail should be granted for such a small period of time.

Therefore in conclusion I deny bail and the accused is to remain in custody pending his appeal which will be heard of the 26^th of August, 2005.

Gerard Winter
JUDGE

At Suva
15th August, 2005