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Brown v State [2007] FJHC 73; HAM92.2007 (19 November 2007)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

CRIMINAL MISCELLANEOUS CASE NO: HAM 92/2007

BETWEEN:

LUI FRANCIS BROWN
Applicant

AND:

THE STATE
Respondent

Counsel: Mr A.K. Singh for Applicant
Ms S. Puamau for the State

Date of Hearing & Ruling: Monday 19th November, 2007

RULING

[1] This is an application for bail pending appeal, pursuant to section 17(3) of the Bail Act 2002.

[2] On 23 October 2007, the applicant appeared in the Nasinu Magistrates’ Court on two counts of unnatural offence, against the same complainant. He pleaded guilty and was remanded in custody for sentencing on 6 November 2007. On that date, counsel now representing the applicant appeared for him and made an application to vacate the pleas of guilty, which the learned Magistrate refused. The sentencing was deferred to 20 November 2007, and the applicant was remanded in custody.

[3] On 7 November 2007, the applicant filed a petition to appeal against the order which refused to vacate the pleas of guilty. It is an interlocutory appeal. Although there is a right of appeal from the Magistrates’ Court to the High Court against interlocutory orders made in criminal proceedings, such appeals are not encouraged.

[4] There was a preliminary objection taken by the counsel for the State that the application for bail pending appeal is misconceived because the learned Magistrate had not recorded a conviction against the applicant and therefore section 17(3) of the Bail Act has no application.

[5] Section 17(3) states:

"When a court is considering the granting of bail to a person who has appealed against conviction or sentence the court must take into account..." (Emphasis added)

[6] Section 2(1) defines "conviction" as:

"(a) a finding of guilt;

(b) a finding that a person is not guilty by reason of insanity;

(c) a conviction of an offence for which an order is made placing the offender on probation or discharging him or her absolutely or conditionally following a finding that the facts of the charge were proved;"

[7] The terms of the above provision are broad. For the purposes of section 17, there is no requirement that the word ‘conviction’ has to be recorded to constitute a conviction. A finding of guilt will suffice.

[8] According to the record, the learned Magistrate recorded the pleas of guilty, considered the facts and mitigation, and remanded the applicant in custody for sentencing. In my view the learned Magistrate has made a finding of guilt on the basis of the charges, guilty pleas, admitted facts and mitigation. Therefore, there has been a conviction.

[9] I will consider this application on merits.

[10] The basis of this application is that he has arguable grounds of appeal. The proposed grounds of appeal are:

(a) That the Learned Magistrate erred in law when she failed to set aside the equivocal guilty plea of the Petitioner.

(b) That the Learned Magistrate erred in law when she allowed a Fijian interpreter to interpret in Fijian whilst the Petitioner is an Indian and thereby breached the Petitioner’s right under article 29(8) of the 1997 Fiji Constitution.

(c) That the Learned Magistrate erred in law when she failed to allow the Petitioner to follow the proceeding in a language that he understood. (Article 29(7) of the Fiji Constitution.)

(d) That the Learned magistrate erred in law when she convicted the Appellant for an offence that was committed in private by consent and is not an offence (Nand v the State [2005] HAA 085& 086/2005 Unreported Judgment of 26th August 2005)

(e) That the Learned erred in law and facts in that:

• She became very emotional;
• Unreasonable in further remanding the petitioner in custody for 14 days;
• Convicting the Petitioner without any medical report or medical evidence; by reason of which circumstances (the circumstances) there was a material irregularity in the course of the proceedings before the court such that a substantial miscarriage of justice occurred.
  

[11] According to the record, the charges were explained, and the applicant understood the charges. The record does not state in what language the charges were explained to him. He admitted the charges and the facts read out to him, and then mitigated on his behalf.

[12] According to counsel for the applicant the record is inaccurate and in due course he would be making an application to supplement the record. That maybe so, but at this stage, I am bound by the record.

[13] The presumption in favour of granting bail has been displaced by section 3(4)(b) of the Bail Act. Only in exceptional circumstances bail pending appeal will be granted (Silatolu v The State, Criminal Appeal No. AAU0024 of 2003). The exceptional circumstances must be considered together with the factors in subsection (3) of section 17.

[14] Section 17(3) of the Bail Act requires the Court to take into account the likelihood of success in the appeal, the likely time before the appeal is heard and the proportion of the sentence which will have been served by that time.

[15] The first is the likelihood of success. In determining the likelihood of success, the court will only grant bail in a case where the appeal has every chance of success (Sharda Nand v DPP, FCA Application 3 of 1979).

[16] The grounds of appeal are principally aimed to show that the pleas were equivocal because of lack of legal representation and failure to understand the nature of the charges which were explained in the Fijian language when the applicant is of Indian origin.

[17] Whether or not the learned Magistrate should have vacated the pleas of guilty was within her discretion. This Court will only interfere with that discretion on appeal if it could be demonstrated that the discretion was not exercised judicially.

[18] The grounds of appeal certainly raised arguable point, but that is not sufficient. This Court must consider whether the appeal has every chance of success. I am not satisfied that this appeal demonstrates such success.

[19] There is no question that the applicant will have served a very substantial portion of his sentence by the time the appeal is heard because he has not been sentenced yet.

[20] The court record has already been transcribed. It is a matter for the applicant to challenge the record by making proper application to supplement it. Otherwise the appeal could be heard by end of November, 2007.

[21] I have considered the issues raised by the applicant. Having considered the requirements of 17(3), I do not consider this is a proper case for the grant of bail pending appeal. There are no exceptional circumstances and the application for bail pending appeal must be refused.

[22] The application is refused.

Daniel Goundar
JUDGE

At Suva
Monday 19th November, 2007

Solicitors
A.K. Singh Law, Lawyers, Nausori for the Applicant
Office of the Director of Public Prosecutions, Suva for the State