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Prasad v State [2010] FJHC 232; HAM049.2010 (5 July 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
MISCELLANEOUS JURISDICTION

CRIMINAL MISC. NO. HAM 49 OF 2010

BETWEEN:

JITEN PRASAD
APPLICANT

AND

STATE
RESPONDENT

Date of Hearing: 2 and 5 July 2010
Date of Ruling: 5 July 2010

Mr. H. A. Shah for the Applicant
Ms N. Tikoisuva (2nd) and then Mr. J. Singh (5th) for the Respondent

RULING

[1] By way of notice of motion and affidavit the applicant applies for bail pending appeal. The appeal is an appeal against the Resident Magistrate’s refusal of bail to the applicant on his first appearance in the Magistracy on the 24th June, last.

[2] The applicant appeared before the Magistrate charged with three separate charges of occasioning death by dangerous driving. There was one single act of driving on the 27th March 2010 on the Kings Road, Lovu which resulted in the death of 3 persons. The handwritten Court Record reveals that the rights to Counsel were explained to which the accused sought to obtain a private counsel; the charges were read and explained, and the accused indicated he understood; the accused was then remanded in custody until the 8th July 2010, 3 days hence. The accused was unrepresented and did not make an application for bail.

[3] Counsel for the Applicant before me says that an informal application ("I want to go home") was made but the record does not reflect this; nor am I prepared to accept this submission given that Counsel was not present at the hearing.

[4] To grant bail to an applicant who is appealing the refusal of bail is in itself an absurd proposition. It would in itself admit the applicant to the position he would have would the appeal succeed, and he would thereafter have no incentive to prosecute his appeal.

[5] Moreover, there is nothing to appeal. The Magistrate has made no determination on bail: no application having been made. By remanding the accused in custody until next appearance is not a refusal of bail per se, no arguments having been vented before the Magistrate as to the merits of a hypothetical application. Until such time as the Magistrate makes a considered ruling on the question of bail there is nothing to bring the matter before this Court.

[6] The obvious course of action would be for Counsel for the Applicant to appear before the Magistrate on the 8th July and make an application for bail. Whatever the outcome of that application, the matter could then be appealed to this Court by either party to the proceedings.

[7] Should the Magistrate refuse bail on the 8th July 2010, it would then be open to the accused to appeal, but not seek a review. It was held by the Court of Appeal in A.K. Singh v the State – Misc. App. 1/2004 that review is only available where, for one reason or another, the appeal procedure cannot be resorted to. This approach was followed by Goundar J. when dealing with an application from the Magistracy in the case of Josua Tuinasakea v State [2009] FJHC 251. In any event the Court must be satisfied that "there are special facts or circumstances that justify a review" (section 30(7) of the Bail Act, 2004).

[8] As the case now stands the applicant has shown nothing special in the facts or circumstances to warrant the intervention of this Court. The remand in custody of the accused was a perfectly proper order of the Magistrate, and the applicant has failed to show that decision was wrong in law. It is possible that the Magistrate was mindful of the seriousness of the case, but then we just do not know what the Magistrate was considering because no application had been made to him.

[9] Given that bail pending appeal of refusal of bail is absurd, and given that there is no ruling to appeal in any event, this application is refused.

Paul K. Madigan
Judge

At Lautoka
5 July 2010