THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL CASE NO. HAA 16 OF 2015

SAMUEL RAM

vs

STATE

Counsels : Ms. T Kean for the Appellant
Mr. M Vosawale for the State 
Hearing : 21 August 2015
Judgment : 26 August 2015

JUDGMENT

[1]	The Appellant, by his Petition of Appeal dated 21st July 2015, addressed to the Chief Registrar and received by this Court on 23rd July 2015, appealed against the Ruling issued on his bail application by the Magistrates Court at Suva. He was charged before the Magistrates Court on seven counts of Obtaining Financial Advantage by Deception contrary to Section 318 of the Crimes Decree 2009.

[2]	The Ruling of the Magistrates Court was delivered on 3rd July 2015. The Magistrates Court, whilst enlarging the Appellant on bail, has imposed several conditions. Among those conditions, there is one, directing him to "deposit a cash bail bond in the sum of Five Thousand Dollars ($5,000.00) with two acceptable sureties for a like sum."

[3]	It is stated by the Appellant in his Petition that the imposition of $5,000.00 cash bail is "manifestly excessive, harsh and wrong" and "totally unfair, unjust and unreasonable considering the means of the applicant." It is also stated in his Petition that earnings of the Appellant are $130.00 per week. In addition, the Appellant states that the "gravity of offence charged is directly not in par with the condition of the bail" and the Court had failed to take note of his previous good record of no breach of bail conditions or escaping from lawful custody.

[4]	At the hearing of this appeal, the Appellant submitted that Section 13(1)(h) of the Constitution states that every person who is arrested or detained has the right to be released on reasonable terms and conditions pending a charge or trial, unless the interest of justice otherwise require. In addition, the Appellant submitted that bail conditions:

"… must be reasonable and be proportionate with the gravity of the offence and with the individual risks identified as applicable. Bail must not be fixed disproportionately, in effect, denying the applicant an opportunity to take up the grant of bail."	

[5]	In addition, the Appellant invited attention of this Court to the reasoning contained in the judgments of Ali v State [2011] FJHC 653 and Saqasaqa v State [2006] FJHC 35, in support of his submission.

[6]	The DPP, in his reply submissions conceded that "the ruling by the learned Magistrate does not provide any evidence that enquiries were made to determine whether the accused has means to deposit a substantial cash bail bond" and further submitted that "this application has merits … ".

[7]	Thus, it is clear that the grievance of the Appellant of the impugned ruling is the decision of Court in imposition of $5,000.00 cash bail bond without inquiry into his means and the said condition is well beyond his capacity to fulfill. 

[8]	Before this Court ventures into satisfying itself as to the legal justifiability of the Appellant's grievance, it is appropriate to consider the relevant statutory provisions applicable to the consideration of bail.

[9]	The Magistrates Court at Suva had the discretion to enlarge the Appellant unconditionally or subject to written conditions imposed by it as per Section 22(1) of the Bail Act 2002. This discretion is subject to the provisions of Section 23(1) where it decreed that bail must be granted unconditionally unless the Court considers that one or more of the three conditions mentioned in Section 22 should be imposed for the purpose of:

(a)	ensuring the accused person's surrender into custody and appearance in Court;
(b)	protecting the welfare of the community; or
(c)	protecting the welfare of any specially affected person.	

[10]	Section 23(2) further restricts the discretion to impose conditions, by limiting it by stating that "if required by the circumstances of the accused person" and that too "only" to the following considerations;

(a)	to protect the welfare of the community;
(b)	to protect the welfare of any specially affected person; or
(c) 	in the interests of the accused person.	

[11]	It is revealed from the perusal of the ruling	of the Magistrates Court that it was mindful of these statutory provisions, when it proceeded to enlarge the Appellant on conditions. It also had considered the Appellant's willingness to provide suitable surety. The Magistrates Court, having already decided to enlarge him on bail, had proceeded to include a condition of a deposit of a specified amount of cash as security, as stipulated in Section 22(2)(g) of the Bail Act, among other conditions. The Appellant did not challenge the propriety of the imposition of a cash deposit as a condition in granting bail and this Court need not deal with this issue.

[12]	In imposing a specified amount as cash deposit as a condition in enlarging the Appellant on bail, the Magistrates Court also considered the statutory provisions of Sections of 22(3),(4) and (5) of the Act.

[13]	It is very relevant to reproduce the Section 22(3) of the Bail Act as it directly deals with the grievance of the Appellant. It reads thus:

"If security by an accused person or surety as referred to in this section is considered necessary as a condition of bail,… the Court, … must ascertain, under oath if necessary, the ability of the accused person or the surety to provide the security."

[14]	Upon plain reading of the section, it is clear to the reader that the intention of the Legislature is that it expected the Court; in determining the quantum of the specified sum, to ascertain the ability of the accused to fulfill it. The section does not encourage adoption of an interpretation by which it becomes the responsibility of the applicant of bail to place material before Court on his own, in relation to the factual position of his ability to provide security. The possible reason for this approach would be the decision whether to enlarge an applicant on bail unconditionally or conditionally is a discretion vested with the relevant Court. An applicant of bail cannot be expected to foresee the thinking of Court, which might consider it as appropriate or not to impose a condition of security, when it enlarges him on bail. 

[15]	However, the discretion to impose security as a condition of bail is subjected to provisions of Section 22(5) where it decreed that "requirement of security as referred to in this section must not be imposed if it amounts to unreasonable impediment to the granting of bail. "In effect, this provision empowers a Court not to include any condition as stipulated by Sections 22(2)(c), (d), (e), (f), (g) and (h), if imposition of security results in an "unreasonable impediment to the granting of bail". The only way for a Court to determine this issue is to inquire into the means of the applicant of bail.

[16]	A similar consideration, namely the capacity to pay a fine which has been imposed after a conviction, has been dealt with in the judgment of Bokadi v State [2002] FJHC 179, an authority cited in support of the appeal by the Respondent. It had cited with approval a principle laid down in Earle Underwood v Reg Criminal Appeal No. 69 of 1983 on following terms;

" …a fine should not normally be imposed without an investigation of the offender's means and the amount appropriate to the offence considered in the abstract should be reduced, where necessary, to an amount which the offender can realistically be expected to pay."	

[17]	If the capacity to pay becomes such an important criterion in imposition of a fine on an offender, who had already been convicted, it is my view that similar consideration should apply with equal force, if not more, to an applicant seeking bail pending trial; since the presumption of innocence is operational in favour of him. In delivering his ruling in Akhtar Ali and Parma Shivam v The State [2011] FJHC 653, Fernando J, recognized the necessity to conduct a "means test to find the eligibility of the surety to provide security" and had noted that, in that particular instant, it had "escaped the attention of Court…".

[18]	The applicable underlying principle, in imposing bail conditions, has already been laid down by Gates J, as he was then, in Saqasaqa v The State [2006] FJHC 35 in following terms;

"Bail conditions, imposing as they must restrictions on persons awaiting trial, must therefore be reasonable and commensurate with the gravity of the offence and with the individual risks identified as applicable. Bail must not be fixed excessively, in effect, denying the applicant an opportunity to take up the grant of bail. This has been a principle of great antiquity in the common law."	

[19]	In the instant appeal, the Magistrates Court had considered this aspect. But unfortunately, it had opted to adopt a different approach in dealing with it. The Court, in dealing with the issue of the Appellant's capacity to furnish cash bail, observed thus;

"The Applicant only indicated to the Court in his Bail Application Form that he works at Riyaz Travel Tours and he is in charge of the Lodgment Section. He did not reveal as to how much he earns in a week or in a fortnight."	

[20]	It is apparent from the above quotation, the Court expected the Appellant to furnish this vital information, whilst acting contrary to the duty imposed by the section on Court. This information is also needed in view of the provision of Section 22(4) of the Bail Act as it also imposes duty on Court "if security as referred to in this section is required, it must be set with reference to the capacity of the accused person or acceptable person to meet the obligation."

[21]	It might not be practical to inquire into the means of all applicants of bail considering the daily workload of a busy Magistrates Court. But when a Court considers imposition of a cash security above average quantum, I think holding a means test in whatever form, is a mandatory precondition.

[22]	In view of the above reasoning, it is my considered opinion that the Magistrate Court at Suva fell into error when it failed to conduct a "means test" to determine the Appellant's capacity to furnish the cash security of $5,000.00.

[23]	In appeal, the Appellant had demonstrated that the Magistrate Court at Suva had erred in the exercise of discretion vested in it by adopting an approach contrary to the statutory provisions contained in Section 22(3) of the Bail Act, in determining bail condition of $5,000.00 cash deposit.

[24]	 Therefore, the Appellant is entitled to succeed in his appeal.

[25]	The Appellant, upon inquiry by this Court indicated that a cash security of $500.00 is within his means. 

[26]	Accordingly, the imposition of a deposit of $5,000.00 cash bail bond by the ruling (dated 3rd July 2015) of the Magistrates Court at Suva, in Criminal Case No. 1181/2013, on the Appellant is varied by this Court as per provisions of Section 31(2)(b) of the Bail Act. Other conditions imposed by the Magistrates Court to remain unchanged.

[27]	The Magistrates Court of Suva is directed to execute a fresh bail bond incorporating the variation of the value of cash bail bond from $5,000.00 to $500.00 as per judgment of this Court.

Achala Wengappuli
JUDGE

Solicitor for the State : Office of the Director of Public Prosecution, Suva
Solicitor for the Accused : Legal Aid Commission