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Tamaibeka v State [1998] FJCA 2; AAU0015.97 (27 January 1998)

IN THE FIJI COURT OF APPEAL
CRIMINAL JURISDICTION

CRIMINAL APPEAL NO. AAU0015 OF 1997
(In the matter of an appeal from the High Court
at Suva in Criminal Case No. HAC0003/96 and HAC0004/96)

BETWEEN:

WILISONI DAKUNAIVEI TAMAIBEKA
AMINIASI KATONIVUALIKU
Applicants

AND:

STATE
Respondent

Mr M. Ri> for both AppliApplicants
Mr K. Wilkinson for the Respondent (D.P.P.)

DECISION
(Chambplication for leave to appeal and for bail pending appeal)

This is an applicaplication on behalf of both Applicants for leave to appeal against conviction and sentence. The Applicants also seek bail pending appeal.

Both Applicants were convicted following a 4-week trial in the High Court commencing on 10 November 1997 and concluding with a sentence imposed on 9 December 1997.

The first named Applicant was convicted of 10 counts of Fraudulent Conversion contrary to Section 279(1)(b) of the Penal Code, Cap. 17. The second named Applicant was convicted also of 10 counts, of Abuse of Office contrary to Section 111 of the Penal Code Cap. 17.

Each Applicant was sentenced to an effective term of 3 years imprisonment. The 1^st Applicant was sentenced as follows - On Counts 1 to 5 one year each to be served concurrently. Counts 6 to 10 - 2 years on each Count to be served concurrently with each other but consecutively to the total sentence on Counts 1 to 5.

The 2^nd Applicant's sentence was as follows - Counts 11 to 15 one year on each Count to be served concurrently. Counts 16 to 20, 2 years on each Count to be served concurrently with each other but consecutively to the total sentence passed on Counts 11 to 15.

re Leave to appeal against conviction and sentence

The Applicants filed a Notice of Appeal on 10 December 1997 but without seeking leave to appeal against conviction and sentence. They were therefore given an opportunity to remedy this defect as a precondition to dealing with the bail application. They have now filed the necessary application for leave.

The Applicants can appeal as of right against conviction on any ground involving a question of law only. But by virtue of Section 21(1)(b) of the Court of Appeal Act (as repealed and replaced by Section 2 of the Court of Appeal (Amendment) Decree 1990) leave of this Court is required to appeal against conviction on any ground of appeal involving a question of fact only or a question of mixed fact and law, unless there is a prior certificate from the trial judge. Leave of this Court is also required under Section 21(1)(c) for an appeal against sentence unless the sentence is one fixed by law.

Both Counsel appearing before me have agreed that a decision on both applications may be given on notice on the basis of written submissions. Both sides have tendered their written submissions which I have considered in the light of the grounds of appeal filed and other material before me from the trial Record.

Whilst most if not all the proposed grounds of appeal against conviction involve questions of fact or of mixed questions of fact and law, I have decided to grant leave in respect of all the grounds where leave is required. Similarly leave to appeal is granted against sentence also.

Bail application

I will now proceed to deal with the application for bail pending appeal in respect of both Applicants.

re The 1^st Applicant

This Applicant is 67 years of age. There is only 1 ground of appeal against his conviction. It is as follows -

"(a) Re - WILISONI DAKUNAIVEI TAMAIBEKA

(i) THE Learned Trial Judge in his Summing-Up to the Assessors noted that the Prosecution would find difficulty in proving the Fraudulent Intent against Wilisoni Dakunaivei Tamaibeka.

ACCORDINGLY, we submit that Fraudulent Intent is a question of Law and his Lordship should have either withdrawn the charges AND/OR directed an acquittal on all 10 counts AND/OR over-ruled the decision of the Assessors."

The above ground of appeal against conviction appears to be misconceived. Whilst what constitutes a fraudulent intent and whether it is a necessary ingredient or not are questions of law, whether or not fraudulent intent existed is a question of fact for the assessors to decide. Furthermore no arguments have been advanced why his sentence is likely to be reduced if conviction is upheld. The maximum sentence for Fraudulent conviction is 7 years imprisonment. Prima facie the 1^st Applicant's appeal is destined to fail unless the Court of Appeal finds that there was no factual basis to infer existence of a fraudulent intent.

No medical certificate was produced before me to indicate the seriousness or otherwise of the 1^st Applicant's throat condition. I however accept learned Counsel's submission as to the general nature of the 1^st Applicant's malady. I understand the Court below directed the Prison authorities to take into account the 1^st Applicant's need for soft food to manage his condition. Further there is no risk that the 1^st Applicant is likely to have served his sentence before his appeal is heard.

There are no exceptional circumstances to warrant granting of bail pending appeal.

re 2nd Applicant

This Applicant is 60 years of age and has a previous clean record. Although it is not my function to adjudicate on merits of the grounds of appeal nevertheless having perused them in the light of submissions made I can say that there is nothing in any of the grounds to propel me to the view that an injustice will be done if bail is not granted.

I agree with the Respondent's submission that the fact that leave to appeal is granted does not mean that bail must also be granted. Some basically different considerations apply.

Where a Court of competent jurisdiction after a proper trial has convicted and sentenced an accused to a term of prison within its powers, then bail is only granted in exceptional circumstances. The Courts have been consistently cautious in granting bail.

The Respondent has rightly cited Watton (1978) 68 Cr. App. R 293 in which it was said that bail can only be granted if an affirmative answer can be given to the question -

"Are there exceptional circumstances which would drive the Court to the conclusion that justice can only be done by the granting of bail?"

The test formulated here is of general application although each case must ultimately be considered on its own facts, peculiarities and circumstances.

One of the difficulties associated with granting of bail in the absence of any exceptional circumstances, is the trauma caused to the appellant being returned to prison if his appeal fails - see observations of Roskill J in KALIA (1974) 60 Cr. App. R 200 at 209.

As regards the sentence imposed on the 2^nd Applicant it must be borne in mind that although the maximum sentence was passed on each of the Counts 16 to 20, they were nevertheless made concurrent to each other.

There is every likelihood that this appeal can be heard in the May Session of 1998.

Neither of the 2 Applicants have satisfied me that this is a proper case in which bail should be granted.

Orders

(i) Leave to appeal against conviction and sentence granted to both Applicants.

(ii) Bail application of each Applicant refused.

Sir Moti Tikaram
President, Fiji Court of Appeal

27 January 1998.

Aau0015.1997