Court of Appeal of Fiji

[31] It follows that the long standing requirement that bailing a&#16l &#1b> will only bn grain exceptioeptional circumstances is the reason why "the chances of the appeal suing" r in section 17 (3) has been interpreted by this Court to mean a very high likeliikelihood hood of success."

[8] In Ratu Jope Seniloli & O s. v The State AAU 41 of 2004 (ugust 2004)2004) the Court of Appeal said that the likelihood of success must be addressed first, and the two remaining matters in S.17(3) of the Bail Act y "thelyikely time befhe aphe appeal hearing" and "the "the proportion of the original sentence which will have been served by the applicant when the appeal is " arectly relevant ' only if the Court accepts there iere is a rs a real likelihood of success' otherwise, those latter matters 'are otiose' (See also Ranigal v State [2019] FJCA 81; AAU0093.2018 (31 May 2019).
[9] In Kumar v State [2013] FJCA 59; AAU16.2013 (17 June 2013) the Court of Appeal said ‘This Court has applied section 17 (3) on the basis that the three matters listed in the section are mandatory but not the only matters that the Court may take into account.’
[10] In Qurai v State [2012] FJCA 61; AAU36.2007 (1 October 2012) the Court of Appeal stated

‘It would appear that exceptional circumstances is a matter that is considered after the matters listed in section 17 (3) have been considered. On the one hand exceptional circumstances may be relied upon even when the applicant falls short of establishing a reason to grant bail under section 17 (3).

On the other hand exceptional circumstances is also relevant when considering each of the matters listed in section 17 (3).’

[11] In Balaggan the Court of Appeal further said that ‘The burden of satisfying the Court that the appeal has a very high likelihood of success rests with the Appellant’

[12] In Qurai it was stated that:

"... The fact that the material raised arguable points that warranted the Court of Appeal hearing full argument with the benefit of the trial record doesby itself lead to the conclusion that there is a very high high likelihood that the appeal will succeed...."

[14] Qurai quoted Sei andrs v tate&AAU 41 of 2004 (23 August 200t 2004) wh4) where Were Ward P had said

‘"The general restriction on granting &#ail pending appeal&#16l &#16established by case cases by Fiji _ _ _ is that it may only be granted where there are exceptional circumstances. That is still the position and I do not accept that, in considering whether surcumstances exist, the Cour Court cannot consider the applicant's character, personal circumstances and any other matters relevant to the determination. I also note that, in many of the cases where exceptional circumstances have been found to exist, they arose solely or principally from the applicant's personal circumstances such as extreme age and frailty or serious medical condition."

[15] Therefore, the legal position appears to be that the appellant has the burden of satisfying the appellate court firstly of the existence of matters set out under section 17(3) of the Bail Act and thereafter, in addition the existence of exceptional circumstances. However, an appellant can even rely only on ‘exceptional circumstances’ including extremely adverse personal circumstances when he cannot satisfy court of the presence of matters under section 17(3) of the Bail Act.

[16] Out of the three factors listed under section 17(3) of the Bail Act ‘likelihood of success’ would be considered first and if the appeal has a ‘very high likelihood of success’, then the other two matters in section 17(3) need to be considered, for otherwise they have no practical purpose or result.

[17] Therefore, when this court considers leave to appeal or leave to appeal out of time (i.e. enlargement of time) and bail pending appeal together it is only logical to consider leave to appeal or enlargement of time first, for if the appellant cannot reach the threshold for either of them, then he cannot obviously reach the much higher standard of ‘very high likelihood of success’ for bail pending appeal. If an appellant fails in that respect the court need not go onto consider the other two factors under section 17(3). However, the court would still see whether the appellant has shown other exceptional circumstances to warrant bail pending appeal independent of the requirement of ‘very high likelihood of success’.

[18] Grounds of appeal urged on behalf of the appellant are as follows.

Against conviction

1) THAT the Learned Trial Judge erred in law and in fact in not adequately directing/ misdirecting that the Prosecution evidence before the Court proved beyond reasonable doubts that there were serious doubts in the Prosecution case and as such the benefit of doubt ought to have been given to the Appellant.

2) THAT the Learned Trial Judge erred in law and in fact in not adequately directing the Assessors the significance of Prosecution witness conflicting evidence during the trial.

3) THAT the Learned Trial Judge erred in law and in fact in commenting on the evidence raising a new theory on the facts, uncanvassed during the course of the trial whereby the defence has had no opportunity of commenting upon it.

4) THAT the Learned Trial Judge erred in law and in fact in not directing himself and or the Assessors to refer any Summing Up the possible defence on evidence and as such by his failure there was a substantial miscarriage of justice.

5) THAT the Learned Trial Judge erred in law and in fact in not adequately/sufficiently/ referring/directing/putting the defence case to the Assessors.

6) THAT the trial Judge erred in law and in fact in not dealing adequately and/or properly and/or sufficiently on circumstantial evidence and not identifying what evidence was or could be classified as circumstantial evidence.

7) THAT the Learned Trial Judge erred in law and in fact in misdirecting and/or not properly and/or sufficiently himself and the assessors on the standard and burden of proof.

8) THAT the Learned Trial Judge erred in law and in fact in misdirecting and/or not properly and/or sufficiently himself and the assessors specifically on the prosecution evidence.

9) THAT the Appellant appeals against sentence being manifestly harsh and excessive and wrong in principal in all the circumstances of the case.

Against sentence

10) THAT the Learned Trial Judge erred in law and in fact in not taking into relevant consideration SENTENCING AND PENALTIES DECREE 2009 namely:

1. Section 3 of the Sentencing and Penalties Decree;
2. Section 4 of the Sentencing and Penalties Decree; and
3. Section 5 of the Sentencing and Penalties Decree.
   

11) THAT the Appellant reserve his right to argue and/or file further grounds of appeal upon receipt of the Court records in this matter.

[19] It is clear that the appellant’s grounds of appeal have been framed in very general terms and all of them allege shortcomings in the summing-up. The written submissions also render very little help in that regard as they lack elaboration and sufficient details in that the instances which constitute the alleged deficiencies raised in the grounds of appeal from the summing-up have not been pointed out. The appellate court cannot and should not be expected to go on a voyage of discovery to find out what purported errors on the part of the trial judge have given rise to an appellant’s grounds of appeal or the factual or legal foundations thereof. As stated in Silatolu v The State [2006] FJCA 13; AAU0024.2003S (10 March 2006) it would not be an unfair description to suggest that the counsel has used a 'scatter gun' approach in drafting the grounds of appeal and not substantiated them with sufficient details at least in the written submissions.

[20] Lord Parker CJer CJ in Practice Note (Crime: Applications for Leave to Appeal) [1970] 1 WLR 663 reminded counsel that &#8216s useless to appeal without grounds and that the grounds shds should be substantiated and particularized and not a mere formula’. Though what degree of particularity is required may not be capable of precise definition, they should be detailed enough to enable court to identify clearly the matters relied upon.

[21] It is the duty of the counsel in drafting and arguing grounds of appeal to act responsibly and not to make sweeping and unjustified attacks on the summing-up of the trial judge unless such attacks can be justified [vide Morson (1976) Cr App R 236]. Thus, counsel should not settle or sign grounds of appeal unless they are reasonable, have some real prospect of success and are such that he is prepared to argue before the court [vide paragraph 2.4 of the ‘A Guide to Proceedings in the Court of Appeal Criminal Division (‘the Guide’) published in the UK in 77 Cr App R 138].

[22] Du Parcq J in Fielding (1938) 26 Cr App R 211 said that

‘It is most unsatisfactory that grounds of appeal should be drawn with such vagueness ..... Ground 4 is in the following terms: “That the judge failed adequately to direct the jury as to the law and evidence to be considered by them”.’

‘It is not only placing an unnecessary burden on the court to ask it to search through the summing-up and the transcript of the evidence to find out what there may be to be complained of, but it is also unfair to the prosecution, who are entitled to know what case they have to meet.’

[23] In Singh [1973] Crim. LR 36 the Court of Appeal drew attention to the danger of extracting sentences from the summing-up out of context when, if they had been quoted in context, they would have been unobjectionable. Nico [1972] Crim. LR 420 similarly states that the terms of any misdirection relied upon must be set out in the grounds.

[24] While the grounds of appeal should be reasonable full, counsel should not go to the opposite extreme and overloading them [vide Pybus (1983) The Times, 23 February 1983]. In James; Selby [2016] EWCA Crim 1639; [2017] Crim.L.R.228 the court warned that if grounds of appeal are inexcusably prolix and not consolidated, an application for leave to appeal might be refused on the basis that no ground was identifiable.

[25] In Rauqe v State [2020] FJCA 43; AAU61.2016 (21 April 2020) the Court of Appeal remarked as fs [see also Kishore v State [2020] FJCA 70; AAU121.2017 (5 June 2020), b>Vunisea v Fiji Independent Commission Against Corruption - Ruling [2020] FJCA 169; AAU83.2018 (16 September 2020) and Vunisea v Fiji Independent Commission Against Corruption [2020] FJCA 169; AAU98.2018 (16 September 2020)] on framing of appeal grounds.