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Chand v The State [2024] FJCA 152; AAU064.2022 (1 August 2024)

IN THE COURT OF APPEAL, FIJI
Appellate Jurisdiction

CRIMINAL APPEAL NO. AAU 064 OF 2022

BETWEEN:
PRABIND CHAND
Appellant

AND:
THE STATE
Respondent

Coram: Mataitoga, RJA

Counsel: Mr. Kumar Y/Ms. Khan M for Appellant
Mr. Burney LJ for the Respondent

Date of Hearing: 11 July 2024
Date of Ruling: 1 August 2024

RULING

1. This is a Bail Pending Appeal application by Prabind CHAND [applicant]. The applicant had been charged and convicted in the High Court at Suva with common assault (one count), sexual assault (two counts) and rape (one count). The appellant, aged 49, was the uncle of the complainant, aged 17 at the time of the offending. The charges were as follows.

COUNT 1

Statement of Offence (a)

COMMON ASSAULT: Contrary to Section 274 (1) of the Crimes Act.

Particulars of Offence (b)

PARBIND CHAND, on the 7^th day of April 2017, at Nadi, in the Western Division, unlawfully assaulted PPK by slapping her.

COUNT 2

Statement of Offence (a)

SEXUAL ASSAULT: Contrary to Section 210 (1) (a) of the Crimes Act.

Particulars of Offence (b)

PARBIND CHAND, on the 7^th day of April 2017, at Nadi, in the Western Division, unlawfully and indecently assaulted PPK by kissing her on her lips and sucking her breast.

COUNT 3

Statement of Offence (a)

SEXUAL ASSAULT: Contrary to Section 210 (1) (a) of the Crimes Act.

Particulars of Offence (b)

PARBIND CHAND, on the 8^th day of April 2017, at Nadi, in the Western Division, unlawfully and indecently assaulted PPK by kissing her and sucking her breast.

COUNT 4

Statement of Offence (a)

RAPE: Contrary to Section 207 (1) & (2) (b) of the Crimes Act.

Particulars of Offence (b)

PARBIND CHAND, on the 8^th day of April 2017, at Nadi, in the Western Division, penetrated the vagina of PPK, with his fingers without her consent.

2. After trial before a judge alone, the trial judge had convicted the appellant on all counts and sentenced him on 15 July 2022 to imprisonments of 06 months (common assault), 05 years each (sexual assault) and 15 years (rape) respectively (all sentences to be served concurrently) with a non-parole period of 12 years. After deducting the period of remand, the final sentences were 14 years and 09 months with a non-parole period of 11 years and 09 months.
3. The applicant appeal against conviction and sentence is timely. For his application for Leave to Appeal against conviction, he filed 9 grounds and 1 ground against sentence. In his leave application hearing the applicant was given leave to appeal for grounds 4, 8 and 9. These are pending for hearing in the full Court of Appeal.
4. On 19 February 2024, the applicant filed a Notice of Motion for Bail Pending Appeal and an affidavit of the applicant in support of his application for bail pending appeal. This was further supported with the applicant submission bail pending appeal dated 25 April 2024.

5. The respondent submitted its submission in response on 14 May 2024

6. At the hearing on 17 June 2024, the court asked counsel for the applicant to file submission highlighting “exceptional circumstances’ and referred him to Ratu Seniloli & Ors v State ^[1].

Applicable Legal Principle

7. The Court of Appeal have set out in 2 decisions Tiritiri v State^[2] and Balagaan v State^[3] the governing principle for determining an application for bail pending appeal by an appellant and section 17 (3) of the Bail Act. Under the Bail Act there is no presumption in favour of bail for a convicted person appealing against conviction and/or sentence, it is necessary to consider the factors that are relevant to the exercise of the discretion. In the first instance these are set out in section 17 (3) of the Bail Act which 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:

(a) the likelihood of success in the appeal;

(b) the likely time before the appeal hearing;

(c) the proportion of the original sentence which will have been served by the appellant when the appeal is heard.”

8. Although section 17 (3) imposes an obligation on the Court to take into account the three factors listed, the section does not preclude a court from taking into account any other matter which it considers to be relevant to the application. It has been well established by cases decided in Fiji that bail pending appeal should only be granted where there are exceptional circumstances.
9. In Tora and Others –v- R^[4] the Court of Appeal emphasised the overriding importance of the exceptional circumstances requirement:

"It has been a rule of practice for many years that where an accused person has been tried and convicted of an offence and sentenced to a term of imprisonment, only in exceptional circumstances will he be released on bail during the pending of an appeal."

10. The requirement that an applicant establish exceptional circumstances is significant in two ways. First, exceptional circumstances may be viewed as a matter to be considered in addition to the three factors listed in section 17 (3) of the Bail Act. Thus, even if an applicant does not bring his application within section 17 (3), there may be exceptional circumstances which may be sufficient to justify a grant of bail pending appeal. Secondly, exceptional circumstances should be viewed as a factor for the court to consider when determining the chances of success.
    
11. It is for the applicant to satisfy a high burden, namely, that there is very high likelihood of success for his appeal to the full court. The fact that some of grounds of appeal has been granted leave to be heard by the full court is insufficient to claim that the appeal has a high prospect of success
    

12. In Qurai v State^[5] the Court stated that:

‘the fact that the material raised arguable points that warrant the court of appeal hearing full argument with benefit of the trial record does not by itself lead to the conclusion that there is a very high likelihood that the appeal will succeed....:”

Assessment of the Grounds

13. In an earlier ruling of the court that heard the application by the applicant for leave to appeal dated 22 December 2023, Justice Prematilaka RJA, refused to grant leave to 7 out of the 10 grounds of appeal submitted by the appellant; he granted leave to 3 grounds alleging that there was inadequate reasoning given by the trial judge was allowed leave to go to the full court^[6].
    

Impact of No Renewed Leave Application

14. The applicant has not renewed his appeal to the full court yet. This is important because the bail being applied for is supposed to be pending an appeal. With no renewed application being made to the Court of Appeal, in law there is no pending appeal and the bail applied for cannot be allowed if there is no appeal pending before the Court of Appeal.
    
15. The applicant’s affidavit filed on 24 February 2024 in support of the Bail Pending Appeal application did not address the requirements of section 7(3) of the Bail Act directly, which it will be noted are mandatory factors that the court must consider. It is an understandable response because on the facts before the court and in the assessment of Prematilaka RJA referred to in the ruling for leave to appeal hearing, the 3 mandatory factors of section 17(3) Bail Act, could not have been satisfied.
    
16. At the hearing of this application, at the urging of the Court, counsel for the applicant was asked to address if there are exceptional circumstances should consider before it decided on the application. Counsel submitted two factors:
    
    • (i) That the applicant’s medical condition needs to be considered and a Medical Report from a Dr Abdul Muizz of Nadi Hospital was provided.
    • (ii) He needs to be released to look after his wife, mother and sister. These relative have no one to support them.
      
17. It is to be noted that none of the above were made on oath; it came by way of submission from the applicant’s counsel; bar table evidence. There were no detail submission why these factors were exceptional to warrant the court granting the bail on the basis of some form of miscarriage of justice has been perpetrated.
    
18. The submission by counsel for the applicant lacks persuasion in convincing the court that there was high likelihood of success in their appeal grounds: Refer to Qurai (supra).
    
19. The applicant’s application for bail pending appeal falls because he has not satisfied the court that his grounds of appeal has a very high likelihood of success. His application must be refused.
    

ORDER

1. The application for bail pending appeal is refused.
   

Isikeli Mataitoga
RESIDENT JUSTICE OF APPEAL

^[1] [2004] FJCA 46 (AAU No: 0041 of 2004)
^[2] [2015] FJCA 95
^[3] [2012] FJCA 100
^[4] (1978) 24 FLR 28
^[5] [2012] FJCA 61 (AAU No: 036 of 2007)
^[6] Prabind Chand v State [2023] FJCA 286 (Crim App No: AAU 064 of 2022)