In this case I am convinced firstly, that it will tame to prepare the record ford for Appeal. By the time the appeal is heard, particularly
when it comes to sittings of High Court at Labasa where Court sits at irregular intervals, the applicant will have served his short
sentence of 6 months after allowing for remission. Secondly, looking at the proposed grounds I consider that the appellant ought
to be given the opportunity to argue the appeal.
The principles which ought to be taken into consideration in granting bail are stated in a number of cases and I will refer to some
of those cases.
It is stated that there has :
"existence of special circumstances, i.e. where it appears, prima facie, that the appeal is likely to be successful or where
there is a risk that the sentence will be served by the time the appeal is heard". (Headnote to JOSEPH WATTON (1978) 68 Cr. App. R.293).
That clearly is the case here. If there is delay inaring record and the appealppeal is not heard in good time, one cannot hold the
appellant responsible for this in any way. Why should he have to serve his term in prison when the sentence may well be set aside
(ERNEST WHIPPY v THE STATE Misc. Case No. 13/88). Also in APISALOME GALEVU and ANOR v THE STATE (Misc. Case Nos: 12 & 13/90) the High Court warned that in future applications "... the Court may be constrained ... to hold that such delay is per se an exceptional circumstance sufficient to warrant the
release on bail of a prospective appellant".
I should not be utood as stating that in every short sentence of imprisonmenonment bail ought to be granted. Each case has to be considered
on its merits.
Some of the other cases which I have considered on the subject of bail pending appeal are: BOB SARUP and THE STATE (Misc. Case No. 16/90, Suva), DURGA PRASAD s/o Babu Ram Ashree and THE STATE (Misc. Action No. 4/88), WAISAKE VAKACIWA and THE STATE (Misc. Case No. 2/96) and APISAI VUNIYAYAWA TORA & Ors and REGINAM (Crim App. Nos. 3 & 4 of 1978 - FCA).
The principle which evolves from these decisionthat only in exceptional circumstances will the applicationation be granted. I conclude
with the following passage from the order of GOULD V.P. in APISAI TORA (supra) which is apt:
"It has been a rule of practice for many years that where an accused peras been tried, convicted of an offence and sentenced
to a to a term of imprisonment, only in exceptional circumstances will he be released on bail during the pendency of an appeal. This
is still the rule in Fiji. The mere fact that an appeal is brought can never of itself be such an exceptional circumstance and a
court to which an application for such bail is made is very seldom in a position to assess the appellant's chances of success in
his appeal. As a general rule, the merits of the appeal are not relevant to applications such as those now before the Court, though
there may be cases in which they are a factor to be taken into consideration."
For the above reasons and the State in effect not having any objection, I fhat there are exceptional cnal circumstances here and
consequently the application for bail is granted; and upon signing the Bail Recognizance in the sum of $100 with one surety of like
amount the applicant is ordered to be released forthwith from prison
to await the hearing and to appear in Court on the day of hearing.
It is also ed that the applicant deposit his Passport, if any, into Court.
ass=MsoBodyText2Text2 align=center style="margin-top: 1; margin-bottom: 1"> D. Pathik
Judge
