IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

CRIMINAL CASE NO. 12 OF 2000
(Nausori Mag. Ct. Cr. Case No. 438/95)

Between:

FERETI RATUDRUKU
Appellant

And

STATE
Respondent

Ms. Eroni Veretawatini for Applicant
Ms. Resina Senikuraciri for Respondent

DECISION

This is an application for bail pending the hearing and determination of the appeal herein.

The applicant was on 15 May 2000 after trial convicted of the offence of rape and sentenced to imprisonment for 5 years.

The Grounds of Appeal as stated in the Petition of Appeal are:

a)	That the learned trial Magistrate erred in law and in fact in not evaluating the evidence of the petitioner and his witnesses.

b)	That the sentence passed by the Learned trial Magistrate is not consistent with the charge and is harsh and excessive in any event.

Applicant’s counsel’s submission

Referring to his grounds of appeal the learned Counsel for the applicant stated that in his evidence the applicant denied the charge and his evidence was supported ‘in principle’ by his witness one Santok Singh. He said that there was conflict in the testimony of the complainant and her witness Merewalesi Serau which could not have amounted to corroboration.

Counsel submits that he has good grounds for succeeding in the appeal. He referred the Court to the authorities on principles involved in granting bail pending appeal. He also dealt with severity of sentence aspect of the appeal.

On ‘exceptional circumstances’ he said that it took five years to complete the case. He said that during all this period the applicant ‘had to overcome a lot of stress and pressure of the trial which was with him right from the day he was interviewed and subsequently charged’. Counsel said that in view of the current political turmoil in Fiji and ‘shortage of judges’ the possibility of the Appeal being heard in the near future is very unlikely. 

Respondent’s counsel’s submission

In her written submission the learned Counsel for the State set out the general principles governing the granting of bail pending appeal.

She dismisses the ground that the appellant would have served a substantial period of sentence before the appeal is heard.

She said that as a general rule, the merits of the appeal are not relevant to ‘bail pending appeal’ applications, although there may be some cases in which they are a factor to be taken into consideration.

Counsel submitted that no ‘exceptional circumstances’ have been shown to enable the Court to grant bail. She said that on one occasion the applicant had jumped bail.

She submits that this application be dismissed as without merit.

Consideration of the application

Upon a careful consideration of the submissions made by both counsel I find that there is no merit in the application.

In coming to this conclusion I have considered the principles involved on an application of this nature. Both counsel referred the Court to a number of well- known authorities on the subject of ‘bail pending appeal’.

The rule as stated by Gould V.P. in Apisai Vuniyayawa Tora & 2 others v. Reginam (Crim. App. Nos. 3 & 4 of 1978, FCA) is:

It has been a rule of practice for many years that where an accused person has been tried, convicted of an offence and sentenced 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.

This principle was reaffirmed in Amina Begum Koya v State (Crim. App. No. 11 of 1996S at p.42 FCA where on an application for bail pending appeal 
Sir Moti Tikaram said:

"Although discretion has been statutorily vested in this Court to grant bail in a fit case the general rule of practice has been that where an accused has been tried, convicted of an offence and sentenced to a term of imprisonment then only in exceptional circumstances will he or she be released on bail during the pendency of appeal. 

But the expression "exceptional circumstances" is not a term of art or precision, it is not a term that lends itself to comprehensive definition. Nevertheless the expression does provide some criteria of guide to ensure a degree of consistency of approach."

In the matter before me, in the light of the authorities, I find that the learned counsel has not established that there are exceptional circumstances for bail to be granted. ‘The mere fact that an appeal is brought can never be such an exceptional circumstance.’ (Tora, supra).

The assertion that there are merits and the likelihood of the applicant succeeding on appeal are not relevant. As Gould VP said (in Tora, supra) that ‘a court to which an application is made is very seldom in a position to assess the appellant’s chances of success in his appeal’.

This case is like any other case where an accused person has been tried, convicted and sentenced. The applicant has not discharged the burden of establishing exceptional circumstances. The applicant’s appeal will have to be heard in the normal way when the Court is in a position to set a date for hearing. The argument about long delay in hearing and shortage of judges are irrelevant grounds at this 
stage. The criminal courts have been functioning normally despite the political turmoil in the country. As soon as the Record of Appeal is ready this Court will consider giving the earliest possible date of hearing of the appeal herein. Some delay is inevitable in any system. Abnormal delay will no doubt be considered in granting bail at the relevant time should a situation arise.

For these reasons, applying the principles, I find that neither exceptional circumstances nor other sufficient grounds have been established to enable me to grant the application. 

The application for bail pending appeal is therefore dismissed.

D. Pathik
Judge

At Suva
21 July 2000