DECISION ON BAIL NG APPEAL
This is the second application made by the Defendant/Appellan Lingam, for bail pending appeal. He was convicted after a five day trial,
on the 14th of J of June 2001 on four counts of Obtaining Money by Forged Document contrary to section 345(a) of the Penal Code. He was sentenced to two years imprisonment on each count, to be served concurrently.
p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> Counsel for the Defendant/Appellant made an appion for bail on the 14th of June, but did not file an affidavit setting out the grounds
fors for the application. I refused that application on the ground that there were no exceptional circumstances.
He now makes this application by Motion and Affidavit. The Defendant’s affidavit states that he has a number of pending cases, both
civd criminal, which he will nill not be able to prepare in custody, that the appeal has a good prospect of success, that his family
and his business will suffer if bail is refused, and that the delay in the hearing of the appeal will lead to a substantial term
being served before the Court of Appeal considers his appeal.
p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> The State opposes the appeal on the ground that these circumstances are experienced by other prisoners and are not exceptional, that
the appeal can be heard in either August or September which is not unconscionably long a wait, and that the application fails to
show any special circumstances.
The principles of bail pending appeal are well settled. U the person who applies for bail pending trial, a person who has been convicted
and sentencntenced should only be granted bail in the most exceptional circumstances. Those circumstances might be a probable long
delay before the appeal is heard in respect of a short sentence, or the special circumstances of the offender. In Apisai Tora & Others -v- Reginam (Crim. App. Nos. 3 and 4 of 1978) Gould V.P. said:
“The mere fact that an appeal is brought can never of itself be such 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 before the Court, though there may be cases in which they
are a factor to be taken into consideration.”
In Mark Lawrence Mutch -v- The State Crim. App. No. AAU0060 of 1999, Reddy P refused the application for bail pending appeal on the ground that although the Applicant’s
counsel had raised arguable grounds of appeal he was not satisfied that the appeal had “every chance of success.” Furthermore he
did not consider a delay in the hearing of the appeal of over a year, in a seven year sentence, to be sufficient ground to grant
bail.
In Amina Begum Koya -v- The State Crim. No. AAU0011/96S, Tikaram P said at p.5:
“ If an accused is likely to spend the whole or a substantial part of his or her term in prison before his or her appeal is heard
then this situation may constitute a good ground for granting bail. If bail is not granted in such a case and the conviction is subsequently
quashed or sentence substantially reduced then an injustice will have been done. At the same time it must be borne in mind that some
delay in hearing of appeals is inevitable. Generally delay in hearing should not be looked at in isolation .... When dealing with
delay the prospects of the appeal being successful and the length of the sentence are factors that are usually taken into account.”
In that case, bail was granted on the grounds that appeal agasentence was not without some prospect of success, there was likely to
be substantial delaydelay in the hearing of the appeal, and on the evidence of the personal circumstances of the offender who was
a 66 year old woman of good character and with a history of hypertension.
Applying these principles to this case, I am not satisfied the Appellant has shown, on the basis of his affidavit, that his appeal
has “every chance of e of success.” Nor am I satisfied that his business and family problems, caused by his incarceration are special
circumstances justifying the grant of bail.
As to the delay in the hearing of the appeal, which is likely now to be listed in the Nor sessions of the Fiji Court of Appeal, a
delay of five mone months in relation to a two year sentence is not unconscionable, nor unreasonable.
In all the circumstances, and for the reasons given, this applic for bail pending appeal is refused.
Nazhat Shameem
JUDGE
ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> At Suva
28th June 2001
Ham0012d.01s
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