Home | Databases | WorldLII | Search | Feedback High Court of Fiji

Koroi v State [2002] FJHC 196; HAM0007D.2002S (20 March 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

CASE NO: HAM007 OF 2002S

Between:

ASERI KOROI
Appellant

And:

THE STATE
Respondent

Hearing: 19th March 2002
Ruling: 20th March 2002

Counsel: Mr E. Veretawatini for Appellant
Mr V. Vosarogo for Respondent

RULING ON BAIL PENDING APPEAL

The Applicant was convicted on his plea of guilty, on five counts of Incest, on the 26th of February 2002. He was sentenced to four years imprisonment on Count 1, and five years imprisonment on Count 2 to be served consecutively to each other. It appears that he was sentenced to 5 years imprisonment on the remaining counts, to be served concurrently with the sentences passed on Counts 1 and 2. The total to be served was 9 years imprisonment.

He now applies for bail pending appeal. His grounds of appeal are as follows:

“(a) THAT the Learned Trial Magistrate erred in law and in fact in not giving any or any time to the Appellant to organize his case before the plea of guilty, which was unreasonable and unfair thereby giving rise to a miscarriage of justice;

(b) THAT the Learned Trial Magistrate erred in law and in fact when he failed to consider a denial of the Appellant’s Constitutional right to a lawyer under Section 27(1)(c) of the 1997 Constitution of the Republic of Fiji;

(c) THAT the Learned Trial Magistrate exceeded his jurisdiction when he presided upon the Appellant’s case when the proper forum was the Nausori Magistrate’s Court, vide Nausori Criminal Case Number 71/02, hence there has been a substantial miscarriage of justice;

(d) THE Learned Trial Magistrate erred in law and in fact in sentencing the Appellant in the manner and form which he has done in respect of the subsequent Counts especially when there is a disparity of sentencing between Counts 1 and 2, hence there has been a miscarriage of justice;

(f) THAT the sentence passed by the Learned Trial Magistrate is harsh and excessive in any event;”

The State opposes this application on the ground that the Applicant will not have served a substantial portion of his sentence when his appeal is heard, and that there are no exceptional grounds justifying the grant of bail.

This application is supported by the affidavit of the Applicant’s wife Tokasa Koroi. She states that she believes that her husband’s appeal will be successful and that her husband is the sole breadwinner in the family. She states that her husband has suffered breaches of the Constitution.

The law on applications for bail pending appeal, is now well-settled. A person who has been convicted and sentenced should only be granted bail in the most exceptional circumstances. A long delay before the hearing of an appeal in respect of a short sentence, or a clearly meritorious appeal, might constitute exceptional circumstances. In Apisai Tora and Others -v- Reginam Criminal App. Nos. 3 and 4 of 1978, Gould V.P. said:

“As a general rule the merits of the appeal are not relevant to applications ... though there may be cases in which they are a factor to be taken into consideration.”

In this case, the argument that the appeal will be heard after a substantial delay, cannot be accepted. This was a case of a guilty plea, and the record is likely to be short and easily prepared. Further, the Magistrates’ Court has a duty to send the certified record to the High Court within a month of the filing of the Petition of Appeal. The Applicant’s 9 year sentence is unlikely to have been served for any significant length of time before the appeal is heard.

As to counsel’s submission that the plea of guilty was equivocal because of the absence of legal representations, this ground is impossible to ascertain without the court record. Although all Magistrates have a duty to explain the right to counsel to all accused persons before the plea is taken, failure to explain that right will only lead to the quashing of convictions if the accused were prejudiced by the absence of counsel. Only a reading of the record will clarify this issue.

In the absence of the record, I am left with the information that the Applicant pleaded guilty to five charges of Incest, which are clearly framed, and that he agreed to the facts outlined by the prosecutor. The charges state very clearly that the Applicant had carnal knowledge with his daughter knowing she was his daughter. As to the ground that the hearing was in excess of jurisdiction, the Chief Magistrate has powers of transfer under section 70 of the Criminal Procedure Code, and it is impossible to ascertain without the record, whether such a transfer was ordered.

In respect of sentence, a total of 9 years imprisonment does not, on the information provided to me, appear to be clearly wrong in principle, or manifestly excessive, so as to provide exceptional grounds for bail.

For these reasons, this application for bail pending appeal is refused.

Nazhat Shameem
JUDGE

At Suva
20th March 2002