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Kumar v The State [2002] FJHC 198; HAM0013D.2002s (25 April 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

CRIMINAL MISCELLANEOUS ACTION NO: HAM0013 OF 2002S

Between:

AJNESH KUMAR
Applicant

And:

STATE
Respondent

Hearing: 24th April 2002
Ruling: 25th April 2002

Counsel: Mr A.K. Singh for Applicant
Mr W. Kuruisaqila for Respondent

RULING

The Applicant applies for bail pending appeal to the Court of Appeal. The application is made by motion and the affidavit of the Applicant sworn on 22^nd April 2002. The grounds for the application are that the appeal will succeed, that the appeal will not be heard before a substantial term of imprisonment has been served and that he is unlikely to abscond while on bail.

The State opposes the application saying that there are no exceptional grounds shown by the Applicant, that the appeal will be heard this year and the Applicant has only served one month of his 18 month term and that the appeal is bound to fail.

This is a case of Causing Death by Dangerous Driving. The Applicant was convicted of the offence on 13^th October 2000, and sentenced to 18 months imprisonment. He was granted bail pending appeal after serving one month of this term. His appeal against conviction and sentence was heard on 12^th April 2002 and it was dismissed.

Bail pending appeal against conviction is only granted where there are exceptional circumstances. These circumstances might include substantial delay in the hearing of the appeal, a good chance that the appeal will succeed, or other matters which might arise in individual cases. Thus, an obviously meritorious appeal led Madraiwiwi J to grant bail in Nilesh Prakash -v- State Misc App. No. HAM0009 of 2000S, and the special circumstances of the offender led Tikaram P to grant bail in Amina Begum Koya -v- State Crim. App. No. AAU001.1996S.

In this case, I find no exceptional circumstances. The grounds of appeal, attached to the affidavit of the Applicant, merely re-ventilate the grounds argued in the High Court. Further they raise matters of mixed law and fact in respect of which there is no right of appeal under section 22(1) of the Court of Appeal Act. The Applicant has only served one month of his term, and will probably have served another 4 months before his appeal is heard if his appeal is heard in August. If his appeal is not listed this year, he may make another application for bail in the Court of Appeal. Finally, his assurances that he will not abscond while on bail, have little relevance to the question of the grant of bail pending appeal.

The question is, are there exceptional grounds to justify a grant of bail pending appeal? In this case I am not satisfied that the Applicant has shown exceptional grounds. The application for bail pending appeal is refused.

Nazhat Shameem
JUDGE

At Suva
25^th April 2002