IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal Nos: HAA0020 & 021 of 2005S

Between:

JOSUA RAITAMATA
Appellant

And:

THE STATE
Respondent

Hearing: 3rd June 2005
Ruling: 7th June 2005

Counsel: Appellant in Person
Mr. D. Prasad for State

Ruling for Bail Pending Appeal

The Appellant has two pending appeals in the High Court. One is in respect of a conviction for robbery with violence on the 27th of August 2004 for which he received a term of imprisonment of four years by the Nausori Magistrates’ Court. The other is in respect of a conviction for shop breaking entering and larceny, also on the 27th of August 2004, for which he was sentenced to 2½ years imprisonment. The two sentences are being served consecutive to each other, so in effect he is serving a sentence of 6½ years imprisonment.

He appeals against this total sentence and against conviction on several grounds. He was granted leave to appeal out of time on the 20th of December 2004. The appeals are likely to be heard by the end of June 2005.

He applies for bail on the grounds that he has a 6 year old daughter, that he is the sole breadwinner in the family, that his appeal is bound to succeed because the learned Magistrate failed to direct herself correctly on the identification evidence, and that he has already served almost one year in custody. He made written submissions in support of his application.

The State opposes bail, and relies on the affidavit of Acting Inspector Coqesau, of the Nausori Police Station. He states that the Appellant was identified by a number of witnesses in the case of shop breaking, that he was arrested by the police and found in possession of two screwdrivers, that the appeal is bound to fail because the learned Magistrate properly considered all the evidence, that he has previous convictions of escaping from lawful custody and that he is unlikely to appear in court for his appeal.

The Appellant has no right to bail. He is convicted on two separate court files and the presumption in favour of bail is rebutted where a person is convicted and sentenced. The principles applicable to a bail pending appeal application are whether the appeal has any merits, whether a substantial proportion of the term of imprisonment will have been served by the time the appeal is heard, and whether the Applicant has shown any exceptional grounds.

I do not consider that the Applicant has shown that his appeals are bound to succeed. The learned Magistrate directed herself on the drawing of inferences in a case of circumstantial evidence, and on the value and weight of unsworn evidence. She rejected the Applicant’s explanation for the possession of the stolen items on arrest. Similarly, in the case of robbery with violence, the learned Magistrate appears to have directed herself carefully on the identification evidence. Certainly, in the case of PW3, there was also an identification parade. This would generally strengthen identification evidence.

Of course, the Applicant may yet succeed in his appeal. However, he has not shown me any ground, which is bound to succeed. Further, his sentences do not appear to be obviously wrong in principle.

Finally, when the appeal is heard, he will only have served less than one year of his 6½ year term of imprisonment. This is not excessive, and much of the delay was caused by the late filing of his appeal.

The Applicant has not shown any grounds, which might justify the grant of bail pending appeal. This application is refused. This appeal will be heard on the 24th of June 2005.

Nazhat Shameem
JUDGE

At Suva
7th June 2005