IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

Criminal Miscellaneous. Case No: HAM 037 of 2008

Between:

GILENDRA KUMAR
Applicant

And:

THE STATE
Respondent

Hearing: 9th April 2008
Ruling: 9th April 2008

Counsel: Mr. I. Khan for Applicant
Ms A. Tuiketei for State

RULING ON BAIL PENDING APPEAL

The Applicant was convicted of dangerous driving occasioning death contrary to section 97(2)(c) of the Land Transport Act 1998, and of driving a motor vehicle with expired registration contrary to Regulation 9(1) (5) and 122 of the Land (Vehicle Regulation and Construction) Regulations 2000. The charges alleged that on the 26th of April 2006 at Navua, he drove a motor vehicle in a manner dangerous to the public and caused the death of Solomone Sigakalele and 
Alisi Rokowailoa. The registration of the vehicle he had been driving at the time, had expired on the 15th of April 2006. He was sentenced to a fine of $5500.

According to the affidavit of his wife, Kamal Roshni, the Applicant had paid his fine by the 2nd of April 2008, but had $1500 remaining. On that day he came to the Navua Court to pay that balance. He paid the court clerk, who accepted the money and issued him with a receipt.

The Applicant then appeared before the presiding magistrate and told her that he had paid the balance of his fine. She ordered the return of the money and imprisoned him for 3 months.

The Applicant is 41 years old, and a first offender. He suffered injuries from the accident and is apparently reliant on a wheelchair. At this hearing he attended with crutches.

The petition of appeal was filed in the Magistrates’ Court yesterday, 8th April 2008. The grounds are:

1.	The learned trial magistrate erred in law and in fact in sentencing the Appellant to three (3) months imprisonment for non-payment of fine when the Appellant was able and willing to pay the fine in court.

2.	The learned trial magistrate erred in law and in fact in sending the Appellant to prison in breach of section 23(2) of the Constitution.

3.	The learned magistrate erred in failing to exercise her duty judicially.

Counsel for the Applicant said that bail should be granted because the circumstances were exceptional and because the 3 month term will have been served when the appeal is heard. State counsel objected to bail saying that the merits of the appeal are impossible to assess without the record and that there are no medical reports to support the Applicant’s claim that he is confined to a wheelchair and is seriously injured. She agrees that the term of imprisonment will have been served when the appeal is heard.

I agree with State counsel that I cannot assess the prospects of success of this appeal. It is correct, as Counsel for the Applicant says, that section 23(2) of the Constitution protects persons from the loss of personal liberty on the ground of non-payment of fines unless the court "considers that the person has willfully refused to pay despite having the means to do so." However, all that means is that before ordering a term of custody in default of non-payment of fine, the court must embark on a means test. In this case the Applicant would have argued ability to pay but that he had physical difficulties in coming to court to pay. Whether this was considered by the learned Magistrate and rejected as an explanation, is impossible to know without the court record. The possible breach of section 23(2) of the Constitution can only be decided on after full argument on receipt of the court record.

I also accept that although the Applicant was at the hearing of this application in crutches, there are no medical certificates on his precise condition before me. Nor do I know whether the presiding magistrate was made aware of any such condition. I do not accept that this is an exceptional case for that reason.

I do however consider that bail should be granted on one ground alone. That ground is that a refusal of bail will frustrate the Applicant’s appeal against sentence entirely. He was sentenced to 3 month imprisonment and will have served it by the time the appeal against sentence is heard. This would be unjust. Bail must be granted. However, the Applicant must be aware that if his appeal fails, he will have to serve the remainder of his term of imprisonment.

Bail is granted.

Nazhat Shameem
JUDGE

At Suva
9th April 2008