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Raju v State [2012] FJHC 900; Miscellaneous Case 03.2012 (28 February 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Miscellaneous Case No. 03/2012

BETWEEN:

RAVINESH RAJU
Applicant

AND:

STATE
Respondent

BEFORE: Mr. Justice P. K. Madigan

COUNSEL: Mr. A. Sen for Applicant
Ms. M. Fong for the State

Date of Hearing: 28th February 2012 (by "skype")
Date of Judgment: 28th February 2012

RULING

1. The applicant applies for bail pending appeal having been convicted and sentenced in the Magistrates Court at Labasa of one offence of obstructing a Police Officer in the due execution of his duty, and one offence of resisting arrest both offences contrary to Section 277(b) of the Crimes Decree 2009.
   
2. The learned Magistrate sentenced the applicant to terms of imprisonment of four months and six months respectively, both terms to be served concurrently making a total term of imprisonment being six months. She ordered that three months of this sentence be served intramurally, with three months being suspended for 18 months.
   
3. Mr. Sen, in an earnest verbal submission before me claims that there is every likelihood that the applicant's appeal against conviction and sentence will succeed and that in any event by the time the appeal is heard the applicant would have served half of his term of imprisonment.
   
4. It is not for the Court on this application to examine too closely the merits of the appeal, given that it may be called upon to hear the appeal proper itself; however it can be said that the grounds presently filed for both conviction and sentence are not in themselves convincing enough to pass what Ms Fong, for the state submits, the very high threshold needed for bail pending appeal to succeed.
   
5. There is of course no presumption in favour of bail when the applicant has been convicted and he is appealing the conviction (Section 3(4)(b) of the Bail Act 2002).
   
6. The Appellate Courts have gone even further than this by saying; for example in Ratu Jope Seniloli AAU 0041 of 2004;
   

"The general restrictions on granting bail pending appeal as established by cases in Fiji and many other common law jurisdictions is that it may be granted where there are exceptional circumstances" (per Ward, J.A.).

and "exceptional circumstances" was defined in R v Watton [1978] Cr. App.R.293 as those circumstances which will drive the Court to the conclusion that justice can only be done by granting bail.

7. Section 17(3) of the Bail Act sets out the considerations a Court should take into account when determining bail pending appeal and these are:
   
   • (i) The likelihood of success in the appeal
     
   • (ii) The likely time before the appeal hearing
     
   • (iii) The proportion of the original sentence which will be served by the applicant when the appeal is heard.
     
8. In addressing these consideration, this Court finds that:
   
   • (i) The grounds of appeal are arguable but not compelling. As Ward, J.A. said again in Ratu Jope Seniloli
     

"The courts in Fiji have long required a very high likelihood of success. It is not sufficient that the appeal raises arguable points and it is not for a single Judge on the application for bail pending appeal to delve into the actual merits of the appeal".

(ii) The hearing of the appeal can be listed on 20th March 2012, a date three weeks from today. Such an expedited hearing would presumably satisfy the second limb of Section 17(3) yet Mr. Sen submits that by that time at least half of the applicant's prison term would have been served. Such a submission ignores the fact that even though the sentence was partially suspended, leaving 3 months incarceration, a suspended sentence is nevertheless a term of imprisonment. Section 26(5) of the Sentencing and Penalties Decree 2009 states:

"a partly suspended sentence of imprisonment shall be taken for all purposes to be a sentence of imprisonment".

So by 20 March 2012, the applicant would have served but 6 weeks of a twenty five weeks' sentence.

9. Despite the fact that the grounds of appeal are arguable and may succeed, there is not every likelihood that they will succeed. The applicant is fortunate in that his appeal can be heard three weeks hence.
   
10. In the premises the application for bail pending appeal is refused.
    

Paul K. Madigan
JUDGE

At Labasa
28th February 2012