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Chand v State [2024] FJHC 237; HAA04.2024 (28 March 2024)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL APPEAL NO. 04/24

BETWEEN:
ROHITESH CHAND
APPELLANT

AND:
STATE
RESPONDENT

Appearances: Mr A Prasad for the Appellant
Ms S Naibe for the Respondent

Hearing: 26^th March 2024
Ruling: 28^th March 2024

RULING

1. The appellant in this case is facing six charges of Obtaining Property by Deception, as defined in section 317 of the Crimes Act 2009. The case is currently pending at the Ba Magistrate Court, and the appellant has entered a plea of not guilty to the allegations. The case is scheduled for trial from 24^th September 2024 to 8^th October 2024.
   
2. On 1^st March 2024, the appellant filed a motion and affidavit to appeal a bail review ruling made by the Learned Magistrate at Ba Magistrate Court on 26^th February 2024. The appeal application was filed in accordance with section 31 of the Bail Act 2002. Here is the relevant section:
   “31.-(1) All grants or refusals of bail and all orders, conditions or limitations made or imposed under this Act are appealable to the High Court upon the application either of the person granted or refused bail or of the Director of Public Prosecutions.
   

(2) The High Court may-

(a) in its original jurisdiction grant or refuse bail upon such terms as it considers just;

(b) on an appeal under subsection (1), confirm, reverse or vary the decision appealed from.

(3) This section is in addition to section 22(8) (as to the acceptance of sureties or security) and section 30 (as to review of bail decisions).”

3. The appellant had requested a variation of bail at Ba Magistrate Court in order to be with his wife and son in New Zealand and make arrangements for their birthdays. The application was denied and paragraph 10 of the Magistrate's ruling explains the reasoning behind his decision to reject the requested change. As per the ruling, the Magistrate stated as follows:
   
   “...Having considered all the materials placed before the court at this juncture, I am inclined to agree with the State that nothing has been put before the Court to show that accused/applicants travel to New Zealand to prepare for his son and wife’s birthday as special, exceptional or imperative in the circumstances...like all other cases cited and referred to by the prosecution and in the accused/applicant’s submissions and mentioned in this case authority itself, there were exceptional, essential and imperative reasons put forward like they were terminally ill themselves or visiting an elderly extremely sick dying relative. These imperatives I cannot find in the circumstances as presented by the accused/applicant...”
   
4. The appellant filed a notice of motion on 1^st March 2024, stating his intention to appeal the decision made by Magistrate Mr Josaia Waqaivolavola. The appellant sought the following orders:
   
   1. That the Applicant/Accused’s refusal for bail variation by Ba Magistrate Court be reviewed.
      
   2. That the Applicant/Accused be granted bail variation to allow him to travel to 19F, Fifth Avenue, Enderley, Hamilton, New Zealand from the 31^st March 2024 to 07^th April 2024.
      
   3. That passport is released to the applicant and stop departure be uplifted from 31^st March 2024 to 07^th April 2024.
      
   4. That the service and hearing of this Motion be abridged to one (1) day.
      
5. Having carefully considered the motion and affidavit of the appellant, along with the submissions filed in support of the application to appeal, it is unclear whether the appellant is seeking an appeal or a review. Additionally, nowhere are the appeal grounds being stated as the basis for the appeal.
   
6. During the hearing, State Counsel also brought up this issue, and I agree. The appellant's application and submissions do not provide any evidence of an error of principle or fact resulting from the exercise of the Magistrate's discretion. There is nothing to show that the learned Magistrate considered irrelevant matters or didn’t consider relevant matters or was just plainly wrong. I referenced earlier in paragraph 3 above a segment of the magistrate's decision in paragraph 10, which explained the basis for denying the application. The appellant didn’t provide his grounds of appeal regarding the decision in question. No errors of principle or fact have been identified in the ruling of the learned Magistrate.
   
7. In Isimeli Wakaniyasi v State [2010] FJHC 20;HAM120.2009 (29 January 2010), at paragraph 15, Justice Goundar had mentioned that in order for the High Court to interfere with the Magistrates’ Court exercise of discretion to refuse bail, the “...appellant must demonstrate that the learned Magistrate –
   1. made an error of principle, or
   2. failed to take into account all relevant matters, or
   100. took into account irrelevant matters, or
   4. was plainly wrong.

(see R v Payne [Burrett’s Case] [2003] 3 NZLR 638 (CA)...”

8. Further in Koroi v State [2019] FJCA 22; AAU0072 of 2018 (7 March 2019), the Court of Appeal at paragraph 11 reiterated that “On appeal an appellate court reviews a bail decision for error of principle or fact in the exercise of the discretion granting or refusing bail (R v Payne [Burrett’s Case] [2003] 3 NZLR 638 (CA).”
   
9. As earlier mentioned, the appellant has failed to identify any errors, whether in principle or fact, in relation to the learned Magistrate's decision to deny a variation in bail conditions. The Magistrate had denied the application, stating that attending to his wife and son's birthday celebrations were not deemed necessary or imperative. I find it difficult to disagree with the decision made by the Magistrate, as it falls within his discretion to do so in the public interest. In nearly all situations, individuals who have pending criminal cases and require international travel for medical reasons or work-related matters are usually permitted to do so by the courts. Those are exceptional or urgent circumstances and they don’t exist in the appellants case.
   
10. Further, if this application were to be considered as a bail review application under section 30 of the Bail Act 2002, it is my opinion that no new or exceptional circumstances have been presented to justify granting the requested orders. The matters previously presented to the Magistrate are now being adduced before this Court, and they are not particularly exceptional or extraordinary.
    
11. The appellant has failed to establish or show any grounds of appeal.
    
12. I find that the learned Magistrate has not made any error of principle or fact in exercising his discretion to refuse bail variation.
    
13. This application is devoid of merit and therefore dismissed.
    
14. Parties are at liberty to appeal.
    

.......................................
Samuela D Qica
Acting Puisne Judge

High Court – Lautoka
Tuesday, 28^th March 2024