Sanjana Devi and Abdul Samat v State HAM008D.07 - Law Fiji

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IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION
Misc. Case No: HAM 008 of 2007
Between:
SANJANA DEVI; and
ABDUL SAMAT
Applicants
And:
THE STATE
Respondent
Hearing: 29 th January 2007
Ruling: 30 th January 2007
Counsel:
Mr. A.K. Singh for H.A. Shah for Applicants
Mr. A. Rayawa for State
RULING
This is an application for bail pending appeal.
The Applicants were sentenced on the 29 th of December
2006 to 18 months imprisonment on 5 counts of
obtaining money on forged instruments. The grounds
for bail set out in the affidavit of Pratishna
Vikashni Raj (litigation clerk for Messrs. Haroon Ali
Shah Esquire) are that there is a strong chance of
success in the appeal on the ground that the
Applicants were unrepresented by counsel, that the
Applicants will have served a substantial part of
their prison terms when the appeal is heard, that the
Applicant is 3 months pregnant and that the two
children of the Applicants are currently without their

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parents and with relatives.
The State opposes the application. The
principles relating to bail pending appeal are
well-settled. The conviction entered rebuts the
statutory and constitutional right to bail. Relevant
factors are the likelihood of the appeal succeeding,
the proportion of sentence which will have been served
by the time the appeal is heard, and any other
exceptional grounds.
The court record is not available to me, and I am
unable to say whether the appeal is likely to succeed.
The fact that both Applicants were unrepresented at
trial is an insufficient reason to find that the
appeal has every chance of succeeding. The affidavit
material filed fails to set out any of the facts of
the case.
The Applicants have now served one month of their
18 months terms and it is likely that their appeals
will be heard by the end of February. By that time
they will each have served only 3 months imprisonment.
The plight of their young children is capable of
constituting exceptional grounds but I have been given
no evidence to show that these children are at risk
with their relatives, or that their parents are their
only source of support.
However, the pregnancy of the 1 st Applicant may
constitute exceptional grounds if there is delay in
the production of the court record. Certainly, if
such delay leads to the Applicant spending much of her

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pregnancy incarcerated only to be released if her
appeal against conviction and/or sentence succeeds,
she and her unborn child may have suffered
irremediable harm as a result.
For this reason, although I refuse bail today, I
will call this appeal on the 23 rd of February 2007 to
check on the availability of the court record and the
readiness of all parties for appeal. If the court
record is not available I will reconsider bail for the
1 st Applicant. Bail is refused.
Nazhat Shameem
JUDGE
At Suva
30 th January 2007