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Court of Appeal: Arts' security undertaking offers no comfort

Friday, February 17, 2017

Update: 4:42PM FIJI Times general manager and publisher Hank Arts will not be able to give his daughter away at the altar tomorrow after the Court of Appeal dismissed his application for leave to appeal the High Court's decision in refusing an application for a variation of bail conditions.

Arts had applied for variation of bail conditions in the Suva Magistrates Court on August 31 last year to allow him to travel to New Zealand for a medical review between October 20-30 last year, and between February 15 and March 15 this year to attend his step-daughter's wedding.

That was refused.

He further applied to the High Court last October for the same two purposes, which was also refused.

Arts then appealed to the Court of Appeal after his dissatisfaction with that decision.

In his Notice of Appeal filed on February 9, he appealed on the grounds that:

-          The learned judge wrongly put the burden on Arts to prove that he would return to Fiji instead of requiring the State to establish that he would not return;

-          The learned judge wrongly found the security offered by Arts to ensure his return to Fiji was insufficient;

-          The learned judge failed to give any consideration that Arts had proposed two sureties who were prepared to stay in Fiji during his absence overseas, and abide by any conditions that the court would deem fit to impose to ensure his return to Fiji;

-          The learned judge misinterpreted Dr Ivan Connell's (Arts' doctor) opinion by holding that Arts' medical review was not imperative and essential; and

-          Arts reserved the right to raise further grounds of appeal at the hearing of this application.

In their ruling today, the three-member bench led by Justice William Calanchini, observed that neither reason for seeking a bail variation to enable Arts' travel to New Zealand could be described as "necessary or pressing".

Justice Calanchini said there was no material before either the High Court or the Court of Appeal to indicate the purposes of the medical review could not be performed by appropriate medical practitioners in Fiji once a copy of Arts' file or a report had been provided by Dr Connell on Arts' authorisation.

"As the learned High Court judge has concluded, the appellant's personal circumstances are such that the risk of not returning to Fiji and hence the object of the bail condition being frustrated is considerable and cannot be outweighed by the security undertakings to which reference has been made in the appellant's submission," Justice Calanchini said.

Arts, 68, and has been the general manager and publisher for Fiji Times for the past five years, owns two leases over iTaukei land at Vuda and Lami.

The Vuda property is valued at $2million and $728,000 for the Lami property.

The court noted that Arts did not own freehold land and that the two leasehold properties appeared to be his only assets.

"It does appear that under the provisions of the iTaukei Land Act Cap 133 and the Transfer of Land Act Cap 131, there are issues as to the effectiveness of those two properties being offered as security undertaking."

The court noted Arts was a New Zealand citizen and his right to remain there indefinitely could not be ignored.  

The court also noted his family ties there and that his wife and almost all his family were presently in NZ for the wedding.

"It is not difficult to conclude that the risk of not returning to Fiji and surrendering himself into custody and appearing in court when next called to do so outweighs the desire on the part of the appellant to attend to his step-daughter's wedding.

"Furthermore, neither the sureties nor the security undertakings in this case provide the comfort that is necessary to vary the bail conditions and allow the appellant to travel to New Zealand."

Justice Calanchini said Arts had not demonstrated any error in the exercise of the learned judge's discretion and there was no material before the Court of Appeal that would require the Court to disturb the decision of the court below.

Arts, together with Fiji Times Editor-in-Chief Fred Wesley, vernacular newspaper Nai Lalakai Editor Anare Ravula, and letter writer Josaia Waqabaca are charged with one count of inciting communal antagonism under the Crimes Decree.

The offence carries a maximum penalty of up to 10 years imprisonment.

The trial proper will begin next month.

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