Court of Appeal
Criminal Appeal No. 7 of 1979
1st June, 1979.
CLIFFORD INNISS (J. A.)
(S. 43(1) (d) of the Court of Appeal Ordinance,
1967 (No. 18 of 1967).

Application for Bail - Section 44 of the Prisons Ordinance - Where the Applicant is to serve a substantial portion of his sentence before the hearing of his appeal, this is an exceptional circumstance in deciding whether to grant bail.

R U L I N G

This is an application for bail by the Appellant, who was on the 11th May, 1979, convicted before the Supreme Court of Belize of negligently allowing a prisoner to escape contrary to S.44 of the Prisons Ordinance, Ch, 68, and sentenced to one year's imprisonment with hard labour.

Mr. Zuniga, on behalf of the Appellant, in stating the first ground of the application, said that Appellant would rely on the precedent set by the Court of Appeal of Belize in Criminal Appeal No. 9/78 Ramesh Bhojwani v. Reg. He pointed to the long list of cases there cited as providing guidelines that bail would be granted in exceptional circumstances to an Appellant. One of the circumstances on which Appellant relied was the length of the interval which must elapse before his appeal could be heard. Counsel submitted that by the time the Court of Appeal came to Belize City in late July or early August Appellant would have served a substantial part of his sentence.

As additional grounds of the application, Counsel urged that there were substantial grounds of appeal, including one (as in Charavanmuttu 21 Cr. App. R. 184) relating to the absence of corroboration, and that the crime for which Appellant had been convicted was a crime of omission, where as in all the cases in which bail had been granted the crimes had been crimes of commission. He also stressed the previous good character of the Appellant and the fact that he had been on bail for four months since the date on which he had been charged and had never once failed to attend the Court.

Counsel for the Crown opposed the application, he said, as a matter of principle. He submitted that the general rule of the Court of Appeal in England and also of this Court of Appeal has been to refuse bail to prospective applicants. The case of Bhojwani was the only one in which bail had been granted by this Court and he submitted that the facts of the instant application were distinguishable from the facts in Bhojwani's case.

He referred to two passages in the Ruling in that case. The first, in the penultimate paragraph, is as follows:?

"We are particularly influenced by the relationship between the sentence and the period of time that must elapse before the appeal can be determined."

He referred to the facts that Bhojwani was convicted on 6th November, 1978, and that the next sitting of the Court of Appeal did not commence until 30th April, 1979, over 5 months later. Counsel also referred to a submission by Mr. Musa, Counsel for Bhojwani, which was quoted by the Court in the first paragraph on page 2 of the Ruling:

"He stressed particularly the length of time that must elapse before the appeal is heard and the comparatively short sentence imposed which could mean that the appellant, if successful, could have served a very substantial part of his sentence."

Counsel then turned to the instant application, and it was ascertained from the Registrar that no definite date had yet been fixed for the opening of the next Session of the Court of Appeal in Belize, but that tentative dates had been given depending on the sitting of the Court of Appeal in the Bahamas. The latest date was 13th August.

Crown Counsel then submitted that even if 13th August, 1979, were taken as the latest date for the next sitting of the Court of Appeal that would mean that there would be an interval of 3 months between the date of Appellant's conviction and the next sitting of the Court. That, he submitted, was the normal interval between Sessions of the Court of Appeal, and if that delay were treated as an exceptional circumstance then almost every case would qualify for bail. Counsel conceded that the exceptional circumstance was the combination of the short sentence with the interval which must elapse before the appeal could be heard, but argued that in Bhojwani's case Bhojwani would have served about half of his sentence.

In making these submission Counsel appeared to be comparing the fact that Bhojwani would have served nearly half his sentence of one year with the fact that in the instant case even if the next Session of the Court of Appeal did not open until 13th August, 1979, Appellant would only have served 3 months of his sentence of one year, and suggesting, as I understood him, that had the term which Bhojwani would have served been less than it was, the Court would not have granted him bail.

This contention, for one thing, appears to involve the supposition that in referring to "the period of time that must elapse before the appeal can be determined the Court knew that the next Session of the Court in Belize would or might begin as late as 30th April, 1979.

In this connection, the Registrar informed the Court that the date 30th April or 1st May, 1979, was fixed by the President in a letter to him dated 21st December, 1978, which did not reach him until 5th January, 1979, as marked on the letter. In these circumstances it seems unsafe to assume that on 24th November, 1978, the date of the Ruling, all the Judges of the Court knew that its next Session would or might open as late as 30th April, 1979, although the President himself might have had that date in mind as a possible date for the opening of the next Session.

So far as Mr. Musa is concerned - and the words "a very substantial part of his sentence were his - I do not see how he could possibly have known that the next Session would or might open on 30th April. To my mind, the probability is that Mr. Musa had in mind the normal date for the, next sitting of the Court which would have been sometime in March, 1979. This would mean that he would have contemplated that Bhojwani would have served probably a little more than 4 months of his sentence of 1 year before his appeal could be heard at the next sitting of the Court. Further, as I understand Bhojwani, the Court did not lay down any interval during which the Applicant would be imprisoned as constituting a limit to consideration of the relationship between the sentence and the period of time that must elapse before the appeal can be determined, although, I think, it emerges that the interval must be substantial. The Court was, of course, considering a case in which the sentence was a short one.

In any event, Bhojwani is not the only case for consideration.

Crown Counsel next referred to Watton reported in the Criminal Law Review for April. 1979 at p.246. This case was not before the Court in the Bhojwani application. In this case Appellant had pleaded guilty to three Counts of Receiving metal knowing it to be stolen. He was sentenced to concurrent sentences of 12 months imprisonment. The single judge granted leave to appeal and directed that the hearing be expedited, but refused bail. Appellant renewed his bail application to the full court on various grounds. It was held that there were no exceptional circumstances which would drive the Court to the conclusion that justice could only be done by the granting of bail. It is to be noted that in this case the Judge had directed that the hearing should be expedited so there was no reason to anticipate any appreciable delay before the appeal could be heard.

Counsel directed attention to a commentary at the foot of the report of this case in which it was said:?

"The Home Office Working Party on Bail Procedures in Magistrates Courts (H.M.S.O. 1974) accepted that bail is rarely appropriate pending appeal".

In answering the submission on behalf of the Appellant that the crime of which the Appellant had been convicted was merely a crime of negligence, which carried the suggestion that it was not a very serious offence, Crown Counsel at first contended that the offence was a serious one, but eventually conceded that the effect of S.155 of the Indictable Procedure Ordinance Ch. 22 was to make 2 years the maximum imprisonment which could be awarded for offences under S.44 of the Prisons Ordinance. This would mean that the Legislature did not regard offences under that section as particularly serious.

Crown Counsel also referred to the case of Harding, Turner and King 23 Cr. App. R. 143 and commented that that case had been considered by myself at p.p.4 and 5 of the Ruling in Zelaya dated 22/2/77.

In Harding, Turner and King three different applications for bail were reported. Harding was convicted on November 30 and sentenced to 12 months imprisonment with hard labour, Turner was convicted on November 28 and sentenced to 8 months imprisonment in the second division, and King was convicted on December 10 and sentenced to 6 months imprisonment in the second division. Bail was granted to each and the head note reads:?

"The interval of the Christmas Vacation before an appeal can be heard may be a ground for the Court's granting bail."

At p. 5 of the Ruling in Zelaya I commented, as I then understood the matter, that the common circumstance which the Court regarded as an exceptional one must have been the interval of the Christmas Vacation before any of the three appeals could be heard, as indicated in the head note. On maturer reflection, however, it now seems to me that the circumstance which the Court must have regarded as exceptional was not merely the interval of the Christmas Vacation but the relationship between the short sentences and that interval. Looked at in that way, I now think that that case would not be inconsistent with the Ruling of the Court of Appeal for Belize in Charles X Eagan's application for bail because Eagan's imprisonment was not for a short term as in Harding, Turner and King, but, as I understand it, for two years. In Zelaya itself the terms of imprisonment involved were 2 years and 3 years to run concurrently.

Reference was also made to the case of Edward Fitzgerald, Duke of Leinster 17 Cr. App. R. 147. In this, case the applicant was convicted at the Central Criminal Court on July 23rd, 1923, before the Recorder, of obtaining credit without disclosing that he was an undischarged bankrupt, and sentence was postponed. He was granted a certificate of appeal. The Recorder ordered applicant to be detained at Brixton Prison until the next Sessions of the Central Criminal Court which commenced on July l6th and said he would then release applicant. The appeal on certificate could not be heard for a fortnight so that the result would probably have been, unless bail was granted, that the applicant would have finished his term of detention before his appeal was heard. It was held that there was no exceptional and unusual reasons and bail was refused. The Court appeared to feel difficulty about the fact that sentence had been postponed and what would happen if the Court did not quash the conviction and Appellant had been released on bail. It seems to me that this was an unusual short case which does not really offer much as assistance to the Court in considering the instant application.

In Howeson and Hardy 25 Cr. App. R. 67 both applicants for bail had been convicted of aiding and abetting the director of a company in the publication of a false prospectus. Howeson was sentenced to 12 months imprisonment and Hardy to 9 months imprisonment. The Court held that there were no exceptional circumstances and refused bail, remarking expressly, however, that there was every reason to anticipate that the hearing of the appeals would not be postponed for long.

In Davidson 20 Cr. App. R. 67, Appellant had been convicted at the Liverpool Assizes on April 29th of fraudulent conversion and sentenced to 9 months imprisonment in the second division. The trial judge had expressed surprise at the verdict, had granted a certificate and leave to appeal, and had granted bail. The Court of Appeal, commenting on the grant of bail, said that they were not aware of any special circumstances. There is, however, no further indication in the report of what the circumstances were. This case is consequently not of much assistance to this Court on the present application.

In Macdonald (1930) 21 Cr. App. R. 26 (which, together with Howeson and Hardy and Davidson, was referred to in Watton) Applicant was convicted at the Sheffield Quarter Sessions on July 12 of knowingly receiving stolen property and sentenced to 18 months imprisonment with hard labour. Bail was granted to the Applicant because his appeal could not be heard until the end of the Long Vacation.

In Starkie 24 Cr. App. R. 1 the Applicant for bail had been sentenced on 18th July to 18 months' imprisonment for using an instrument with intent to procure miscarriage. He had previous convictions of administering drugs with intent to procure abortion and trafficking in dangerous drugs. The Court plainly took his previous bad character into account in finding that the mere fact of the existence of the Long Vacation is not of itself such an exceptional circumstance as to justify the allowing of bail.

Crown Counsel also cited R. v. Tarran, The Times December, 16, 1947, referred into Archbold on Criminal Pleading Evidence & Practice (38th Edn.) para. 882. In that case bail was granted in view of the fact that owing to the length of the transcript of shorthand notes the appeal would probably not be heard until the end or after the expiration of the sentence. No further details are given and I do not think that this case helps with the present application as it is not on all fours with it.

In reply Mr. Zuniga submitted that the cases cited in Bhojwani in support of bail being granted and the Bhojwani case itself were alike with Petitioner's case in that they all show the necessary combination of the length of sentence and the interval which must elapse before the appeal can be heard. In answer to Crown Counsel's submission that it was 5 months before the Bhojwani Appeal was heard, Mr. Zuniga referred to four cases in which bail was granted. He directed attention to the statistics, as he put it, in these cases, which showed that in all of them the interval which must have elapsed between the date of conviction and the hearing of the appeal was appreciably less than 5 months. These cases were:?

Counsel conceded, however, that Newberry and Elman and Stewart were not really on all fours with the instant application because in both cases one of the factors stressed as a special circumstance was the complexity of the case and the desirability of the applicant having ample opportunity of consulting with his legal advisers.

Submissions were also made with regard to the significance of good character. As I understand the authorities, previous good character is not of itself an exceptional circumstance; but previous bad character can severely militate against a case which might otherwise show exceptional circumstances. That, I think, emerges from Starkie 24 Cr. App. R. 1.

I have given careful consideration to the submission and to the cases cited in argument. It seems to me to emerge from the relevant authorities that where an applicant for bail has previously been of good character and has been sentenced to a comparatively short term of imprisonment, and where an interval must elapse before his appeal can be heard which is so long that the applicant will have served a substantial portion of his imprisonment before the hearing of his appeal, these are circumstances which the Court will regard as special and such as to justify the granting of bail.

So far as the instant application is concerned, in my view, I must approach it on the basis that the next sitting of the Court of Appeal in Belize may well not take place until August 13th, since no date is yet fixed and that is one of the dates now in contemplation. On that basis, the Applicant, who was convicted on 11th May, 1979, will, unless bailed, have served some 3 months of his sentence of one year before his appeal can be heard. That would amount to one quarter of his sentence, which in my view is certainly a substantial portion of it. In addition, all the indications are that he was previously of good character, and there is no suggestion that he is unlikely to appear for the hearing of his appeal. In my view the circumstances of the instant case are such that bail ought to be granted. To hold otherwise, in my opinion, would be to fly in the face of such cases as Harding, Turner and King Macdonald (supra).

The Appellant, Willword Bonner, will be admitted to bail pending the determination of his appeal on his own recognisance in the sum of $2,000.00 together with two sureties, satisfactory to the Registrar, in the sum of $1,000.00 each. Such security to be taken before the Registrar.

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