Court of Appeal
Criminal Appeal No. 2 of 1988
15th March, 1988
SIR JAMES SMITH P.
KENNETH ST. L. HENRY J.A.
SIR JOSEPH A. LUCKHOO J.A.

Mr. Denys Barrow for Appellant
Mr. F. Lumor for the Crown

Criminal Law - Bail - Pending appeal of conviction and sentence - Pursuant to section 35(1) of the Court of Appeal Act - Discretion not ordinarily exercised in favour of bail - Applicant need to show special or exceptional circumstances - What may constitute special or exceptional circumstances.

J U D G M E N T

The Appellant was convicted on February 22, 1988 on 7 counts for false accounting and 2 counts for theft and sentenced to terms of imprisonment the longest of which is 7 years. The sentences were ordered to commence from September 15, 1987, The Appellant has appealed against his convictions and sentences and now applies for bail pending the hearing of the appeal.

In support of the application it was submitted that the previous good character of the Appellant, the time which is likely to elapse before the appeal is heard, the present state of health of the Appellant and the probability of the appeal succeeding were factors to be taken into account. In addition, it was submitted that the Appellant had been on bail prior to his trial, was a Belizean and could provide suitable sureties in the event of bail being granted.

Section 35(1) of the Court of Appeal Act Cap. 73 provides that "The Court may, if it seems fit, on the application of an Appellant, admit the appellant to bail pending the determination of his appeal." It is however clear on the authorities that the discretion conferred by these provisions is not ordinarily exercised in favour of the grant of bail to a convicted person. There must be what is variously referred to as special circumstances or exceptional circumstances.

In the present case the next sitting of the Court of Appeal is scheduled to commence in approximately 8 weeks and there is at present no reason to believe that the appeal will not be heard during that session. The Appellant in his affidavit states that he is a diabetic but there is no medical certificate in this regard and in any event this would not in itself constitute special circumstances justifying the grant of appeal. Equally the previous good character of the Appellant and the fact that he is able to provide suitable sureties for his appearance at the hearing of the appeal would not constitute special circumstances. Of more significance is the possibility of his appeal being allowed and the convictions set aside. The difficulty in this regard however is that in the absence of a full transcript it is not possible to arrive at a realistic assessment of the chances of the appeal succeeding. The grounds of appeal are as follows:

1. The verdict of the jury is unreasonable and cannot be supported having regard to the evidence.

2. The learned trial judge wrongfully refused to withdraw the case from the jury upon a submission of no case to answer.

3. The learned trial judge misdirected the jury in telling them in relation to the counts of false accounting that he, having determined in his ruling upon a submission of no case to answer that the elements necessary to constitute the offence were present on the evidence, then as a matter of law the jury must accept this decision and could determine only whether the entries made were false.

4. The learned trial judge misdirected the jury in failing to put the defence to the jury.

Clearly grounds 1, 2 and 4 would require a perusal of the notes of evidence (which are not yet available) and grounds 3 and 4 would require a perusal of the summing up of the learned trial judge. It is possible that ground 3 also may require a perusal of the notes of evidence. In the circumstances we cannot say that the Appellant has been able to show that such special circumstances exist as would justify the grant of bail to him pending his appeal. Accordingly the application is refused.

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