Court of Appeal
Criminal Appeal No. 14 of 1984
12th December, 1984
A. L. Staine, J.A.

Mr. Oscar Sabido for the Applicant
Mr. G. C. Gandhi, D.P.P. for Respondent

Application for bail pending hearing of appeal against conviction and application for leave to appeal against sentences of 7 years each imposed for aggravated burglary and dangerous harm -Record of appeal not available - Court unable to determine whether appeal has any likelihood of success -Insufficient for Counsel to merely recite in application that the appeal has a good chance of succeeding without putting evidence before Court - Counsel should prepare statement of agreed facts to place before Court - Application refused.

RULING ON APPLICATION FOR BAIL

The Applicant was on the 26th day of October, 1984, convicted in the Supreme Court of the crimes of Aggravated Burglary and Dangerous Harm. He was sentenced to 7 years imprisonment on each Count, both sentences to run concurrently.

He has lodged an appeal against his conviction, and seeks leave to appeal against the sentences imposed upon him. Since the convictions were only recently recorded, the records of the proceedings of the Supreme Court are, not available to Counsel nor this Court, and the Appellant is seeking Bail, pending the hearing of his appeal.

One of the grounds of appeal is that the decision was unreasonable and could not be supported having regard to the evidence. Another ground is that the trial judge misdirected the Jury on the issue of identification. It is readily apparent to this Court, that the questions raised by these two grounds of appeal cannot be determined without the Court being placed in a position, where it is seised of some facts enabling it to take a decision, one way or another, on the matters which face it. Mr. Sabido, Counsel for the Applicant, does not appear to have fully appreciated the difficulties with which he is confronted. Quite apart from the now generally known and accepted rule that the Court of Appeal does not grant Bail to a convicted person between the date of his conviction and the hearing of the appeal, the Court has to decide the likelihood of the appeal succeeding. These are weightly matters, and, in this regard, the Court must have some evidence before it on which it can rely, and which would enable it to take a decision. This Court has been at pains to dispel to he notion that there is some secret arithmetical formula called the Bhojwani principle, which is applied in cases of this nature. Nothing could be further from the truth.

The fact that the record of the proceedings of the case in the Supreme Court are not available, does not without more, divest Counsel making the application, exploring the possibilities of furnishing the Court of Appeal with some record upon which reliance is or can be placed, and on which the Court is able to act. Otherwise the entire exercise is time-wasting, and cannot but have disastrous effects. What is to be borne in mind is that in a normal case, application to the Court of Appeal for bail, pending the hearing of an appeal, is fraught with difficulties, and an application is more likely to succeed, in an instance where the Court is rendered all possible assistance, enabling it to take a decision on the merits, rather than to engage in an excursion, mainly involving guesswork.

A good starting point is to recall that at Common Law, there was never a right of appeal. Appeals were the creation of statute, and of quite recent date. So that one has to look at the particular statute in order to discover rights, duties, obligations and sometimes procedure.

In English law, many of these innovations grew up at the time when the Court of Chancery was dilatory in the extreme. And it is not surprising that ways had to be found to counter this dilatoriness. For example; up to 1908 there was no right of appeal in criminal matters. To be sure there was the Court of Crown Cases Reserved, but this dealt mainly with matters of law reserved by the Judges for discussion for in the main, their own elucidation.

The Court of Criminal Appeal owes its creation to the case of Adolph Beck (1908), and its subsequent ramifications. At the time of the Beck case, the Court of Criminal Appeal did not exist. Because of the discovery that there could be serious miscarriages of Justice that Court came into being. But the Judges, anxious to correct, as far as possible, any miscarriages of justice, resorted to any legitimate means. This, at a time when the preparation of Court records must have consumed some considerable time, the Court found it practicable to act on agreed statements of the facts of the case, and signed by Counsel on both sides. Although the conditions which prompted the introduction of this practice, perhaps no longer exists, because of technological advances, at Common Law, the practice still exists. It is possible to have the hearing of a case expedited in order to do justice and to avoid undue delay. Once it is manifest that the Justice of the cause demands it, the Court of Appeal will exert every effort to ensure that Justice is done.

An example of the exercise of this practice can be seen in Criminal Appeal 4/1969 Dennis Frazer v. The Crown. This was a case where the Appellant was charged with Murder but convicted of Manslaughter. The conviction was appealed and the Court of Appeal sitting shortly after the conviction, found it convenient to hear the Appeal, on the basis of agreed statements, prepared by Counse1 for the Crown and the Defence. The Appeal was heard and dismissed.

The Appellant thus had his Appeal determined, and did not have to wait until the Court of Appeal sat, some months later.

The point of all this excursion into history is that if the Court of Appeal of this Country, can act in a Criminal matter to have a matter determined, it does not appear to be an excuse for Counsel to submit an application for Bail which is not usually granted and recite that the appeal has a good chance of succeeding, and not putting any evidence before the Court. Either it is assumed that the Judge hearing the application is clairvoyant, or that it is the Judge who should do the research. It seems to me that it clearly follows that if this Court is able to determine an entire case of Manslaughter, on the basis of agreed facts submitted, how much easier should it be for Counsel to prepare a statement to be put before the Court in order to determine whether the case to be appealed has any chance of success. This has not been done, and the Court has no evidence before it, on which it can act.

The Application is therefore refused. The Court cannot act in a vaccum, and in the absence of evidence. Perhaps, in the future when such applications are made, precedents will be borne in mind.

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