AKRONG AND ANOTHER v. THE REPUBLIC [1972] 2 GLR 244
HIGH COURT, ACCRA
Date: 5 JULY 1972
BEFORE: ABOAGYE J.
CASES REFERRED TO
(1) State v. Halm, Court of Appeal, 27 July 1967, unreported.
(2) R. v. Newbery (1931) 23 Cr.App.R. 66 C.C.A.
(3) R. v. Harding (1931) 23 Cr.App.R. 143, C.C.A.
(4) R. v. Tunwashe (1935) 2 W.A.C.A. 236.
(5) State v. Owusu, Court of Appeal, 22 June 1967, unreported; digested in (1967) C.C. 111.
(6) Fynn v The Republic [1971] 2 G.L.R. 433.
NATURE OF PROCEEDINGS
APPLICATIONS for bail pending appeal. The facts are fully set out in the ruling.
COUNSEL
J. C. Armah for the applicants.
H. A. Hayfron-Benjamin, Senior State Attorney (Mrs. R. Nkoum, Assistant State Attorney, with him), for the respondent.
JUDGMENT OF ABOAGYE J.
On 20 June 1972, the applicants were convicted by the District Court Grade I, Korle Gonno, of the
offence of assault and each of them was sentenced to a term of four months’ imprisonment with hard
labour. The next day 21 June 1972, they filed notices of appeal in this court against their conviction.
Their grounds of appeal are:
“(1) That the conviction was wrong having regard to the evidence.
(2) That the magistrate was prejudiced in convicting the accused.
(3) That the charge was not proved by the prosecution.
(4) That the magistrate having found that the accused were provoked was wrong in convicting them.
Other grounds to be filed.”
Pending the hearing and determination of the appeal the applicants have applied to this court under
section 332 (1) of the Criminal Procedure Code, 1960 (Act 30), for bail on the ground that they have
every hope of succeeding in the appeal but having regard to the shortness of the sentence it is possible that the proceedings might not be ready before the expiration of the term.
At the hearing of the application, learned counsel for the applicants argued that it would take some time to get the necessary record of the proceedings prepared and since the legal vacation starts at the end of this month (July 1972) it is most unlikely that the appeal will be heard before next October, by which time the applicants would have served the whole or a substantial portion of their sentence.
In opposing the application Mr. Hayfron-Benjamin, counsel for the Republic, argued that the conviction of the applicants is presumed to be right and that since on the authority of State v. Halm, Court of Appeal, 27 July 1967, unreported, once there is no copy of the proceedings
[p.246] of [1972] 2 GLR 244 before this court to enable me to say whether or not the appeal by the applicants has any chance of success, the application for bail must be refused. Learned attorney argued further that the fact that a sentence is short and that it might be served before an appeal is heard cannot by itself be a ground for allowing an application for bail pending the determination of the appeal. That fact, he continued, must be coupled with the fact that the appeal has a reasonable chance of success. In support of this submission counsel quoted a passage from the ruling of the Court of Appeal in the Halm case (supra) delivered by Akufo-Addo C.J. (as he then was).
In their ruling in the Halm case the Court of Appeal stated that, “The principles upon which an appellate court in this country will act on an application for bail pending appeal are clearly set out in the judgment of this court dated the 22 June 1967, in the case of the State v. Owusu and Anto.” In the case just cited Ollennu J.A. (as he then was) delivering the ruling of the Court of Appeal said: “Very clear principles are laid down as to the circumstances in which alone the court may exercise its
discretion to grant bail after conviction. These principles have been summarised in R. v. Tunwashe (1935) 2 W.A.C.A. 236 as follows: ‘(1) That bail will not be granted pending an appeal save in exceptional circumstances or where the hearing of the appeal is likely to be unduly delayed. (2) That in dealing with the latter class of case the Court will have regard not only to the length of time
which must elapse before the appeal can be heard but also to the length of the sentence to be appealed from, and further that these two matters will be considered in relation to one another.’
To these may be added a third, namely, where the court is satisfied that the conviction is prima facie
erroneous either in law or in fact, and that there will be apparent miscarriage of justice if bail is refused.”In R. v. Newbery (1931) 23 Cr.App.R. 66, C.C.A. and R. v. Harding (1931) 23 Cr.App.R. 143, C.C.A. the English Court of Appeal granted bail to the applicants pending the determination of their appeals on the principle that where an appeal cannot be heard before a substantial part of the sentence is served bail may be granted pending the hearing of the appeal. The principle was accepted by the West African Court of Appeal in R. v. Tunwashe (1935) 2 W.A.C.A. 236 and by the Court of Appeal in State v. Owusu, Court of Appeal, 22 June 1967, unreported; digested in (1967) C.C. 111, which the same court purported to follow in the Halms’s case. With all due respect to the learned Justices of Appeal who sat on the Halm case I prefer the statement of the law by Ollennu J.A. in the case of State v. Owusu (supra) since that is supported by a chain of [p.247] of [1972] 2 GLR 244
authorities. In my view an appellate court can grant bail to a convicted person who has appealed against his conviction irrespective of the merits of the appeal if it is satisfied that the whole or a substantial portion of the sentence will be served before the appeal is heard. I am supported in this view by Taylor J. who, in the case of Fynn v. The Republic [1971] 2 G.L.R. 433, granted bail to a convict pending the determination of his appeal without even seeing a copy of the judgment of the lower court, and not mentioning the proceedings in the case. In the instant application it has not been denied that the appeal is not likely to be heard before the long vacation. Experience with the preparation of appeal records confirms the statement. The offence of which the applicants have been convicted is not a very serious one and I will exercise my discretion in their favour. Each applicant is hereby granted bail in the sum of ¢200.00 with one surety pending the determination of the appeal.
DECISION
Applications granted.
S.E.K.
