ATTEY AND ANOTHER v. THE REPUBLIC [1972] 2 GLR 352
HIGH COURT, HO
Date: 14 JULY 1972
BEFOR: ATA-BEDU J.
CASES REFERRED TO
(1) State v. Owusu, Court of Appeal, 22 June 1967, unreported; digested in (1967) C.C. 111.
[p.354] of [1972] 2 GLR 352
(2) R. v. Tunwashe (1935) 2 W.A.C.A. 236.
(3) R. v. Gordon (1912) 7 Cr.App.R. 182, C.C.A.
(4) R. v. Wise (1922) 17 Cr.App.R. 17, C.C.A.
(5) R. v. Selkirk (1925) 18 Cr.App.R. 172, C.C.A.
(6) R. v. Fitzgerald (Duke of Leinster) (1923) 17 Cr.App.R. 147, C.C.A.
(7) R. v. Howeson and Hardy (1936) 25 Cr.App.R. 167, C.C.A.
(8) State v. Halm, Court of Appeal, 27 July 1967, unreported.
(9) R. v. Waxman (1930) 22 Cr.App.R. 81, C.C.A.
(10) Fynn v. The Republic [1971] 2 G.L.R. 433.
(11) Okyere v. The Republic [1972] 1 G.L.R. 99.
(12) State v. Djaba, Supreme Court, 20 June 1966, unreported.
NATURE OF PROCEEDINGS
APPLICATION for bail pending appeal. The facts are set out fully in the ruling,.
COUNSEL
Kpegah for the applicants. Addo, Assistant State Attorney, for the Republic.
JUDGMENT OF ATA-BEDU J.
This is an application for bail pending appeal by the applicants who were on 5 June 1972 convicted on two charges of forcible entry by his worship D. K. Okyere sitting as Magistrate Grade 1 at Hohoe and were each sentenced to a term of nine months’ imprisonment with hard labour.
The substance of the charges against the applicants is that, armed with cutlasses and clubs, they entered the cottages of the first prosecution witness and the second prosecution witness, set fire to the kitchen of the second prosecution witness’s tenant, Subulegah, and to the second prosecution witness’s mattress and firewood, removed the roofing sheets from the second prosecution witness’s kitchen, destroyed cooking pots and a snare and carried away her iron pot, table and fowls. At the cottage of the first prosecution witness they ordered her to pack all her goods and leave without questioning and demanding reasons for such an order; the first prosecution witness complied with the order and left. The summary of the evidence contained in the judgment reveals that the first and the second prosecution witnesses acquired the land by purchase. Against their convictions the applicants filed their petition on 6 June 1972, in which the only ground of appeal urged, pending the filing of additional grounds, is that, “The verdict is unreasonable and cannot be supported having regard to the evidence.” The power to grant bail to a convicted person pending his appeal is contained in section 26 (5) of the Courts Act, 1971 (Act 372), which provides as follows: “The Court before which a person is convicted or the Court to which an appeal is made may if it thinks fit on the application of an appellant admit the appellant to bail pending the determination of his appeal. ”[p.355] of [1972] 2 GLR 352 Section 332 (1) of the Criminal Procedure Code, 1960 (Act 30), which similarly empowers the High Court to grant bail reads as follows: “After the filing of a petition of appeal by any person entitled to appeal, and pending the hearing, the High Court may, for reasons to be recorded by it in writing, order that the execution of a sentence or order appealed against be suspended and also, if he is in confinement, that he be released on bail or on his own bond. ”From these provisions it is quite obvious that the grant of bail to convicted persons is not automatic but discretionary. It is a course which is unusual but which may be taken in exceptional circumstances considering the principle that a conviction is deemed to be right until it is proved otherwise. In the exercise of their discretion in matters of applications for bail by convicted prisoners, the courts are guided by principles clearly laid down in the judgment of the Court of Appeal in the case of State v. Owusu, Court of Appeal, 22 June 1967, unreported; digested in (1967) C.C. 111. These principles which the court held as having been summarised in the case of R. v. Tunwashe (1935) 2 W.A.C.A. 236 are: “(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 the above principles a third one added is, “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.” The cases relied on for the above principles are: R. v. Gordon (1912) 7 Cr.App.R. 182, C.C.A.; R. v. Wise (1922) 17 Cr.App.R. 17, C.C.A.; R. v. Selkirk (1925) 18 Cr.App.R. 172, C.C.A.; R. v.
Fitzgerald (Duke of Leinster) (1923) 17 Cr.App.R. 147, C.C.A.; and R. v. Howeson and Hardy (1936) 25 Cr.App.R. 167, C.C.A. Another principle added by the court in the case of State v. Halm, Court of
Appeal, 27 July 1967, unreported is “The absolute necessity for the appellant to be free to help his
advisers in the preparation of the appeal.” See R. v. Wise (supra) and R. v. Waxman (1930) 22 Cr.App.R. 81, C.C.A. It would seem therefore that in Ghana these four principles are to guide the courts in the exercise of their discretion. These principles were relied on by Taylor J. in the case of Fynn v. The Republic [1971] 2 G.L.R. 433 and Hayfron-Benjamin J. in the case of Okyere v. The Republic [1972]1 G.L.R. 99. Taylor J. held in Fynn v. The Republic (supra) as summarised in the headnote at pp. 434-435 that an application for bail may be granted only on one of the following grounds: [p.356] of [1972] 2 GLR 352 “(a) if there are exceptional or unusual grounds for the application. . . . (b) if the conviction is prima facie wrong and the appeal therefore has obvious prospects of success; this ground follows logically from the principle that a conviction by a court of competent jurisdiction is prima facie right until the contrary is established and if by preliminary argument one can show that it is prima facie wrong, there would seem to be no reason, why after having displaced the presumption a convicted person should not be admitted to bail pending the full argument on the ground that it is likely to succeed. . . . (c) if it is a case of such a nature where it would be of real assistance for the preparation of the appeal that the appellant should be free to confer with his counsel in order to facilitate the preparation of his appeal. . . . (d) if having regard to the sentence there is going to be a considerable delay either in preparing the record of appeal or because of the long vacation, the hearing of the appeal is likely to be unduly delayed resulting in the appellant serving the whole or substantial portion of his sentence . . . . ”In the present application both counsel concede that on an application for bail for a convicted prisoner pending his appeal one of the above grounds must be established. Counsel for the applicants in his argument states that the only grounds urged for the consideration of the court are those deposed to in paragraphs (8) and (9) of the affidavit in support of the application, and relies on the case of Okyere v. The Republic (supra). The relevant paragraphs in the affidavit are couched in the following words: “(8) That I am informed by applicants’ solicitors and verify believe same to be true that the appeal has every chance of success. (9) That the sentence is short and having regard to the time it will take to prepare the record of proceedings there is the likelihood of the applicants finishing the sentence before the appeal is heard.” Counsel for the Republic, Mr. Addo, in opposing the application and relying on the case of State v. Owusu (supra) laid emphasis on the presumption that a conviction is deemed to be right until the contrary is proved and submitted that bail after conviction is not automatic. His contention was that the judgment raised some serious points and that the facts disclosed in the judgment were really serious. Although he conceded that the term of sentence was short, he submitted that if prima facie the conviction was wrong the shortness of the sentence was immaterial. My understanding of this last submission is that the fact that the conviction prima facie is wrong will, if established, weigh with the court to grant bail without considering the duration of the [p.357] of [1972] 2 GLR 352 term of imprisonment. The case of State v. Djaba, Supreme Court, 20 June 1966, unreported cited by counsel for the applicant has been over-ruled by the cases of State v. Owusu and State v. Halm (supra). Counsel for the applicants contended that it was not enough to look at the judgment per se to decide the correctness or otherwise of the conviction in the absence of the record from which it could be found whether or not the evidence adduced justified the conviction. Counsel submitted that this was a proper case in which the court must exercise its discretion in granting the application.
By this contention counsel was trying to urge the court to grant the application automatically without
being satisfied in the preliminary argument on specific points in the judgment or perusal of the judgment by the court to look for any material, that the conviction was prima facie wrong. In the case of Okyere v. The Republic (supra) cited by counsel for the applicants it is apparently clear that in the absence of the notes of evidence the court will have to find on the face of the judgment something to support the contention that the conviction appealed against was prima facie wrong. If there is, the court will exercise its discretion in granting bail.
I drew the attention of counsel for the applicants to the ground of appeal filed that the verdict was
unreasonable and could not be supported having regard to the evidence. What was this evidence referred to by counsel? If that was the summary of the evidence contained in the judgment, nothing prevented counsel from pointing out to the court those portions he considered did not support the conviction in order to attract favourable exercise of its discretion. If counsel had by references to some portions in the judgment, demonstrated the existence of what he considered as obvious conflicts of findings on some material facts or some errors on the face of the judgment, he would have been on a firm ground in saying that the conviction was prima facie wrong and, therefore, there was a reasonable or obvious chance of the appeal succeeding. I find that no such references have been made in counsel’s argument of facts alleged in the affidavit to assist the court in assessing the prospects of the appeal succeeding.
As regards the contention based on the shortness of the sentence and the time for the preparation of the record of proceedings, counsel in his argument has not given the court the slightest idea of the volume of the record of proceedings, the length of trial in order to consider whether or not this is an exceptional reason for granting bail. The applicants were each convicted on 5 June 1972 and sentenced to nine months’ imprisonment. Each has served only one month. I find no reason shown by the applicants or from the reading of the seven-page judgment that the record will take a long time to be prepared. For the foregoing reasons and owing to the serious nature of the offence, I am not inclined to grant bail to the applicants. The registrar of the court wrote a letter on 6 June 1972 calling for the record of [p.378] of [1972] 2 GLR 352 proceedings but a fresh application may be made if unreasonable delay is caused in the preparation and transmission of the record of proceedings. The application is, therefore, dismissed.
DECISION
Application refused.
S.E.K.
