COURT OF APPEAL
DATE: 22 JUNE 1967
BEFORE: OLLENNU, AZU CRABBE AND APALOO JJ.A.
CASES REFERRED TO
(1) State v. Djaba [1966] G.L.R. 575, S.C. affirming sub nom. Djaba v. The State [1966] G.L.R. 327.
(2) R. v. Selkirk (1925) 18 Cr.App.R. 172, C.C.A.
(3) R. v. Howeson and Hardy (1936) 25 Cr.App.R. 167, C.C.A.
(4) R. v. Tunwashe (1935) 2 W.A.C.A. 236.
(5) R. v. Gordon (1912) 7 Cr.App.R. 182, C.C.A.
(6) R. v. Wise (1922) 154 L.T. 168; 17 Cr.App.R. 17, C.C.A.
(7) R. v. Fitzgerald (Duke of Leinster) (1923) 17 Cr.App.R. 147, C.C.A.
NATURE OF PROCEEDINGS
APPLICATIONS for bail pending the hearing and determination of appeal. The facts are fully set out in the ruling.
COUNSEL
Appiah-Menka for the applicants.
S. M. Boison, Chief State Attorney (with him V. A. Kisseih, Senior State Attorney) for the respondent.
JUDGMENT OF OLLENNU J.A
Ollennu J.A. delivered the judgment of the court. The applicants were convicted at the criminal session of the High Court, Sunyani, on 7 March 1967, of the offence of stealing and were sentenced respectively to four years’ imprisonment with hard labour and three years’ imprisonment with hard labour. From their conviction they have appealed to this court. They then applied to this court for bail pending the hearing and determination of their appeal. After hearing arguments for and against the application, we dismissed the application on 5 May 1967, but reserved our reasons for so doing, and we now proceed to give those reasons.
The one and only ground relied on for the application is contained in paragraph (19) of the affidavit sworn to by the first applicant in support of the application, and is as follows, “That we are advised and verily believe that the learned trial judge grossly misdirected himself on the law relating to admissions incriminal matters.”
One significant fact disclosed in the affidavit in support of the application is that the conviction of the applicants is based principally upon extra-judicial statements made voluntarily by them to the police.
According to the applicants themselves, as disclosed in paragraph (8) of the affidavit supporting their application, those voluntary statements amount to “admission on our part that we had taken the money which we considered to be a surplus.” Thus upon the applicants’ own showing, they were convicted upon their own confession of guilt.
Paragraph (18) of the affidavit sets out the grounds of appeal which it is proposed to argue when the appeal comes up for hearing.
They are:
“(a) The learned trial judge’s conviction of the appellants herein, based on their admissions, amounted to a miscarriage of justice since there was no evidence that the State Cocoa Marketing Board the alleged victim of the alleged offence had lost the money for which the appellants were charged or any money at all.
(b) The learned trial judge misdirected himself on the law relating to admissions.
(c) The learned trial judge misdirected himself on the onus of proof in criminal charges.
(d) The order for restitution made in favour of the State Cocoa Marketing Board was erroneous in view of the lack of evidence on the record that the said State Cocoa Marketing Board had lost any money.
[p.438] of [1967] GLR 435
(e) The sentences of four years ‘and three years’ imprisonment with hard labour were excessive. (f) Additional grounds to be filed later.” Counsel for the applicants contended that the allegation that the trial judge “grossly misdirected himself on the law relating to admissions” in criminal matters together with the points raised in the grounds of appeal already filed against the conviction, show that there are “valid debatable issues” raised on the appeal, and that the appeals of the applicants have a good chance of succeeding. He therefore submitted, relying upon the ruling of the Supreme Court in State v. Djaba [1966] G.L.R. 575, S.C. that the court should grant the application for bail. Learned counsel for the respondent contended that the grounds relied upon are not grounds which should warrant grant of bail pending determination of appeal. He submitted that bail after conviction will only be granted in exceptional cases. He relied upon the principle governing such applications as discussed in Archbold, Pleadings, Practice and Evidence in Criminal Cases (35th ed.), p. 355: para. 882. He also cited the English cases of R. v. Selkirk (1925) 18 Cr. App. R. 172, C.C.A. and R. v. Howeson and Hardy (1936) 25 Cr. App. R. 167, C.C.A. and the local case of R. v. Tunwashe (1935) 2 W.A.C.A. 236 to support his argument. Power to grant bail after conviction and pending appeal is given to either the judge before whom the applicant was convicted, or to this court by paragraph 20 (2) of the Courts Decree, 1966 (N.L.C.D. 84), which replaced section 22 (2) of the Courts Act, 1960 (C.A. 9), now repealed. The paragraph reads: “The Court of Appeal, or the Judge before whom he was convicted, may, if it seems fit, on the application of an appellant, admit the appellant to bail pending the determination of his appeal.”
In Djaba v. The State [1966] G.L.R. 327 at p. 331 the High Court expressed opinion that: “if the court is satisfied that there are valid debatable issues or chances of success in the appeal, it is a proper case in which bail should be granted for, after all, if the judge who granted the bail is wrong in his opinion that there is a chance of success in the appeal and the appeal is dismissed, the appellant will serve hissentence but he will then be satisfied that he has been given a fair chance to explore all avenues. This in my opinion is the justice of the matter.”
[p.439] of [1967] GLR 435
It thereupon granted bail saying at the same page: “With these as my guiding principles I am of the opinion that from the analysis of the judgment by the appellant’s counsel there are strong arguable issues in favour of the applicant to be gone into which go to the foundation of the whole case as to whether the facts and evidence constitute an offence at all.”
The case of R.v. Tunwashe (supra) was cited to the judge of the High Court in the Djaba case, but it was rejected by him on the grounds that the decision therein was based upon English authorities and old decisions of the Ghana courts based upon enactments which are worded in terms quite different from the wording of the enactment which now gives power to the present courts of Ghana to entertain such applications. The learned judge so directed himself because he erroneously thought that the enactment which empowers the High Court to grant bail after conviction is section 332 (1) of the Criminal Procedure Code, 1960 (Act 30), and not section 22 (2) of the Courts Act, 1960 (C.A. 9), now paragraph 20 (2) of the Courts Decree, 1966 (N.L.C.D. 84). We say erroneously, because the said section 332 (1) relates to bail before conviction and not bail after conviction.
This blatant error on the part of the High Court was corrected by the Supreme Court in State v. Djaba [1966] G.L.R. 575. Despite that correction which they made, the Supreme Court nevertheless upheld the ruling of the High Court based upon that indefensible error, directing themselves at pp. 581-582 as
follows:
“With reference to the conditions governing granting of bail pending an appeal as laid down in the English reported cases, no settled rules are formulated as to what constitute exceptional or special circumstances, and an examination of the reported cases cited on behalf of the appellant merely shows instances within the principle but not exhaustive conditions governing granting of bail pending the hearing of an appeal. Furthermore, these are English decisions not binding on this court.
The use of the words ‘may, if it seems fit’ in section 22 (2) of the Courts Act, 1960, vests a discretionary power which is imperative in its exercise. The court is bound to form an opinion, but the exercise of a discretion should not be arbitrary or capricious.
In the present case, the question we had to decide was whether or not the learned judge erred in law in granting bail
[p.440] of [1967] GLR 435
in the exercise of his discretionary powers. To succeed on an appeal against the exercise of discretionary powers, it must be conclusively proved to the satisfaction of the court that the judge acted on some wrong principle of law or that the exercise of the discretion has resulted in an injustice.” With the greatest respect we are compelled to say that the Supreme Court could not have directed their attention to any of the cases cited to them, otherwise they would never have said that no settled rules areblaid down in the English cases and in the local cases cited to them. 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 thebhearing 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 an apparent miscarriage of justice if bail is refused.
Here are a few of the cases in which these principles have been applied. In R. v. Gordon (1912) 7 Cr.App.R. 182, C.C.A. bail, applied for on the grounds that (i) there were 180 exhibits, (ii) that the applicant was granted bail before the trial, and (iii) that he would personally go into the matter for the conduct of the appeal, was refused by the Court of Criminal Appeal, Darling J. holding at p.183 that, “No sufficient reason has been shewn to the Court why the unusual course should be taken of granting bail to a convicted prisoner.”
In R. v. Wise (1922) 17 Cr.App.R. 17, C.C.A., Lord Hewart C.J. reading the judgment of the Court of Criminal Appeal refusing an application for bail said, inter alia at pp. 17-18:
“In order to adjudicate on the question of bail it is useful to see if there is any prospect of success on appeal, or if it is a case where it would be of assistance for the preparing of a real case for appeal if the appellant were released.
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There does not appear to be the faintest prospect of success on this appeal, and it is right that I should point out that if the application is persisted in there may be some time wasted. The persons assisting the appellant should be informed that in the opinion of this Court there is no likelihood of success on appeal.”
In R. v. Selkirk (1928) 18 Cr.App.R. 172, C.C.A., the applicant was convicted on a charge of conspiracy.
The charge of conspiracy, on which he was convicted, rested on facts on which were based counts in the indictment alleging falsification of accounts by the applicant on which he was acquitted; the sentence was short. In those circumstances bail was granted. Other cases are R. v. Fitzgerald (Duke of Leinster) (1923) 17 Cr.App.R. 147, C.C.A. and R. v. Howeson and Hardy (supra).
Applying the principles laid down in the cases cited above the different courts, in the exercise of discretionary powers given them by provisions of enactments which are identical in terms with paragraph 20 (2) of the Courts Decree, 1966 (N.L.C.D. 84), have always held that a bare allegation that “there are valid debatable issues or chances of success in an appeal,” or a mere averment of belief upon advice that “the trial judge grossly misdirected himself on the law relating to admissions” in criminal matters as made in this case, do not constitute special reasons within the principles laid down. Therefore to grant bail based upon an allegation of this nature is to say, in effect, that bail after conviction is automatic and should be granted for the asking. This, of course, will be contrary to the intent of the legislature to give discretion to the court as shown by the words of the enactment, namely, “The Court of Appeal, or the Judge before whom he was convicted, may, if it seems fit, on the application of an appellant, admit the appellant on bail pending the determination of his appeal.”
The principles to be borne in mind is that a conviction is deemed to be right until the contrary is proved.
That being the case, grant of bail after conviction is considered an unusual thing hence it is that it will not be granted unless there are exceptional and unusual reasons: R. v. Fitzgerald (supra). Thus, in R. v. Gordon (supra) Darling J., delivering the ruling of the Court of Criminal Appeal said at p. 183, “No sufficient reason has been shewn to the Court why the unusual course should be taken of granting bail to a convicted prisoner.” It follows that grant of bail after conviction merely upon the ground that there is a debatable issue in the appeal against conviction as was done in State v. Djaba (supra), is inconsistent with the well-known principle of law, and creates a precedent based upon no principle.
[p.442] of [1967] GLR 435No special or exceptional circumstances have been shown to bring this application within the accepted principles. It is for the reasons stated above that we dismissed the application for bail.
DECISION
Application dismissed.
D.R.K.S.
