HIGH COURT, KUMASI
DATE: 27 SEPTEMBER 1971
TAYLOR J.
CASES REFERRED TO
(1) Republic v. Kwadu [1971] 1 G.L.R. 272.
(2) Republic v. Amadu Fulani [1971] 1 G.L.R. 44, C.A.
(3) Republic v. Asare (T.O.), Court of Appeal, 29 July 1968, unreported; digested in (1968) C.C. 137. (4) State v. Halm, Court of Appeal, 27 July 1967, unreported.
(5) Halm v. The Republic, Court of Appeal, 4 June 1968, unreported; digested in (1968) C.C. 123. [p. 436] of [1971] 2 GLR 433
(6) Republic v. Halm, Court of Appeal (Full Bench), 7 August 1969, unreported; digested in (1969) C.C. 155.
(7) R. v. Gott (1921) 16 Cr.App.R. 86, C.C.A.
(8) State v. Hawa Banda, High Court, Kumasi, 26 July 1965, unreported.
(9) R. v. Gregory (1928) 20 Cr.App.R. 185, C.C.A.
(10) R. v. Lang & Rowe [1969] Crim.L.R. 97, C.A.
(11) R. v. Cullis & Nash [1969] Crim.L.R. 155; (1968) 113 S.J. 51; [1969] 1 All E.R. 593n.; 53 Cr.App.R. 162, C.A.
(12) R. v. Howeson & Hardy (1936) 25 Cr.App.R. 167, C.C.A.
(13) State v. Owusu, Court of Appeal, 22 June 1967, unreported; digested in (1967) C.C. 111 (14) State v. Asiedu, High Court, Accra, unreported; digested in (1968) C.C. 4. (15) State v. Djaba, Supreme Court, 20 June 1966, unreported.
(16) R. v. Tunwashe (1935) 2 W.A.C.A. 236.
(17) State v. Nti alias Berko, High Court, Accra, 7 May 1965, unreported; digested in (1965) C.C. 170. (18) R. v. Wise (1922) 154 L.T.J. 168; 17 Cr.App.R. 17, C.C.A.
(19) R. v. Davidson (1927) 20 Cr.App.R. 66, C.C.A.
(20) State v. Djaba, High Court, 24 April 1966, unreported; digested in (1966) C.C. 108. (21) R. v. Lawrence, unreported, referred to in (1935) 2 W.A.C.A. 236.
(22) R. v. Riegels, unreported, referred to in (1935) 2 W.A.C.A. 236.
(23) R. v. Gordon (1912) 7 Cr.App.R. 182, C.C.A.
(24) R. v. Fitzgerald (Duke of Leinster) (1923) 17 Cr.App.R. 147, C.C.A.
(25) R. v. Selkirk (1925) 18 Cr.App.R. 172, C.C.A.
(26) R. v. Klein (1932) 23 Cr.App.R. 173, C.C.A.
(27) R. v. Starkie (1932) 24 Cr.App.R. 1, C.C.A.
(28) R. v. Tarran, The Times, 16 December 1947.
(29) R. v. West [1948] 1 K.B. 709; 64 T.L.R. 241; [1948] 1 All E.R 718; 32 Cr.App.R. 152, C.C.A. (30) R. v. Greenberg (1923) 17 Cr.App.R. 106, C.C.A.
(31) R. v. Newbery & Elman (1931) 23 Cr.App.R. 66, C.C.A.
(32) R. v. Stewart (1931) 23 Cr.App.R. 68, C.C.A.
(33) R. v. Harding (1931) 23 Cr.App.R. 143, C.C.A.
(34) R. v. Waxman (1930) 22 Cr.App.R. 81, C.C.A.
(35) R. v. Sykes (1930) 22 Cr.App.R. 84, C.C.A.
(36) R. v. Berry (1924) 18 Cr.App.R. 65, C.C.A.
(37) R. v. MacDonald (1928) 21 Cr.App.R. 26, C.C.A.
(38) R. v. Smith (1919) 14 Cr.App.R. 74, C.C.A.
(39) Republic v. Afua Kyaa, High Court, Kumasi, 18 August 1971, unreported. (40) R. v. Charavanmuttu (1929) 21 Cr.App.R. 184, C.C.A.
(41) State v. Kwaku Badu, High Court, Kumasi, 7 December 1964, unreported. [p.437] of [1971] 2 GLR 433
(42) State v. Taylor, High Court, Kumasi, 2 February 1970, unreported.
(43) Fulani v. The Republic, High Court, Kumasi, 19 June 1970, unreported; digested in (1970) C.C. 78.
NATURE OF PROCEEDINGS
APPLICATIONS for bail pending appeal. The facts are fully stated in the judgment of Taylor J.
COUNSEL
Orleans Pobee for the applicants.
J.C. Amonoo-Monney, Senior State Attorney, for the Republic.
JUDGMENT OF TAYLOR J.
This is an application for bail pending appeal. In my opinion it is a matter of great moment and of the utmost importance and calls for very anxious and serious consideration. This is because it involves the proposition that a person who has been found guilty and convicted by a court of competent jurisdiction and whose sentence of imprisonment has not been set aside must nevertheless be let loose on the community instead of his staying in prison to serve a sentence which is prima facie deserved. The matter becomes even more serious where the conviction is not by a grade II district court, manned as such courts are by lay magistrates, but by a judge at the circuit court. In dealing with this matter I must surely not lose sight of the fact that once a convict sentenced to a prison term is encouraged and permitted to be at large the appellate court on grounds of humanity is often in a dilemma and reluctant to send the said convict back to prison. In this connection I recall that in Republic v. Kwadu [1971] 1 G.L.R. 272 in the course of the argument and before the decision of the Court of Appeal in Republic v. Amadu Fulani [1971] 1 G.L.R. 44, C.A., I took the view, compelled by the decision of the Court of Appeal in Republic v. Asare (T.O), Court of Appeal, 29 July 1968, unreported; digested in (1968) C.C. 137, that a sentence of seven years may very well be outside the jurisdiction of the circuit court. Since the appellant had served about three years I thought this appeal against sentence had a prospect of success and accordingly I granted him bail pending the hearing and determination of the appeal. As it turned out the appeal in Republic v. Kwadu (supra) against sentence on the ground of lack of jurisdiction was dismissed and I have no doubt that in reducing the sentence from seven years to three years, I was very much influenced, apart from the other reasons given in the judgment, by the encouragement which I had given the appellant by granting bail. In the case of State v. Halm delivered by the Court of Appeal on 27 July 1967, unreported, the applications for bail by the applicants were refused. Subsequently on 4 June 1968 the appeals against convictions were allowed by the Court of Appeal and they were set free (Court of Appeal 4, June 1968, unreported; digested in (1968) C.C. 123). The Republic applied to the full court for review of the acquittals and on 7 August 1969 the acquittals were set aside and the convictions were restored but instead of the previous prison terms fines were substituted (unreported; digested (1969) C.C. 155). There can be little doubt that the fact that they had been free before the appeal operated
[p.438] of [1971] 2 GLR 433
on the decision not to send them to prison. Incidentally the view of the Lord Chief Justice in R. v. Gott (1921) 16 Cr.App.R. 86 at p. 87, C.C.A. that it is dangerous for convicts to be on bail seemed to have been somehow vindicated in this case although strictly it was not a case of bail for one of the applicants, Ayeh Kumi, after the appeal had been allowed absconded before the hearing of the review by the full bench of the Court of Appeal.
In State v. Hawa Banda, High Court, Kumasi, 26 July 1965, unreported, Baidoo J. refused an application for bail in a ruling which set out in a most able manner the principles governing the grant of bail. However on 17 September 1965 the applications for bail were reviewed and Okyere Darko J. granted the application, the Republic not opposing. This is a case in which the appellant-applicants had been sentenced to terms varying from two to three years each by the circuit court presided over by His Honour Judge Anterkyi (as he then was). Subsequently Sarkodee-Adoo C.J. sitting at the High Court, heard the appeals and dismissed the appeals against convictions, but the appellants were not sent back to prison and I have no doubt that the grant of bail created a situation which must have made it undesirable for the court to send them to prison. This no doubt must be one of the reasons why the English courts have held and our courts would seem to have accepted it that essentially this sort of application is unusual and ought not to be granted save in exceptional and special circumstances. When for instance in R. v. Gregory (1928) 20 Cr.App.R. 185, the Court of Criminal Appeal granted bail to the applicant in his own recognisance it remarked at p. 185: “There are special and peculiar circumstances in this case, and it is not to be regarded as a precedent.”
Of course in an appropriate case the applicant-appellant could be, and is, sent back to prison although this frowned upon: see R.v. Lang & Rowe [1969] Crim.L.R. 97 and R. v. Cullis & Nash [1969] Crim. L.R. 155, It is therefore for this reason among others that bail pending appeal ought not to be dealt with lightly.
With this as a preliminary guiding principle, I shall avert to the facts briefly before I come to grips with the principles applicable in Ghana in regard to the grant of bail to appellants pending the hearing and determination of their appeals.
In this ruling the appellants-applicants herein will be referred to as the first and second applicants or simply at the applicants depending on the context. Together with four other persons the said applicants faced various stealing charges in all on 22 counts each contrary to section 124 (1) of the Criminal Code, 1960 (Act 29). The first applicant was charged on four such counts with stealing various sums totalling —N¢7,406.00 and the second applicant on seven counts of stealing sums totalling N¢5,253.46. They were charged with stealing the money of their employers, the Kumasi City Council. Their pleas were taken by the circuit court of 11 April 1969 and after a trial lasting almost two-and-a half years in which five lawyers appeared and evidence from 27 witnesses was recorded on at least 53 days, the applicants were convicted on 13 August 1971 in a judgment which
[p.439] of [1971] 2 GLR 433
was read in court on that day and the first applicant was sentenced to a term of twelve months’ imprisonment with hard labour, on each count on which he was convicted and the second applicant was given two years on each count, the sentences were in the case of each applicant to run concurrently.
The next day the applicants filed petitions of appeal and applied for a certified true copy of the judgment thus delivered but they have not succeeded even now in obtaining the said copy of the judgment. On 2 September 1971 the applicants by their counsel moved this court for bail pending the hearing and determination of their appeals. Their applications were supported by affidavits and it is necessary to examine the affidavits for the grounds of the applications. The relevant portion of the affidavit of the first applicant is set down hereunder in extenso:
“(2) On 11 April 1968 I appeared with five other persons charged on four counts of stealing various sums of money.
(3) After a trial lasting 28 months in the course of which 27 persons in all testified, judgment was given on 13 August 1971. I was convicted of stealing on all the four counts preferred and sentenced to a term of twelve months’ imprisonment with hard labour. Evidence was recorded on at least 53 of the days when this case came up for hearing; five counsel appeared in this case.
(4) On 14 August 1971 I lodged a notice of appeal against my conviction and applied for a copy of the judgment in this case. Unfortunately this is not yet available from the court.
(5) I was at all times material to this action the chief basic rates collector and was the head of the basic rates section of the Kumasi City Council.
(6) The charges for which I stand convicted are in respect of various sums of money which admittedly were collected from members of the public by my section and which it was my duty to pay into the council’s account at the Ghana Commercial Bank or to the council’s own cashiers.
(7) The bank statement of the council which was tendered as exhibit G at the trial did not reflect these sums and it was the contention of the prosecution that for that reason I had failed to pay these sums into the appropriate quarters.
(8) Counts 1 and 2 charged me for stealing N¢1,544.50 and N¢598.50 on 18 April 1967. My defence was that these sums had been paid into the Ghana Commercial Bank account of my employers by my assistant Osei Assibey the sixth prosecution witness and were evidenced by two pay-in-slips to be found in exhibit H4.
(9) with regard to counts 3 and 4 which charged the stealing of N¢2,371.50 and N¢2,891.50 on 5 December 1967 and 15 December 1967 respectively, my defence was that these sums had been paid by cash to a co-accused, the third accused person. At the trial exhibits E and E1 were tendered; these were receipts issued
[p.44] of [1971] 2 GLR 433
by the third accused person to me. The trial judge nevertheless rejected the defence holding that I had presented pay-in-slips to the third accused, which pay-in-slips were not produced at the trial.
(10) I am advised and verily believe the same to be true that the prosecution’s case implied that I had presented stamped pay-in-slips to the third accused person and the court had to give to counts 3 and 4 the same consideration as it had given to counts 1 and 2.
(11) Twenty-two counts of stealing had been preferred against me and five others and twenty pay-in-slips had been tendered in exhibits H1—10 which, it was contended by the prosecution, were forgeries in so far as they did not bear the genuine stamps of the cashier and assistant accountant of the Ghana Commercial Bank. It was also contended that the initials to the stamps of the counter cashier and the assistant accountant were not the genuine initials of officials of the Ghana Commercial Bank.
(12) An examination of exhibits H1-10 would clearly show that the impressions of the stamps of the counter cashier and the assistant accountant thereon were made in the case of each with one and the same stamp.
(13) Over the relevant period the eighth prosecution witness, one Samuel Ernest Osafo, then an assistant accountant at the main branch of the Ghana Commercial Bank, was the officer who initialled the stamp of the assistant accountant on pay-in-slips when the bank’s counting machine broke down, and exhibits U, U 1-6, produced from the archives of the bank were tendered with a view to establishing the marked similarity of his initials thereon to the initials to the stamp of the assistant accountant on exhibits H1-10.
(14) No expert evidence had been called in this regard and the trial court held that the initials on exhibits H1-10 were not those of the eighth prosecution witness.
(15) I am advised and verily believe the same to be true that the appellate court can itself examine the initials on these two sets of exhibits and come to conclusions of its own by a visual comparison of them.
(16) I am advised and verily believe the same to be true that the trial judge erred in law in not considering whether or not the initials on the two sets of document could not be of the same authorship; this error has occasioned a substantial miscarriage of justice to me.
(17) I am advised and verily believe the same to be true that having regard to the averments in paragraph (3) above, the volume of evidence involved, the fact of legal vacation, the length of the sentence imposed, and the further fact that even as at present the registry has not been able to make available to us a certified true copy of the judgment in this case, the hearing of the appeal is
[p.441] of [1971] 2 GLR 433
likely to be unduly delayed and I the applicant, who have always borne good character, will have served a substantial portion of the sentence.
(18) I am advised and verily believe the same to be true that having regard to the exhibits tendered, namely, exhibits H1—10 and V, V1—6 my conviction is prima facie erroneous in fact.
(19) I am advised and verily believe the same to be true that there are very good prospects of success on an appeal in so far as the exhibits clearly point to the eighth prosecution witness as the author of the initials to the stamps of the assistant accountant on the pay-in-slips.
(20) Throughout the trial I turned up duly and punctually any day that the case was called and there are persons of substance and good repute who are prepared to stand surety for me if bail is granted.”
The affidavit of the second applicant is as follows:
“(2) That I was convicted on seven counts of stealing and sentenced to a term of two years’ imprisonment by Her Honour Mrs. Owusu-Addo (as she then was) during my trial on 13 August 1971.
(3) That on 14 August 1971 I caused a petition for leave to appeal to be filed on my behalf and also caused an application to be made for a certified true copy of the judgment delivered by her ladyship Mrs. Owusu-Addo on 13 August 1971.
(4) That up to the time of making this application the said judgment has not been made available to me.
(5) That I am advised and verily believe that there was an occasion when the circuit court registry could not make the judgment available to the appellate court for some time in spite of a High Court order and repeated correspondence by the High Court registrar to the said circuit court registry to make same available.
(6) That I am also advised and verily believe same to be true that there had been an occasion when the appellant pleaded guilty in the lower court and yet it took over a year to make the record of proceedings available to the appellate court.
(7) That my trial covered a period of over 29 months, evidence was taken on at least 50 days and in all 27 witnesses were called.
(8) That I believe the record of proceedings and the judgment will not be made available to the appellate court for the next twelve months.
(9) That the total sum for which the first accused was convicted was N¢7,406.00 and total sum for which I was convicted was N¢5,253.26 yet the first accused was sentenced to twelve months, whilst I received a two-year sentence.
(10) That the case for the prosecution against me was that the various sums as mentioned in the seven counts were given to me to be paid into the account of the Kumasi City Council at the Ghana Commercial Bank, Kumasi.
(11) That these payments should have reflected in exhibit G as credit to the council.
[p.442] of [1971] 2 GLR 433
(12) That because the council was not credited with these amounts I had stolen them.
(13) That my defence was that I paid these various sums of money to the bank and did obtain from the bank paying-in-slips duly stamped by the bank.
(14) That these slips bore the stamp marked ‘assistant accountant’ and initials.
(15) That the initials on these slips were or could be those of the eighth prosecution witness.
(16) That during the hearing of this application I will seek leave through counsel for the court to make its own comparison between the genuine initial of the eighth prosecution witness and the initials on the disputed pay-in-slips, namely, exhibits, H, H1-H11.
(17) That I am advised and verily believe same to be true that among other grounds counsel will argue on appeal that having regard to all the circumstances a term of two years’ imprisonment is harsh.
(18) That I am advised and verily believe same to be true that a comparison between the exhibits mentioned in paragraph (16) supra is likely to make my appeal succeed.
(19) That in the premises I swear to this affidavit in support of counsel’s application for bail pending the determination of my appeal.”
Although the affidavits are long and detailed it seems to me that they reveal two grounds on which the applications are founded .
The first would seem to be that the judgment is prima facie erroneous in law and so it would cause grave miscarriage of justice to refuse bail and cause the sentence under such a judgment to be served.
The second ground as appeared from both affidavits is that the hearing of the appeal will be inevitably delayed and the delay will be unreasonable and the appellants will be forced to serve either the whole or a substantial portion of the sentence, so that if they won their appeals, their success would be meaningless.
Mr. Amonoo-Monney, counsel for the respondent, has not seen fit to resist the applications. He was the prosecuting counsel in the court below and although the Republic was served on 2 September 1971 and I heard arguments on 22 September 1971, no affidavit in opposition was filed by the Republic. Indeed counsel for the Republic has stated clearly that he is not opposing the applications.
Be that as it may I think I must keep in mind the warning of Lord Trevethin C.J. in the case of R. v. Gott (1921) 16 Cr.App.R. 86 t p. 87, C.C.A. In that case although the Crown was not represented the Lord Chief Justice said of bail pending appeal: “This is a class of case in which bail is dangerous.” Therefore although counsel is not opposing the application, I think I have a duty to scrutinise the grounds of the application to find out whether they are in fact grounds in the circumstance of
[p.443] of [1971] 2 GLR 433
this case on which bail can be granted and ought to be granted by this court. In this connection I recall the ruling of Baidoo J. in the Kumasi High Court case of State v. Hawa Banda (supra) already referred to. In that case the state attorney appearing for the State did not oppose the application for bail, nevertheless Baidoo J. reviewed in quite an exhaustive manner the relevant authorities on these applications for bail and in the rightful exercise of his discretion he refused the application. This is in accordance with the accepted practice for in R. v. Howeson & Hardy (1936) 25 Cr.App.R. 167, C.C.A. although the Director of Public Prosecutions did not support or oppose the application but rather left it entirely to the court, nevertheless the court refused the application. It seems, therefore, that the fact that the Republic do not oppose the applications means no more than that they are in no position to offer argument to assist the court against the grant, but there may very well be arguments against the grant which an independent examination by the court may reveal. Now the power of this court to grant bail to an appellant pending his appeal is contained in section 332 (1) of the Criminal Procedure Code, 1960 (Act 30), 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.”
I am aware that in State v. Owusu, Court of Appeal, 22 June 1967, unreported; digested in (1967) C.C. 111 to be discussed later in this ruling, Ollennu J.A. in delivering the reasons for the ruling of the Court of Appeal said that section 332 (1) of Act 30 relates to bail before conviction and not to bail after conviction, but as Amissah J.A. sitting as an additional judge of the High Court on 9 October 1967 so
ably demonstrated in the State v. Asiedu, unreported; digested in (1968) C.C. 4, this is clearly an obvious error and must therefore be considered to be per incuriam. In fact if the State v. Djaba, Supreme Court, delivered on 20 June 1966, unreported, to be discussed later in this ruling and State v. Owusu (supra) were critically examined, it will be obvious that in the latter case the Court of Appeal intended by its observation referred to herein, to draw a distinction between bail pending appeal to the Court of Appeal after a conviction by the High Court itself, which is provided for in paragraph 20 (2) of the Courts Decree, 1966 (N.L.C.D. 84), and bail pending appeal to the High Court following a conviction by a district court or circuit court which is provided for in section 332 (1) of Act 30, and it was in seeking to draw this distinction that the court inadvertently said, “section 332 (1) relates to bail before conviction and not to bail after conviction.” I think the section obviously applies to the grant of bail to an appellant at the High Court pending the hearing of his appeal at the High Court.
I must remark though that quite a number of such applications are made to the High Court, thus giving the impression that many practitioners and convicted persons think the grant of bail to appellants pending
[p.444] of [1971] 2 GLR 433
the hearing of their appeals is a formality. It is amazing that this should be the case especially in Kumasi after the admirable ruling and timely warning of Baidoo J. in the State v. Hawa Banda (supra) delivered on 26 July 1965. In that case Baidoo J. made the following remarks which are true now as when they were first made:
“From the great number of applications for bail submitted to the High Court to deal with and from the nature of the applications generally submitted for bail, it appears that it is the prevalent opinion that a person convicted and sentenced is entitled as of right to get bail pending appeal and that the High Court has power to grant bail indiscriminately to whoever applies for it. I must hasten to correct this false notion and to point out that whoever has this impression is labouring under a delusion. The authorities show that there is a marked distinction between granting bail before conviction and granting bail after conviction: The High Court is vested with jurisdiction to grant bail either before or after conviction but the exercise of the court’s jurisdiction is governed by considerations which differ in either case.”
I am in entire agreement with these observations and I have in a number of decisions refused bail to many appellants but in view of these persistent applications it seems to me that an elaborate decision setting down the principles deducible from the authorities may be useful. The local history of the principles governing applications for bail has been a chequered one and the principle which the courts in this country have applied has not been consistent nor has the enunciation of the principle been uniform.
On 12 March 1935 Butler-Lloyd Ag. C.J. sitting as a single judge of the West African Court of Appeal laid down in a most emphatic manner the principles or conditions applicable to the grant of bail to an appellant pending the hearing and determination of his appeal. He said in R.v. Tunwashe (1935) 2 W.A.C.A. 236, where the ex Awujale of Ijebu Ode was applying for bail pending appeal after his conviction:
“From a careful examination of the reported cases it is clear:
(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 put it in another way, in the absence of special circumstances bail will not be allowed unless a refusal would have the result of a considerable proportion of the sentence being served before the appeal can be heard.”
[p.445] of [1971] 2 GLR 433
It seems clear therefore that in the view of Butler-Llyod Ag.C.J. bail pending appeal can only be given in two and only two instances; the first instance is where the appellant can show special circumstances, a factor which will obviously vary from case to case and the second instance is where the hearing of the appeal is likely to be delayed having regard to the length of the sentence. The first instance may be related to the substance of the case and the trial, the second instance would seem to have nothing to do with the substance of the appeal, it being concerned substantially with delay in hearing the appeal.
For over 30 years after Butler-Lloyd Ag.C.J. (as he then was) had thus formulated these principles at the West African Court of Appeal in this Nigerian case they were accepted in our courts apparently without question. Indeed on 7 May 1965 Boison J. in the State v. Nti alias Berko, High Court, unreported; digested in (1965) C.C. 170 re-stated these principles quoting the said decision of Butter-Llyod Ag. C.J., and he held that bail should be granted if a refusal would result in a considerable proportion of the sentence being served before the appeal is heard and that in the absence of this there must be “exceptional circumstances.” He held further, however, that the likelihood of the appeal succeeding even on “concrete points of law” is not an exceptional circumstance within the rule and ought not to be considered when a court is deciding whether or not to grant bail pending appeal. This last holding it would seem is not supported by the English case of R. v. Wise (1922) 17 Cr.App.R. 17, C.C.A. to be discussed late on in this ruling, nor is it supported by some subsequent observations of Akufo-Addo C.J. when he delivered the ruling of the Court of Appeal in State v. Halm (supra), 27 July 1967, unreported. In that case the Court of Appeal seemed to have hinted that if the action before it justified the view that the appeal would probably succeed, the decision in that case refusing bail might very well have been different. This is what the court said per Akufo-Addo C.J.: “We do not go so far as to say that the appeal has no chance of success. The appeal may well succeed, but on the material presently before us, we are unable to say that it probably will succeed.”
Leaving aside therefore for the moment the controversial question of whether the likelihood of the appeal succeeding is within the rule, it seems the principle in R. v. Tunwashe (supra) remained unimpaired for a long time, although what is “exceptional circumstance” remained undefined thus giving the courts elbow room to shift in appropriate cases. In excluding the likelihood of the appeal succeeding from the exceptional circumstances aspect of the rule it seems Boison J. was not without some support of a sort for in R. v. Joseph Davidson (1927) 20 Cr.App.R. 66, C.C.A. the learned judge of the trial court expressed surprise at the verdict of the jury and granted his certificate to facilitate an appeal, but the Court of Criminal Appeal per Swift J. apparently disapproved the grant of bail by the trial judge. Swift J. said at p. 67:
[p.446] of [1971] 2 GLR 433
“This Court has repeatedly laid it down that it will not grant bail to a prospective appellant except in very special circumstances: The Duke of Leinster, 17 Cr.App.R. 147: 1923. We are not aware of any special circumstances in this case.”
I would have thought the surprise of the trial judge is an indication that he thought the verdict may not be right and this indicates that there is a likelihood of the appeal succeeding but apparently the Court of Criminal Appeal thought differently for Swift J. observed further at p. 67: “In any case, the judge’s opinion was not conclusive of an appeal; it was one factor: F. Rice, 20 Cr.App.R. 21.”
In any case other authorities to be discussed in this judgment would seem to hold very clearly that “likelihood of success” is a ground for granting bail. However, considerable doubt was cast on the view of the law thus expressed by Boison J. and Butler-Llyod Ag.C.J. in a ruling of Wiredu J. on 22 April 1966 in State v. Henry Djaba, High Court, Accra, unreported; digested in (1966) C.C. 108. In that case Wiredu J. said:
“In my opinion 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 his sentence, 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.
Justice should not be given piecemeal or rationed. It is so given piecemeal or rationed to know that, though there is a chance of success in the appeal yet since there are no exceptional circumstances (which are undefined), the appellant must remain confined till the hearing; for if he happens to be successful there is no redress, compensation or remedy and all that time is wasted: In my opinion, therefore, the conditions governing granting of bail pending appeal under our Code should be:
(1) from the record is there a chance of success in the appeal;
(2) will the appellant turn up at the hearing;
(3) would his or her imprisonment he worked hardship in case of success.”
Ground (2) adverted to by Wiredu J. seemed to be a ground for granting bail before conviction and not pending appeal and there does not seem to be any authority supporting it as a ground for granting bail pending appeal. Ground (3) is difficult to understand as a ground for I cannot see what other answer could be given to the question posed but “yes.” I have not come across any authority supporting this ground.
Applying these principles Wiredu J. granted bail to the appellant. He seemed to have granted the bail for four reasons as appears in the following pronouncement he made immediately he formulated his three principles above. The fourth reason is italicised hereunder:
[p.447] of [1971] 2 GLR 433
“With these as my guiding principles I am of 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 foundations of the whole case as to whether the facts and evidence constitute an offence at all.
It has been submitted also that the applicant came down himself for the trial from overseas and hence there is no likelihood of his absconding.
Imprisonment necessarily works hardship and with no remedy or compensation or redress when one is eventually let off. The case took a long time to hear and the judgment alone covers 97 pages. Applicant has been in custody for about a year already and there is every reason to believe that the record would take a long time to be got ready:
For these reasons bail is granted in the sum of £G300,000 with three sureties of £G100,000 each to be justified.”
In this decision of Wiredu J. the West African Court of Appeal decision of Butler-Lloyd Ag.C.J. in R. v. Tunwashe (supra) was seriously doubted and Wiredu J. went so far as to say that in Ghana, “Our law, however, does not call for any special circumstances.”
This was revolutionary indeed and must have upset what to many was a well settled legal position. When the State appealed from the decision to the erstwhile Supreme-Court that court would seem to have substantially agreed with Wiredu J. for Sarkodee-Adoo C.J. in the appeal State v. Djaba, Supreme Court, 20 June 1966, unreported, reading the reasons for the judgment of the court, refused to be bound by the English decisions as Wiredu J. had apparently refused to follow them. He said:
“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 constitutes 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 which are not binding on this court.”
Having thus debunked the English principles Sarkodee-Adoo C.J. attempted to come to grips with the appeal:
“In the present case the question we had to decide was whether or not the learned judge erred in law in granting bail 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.”
[p. 448] of [1971] 2 GLR 433
Apparently holding that Wiredu J. has not exercised his discretion wrongly the appeal was dismissed and thus the principles he enunciated governing the grant of bail were by the decision approved. This is rather curious for the former Supreme Court would seem to say that there are no principles governing the grant of bail pending appeal, the matter resting on undefined discretion of the court and yet in his judgment Wiredu J. specifically laid down principles which governed him in granting bail. It seems to me that the decision of the Supreme Court is rather unsatisfactory because the court seemed to be blowing hot and cold. In one breath it said there were no principles and in the other it approved by its silence and decision the principles enunciated by Wiredu J. If it had dealt with the Wiredu principles specifically and approved them with reasons the subsequent strictures of Ollennu J.A. in State v. Owusu (supra) may have been indefensible in view of the doctrine of judicial precedent.
It is indeed a matter for regret that the erstwhile Supreme Court merely based its decision on the right or wrong exercise of discretionary power without dealing specifically with the principles enunciated by Wiredu J. Although Wiredu J. specifically enunciated three principles, yet in granting the bail he seemed to have added and been influenced by a fourth underlined above, namely, that the appellant-applicant had been in custody for a year already and the record was not yet ready and that there were reasons “to believe that the record would take a long time be got ready.”
The view of the law relating to the grant of bail on ground of the existence of debatable issues thus put forward by Wiredu J. and acquiesced in by the erstwhile Supreme Court was on the 22 June 1967 in the case of the State v. Owusu (supra) criticised by the Court of Appeal strongly constituted.
In that case the only ground urged on the Court of Appeal for the grant of bail was stated thus by Ollennu J.A.:
“Counsel for the appellants contended that the allegation that the trial judge ‘grossly misdirected himself on the law relating to admission in criminal matters’ together with points raised in the grounds of appeal already filed against conviction, show that there are ‘valid debatable issues’ raised on the appeals 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, Supreme Court, 20 June 1966, unreported that the court should grant the application for bail.”
In refusing the application for bail the Court of Appeal per Ollennu J.A. remarked: “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 are laid down in the English cases and in the local cases cited to them. Very clear principles are laid down as to the circumstances
[p.449] of [1971] 2 GLR 433
in which alone the court may exercise its discretion to grant bail after conviction. These principles have been summarised in R. v. Tunwashe (supra).”
After re-stating the principles enunciated by Butler-Llyod Ag.C.J. in R. v. Tunwashe (supra) the Court of Appeal added a third principle:
“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.”
One thing that is rather unfortunate about the celebrated and oft quoted case of R. v. Tunwashe (supra) is that the reported cases from which Butler-Lloyd Ag.C.J. elicited his principles were not set down in the judgment. R. v. Gott (1921) 16 Cr.App.R. 86, C.C.A. already referred to here was indeed referred to but only to draw attention to the view of the Lord Chief Justice that if such an application were granted the court could thereafter never consistently refuse bail. Two local cases R. v. Lawrence and R. v. Riegels (both cases unreported) were referred to. It seems that in the first of the local cases the trial judge had indicated some doubt as to the correctness of his own decision on a point of law and pending the decision of the Full Court on a case he had stated, he granted bail. In view of the decision of the English Court of Criminal Appeal in R. v. Davidson (1927) 20 Cr.App.R. 66, C.C.A. already referred to (a decision it is probable Butler-Lloyd Ag.C.J. was aware of) it seems odd that in R. v. Tunwashe (supra), there was no adverse comment on R. v. Lawrence (supra). Of course I have not had the advantage of seeing and reading the full report in R. v. Lawrence, but if the point decided is as was adverted to by Butler-Lloyd Ag.C.J. in R. v. Tunwashe (supra), then it would seem to conflict perhaps only slightly with R. v. Davidson (supra).
The second local case referred to, R. v. Riegels (supra) was said to be a decision of the Full Court on 6 July 1932. In that case as stated in R. v. Tunwashe (supra) at p. 237 the trial judge had refused to state a case and on the application made to the Full Court to order him to state a case, bail was granted on 6 July 1932 by the Full Court for two reasons:
(1) “[T]he sentence was one of twelve months [and] the Full Court would not be sitting until late October.”
(2) “[T]he case involved complicated questions of account for the investigation of which free communication between client and counsel was essential.”
It seems however that in re-stating the principle enunciated in R. v. Tunwashe (supra) and adding a third principle the Court of Appeal was clearly extracting these principles not only from R. v. Tunwashe but also from a number of cases cited to the erstwhile Supreme Court in State v. Djaba (supra). These cases are set down in Archbold, Criminal Pleading, Evidence and Practice (35th ed.), p. 355 at para. 882. They are as follows: R. v. Gordon (1912) 7 Cr.App.R. 182, C.C.A.; R. v. Gott (1921) 16 Cr.App.R. 86, C.C.A.; R. v. Wise (1922) 17 Cr.App.R. 17, C.C.A.; R. v. Fitzgerald (Duke of Leinster) (1923) 17 Cr.App.R. 147, C.C.A.; R. v. Selkirk (1925) 18
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Cr.App.R. 172, C.C.A.; R. v. Davidson (1927) 20 Cr.App.R. 66, C.C.A.; R. v. Klein (1932) 23 Cr.App.R. 173, C.C.A.; R. v. Starkie (1932) 24 Cr.App.R. 1, C.C.A.; R. v. Tarran, The Times, 16 December 1947; R. v. Howeson and Hardy (1936) 25 Cr.App.R. 167, C.C.A. The case of R. v. West [1948] 1 K.B. 709, C.C.A. was also adverted to in Archbold but it seems the reference in Archbold is a mistake and the case as reported has nothing to do with bail. These cases it seems are unsatisfactory and they seem to me to have been rather either scantily reported or if fully reported then the English Court of Criminal Appeal did not seem to have gone into the reasons in any great detail; and in some of the cases the editors of the reports seem to have proffered their own reasons for the decision as appears in R. v. Selkirk (supra). The editor of Archbold does not seem to have read this case very carefully because in fact the application for bail made on 16 February 1925 which was what was being reported was refused and no reasons were given for the refusal.
Now it seems to me that these cases deserve a second close look. This is because in a subsequent case State v. Halm (supra) already referred to, the Court of Appeal per Akufo-Addo C.J. while purporting to confirm the principles as re-stated in State v. Owusu (supra) also stated the principles in a form which seemed to differ from the principles as stated by Ollennu J.A. as aforesaid. Furthermore, it is noteworthy that in criticising the erstwhile Supreme Court’s handling of the case of State v. Djaba (supra) the Court of Appeal did not deal with the three other reasons already referred to herein which Wiredu J. relied upon in granting bail at the High Court, reasons which the erstwhile Supreme Court would seem to have approved, three reasons each of which if well founded may very well justify the grant. In the circumstance it seems as if the point taken by the erstwhile Supreme Court on the question of jurisdiction to grant bail if debatable issues exist, was the only point on which the decision was faulted.
In State v. Owusu (supra) it will be recalled that Ollennu J.A. gave three classifications. For ease of reference they are as follows:
(1) Bail will not be granted pending an appeal save in exceptional circumstances.
(2) Bail will not be granted pending an appeal save where the hearing of the appeal is likely to be unduly delayed having regard to the length of the time which must elapse before the appeal can be heard and the length of the sentence to be appealed from.
(3) Bail will not be granted pending an appeal save 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 State v. Halm (supra) the Court of Appeal would seem to have laid down only one condition for the grant of bail pending an appeal. Akufo-Addo C.J. reading the ruling of the court after approving State v. Owusu (supra) said:
[p. 451] of [1971] 2 GLR 433
“The grant of bail to a convicted prisoner pending the hearing of his appeal is an unusual course which may be adopted only in exceptional circumstances. Such exceptional circumstances may be that (1) the conviction is prima facie wrong and the appeal therefore has obvious prospects of success. Coupled with this is: (2) the probability that having regard to the shortness of the sentence imposed the hearing of the appeal may be unduly delayed. Another such exceptional circumstance may be the absolute necessity for the appellant to be free to help his adviser in the preparation of the appeal.”
The emphasis is mine.
On this principle it seems the first condition enunciated by Ollennu, J.A. in State v. Owusu (supra) is the only principle and that the other two conditions adverted to by Ollennu J.A. are only instances of the application of the said principle. It is rather interesting that the erstwhile Supreme Court in its decision in State v. Djaba (supra) which was disapproved by the Court of Appeal in State v. Owusu (supra), came to a conclusion very much like that of Akufo-Addo C.J. for in that decision it will be recalled Sarkodee-Adoo C.J. remarked:
“With reference to the condition governing granting of bail pending an appeal as laid down in the English reported cases, no settled rules are formulated as to what constitutes exceptional or special circumstances, and an examination of the reported cases cited on behalf of the appellants merely shows instances within the principle but no exhaustive conditions governing granting of bail pending the hearing of an appeal.”
Now which is the correct view? It seems to me that since these principles were culled from the English cases it is necessary to examine the cases to see which view is correct or whether the two principles can stand side by side. It is unfortunate as I have already pointed out that the English cases on bail pending appeal are often inadequately decided and reported. For instance in R. v. Greenberg (1923) 17 Cr.App.R. 106, C.C.A., Curtis Bennett, counsel for the applicant, is merely reported as renewing an application for bail pending appeal which he had apparently previously made before Swift J. Lord Hewart C.J. without indicating any ground which had been urged on him merely refused the application in a short sentence at p. 107: “No. It is only in very exceptional cases that bail is allowed by this Court.”
In R. v. Gordon (1912) 7 Cr.App.R. 182, C.C.A. the first of the cases in Archbold, bail was applied for on the ground that there were 180 exhibits, that the appellant was on bail during the trial and that be had to go into the matter for the conduct of his appeal. The Court of Criminal Appeal refused the application and held at p. 183 that: “No sufficient reason has been shown to the Court why the unusual course should be taken of granting bail to a convicted person.”
In R. v. Gott (1921) 16 Cr.App.R. 86, C.C.A. already referred to the ground of the application was that the appellant was in bad health, he
[p.452] of [1971] 2 GLR 433
had been convicted of the offence of blasphemy by Avory J. sitting with a jury and he was sentenced to nine months’ imprisonment with hard labour. One jury had disagreed about his guilt. The Court of Appeal held at p. 87 following R. v. Gordon (supra): “This is a class of case in which bail is dangerous.”
In R. v. Wise (1922) 17 Cr.App.R. 17, C.C.A. the applicant for bail was convicted of arson by Swift J. and sentenced to three years’ penal servitude. On 21 August 1922 his application for leave to appeal against his conviction came before Lord Hewart C.J., Greer J. and Swift J. who had convicted him. Counsel applied for bail on the ground that the application for leave to appeal could not be heard that day as Swift J. was the presiding judge at the lower court and further that if the applicant was allowed bail it would be of assistance in preparing his case for appeal.
Lord Hewart in dismissing the application for bail ruled at pp. 17-18:
“The appellant was convicted of arson and sentenced to three years’ penal servitude. He has formulated an application for leave to appeal against conviction and sentence, which is not at present before the Court, and he now asks for bail.
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 to appeal if the appellant were released.
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”.
The emphasis is mine.
In R. v. Fitzgerald (Duke of Leinster) (1923) 17 Cr.App.R.147, C.C.A. the applicant was convicted on 3 July 1923 of obtaining credit without disclosing that he was an undischarged bankrupt, but the recorder postponed sentence and granted a certificate of appeal. Apparently in the meantime he was committed into custody pending sentence to the next session which would commence on 16 July 1923.
The applicant applied for bail pending the hearing of his appeal. The ground of the application was that the trial judge did not take a serious view of the case and had ordered his detention with a promise that on 16 July 1923 he would release the applicant. The appeal however could not come on till about 23 July 1923 at which time the appellant would have served his period of detention. In refusing the application for bail the Court of Criminal Appeal per Sankey J. (as he then was) quoted at p. 148 the following cases already discussed in this ruling, namely, R. v. Gordon (supra); R. v. Gott (supra) and R. v. Wise (supra) and said: “This Court has frequently laid down that it will not grant bail unless there are exceptional and unusual reasons . . . and there are no such reasons in this case, and the Court will not grant this application.” The emphasis is mine.
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It is strange that the court should refer to R. v. Wise (1922) 17 Cr.App.R. 17, C.C.A. to support the proposition propounded. In R. v. Wise (supra) it seems the application for bail was based on two grounds. The first being that the case could not come on on the day fixed since the trial judge was a member of the appeal panel and the second was that the bail would enable the applicant to be free to prepare his appeal. The court thought there was nothing wrong with the trial judge sitting on the appeal panel and with regard to the second ground the court thought bail might very well be given in appropriate cases if it will assist the applicant in preparing a real case for appeal. It seemed to have added that bail could also be granted if there is any prospect of success on appeal. These, it would seem from the decision, were substantial grounds for allowing bail quite apart from the other ground, namely, “exceptional or unusual circumstances.”
The report of R. v. Selkirk (1925) 18 Cr.App.R. 172, C.C.A. is somewhat unsatisfactory. The applicant was convicted on 6 December 1924 of conspiracy to defraud and was sentenced to four months’ imprisonment with hard labour. It looks as if on 18 December 1924 an application was made to the Court of Criminal Appeal on two grounds, namely, criminal intent was not proved so presumably there were prospects of success on appeal and secondly the sentence was short and if the appeal were not heard by the middle of January the sentence would have been substantially served. The Crown was unrepresented. The court granted bail without giving any reasons but in the headnote of the report (p. 172) it is said, “In the case of a short sentence, where an appeal cannot be speedily heard the Court may grant bail,” and yet the court did not indicate on which of the two grounds it was granting bail.
On 16 February 1925, it seems the application for bail was heard and the Crown was this time represented. The application was dismissed by the Court of Criminal Appeal. In view of this and having regard to the grounds urged on the Court of Criminal Appeal the headnote does not seem to be helpful particularly as no reasons were given for dismissing the application. I think R. v. Selkirk (supra) is a most unsatisfactory report and it is not safe to rely on it although the proposition of law stated in the headnote unsupported as it is by the case itself would seem to be supported by other authorities. The editors of Archbold do not seem to have considered the case very closely. R. v. Davidson (supra) has already been discussed. In that case the trial judge is alleged to have said that the verdict of the jury “came somewhat as a surprise.” It would seem from the decision that if he had said “he was dissatisfied with the verdict,” the Court of Criminal Appeal would not have criticised his grant of bail in ‘the circumstance. This case may very well be one of the cases in which bail will be granted if the conviction is either prima facie wrong or an appeal is likely to succeed for I think a conviction may be said to be prima facie wrong if the trial judge thinks so although the appellate court did not think so.
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In R. v. Klein (supra) and R.v. Howeson & Hardy (supra) already discussed the court held that bail would not be granted save in exceptional circumstances and in R. v. Starkie (1932) 24 Cr.App.R. 1 at p. 2, C.C.A. Swift J. pointed out that the mere fact of the existence of the long vacation is not an exceptional circumstance within the rule and held that in R. v. Newbery & Elman (1931) 23 Cr.App.R. 66, C.C.A; R.
- Stewart (1931) 23 Cr.App.R. 68, C.C.A.; R. v. Harding (1931) 23 Cr.App.R. 143, C.C.A. and R. v. Waxman (1930) 22 Cr.App.R. 81, C.C.A., in each of which it would seem bail had been granted because of the delay which would be caused by the long vacation, the fact that in each of the cases the applicant had previously been of good character was relevant to the reasons for the grant, so that the long vacation per se is no ground for granting bail.
It does not seem of course that the English courts have been consistent in their reasons for granting bail. In R. v. Sykes (1930) 22 Cr.App.R. 84, C.C.A. in consequence of allegations made by the applicant, the appeal was adjourned for investigation and the applicant was released on bail. The allegations were subsequently found to be groundless. This case should be contrasted with R. v. Berry (1924) 18 Cr.App.R. 65, C.C.A. where the appellant was convicted of rape and sentenced to 21 months’ imprisonment. He appealed to the Court of Criminal Appeal and apparently the court granted leave because certain matters which did not appear at the trial were brought to the notice of the court and it seemed to the court that the matter should be investigated and pending the investigation the appellant was granted bail. The allegations were found to have substance and the appellant was acquitted. In R. v. MacDonald (1928) 21 Cr.App.R. 26, C.C.A. in which Swift J. was a member of the appeal panel the period of the long vacation was apparently considered relevant although the question of the good character of the applicant was not in issue which would seem to conflict with the subsequent view of Swift J. in R. v. Starkie (supra). In R. v. Smith (1919) 14 Cr.App.R. 74, C.C.A. the appellant had been sentenced to three years’ penal servitude for rape. He is not shown to have applied for bail but the court itself in adjourning the appeal said per Lord Reading C.J. at p. 76:
“This appeal involves the important question whether it is essential that, where a person is accused of rape, the prosecutrix’s evidence should be corroborated in a material particular implicating the accused. We think it advisable that that point should be argued before a full Court. It is not possible to constitute a full Court during the present sittings, and the appeal will therefore be adjourned until the next. In the meantime the appellant will be released on his own bail.”
The emphasis is mine.
If there is any case which would seem to support Wiredu J. in State v. Djaba, High Court (supra) it may very well be this case. It seems the court held that where there is an arguable point, it must be one pointing to a likelihood of success and since there will be some delay
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bail was being granted. On 18 August 1971 in the case of the Republic v. Afua Kyaa, High Court, Kumasi, Cr.App. No. 196/71, Owusu Addo J. on an application for bail pending an appeal held as follows:
“Having read the motion papers and judgment of the trial court and having heard the very able and convincing arguments of counsel for the applicant and the state attorney, there is every likelihood that the appeal against the conviction of stealing in the case will succeed. In the circumstance the application is granted.”
The emphasis is mine.
This is also not unlike the case of R. v. Smith (supra), a case of arguments which point to a likelihood of the appeal succeeding. This would seem to be one reason why bail was granted in Djaba’s case and of which the Court of Appeal in State v. Owusu (supra) said:
“The grant of bail after conviction, namely, upon ground that there is a debatable issue in the appeal against conviction as was done in the State v. Djaba is inconsistent with the well-known principles of law and creates a precedent based upon no principles.”
It is regrettable that R. v. Smith (supra) was not cited to our Court of Appeal. On the other hand in R. v. Greenberg (supra) although there were arguable matters bail was refused but on the hearing of the appeal the conviction was quashed: see 17 Cr.App.R. 107 at p. 109.
One case which is cited in Archbold (supra), para. 882 and which laid down a clear principle is R. v. Tarran, The Times, 16 December 1947. In that case bail was granted pending appeal “in view of the fact that owing to the length of the transcript of shorthand notes the appeal would probably not be heard until the end or after the expiration of the sentence.” See Archbold (supra), para. 882. In R. v. Cullis & Nash [1969] Crim.L.R. 155, the appellants, Cullis and Nash, were granted bail after leave to appeal had been granted them and the reasons for the grant of bail were “because of the shortness of their sentences and the likely delay in obtaining a transcript of evidence.”
It seems therefore from the above authorities that bail is granted pending appeal by the English courts on the following grounds:
(1) If there are exceptional or unusual grounds for the application: see R. v. Gordon (supra); R. v. Gott (supra); R. v. Fitzgerald (Duke of Leinster) (supra); R. v. Klein (supra); R. v. Howeson & Hardy (supra); R. v. Starkie (supra) and R. v. Davidson (supra);
(2) If there is a likelihood of the appeal succeeding: see R. v. Wise (supra); R. v. Smith (1919) 14 Cr.App.R. 74, C.C.A.; R. v. Waxman (1930) 22 Cr.App.R. 81, C.C.A.; R. v. Charavanmuttu (1929) 21 Cr.App.R. 184, C.C.A.;
(3) If it is a case of such a nature where it would be of assistance for the preparing of a real case for appeal that the appellant should be free to confer with his counsel and prepare his appeal: see R. v. Wise (supra); R. v. Waxman (supra); R. v. Starkie (supra) and R. v. Charavanmuttu (supra); and
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(4) 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 and in consequence the hearing of the appeal is likely to be unduly delayed resulting in the appellant serving the whole or substantial portion of his sentence: see R. v. Waxman (supra); R.v. Charavanmuttu (supra); R. v. Tarran (supra) and R. v. Cullis & Nash (supra).
It seems clear that in R. v. Smith (supra) already discussed, bail was granted because there was an arguable point. This it would seem is one of the reasons why Wiredu J. granted bail in Djaba’s case and in fairness to Wiredu J. it seems if the arguable point or debatable issue is such as to make it likely that the appeal will succeed, then it is a good enough ground of the decision of Wiredu J. in State v. Djaba (supra) shows clearly that by debatable issues he means no more than that the appeal is likely to succeed. If this is so then the criticism levelled at the decision of the erstwhile Supreme Court may very well be unfortunate for in fact that case did indeed succeed on appeal, and it seems this ground is based on an appellate court’s perspicacity and competence to forecast properly the chances of success of appeal. The result in the Djaba case can only mean that Wiredu J. and the erstwhile Supreme Court were right in thinking at the time that there was likelihood of success. The ground of likeliness of the appeal succeeding follows logically from another 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 seems to be no reason why 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.
By the decision in State v. Owusu (supra) it seems we have rejected the ground relating to debatable issue although it seems to me that the argument rejecting it must be considered hair splitting. The erstwhile Supreme Court and the Court of Appeal may very well be at cross-purposes perhaps because of inelegant language, but in substance they both no doubt had in mind the likelihood of the appeal succeeding.
In Ghana therefore it is clear that by the cumulative effect of the two Court of Appeal cases State v. Owusu (supra) and State v. Halm (supra), it seems we have accepted grounds (1), (2), (3) and (4) above, although in State v. Halm (supra) Akuffo-Addo C.J. would seem to have accepted ground (1) above as the paramount ground and to have held that grounds (2) and (4) must coalesce and be considered together as an instance of ground (1). Ollennu J.A. did not advert to ground (3) but Akuffo-Addo C.J. did advert to it as also an instance of ground (1). Whether one looks at grounds (2), (3) and (4) as a instances of ground (1) or considers each ground as a substantial and independent ground it seems the result will be the same. It seems, however, that the view of Akufo-Addo C.J. that grounds (2) and (4) are cumulative conflicts with the view of Butler-Lylod Ag.C.J. in R.v. Tunwashe (supra) and the view of Ollennu J.A. in State v. Owusu
[p.457] of [1971] 2 GLR 433
(supra) and the two views it seems the view of Ollennu J.A. is more in consonance with the English and local authorities and must be preferred. The grounds in Ghana are therefore substantially identical with the English grounds and they would seem to be the same as the (4) above although in Ghana the English ground (2) seems to have been formulated differently. In State v. Hahn (supra), it was formulated as follows: If “the conviction is prima facie wrong and the appeal therefore has obvious prospects of success,” and in State v. Owusu (supra) the third ground added by Ollennu J.A. already referred to is the second ground. I am not aware of any English decision where it has been so formulated and perhaps it is only in this respect that our principles differ from the English. I can quite imagine a case where the conviction is not prima facie erroneous but in which legal arguments can be put forward to show that the appeal is likely to succeed, as no doubt happened in Djaba’s case. By our formulation bail should be refused, by the English formulation it will be granted. Perhaps the Supreme Court will one day clarify the position if the present argument is not merely a quarrel over words. In Ghana therefore ground (1) of the English grounds spelled out above has been accepted and is supported by the following authorities: R. v. Tunwashe (supra); State v. Owusu (supra); State v. Halm (supra); State v. Nti alias Berko (supra); State v. Hawa Banda (supra). Ground (2) of the English grounds is apparently also accepted and it is supported in Ghana by R. v. Tunwashe (supra) in its reference to R. v. Lawrence (supra); R. v. Owusu (supra); State v. Djaba, High Court (supra); State v. Djaba, Supreme Court, (Supra); State v. Kwaku Badu, High Court, Kumasi, unreported; State v. Hawa Banda (supra) and Republic v. Afua Kyaa (supra). Ground (3) of the English grounds is equally supported in Ghana by the local cases of R. v. Tunwashe (supra) in its reference to R. v. Reigels (supra); State v. Halm (supra); State v. Hawa Banda (supra). Ground (4) of the English grounds is finally supported in Ghana by R. v. Tunwashe (supra); R. v. Owusu (supra); R. v. Nti alias Berko (supra); State v. Djaba, High Court (supra); State v. Djaba, Supreme Court, (supra) and State v. Hawa Banda (supra).
In the case before me two grounds have been urged. The first ground, it seems to me, is the discredited ground relating to arguable issue. I am, however, prepared to be fair to the applicants and to accept it as I think it ought always to be so accepted as a ground based on likelihood of success. Now I have neither the judgment nor the record of proceedings in this case and like the Court of Appeal in State v. Halm (supra) I find myself handicapped in my assessment of the prospects of the success of the appeal without these materials and I am unable to find from the affidavits of the applicants anything to support the contention that the conviction is prima facie wrong, or that the appeal is likely to succeed. In the result I cannot decide this application on the said ground (2).
The second ground urged on me is ground (4) above, namely, undue delay in preparing the appeal record.
This ground which was ably argued by Mr. Pobee for the applicants is contained in paragraph (17) (supra) of the first applicant’s affidavit and paragraph (8) (supra) of the second
[p.458] of [1971] 2 GLR 433
applicant’s affidavit. It seems to me that the applicants succeed on this ground. These applications for bail were first filed on 31 August 1971 for argument on 2 September 1971. On 2 September 1971 the applications were adjourned to 8 September 1971. On 8 September 1971 I made an order calling for a certified true copy of the judgment and adjourned the matter to 10 September 1971. On 10 September 1971 the certified copy of the judgment was still not ready. I consequently adjourned to 21 September 1971 to enable the said judgment to be made available. Subsequently the case came up for argument on 22 September 1971 and still the judgment delivered on 13 August 1971 was not ready. Having regard to the averments in the affidavits that the case covered a period of about two-and-a-half years with proceedings recorded on 53 days spread over about two and a half years with evidence taken from 27 persons, it seems to me that if the judgment is taking over one month to type and certify then the record of proceedings will take more than twelve months to prepare and the first applicant will certainly serve the whole sentence while the second applicant will serve a substantial portion of his sentence before the record is available. The applicants would seem therefore to have brought themselves within ground (4) above.
Furthermore within my experience the circuit court registry in Kumasi is quite notorious for delaying proceedings. In the State v. Joseph Taylor, unreported, decided by me on 2 February 1970 the appellant was convicted by the circuit court and sentenced to seven years’ imprisonment with hard labour in January 1966. The appellant appealed on 29 June 1966. He had pleaded guilty and was appealing against sentence and although he wrote about twelve letters asking for the record of proceedings which was in fact a one page record, it took the registry four years to get the record ready, by which time he had served his sentence. I remember remarking in that case that “This is a disgraceful case revealing in my opinion gross incompetence and an utter disregard of the rights of the citizen.” This is not the only case. In Fulani v. The Republic, High Court, Kumasi, 19 June 1970, unreported; digested in (1970) C.C. 78 the appellant was sentenced on 24 June 1966 to a term of ten years’ imprisonment with hard labour, and he appealed against his conviction and sentence on 5 August 1966. The record of proceedings was not made available to the appellate court until 29 April 1970 after many reminders had been sent to the circuit court registry, reminders which were apparently ignored. There have been, it appears, many such cases at the circuit court registry and the applicants in my view have a genuine argument in the fears they have expressed that their appeals will be unduly and unreasonably delayed. If the fault were merely that of the registry I think I can acting under the inherent jurisdiction direct the registrar to expedite matters, but having regard to the length of the period of trial, the number of witnesses spread over two and a half years and the recording of evidence on 53 days with five lawyers appearing and no doubt making all sorts of submissions, it seems to me that even a competent and consciencious registry will be in difficulty in preparing the record in time.
[p. 459] of [1971] 2 GLR 433
It seems to me therefore that the argument that there will be undue delay and the applicants will be forced to serve the whole or a substantial portion of their sentences is well founded and for this reason I will grant bail to the applicants. The first applicant will be admitted to bail in the sum of N¢7,500.00 with two sureties to be justified. The second applicant will be admitted to bail in the sum of N¢5,500 with two sureties to be justified.
The applications for bail are accordingly granted.
DECISION
Applications for bail granted. K. T.
