ISA vs. THE REPUBLIC [2001-2002] 1 GLR 128

CASES REFERRED TO

(1) R v Tunwashe (1935) 2 WACA 236.

(2) Djaba v The State [1966] GLR 327.

(3) State v Djaba [1966] GLR 575, SC.

(4) Owusu v The State [1967] GLR 435, CA.

(5) Fynn v The Republic [1971] 2 GLR 433.

(6) Okyere v The Republic [1972] 1 GLR 99.

(7) Attey v The Republic [1972] 2 GLR 352.

(8) Republic v Registrar of High Court; Ex parte Attorney-General [1982-83] GLR 407, SC. (9) Nyame v The Republic [1971] 2 GLR 140, CA.

(10) R v Gordon (1912) 7 Cr App R 182.

(11) R v Wise (1922) 17 Cr App R 17, CCA.

(12) R v Fitzgerald (Duke of Leinster) (1923) 17 Cr App R 147, CCA.

(13) R v Howeson and Hardy (1936) 25 Cr App R 167.

(14) R v Klein (1932) 23 Cr App R 173, CCA.

(15) State v Halm and Ayeh-Kumi, Court of Appeal, Accra; 27 July 1967, unreported. (16) Baah v The Republic [1991] 1 GLR 483.

APPLICATION to the Court of Appeal by the applicant, a former Minister for Youth and Sports, for bail pending the determination of his appeal against his conviction and sentence by the “Fast Track” [p.131] of [2001-2002] 1 GLR 128 High Court, Accra on two charges of stealing US$46,000, contrary to section 124(1) of the Criminal Code, 1960 (Act 29); and fraudulently causing financial loss to the State, contrary to section 179A(3)(a) of Act 29 as amended by the Criminal Code (Amendment) Act, 1993 (Act 458). The facts are sufficiently set out in the ruling.

Ambrose Dery (with him Thaddeus Sory) for the appellant.

Osafo Sampong, Director of Public Prosecutions, for the Republic.

Afreh JA. This is an application by the appellant-applicant herein for bail pending the determination of the appeal against his conviction by the “Fast Track” High Court, Accra, on 20 July 2001 and for such order or orders as to this court may seem fit.

The applicant, a former Minister of Youth and Sports in the government of President Kufuor, was convicted on two charges of:

“(i) stealing US$46,000, contrary to section 124(1) of the Criminal Code, 1960 (Act 29); and (ii) fraudulently causing financial loss to the State, contrary to section 179A (3)(a) of the Criminal Code, 1960 (Act 29) (as amended by Act 458).”

He was sentenced to four years’ imprisonment on each count, a fine of ¢10 million or in default twelve months imprisonment on count two, and ordered to return the US$46,000 to the State within one month or in default an additional jail term of two years.

On 25 July the applicant filed a notice of appeal against conviction. The grounds of appeal are: “I, Mallam Ali Yusuf Isa having been convicted of the offences of stealing contrary to section 124(1) of the Criminal Code, 1960 (Act 29) and fraudulently causing financial loss to the State contrary to section 179A(3)(a) of the Criminal Code, 1960 (Act 29) as amended by Act 458 and now a prisoner at the Nsawam Prisons do give you notice of appeal against my conviction on grounds as follows:

(i) That the conviction of the accused on the offences of stealing, contrary to section 124(1) of the Criminal Code, 1960 (Act 29) and fraudulently causing financial loss to the State, contrary to section 179A(3)(a) of the Criminal

[p.132] of [2001-2002] 1 GLR 128

Code, 1960 (Act 29) as amended by Act 458 cannot be supported having regard to the evidence.

(ii) That the trial judge erred in law when he held that there is direct evidence that the accused dishonestly appropriated the $46,000 or fraudulently caused the loss to the State of the said $46,000 or both when there is no direct evidence whatsoever to that effect.

(iii) That the trial judge erred in law when he decided that the circumstantial evidence adduced by the prosecution led irresistibly to the guilt of the accused and that the said evidence is not compatible with any other rational inference although there is copious evidence to support rational aggrieved by accused person’s vigilance and/or anti-corruption stance or that the said $46,000 got lost in transit.

(iv) That the trial judge erred in law when he held that the accused person’s ex-bodyguard, a serving police officer of the Ghana Police Service, before the accused person’s appointment as Minister of State and since he ceased to be minister who was present throughout on 23 February 2001 when the accused left for Sudan is not a vital witness and that failure to call him as a witness by the prosecution is not fatal even though the investigator, the eleventh prosecution witness, attempted to give hearsay evidence allegedly obtained from the said bodyguard in court.

(v) That the trial judge erred when he held that the evidence of the first and second prosecution witnesses is credible when same is not credible and raises several doubts.

(vi) That the learned trial judge erred when he held that the prosecution had discharged it’s burden of proof, namely proof beyond reasonable doubt when there are several doubts raised in the evidences.

(vii) That the learned trial judge erred when he raised the accused person’s burden of proof beyond introducing a reasonable doubt to one of beyond reasonable doubt.”

In his affidavit in support of his application, the applicant deposed:

“I, Mallam Ali Yusuf Isa of house No E171/12 Nima, Accra do

[p.133] of [2001-2002] 1 GLR 128 make oath and say as follows:

(1) That I am the deponent-applicant herein.

(2) That I am the accused person in the case of The Republic v Mallam Ali Yusuf Isa, suit No FT/Misc

1/2001, in the Fast Track High Court, Accra charged on two counts as follows:

(i) Count one—Stealing contrary to section 124 (1) of the Criminal Code, 1960 (Act 29).

(ii) Count two—Fraudulently causing financial loss to the State contrary to section

179A(3)(a) of the Criminal Code, 1960 (Act 29) as amended by Act 458.

(3) That on 20 July 2001 the Fast Track High Court, Accra convicted me on the said two counts of stealing, contrary to section 124(1) of the Criminal Code, 1960 (Act 29) and fraudulently causing financial loss to the State, contrary to section 179A(3)(a) of the Criminal Code, 1960 (Act 29) as amended by Act 458 and sentenced me to four years on each count, a fine of ¢10,000,000 or in default twelve months on count two, R/O $46,000 within one month or in default an additional two years’ imprisonment, all sentences to run concurrently. (Photocopy of a certified true copy of the said judgment attached and marked ‘A’.)

(4) That I have since started serving my sentence at the Nsawam Prisons, Nsawam.

(5) That at the time of my conviction and sentence on 20 July 2001 my interlocutory criminal appeal, filed on 26 June 2001, was and is still pending before the Supreme Court against the decision of the Court of Appeal dated 25 June 2001 that a prima facie case was made on the said two offences on which I have been convicted and that count two thereof is constitutional in terms of the Constitution, 1992 of the Republic of Ghana. (Photocopy of notice of appeal before the Supreme Court attached hereto and marked ‘B’.)

(6) That I have been advised by counsel and verily believe same to be true that my conviction and sentence on the said two offences, the subject matter of my appeal before the Supreme Court, pending the determination of my appeal by the Supreme Court is an unjustified infringement of my right to personal liberty which renders a possible favourable deter-

[p.134] of [2001-2002] 1 GLR 128 mination of my appeal by the Supreme Court ineffective.

(7) That upon my instructions my solicitor Mr Dery P Ambrose filed on my behalf on 25 July 2001 a notice of appeal against my conviction in the Court of Appeal, Accra. (Photocopy of notice of appeal attached and marked ‘C’.)

(8) That I have been advised by counsel and verily believe same to be true that my conviction is a miscarriage of justice and that my said appeal against conviction raises substantial issues of law to be determined by the Court of Appeal, Accra.

(9) That I have been advised by counsel and verily believe same to be true that the said appeal to the Court of Appeal raises issues or questions or both affecting my fundamental human rights, to wit: fair trial and my right to personal liberty pursuant to article 19 of the Constitution, 1992 of the Republic of Ghana contained in chapter five thereof on the fundamental human rights and freedoms as my imprisonment (an infringement of my right to personal liberty) is unjustified.

(10) That I am advised by counsel and verily believe same to be true that my said appeal to the Court of Appeal has great chances of success.

(11) That I am advised by counsel and verily believe same to be true that an order for bail pending the determination of my said appeal is necessary to ensure that the success of my said appeal before the Court of Appeal is not rendered nugatory (ie not to be negated) and to forestall the continued breach of my right to personal liberty in the interim.

(12) That I have been advised by counsel and verily believe same to be true that courts are to go on vacation from 31 July 2001 until October 2001.

(13) That meanwhile, the recording of proceedings from the Fast Track High Court, Accra is not yet ready to enable me prosecute my appeal and that there is likely to be a delay in the determination of my said appeal.

(14) Wherefore I depose to the affidavit in support of the motion herein.”

The principles governing application for bail pending the hearing

[p.135] of [2001-2002] 1 GLR 128 and determination of appeals are now quite well established. They were first laid down by the West African Court of Appeal (WACA) in the leading case of R v Tunwashe (1935) 2 WACA 236 where Butler-Lloyd, Ag Chief Justice, sitting as a single judge of WACA (as I am doing in this case), stated: “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.”

With the possible exception of Djaba v The State [1966] GLR 327 and State v Djaba [1966] GLR 575, SC (the Djaba bail application), decisions of courts of this country since 1935 have followed and applied these principles: see, eg Owusu v The State [1967] GLR 435, CA: Fynn v The Republic [1971] 2 GLR 433; Okyere v The Republic [1972] 1 GLR 99; Attey v The Republic [1972] 2 GLR 352 and Republic v Registrar of High Court; Ex parte Attorney-General [1982-83] GLR 407, SC.

In Fynn v The Republic (supra), Taylor J (as he then was) exhaustively reviewed a large number of local and English decisions on the matter and summarised the principles at 434-435 as follows: “Application for bail pending appeal may be granted only on one of the following four grounds, namely:

(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

[p.136] of [2001-2002] 1 GLR 128 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 the appeal . . .; and (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.”

Although this is a decision of the High Court and therefore not binding upon this court, it is generally accepted as the classical statement of the law on bail pending appeal in this country. It is a judgment of one of the most eminent judges in the history of this country and a foremost authority on the criminal law of Ghana. I therefore intend to apply it in this case.

From the affidavit in support of the motion for bail the following grounds for the application can be deduced:

“(a) That the conviction and sentence of the applicant at a time when his appeal from the ruling of the Court of Appeal on his interlocutory appeal was pending in the Supreme Court was an unjustified infringement of his right to personal liberty which rendered a possible favourable determination of his appeal by the Supreme Court ineffective; and that his conviction was a miscarriage justice.

(b) That his appeal against his conviction raises substantial issues of law to be determined by the Court of Appeal and also issues and/or questions affecting his fundamental human rights to a fair trial and right to personal liberty under article 19 of the Constitution, 1992.

(c) That the appeal to the Court of Appeal has great chances of success; and that bail pending appeal is necessary to ensure that the success of his appeal is not rendered nugatory; and to forestall the continued breach of his right to personal liberty.

(d) That the courts have gone on vacation until October 2001

[p.137] of [2001-2002] 1 GLR 128 and the record of proceedings is not ready to enable the applicant to prosecute his appeal and that there is likely to be a delay in the determination of his appeal—implying that there is a danger of the applicant serving the whole or a substantial portion of his sentence before the appeal is heard and determined.”

I intend to deal with grounds (i), (ii) and (iii) under the second of the occasions on which bail pending appeal will be granted as set out in the judgment of Taylor J (as he then was), ie that the conviction is prima facie wrong and the appeal therefore has obvious prospects of success.

First, the contention that the conviction and sentence of the applicant while his interlocutory appeal was pending in the Supreme Court was an unjustifiable infringement of his right to personal liberty. It has been contended that as a result of his conviction and sentence, a favourable judgment by the Supreme Court, reversing the decision of the Court of Appeal, will be rendered ineffective. This is not correct. If the Supreme Court decides that there was no case to answer or that the charge of fraudulently causing financial loss to the State was unconstitutional or both, the applicant’s conviction will most likely be quashed in whole or in part. So a favourable judgment by the Supreme Court will not be ineffective.

Admittedly, the applicant would, unfortunately, have spent some time in prison. But this will not be an unlawful infringement of the applicant’s constitutional right to liberty. In the administration of criminal justice it is often necessary to keep suspects or accused persons in prison prior to and during their trials; or imprison convicted persons pending the hearing and determination of their appeals. Article 14 of the Constitution, 1992 recognises such incarceration as an exception to the right to personal liberty. It provides:

“14. (1) Every person shall be entitled to his personal liberty and no person shall be deprived of his personal liberty except in the following cases and in accordance with procedure permitted by law—

(a) in execution of a sentence or order of a court in respect of a criminal offence of which he has been convicted; or

(b) in execution of an order of a court punishing him for

[p.138] of [2001-2002] 1 GLR 128 contempt of court; or (c) for the purpose of bringing him before a court in execution of an order of a court; or…

(g) upon reasonable suspicion of his having committed or being about to commit a criminal offence under the laws of Ghana.”

It is when imprisonment cannot be justified under any of these provisions or exceeds the constitutional limit for keeping in prison arrested, restricted or detained persons that it is unlawful and an infringement of the fundamental human right to personal liberty. In this case, the applicant is in prison in execution of a sentence imposed by a competent court in respect of a criminal offence of which he has been convicted. His imprisonment is therefore lawful and will remain lawful even if his appeals to the Supreme Court and the Court of Appeal succeed. It follows that whatever may be the outcome of his appeal to the Supreme Court there has been and there will be no infringement of his right to personal liberty.

The trial judge’s decision not to grant a stay of proceedings pending the hearing and determination of the applicant’s appeal to the Supreme Court was made in exercise of his discretionary powers. The interlocutory appeal did not and could not per se operate as a stay of proceedings. If the judge thought the appeal to the Supreme Court was frivolous, unmeritorious or unlikely to succeed, he was entitled to refuse the application for stay of proceedings. It was not suggested or submitted in arguments before me that the judge exercised his discretion improperly or wrongly. In my opinion, the conviction and sentence of the applicant while his interlocutory appeal is pending in the Supreme Court did not constitute an unjustifiable infringement of his right to personal liberty which rendered a favourable judgment ineffective.

In his arguments before me counsel for the applicant concentrated mainly in trying to show that his conviction was prima facie wrong. Counsel drew my attention to contradictions in the evidence of prosecution witnesses. For example, while the first and second prosecution witnesses said the money was in a black polythene bag, the third prosecution witness said it was in an envelope; the third prosecution witness’s evidence supported the testimony of the applicant on this matter. The first and second prosecution witnesses

[p.139] of [2001-2002] 1 GLR 128 said the applicant asked the second defence witness to remove the money from the suitcase (which was going to be taken for checking in). But they differed as to how the second defence witness was asked: The second prosecution witness said the applicant called the second defence witness, while the second prosecution witness said he beckoned to him. Apart from these contradictions between the evidence of the two prosecution witnesses, the second defence witness, who was in the applicant’s office with the first and second prosecution witnesses contradicted their evidence that the money was taken out of the applicant’s suitcase before it was taken to the airport. Also the second prosecution witness could not tell whether when the first prosecution witness left with the suitcase for the airport it contained the US$46,000.

Counsel also attacked several aspects of the trial judge’s judgment. He argued that the benefit of doubt created by the contradictions in the evidence of the prosecution witnesses should have gone to the applicant. The judge erred when he justified the prosecution’s failure to call the second defence witness, a material witness, on the ground that he was likely to lie in favour of his boss, the applicant. This was wrong because the second defence witness was a serving police officer before the applicant was appointed the Minister of Youth and Sports and is still in service. At the time he gave evidence the applicant was not in office, so there was no reason why the second defence witness should lie in favour of the applicant who was no more his boss.

Counsel also contended that the judge failed to assess the demeanour of the witnesses, something which was exclusively within the preserve of the trial judge, and this was an error.

Counsel submitted that the judge erred when he held that circumstantial evidence in the case irresistibly led to the guilt of the applicant. He failed to heed the warning, eg in Nyame v The Republic [1971] 2 GLR 140, CA that circumstantial evidence must be examined with care. Counsel also submitted that there was no direct evidence that the appellant removed the money or caused it to be removed from the suitcase as the judge held.

It is the contention of counsel that all these errors or defects in the judgment of the trial judge make the whole judgment prima facie wrong. As I understand it, the term “prima facie wrong” (which is not a term of art), means that on the preliminary arguments the judgment

[p.140] of [2001-2002] 1 GLR 128 is obviously wrong and is most likely to be reversed on appeal. For example, if the preliminary arguments demonstrate clearly that the trial judge or court lacked jurisdiction or imposed the wrong sentence, or acted in breach of the principles of natural justice or some fundamental human right of the accused or based his judgment on a wrong proposition of the law. But it is not enough to show that the trial judge erred. It must also be shown that the effect of the error or errors is that his judgment will most likely be reversed on appeal or, as stated by Taylor J (as he then was) in the case of Fynn v The Republic (supra) that, the appeal has obvious prospects of success. In this case, even if the judge erred on some matters, it cannot be said at this stage that the whole judgment was prima facie wrong and that therefore there are obvious prospects of success. I do not think the presumption that the conviction by the trial court is prima facie right has been displaced to justify releasing the applicant on bail pending the hearing and determination of the appeal.

I, however, think the appeal raises substantial issues of law to be determined by the Court of Appeal; for example, whether the circumstantial evidence led irresistibly to the guilt of the applicant; whether there was direct evidence that the money was taken from the suitcase; whether the contradictions in the evidence of the prosecution witnesses fundamentally affected their credibility; and the effect of the failure or refusal of the prosecution to call a material witness, the second defence witness.

The question is whether the fact that an appeal raises substantial issues of law for determination by the Court of Appeal is a ground for granting bail pending appeal. It may be argued that if there are substantial arguable or debatable issues for determination by the Court of Appeal, then the appeal has a chance of success, and this should be a ground for granting bail pending appeal. In Djaba v The State (supra)

Wiredu J (not Edward) held that a condition governing the grant of bail pending appeal should be whether from the record there was a chance of success in the appeal. On appeal, the Supreme Court (of the First Republic) affirmed his decision to grant bail but on different grounds: see State v Djaba (supra). As shown by Amissah in his book Criminal Procedure in Ghana at p 287, the decision of Wiredu J (not Edward) and the Supreme Court in the Djaba bail application were aberrations. Since Owusu v The State (supra) those decisions

[p.141] of [2001-2002] 1 GLR 128 have not been followed.

In my opinion, the fact that an appeal raises arguable or debatable issues should not be a ground for granting bail pending appeal unless preliminary arguments on those issues show that the judgment was prima facie wrong and therefore the appeal has obvious chance of success. An appeal which does not raise debatable or arguable issues is normally frivolous and unmeritorious and may even be an abuse of the judicial process. People appeal because they think the trial court or the lower appellate court was wrong in law or fact or both. If there are no debatable or arguable issues for an appellate court to consider, an appeal should not be brought. Appellate courts hear arguments and write reasoned judgments because the appeals they hear normally raise debatable or arguable issues. So there is nothing unusual or exceptional about an appeal which raises substantial issues to warrant granting bail pending the hearing and determination of the appeal. Several local and English cases support this view. In Owusu v The State (supra) the Court of Appeal held that in the exercise of discretionary powers given by the Courts Acts the different courts had 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 a particular matter did not constitute special reasons within the principles laid down. Therefore to grant bail based upon an allegation of that nature was to say, in effect, that bail after conviction was automatic and should be granted for the asking. That would be contrary to the intent of the legislature to give discretion to the court to grant or refuse bail. In support of this statement the court cited R v Tunwashe (supra); R v Gordon (1912) 7 Cr App R 182, CCA ; R v Wise (1922) 17 Cr App R 17, CCA; R v Fitzgerald (Duke of Leinster) (1923) 17 Cr App R 147, CCA and R v Howeson and Hardy (1936) 25 Cr App R 167.

In R v Gordon (supra) it was argued that the matter before the court was one of considerable complexity, as was shown by the fact that there were 180 exhibits. The applicant had been granted bail before his trial. The Court of Criminal Appeal refused an application for bail saying no sufficient reason had been shown why the unusual course should be taken of granting bail to a convicted prisoner. In R v Howeson and Hardy (supra) it was contended that there was a substantial point of law to be argued, as was evident from the fact that

[p.142] of [2001-2002] 1 GLR 128 the trial judge had granted a certificate for appeal on the conclusion of the case. Further, the applicant was a man of many business activities and had many affairs which required to be wound up, and the case being one of great complication, it would be useful if he could have free access to his legal advisers in the preparation of his appeal. The Director of Public Prosecutions did not support or oppose the application, but left the matter entirely to the court. The court refused the application because it did not see in the case any of the exceptional circumstances which alone justify the granting of bail pending appeal. Similarly, in R v Klein (1932) 23 Cr App R 173, CCA it was urged upon the court that the case was of great complexity—there was over 700 exhibits and very many witnesses—and Klein could materially assist in the preparation of the appeal. There were substantial matters to be argued at the appeal. The applicant was a man of good character. There was no reasonable prospect of the appeal being heard before the Easter vacation. The applicant’s counsel dealt with certain facts in the case (as counsel in the case before me has done) tendering to exculpate his client. The court refused the application for bail pending appeal. I think it is clear from these cases that the mere fact that an appeal raises debatable or arguable issues is not a ground for granting bail pending the hearing and determination of the appeal.

In State v Halm and Ayeh-Kumi, Court of Appeal, 27 July 1967, Criminal Motion No 27/67, unreported, this court made it clear that expressions of belief in the merit of an appeal coupled with expressions of hope in its success did not create such exceptional circumstances as to warrant a resort to the unusual course of admitting a convicted prisoner to bail. So the averment by the applicant in his affidavit in support of the application that he has been advised by counsel and he believes it to be true that his appeal has great chances of success, is not a sufficient ground for granting his application for bail.

There is one matter where, in my respectful opinion, it seems the judge was prima facie wrong. In addition to the terms of imprisonment and fine imposed by him, he ordered the applicant to refund the US$46,000 within one month or serve an additional jail term of two years. In my opinion, the imposition of the additional two-year term if the applicant failed to refund the money is wrong. The judge did not specify the provision under which the order was made. But it seems it

[p.143] of [2001-2002] 1 GLR 128 was made under section 147B of the Criminal Procedure Code, 1960 (Act 30) (as substituted by the Criminal Procedure Code (Amendment) (No 2) Act, 1964 (Act 254)). It is clear from subsection (2) of that section that an order under section 147B of Act 30 shall be deemed to be an exercise of the civil jurisdiction of the court in an action between the victim of the offence as a plaintiff and the offender as a defendant and shall be enforceable in the same manner and be subject to the like appeal as are orders for the return of chattels or of money. In other words, if the applicant fails to refund the US$46,000 the State can enforce it as a judgment debt but not by or an order of imprisonment in default of payment: see Baah v The Republic [1991] 1 GLR 483.

However, even if the additional jail term of two years is set aside, it will have no effect on the validity or operation of the two concurrent four-year terms of imprisonment. It will therefore be wrong to release the applicant on bail because of this particular error of the trial judge.

In his affidavit in support of the application, the applicant says he believes the advice of his counsel that an order for bail pending the determination of his appeal is necessary to ensure that the success of his appeal before the Court of Appeal is not rendered nugatory; and that the courts will be on vacation until October 2001. Meanwhile he says the record of proceedings is not ready for him to prosecute his appeal and there is likely to be a delay in the determination of his appeal.

This may be an expression of confidence in the success of his appeal and the fear that a delay may mean he will remain in prison longer than he should; so he should be granted bail. Or he means that there is the danger that, due to undue delay, he may serve the whole or a substantial portion of his prison sentence before the hearing of the appeal, which he is confident he will win. Counsel for the applicant did not, in my view, rightly press this point. It is most probable the record of proceedings is already ready or will be ready before the courts resume in October. The appeal is likely to be heard long before the applicant has served a substantial portion of his four-year term of imprisonment. So there is no basis for this ground of the application.

I have carefully and sympathetically considered the application for bail. But I do not think the circumstances of the case warrant the grant of bail pending the hearing and determination of the appeal. The application is therefore dismissed.

[p.144] of [2001-2002] 1 GLR 128 The registrar of the court is however instructed to ensure that the appeal is listed for hearing in the shortest possible time.

Application dismissed.

DRKS