Alexander v The Queen
| Jurisdiction | St Lucia |
| Judge | Satrohan Singh, J.A.,Monica Joseph, J.A. |
| Judgment Date | 20 June 1994 |
| Neutral Citation | LC 1994 CA 5 |
| Docket Number | 1 of 1994 |
| Court | Court of Appeal (Saint Lucia) |
| Date | 20 June 1994 |
High Court
Byron, J.A. Singh, J.A. Joseph J.A. (Acting)
1 of 1994
Mr. K. Foster and Mr. A. Richelieu for the appellant.
Mr. La Corbiniere for the respondent.
Criminal practice and procedure - Application for bail — Burglary — Using a firearm and cutlass with intent to cause dangerous harm — Sentence of 5 years on each of the three offences to run consecutively was imposed — Appellant applied for bail pending the determination of the appeal — Court held that the application was dismissed.
On the 13th day of November, 1992 the appellant was convicted for offences of burglary and using a firearm and cutlass with intent to cause dangerous harm. He was sentenced to 5 years of each of the three offences to cull consecutively. He has appealed against his conviction and sentence.
On the 24th day of May, 1994 he applied for and obtained in adjournment of the hearing of the appeal to the 31st day of October, 1994 on the ground that he had received the record of appeal too late for his counsel to be properly prepared to argue the appeal.
He now applies for bail pending the determination of the appeal. In his affidavits in support he has alleged that:
(1) prior to his conviction he had been on ball and observed the terms and conditions of his bail
(2) He believes that his chances of success on appeal are good
(3) he has no previous convictions for violence
(4) He is the father of 5 children and his family is suffering hardship
(5) He has a medical condition requiring special treatment.
Mr. Errol Walker the Director of Public Prosecutions swore affidavit in opposition to the application raising issues as to the nature of the offences on which the appellant was convicted, his chances of success and his health. Happily, none of these are issues of which we need to exercise ourselves to consider the relative credibility of these deponents.
The legal position on the granting of bail pending appeal is not in dispute. There is statutory power to grant bail pending appeal in the Eastern Cart States Supreme Court (St. Lucia) Act 1969 section 41(2) which provides:
“The Court of Appeal may, if it seems fit, on the application of an appellant, admit the appellant to bail pending the determination of his appeal.”
This is a power, which has been seldom exercised and only in exceptional cases. In England where the power of the Court of Appeal is couched in identical language the application of the provisions is described in 4th Halsbury Laws of England Vol. 1192) para 904 as follows:
“The power to grant bail is rarely exercised. Exceptional circumstances must be shown to exist.”
The term exceptional implies a necessary distinction between factors, which are generally common on to appellants, and those, which exist only in rare cases. The issue of good character exists in every case where one has his first conviction. There is no rule that a first offender should get bail pending appeal. Every appellant believes or hopes that his appeal will be successful. Almost every appellant who was urn bail pending trial had observed the conditions of his bail. There is no rule that convicts who had been on bail should he admitted to bail pending their appeals. The issue of hardship to the family of a convicted person is not unusual or exceptional nor is concern for one's health.
The cases show that these matters raised by the appellant do not amount to exceptional circumstances.
In R v. Marsh (1965) 9 W.I.R. 58 (Jam.), the applicant was sentenced to 18 months on several counts of charges of falsification of accounts, fraudulent conversion and so on. He had served 5 months, had no previous convictions, and further delay in hearing the appeal was likely, due to no fault of his own but to sloth of the authorities in the provision of the notes of evidence. The Court of Appeal held no exceptional circumstances had been shown.
In State v. Lynette Scantlebury (1976) 27 W.I.R. 103 (Guy.), Haynes C. examined the English authorities on the issue of bail pending appeal in some detail. “He explained why exceptional circumstances must exist to justify its grant.
Haynes C. Concluded:
“What was being emphasised was that normally bail would not be granted to an appellant or a prospective one after his conviction by at jury; that it was not to be lightly allowed; and so an applicant had to show that, in his case, there were special circumstances which made it the just thing to do to put him on bail pending the hearing of his appeal. For example, if on the face of the papers before the court, the conviction appears plainly wrong so that his appeal has every prospect of success (as in R v. Rudolph Henry) (8), this would be a factor which could make the case exceptional. But an instance of more frequent occurrence is where the sentence is a short one and it is administratively impossible to hear the appeal or there is not much hope of doing so before his sentence terminates. For, if the appeal succeeds after this, justice might not appear to have been done. And this might even be so where, although the appeal may or will be heard before the sentence ends, he will by then have served most or a very substantial part of it.”
The cases seem to have pointed to only two types of circumstances, which are regarded as being exceptional. One is where there is a risk that the sentence would be served, fully or substantially before the appeal is heard, and the other is where there is high probability then the appeal will be successful.
In Joseph Watton (1979) 68 Cr. App. R.293, the English Court of Appeal held that circumstances of the (a) appellant's ill health, (b) his wife's ill health (c) his daughter's ill health and inconvenience (d) hardship to hardship and his family, (c) his good character, were not exceptional.
The legal principles could he discerned from Lane, C.J.'s comment on a pronouncement of the Advisory Council on the Panel System on the Penal System when he stated at p. 296:
“Mr. Bloom-Cooper drew our attention, very properly, to Appendix F and a portion of paragraph 5 thereof, which runs as follows:
“In appeals from the Crown Court, however, bail can be granted only by the Court of Appeal and this is rarely done. We would wish to see some relaxation of the principles laid down by the Court of Appeal relating to granting of bail pending appeal, the general effect of which is at present that bail is granted only where it appears prima facie that the appeal is likely to be successful or where there is a risk that the sentence will have been served by the tinge the appeal is heard.”
We think that is a correct formulation of the law. One observes that Mr. Bloom-Cooper himself was one of the members of the Council, which produced that appendix. Indeed he told us...
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