Republic v. Registrar of High Court; Ex Parte Attorney-General [1982-83] GLR 407-421

Material Facts:

The respondent was convicted on a charge of extortion and sentenced by the Circuit Court. He applied for bail pending appeal at the High Court. The High Court, without seeing the record of the proceedings in the Circuit Court, observed that the prosecution failed to prove that the accused demanded money using his office, which is an essential element of the offence. The High Court therefore took the view that the appeal of the respondent was likely to succeed on appeal because his conviction was bad in law. The accused was consequently granted bail.

The applicant sought an order of certiorari to quash the grant of bail on the grounds that the High Court did not see the record of proceedings before granting the bail.

Issue:

Whether or not the respondent could be granted bail pending appeal.

Holding:

The respondent could be granted bail pending appeal.

Ratio Decidendi:

The Supreme Court, speaking through Crabbe JSC, clarified the law on bail as follows:

Bail as known to our law is the procedure by which a person arrested or imprisoned for an offence under our law is set at liberty. That liberty is a conditional liberty. It is conditional upon the appearance in court for further proceedings of the person to whom bail has been granted. The sole aim of an application for bail is thus to secure the release, pending trial, of the person concerned. It is granted on the condition also that the person concerned furnishes sufficient security to ensure his appearance for the further proceedings.

The grant of bail is an exercise of a discretionary power. The exercise of the discretion must not be punitive. The main consideration is the likelihood of the person concerned failing to appear for the further proceedings. These are dependent upon the nature of the offence, the evidence in support of the charge, the charge itself, the position of the accused and the severity of the punishment, as also the independence of the sureties.

…

it does appear that the guiding principle, even in legislation, for granting bail is that the accused person should appear for the further proceedings

The above position is mainly applicable to bail pending trial. The present case concerns bail pending appeal. This area of law has been governed by the principles set out in the case of R. v. Tunwashe (1935) 2 W.A.C.A. 236 . In that case, the court stated the following conditions for granting bail pending appeal:

(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 Courts 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.

There is no evidence in the present application that these conditions were not considered by the High Court.

Principles in Case:

1. Meaning of bail.

2. Bail as an exercise of discretionary power.

3. Conditions for the grant of bail pending appeal.