IN THE SEYCHELLES COURT OF APPEAL
[Coram: A. Fernando (J.A), M. Twomey (J.A), J. Msoffe (J.A)]
CriminalAppeal SCA07/2017
(Appeal from Supreme Court Decision CR 22/2016)
Francis Ernesta Brian Mothe Kevin Quatre |
Appellants | |
Versus | ||
The Republic Respondent | ||
Heard: 02 August 2017
Counsel: Mr. C. Andre for the Appellants
Mr. C. Jayaraj for the Respondent
Delivered: 11 August 2017
JUDGMENT
Fernando (J.A)
This is an appeal against the Ruling of the Supreme Court given on the 24th day of February 2017, whereby the Appellants were denied bail in a case that is proceeding before the Supreme Court and where the Appellants are facing four charges, namely, for importation and trafficking in 477.66 grams of pure heroin and conspiracy to commit the offences of importation and trafficking. According to both Counsel for the Republic and the defence; trial in this case is due to conclude shortly as there are only three more witnesses to testify for the prosecution.
Before we can even proceed to the merits of this application we have to consider whether the Court of Appeal has the jurisdiction to entertain an appeal against a ruling made by the Supreme Court dismissing an application for release on bail of an accused whose trial is still proceeding before the Supreme Court. The same issue came up before the full bench (where all 5 Justices of Appeal sat) of this Court, in the case of Kenneth Steve Esparon and four others VS The Republic SCA CR 1, 2, and 3 of 2014 where I gave a dissenting judgment holding that the Appellants in that case, who had not been convicted for the offence of which they were facing charges, were not entitled to appeal against a decision remanding them to custody by the trial court during the trial.
For this reason I informed Counsel for the Appellants at the Roll Call which was two days before the hearing of this appeal that I was prepared to recuse myself if he or the Appellants so wished. Since Counsel for the Appellants indicated to Court that he and the Appellants had no objection to my hearing the case I decided to hear the case and thus proceed herein to give judgment. The reason why I felt that it would be useful for me to hear the same issue that was before the full bench of this Court in the case of Kenneth Steve Esparon is because, I wished to reconsider the issue whether the Court of Appeal has the jurisdiction to entertain an appeal against a ruling made by the Supreme Court dismissing an application for release on bail of an accused pending trial before the Supreme Court, after examining the majority judgment of Domah J, in Kenneth Steve Esparon, with which the other three Justices of Appeal agreed.
I shall therefore first of all reproduce below what I said in my Dissenting Judgment in Kenneth Steve Esparon and four others VS The Republic SCA CR 1, 2, and 3 of2014 on this matter:
“Before we can even proceed to the merits of this application we have to consider whether the Court of Appeal has the jurisdiction to entertain an appeal against a ruling made by the Supreme Court dismissing an application for release on bail of an accused pending trial before the Supreme Court. The same issue had come up earlier before three Justices of this Court in the case of Roy Beeharry VS The Republic SCA No: 11 of 2009where the Attorney General argued that the Appellant in that case who had not been convicted for the offence of which he was facing charges is not entitled to appeal against a decision remanding him to custody by the trial court, pending his trial. In Beeharry, Justice Domah stated:
“Suffice it to say that we are not persuaded by that argument. Our reasons, inter alia, are: (a) the Constitution is the principal source of law and any law inconsistent with the provision of the Constitution should be held void to the extent of the inconsistency; (b) section 342(1) of the Criminal Procedure Act as amended by Act 19 of 1998 applies to criminal cases and does not apply to a constitutional matter under section 18; and (c) bail is inherently a judicial matter and not a matter for the executive or the legislature which the latter in any way may take over from the Judiciary. A person who is denied bail has a right to appeal before the Court of Appeal subject to such conditions as the Court of Appeal may determine. In any case, the right to appeal is not limited to cases where there have been convictions or sentences. The Constitution provides in no uncertain terms that “there shall be a right of appeal to the Court of Appeal from a judgment, direction, declaration, decree, writ or order of the Supreme Court.” [underlining supplied].It cannot be disputed that the denial of bail in this case was an order by the Supreme Court.”(verbatim)
In a Ruling delivered by a single Judge of this Court in SCA NO CR 2 of 2013 in respect of another application by the very Appellants of this case the Court said:
“Whether there is a right of appeal against an order for remand made under sections 179 and 195 of the Criminal Procedure Code, i.e. after a person has been charged by court, continues to be in my mind, a moot point in view of the provisions of article 120(2) of the Constitution read with section 342(6) of the Criminal Procedure Code as amended by Act No. 14 of 1998.”
It is for this reason that this case (reference here is to Kenneth Steve Esparon and four others VS The Republic) originally listed to be heard before three Judges of this Court came to be heard by the full bench of the five Justices of Appeal.
The issue whether an accused who has not yet been convicted by the Supreme Court can appeal against a decision of the Supreme Court remanding him to custody during the pendency of his trial requires in my view a thorough examination of the provisions of articles 120(1)&(2) and 19(11) of the Constitution; sections 342(1)(6)&(4) of the Criminal Procedure Code (Cap 54) and the judgment of this Court in Treffle Finesse VS The Republic, dated the 19th of October 1995, Criminal Appeal No. 1 of 1995; which was the reason for the amendment to section 342 by the Criminal Procedure Code (Amendment) Act No. 14 of 1998.
Article 120(1) of the Constitution states:
“There shall be a Court of Appeal which shall, subject to this Constitution, have jurisdiction to hear and determine appeals from a judgment, direction, decision, declaration, decree, writ or order of the Supreme Court and such other appellate jurisdiction as may be conferred upon the Court of Appeal by this Constitution and by or under an Act.”(emphasis added)
Article 120(2) of the Constitution states:
“Except as this Constitution or an Act otherwise provides, there shall be a right of appeal to the Court of Appeal from a judgment, direction, decision, declaration, decree, writ or order of the Supreme Court.”(emphasis added)
Article 19(11) states:
“Every person convicted of an offence shall be entitled to an appeal in accordance with law against the conviction, sentence and any order made on the conviction.”(emphasis added)
The Constitution thus provides in article 19(11) for a right of appeal to a person convicted of an offence, to appeal in accordance with law against the conviction, sentence and any order made on the conviction.” The Constitution does not confer any other appellate jurisdiction to the Court of Appeal in addition to what is contemplated in article 120(1) in criminal matters. Further the appellate jurisdiction of the Court of Appeal has been subjected to article 19(11), which by implication restricts the right of appeal only to a convict. This can also be seen as an implied exception in the Constitution to the general right of appeal referred to in article 120(2).
The Act that otherwise provides an exception to the general right of appeal referred to in article 120(2) of the Constitution is the Criminal Procedure Code (CPC) (Cap 54) and the relevant section is section 342 which deals with appeals from the Supreme Court to the Court of Appeal. Section 342 reads as follows:
“342 [1] Any person convicted on a trial held by the Supreme Court may appeal to the Court of Appeal –
Against his conviction other than on a conviction based on the person’s own plea of guilty –
on any ground of appeal whenever the penalty awarded shall exceed six months’ imprisonment or one thousand rupees;
on any ground of appeal which involves a question of law alone;
with the leave of such Court of Appeal or upon a certificate of the Judge who tried him that it is a fit case for appeal on any ground of appeal which involves a question of fact alone, or a question of mixed law and fact or on any other ground which appears to the Court to be a sufficient ground of appeal;
against the sentence passed on his conviction with the leave of such Court of Appeal unless the sentence is one fixed by law.
[2] Any person who has been dealt with by the Supreme Court under section 7 may appeal to the Court of Appeal as set out in paragraphs (a) and (b) of subsection (1) as if he had been both convicted and sentenced by the Supreme Court, whether the Supreme Court used its powers of revision or not.
[3] Irrespectively of any appeal and whether a case be appealable or not, the Judge may reserve for the consideration of the Court of Appeal any question of law decided by him in the course of any trial. The question or questions so reserved shall be stated in the form of a case prepared and signed by the Judge himself, and such case shall be transmitted by him at the earliest convenient opportunity to such Court of Appeal:
Provided that nothing herein contained shall exempt the Judge from giving his own judgment on any such questions.
[4] The Judge may in his discretion, in any case in which an appeal to the Court of Appeal is filed or in any case in which a question of law has been reserved for the decision of such Court of Appeal, grant bail pending the hearing of such appeal or the decision of the case reserved.
[5] An application for bail under this section shall be by motion, supported by affidavit, served on the Attorney-General, and may be heard in Chambers.
[6] Except as is otherwise provided in this section, an appeal shall not lie against an acquittal, conviction, decision, declaration, decree, direction, order, writ or sentence passed by the Supreme Court.”(emphasis added)
The words “other than on a conviction based on the person’s own plea of guilty” in subsection 1(a); and subsection (6) were inserted by the Criminal Procedure Code (Amendment) Act No. 14 of 1998. It is in my view clear from section 342 that it is only a person convicted on a trial held by the Supreme Court who may appeal to the Court of Appeal.
The history behind the insertion of subsection (6) in section 342 is very relevant to understanding the issue whether the Court of Appeal has the jurisdiction to entertain an appeal against an interim order made by the Supreme Court, dismissing an application for release on bail of an accused pending trial before the Supreme Court. In the case of Treffle Finesse VS The Republic CR Appeal No. 1 of 1995 the Court of Appeal by its judgment dated 19th of October 1995 considered whether the appellant in that case, Treffle Finesse, had a right of appeal against an interlocutory order of the Supreme Court before the trial in the Supreme Court was concluded, namely against the ruling of the Supreme Court in a submission of no case to answer. The Court held:
“The general right of appeal conferred by Article 120(2) of the Constitution and the general jurisdiction of this Court to hear appeals from the Supreme Court conferred by Article 120(1) can only be restricted by the Constitution itself or by an Act which provides that there shall be no such jurisdiction or no such right. Counsel on behalf of the Republic contended that section 342(1) of the Criminal Procedure Code restricts the general right of appeal conferred by the Constitution……..
It is evident that while section 342(1) of the Code provides for appeal from a decision of the Supreme Court either as of right or by leave, its provisions are not at all exclusionary. The words “Except as this Constitution or an Act otherwise provides” envisage provisions which are expressly exclusionary and which exclude a right of appeal. Where the Constitution confers a right such right can only be taken away, where the Constitution so permits, by statutory provisions which are expressly and manifestly exclusionary. Section 342(2) [sic, should be (1)] of the Code which provides for a right of appeal cannot be interpreted as provision which excludes a right of appeal where the Constitution has conferred such right. It would have been a different matter if the Criminal Procedure Code had provided that no appeal shall lie to the Court of Appeal from a decision of the Supreme Court in any criminal cause or matter except as provided by the Code. To achieve the result which the Republic urges on this appeal we are of the view that there will be need to amend the Criminal Procedure Code in the line suggested above.”(emphasis added)
I am constrained to think that it is in view of this suggestion by the Court of Appeal that sub-section (6) was inserted to section 342 of the Criminal Procedure Code by the Criminal Procedure Code (Amendment) Act No. 14 of 1998. The wording in section 342 (6) “Except as is otherwise provided in this section, an appeal shall not lie against an acquittal, conviction, decision, declaration, decree, direction, order, writ or sentence passed by the Supreme Court” is entirely in line, with what was suggested by the Court of Appeal.
In the case of Attorney General V Tan Boon Pou 1 of 2005 this Court held, in a case where the Attorney General sought to review, an order of acquittal by the Supreme Court: “Thus, we are now at a point where the Legislature duly stepped in as advised by this Court and decisively decreed in its own wisdom and in plain and unambiguous language that in terms of section 342 (6) of the Code, an appeal shall not lie, inter alia, against an acquittal.” The Court went on to state: “the conclusion is inescapable, in my judgment, that this Court has no original review jurisdiction over the Supreme Court decisions. As a creature of statute, it has no jurisdiction beyond that which is conferred on it by statute either expressly or by necessary implication”. (emphasis added)
It has therefore become necessary to have a re-look at the reasoning in Beeharry referred to at paragraph 4 above [In this judgment, referred to at paragraph 7 above]. (a) Since the amendment to the Criminal Procedure Code is in accordance with the wording “Except as this Constitution or an Act otherwise provides” in article 120(2) of the Constitution and was made in line with the suggestion of the Court of Appeal in Treffle Finesse, it cannot be said that the Criminal Procedure Code (Amendment) Act No. 14 of 1998 is inconsistent with article 120(2) as suggested in Beeharry. (b) This is an appeal from an order of the Supreme Court refusing to enlarge the accused on bail in a criminal case. It is not an appeal from a judgment of the Constitutional Court in respect of an application to it under article 46(1) challenging an order of the Supreme Court refusing to enlarge an accused on bail. Thus section 342 has application to this case. Provisions as to bail are contained in sections 100 to 110, 327, and 342(4) & (5) of the Criminal Procedure Code and the provisions pertaining to enlarging an accused on bail or remanding him to custody before or during the hearing of a case are contained in sections 179 and 195 of the Criminal Procedure Code and essentially matters arising in criminal cases. (c) It is an anomaly to state that by section 342(6) of the Criminal Procedure Code the Executive or the Legislature has taken over from the Judiciary, ‘bail’, which is inherently a judicial matter. Bail is undoubtedly a judicial matter and not a matter for the executive or the legislature; and section 342 does not seek to take it away from the Judiciary. In fact it is the Judiciary, the Court of Appeal, the Supreme Court or the Magistrates Court, that is vested with the authority of deciding and that decides whether an accused before or during the hearing of a case before it, should be enlarged on bail or remanded to custody. The judicial power of Seychelles in accordance with article 119 of the Constitution is vested in the Supreme Court and Magistrate’s Court just as much with the Court of Appeal and in view of the provisions of article 125 the Supreme Court has original jurisdiction in constitutional, criminal and civil matters.
It is the Supreme Court or the Magistrates Court that is in the best position to determine whether an accused facing trial before it should be enlarged on bail or not. In Roy Beeharry VS The Republic (supra) Justice Domah stated:
“(a) the trial court would be more “au fait” with the facts and circumstances of the case than the appellate court; (b) the trial court would best be able to evaluate the risks involved in the release to secure the defendant’s presence before itself; (c) the trial court would be the best judge in assessing what conditions will apply to secure the defendant’s presence on the day of the trial; (d) the trial court would be able to directly examine the defendant to gauge his plight. The appellate court is bereft of the many advantages which a trial court has, proceeding as it does from a record of proceedings and on a session by session basis.”
This gives justification to the argument that an order of the Supreme Court pertaining to bail during the pendency of a trial shall not be appealed against and gives credence to the application of section 342(6) of the Criminal Procedure Code in regard to decisions pertaining to bail made by the Supreme Court.
There is however an important issue which had not been considered in Beeharry, namely, in the event of the bail conditions imposed by the Court of Appeal been breached by an accused who has been enlarged on bail by the Court of Appeal, before which court should he be produced for further orders? Is it the Supreme Court or the Court of Appeal which made the order and only sits “on a session by session basis”? This brings us to the issue of two courts, one exercising original jurisdiction and the other appellate jurisdiction, making orders even before the hearing is concluded before the Supreme Court in respect of the same case. Even in respect of civil matters one could appeal against an interlocutory order of the Supreme Court only if the interlocutory order disposes so substantially all the matters in issue as to leave only subordinate or ancillary matters for decision.If we are to go along with the judgment in Beeharry even the Attorney General will have a right of appeal against an order of the Supreme Court releasing an accused on bail.
In Beeharry the Court went on to state: “The Constitution provides in no uncertain terms that “there shall be a right of appeal to the Court of Appeal from a judgment, direction, declaration, decree, writ or order of the Supreme Court.” [underlining supplied]. There is no doubt that a remand to custody after denying bail or enlarging a person on bail, is a ‘decision’ or ‘order’ of the Supreme Court, which is caught up by the provisions of section 342(6) of the Criminal Procedure Code. In Beeharry it was categorically stated that “It cannot be disputed that the denial of bail in this case was an order by the Supreme Court.” In quoting article 120(2) of the Constitution the Court erred in omitting to make reference to the words “Except as this Constitution or an Act otherwise provides” which are absolutely necessary for and govern the interpretation of that article. Further in Beeharry it appears that the provisions of section 342(6) were overlooked as there is no reference to it in the judgment.
The issue we have to grapple with in this case is not whether an accused pending trial before the Supreme Court has a fundamental right as guaranteed in the Constitution to be enlarged on bail but whether the Court of Appeal has the jurisdiction to entertain an appeal from an order of the Supreme Court refusing to enlarge an accused on bail pending trial before it, and who has not been convicted. However lofty the right to bail may be, a court in order to consider it should have the jurisdiction. Translated from the Latin, “jurisdiction” means “the power to speak the law”. Jurisdiction denotes the constitutionally mandated authority of a court to seize and determine causes according to law and to impose punishments. Thus, it is axiomatic that jurisdiction is granted by law. Jurisdiction cannot be unilaterally or arbitrarily assumed by a court or created by the consent of parties to a dispute requiring adjudication. In Halsbury, 3rd edition Vol 9 pp 350-51 ‘Jurisdiction’ has been defined to mean “…..the authority which a court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter, or commission under which the court is constituted, and may be extended or restricted by the like means” (emphasis added). In countries like in the Seychelles where we have a written Constitution founded on the principle of separation of powers and with the legislative power vested in the National Assembly under article 85 of the Constitution, the concept of a court possessing “inherent jurisdiction” becomes amorphous, especially because the jurisdiction of the Court of Appeal has been specifically set out in article 120. The only exception to this is where an Act confers on the Court power to make subsidiary legislation as provided for in article 89 and the powers of the President of the Court of Appeal and the Chief Justice to make rules respectively for the Court of Appeal and the Supreme Court. Thus the idea of an auxiliary stream of jurisdiction existing in parallel to constitutionally authorised sources of jurisdiction seems to cut across the parameter of Article 85.
There lies a distinction between “inherent jurisdiction” and “inherent powers” of a court. The two concepts are quite distinct. Inherent jurisdiction refers to a jurisdiction granted by law to a court to hear and determine a matter. By contrast, inherent powers have arisen to consummate imperfectly constituted judicial power. It was stated in Axiom Rolle PRP Valuation Services Ltd v. Rahul Ramesh Kapadia and others NZAC, 43/06, para. 24 that an inherent power is an entitlement in law to use a procedural tool to hear and decide a cause of action in the Court within jurisdiction. An inherent power is exercisable by all courts. It is a power which is incidental and ancillary to the primary jurisdiction. A court invokes its inherent power in order to fulfil its constitutionally-ordained function as a court of law. Inherent powers attach where a court has already been granted jurisdiction. Inherent powers necessarily accrue to a court by virtue of the very nature of its judicial function or its constitutional role in the administration of justice. Thus, inherent powers are part of a court’s resources; they are a necessary addition to the judicial function, facilitating the proper functioning of courts within the framework of jurisdiction granted to it by statute. Thus, whilst inherent jurisdiction is substantive, inherent powers are procedural.
Inherent jurisdiction is a doctrine that a superior court has the jurisdiction to hear any matter that comes before it, unless a statute or rule limits that authority or grants exclusive jurisdiction to some other court or tribunal. According to Canadian jurisprudence, the key restriction on the application of inherent jurisdiction is that the doctrine cannot be used to override an existing statute or rule. The clearest articulation of such restriction is set out in the Supreme Court of Canada decision in College Housing Co-operative Ltd. VS Baxter Student Housing Ltd. (1976) 2 SCR 475 where the Court stated that a court cannot negate the unambiguous expression of legislative will and further held that:
“Inherent jurisdiction cannot, of course be exercised so as to conflict with statute or rule. Moreover, because it is a special and extraordinary power, it should be exercised only sparingly and in a clear case.”
Murray CJ in the Irish case of G. McG v. D.V, (No.2) [2000] 4 I.R. 1, makes the following observation in relation to the circumstance where a particular jurisdiction is exclusively controlled by statute law:
“Where the jurisdiction of the courts is expressly and completely delineated by statute law it must, at least as a general rule, exclude the exercise by the courts of some other or more extensive jurisdiction of an implied or inherent nature. To hold otherwise would undermine the normative value of the law and create uncertainty concerning the scope of judicial function and finality of court orders.” (emphasis by me).
This statement is very much applicable in the Seychelles context as the jurisdiction of our courts is expressly and completely delineated by the Constitution and statute law.
In re Racal Communications Ltd [1981] AC 374 (HL) the House of Lords had to interpret section 31 (1) of the Supreme Court of Judicature (Consolidation) Act 1925 which restricted the right of appeal conferred on the Supreme Court by section 27(1) of the said Act. Section 31 (1) provided: “No appeal shall lie … (d) from the decision of the High Court or of any judge thereof where it is provided by any Act that the decision of any court or judge, the jurisdiction of which or of whom is now vested in the High Court, is to be final …” The said section 31(1) is somewhat similar to our section 342(6) of the Criminal Procedure Code. In his leading speech, Lord Diplock said: “The jurisdiction of the Court of Appeal is wholly statutory; it is appellate only. The court has no original jurisdiction. It has no jurisdiction itself to entertain any original application for judicial review; it has appellate jurisdiction over judgments and orders of the High Court made by that court on applications for judicial review.” And the learned Law Lord also made the following remarks: “Judicial review is available as a remedy for mistakes of law made by inferior courts and tribunals only. Mistakes of law made by judges of the High Court acting in their capacity as such can be corrected only by means of appeal to an appellate court; and if, as in the instant case, the statute provides that the judge’s decision shall not be appealable, they cannot be corrected at all.” (emphasis added)
Lord Diplock’s statement pertaining to the jurisdiction of the Court of Appeal is an apt description of the jurisdiction of the Court of Appeal of Seychelles.
I am of the view that the Court of Appeal in view of the provisions of sections 342(1) and (6) does not have the jurisdiction to entertain an appeal from an order of the Supreme Court refusing to enlarge an accused on bail pending trial before it and who has not yet been convicted by the Supreme Court. A similar issue as to the jurisdiction of the courts of Seychelles arose when our courts had to consider dealing with piracy cases committed outside our territorial waters. Prior to the amendment to the Penal Code in 2010 the jurisdiction of the courts of Seychelles was one of a territorial jurisdiction. The fact that piracy is a crime against humanity was not sufficient cause to invoke the principle of universal jurisdiction and this necessitated an amendment to the Penal Code to give our courts jurisdiction to try offences of piracy committed outside the territory of Seychelles.
It is prudent to look into the issue whether an accused person has a fundamental right to be released on bail as per the provisions of article 18(7) which deals with the right to liberty, once he has been charged before the court and trial dates are fixed and a fundamental right to appeal against an order of the Supreme Court denying bail. It is to be noted that the right to be enlarged on bail is not an unqualified right, like some other rights set out in Chapter III of the Constitution, and is based on a determination made by court on a consideration of the criteria laid down in article 18(7) (a )to (f). Once charged and an accused has taken his plea another corresponding right comes into application, namely the right to a hearing within a reasonable time under article 19(1). To ensure that an accused person gets a “…….hearing within a reasonable time” then becomes an obligation on the trial court. Thus a trial court in entertaining an application for bail pending hearing will have to balance the two rights and ensure that the accused will appear for the trial. Article 19 which sets out the right to a fair hearing provides for a right of appeal at sub-article (11) thus: “Every person convicted of an offence shall be entitled to appeal in accordance with law against the conviction, sentence and any order made on the conviction” (emphasis added). It is therefore clear that a right to appeal against an order of the Supreme Court denying bail during a hearing has not been specifically enshrined as a fundamental right in the Constitution. We must also bear in mind the maxim ‘Expressio Unis EstExclusioAlterius” which means the express mention of one thing implies the exclusion of another and which is a product of logic and common sense.
Counsel for the Appellants argued before us that this Court has all the authority, jurisdiction and power of the Supreme Court in view of the provisions of article 120(3) of the Constitution and thus have the jurisdiction to entertain this appeal. Article 120(3) states:
“The Court of Appeal shall, when exercising its appellate jurisdiction, have all the authority, jurisdiction and power of the court from which the appeal is brought and such other authority, jurisdiction and power as may be conferred upon it by or under an Act.”(emphasis added).
The short answer to this proposition is that such authority, jurisdiction and power exists only when this Court is seized with its ‘appellate jurisdiction’; and when it does not possess such jurisdiction, it cannot exercise any powers of the Supreme Court.
It was sought to be argued at the hearing before us (reference is to the hearing in Kenneth Steve Esparon) that orders pertaining to bail do not come within the purview of article 120(2) of the Constitution as bail is so fundamental a right and also a matter that will not attract the application of section 342(6) of the Criminal Procedure Code. The argument was to the effect that an order pertaining to bail has to be looked at differently from other orders made during a criminal trial which would result in stopping a criminal trial midstream. If that be the case ‘prohibition orders’ made under section 31 of the Misuse of Drugs Act and ‘restraint orders’ made under section 26 of the Anti-Money Laundering Act, prohibiting a person charged with an offence under the said Acts from dealing with any realisable property also fall into the category of orders that will not result in stopping a criminal trial midstream. It is to be noted that prohibition and restraint orders necessarily infringe on the fundamental right to be treated with dignity, which is an unqualified right and the right to property which are enshrined not only in the Constitution but set out emphatically in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.It is my view that granting or refusal of bail certainly is one necessarily involving the provisions of the Criminal Procedure Code. We do not have a separate Bail Act unlike in other jurisdictions and all provisions in relation to the granting or refusal of bail are contained in the Criminal Procedure Code.
Therefore I am of the view that we cannot give a restrictive meaning to the words ‘order’ or ‘decision’ in article 120(2) of the Constitution or section 342(6) of the criminal Procedure Code and state that orders in relation to bail are excluded from its provisions. If that is how the drafters of the Constitution meant it to be, I am certain they would have specifically provided for it under appealable orders in article 19(11) of the Constitution referred to earlier or excluded it specifically from the restrictions that could be placed on appealable orders in article 120(2) or from the application of the provisions of section 342(6) of the Criminal Procedure Code. It would also lead to uncertainty if the courts begin to interpret what type of determinations may be categorized as ‘decisions’ or ‘orders’ of the Supreme Court as envisaged by article 120(2) of the Constitution and section 342(6) of the Criminal Procedure Code. In my view the drafters of the Constitution had decided to give a free hand to the Legislature in whom the legislative power of Seychelles is vested to exclude without qualification, any ‘decisions’ or ‘orders’ of the Supreme Court from the purview of appealable orders. In Abel V Lee (1871) LR 6 CP 365 at 371 Willes J said: “It is not competent to a Judge to modify the language of an Act in order to bring it in accordance with his views of what is right or reasonable”. In R V Mausel (1881) 23 QBD 29 Lord Coleridge stated that “It was the business of the courts to see what Parliament had said, instead of reading into an Act what ought to have been said.” In DayaNand Mishra V State of Bihar (1992) 2 Pat LJR 716 it was held: that “The court cannot, while applying a particular statutory provision, stretch it to embrace cases, which it was never intended to govern.” In Tara Dutta V State of Bengal 79 CWN 996 it was held: that “In interpreting a statute, the court cannot fill in gaps or rectify defects.” In Ravichandran K V Metropolitan Transport Corporation Ltd, (2004) 3 LLJ Mad 152 it was held: “Undoubtedly, if there is a defect or omission in the words used by the legislature, the court would not go to its aid to correct or make up the deficiency. The court would not add words to a statute or read words into it which are not there, especially when the literal reading produces an intelligible result.” In Kashinath Baba Asbe V State of Maharastra (2001) AIHC 1271 (Bom) it was held: “The court cannot aid the legislature’s defective phrasing of an Act, or add and mend, and by construction, make up deficiencies which are there.” In Dental Council of India & Anor V Hari Prakash & Ors (2001) 8 SC 61 it was held: “What is not included by the legislature cannot be undone by the court by adopting the principle of purposive interpretation.”
This Court may, in its discretion, in a case in where an appeal against a conviction by the Supreme Court is filed, grant bail pending the hearing of such appeal. This is similar to the position in the UK. In the UK “The Court of Appeal has jurisdiction to grant bail to a person who has served notice of appeal or notice of application for leave to appeal against his conviction and/or sentence in the Crown Court ( Criminal Appeal Act 1968, s. 19). The Court of Appeal also has power to bail a person who is appealing from it to the House of Lords (s.36).” See Chapter 7.4 Blackstone’s Criminal Practice, 2010.
It was also sought to be argued that orders pertaining to bail were ‘administrative’ and not ‘judicial’ orders and thus did not come within the purview of the word ‘order’ in article 120(2) of the Constitution or section 342(6) of the Criminal Procedure Code. This I believe is totally misconceived. When the issue of bail is decided under article 18(7) of the Constitution or under sections 179 or 195 of the Criminal Procedure Code during the pendency of a trial the Judge makes a judicial determination. It is stated in N.S. Bindra’s Interpretation of Statutes 10th Edition:
“…….Unlike France, with its droit administrative (administrative laws) and its ConcildEtat (State Council) to administer it, administrative laws and administrative courts find no place in the Constitution of Great Britain or of India……..” This statement applies to Seychelles as well. Bindra goes on to state: “Decisions which are purely administrative stand on a wholly different footing from quasi judicial as well as from judicial decisions and must be distinguished accordingly………In the case of the administrative decision, there is no legal obligation upon the person charged with the duty of reaching the decision to consider and way submissions and arguments, or to collate any evidence, or to solve any issue. The grounds upon which he acts, and the means which he takes to inform himself before acting are left entirely to his discretion….”
In Black’s Law Dictionary 9th edition administrative order has been defined as: “An order issued by a government agency after an adjudicatory hearing.”
We are aware that the grounds upon which an administrative decision is quashed on an application for judicial review are different from the quashing of a judicial decision on appeal. One cannot invoke the right of appeal under article 120(2) of the Constitution which necessarily deals with ‘judicial’ decisions and at the same time claim that what is sought to be appealed against is an ‘administrative’ decision. It is my view that the Supreme Court does not make any ‘administrative’ orders in hearing cases.
I am very much concerned of the fact that there has been an inordinate delay in commencing the trial against the Appellants in this case and especially K.S. Esparon who has only one charge against him, namely aiding and abetting others to commit the offence of unlawful possession of a firearm and ammunition. I am of the view that If the Court of Appeal had the jurisdiction to entertain an appeal against an order of the Supreme Court on bail this would have been a fit case to enlarge all the Appellants on bail pending their trial taking into consideration the inordinate delay to commence the trial and the peculiar circumstances of this case. But this cannot grant us a power to assume a jurisdiction that has been specifically excluded from us by the Criminal Procedure Code, in accordance with article 120(2) of the Constitution. To do so would amount to going against the Constitution itself and the doctrine of separation of powers ingrained therein and usurping the power of the Legislature which is vested in the National Assembly.
It is to be noted that an order remanding an accused to custody pending trial is valid only for a period of 15 days in view of the provisions of section 179 and 195 of the Criminal Procedure Code and at the end of such period the order for remand lapses unless a fresh order for remand is made. This Court cannot act on the assumption that the Supreme Court will always remand an accused person pending trial before it, at the end of every 15 days, without good cause as urged by the Appellants’ Counsel.
I have also considered what remedy then is available to an accused in the event of a grave or manifest injustice committed by the Supreme Court in refusing to enlarge him on bail in view of the provisions of section 342(6) of the Criminal Procedure Code.
Article 19(13) provides:
“Every person convicted of an offence and who has suffered punishment as a result of the conviction shall, if it is subsequently shown that there has been a serious miscarriage of justice, be entitled to be compensated by the State according to law.”
Under this provision the period spent on remand in respect of the offence charged especially where there has been a delay in concluding the hearing will certainly be taken into consideration by the Constitutional Court or the appellate court hearing the case.
Article 18(4) provides:
“Where a person is convicted of any offence, any period which the person has spent in custody in respect of the offence shall be taken into account by the court in imposing any sentence of imprisonment for the offence.”
There is no specific provision in the Constitution to cater to a situation where a person who has been acquitted by a court after a long period of remand pending his trial. But where there has been an inordinate delay in concluding his hearing he certainly will be able to move the Constitutional Court under article 46 (1) of the Constitution, for breach of his right “to a fair hearing within a reasonable time” enshrined in article 19(1) and seek compensation for the damages suffered under article 46(5) (e) of the Constitution. Even an appellate court which allows his appeal and acquits him can grant him compensation for breach of his right to a fair hearing within a reasonable time where there has been a serious miscarriage of justice. In the Attorney General’s Reference case [2004] 2 AC 72, in the context of the provision of article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which makes reference to a “fair and public hearing within a reasonable time”, Lord Bingham, with whom the majority agreed said:
“………….If the breach of the reasonable time requirement is established retrospectively, after there has been a hearing, the appropriate remedy may be a public acknowledgement of the breach, a reduction in the penalty imposed on a convicted defendant or the payment of compensation to an acquitted defendant” (emphasis added).
I therefore dismiss this appeal.” (That was my Dissenting Judgment in Kenneth Steve Esparon)
Having dealt with my Dissenting Judgment in Kenneth Steve Esparon, I shall now set out the basis upon which Domah J in the majority judgment of the said case, held, that the Court of Appeal has the jurisdiction to entertain an appeal against a ruling made by the Supreme Court, dismissing an application for release on bail of an accused whose trial is still proceeding, before the Supreme Court.
Domah J stated in the majority judgment of Kenneth Steve Esparon: “Section 342(6) of the Criminal Procedure Code, has no application as bail is an action on its own right and the determination of bail is a power intrinsic to the courts. Bail is not an incidence of a criminal trial to be caught by section 342(6) which deals with criminal matters. It is an independent action grounded on the Constitution. Bail hearing is not part of a criminal case even if it has to be conceded that it walks in the shadows of a criminal trial. It has an independent life free from the criminal process yet walking hand in hand with it. Section 342 of the Criminal procedure Code deals with the question of criminal appeals. Bail application is not a criminal action. It is a constitutional action whether it is before the lower court or the Court of Appeal.” (emphasis added)
Reliance had been placed by Domah J on article 18(8) of the Constitution, in furtherance of his argument, that the Court of Appeal has the jurisdiction to determine an appeal from an order refusing bail by the Supreme Court, during a trial pending before the Supreme Court, and in support of his argument that bail is a constitutional action. Having earlier pronounced that section 342(6) of the Criminal Procedure Code has no application to an appeal from an order refusing bail by the Supreme Court, he had also placed reliance on section 342(4) and (5) of the Criminal Procedure Code, in support of his argument that the Court of Appeal has the jurisdiction to determine an appeal from an order refusing bail by the Supreme Court. He states at paragraph 26 of his judgment: “The procedural isolation of a bail application before courts may be noted and evident by section 342(5) of the Criminal Procedure Code. The latter provision makes it a separate cause of action. It states that an application for bail under this section shall be by motion, supported by affidavit, served on the Attorney-General, and may be heard in Chambers. A bail application, then, is a case in its own right, independent of the criminal case.” [Please see paragraph 10 above for section 342 (1) to (6) of the Criminal Procedure Code].
If bail is a ‘constitutional action’ as stated by Domah J it is my view that it has to be determined by the Constitutional Court in view of the provisions in article 129(1) of the Constitution. Chapter VIII, Part IV, article 129 of the Constitution which deals with constitutional questions states:
“The jurisdiction and powers of the Supreme Court in respect of matters relating to the application, contravention, enforcement or interpretation of the Constitution shall be exercised by not less than two Judges sitting together.
Where two or more Judges sit together for the purposes of clause (1), the most senior of the Judges shall preside.
Any reference to the Constitutional Court in this Constitution shall be a reference to the Court sitting under clause (1).” (emphasis added)
The marginal note to article 129 states: “Supreme Court as Constitutional Court”.
Article 18(8) of the Constitution, upon which Domah J has placed reliance upon, in my view, does not apply to a person to whom bail has been refused pending trial before the Supreme Court. It applies to a person who is being ‘unlawfully’ detained without any order of any court. Article 18(8) of the Constitution states: “A person who is detained has the right to take proceedings before the Supreme Court in order that the Court may decide on the lawfulness of the detention and order the release of the person if the detention is not lawful.” The case of Kenneth Steve Esparon, just like this case, were appeals made to the Court of Appeal against orders by the Supreme Court, to remand persons. It cannot be said that a person who has been remanded to custody by the Supreme Court is in ‘unlawful’ detention. The order for remand made by the Supreme Court may not be correct, but it does not become ‘unlawful’ as the Constitution itself provides a derogation to the ‘right to liberty of the person’ provided for in the Constitution. Article 18(2) of the Constitution states that the restriction, in accordance with fair procedures established by law, of the right under clause (1) (a), namely the arrest or detention in execution of a court sentence or other lawful order of a court shall not be treated as an infringement of article 18(1) of the Constitution which states: “Every person has a right to liberty and security of the person.” Section 179 of the Criminal Procedure Code provides for remand of accused persons pending trial.
Article 18(8) refers to Habeas Corpus applications referred to in article 125 (c) of the Constitution.
“125.(1) There shall be a Supreme Court which shall, in addition to the jurisdiction and powers conferred by this Constitution, have -
(a) original jurisdiction in matters relating to the application, contravention, enforcement or interpretation of this Constitution;
(b) original jurisdiction in civil and criminal matters;
(c) supervisory jurisdiction over subordinate courts, tribunals and adjudicating authority and, in this connection, shall have power to issue injunctions, directions, orders or writs including writs or orders in the nature of habeas corpus, certiorari, mandamus, prohibition and quo warranto as may be appropriate for the purpose of enforcing or securing the enforcement of its supervisory jurisdiction; and
(d) such other original, appellate and other jurisdiction as may be conferred on it by or under an Act.” (emphasis placed by me)
I am of the view that sections 342 (4) and (5) cannot be read in isolation of section 342(1) and (6) of the Criminal Procedure Code. 342(4) and (5) necessarily flows from section 342(1). Section 342 deals with appeals from the Supreme Court as stated in the head note and marginal note to that section. Sections 342(4) and (5) come into application only when an appeal to the Court of Appeal is filed, and that is when a person convicted on a trial held by the Supreme Court has appealed to the Court of Appeal against his conviction or against his sentence. That is pending the determination of his appeal by the Court of Appeal; a person can make an application for bail before the Court of Appeal. Certainly 342(4) and (5) does not apply to this case, as the Appellants in this case, have not been convicted by the Supreme Court, to lodge an appeal to this Court. The fact that the procedure to make an application for bail when an appeal is filed against a conviction before the Court of Appeal is provided for in section 342 (5); does not make an application for bail a case in its own right, independent of the criminal case as Domah J states, for the simple reason when the appeal is heard and determined or if the appeal is withdrawn the application for bail under section 342 (5) automatically comes to an end. An application for bail under section 342(4) thus, is not a case in its own right, independent of the criminal case.
It is only a person who has been convicted and who has filed an appeal before the Court of Appeal, who can make an application for bail to the Court of Appeal under section 342 (4) of the Criminal Procedure Code.
The Judge of the Supreme Court who convicts an accused, may also in his discretion, when an appeal has been filed to the Court of Appeal against the decision of the Supreme Court, grant the convict bail pending the hearing of such appeal under section 327 of the Criminal Procedure Code. Section 327 states:
“The Judge may, in his discretion, in any case in which an appeal from a decision of the Supreme Court in its appellate jurisdiction to the Court of Appeal is filed, grant bail pending the hearing of such appeal.” (emphasis added)
The power to grant bail is always there in the Trial Court where the hearing is taking place at any stage of the hearing. According to section 179 of the Criminal Procedure Code, when a case is adjourned before or during the hearing of any case the court may enlarge an accused person on bail or commit him to prison, conditioned for his appearance at the time and place to which such hearing or further hearing shall be adjourned. Where the accused person has been committed to prison, no such adjournment shall be for more than fifteen clear days, the day following that on which the adjournment is made, being counted as the first day. Thus an accused person is entitled to keep on renewing his application for bail every 15 days, if his application to be released on bail has been refused on an earlier occasion.
The authority of R (Uddin) V Crown Court Leeds 920130 EWHC 2752 (Admin) cited by Domah J at paragraph 40 of the majority judgment is exactly what my Dissenting Judgment said, namely there cannot be judicial review challenge to a decision of a trial court on bail, during a trial. This is what was stated also in Attorney General V Tan Boon Pou 1 of 2005 by this Court which I cited at paragraph 12 of my Dissenting judgment, and referred to at paragraph 13 above.
Justice Domah at paragraph 45 (6) of the majority judgment had stated; “If the case is still awaiting trial and a defendant is still incarcerated he may apply to the Court for his release. If he is not released after an adversarial first instance hearing at the Magistrate’s Court, he may appeal to the Supreme Court. If he is not released after an adversarial first instance hearing by the Supreme Court, he may appeal to the Court of Appeal.” This would mean that the Court of Appeal will be entertaining applications for bail even in respect of cases still pending trial before the Magistrate’s Court. The question as to what would happen if the defendant is not released after an adversarial first instance hearing by the Court of Appeal, has not been answered, especially in view of Justice Domah’s statement at paragraph 45 (3) of the majority judgment in Kenneth Steve Esparon that “the judiciary needs to ensure that the principle is not reversed in the sense that bail instead of jail becomes jail instead of bail.”
At the hearing of the present case, Counsel for the Appellants made a futile attempt to place reliance on the right to liberty guaranteed in article 18(1) of the Constitution, as giving the Appellants an unqualified right to bail, and the Court of Appeal the jurisdiction to entertain an appeal, against a ruling made by the Supreme Court dismissing an application for release on bail of an accused, whose trial is still proceeding before the Supreme Court. Article 18(1) of the Constitution reads as follows: “Every person has a right to liberty and security of the person.” Article 18(2) of the Constitution states that the restriction, in accordance with fair procedures established by law, of the right under clause (1) (a), namely the arrest or detention in execution of a court sentence or other lawful order of a court shall not be treated as an infringement of article 18(1). Also article 18(1) only speaks generally of the ‘right to liberty’ but certainly not about the ‘jurisdiction’ of the Court of Appeal to entertain an appeal against a ruling made by the Supreme Court dismissing an application for release on bail of an accused whose trial is still proceeding before the Supreme Court, which is the only issue before this Court. The jurisdiction of the Court of Appeal is only to be found in articles 120(1) and (2) of the Constitution (referred to at paragraph 9 above) which has been dealt with earlier.
Counsel for the Appellants also made reference to ‘Claw-back’ clauses in a Constitution, but made no specific reference to any such clauses. ‘Claw-back’ clauses or ‘Limitation clauses’ suspend or restrict guaranteed rights to which they apply and do appear in national constitutions. Article 18(2) referred to in the earlier paragraph is a “Claw-back’ clause of the right guaranteed in article 18(1) of the Constitution. ‘Claw-back’ clauses stipulate that the restriction of constitutional rights should be done by the Constitution itself or by enacting law and the said law must be necessary or reasonably required to accomplish certain specified social or public goals. Almost every constitutional guarantee of certain rights attaches limitations to the breadth of those rights in an effort to balance the interests of the individual with those of the state when certain conditions arise. Courts typically employ a proportionality test and consider the necessity to determine the constitutionality of the restriction. Such restrictions should not be discriminatory and Courts will require such restrictions are minimally restrictive, non-discriminatory and proportionate when viewed in relation to explicit objectives.
The Appellants argument on ‘Claw-back’ clauses is totally misconceived and goes against their argument of their ‘right to appeal against a remand order made by the Supreme Court’. In fact articles 19(11) and 120(2) (referred to at paragraph 11 above) of the Constitution and section 342(6) of the Criminal Procedure Code amount to ‘Claw-back’ clauses of the general right of appeal set out in article 120(1) of the Constitution. The restriction of the general right of appeal set out in article 120(1) of the Constitution in my view is minimally restrictive, non-discriminatory and proportionate when viewed in relation to the explicit objectives. The explicit objective for such restriction is to be found in Justice Domaha’s comments in Roy Beeharry VS The Republic as referred to at paragraph 15 above and more so because of his pronouncement that “The appellate court is bereft of the many advantages which a trial court has, proceeding as it does from a record of proceedings and, on a session by session basis.” Further the power to grant bail is always there in the Trial Court where the hearing is taking place, at any stage of the hearing. An accused person is entitled to keep on renewing his application for bail every 15 days.
For the reasons set out in my dissenting judgment in Kenneth Steve Esparon and after having considered the reasons set out in the majority judgment of the said case as referred to at paragraphs 34 and 35 and the views expressed by me at paragraphs 36 to 44 above in relation to those reasoning and also the arguments of the Appellant’s Counsel at the hearing of this appeal at paragraphs 45 to 47 above and my observations in respect of those arguments, I hold that the Court of Appeal is not invested with the jurisdiction to entertain an appeal against a ruling made by the Supreme Court dismissing an application for release on bail of an accused whose trial is still proceeding before the Supreme Court.
For the reasons set out above I am of the view that the Court of Appeal has no jurisdiction to entertain an appeal from an order made by the Supreme Court refusing bail in respect of a case still pending before it. I therefore dismiss the appeal.
A.Fernando (J.A)
Signed, dated and delivered at Palais de Justice, Ile du Port on11 August 2017
11