Ors v Republic (SCA No.13/14/15/16/17 of 2009) (17 of 2009) [2011] SCCA 1 ([node:field-jdate]);


IN THE
SEYCHELLES COURT OF APPEAL



Christopher Freminot and Ors
…..................................................................................Appellant








Versus





The
Republic
…............................................................................................................Respondent








SCA No.13/14/15/16/17 of 2009








Mr.
Hoareau and Mr. Georges for the Appellants


The
Attorney General, Mr. Govinden and Mr. Esparon for the Respondent








Ruling





Twomev,
M. JA



1. This is an application for bail pursuant to section
342 (5) of the Criminal Procedure Code in a case involving five
appellants
convicted for aiding and abetting in the importation of a
controlled drug contrary to the Misuse of Drugs Act, Cap 133 and for

aiding and abetting in the trafficking of a controlled drug contrary
to the Misuse of Drugs Act 1990. Learned Counsel for the
Appellants
have made applications for bail pending the hearing of the appeals.
Their applications are supported by affidavits.
Learned Counsel for
the Respondent has submitted a counter affidavit in which reasons
why bail should be refused are set out.
Arguments on behalf of the
Appellants and Respondents have been heard.



2. Learned Counsel for the
Appellants contend that the Appellants have been incarcerated since
21
st
May 2008 and submit that their
constitutional right under article 18(1) of the Constitution has
been breached, specifically their
right to liberty. With respect,
this submission alone cannot find persuasion with this Court. The
Appellants are presently incarcerated
as they have been convicted
and sentenced to prison terms by the Supreme Court, such a
restriction to their constitutional right
as permitted by the
Constitution in its article 18 (2) (a). Counsel has however
submitted several cases, some of which are very
much to point.



3. Learned Counsel for the Respondents, the
Attorney-General, argues that an application for bail in the Court
of Appeal is not
contained in either article 18 or article 19 of the
Constitution and that the regime for such applications is solely
based in
legislation. In that respect he has also submitted several
cases.







4. We respectfully disagree. It is
clear that the Constitution by including the right to bail in its
very letter (article 18(1))
enhances its rightful importance and
this Court is mindful of
safeguarding
such constitutional rights. Further, the unfettered discretion of
the Court to grant bail pending appeal is contained
in section 342
(5) of the Criminal Procedure Code. In this respect it is incumbent
on the Respondents to show why it should not
be granted, even in
cases pending appeals.









5. In
general, bail acts as a reconciling mechanism to accommodate a
person's
constitutional right to liberty and society's interest
in assuring his presence at trial and
other related court
proceedings. The fundamental principles for the granting of
bail
generally, has been laid down recently by Domah, J A, in the
case of
Beeharry v
R (SCA
11 of 2009).
The
case of
Panagary v
The Republic (SCA 9 of 2010)
addresses
the issue
of bail pending appeals. We see no reason from
departing from the established principles
therein summarized and
accept that in such cases bail is only granted in
exceptional
circumstances. Further, although the rights enshrined
in the Constitution came well after
Joubert
v R (SLR 1976 17),
its
principles still obtain:







"Where there is an appeal the principles which
apply for granting bail are different from the principles which
apply when
an accused is first brought to trial...In such cases the
appellant must show special reasons. A clear record and the
shortness
of sentence would together form a special reason. This
however is not limitative..."







6. Sauzier's
J ruling is similar to the English Court of Appeal's finding in the
case of
R v
Watton
(1978) 68 Cr. App. R. 293,
namely,
that in deciding whether to grant bail
pending appeal







"the true question is, are there exceptional
circumstances, which would drive the Court to the conclusion that
justice can
only be done by the granting of bail?"



7. In Sinon
v R
(SCA 4 of 2006),
Hodoul,
J A, took a similar view and went on to express the view that the
special reason would have to be exceptional and unusual.



8. Does the present case reveal special, exceptional
and unusual reasons for granting bail? When addressing these
considerations,
this Court, not seized of the Supreme Court
proceedings, finds itself limited to the judgment of the Supreme
Court in the appealed
case which has been duly signed and dated by
Gaswaga J. It also has before it the averments contained in the
affidavits and arguments
of Counsels. It cannot take cognisance of
any other factors which may be contained in the proceedings of the
case which are to
all intents and purposes not extant.



9. Further, the Constitution whilst enshrining the
right to a fair hearing in its Article 19 provides in section (3)
that:







"When a person is tried for any
offence that person or other person authorized by that person in
that behalf shall, if either
of them so requires and subject to
payment of such reasonable fees may be specified by or under any
law, be given
as
soon as is practicable
after
judgment a copy for the use of that person of any record of the
proceedings made by or on behalf of the court." (emphasis

added)



10. In considering the phrase "as
soon as is practicable" we have looked at correspondence with
the Supreme Court Registry
in relation to this matter. The Notice of
Appeal in this case is dated 29
th
July 2009 and was filed first for
the August session of 2009 and has missed five subsequent sittings
of the Court of Appeal including
this one. The records of the Court
of Appeal show that numerous letters and oral representations have
been made to the Supreme
Court Registry to have the record of
proceedings expedited and served on all parties concerned, but to no
avail.



11. We strongly condemn this systematic ineptitude and
failure of the court system to provide timely deliverables at the
expense
of the rights of appellants to obtain a fair trial within a
reasonable time as guaranteed by the Constitution.



12. We are mindful that neither the
Appellants nor the Respondents are to blame for this failure. In
this respect, the Court has
to balance the constitutional rights of
the Appellants with the State's public interest considerations. Here
the Appellant's
rights are very much in abeyance pending the
production of records of proceedings which they require to conduct
their appeals.
The inexplicable and unacceptable delay in producing
records of proceedings cannot operate to breach the Appellant's
constitutional
rights. In several cases by the Strasbourg Court
namely,
Zimmerman
and Steiner v Switzerland ((1984) 6 EHRR 17), Bezicheri v Italy
((1990) 12 EHRR 210), AbdoeUa v Netherlands ((1992)
20 EHRR 585)
shortage of
judicial manpower and judicial overload were not recognized as
sufficient State excuses to breach a prisoner's rights
under article
5 or article 6 of the European Convention on Human Rights (articles
which are similar to articles 18 and 19 of
the Seychelles
Constitution). By logical extension, the behaviour of the Registry
has led to a similar breach. The State has
to organize the legal
system so as to meet its obligations.



13. In R
v Landy (1981) 72 Cr. App. R. 237
a
determining factor in granting bail pending appeal was that the
hearing of the appeal would be delayed for some months in order
for
the transcript to be prepared.



14. As pointed out we are limited by
the slim proceedings before us and cannot weigh the chances of
success or failure of this
appeal in the absence of court records.
We are comforted to learn that the transcript of proceedings is now
ready and will be
distributed. Nonetheless, we are of the view that
we shall have no alternative but to release the Appellants on bail
on the following
conditions
if
through any other
systematic failure for which the court system is responsible, this
case is not heard at the next session of
the Court of Appeal:







  1. Surrender of all travel documents by the appellants



  2. The Immigration Authorities to be informed not to
    issue any travel documents to the Appellants pending the disposal
    of this
    case



  3. The Immigration Authorities to be informed that the
    Appellants should not be permitted to leave the Country pending
    disposal
    of this case.



  4. Each Appellant is to report to the Central Police
    Station once a week



  5. A surety of Rupees 20,000 for each defendant








15. These are grave offences and we issue the following
warning and direction:




  • In these exceptional circumstances
    if the appellants are released on bail at the next sitting and
    experience a further delay
    in the hearing of the appeal, that delay
    must not be relied on if their appeal fails as a reason for their
    not being sent back
    to prison to serve their sentence.



  • We take note of this denouement
    which has taken place as a result of the failure of the Supreme
    Court Registry. We are by the
    present directing the Registrar as a
    matter of priority to complete the record of proceedings in these
    appeals urgently so
    that they may be heard in the forthcoming
    August session. We further direct the Registrar to organise the
    contemporaneous recording
    and transcription of proceedings in all
    matters before the Court of Appeal to avoid the catastrophe of
    mislaid or delayed records
    of proceedings and the holding up of the
    judicial process.



  • A copy of this ruling is to be sent
    to all persons responsible for the administration of the Supreme
    Court Registry, namely
    the Chief Justice and the Registrar and the
    President's
    Office.
    Further, all government departments
    charged with the oversight and financing of the Supreme Court
    Registry should be informed
    of this ruling.



M.
TWOMEY


JUSTICE
APPEAL





F.
MACGREGOR


PRESIDENT
OF
COURT
APPEAL





J.
HODOUL



JUSTICE OF APPEAL





S.
B. DOMAH



JUSTICE OF APPEAL








A.
T. FERNANDO



JUSTICE OF APPEAL