The magistracy has a discretion to grant bail pending appeal where a magistrate has sentenced a defendant

Dear Editor,

There seems to be a misconception by the magistracy and prosecutors to the effect that once a magistrate finds a defendant guilty and sentences him, the magistrate is functus officio and cannot grant bail pending an appeal that was filed by the convicted person.

One of my colleagues in Berbice informed me that a magistrate in Essequibo, to whom he had made an application for bail pending appeal after that magistrate had convicted and sentenced his client to imprisonment, refused to grant the bail as the magistrate said he was functus officio, that is, the matter having been concluded, he cannot any longer deal with it not even for the purpose of bail pending appeal.

However, once an appeal is filed against that magistrate’s decision and the fees for filing are paid and a copy of the appeal is served on the complainant ‒ the person who filed the charge ‒ the convicted person (the appellant) has a statutory right to apply for bail to the magistrate

pending appeal and the magistrate has a discretion to grant bail.

Up to 1977, the filing of an appeal automatically suspended the decision and sentence of the magistrate and there was no need to apply for bail (Section 12 of the Summary Jurisdiction (Appeals) Act, Chapter 3:04-Green volumes-1973 edition). That section reads:

“When the provisions of sections 4 and 5 have been obeyed, the execution of the decision under appeal shall be suspended until the appeal is determined by the Court or is abandoned, and if the

appellant is in custody he shall be released on the order of the magistrate, unless he has elected to continue to undergo his sentence pending the appeal”.

In 1977 Parliament passed Act No. 17 of 1977 which repealed Section 12 of Chapter 3:04 and provided that a sentence of imprisonment passed by a magistrate was no longer suspended by the filing of an appeal.

Section 2 of Act No. 17 of 1977 provides that the magistrate who passed the sentence can grant bail pending an appeal. Section 2 of Act No. 17 of 1977 reads:

“Section 12 of the Principal Act (the Summary Jurisdiction (Appeals) Act Chapter 3:04) is hereby repealed and the following section substituted therefor

  1. (1) Subject to this section, on compliance by the appellant with the provisions of section 4 and 5 the execution of the decision under appeal shall be suspended until the appeal is determined by the Court or is abandoned…”

“(2)  Subject to subsections (3) and (4) subsection (1) shall not operate to suspend the execution of any order for the imprisonment of the appellant…

(4) An appellant who has complied with sections 4 and 5 and who has been sentenced to imprisonment may elect to undergo his imprisonment; if he does not elect to do so, he shall, unless granted bail under subsection (4), be kept in prison and treated in like

manner as a prisoner awaiting trial…

(6) An appellant referred to in subsection (3) may be admitted to bail upon application by him to the magistrate from whose decision appeal is made or on petition to a Judge of the high Court, which petition shall be heard as soon as practicable.”Thus it is clear that a magistrate who convicted and sentenced a defendant can grant bail pending the hearing of an appeal. This was recongised by the Caribbean Court of Justice in the case of Kevin Dhanpat v Hasrat Mohamed (2014) CCJ 9.

Further by section 6(4) of Act No. 4 of 1980 passed by Parliament on the 1st April, 1980 such a magistrate is permitted, in his discretion, to grant bail pending appeal in any case tried by him. That section reads:

“In relation to any appeal from any decision given by a Magistrate after the coming into operation of this section in respect of an indictable offence dealt with summarily, sub-section (4) of section 12 of the Summary Jurisdiction (Appeals) Act Shall be construed and have effect as if it reads-

“(4) An appellant referred to in sub-section (3) maybe admitted to bail upon application by him to the magistrate from whose decision appeal is made or on petition to a Judge of the Court or, on refusal of any such petition, on petition to a judge of the Court of Appeal, and any such application or petition shall be heard as soon as practicable.”

Strictly speaking there was no need to give any statutory discretion by Act No. 4/1980 to the magistrate to grant bail in an indictable matter tried summarily as the magistrate already had such a discretion under the 1977 Act.

It was, however, necessary for a discretion to be given to a judge of the Court of Appeal to grant bail pending appeal where a similar application was refused by a judge of the High Court in the case where a magistrate had earlier refused such an application.

The law officers in 1980 probably thought that since magistrates were authorised to deal summarily with nearly all indictable offences by virtue of the Administration of Justice Act of 1978 it should be made clear that magistrates can grant bail in all indictable matters taken summarily pending appeal. That, most likely, was an oversight, as magistrates always had jurisdiction to try certain indictable matters summarily by virtue of section 61 of the Summary Jurisdiction (Procedure) Act Chapter 10:02 and to grant bail in those matters pending appeal since 1977.

The time is more than ripe for the magistracy to understand that it is given a statutory discretion to grant bail in cases where a magistrate convicts and sentences an offender to imprisonment. It should be noted that if such a magistrate refuses to grant bail an appellant can apply to a judge of the High Court for bail pending appeal and, on that judge’s refusal, apply to a judge of the Court of Appeal for bail pending appeal in any indictable matter tried summarily.

Yours faithfully,

Murseline Bacchus

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