Bonner v R

• Jurisdiction: Belize
• Judge: Inniss, J.A.
• Judgment Date: 01 June 1979
• Neutral Citation: BZ 1979 CA 10
• Docket Number: Criminal Appeal No. 7 of 1979
• Court: Court of Appeal (Belize)
• Date: 01 June 1979

Court of Appeal

Inniss, J.A.

Criminal Appeal No. 7 of 1979

Bonner

and

Regina

Criminal Law - Appeal against conviction and sentence — Negligently allowing prisoner to escape from custody

Criminal Law - Bail

Facts: Whether trial judge erred in applying definition of negligence under section of Criminal Code to negligence as set out in section 44 of Prisons Ordinance, Cap. 68, Belize – Whether misdirection of jury – Whether defence put to jury – Appeal against conviction Dismissed –

Facts: Application for bail after conviction and sentence to one year's imprisonment — Applicant would serve quarter of his sentence by time appeal came up for hearing — Whether exceptional circumstances shown for grant

Held: Appeal against sentence allowed – Sentence of one year reduced to six months imprisonment.

Held: Where application for bail has previously been of good character and has been sentenced to a comparatively short term of imprisonment and where interval must elapse before his appeal can be heard which is so long that the applicant will have served a substantial portion of his appeal, special circumstances exist for the granting of bail.

1 Before Inniss, J.A.

2 S. 43(1)(d) of the Court of Appeal Ordinance, 1967 (No. 18 of 1967)

3 This is an application for bail by the appellant, who was on the 11th May, 1979, convicted before the Supreme Court of Belize of negligently allowing a prisoner to escape contrary to S.44 of the Prisons Ordinance, Ch. 68, and sentenced to one year's imprisonment with hard labour.

4 Mr. Zuniga, on behalf of the appellant, in stating the first ground of the application, said that appellant would rely on the precedent set by the Court of Appeal of Belize in Criminal Appeal No. 9/78 Ramesh Bhojwani v. Reg. He pointed to the long list of cases there cited as providing guidelines that bail would be granted in exceptional circumstances to an appellant. One of the circumstances on which appellant relied was the length of the interval which must elapse before his appeal could be heard. Counsel submitted that by the time the Court of Appeal came to Belize City in late July or early August appellant would have served a substantial part of his sentence.

5 As additional grounds of the application, counsel urged that there were substantial grounds of appeal, including one (as in Charavanmuttu 21 Cr. App. R. 184) relating to the absence of corroboration, and that the crime for which appellant had been convicted was a crime of omission, where as in all the cases in which bail had been granted the crimes had been crimes of commission. He also stressed the previous good character of the appellant and the fact that he had been on bail for four months since the date on which he had been charged and had never once failed to attend the court.

6 Counsel for the Crown opposed the application, he said, as a matter of principle. He submitted that the general rule of the Court of Appeal in England and also of this Court of Appeal has been to refuse bail to prospective applicants. The case of Bhojwani was the only one in which bail had been granted by this court and he submitted that the facts of the instant application were distinguishable from the facts in Bhojwani's case.

7 He referred to two passages in the Ruling in that case. The first, in the penultimate paragraph, is as follows:- “We are particularly influenced by the relationship between the sentence and the period of time that must elapse before the appeal can be determined.” He referred to the facts that Bhojwani was convicted on 6th November, 1978, and that the next sitting of the Court of Appeal did not commence until 30th April, 1979, over 5 months later. Counsel also referred to a submission by Mr. Musa, counsel for Bhojwani, which was quoted by the court in the first paragraph on page 2 of the ruling: “He stressed particularly the length of time that must elapse before the appeal is heard and the comparatively short sentence imposed which could mean that the appellant, if successful, could have served a very substantial part of his sentence.”

8 Counsel then turned to the instant application, and it was ascertained from the Registrar that no definite date had yet been fixed for the opening of the next Session of the Court of Appeal in Belize, but that tentative dates had been given depending on the sitting of the Court of Appeal in the Bahamas. The latest date was 13th August.

9 Crown Counsel then submitted that even if 13th August, 1979, were taken as the latest date for the next sitting of the Court of Appeal that would mean that there would be an interval of 3 months between the date of appellant's conviction and the next sitting of the court. That, he submitted, was the normal interval between sessions of the Court of Appeal, and if that delay were treated as an exceptional circumstance then almost every case would qualify for bail. Counsel conceded that the exceptional circumstance was the combination of the short sentence with the interval which must elapse before the appeal could be heard, but argued that in Bhojwani's case Bhojwani would have served about half of his sentence.

10 In making these submission counsel appeared to be comparing the fact that Bhojwani would have served nearly half his sentence of one year with the fact that in the instant case even if the next Session of the Court of Appeal did not open until 13th August, 1979, appellant would only have served 3 months of his sentence of one year, and suggesting, as I understood him, that had the term which Bhojwani would have served been less than it was, the court would not have granted him bail.

11 This contention, for one thing, appears to involve the supposition that in referring to “the period of time that must elapse before the appeal can be determined the court knew that the next session of the Court in Belize would or might begin as late as 30th April, 1979.

12 In this connection, the registrar informed the court that the date 30th April or 1st May, 1979, was fixed by the President in a letter to him dated 21st December, 1978, which did not reach him until 5th January, 1979, as marked on the letter. In these circumstances it seems unsafe to assume that on 24th November, 1978, the date of the ruling, all the judges of the court knew that its next session would or might open as late as 30th April, 1979, although the President himself might have had that date in mind as a possible date for the opening of the next session.

13 So far as Mr. Musa is concerned — and the words “a very substantial part of his sentence were his — I do not see how he could possibly have known that the next Session would or might open on 30th April. To my mind, the probability is that Mr. Musa had in mind the normal date for the, next sitting of the court which would have been sometime in March, 1979. This would mean that he would have contemplated that Bhojwani would have served probably a little more than 4 months of his sentence of 1 year before his appeal could be heard at the next sitting of the court. Further, as I understand Bhojwani, the court did not lay down any interval during which the Applicant would be imprisoned as constituting a limit to consideration of the relationship between the sentence and the period of...