Mariano v R

• Judge: Inniss, J.A.
• Judgment Date: 10 July 1980
• Neutral Citation: BZ 1980 CA 14
• Docket Number: Criminal Appeal No. 9 of 1980
• Court: Court of Appeal (Belize)
• Date: 10 July 1980

Court of Appeal

Inniss, P.

Criminal Appeal No. 9 of 1980

Mariano

and

Regina

Criminal Law - Bail — Application

Facts: Petition to Court of Appeal pending hearing of appeal against conviction and sentence — Sentence of three years — Appellant would have spent approximately 6 months in confinement before his appeal could be heard — Whether exceptional circumstances shown for granting of bail — Whether principle applied for granting of bail in cases of short or comparatively short sentences also applicable to case of a long sentence

Held: Arguable nature of appellant's grounds of appeal provided exceptional circumstances, petitioner admitted to bail pending hearing and determination of his appeal.

Inniss, J.A.

1 This is an application for bail by the appellant Luke Mariano, who on the 16th April, 1980, was convicted on two counts of stealing from employer contrary to S. 156(a) of the Criminal Code and sentenced in respect of each conviction to three years imprisonment with hard labour, the sentences to run concurrently.

2 On applications of this kind, the principle which is followed by the court is that it will not usually grant bail, and will only do so in exceptional circumstances. Exceptional circumstances mean circumstances which the court considers exceptional and such as to take the case out of the rule that the court does not usually grant bail. (See the rulling dated 22nd February, 1977, on the application for bail in Roy Ruebin Zelaya v. Reg.); or, as it was put in Walton (reported in the Cr. Law Review for April, 1979, at p. 246, and cited in the ruling dated 1st June, 1979, on the application for bail in Willword Bonner) such as will drive the court to the conclusion that justice can only be done by the granting of bail.

3 On 22nd April, 1980, the appellant gave notice of appeal; and on 26th May, 1980, Mr. Zuniga, counsel on his behalf, filed a notice stating the grounds of appeal, which referred to alleged misdirection by the trial judge in his summing up to the jury.

4 The appellant's appeal was in the list for hearing at the June Sessions of the Court of Appeal, which opened on 11th June, 1980; but before it could be heard the sessions had to be terminated with the result that the appellant's appeal was adjourned to the next sessions of the court.

5 The Registrar has informed this court that the opening day of the next sessions has not yet been fixed by the substantive President, but that the next sessions would normally he held sometime in October, or early in November, 1980.

6 In the result, the appellant will have served approximately six months or a little more of his sentence before his appeal can come on for hearing.

7 This circumstance is the main ground of the application for bail. Indeed, apart from reference to his good character previous to the convictions now under appeal, and to the fact that during his trial and from 10th February, 1979 the appellant had been on bail without absconding, no other circumstances has been urged.

8 Mr. Zuniga, for the appellant, pointed to the ruling on bail given by this court (fully constituted) in Ramesh Bhojwani v. Reg. and dated 24th November 1978; and to the ruling given by myself as single judge on the application for bail in Wilford Bonner v. Reg. and dated 1st June, 1979. He referred to the passage in the ruling on the Bhojwani application where the court said:

“We are particularly influenced by the relationship between the sentence and the period of time that must elapse before the appeal can be determined”, and submitted that the principle is the relationship of the sentence to the time which would have to be served before the hearing of the appeal.”

9 He went on to cite four cases in which bail had been granted and sought to strike a parallel between these and the instant application by arguing that in each the amount of the sentence which would have to be served before the appeal could be heard was one-sixth, and that one-sixth was therefore to be regarded as a substantial portion of the sentence.

10 These cases were:–

Charavanmuttu v. Reg. 21 Cr. App. R. 184

Newberry and Elman 23 Cr. App. R. 66

Stewart 23 Cr. App. R. 68 and the case of Harding Turner and King 23 Cr. App. R. 143

11 As to this submission, I would say that the just three cases are not really comparable with the instant application because in all of them there were compelling circumstances additional to the length of the interval between conviction and the hearing of the appeal. On the other hand support for counsel's contention appears to exist in a case not cited by him, namely, Macdonald (1930) 21 Cr. App. R. 26 cited in my ruling on the application for bail in Willword Bonner v. Reg. (supra). In Macdonald the applicant was convicted on July 12th of knowingly receiving stolen property and sentenced to 18 months imprisonment with hard labour. His appeal could not be heard until the end of the long vacation, so that approximately three months (or one sixth) of his sentence would have had to be served before his appeal could be heard. He was admitted to bail.

12 Mr. Elrington, for the Crown, opposed the granting of bail as a matter of principle, since the facts, he submitted, were only border-line. He said that this was clearly a case in which the period of imprisonment in relation to the term of the sentence was right on the margin of what would be regarded as a tolerable or permissible period of waiting.

13 He submitted that there was a relationship between the April Criminal Sessions of the Supreme Court and the June Sessions of the Court of...