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Present: Mr. Justice. Grenier.
THE KING v. TOUSSAINT et al.
P. G., Colombo, 9,401.
Bail—Discretion—Grounds for the exercise of discretion—Seriousness ofcharge—Nature of evidence—Probability of appearance.
The Supreme Court has a discretion to admit accused persons tobail in all cases, but in the exercise of that discretion, the natureof the charge, the evidenoe by which it is supported, and thesentence which by law may be passed in the event of a conviction,are in general the most important ingredients for (he guidance ofthe Court, and where these are weighty the Court should notinterfere.
PPLICATION for bail on behalf of the first and secondaccused. The accused were charged under sections 443 and
369, and 443 and 369 read with section 102, of the Penal Code.
R. L. Pereira, in support of the application.
Walter Pereira, R.C., S.-G., for the Crown.
Cur. adv. mdt.
March 19, 1909. Grenier A.J.—
These are two applications for bail made by the first and secondaccused respectively in case No. 9,401, P. C., Colombo, which hasbeen committed for trial at the ensuing criminal sessions of theSupreme Court in Colombo on the 20th instant.
I shall first deal with the application of the first accused, MauriceToussaint, which has been made on his behalf by his brother ErnestToussaint. It is not quite correct, as stated in the application, thatthe first accused was arrested on a charge of complicity in the theftof money from the Harbour Works; Colombo. I understand thecharge to be one of house-breaking and theft. The affidavit,however, states in the 2nd paragraph that the first accused wasarrested on a charge of theft of money from the Harbour Works,Colombo, but says nothing of house-breaking. The reasons givenfor the application appear to be (1) that the accused is a man ofunblemished character ; (2) that he is very seriously prejudiced inthe defence by his being kept on remand, even after the close of thecase for the prosecution ; (3) that he is unable to personally instructcounsel or even to raise money wherewith to retain counsel. I canhardly take the first ground into consideration in determining thequestion whether the first accused should or should not be admittedto bail. I might have regarded with some favour the secondground that the accused would be seriously prejudiced in his defenceby his being kept on remand, if facts had been stated upon which Icould have formed an opinion on the point. The third grounddVon. XII.®
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appears to be an unsound one, because there is nothing to preventthe first accused giving instructions to his advocate or solicitorwhilst under remand. The statement that the first accused isunable to raise money wherewith to retain counsel is too bald, asthere are no particulars given by him as to the measures he intendsto adopt to raise money. .1 can understand if the first accused hadstated that he had property which he intended to mortgage, andthat his presence outside was necessary for the purpose; but boththe application and the affidavit are silent on this point.
No doubt the main object in requiring bail is to ensure theattendance of a person charged with a criminal offence, but there areother considerations which the Court in the exercise of its discretiongenerally takes into account. The first accused is charged withvery serious offences punishable with long terms of imprisonment.He is charged with having stolen the enormous sum of money,Rs.. 25,000, from the Harbour Works Office, where he was employedas Head Clerk, and I think what was stated in the case of EhenneBarronet v. Edmond Attain1 should guide me in deciding thequestion as to whether the first accused should or should not beadmitted to bail. It was there stated that the Court has a discretionto admit accused persons to bail in all cases, but in exercising thatdiscretion the nature of the charge, the evidence by which it issupported, and the sentence which by law may be passed in theevent of a conviction are in general the most important ingredientsfor the guidance of the Court, and where these are weighty the Courtwill not interfere. In the case of Quern v. Seaife and vnfe'2 itwas held that the fact of a bill having been found by the grand jurywill of itself have great weight in inducing the Court to refuse anapplication for bail. There the charge against the prisoners was oneof having certain coining moulds in their possession, and the seriousnature of the offence, the amount of punishment, and the fact thata true bill had been found by the grand jury were elements whichthe Court took into consideration in determining the question ofbail. In the present case the Attorney-General, who correspondsto the jury in England, has found a true bill against the prisoners,and I take it that the evidence is strongly presumptive of guilt.Of course, it is for the jury to say whether the evidence is trust-worthy or not when the accused is on his trial.
The application was strenuously opposed by the Solicitor-General,and in my opinion upon grounds which appeared to me to beweighty. It was stated that there was an approver in the case, andthat if the accused was enlarged on bail, the approver might betampered with. In the case of Regina v. Ste-phen Butter and others3it was held by a majority of the Judges that the defendants shouldnot be admitted to bail, considering, first, the serious nature of the
1 Ellis and Blackburn, p. 1.2 Law Journal Reports, Vol. X.p. 144.
2 Cox's Criminal Law Cases, Vol. XIV., p. 530.
offence charged, secondly, the probability of the association ofwhich the defendants were members furnishing them with fundsto indemnify the bailsmen in case of default on the part of thedefendants. Even if I were so disposed, I should have requiredthe first accused to give bail m double the amount which he is saidto have stolen, but in the exercise of my best discretion I woulddisallow the application.
For the same reasons I disallow the application of the secondaccused, too.
THE KING v. TOUSSAINT et al