029-SLLR-SLLR-2004-V-3-RAMU-THAMOTHARAMPILLAI-v.-ATTORNEY-GENERAL.pdf
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RAMU THAMOTHARAMPILLAIvATTORNEY-GENERALSUPREME COURTVYTHIALINGAM, J.
SHARVANANDA, J.
GUNASEKERA, J.
SC 141/75.
HC 5374 JAFFNA(Revision).
M.C.POINT PEDRO 10990.
APRIL 3,1975.
Administration of Justice Law, No. 44 of 1973, sections 192(3), 269, 270(1) and325(3) – Criminal Procedure Code (old), section 15( 1), 15(2) and 341 – Grantingof bail pending appeal? – Changes brought in by section 325(3) – Areexceptional circumstances necessary? – What are exceptional circumstances ?- Power of the Supreme Court to enlarge a person on bail?
The petitioner (moved to revise the order made by the High Court of Jaffnarefusing to grant him bail pending his appeal against his conviction andsentence.
The High Court refused the application on the ground that the petitioner hasnot shown any exceptional circumstances.
It was contended that the provisions in the Criminal Procedure Code (old)would not be applicable after the passing of the Administration of Justice Law(AJL) more particularly section 325(3) and that there was no burden cast onthe petitioner to show that exceptional circumstances existed, and that, bailshould be granted unless good grounds existed for its refusal.
Held:
Per Vythialingam, J.
“If the true position under the present Law (AJL) is that ordinarily bail shouldbe granted unless there were good grounds for refusing it, it would lead to theincongruous position that even a person convicted of murder and sentencedto death should be allowed to stand out on bail pending appeal unless therewere good grounds for refusing it”
SCRamu Thamotharampillai v Attorney-General181
(Vythialingam J.)
That the intention of the legislature in enacting section 325(3) (AJL)was not to make the grant of bail a matter of course unless goodgrounds were shown to the contrary is made clear by section325(2) (AJL)
Per Vythialingam, J.
"Where the intention of the legislature was that bail should be granted unlessthere were good grounds to the contrary it has said so is no unmistakableterms, sections 192(2) and 103 (2). There is a marked difference between thewords of sections 192 (3), 106(2) and 325(3).
Supreme Court has no inherent right to grant bail, nor has it powerto do so under the Commort Law. The power to grant bail is nowvested in the Court by the AJL and other relevant enactments. Ithas wide discretion to grant or refuse bail under section 325(3).
Per Vythialingam,J.
“Where a statute vests discretion in a court it is of course unwise toconfine its exercise within narrow limits by rigid and inflexible rules from whicha court is never at liberty to depart, nor indeed can there be found anyabsolutes or formula which could invariably give an answer to differentproblems which may be posed in different cases on different facts… but inorder that like cases may be decided alike and that there will be ensured someuniformity of decisions it is necessary that some guidance shall be laid downfor the exercise of that discretion".
Requirement of exceptional circumstances should not bemechanically insisted upon.
In the special circumstances of this case having regard to theserious nature of the charge of which the petitioner has beenconvicted, the severity of the punishment that was meted out tohim, and the consequent temptation to abscond, the High Courtwas correct in refusing to admit the petitioner to bail on the groundof exceptional circumstances.
APPLICATION in Revision from the High Court of Jaffna
Cases referred to:
Salahudeen v A.G 77 NLR 262 at 263
Rv Mafika (1995) SALR 1
In Re Ganapathipillai 21 NLR 490
The Queen v Spillbury (1890) 2 QB 609
P. Kannasamy v The Minister of Defence and External Affairs 63NLR 214
Queen v Liyanage 65 NLR 289
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Ward v James (1965) 1 AER 563
SC 1070/74 – Rev. H.C.C. 41/74 SCM 23.1.1975
Naidu v Mudalige 76 NLR 385 at 387
Queen v Punchi Banda 62 CLW 15
Queen v N.L. Comelis Silva 74 NLR 113
Rex v Cooray 51 NLR 360
V.S.A Pullenayagam with C. Mothilal Nehru, Dr. T. Tiruchelvam and T. EdwardChandra for petitioner.
D.S. Wijesinghe, Senior State Counsel for A.G.
Cur.adv.vult.
April 3,1975VYTHIALINGAM, J.
The petitioner in this case moves this Court to revise the order 01made by the High Court Judge, Jaffna, refusing to grant him bailpending his appeal to this Court against his conviction andsentence in that Court. He was charged on two counts of murderand one of attempted murder along with eight others and wasconvicted on the charge of attempted murder and sentenced toseven year’s rigorous imprisonment and a fine of Rs. 1,000/- indefault, one year’s rigorous imprisonment.
The grounds on which he relied for the grant of bail are that hehas to make arrangements to retain Counsel to argue his appealand to attend to other matters relating thereto, that he is the father 10of six children who are still attending school, that he is fifty-fiveyears old, is suffering from rheumatism, feeble and ill, that he is afarmer and that he has not been convicted or even charged in anyCourt of Law prior to this.
The High Court refused the application for bail on the groundthat the petitioner was the person who started the quarrel on thatday and that during the trial it had been brought to his notice that abreach of the peace was imminent as soon as the case wasconcluded, so much so that he had to direct the Police to patrol thearea for two weeks to avoid clashes. He also went on to say that 20“learned Counsel for the 3rd accused (i.e. the petitioner) has notshown any exceptional circumstances as to why I should allow the3rd accused to be on bail till his appeal is decided.”
qqRamu Thamotharampillai v Attorney-General183
(Vythialingam J.)
The matter is now governed by section 325(3) of theAdministration of Justice Law No, 44 of 1973 which is as follows:“When an appeal against a conviction is lodged, the Court mayadmit the appellant to bail pending the determination of his appear.Mr. Pullenayagam for the petitioners submitted that the words mustbe given their natural and ordinary meaning and that having regardto the legislative history of the section the position now under thenew Act is that bail pending appeal should ordinarily be grantedunless there are good grounds for refusing it.
Mr. Pullenayagam submitted that this section made significantchanges in the law as it stood in regard to the granting of bail. Hepointed out that under the old law there were different provisions inrespect of applications made by persons convicted in theMagistrates’ and District Courts on the one hand and applicationsmade by persons convicted in the Supreme Court on the other, andthat different considerations applied to each. He submitted thatunder section 341 of the old Criminal Procedure Code in the caseof appeals from the Magistrates’ or a District Courts it wasmandatory the part of the court from which the appeal waspreferred to grant bail. No discretion to refuse bail was vested insuch a case.
On the other hand in the case of an appeal by a personconvicted after trial in the Supreme Court, a discretion was vestedin the Court of Criminal Appeal to grant or refuse bail, becausesection 15 (1) of the Court of Criminal Appeal Act (Cap 7) providedthat the Court may, if they think fit, on the application of anappellant, admit the appellant to bail pending the determination ofhis appeal. Mr. Pullenayagam argued that now, under section325(3) the discretion was vested in all the Courts – Magistrates’,District and High Courts, to grant or refuse bail because thatsection applied to all the Courts.
He submitted that to make exceptional circumstances arequirement for the grant of bail in all such cases would be to placean unwarranted restriction on the exercise of the discretion vestedin the courts by the section and would also lead to harsh andunconscionable results if Magistrates and District Judges were alsoto insist on the presence of exceptional circumstances to grant baileven in the case of appeals against convictions for trivial offences
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for which very light sentences had been considered a sufficientpunishment.
He therefore submitted that the principle laid down by theformer Court of Criminal Appeal as a guide for the exercise of thediscretion vested in the Court under section 15(1) viz: that “It is asettled principle that the release of a prisoner on bail pending anappeal to the Court of Criminal Appeal will only be granted inexceptional circumstances.” Per Samarawickrema, J. inSalahudeen v Attorney-General 0) is wholly inapplicable for the 70grant of bail under section 325(3) which is a section which is nowapplicable to all the three courts. He also submitted that recentdecisions of this court had mechanically applied this principle tosection 325(3) and needed to be reviewed. He argued that in thiscase the trial Judge had erred in law in requiring the petitioner toshow that there were exceptional circumstances to be entitled to beadmitted to bail under section 325(3).
It is undoubtedly true that section 325(3) is applicable to allthree courts and any principles laid down as a guide to the exerciseof the discretion vested under the section should be of general soapplication to all three courts. But in deciding how the discretionshould be exercised the determining factor is not the court fromwhich the appeal has been preferred but the fact and circumstancesof each case. It is not correct to say as contended by Mr.Pullenayagam that the legislative history of the section shows-thatwhat the legislature intended was that ordinarily bail should begranted unless there were good grounds for refusing it but that, aspointed out by the Senior State Counsel, it was considerednecessary to vest the discretion in the Magistrates’ and DistrictCourts as well because their jurisdiction to hear and determine cases 90involving offences of a more serious nature as well as their punitivepowers had been greatly enlarged by the new law.
“Under the old Criminal Procedure Code (Cap. 20) a DistrictCourt could sentence a person only to imprisonment not exceedingtwo years, a fine not exceeding one thousand rupees, whipping orany lawful sentence combining any two of the aforesaid sentences(section 14).A Magistrate’s Court'could only sentence a person toimprisonment not exceeding six months, a fine pot exceeding onehundred rupees, whipping if the offender was under sixteen years
§QRamu Thamotharampillai v Attorney-General135
(Vythialingam J.)
of age or any lawful sentence combining any two of the sentencesaforesaid (section 15(1)). This is of course subject to any specialpowers of punishment given to Magistrate's Court under any otherenactments (section 15(2)).
Having regard to the delays in appeals coming up for hearingafter it had been filed, if Magistrates and District Judges had beengiven a discretion to grant or refuse bail pending appeal then, if anapplication for bail had been refused, it could have well happenedthat the appellant would have been confined in goal though not asa prisoner serving his sentence of imprisonment but as anappellant under special treatment in such manner as may beprescribed by prison regulations, for a much longer period than theterm of imprisonment to which he had been sentenced.
In this connection the Senior State Counsel referred us to theSouth African case of R v Mafika (2). In that case Clayden, J. saidat page 2, “In the case of the Supreme Court, the offences withwhich the Court deals are likely to be of a far more serious natureand therefore, there is good reason for the court to exercisediscretion as to whether a person should be admitted to bail or not;especially when that discretion is coupled with the power to allowthe appellant to stay in goal without the performance of hard labour.But with the less serious crimes which come before Magistratesand with the necessity that persons would have to serve theirsentences or portion of their sentences before their appeals can beheard there seems to be every reason, why, provided sufficient bailis given, a convicted person should as of right be allowed to providebail, so as to preserve for himself the right not to serve his sentenceshould the appeal succeed”.
Apparently in South Africa, in the case of appeals from aMagistrates’ Court there was no power to stay hard labour pendingappeal, though the Court of Appeal later had the power to direct thatthe period the appellant had been in custody should be regarded aspart of the sentence. In our case however, in the case of Magistrates’Courts and District Courts where the granting of bail is mandatorysection 342(4) of the repealed Criminal Procedure Code providesthat where a person sentenced to imprisonment is unable to give therequired recognizance he shall be detained in custody without hardlabour until the judgment of the Supreme Court is made known and
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subsection 5 vests a discretion in the Supreme Court to make orderthat the time so spent by such appellant in custody or any partthereof shall be reckoned as part of the term of his sentence. Similar 140provision is made in regard to the Court of Criminal Appeal in section15, sub-sections (2) and (3).
However, even if a discretion was vested in Magistrates andDistrict Judges to grant or refuse bail, coupled with the power to stayhard labour in the event of a refusal to grant bail it is important to notethat the appellant would continue in confinement though not as aprisoner serving his sentence but as an appellant under specialtreatment. Having regard to the nature of the jurisdiction and thepunitive powers of Magistrates and District Judges as it then existed,it was perhaps thought unnecessary that such appellants should 150continue in confinement which might have extended to severalmonths and would have been far in excess of the term of theirsentence. It was for this reason that bail was made mandatory insuch cases.
Now, however, under the Administration of Justice Law a DistrictCourt has the power to impose a sentence of imprisonment for a termnot exceeding five years, a fine not exceeding five thousand rupees,whipping, or any lawful sentence combining any one of thesentences aforesaid (section 27(2)), while a Magistrate’s Court cannow impose a sentence of imprisonment not exceeding eighteen 160months, a fine not exceeding one thousand-five hundred rupees,whipping or any lawful sentence combining any two of the sentencesaforesaid (section 31(2)). This is in addition to special powers ofpunishment given to Magistrate’s Court by any other written law(section 31(3)). In view of this extension of the jurisdiction and theenlargement of the punitive powers of these two courts, it wasapparently felt necessary to vest in these two courts’ also a discretionto grant or refuse bail.
Although there is special provision for the stay of execution ofsentence pending appeal only in the case of a sentence of whipping 170(section 271(2)) nevertheless there is general provision in section325(1) for stay of all further proceedings upon the notice of appealbeing accepted by court. I take it that this means that all proceedingsfor the execution of the sentence shall also be stayed. So that when
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bail is refused the appellant would not serve his sentence but be onremand as a person awaiting the decision of his appeal.
Moreover, if the true position under the present law is thatordinarily bail be granted unless there were good grounds forrefusing it, it would lead to the incongruous that even a personconvicted of murder and sentenced to death should be allowed tostand out on bail pending his appeal unless there were good grounds
for refusing itWhat person under sentence of death could
or would resist the temptation to abscond in order to avoid thesupreme penalty? One could of course avoid the difficulty by sayingthat a sentence of death itself is a good reason for refusing bail. Butthen we are relating the exercise of the discretion to the nature of thesentence and there is no good reason for excluding other sentencesof a severe nature. It is only a question of degree.
That the intention of the legislature in enacting section 325(3)was not to make the grant of bail a matter of course unless goodgrounds were shown to the contrary is made clear by section 325(2).That sub-section enacts that when an appeal against an acquittal islodged the court may issue a warrant directing that the accused bearrested and brought before it and may commit him to prison pendingthe determination of the appeal or admit him to bail. If convictedpersons have a right to be out on bail pending the determination oftheir appeal unless good grounds are shown to the contrary then it isabsolutely essential that persons acquitted of any charge should befree pending the determination of the appeal against their acquittal,for there is no conviction against them at all. Yet the legislature hasthought it fit to vest in the court a discretion to commit even suchpersons to prison or admit them to bail pending the determination ofthe appeal.
It may well be that this was because persons who are acquittedmay leave the country and so put themselves outside the jurisdictionof the Courts of this country, except through the difficult andexpensive process of extradition. But the exercise by the court of thediscretion under this sub-section is not limited by the Act to thisground alone. The discretion is very wide and may be exercised bythe court in appropriate circumstances. It is, however, unnecessaryfor the purpose of this case to consider in what circumstances thecourt would exercise the power vested in it by section 325(2).
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Mr. Pullenayagam also sought support for his proposition fromthe fact that section 325(3) made two changes in the law as it wasenacted in section 15(1) of the old Criminal Procedure Code. The firstis that the words “on the application of an appellant” in section 15(1)are omitted in section 325(3). From this he contended that now therewas no need for an application being made for bail and consequentlythere was no burden cast on the appellant to show that exceptionalcircumstances existed. He argued that it was now incumbent on 220court to consider the question of bail at the time of conviction andsentence and that the intention of the legislature was that bail shouldbe granted unless good grounds existed for its refusal.
But under the Act there is no requirement that the Court shouldconsider bail in the event of an appeal being preferred whenpassing sentence. In the case of a sentence of death section269(2) requires the Judge who presided at the trial to forward to thePresident of the Republic the notes of the evidence together withhis report, notwithstanding that any appeal to the Supreme Courtmay have been made. Sub-section (3) sets out that if the President 230determines that the sentence should be carried out, he shallappoint a date and time for the execution of the sentence.
In the case of a sentence of imprisonment section 270(1)requires the court passing the sentence to forthwith make out awarrant addressed to the Superintendent of Prisons for the area,signed by the Judge who passed the sentence and dated of the daywhen the sentence was passed. So that there is no duty cast on theCourt to consider the question of release on bail in the event of anappeal being preferred. The appellant must still move the Court forthe grant of bail and must make out a case for its grant.240
Besides where the intention of the legislature was that bailshould be granted unless there were good grounds to the contraryit has said so in no unmistakable terms. Section 192(2) providesthat an accused who has been remanded pending his trial before aHigh Court as provided in sub-section (1), shall if he is not broughtto trial within a period of forty-five days be entitled to be admitted tobail unless good cause be shown to the contrary or unless the trialshall have been postponed on the application of such accused.There is a marked difference between the wording of this sectionand section 325(3).250
SCRamu Thamotharampillai v Attorney-General189
(Vythialingam J.)
Then again in the case of persons who are brought beforeCourt in respect of bailable offences section 103(2)(a) provides thatthe Court may discharge such person on his executing a bond asprovided therein. But section 103(2)(b) states that “if the Court forgood reasons does not discharge such person in terms of
paragraph (a)’’ Thus clearly indicating that if the court does
not discharge such person on bail in terms of paragraph (a) itshould do so for good reason only. In the case of convicted personswho have appealed against their conviction and sentence section325(3) makes no such provision. It simply vests a wide discretion 260in the Court to grant or refuse bail in such cases.
Another fact relied on by Mr. Pullenayagam was that the words“If they (i.e. the Court of Criminal Appeal) think fit” occurring insection 15(1) have now been omitted from section 325(3). This hesubmitted supported his proposition that a change in the law hadbeen effected. I do not think so. The simple reason for the omissionof the words was that they were apparently thought to beredundant, for where a court may grant or refuse bail it is not goingto do so unless it thinks it fit to do so. I do not think that anysignificance can be attached to the omission of the words in the 270new section.
This court has no inherent right to grant bail. Nor has it powerto do so under the common law. In the case of Ganapathipillai (3)de Sampayo, J. said at page 491, “Mr. Elliot further cited theEnglish case of The Queen v Spillbury (4). There the English Courtheld that they had jurisdiction because under the common law thecourt had powers to make such orders for bail in all cases. But inCeylon the Supreme Court has no such common law power. Itspower and jurisdiction are regulated by statute namely the CourtOrdinance or the Criminal Procedure Code.” See also the case of 280P. Kannasamy v The Minister of Defence and External Affairs<5)where it was held that the Supreme Court had no power to admita person detained by order of the Minister, to bail.
The power to grant bail is now vested in the court as I havepointed out by the Administration of Justice Law and other relevantenactments, as the case may be. This court is vested with a widediscretion to grant or refuse bail by section 325(3) with which we
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are now concerned. But this discretion must be exercisedjudiciously and not arbitrarily or capriciously. In Queen vLiyanage® the Court pointed out at page 291 “Even if our 290discretion to grant bail is unfettered it must still be judiciouslyexercised.”But it pointed out at pages 292 and 293 “But it is not tobe thought that the grant of bail should be the rule and the refusalof bail should be the exception where serious non-bailable offencesof this sort are concerned."
Where a statute vests discretion in a court it is of courseunwise to confine its exercise within narrow limits by rigid andinflexible rules from which a court is never at liberty to depart. Norindeed can there be found any absolutes or formula which wouldinvariably give an answer to different problems which may be 300posed in different cases on different facts. The decision must ineach case depend on its own peculiar facts and circumstances. Butin order that like cases may be decided alike and that there will beensured some uniformity of decisions it is necessary that someguidance should be laid down for the exercise of that discretion.
Lord Denning pointed out in Wardv James (?). ‘The cases allshow that when a statute gives a discretion the courts must notfetter it by rigid rules from which a Judge is never at liberty todepart. Nevertheless the courts can lay down the considerationswhich should be borne in mind in exercising the discretion and point 310out those considerations which should be ignored. This wouldnormally determine the way in which the discretion is exercised andthis ensures some measure of uniformity of decision. From time totime the considerations may change as public policy changes andso the pattern of decision may change. ‘This is all part of theevolutionary process.”
What then are the considerations which ought to weigh with acourt when it is called upon to exercise the discretion vested in it bysection 325(3). The main consideration is, of course, whether if hisappeal should fail the appellant would appear in court to receive 320and serve his sentence. When the offence is grave and thesentence is heavy the temptation to abscond in order to avoidserving the sentence in the event of his appeal failing would ofcourse be great. In such cases the court would still require the
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appellant to show the existence of exceptional circumstances towarrant the grant of bail pending appeal.
D.K.Lionelv Attorney-General (®) The High Court refused bailpending appeal to an appellant who had been convicted of attemptedmurder and had been sentenced to a term of fifteen yearsimprisonment on the ground that no special circumstances wereshown to exist for the granting of bail. This Court refused to interfere.One sentence in my judgment in that case was much criticized by Mr.Pullenayagam for the reasons which I have already set out above. Isaid in that case that ‘The principles under which bail was allowedunder that section (15(1) of the Court of Criminal Appeal Act) aretherefore equally applicable under section 325(3).’’ But a sentence ina judgment cannot be isolated from its context and made generallyapplicable to different facts and circumstances. However general theterms may be in which parts of judgments are couched they must betaken in their proper context and read in the light of the particularfacts and circumstances of the case unless of course there is a clearintention to state a proposition of general application.
In that connection I would refer to the passage in the judgmentof Fernando, J. in the Court of Appeal in the case of Naidu vMudalige (9) at 387 where he said: ‘The statement of the lawcontained in David Silva’s case, as indeed all statements of law tobe found in Court decisions must be understood in the light of theparticular facts of the case under decision." I was there dealing withthe case of an application made by a person found guilty after trialbefore a jury of a very serious offence and sentenced to a heavyterm of imprisonment. After dealing with the grounds urged for thegrant of bail I went on to say, ‘The seriousness of the charge, thenature of the sentence and the likelihood of the appellantabsconding are also factors to be taken into consideration…. In theinstant case the sentence is 15 years imprisonment and thetemptation to abscond is far greater.”
However, if there is any real likelihood of that sentence beingmisunderstood as laying down a general proposition that in the caseof every application under section 325(3) irrespective of theseriousness of the charge and the nature of the sentence,exceptional circumstances must be shown to exist before bail canbe granted, then I am glad that I have this opportunity of saying, and
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the context shows that it was never my intention to lay down anysuch general proposition. Nor would such proposition have beencorrect in law.
But the requirement of exceptional circumstances should notbe mechanically insisted upon merely because the case is from theHigh Court. Even in the case of High Courts it is possible for theappellant to have been convicted of a trivial offence and to havebeen given a very light sentence. For instance, a man charged with 370murder may ultimately be found guilty only of causing simple hurtand be sentence to a small term of imprisonment. In such a case thecourt would not expect the appellant to show that exceptionalcircumstances existed before granting bail. In this regard evenunder the Court of Criminal Appeal Act the position was the same.
In the case of Queen v Punchi Banda et al 0°) the petitionerswere charged with being members of an unlawful assembly thecommon object of which was to cause hurt and also with murder.They were found guilty only on the imprisonment. Their applicationfor bail was allowed. In his judgment Weerasooriya, J. made no 380reference to exceptional circumstances but said that “But in view ofthe short sentence imposed and as I understood from the DeputyRegistrar against their convictions will not be listed for hearing at thenext sitting of the Court of Criminal Appeal and also as in myopinion, it is unlikely that the petitioners will abscond in the event oftheir appeals being dismissed I order that each of them be releasedon his furnishing bail”
In other words, although the case was one of a conviction aftertrial before the Supreme Court the Court took into consideration thenature of the offence of which the appellants were convicted, the 390lightness of the sentence imposed, the improbability of theirabsconding and the delay in the hearing of the appeal in grantingbail. These then would be the main considerations which ought toweigh with a court when deciding whether to grant or refuse bail.
As I pointed out the jurisdiction and the punitive powers ofDistrict Court and Magistrates’ Court have now been greatlyenlarged and it is possible that they may try cases involving seriouscharges and pass severe sentences. For instance, a District Courtis now empowered to try such serious offences as attempted murder
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and can impose the maximum term of five years’ imprisonment. Asentence of three years rigorous imprisonment for attemptedculpable homicide (Salahudeen, supra) and four years rigorousimprisonment for attempted murder (The Queen v N. L. CornellsSilva (11)). were considered to be heavy and on that ground theywere distinguished from Punchi Banda’s case (supra) and bail wasrefused on the ground that no exceptional circumstances were -shown to exist for the grant of bail. Thus in such a case a DistrictCourt too would be justified in requiring the appellant to show thatexceptional circumstances existed for the grant of bail.
In addition to the above, other factors which a court may takeinto consideration in the exercise of its discretion to grant or refusebail are the likelihood of the appellant committing other offences orof taking revenge on witnesses who have testified against him andthe existence of tension between the opposing parties which mightbe inflamed as a result of the convicted person being released onbail pending the determination of his appeal.Conceivably also in agiven case the court might be required to consider the chances ofthe success or failure of the appeal. These matters are by no meansintended to be exhaustive of the consideration which ought to weighwith a court when considering whether bail ought to be granted ornot. As I have emphasised this would depend entirely on the factsand circumstances of each case and there may be in a given casecircumstances other than those enumerated above which a courtcould take into consideration.
One of the grounds urged by the appellant was his age and hisill health in that he is suffering from rheumatism, feeble and ill.Illness is undoubtedly a factor which has to be taken intoconsideration. In the case of Rex v Cooray<12) bail was allowed onthe ground of ill health, that he was not likely to abscond and thecomplexity of the case.
But the illness must be a present illness and that continuedincarceration would endanger life or cause permanent impairment ofhealth. Moreover there must be evidence of the nature of the illnessand its effect.
In Liyanage’s case (supra) the accused were charged with thevery serious offence of conspiracy to overawe by means of criminal
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force or the show of criminal force the lawfully establishedGovernment of Ceylon, to overthrow the Government otherwisethan by lawful means and to wage war against Queen. One of thegrounds urged for the grant of bail was the ill-health of the accused 430persons and affidavits were filed in regard to this. Bail was refusedon the ground that there was no sufficient material before Court toenable the Court to say that their present health demands that theybe released on bail.
The Court said in its judgment “whatever may have happenedearlier what we have to consider on these applications is thepresent physical and mental condition of the defendants. On thispoint, apart from their affidavits which state that medical attentionhas been rendered to several of them, that one had received theattention of a psychiatrist as well and that two of them had been 440admitted to hospital we have no expert medical evidence before usabout the condition of any single defendant. Nor have we evidenceas to how dangerous it would be to their health to let any of themremain in Fiscal’s custody. While we sympathise with them inrespect of the conditions under which, and the period for which, theywere held in solitary confinement we do not feel, that we havesufficient material before us to enable us to say that their presenthealth demands that they be released on bail.”
That was a case in which the application was made by personsawaiting trial. But the same conditions would be true where 450application is made by convicted persons pending appeal. In theinstant case there is only the bare statement in the affidavit that thepetitioner is suffering from rheumatism, feeble and ill and nothingmore. There is no evidence as to his health to allow him to remainin confinement.
Two other grounds urged by him are that he is the father of sixchildren who are attending schools, presumably meaning therebythat his presence is necessary to look after them and that ‘he has toretain counsel to argue his appeal and to attend to other mattersrelating thereto’. Referring to those two grounds Weeramantry, J. 460said in Cornelis Silva's case at 114 “The first of these reasonsscarcely bears examination while the difficulty envisaged in thesecond ground is by no means extraordinary as it is one whichwould be common to many accused persons.”
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He also states that he is a teacher turned farmer and I take itthat by this he means that he should be released on bail to enablehim to look after his farm. He does not however, state the nature orextent of his farming activities. Nor does he state why he cannotmake arrangements for his farm to be looked after by someone else.
In any event, interference with one’s occupation, professional 470activities, business or trade are not circumstances which ordinarilywould entitle a person to be allowed to stand out on bail where thecharge is serious and sentence heavy. The fact that he has notbeen charged in any court previously is also not a relevantcircumstance.
In the special circumstances of this case and having regard tothe serious nature of the charge of which the petitioner has beenconvicted, the severity of the punishment that was meted out to himand the consequent temptation to abscond, the trial Judge wascorrect in refusing to admit the petitioner to bail on the ground that 480exceptional circumstances were not shown to exist.
SHARVANANDA, J.I agree.
GUNASEKERA, J. – I agree.
Application dismissed.