IN THE SUPREME COURT
TURKS AND CAICOS ISLANDS
NELSON LLEWELLYN FORBES
Hearing Date: 20th September, 17th & 24th October and 20th November 2013
Decision Date: 25th November 2013
N. Skippings for the Appellant
A Brooks for the Respondent
BAIL PENDING APPEAL
1. This is an application for bail pending appeal. The appellant was convicted after trial by a jury of the offence of rape. His notice of appeal was filed without the assistance of counsel. Since filing the appeal he has had the benefit of counsel on his bail application and a second counsel on the appeal itself.
2. The notice of appeal when filed on its face did not comply with the Court of Appeal rules in that whilst it relied upon a misdirection or non-direction of the jury, it did not go on to specify that misdirection or non-direction. The information required for an appeal against conviction is set out in the Court of Appeal Rules and in the case of an appeal against conviction more particularly in the form prescribed as Criminal Form 1.
3. You have been found guilty by a jury of the offence for which you are now serving a sentence. That finding of guilt will not go away. What your counsel seeks to put before this court now is that the trial process was a flawed process, and will result, he submits, in an appeal against the conviction being successful.
4. He has made submissions on several areas of the summing up delivered by the trial jury to the jury before their retirement. When he has completed his submission on one area he moved without notice to another area, in the meantime not necessarily answering questions put to him about his previous submission.
5. Nothing contained in the submissions touches on the allegations made against you in the trial and nothing in the submissions touches on your guilt or innocence.
6. After conviction there is no presumption in favour of the grant of bail as there may be pre-trial. After conviction and awaiting an appeal there must be circumstances which are exceptional to favour the grant of bail. It is my view that there are not exceptional circumstances here.
7. The first misdirection point to in the summing up is not, according to the authorities to be regarded as fatal to a jury’s determination. It is a requirement in England and Wales by virtue of various Practice Directions issued by the Court. There is no such Practice Direction in this jurisdiction although it is clear that even absent such a direction a jury should be told in clear terms what their duties and responsibilities in arriving at and delivering a verdict in a criminal trial. Even in the jurisdiction where the direction is advised by its own Practice Direction, failure to provide it has been held not to be fatal to any verdict - see R v Kalinski 51 Cr. Ap. R. 343
8. Then counsel sought to divide that direction into two, which it clearly is not.
9. After this counsel sought to criticize the qualified direction on character. That direction must have been based on the material put before the court as a good character or qualified good character direction can only be based on material before the court in the trial.
10. Finally counsel moved on to other areas of the summing up which he sought to impugn. All of this is within the background of a letter the same counsel produced during this bail hearing in which trial counsel advised only one potential ground of appeal from the summing up, that being the unanimous direction and, of course, the defective notice of appeal which did not specify in accordance with the Court of Appeal Rules the misdirection or non-direction relied upon. It may well be that the notice of appeal still does not specify the non-direction or misdirection relied upon. If that be the case it is to be hoped that the Court of Appeal is not mislead into believing that the appellant has not been given good and adequate notice of this failure.
11. A Court of Appeal hearing should be fixed for the next sitting of the Court of Appeal to allow that Court to consider the question of the notice of appeal against conviction filed in this matter. Legal aid on that appeal has already been approved and granted in favour of the counsel named in the application. Counsel have been provided with both the notes of the summing up and opportunity to listen to the audio recording of the same as delivered in Court.
12. In deciding whether to grant bail pending appeal "the true question is, are there exceptional circumstances, which would drive the Court to the conclusion that justice can only be done by the granting of bail?”: R. v. Watton, 68 Cr.App.R. 293,297, CA. Such circumstances will exist where it appears prima facie that the appeal is likely to be successful or where there is a risk that the sentence will have been served by the time the appeal is heard: In R. v. Landy, 72. Cr.App.R. 237 (unreported on this point), the court granted an appellant bail pending appeal, having been satisfied that there was "a substantial point" to be argued on misdirection "and that it could result in the conviction being quashed". A further determining factor was that the hearing of the appeal would be delayed for some months in order for the transcript to be prepared.
13. In Watton the court consisted of Geoffrey Lane, L.J., Ackner J. and Watkins J. and the judgment was delivered by Geoffrey Lane, L.J. (as he then was). The case may be of limited value because of a different English jurisprudence to some extent but the Court approved the following statement of the law relating to bail pending appeal.
i. “Bail is granted only where it appears prima facie that the appeal is likely to be successful or where there is a risk that the sentence will have been served by the time the appeal is heard. ”
14. In coming to a conclusion on this application for bail pending appeal I have considered both of those questions. The sentence in this case is that of imprisonment for seven years. It is not likely that either the sentence or any substantial part of it will have been served by the time of the appeal hearing. That leaves the second question which is prospects of success on appeal.
15. On an application for bail pending appeal submissions are not made on all of the appeal points and therefore it is unlikely that a Court can say with any certainty whether an appeal is likely to be successful or not. There must, though, be enough material before the Court to enable it to hold that there is at least a strong chance of success before it grants bail.
16. Put differently:-
a. “I think that this court should simply state that bail should be granted where notwithstanding that the applicant comes before the court as a convicted person, the interests of justice requires it, either because of the apparent strength of the applicant’s appeal or the impending expiry of the sentence or some other special circumstance. It must always be borne in mind that the applicant for bail in this situation is a convicted person and the Court of Criminal Appeal should therefore exercise its discretion to grant bail sparingly.” DPP v Corbally 115 of 2000 ISC.
17. I intend to apply those principles to this application and would recommend them as a guide for future applications for bail pending appeal.
18. It is difficult, if not impossible, to determine prospects of success in the circumstances of an appeal the grounds of which appear not yet to have been settled. Within this application reliance has been solely upon the grounds of misdirection or non-direction. I have set those details out below. It should not be difficult for the reader to appreciate the rationale behind the requirement for the said direction complained of to have been set out with some specificity given the circumstances of this application. Whilst it can be appreciated that an unrepresented appellant might not be expected to describe with any precision that which he wants the Court on appeal to consider this appellant had not only advice on an appeal, which written advice was tendered to this court on this application, but also counsel on the appeal and on the bail application. Even so his notice of appeal remains in its original form. That is in spite of the fact of legal aid being granted for this appeal on 8 July 2013.
19. Given the limited material put before this Court on this application the prospects of success on the appeal do not appear to be strong. In the circumstances the application for bail pending appeal is refused.