Bail is granted to convicts once the presiding judge or magistrate is able to satisfy him/herself that an appeal hearing will be successful, according to retired Chancellor of the Judiciary Cecil Kennard.
Within recent weeks concerns have been expressed about how bail pending appeal can be granted to a convict who has been sentenced. Two recent instances involve Sam Hinds Jnr and Bishnarine ‘Sanjay’ Persaud.
Hinds Jnr was released on $50,000 bail by a magistrate after being sentenced to two months imprisonment for unlawful wounding, while Persaud, who was sentenced to 58 months for causing death by dangerous driving, managed to secure $500,000 bail on his third try. He had first tried the magistrate, but it was denied. He then went to acting Chief Justice Ian Chang and that too failed. Justice BS Roy of the Court Appeal later heard an application and granted the bail.
During an interview with Stabroek News, Kennard explained that there is a clear distinction between cases where persons “are merely charged” and where they have been convicted.
He explained that in a situation where persons have been charged but not convicted, they are presumed innocent until proven guilty. “Therefore the principle on which bail would be granted is if there is a likelihood of the person turning up for trial,” he said adding that this is the main thing in this particular scenario. In making a decision here, the background of the person also has to be taken into consideration. “But the essential principle is that person is presumed to be innocent and therefore in all cases generally speaking that person is entitled to bail,” he said.
Kennard told Stabroek News that in cases where persons are convicted the presumption of innocence no longer applies. He said one would presume that the conviction was a proper one and therefore “bail should only be granted if there is a likelihood of the conviction being set aside and the onus is on the person appealing to satisfy the court that he [or she] has very good grounds for his [or her] conviction being upturned.”
In other words, “there must be a real prospect of the conviction being overturned.” Asked to expound on “good grounds,” Kennard informed that the case before the court has to be very strong.
Kennard, who now sits as the Chairman of the Police Complaints Authority (PCA), said that during his time on the bench convicts were rarely granted bail pending appeal. Though he noted that every person who is convicted has the right to appeal. “Even if a person has been fined as distinct from being jailed that person has a right of appeal,” Kennard stressed.
Kennard went on to explain that if your appeal is not successful even if the length of time for the sentence has elapsed, you still have to serve that time. He said that what would be taken into account is the period of time between when the sentence was handed down and when you were granted bail pending appeal. He said that while he was on the bench appeal hearings were expedited for those convicts who had applied for bail.
Asked about the stipulations which ought to be in place for granting bail to convicts pending an appeal, he said the court can ask that they lodge their travel documents and report to a police station on certain days of the week. “The court will have to take the necessary safeguards… The court is going to fix an amount for bail but also… impose certain conditions,” he said.
Kennard stressed that if the grounds for appeal are very weak then no bail will be granted.
On September 11, 2014, Persaud, 43, called ‘Sanjay,’ drove motor car PKK 5501 in a manner dangerous to the public at Lamaha Street, Newtown, Kitty, thereby causing the death of Leon Hunte. Persaud had pleaded not guilty when the charge was read days after the accident and was released on $1.5 million bail.
After a lengthy trial, Magistrate Judy Latchman found him guilty of the offence, noting that there was enough evidence that the businessman fell short of the standard and care of a competent driver, thus he was responsible for Hunte’s death.
Speaking specifically about this case, Kennard said the presiding judge had stated that from looking at the records from the magistrate there was every prospect of the appeal succeeding and therefore the man should not be kept in custody. “The judge hearing the application for appeal must have had the records from the magistrate’s court and he had to look at that, unless he had done that he couldn’t say whether there was a strong chance of the person winning the appeal,” he told Stabroek News.
Kennard said too that it would not have been a case where the judge would just decide that he would grant bail but rather he would have had to study all the court records pertaining to the case. “If it is a flimsy appeal no court would grant bail,” he said.
The case of Hinds Jnr had also raised eyebrows. Commenting on this case, Kennard said that in granting bail pending appeal the court must have taken into consideration that it was unlikely for the appeal to come up within two months and as such he could not have been detained. He said that the magistrate must have taken this into consideration before she made her decision.
Moments after the son of former prime minister Sam Hinds was sentenced, his attorney Peter Hugh indicated to the court that he would be filing an appeal against the conviction and sentence and he asked that bail be granted until its determination. Magistrate Singh accepted the bail request and Hinds Jr was placed on $50,000 bail pending the appeal.
Kennard citied a case in the 1970s involving Lynette Canterbury who was convicted of causing death by dangerous driving and sentenced to six months’ imprisonment. A judge later in granting her bail had said that the appeal was not likely to come up during this period and there was a strong probability that the appeal would have succeeded.
Questions have also been raised about the amount of bail granted in these two cases. However Kennard said that this lies in the hands of the magistrate or judge.
