Bail before trial is a constitutional right that is refused only for cause. Bail after conviction is the opposite: the applicant has been found guilty by a court and sentenced, and the appeal does not suspend that. The law reflects the difference.
The provisions
Where a person lodges an appeal against conviction or sentence, or applies for leave to appeal, the Supreme Court or a Judge may grant bail pending the hearing of the appeal.
(1) Any power of the Supreme Court … (c) to admit an appellant to bail, may be exercised by a Judge in the same manner as it may be exercised by the Court. (2) Where a Judge refuses an application in relation to a matter specified in Subsection (1), the appellant may apply to the Supreme Court to have the matter determined by that Court.
Order 11 Rule 8 of the Rules adds that while proceedings are pending the Court or a Judge may make orders for the custody or release on bail of a person in custody. The application is in Form 4 to the Duty Judge, supported by affidavit, and served on the Public Prosecutor.
Exceptional circumstances
The Supreme Court held that a prisoner serving a sentence who applies for bail under section 11 of the Bail Act must show exceptional circumstances, and that what is exceptional depends on the case. It held that harassment, threats and violence by fellow inmates do not qualify until the internal correctional complaint procedures have been used and exhausted; that alleged breaches of constitutional rights do not qualify until the enforcement processes for those rights have been used; that arranging funds and documents for the appeal does not qualify; and it addressed the prospect of success of the appeal as a factor rather than a ground on its own: In re Bail Act, Application by Paul Tiensten (2014) SC1343.
| Argued ground | How the Court treats it |
|---|---|
| Appeal is very likely to succeed, for example a clear error of law on the face of the judgment | Relevant and can be decisive when the point is plain; a merely arguable appeal is not enough |
| Sentence is short and would be served before the appeal is heard | A recognised exceptional circumstance, especially with a listed hearing date well beyond the release date |
| Serious medical condition that cannot be treated in custody | Can qualify, with medical evidence and evidence that the Correctional Service cannot manage it |
| Threats or violence in prison | Not exceptional until the Correctional Service Act complaint process is exhausted |
| Breach of constitutional rights in custody | Not exceptional until enforcement under Constitution s 57 has been sought |
| Need to raise money and gather documents for the appeal | Not exceptional |
| Family hardship, employment, first offender | Ordinary incidents of imprisonment; not exceptional on their own |
How to apply
File the notice of appeal or application for leave first; bail under section 11 depends on a pending appeal. Then file Form 4, an affidavit from the applicant setting out the circumstances relied on, and supporting affidavits, such as a doctor’s or a Correctional Service officer’s. Attach the judgment and sentence and the grounds of appeal so the Judge can gauge the merits. Propose conditions: a guarantor, a cash surety, reporting, surrender of passport, residence. The Public Prosecutor is heard, and the Judge gives reasons. See how to make an application in the Supreme Court and what happens to your sentence while the appeal is pending.
If bail is refused
Section 10(2) of the Act allows an applicant refused bail by a single Judge to apply to the full Court to determine the matter. That is a rehearing of the same application, not an appeal, and it is the proper course. A second application to another single Judge on the same material is an abuse of process; a fresh application is justified only by a real change of circumstances, as the Court explained in the pre-trial context in Karo v State (2009) SC998. See asking the full Court to reconsider a single Judge’s decision.
What happens at the appeal
Bail pending appeal ends when the appeal is decided. If the appeal is dismissed, the appellant surrenders to custody and the sentence resumes; time on bail does not count. If a conviction is quashed under section 23 of the Act, the appellant is discharged. If a new trial is ordered under section 28, the Court decides custody or bail pending the retrial. See how to appeal a criminal conviction.
Sources
- Bail Act (Chapter 340) — ss 11, 13
- Supreme Court Act (Chapter 37) — ss 5, 10, 23, 28
- Supreme Court Rules 2012 — O 11 r 8; Form 4
- Constitution — ss 42(6), 57
- In re Bail Act Chapter 340, Application by Paul Tiensten (2014) SC1343
- Karo v State (2009) SC998
Before relying on anything here, read the current text of the Supreme Court Rules 2012 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.