Anuj Kumar Rathi Krishnan v People (SCZ/9/92/2011; SCZ Judgment NO. 19/2011) [2011] ZMSC 45 (21 October 2011)

SCZ Judgment NO. 19/2011 - 401 IN THE SUPREME COURT FOR ZAMBIA HOLDEN AT LUSAKA {Criminal Jurisdiction) SCZ / 9 /92/2011 BETWEEN: ANUJ KUMAR RATH! KRISHNAN APPELLANT AND THE PEOPLE RESPONDENT Coram: MWANAMWAMBWA, WANKI and MUYOVWE JJS On the 4 th October 2011 and 21st October, 2011 For the Appellant: Mr. M. Mutemwa of Messrs Mutemwa Chambers with Mr. Muyawala of Messrs Dzekedzeke & Company For the Respondent: Mrs. R. N. Khuzwayo, Deputy Chief State Advocate JUDGMENT MUYOVWE, JS, delivered the Judgment of the Court. Cases referred to: 1. Musakanya Valentine Shula and Edward Shamwana vs. The Attorney-General (1981) Z. R. 221 2. Stoddart vs. The Queen (No. 1) NRL {1949-1951) 288 3. Ex-parte Blyth (1944) KB 532 4. Bukasa Pelu Sekele vs. The People (1990/92) Z. R. 5 Jl 5. Joseph Watton (1979) 68 Cr App 293 6. Kayumba vs. The People SCZ/9/77 /2011 Legislation ref erred to: . 1. Section 123 of the Criminal Procedure Code 2. Section 332 (1) of the Criminal Procedure Code 3. Section 207 of the Criminal Procedure Code 4. Supreme Court Practice Direction No. 2 of 1975 This is an appeal by the Appellant against the refusal of the application by a single Judge of the Supreme Court to admit him to bail pending appeal. The brief background 1s that the Appellant was on 12th November 2009 convicted by the Subordinate Court at Lusaka of the offence of corrupt practice with a public officer, contrary to Section 29 (2) of the Anti-Corruption Act. He was sentenced to four (4) years imprisonment with hard labour and subsequently appealed to the High Court. His appeal was dismissed by the High Court on 23rd May, 2011. The Appellant then appealed to the Supreme Court. His application for bail pending appeal was thrown but by the High Court, hence his application to the single Judge of the Supreme Court. 403 In her Ruling, the learned single Judge of the Supreme Court considered the Appellant's application which was brought pursuant to Section 123 of the Criminal Procedure Code 1 <- • She considered the Appellant's affidavit in support of the application for bail pending appeal which stated, inter alia, that his application for bail pending appeal was rejected by the High Court on the ground that the appeal had no prospects of success. That he had file d further grounds of appeal and he believed that his appeal had merit. That he was sentenced to 4 years imprisonment and he had already served one year of his sentence. That due to delays in hearing and determining appeals by this Court, he may serve a substantial part of the remainder if not the whole sentence before his appeal is finally determined. Further, that after conviction by the Subordinate :Court, he was granted ball pending appeal and h e abided by the bail conditions. The Learned single Judge of the Supreme Court, after considering _the affidavit in support, also examined the three grounds of appeal contained in the Notice of Intention to Appeal J3 which grounds were considered by the High Court when determining the Appellant's application for bail pending appeal. The learned j_4dge noted that the Appellant had filed twenty-three additional grounds of appeal which were not considered by the lower Court at the time of refusal to admit the Appella nt to bail pending appeal. In this regard, she referred to the case of Musakanya Valentine Shula and Edward Shamwana vs. The Attorney-General1. She declined to consider each ground of appeal as this would entail her delving into the m erits of the main appeal. However, a perusal of the grounds of appeal and the judgment led her to the conclusion that the prospects of success of the appeal were dim. She considered the cases of Stoddart vs. The Queen2 and Ex-parte Blyth (1944) KB 5323 and applied the principles laid down in the said cases. The learned single Judge after considering the application as a whole found that there were no exceptional circumstances disclosed in this case, to warrant granting bail. So, she dismissed the a pplication. J4 Dissatisfied with the Ruling, the Appellant renewed his application to the full Cou rt. Learned • Counsel for the Appellant Mr. Mutemwa and Mr. Muyawala filed written submissions which were augmented with oral submissions by Mr. Mutemwa. It was submitted, inter a lia, that Section 332 (1) of the Criminal Procedure Code2 has two parts, one conferring discretion on the Court to grant bail and the s econd part being mandatory a t the requ e st of the Appellant. They cited the case of Bukasa Pelu Sekele vs-. The People,4 arguing that the Appellant qualifies to be heard as he lodged his Notice of Intention to Appeal and t hat it is now in the discretion of the Court to grant bail. It was a r gued that in relying heavily on Stoddart vs. The Queen,2 the learned single Judge of the Supreme Court disregarded the risks of d elays in the criminal Justice system and submitted that this was an exceptional circumstance. They submitted that t h e learned single Judge after perusal of the evidence concluded t hat the appeal h as no prospect of success. They pointed out that the case of Stoddart vs. The JS Queen2 relies heavily on English decisions between 19 12 and 1932 and yet in the latter the case of Joseph Watton 5 the Court of Appeal held ~-12:at bail could be granted in special circumstances: where it appea rs that prima facie the appeal is likely to succeed; where there is a risk that the sentence will be served by the time the appeal is heard and where the grounds of appeal are arguable. According to learned Counsel, the Joseph Watton case5 shows that the fa ct that the sentence would have been served by the time the appeal is heard constitutes a special circumstance. It was submitted that it is a notorious fact that t h e Supreme Court is burdened with a lot of work which leads to delays in the delivery of judgments. It was submitted that the likelihood of success of the appeal lies in the strength of the grounds of appeal. They contended that there are serious points of law which need to be resolved by the Supreme Court such as: whether it was proper for the statement of Mrs. Shah to be excluded from evidence on the basis of the lawyer/ client privilege; whether such privilege exists in criminal J6 matters; whether circumstantial evidence relied u pon by the prosecution was cogent to the extent of sustaining a conviction . It was contend~g that the grounds of appeal raise intricate a n d serious issues of law wh ich require this Court to determine on th e merits and that to d etermine the issues prematurely would amount to speculation. They submitted tha t bail should be granted as there are special circumstances and grounds of ap peal which raise important issues of law a nd that the a ppeal is likely to succeed. They also a ddr essed the second part of Section 332 (1) of the Criminal Procedure Code2 , He noted tha t Section 123 of the Criminal Procedure Code 1 did not h ave a similar provision. It was submitted that the second part of Section 332 (1) of the Criminal Procedure 2 is mandatory as it states tha t if b ail is refused then at the Appella nt's request, the Court shall order th at the execution of the sentence or order appealed against b e suspended. That the effect of suspending the execution of sentence, as in the present case, would result in the Appellant being released from custody. And that to harmonise the whole of Section 332{1) J7 of the Criminal Procedure Code2 , bail should be granted. Further, that the effect of the second part of Section 332{ 1) of the Criminal Procedure C~!~e2 is to make the decision in Stoddart vs. The Queen2 completely outdated thereby rendering the English authorities relied on inapplicable to the Zambia n jurisdiction save that these authorities allow the grant of bail. They submitted that should the a ppeal fail, this a pplication or appeal should altern atively be considered as a request to have the execution of the four year prison sentence suspended pending a p peal and release the Appellant from custody. In his oral submissions, Mr. Mutemwa emphasized that there are special circumsta nces in this case which should cornpel this Court to grant the Appellant bail pending appeal. He submitted that h a d the single Judge of this Court considered the submissions on P ages 97-112 of the record of Appeal she would have found that the appeal was meritorious. He submitted that the learned single Judge .declined to consider the submissionR on the gro"l.1nd that she would have held that the Appellant would succeed. JS Mr. Mutemwa alluded to the grounds of appeal which are enumerated in the Skeleton Argument a nd Submission on application f~,r .. bail pending appeal filed herein and are found at page 97-1 12 of the Record of Appeal. He alluded to ground 5 which relates to Section 207 of the Criminal Procedure Code3 a nd which raises the question as to whose duty it is to comply with the said Section? He also addressed ground 6 which alleges that the evidence of Kakoma Kanganja was hearsay evidence and inadmissible and that this was conceded to by the Director of Public Prosecution s. Mr. Mutemwa submitte d that the r eason for drawing the Court's a ttention to the grounds of appeal was to show that the appe al had merit. Further, h e alluded to grounds 9 and 10 which question the admission of documents which had not been n o tarized, as r equired by the Authentication of Documents Act and that the Attorney-General did not waive his privilege under the Mutual Legal Assistance in Criminal Matters Act. He also referred to ground 11, which according to him, r a ises th e issue of lawyer/ client privilege, which is an important issue this Court will h ave to determine on hearing the main appeal. J9 Further, he submitted that the Appellant was in his second (2) year of his four (4) year sentence. He contended that had the l~arned judg~-,.c:onsidered the workload of this Court, she would have realized that by the time the appeal is heard, the Appellant would have served a substantial part of his sentence if not the whole sentence. He submitted that his client had not jumped bail during trial but that he had gone to India on medical treatment and there was communication breakdown and when he returned, the Subordinate Court which had revoked his bail earlier, granted it to him. Mr. Mutemwa submitted that his client abided by the bail conditions in the lower Court and will do so if he is granted bail by this Court. Mr. Mutemwa invited this Court to interpret the meaning of the second part of Section 332( U of the Criminal Procedure Code2 . In response, Mrs. Kuzwayo objected to the application, arguing that the Appellant has not es·tabllshed special circumstances to warrant his admission to bail in accordance with Stoddart vs. The JlO Quee:n~ .. )3he submitted that the learned Judge was on firm ground in r~fusing to grant the Appellant bail ·pending appeal. Mrs. Kuzwayo sub:~}}Jtted that at Page 12 of the Ruling it is evident that she pernsed the record and the two sets of grounds of appeal and the judgment of the lower Court and concluded that there was no likelihood of success. She also argued that the Appellant has not shown that this Court is unable to hear his appeal within a reasonable time. As to the grounds of appeal referred to by her learned friend, she submitted that she was unable to comment, as this would b e tantamount to arguing the main appeal. She argued that the duty of the &ingle Judge was not to look at the n1erit of each ground of appe.al bµt merely to see whether the appeal had a likelihood of '.> .. ; r., succe.$s*- I:Iowever, on the ground relating to '. Section 207 of the ~ '- ~ ', ' . I Crirnjnal . Procedure Code, 3 which alleges that the appellant's rights: wer~ ·not read out to him by the trial Court, she argued that this is not ~e.~El,'g_l~ as he was r epresented during :trial and was not, Jll therefore , prejuq.iced: by the fact that his rights were not read out to him. We have-··c'onsidered the Ruling of the learned single Judge , the Appellant's written submissions, the oral submissions by both learned Counsel a nd the skeleton Argumen ts filed herein at Page 96-112 of the Record of Appeal. First of all, we have observed that the application before the single Judge of the Supreme Court was brought under Section 123 of the Criminal Procedure Code 1 • We are of the view, tha t the application should have been brought under Section 332 (1) of the Criminal Procedure Code2 which specifically relates to bail pending appeal. We do not think that it is appropriate to bring a n application for bail:-p~ndi11g appeal before the Supreme Court under ~· •• ,>. - ,.,. ~ection 123 of: ;the,. Criminal Procedure Code1 • The' present a pplication is properly before Court since the Appellant ·has filed an a ppeal against conviction and sentence. It is settled law that bail is granted at the discretion . of the t~ _·} Court. For bail pending appeal to b e granted, the Court must be 413 satisfied that there are exceptional circumstances that are disclosed in the application. The fact that the Appellant, due to delay in determining ~i,? appeal, may have served a substantial part of his sentence by the time his appeal is heard, is one such exceptional circumstance. For example in the Kayumba vs. The People6 case, the Appellant was sentenced to two years imprisonment and this was considered a short period such that by the time his appeal was heard, he would have served his sentence, hence the admission of the Appellant to bail pending appeal. We must point out that each case is considered on its merits, depending on what may be presented as exceptional circumstance. For example if the record of appeal is voluminous and could take months to prepare, this can be considered an exceptional circumstance having regard to the length of the sentence. It is important to bear in mind that in an application for bail pending appeal, the Court is dealing with a convict and sufficient reasons must exist before such convict can be released on bail pending appeal. Mr. Mutemwa submitted that Stoddart vs. The Queen2 is outdated especially in light of Se~tion 332 (1) of the Criminal Procedure Code2 • We do not agree with J13 him. We are of the firm view that Stoddart vs. The Queen2 is still good law and is quite instructive as to the principles applicable in applications fo[ bail pending appeal. The learned single Judge was on firm ground when she relied on Stoddart vs. The Queen:.i where it was held that: "A convicted prisoner should not be released on bail pending appeal unless exceptional circumstances are disclosed." In our view, the case of Joseph Watton5 emphasises the fact that exceptional circumstances must be disclosed in an application for bail pending appeal. We note, however, that in that case, reference was made to special circumstances and these are: where it appears, prima fade, that the appeal is likely to succeed or where there is a risk that the sentence will be served by the time the appeal is heard. The learned single Judge took these factors into consideration in arriving at her decision, and we cannot fault her. However, as we shall explain below, we cannot consider the likelihood of success of the appeal. We intend to examine Section 332 (1) of the Criminal Procedure Code~ later. The question 1s, in J14 satisfied that there are exceptional circumstances that are disclosed in the application. The fact that the Appellant, due to delay in determining hi,s appeal, may have served a substantial part of his ,: :,,- sentence by the time his appeal is heard, is one such exceptional circumstance. For example in the Kayumba vs. The People6 case, the Appellant was sentenced to two years imprisonment and this was considered a short period such that by the time his appeal was heard, he would have served his sentence, hence the admission of the Appellant to bail pending appeal. We must point out that each case is considered on its merits, depending on what may be presented as exceptional circumstance. For example if the record of appeal is voluminous and could take months to prepare, this can be considered an exceptional circumstance having regard to the length of the sentence. It is important to bear in mind that in an application for bail pending appeal, the Court is dealing with a convict and sufficient reasons must exist before such convict can be released on bail pending appeal. Mr. Mutemwa submitted that Stoddart vs. The Queen2 is outdated especially in light of Section 332 (1) of the Criminal Procedure Codc2 • We do not agree with J13 him. We are of the firm view that Stoddart vs. The Queen2 is still good law and is quite instructive as to the principles applicable in applications f?f bail pending appeal. The learned single J'udge was on firm ground when she relied on Stoddart vs. The Queen2 where it was held that: "A convicted prisoner should not be released on b a il pending appeal unless exceptional circumstances are disclosed." In our view, the case of Joseph Watton5 emphasises the fact that exceptional circumstances must be disclosed in an application for bail pending appeal. We note, however, that in that case, reference was made to special circumstances and these are: where it appears, prima facie, that the appeal is likely to succeed or where there is a risk that the sentence will be served by the time the appeal is heard. The learned single Judge took these factors into consideration in arriving at her decision, and we cannot fault her. However, as we shall explain below, we cannot consider the likelihood of success of the appeal. We intend to examine Section 332 (1) of the Criminal Procedure Code2 later. The question is, in Jl4 this case, are there any exceptional circumstances to warrant bail pending appeal being granted'? Regarding- the prospects of success, the learned single Judge of the Supreme Court d eclined to consider each ground of appeal separately and instead considered them in general. We agree with Mrs. Khuzwayo tha t it was not for the single Judge to delve into the merits of each ground but it sufficed that she examined all the grounds and made her conclusion prhna facie that the prospects of success of the appeal were dim_- In his submissions, Mr. Mutemwa went to great length to highlight the grounds of appeal in a bid to convince us that the main appeal is likely to succeed. We are reluctant to go into the merits of the main appeal and we would rather concentrate on the merits of the appeal before us. We hold the view, that it will be prejudicial to both parties if we delve into the merits of the grounds of appeal filed in support of the main appeal. Mr. Mutemwa did allude to the fact that his client did not breach the bail conditions imposed by the Court below. As observed JlS by the single Judge, this is not an exceptional circumstance which can p ersuade us t o admit the Appellant to bail pending appeal. During the hearing of the application, it was suggested to learned Counsel by this Court that instead of pursuing interlocutory applications, it may have been prudent to press for the expeditious preparation of the Record of Appeal. Counsel informed us that h e had been following up the issue of the preparation of the Record of Appeal with one of the Marshals in the Supreme Court. In this regard, we refer Counsel to Supreme Court Practice Direction No. 2 of 19754 which relates to Record of Proceedings in Criminal and Civil Ma tters. From the said Practice Direction, it is clear that Records of Appeal to the Supreme Court are prepared by the High Court and are remitted to the Supreme Court for cause listing. Learned Counsel can monitor the pace at which the Record of Appeal relating to his client's case 1s progressing by checking with the Assistant Registrar at the High Court and not Supreme Court Marshals. J16 In connection to this, while it is a fact tha t this Court has a heavy work load in civil and criminal cases, it is possible for the Appellant's ca~e to be heard within a reasonable time. It was submitted by the State before the single Judge of the Supreme Court that criminal appeals are now being disposed of quickly by this Court and this is a fact. In fact we believe that the Record of Appeal should be near completion stage considering that the appeal has already been heard by the High Court. We also note that before the single Judge, it was revealed that the Appellant had served one year of his four year sentence. Ta.king into consideration the fact that crjminal appeals are being disposed of at a faster rate, we do not believe that the Appellant is likely to serve a substantial remainder of his sentence or that he will serve the full sentence before his appeal is determined. We now turn to examine Section 332 ( 1) of the Criminal Procedure Code2 which provides as follows: (l)After the entering of an appeal by a person entitled .to appeal, the appellate Court, or the subordinate court ~hich convicted or sentenced such person, may, for reasons to be J17 In connection to this, while it is a fact tha t this Cou rt has a heavy work load in civil and criminal cases, it is possible for the Appellant's c~~e to be hea rd within a reasonable time. It was submitted by t he State before the single Judge of the Supreme Court that criminal app eals are now being disposed of quickly by this Court and this is a fact. In fact we believe tha t the Record of Appeal should be near completion stage considering that the a ppeal h a s already been heard by the High Court . We also note that before the single Judge, it was revealed that the Appellant had served one year of his four year s entence. Taking into consideration the fact that criminal appe als are being disposed of at a faster rate, we do not believe that the Appellant is likely to serve a substantial r e m ainder of his sentence or that h e will serve the full sentence before his appeal is determined. We now turn to examine Section 332 (1) of the Criminal Procedure Code2 which provides as follows: (l)After the entering of an appeal by a p erson entitled . .to appeal, the appellate Court, or the subordinate court which convicted or sentenced such person 1 m ay, for reasons to be J17 recorded by it in writing , order that he b e released on bail with or without sureties, or if such person is not released on bail shall, at the r e quest of such person, order that the execution of the sentence or order appealed against shall be suspended pending the hearing of his appeal. {Empl{~sis ours) Mr. Mutemwa invited us to interpret the 'second part' of the above Section. According to Mr. Mutemwa's interpretation, a person whose sentence has been suspended in terms of Section 332 ( 1) of the Criminal Procedure Code2 should be released on bail pending appeal. We believe Mr. Mutemwa h as misapprehended the said provision. In our view, the meaning is clear. Notably, the second part begins by stating: "or if such person is not released on bail" which indicates that the question of release from custody cannot arise following the refusal of bail. The option, therefore, for a person w:ho has not been released on bail pending appeal is to make a request to have the ex ecution of his sentence suspended pending the hearing of his appeal. In fact the provision makes it clear that refusal of bail precedes the request for suspension of execution of sentence. J18 As regards the submission that this application be treated as a request to suspend the sentence 1 we do not consider it prudent that the said requfst should be made as an alternative within this appeal. Section 332 (1) of the Criminal Procedure Code~ states clearly that upon refusal of the application for bail, then the request for suspension of sentence should be made by the Appellant. The plea to tum this application into a request for suspension of execution of sentence is, therefore, refused. All in all, we find no merit in the application and we dismiss it. ~7 '- L ~-~✓-./f.. U'::::.: ....... ····· .... . M. E. WANKI SUPREME COURT JUDGE E. N. C. MUYOVWE SUPREME COURT JUDGE Jl9