EXCEPTIONAL CIRCUMSTANCES TO GRANT BAIL.

EXCEPTIONAL CIRCUMSTANCES TO GRANT BAIL.

Duncan Abeynayaka – LLB, Attorney At Law

DECIDED JUDGEMENTS

01. ATTORNEY GENERAL VS EDIRIWEERA [2006] BLR PAGE 12

"In any event delay in listing of cases is not an exceptional circumstance as it is common to all cases." It is now settled law that an application for bail pending appeal can be allowed only upon establishment of exceptional circumstances.

"Delay is always a relative term and the question to be considered is not whether there was mere explicable delay as when there is a backlog of cases, but whether there has been excessive or oppressive delay and this always depends on the facts and circumstances of the case"

 

02. RANIL CHARUK KUJATHUNGA V. AG CA (PHC) APN 134/2015

"The petitioner submits several grounds to consider bail. The Petitioner states that he is a married person with two school going children. The persons getting married and having children is not an exceptional ground. It is the normal day to day life of the people."

 

03. SULAIMAN LEBBE MOHAMAD UVAIS VS DIRECTOR GENERAL OF BRIBERY AND CORRUPTION. CA (PHC) APN 86/2010

In my view the delay in hearing the appeal cannot be considered as an exceptional ground to release an accused on bail.

 

04. REX VS MUTHU RETTY 54 NLR 43

That in a bail pending appeal, Court will not grant bail as a rule. Bail is granted only in exceptional circumstances."

 

05. ATTORNEY GENERAL V. LETCHCHEMI & ANOTHER [S.C. APPEAL 13/2006] (2006 B.L.R. 16)

"Bail after conviction in the High Court referred to in section 333(3) of the Code of Criminal Procedure Act No. 15 of 1979 has been incorporated in verbatim in Section 20(2) of the Bail Act No.30 of 1997. The settled law on this is that where a section has been incorporated in verbatim, governing principles applicable are those contained in the principal enactment. The interpretation of the principal enactment has always held that there must be exceptional circumstances.

As section 20 of the Bail Act No. 30 of1997 is identical to that contained in the Code of Criminal Procedure, in its implementation the earlier restricted view of the convicted person having to disclose exceptional circumstances for grant of bail must prevail... " .

06. RAMU THAMOTHARAMPILLAI V. ATTORNEY GENERAL (2004) 3 SRI. L.R 180,

"The decision must in each case depend on its own peculiar facts and circumstances. But in order that like cases may be decided alike and that there will be ensured some uniformity of decisions it is necessary that some guidance should be laid down for the exercise of that discretion. ..

One of the grounds urged by the appellant was his age and his ill health in that he is suffering from rheumatism, feeble and ill. Illness is undoubtedly a factor which has to be taken into consideration. In the case of Rex v Cooray bail was allowed on the ground of ill health, that he was not likely to abscond and the complexity of the case.

But the illness must be a present illness and that continued incarceration would endanger life or cause permanent impairment of health. Moreover there must be evidence of the nature of the illness and its effect.

Two other ground surged by him are that he is the father of six children who are attending schools, presumably meaning thereby that his presence is necessary to look after them and that ‘he has to retain counsel to argue his appeal and to attend to other matters relating thereto’. Referring to those two grounds Weeramantry, J. said in Corneli silva’s case at 114 “The first of these reasons scarcely bears examination while the difficulty envisaged in the second ground is by no means extraordinary as  it is one which would be common to many accused persons.

 

07. NURDHI ZAHIDHA VS. OFFICER-IN-CHARGE POLICE NARCOTICS BUREAU, CA (PHC) APN 145/2017

Remand period of the petitioner cannot be considered as an exceptional circumstance.

 

08. LIYANA ARACHCHIGE MANOJ BIMSARA DISSANAYAKE VS. HON. ATTORNEY GENERAL CA (PHC) APN 61/2018

We are of the view that in the present system of criminal justice we do not see prolonged delays in preparing Appeal briefs as it used to be. Therefore it would not be appropriate to follow this ground in modern day context especially when judicial officers and staff in Courts are taking every possible step to expedite the trial and appeal proceedings.

 

09. JAYANTHI SILVA AND TWO OTHERS V. ATTORNEY GENERAL [1997] 3 SRI L.R. 117 in which it was held that,

In Ramu Thamotheram Pillai v. Attorney-General bail was refused to the Appellant who was convicted of attempted murder and sentenced to seven years rigorous imprisonment pending his appeal on the ground that no exceptional circumstances have been made out. 

From a consideration of the decisions referred to above and the legal provisions as a general principle there is no doubt that exceptional circumstances must be established by an appellant if the discretion vested in a High Court to grant him bail pending the determination of his appeal is to be exercised in his favour. But this by no means should be taken to be the invariable and inflexible rule for Justice Vaithiyalingam, J himself recognised it in the case of Thamotheram Pillai v. Attorney-General when he observed thus "But the requirement of exceptional circumstances should not be mechanically insisted upon merely because the case is from the High Court. Even in the case of a High Court it is possible for an appellant to have been convicted of a trivial offence and to have been given a very light sentence. For instance a man charged with murder may ultimately be found guilty of only causing simple hurt and be sentenced to a short term of imprisonment. In such a case the Court would not expect the appellant to show that exceptional circumstances existed before granting bail. "

 

10. O.I.C, POLICE NARCOTICS BUREAU VS. KANAHALA GAMAGE SUNEETHA (CA REV. 3/ 2002, H .C. COLOMBO - BA 454/02).

The suspect was released on bail in a sum of Rs.100, 000/- in addition to other conditions. The facts are as follows:-

The suspect was arrested with 134.1 grams of heroin.

The suspect was in remand/or a period of over one year.

Indictment had already been sent.

There were neither previous convictions nor pending cases.

The husband of the suspect had been in remand.

The six year old child was left behind unattended.

The court considered as a special circumstance the fact that both parents had been in remand and their child was left unattended.

...In the six cases mentioned above, it was only in one case the court considered the facts constituting exceptional circumstances in granting bail. In all the other cases the court refrained from referring to a specific ground as constituting exceptional circumstances. Therefore, the question is, should the facts of those cases be considered as constituting exceptional circumstances? In Milroy Fernando's case the court allowed bail after considering the extent to which the suspect had been involving in the commission of the crime. Could we consider the period in remand as a ground constituting an exceptional circumstance? Provision has been made in the Bail Act to release persons on bail if the period of remand extends more than 12 months. No such provision is found in the case of Poison, Opium and Dangerous Drugs Ordinance. Although bail was granted in some of the cases mentioned above. None of these cases refer to the time period in remand as constituting an exceptional circumstance. Hence bail cannot be considered on that ground alone. It appears from the cases cited above that there is no guiding principle with regard to the quantity found either. The fact of dispatching the indictment too cannot be considered either for or against the granting of bail. In one of the cases mentioned above, the fact of not sending the indictment was considered in favor of granting bail while in another j case, sending the indictment was not considered to refuse bail... "

 

11. SHIYAM V. ATTORNEY GENERAL (2006) 2 SRI L.R 156

"... Therefore, even if I am to agree with the submissions of the learned President's Counsel for the appellants, yet the provisions of section 83(1) of the Poisons, Opium and Dangerous Drugs Act would be applicable and the proper forum for making an application for bail when a person is suspected or accused of an offence under Section 54A or 54B of the Poisons, Opium and Dangerous Drugs Act would be the High Court where such bail would be granted only in exceptional circumstances. The criteria therefore set out by section 3(1) of the Bail Act for exclusions are clearly dealt with by the provisions contained in section 83(1) of the Poisons, Opium and Dangerous Drugs (Amendment) Act, No. 13 of 1984...1 hold that the provisions in the Bail Act would have no application to the Poisons, Opium and Dangerous Drugs Act... "

 

12. LABUKOLA ANGE WISIN GEDARA ASHANI DHANUSHSHIKA V. ATTORNEY GENERAL [CA (PHC) APN 4/2016],

"In the present case the petitioner failed to establish any exceptional circumstances warranting this court to exercise the revisionary jurisdiction. The petitioner's first point is that the suspect is in remand nearly for two years. The intention of the legislature is to keep in remand any person who is suspected or accused of possessing or trafficking heroin until the conclusion of the case. The section 83(1) of the Act expresses the intention of the legislature.