MOGOTSI and Another v. THE STATE 1990 BLR 142 (HC)

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Citation: 1990 BLR 142 (HC)
Court: High Court, Lobatse
Case No:
Judge: Gyeke-Dako J
Judgment Date: April 6, 1990
Counsel:
F.E. Luke II for the applicants. P.S. Sedie, State Counsel, for the State.
Flynote

Criminal procedure - Bail - Application for bail pending trial - Murder charge - Factors for consideration -  Primary  E  purpose - Attendance of accused at his trial - Delay in bringing accused to trial - Whether constitutional rights of applicants likely to be infringed - Constitution, s. 5(3).

Headnote

The applicants, who were charged with murder, applied for bail pending trial approximately eleven days after their arrest and subsequent detention. Various grounds were advanced by the applicants as to why bail should be  F  granted to them, among which were, that they were likely to be kept in prison for at least six months and that this will infringe their constitutional right to be brought before a trial court as soon as reasonably practicable as provided in section 5 (3) of the Constitution.

Held, dismissing the application: (1) the primary purpose of bail was to secure the attendance of the accused at court at the specified time to stand trial. It follows therefore that the principal questions which were relevant in an enquiry into whether or not a court should grant bail were those designed to ascertain whether the accused was  G  likely to attend his trial.

(2) The following are relevant factors which a court should take into account in considering an application for bail:

     (a)     the first factor is the nature of the charge; the more serious the charge, the greater the incentive for the accused person to abscond;

     (b)     the strength of the prosecution's case;  H

     (c)     the accused's character and previous conviction(s);

     (d)     the accused's failure to surrender to bail on previous occasions;

     (e)     the accused must have a settled address;

     (f)      whether the sureties are independent or are likely to be indemnified by the accused;

     (g)     the likelihood of the accused interfering with police witnesses.

1990 BLR p143

  A R. v. Scaile (1841) 5 J.P. 406; Re Barronet and Allain (1852) 1 El. and Bl. 1; R. v. Phillips (1947) 32 Cr. App. R. 47, C.C.A. and Makin v. Attorney-General for New South Wales [1894] A.C. 57, P.C. considered.

(3) A court seised with an application such as this, must approach the issues on the assumption that the accused is not lightly to be deprived of his liberty. And even though the court's power to grant bail is discretionary, that discretion must be exercised judicially and with utmost caution. Ever remembering the paramountcy of his   B constitutional right to liberty. Stack v. Boyle 342 (1951) U.S. 1 at pp. 7 - 8 applied.

(4) The accused seeking to be admitted to bail need do no more than raise sufficient grounds showing why his liberty should be left intact and not interfered with. It was then incumbent on the prosecution to affirmatively prove why the court should temporarily or otherwise deprive him of his liberty. Such proof must be devoid of speculation but must be based on ascertained facts - facts capable of swinging the court's pendulum of   C discretion to extreme against grant of bail.

(5) The provisions of section 114 of the Criminal Procedure and Evidence Act (Cap. 08:02) which confer discretionary powers in matters of bail on the High Court were explicit and make no exceptions in respect of bailable offences. The reticence of the High Court to grant bail in capital offences was founded on practice.

  D (6) The State has failed to show that they were in possession of some evidence which it is not desirable to disclose to the court but which would render it likely that the applicants would tamper with the witnesses or endeavour to abscond.

(7) Financial hardships and deprivation of occupational or professional pursuits resulting from detention are not per se grounds for grant of bail.

(8) On the facts, there had not been unreasonable delay on the part of the State in bringing the applicants to trial. The provisions of section 5 (3) of the Constitution had not been contravened by the State. Hick v. Raymond and   E Reid [1893] A.C. 22 at pp. 29, 32 - 34, applied

Case Information

Cases referred to:

     (1)     R. v. Scaife (1841) 5 J.P. 406.

     (2)     Re Robinson (1854) 23 L.J. Q.B. 286.

     (3)     Barronet and Allain, Re (1852) 1 El. & Bl.1; 118 E.R. 337.   F

     (4)     R. v. Phillips (1947) 32 Cr. App. R.47, C.C.A.

     (5)     R. v. Gentry (1955) 39 Cr. App. R. 195, [1956] Crim. L.R. 120, C.C.A.

     (6)     R. v. Pegg [1955] Crim. L.R. 308, C.C.A.

     (7)     R. v. Wharton [1955] Crim. L.R. 565, C.C.A.

     (8)     Makin v. Attorney-General for New South Wales [1894] A.C. 57; [1891 - 4] All E.R. Rep. 24; 17 Cox C.C. 704, P.C.   G

     (9)     Attorney-General v. Duffy (1942) I.R. 529.

     (10)   Stack v. Boyle 342 (1951) U.S. 1.

     (11)   Leibman v. Attorney-General 1950 (1) S.A. 607.

     (12)   Hick v. Raymond and Reid [1893] A.C. 22; 68 L.T. 175, H.L.

     (13)   Montland v. Jack Barclay Ltd. [1951] 2 K.B. 252; [1951] 1 All E.R. 714, C.A.   H

Ruling on an application for bail pending trial. The facts are sufficiently stated in the ruling.

1990 BLR p144

GYEKE-DAKO J

F.E. Luke II for the applicants.  A

P.S. Sedie, State Counsel, for the State.

Judgment

Gyeke-Dako J. This is an application for an order admitting the applicants to bail pending trial, and because the charge against them is murder, the application deserves very careful and anxious consideration. It is to be noted that the application is brought under section 114 of the Criminal Procedure and Evidence Act (Cap. 08:02)  B  which, except where otherwise expressly provided, confers a discretionary power upon the High Court,at any stage of any proceedings taken in any court in respect of an offence, to admit an accused person to bail, whether the offence is or is not one of the offences specifically excepted in section 104 of the Act. Section 104 reads:

"Every person committed for trial or sentence in respect of any offence except treason or murder may be admitted to  C  bail in the discretion of the magistrate:

Provided that:

      (i)     the refusal by the magistrate who has committed any person for trial, to grant such person bail shall be without prejudice to such person's rights under section 113, and  D

      (ii)     the magistrate may  admit to bail a person under the age of 18 committed for trial on a charge of murder." (The emphasis is mine.)

It is to be noted that none of the present applicants is under the age of 18 years. By section 113 of the Act, an aggrieved accused person may appeal to the High Court against a magistrate's refusal to admit him to bail or by  E  such magistrate having required excessive bail. Indeed, we are not concerned here with the provisions of section 113 of the Act since, as noted earlier, the offence with which the applicants are charged is murder and consequently falls within the category of offences in respect of which a magistrate lacks jurisdictional competence to grant bail.

Before touching on the grounds on which the present application is brought, I deem it expedient to set down the  F  general principles governing the admission of an accused person to bail pending trial. Let me say at the outset that the primary purpose of bail is to secure the attendance of the accused person at court at the specified time to stand trial. It follows therefore that the principal questions which are relevant in any enquiry into whether or not a court should grant bail are those designed to ascertain whether the accused person is likely to attend trial. The  G  following matters may be distilled from a plethora of judicial decisions as relevant factors which a court should take into account on such an application: The first factor is the nature of the charge. The more serious the charge, the greater the incentive for the accused person to abscond. The second is the strength of the prosecution's case.   H

However serious the charge, the court should be reluctant to remand an accused person in custody if the evidence against him is tenuous. On the other hand, where the evidence is compelling, such as a signed voluntary confession which when taken in conjuction with other matters might indicate a likelihood that the accused person if convicted might be given a custodial sentence, might

1990 BLR p145

GYEKE-DAKO J

  A weigh against a grant of bail. For in such a case, the accused person will have every incentive not to stand trial.

These two principles have as far back as the 19th century received judicial consideration by the English courts. In R. v. Scaife (1841) 5 J.P. 406. Coleridge J. in examining the rationale behind the exercise of the court's discretionary power in admitting an accused person to bail said:

      "I conceive that the principle on which parties are committed to prison by magistrates previous to   B  trial. It seems to me, that the same principle is to be acted on in an application for bailing a person committed to take his trial, and it is not a question as to the guilt or innocence of the person. It is on that account alone that it becomes important to see whether   C the offence is serious, whether the evidence is strong, and whether the punishment for the offence is heavy."

The third principle which is often cited is the accused's character and previous conviction(s). I must say at once that in view of the accusatorial system of practice followed in this jurisdiction whereby an accused person is by   D section 10(2) of the Constitution of Botswana presumed to be innocent until he is proved or has pleaded guilty to a charge brought against him, on an application for bail pending trial as opposed perhaps to an application for bail pending the determination of an appeal against conviction; previous convictions should not necessarily in themselves amount to a valid reason for refusing bail, unless they point to the likelihood of the accused receiving a custodial sentence and therefore amount to a reason why he would not appear to take his trial. This will   E particularly be the case where the accused person is currently subject to a suspended sentence. As earlier pointed out, such ground may be worth considering in an application for bail pending the determination of a convicted applicant's appeal.

For it appears wrong to me to suggest that an inquiry must be held into accused person's previous convictions   F or antecedents for the purpose of bail before trial. This would invariably entail laying before the tribunal a record of his past crimes. To adopt such course would in my judgment, be dangerous and hazardous to a fair and impartial trial should the court which considers the application turn out to be the very tribunal which ultimately tries the accused. The undesirability and objection in proceeding on such a perilous course would in my view, not   G only become odious, but would certainly cut across the constitutional provisions referred to above that a man must be considered innocent until he is proved guilty and the procedural requirement that in all criminal trials, except where the statute creating the offence makes previous conviction for the same offence with which the accused person is charged an essential ingredient of the offence charged and to be proved by the prosecution, the previous convictions of an accused should not be disclosed to a trial court before conviction is registered. In   H Re Robinson (1854) 23 L.J. Q.B. 286, Coleridge J. seized the opportunity to elaborate on his pronouncements on this issues in Re Barronet and Allain (1852) 1 El. & Bl.1. He stated at p. 287 in Robinson's case that:

     "The test, in my opinion, of whether a party ought to be bailed is, whether it is probable that party would appear to take his trial ... but ... though I lay


 

1990 BLR p146

GYEKE-DAKO J

     down that test, I think it ought to be limited by the three following considerations. When you want to know whether a party  A  is likely to take his trial, you cannot go into the question of his character or his behaviour at a particular time, but must be governed by the answers to three general questions. The first is what is the nature of the crime? Is it grave or trifling? ... The second question is, what is the probability of a conviction? ... The third question is, is the man liable to a severe punishment?"  B

These principles as enunciated by Coleridge J. in the 19th century were re-echoed by Atkinson J. in R. v. Phillips (1947) 32 Cr. App. R. 47 at p. 48:

     "In cases of felony, bail is discretionary, and the matters which ought to be taken into consideration include the nature of the accusation, the nature of the evidence in support of the accusation, and the severity of the punishment which  C  conviction will entail."

I have adverted my mind to the absence of the English classification of offences into felonies and misdemeanours in this jurisdiction. But it is my view that the principles enunciated by Coleridge J. are all embracing and apply equally to murder cases. For under the English law, murder is a felony. Indeed, the charge  D  in R. v. Scaife (supra) was one of murder and although Erle J. remarked at page 7 that in clear cases of murder the courts would not grant bail, he however conceded that even in murder cases bail could sometimes be granted. It is unnecessary to belabour this point since section 114 of the Criminal Procedure and Evidence Act under which the instant application is brought embraces all offences, including murder and treason which by section 104 of the Act have been excepted from the jurisdictional competence of a magistrate to admit accused  E  persons to bail.

Section 114 of the Act reads:

     "Except where otherwise expressly provided the High Court shall have power, at any stage of any proceedings taken in any court in respect of an offence, to admit the accused to bail, whether the offence is or is not one of the offences  F  specifically excepted in section 104."

It is perhaps for the above-stated reasons that I will unhesitatingly join the band-wagon of critics of certain pronouncements of Atkinson J. and Lord Goddard C.J. in the following cases.  G

In R. v. Phillips (supra), Atkinson J. in delivering the judgment of the English Court of Criminal Appeal in an appeal against sentence by a young man with many previous convictions for housebreaking said at pp. 48-49:

     "To turn such a man loose on society until he had received his punishment for an undoubted offence, an offence which was not in dispute, was, in the view of the Court, a very inadvisable step. They [the court] wish magistrates who release  H  on bail young housebreakers, such as this applicant, to know that in nineteen cases out of twenty it is a mistake."

And in R. v. Gentry [1956] Crim. L.R. 120, C.C.A., Lord Goddard C.J. who had earlier expressed similar views in R. v. Pegg [1955] Crim. L.R. 308, C.C.A.

1990 BLR p147

GYEKE-DAKO J

  A and R. v. Wharton [1955] Crim. L.R. 565, C.C.A. said of a man appealing against a sentence of eight years' preventive detention and had an unenviable criminal record of eight previous convictions but was granted bail before trial:

     "As the court had said on many previous occasions, it was inadvisable to grant bail to men with long criminal records ...   B unless there was very real doubt as to the man's guilt."

As I said earlier, there would be nothing wrong with such pronouncements by these eminent judges had the application for admission to bail in the cases (supra) been made for bail pending appeal. For in that case, the applicant's previous convictions would have been properly placed before the court after his conviction. For my   C part, I consider it prudent to follow the often-quoted dictum of Lord Herschell L.C. in Makin v. Attorney-General for New South Wales [1894] A.C. 57 at p. 65, P.C., where he said:

     "It is undoubtedly not competent for the prosecution to adduce evidence tending to show that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused   D is a person likely from his criminal conduct or character to have committed the offence for which he is being tried.'

In my view, this dictum of Lord Herschell L.C. should equally apply to admissibility of this type of evidence at trial as well as in bail proceedings.

  E The fourth principle is the accused's failure to surrender to bail on previous occasions. This needs no elaboration. For where an accused person has wilfully abused the process of the court, he obviously loses the court's confidence and sympathy and there is no reason why the court should tempt him by exercising its discretion in favour of setting him loose.

  F The fifth principle that an accused person applying to be admitted to bail must have a settled address also calls for no lengthy comment. For, if the primary purpose of admitting an accused person to bail is to ensure his attendance at court to stand trial on the specified date, common sense dictates that he must satisfy the court of the address to which he can be traced should he fail to honour the terms of his bond.

The sixth principle is whether the sureties are independent or are likely to be indemnified by the accused. This   G principle in my opinion, is closely linked with principles (1) and (2) above, that is, the nature of the charge and the strength of the prosecution's case. Furthermore, it appears to be designed to prevent the rich from covertly buying justice. For it is foreseeable for an unscrupulous accused person paying off his sureties and absconding to frustrate the course of justice.  For after all, all that the law would demand of the sureties would be payment of   H the amount under the bail bond. They cannot be made to answer for the crime of the absconded accused.

The seventh principle is the likelihood of the accused interfering with police witnesses. This has been a fertile ground for the prosecution's opposition to admission of accused persons to bail pending trial. As would be seen in due course, this is one of the reasons put forward by the police investigator in his answering affidavit in support of the State's opposition to the admission of the

1990 BLR p148

GYEKE-DAKO J

present applicants to bail. In my opinion, bare allegation that an accused person is likely to interfere with  A  prosecution witnesses does not justify a court in the exercise of its discretion to deprive the accused his freedom. To hold otherwise would in my view, be tantamount to withholding bail as punishment and forgetting that the main requirement as to bail is merely to secure the attendance of the accused person at the trial. In my judgment very compelling evidence should be produced by the prosecution in support of such contention - a  B  contention which is easily made but difficult to prove: see Attorney-General v. Duffy (1942) I.R. 529. Be it as it may, unless this principle viewed cumulatively with other principles governing grant of bail and in the light of the circumstances of the case, points undoubtedly to the accused's inclination not to appear to stand trial at a court of law upon which an accused person looks as the protector of his liberty, should not deny him that traditional right to freedom before his conviction. For the court has a wide discretion to impose conditions to bail which  C  would go a long way to meeting such objections. Such conditions may include special conditions for the following purposes:

     (a)     to ensure his attendance at trial, e.g. that he should surrender his passport or report daily to a police station;  D

     (b)     to ensure the interest of justice - that he should not directly or indirectly contact prosecution witnesses; and

     (c)     to prevent crime, e.g. in an assault case, that he should not go to a specified place or district in which the complainant lives.

These conditions obviously give the court a great deal of flexibility in determining bail as well as achieving the  E  desired result which is of course, the eventual attendance of the accused person at his trial.

The eighth principle is the prejudice to the accused if he is not admitted to bail.

The ninth is the prejudice to the State if bail is granted.

I shall deal with the last two principles in due course but before then I shall set down the grounds upon which this  F  application is brought and balance them against those grounds on which the State opposes the applicants' prayer to be admitted to bail.

It is to be noted that the gist of the two applicants' affidavits is the same, except perhaps in matters relating to their ages, residential addresses and occupation. It should therefore be sufficient to reproduce the affidavit of the  G  first applicant, Sidney Kutlapye, in full and set out those material differences as they appear in the second applicant's affidavit. Kutlapye's affidavit is in the following terms: [his lordship set out the contents of the affidavit and continued.]

As stated earlier, the second applicant, Joshua Mogotsi's affidavit substantially re-echoes the grounds set out in the first applicant's affidavit. However, the material differences appear in paragraphs 1, 3, 4, 5, 6, 7 and 10 of his affidavit. I set hereunder the relevant portions: [his lordship set out the portions and continued.]  H

It is noteworthy that the matters deposed to in the applicants' respective affidavits encompass most, if not all the guiding principles in admitting an accused person to bail pending his trial and on which I have in my own way, tried to expatiate.

1990 BLR p149

GYEKE-DAKO J

  A When this application first came before me on 21 March 1990, Mr. Rabasha, learned State Counsel vehemently opposed the hearing of the application. The prop of his opposition was that even though the motion paper and its supporting certificate of urgency were served on the Attorney-General on 15 March 1990, it was not until late afternoon of 20 March 1990 that the applicants' supporting affidavits were delivered to them. In sum, this   B short-service had put the State in an embarrassing position by depriving the State (the respondent) the opportunity of filing an answering affidavit. Mr. Luke confirmed this position. Considering counsel's point to be well-taken, I thought it wise to permit the State to file an answering affidavit in opposition so that the facts grounding the opposition would be properly argued. This was accordingly done and I set hereunder in full the text   C of the State's opposing affidavit: [his lordship set out the text of the affidavit and continued.]

Before relating the principles set out supra to grounds contained in the applicants' affidavits and the State's answering  affidavit, I deem it pertinent  to express the view that a court seised with an application such as this, must approach the issues on the assumption that the accused is not lightly to be deprived of his liberty. And even   D though the court's power to grant bail is discretionary, that discretion must be exercised judicially and with utmost caution. Ever remembering the paramountcy of his constitutional right to liberty. With this proposition in view, I think it would be right for me to say that, in all bail applications, the accused seeking to be admitted to bail need do no more than raise sufficient grounds showing why his liberty should be left intact and not interfered with. It is then incumbent on the prosecution to affirmatively prove why the court should temporarily or otherwise   E deprive him of his liberty. Such proof must be devoid of speculation but must be based on ascertained facts - facts capable of swinging the court's pendulum of discretion to extreme against grant of bail.

This country, like many Anglophone common law countries, derived most, if not all of its criminal jurisprudence,   F legal philosophy and practice from English legal principles, and practice - a phylogeny from which we cannot easily run away. At least not yet. Jackson J. with whom Frankfurter J.  concurred, recognised this when delivering his judgment in the United States Court of Appeal for the Ninth Circuit in Stack v. Boyle 342 (1951) US 1 at pp. 7-8 and said:

     "The practice of admission to bail, as it has evolved in Anglo-American law, is not a devise for   G  keeping persons in jail upon mere accusation until it is found convenient to give them a trial. On the contrary, the spirit of the procedure is to enable them to stay out of jail until a trial has found them guilty. Without this conditional privilege, even those wrongfully accused are punished by a period of imprisonment while awaiting trial and are handicapped in consulting counsel,   H searching for evidence and witnesses, and preparing a defense."

I shall now proceed to relate the principles deduced from these judicial authorities to the grounds contained in the affidavits before me. I shall begin with those grounds in the State's answering affidavit on which arguments have been advanced before me.

1990 BLR p150

GYEKE-DAKO J

In my view, the averment in paragraph (10) of their answering affidavit that there exists in our law a provision  A  precluding the High Court from admitting a person charged with the offence of murder to bail is an over-statement of the existing law. Such assertion is only true of the magistrate's court as spelt out in the provisions of section 104 of the Criminal Procedure and Evidence Act (supra).

The provisions of section 114 of the Act (supra) which confer discretionary powers in matters of bail are explicit  B  and make no exceptions in respect of bailable offences. In my judgment, the reticence of the High Court to grant bail in capital offences is founded on practice. I therefore agree with Mr. Luke's contention that this is no ground on which the applicants should be denied bail. Indeed, this court is indebted to Mr. Luke for drawing its attention to cases decided both in this jurisdiction and the Republic of South Africa in which persons accused of murder have been admitted to bail, albeit under different circumstances.  C

It is particularly pertinent to cite the case of Leibman v. Attorney-General 1950 (1) S.A. 607 decided by the Witwatersrand Local Division on 26 and 27 October 1949 where an accused person charged with murder was admitted to bail. In that application, the court proceeded under section 109 of their Criminal Procedure Act which provided that a Superior Court having jurisdiction in respect of an offence has power at any stage of any  D  proceedings taken in any court before any magistrate, in respect of the offence to admit the accused to bail, whether the offence is or is not one of the offences specifically excepted in section 99, that is to say, whether or not it is a case of treason or murder. These provisions are in pari materia with section 114 of our Criminal  E  Procedure and Evidence Act (Cap. 08:02). Section 99 mentioned therein is also equivalent to our section 104. There is absolutely no doubt in my mind that the High Court's jurisdiction to grant bail is not ousted by the fact that the offence with which the accused is charged is murder or an offence carrying capital punishment.

There is, however, a common vital feature which distinguishes the cases cited and relied upon by Mr. Luke from the instant case, and that is, in those cases not only had police investigations been completed, but there was  F  also enough material, such as the summary of the evidence on which the prosecution intended to rely in proof of their case against the accused before the court, and which guided it in the judicious exercise of its discretion. In the instant case, there is no such material before this court due to, as argued by Mr. Sedie, the ill-timing of the initiation of the application. More would be said about this issue of delay anon.  G

It has been alleged in the State's answering affidavit, that the applicants are likely to interfere with the State's witnesses if released on bail. I have already said that bare assertion that the applicants are likely to interfere with the State's witnesses is not enough. The State has failed even to show in their affidavit that they are in  H  possession of some evidence which it is not desirable to disclose to this court but which would render it likely that the applicants would tamper with the witnesses or endeavour to abscond. If there were such evidence, it would certainly be a matter for the most serious consideration. But there is not. It is under these circumstances that I find this ground not well founded.

As regards the applicants' grounds, it appears to me that financial hardships and deprivation of occupational or professional pursuits resulting from detention

1990 BLR p151

GYEKE-DAKO J

  A  are not per se grounds for grant of bail. As I have stated, a court should always be desirous that an accused person should be allowed bail, if it is clear that the interests of justice would not be prejudiced thereby more particularly if the judge thinks upon the facts before him the accused will appear to stand his trial in due course. The only qualification I make to the general proposition is that, in cases of murder and other cases carrying the capital punishment caution is always exercised in deciding upon an application for bail.

  B In my judgment, therefore, the only issue left for me to decide is whether as contended by the applicants, their continued detention would result in undue delay in bringing them to trial and thereby constitute a breach of their constitutional rights as provided for under section 5 (3) of the Constitution of Botswana. That section of the Constitution reads:

      "(3) Any person who is arrested or detained -   C

     (a)      for the purpose of bringing him before a court in execution of the order of a court; or

     (b)      upon reasonable suspicion of his having committed, or being about to commit, a criminal offence under the law in force in Botswana,

     and who is not released, shall be brought as soon as is reasonably practicable before a court; and   D  if any person arrested or detained as mentioned in paragraph (b) of this subsection is not tried within a reasonable time, then, without prejudice to any further proceedings that may be brought against him, he shall be released either unconditionally or upon reasonable conditions, including in particular such conditions as are reasonably necessary to   E ensure that he appears at a later date for trial or for proceedings preliminary to trial."

A careful reading of section 5(3) of the Constitution shows clearly that in all cases, murder cases included, if an accused person in custody is "not tried within reasonable time" then he is entitled to be released. Inferentially   F therefore, the Constitution envisages and permits some period of detention before an accused is either brought to trial or released.

What is "reasonable time" is nowhere defined in the Constitution. I am therefore set on a voyage of discovering the meaning of this expression. The expression was variously defined by the English judges in the case of Hick   G v. Raymond and Reid [1893] A.C. 22 at p. 34. Lord Ashbourne's answer to the question what is "reasonable  time" was that:

     "It is obvious that 'reasonable' cannot mean a definite and fixed time. It would not be 'reasonable' if it was not sufficiently elastic to allow the consideration of circumstances, which all reason would require to be taken into account."

  H In the same case, Lord Herschell L.C. at p. 29 preferred to put it in the following way:

     "I would observe ... that there is of course no such thing as a reasonable time in the abstract. It must always depend upon circumstances ... the only

1990 BLR p152

GYEKE-DAKO J

     sound principle is that the "reasonable time" should depend on the circumstances which actually exist."  A

And at pp. 32-33 of the report, Lord Watson observed:

     "the condition of reasonable time has been frequently interpreted; and has invariably been held to mean that the party upon whom it is incumbent duly fulfils his obligation, notwithstanding protracted delay, so long as such delay is  B  attributable to causes beyond his control, and he has neither acted negligently nor unreasonably."

Let me now apply these persuasive dicta to the circumstances of the instant case in an effort to discern whether the police or the Attorney-General's Department whose responsibility it is to bring the applicants timeously to trial  C  have been guilty of unreasonable delay amounting to a breach of the applicants' right to their personal liberty in contravention of the provisions of section 5(3) of the Constitution quoted supra. Both the applicants and the State by their respective affidavits are ad idem that the applicants were arrested on the night of 4 March 1990. The almanac shows that 4 March 1990 was on a Sunday. As indicated earlier and vigorously argued by Mr. Sedie,  D  learned State Counsel who appeared at the hearing of this application on behalf of the State (the respondent), the applicants' arrest, albeit on suspicion of murder, is sanctioned by the provisions of section 5(1) (e) of the Constitution. By the applicants' own affidavits, they were each refused bail and remanded in custody on 7 March 1990 by a magistrate in pursuance of section 104 of the Criminal Procedure and Evidence Act (Cap. 08:02)  E  which as already noted, leaves a magistrate with no discretion to grant bail to a person charged with murder. So far, the police undoubtedly adhered scrupulously to laid down procedures to the letter; including the legal requirements that a person arrested without a warrant shall under normal circumstances not be detained in police custody for more than 48 hours, exclusive of course, of the time necessary for the journey from the place  F  of arrest to the magistrate's court having jurisdiction in the matter. This application was filed in the Criminal Registry of the High Court on 15 March 1990, approximately eleven days after the arrest of, and subsequent detention of the applicants on such serious charges as murder and at a time when police investigations into the case were at an embryonic stage. The question then arises whether in the circumstances of this case, it can be seriously contended that the authorities on whom it is incumbent to act have been unreasonable in not acting  G  timeously to bring the applicants to trial? I think not. The applicants' assertion that it would take about six months to one year before they are brought to trial is in my view, speculative. I agree with the contention of Mr. Sedie, learned State Counsel, that this application should be dismissed on the grounds that there has been no unreasonable delay in bringing the applicants to court. The applicants have, in their affidavits, protested their innocence. But as said earlier, this court is handicapped by the absence of any material touching on the facts  H  giving rise to the charge against them. This, in my view, tends to support the State's contention that the investigations into the case are still in progress. The State has set the end of April 1990 as the target for the possible completion of their investigation. Without in anyway encouraging delay in bringing the

1990 BLR p153

GYEKE-DAKO J

  A applicants to trial, an extension of the time limit would have to pass the test laid down in statute and case law as to what is "reasonable time" in a given case. For as Asquith L.J. said in Monkland v. Jack Barclay Ltd. [1951] 2 K.B. 252 at pp. 259 - 260.

     "reasonable time means a time reasonable in all the circumstances. Such a time may be extended beyond its normal   B span by special circumstances ... which did not exist at the time ... but which supervene later, hampering performance ... "

In the light of the above and having regard to the perculiar circumstances under which this application is brought,   C I am of opinion that there has not been unreasonable delay on the part of the State in bringing the applicants to trial. The provisions of section 5(3) of the Constitution have, in my opinion, not been contravened by the State.

I therefore refuse each applicant's application. This application is dismissed.

Application dismissed.

  D E. K. Q.

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