Abdoulie G. Dibba
Defence Counsel Lamin K. Mboge has on Thursday 2nd October 2014 applied for bail on behalf of Alhagi Faraba Jallow and Sara Jallow who were convicted by the Kaur Magistrate’s court pending the outcome of the appeal filed by the appellants.
Counsel Mboge made this application before Justice Amadi of the High Court in Banjul.
In his application for bail, Defence Counsel Lamin K. Mboge informed the court that the court has the power to grant bail to the accused person and cited section 285 and section 288(6) of the Criminal Procedure Code.
He stated that this legislation is to avoid this type of situation where an innocent person is convicted and sentenced and therefore gives this power to the court.
Lamin K. Mboge called on the court to exercise its discretion and grant bail to the accused person for the sake of justice as there is no affidavit in opposition to deny the facts.
In his reply, Director of Public Prosecution (DPP) Bakum told the court that with or without counter affidavit and with or without objection from the respondent the court can still refuse bail.
DPP Bakum said counter affidavit or objection from the respondent is not a condition.
DPP Bakum informed the court that there are two forms of bail and that the first form is the one that comes under the provision of section 99 of the Criminal Procedure Code and the second is the bail pending appeal where the Attorney General intends to appeal not where the convict intends to appeal. He said that that is captured in section 285 of the Criminal Procedure Code.
DPP noted that counsel is applying for bail pending appeal which was provided for by section 281of the criminal Procedure code before it was repealed but as of now it is repealed by Act Number 2 of 2002.
He asserted that section 285 of the CPC is where the counsel seems to rely on and section 288 of the CPC, but he argued that those sections are not applicable in this case as they are only applicable in matters where the Attorney General wants to appeal or is asking for a review of a sentence. In that case, he said, counsel can apply for bail pending the review.
The DPP argued that in this case, counsel is appealing against conviction and sentence but the section he cited mentions only review of sentence.
He informed the court that bail pending appeal is a unique one in that the presumption of innocence is no longer the issue because the applicant is already convicted.
DPP Bakum noted that the conditions for bail pending appeal are as follows:-
- The discretion of the court
- The accused showing exceptional circumstances why he or she should be granted bail
- The length of the sentence and
- The likelihood of delay before the appeal is heard.
The DPP asserted that bail pending appeal could be applied if the accused fears that the length of the sentence would expire before the appeal is heard and in that case, the length of the sentence is against the applicant because the length of sentence is 1 year.
Lastly he said, will the court grant bail to an applicant who absents himself from court because the applicants were absent from court on the 16th of September 2014 when the matter was set for judgment and the counsel’s reason for their absence was that they were before the high court.
Justice Amadi interjected and asked: “So they were convicted in absentia?”
DPP answered: “We will come to that during the hearing of the appeal.”
In responding on points of law, Counsel Mboge noted that he conceived that section 285 of the Criminal Procedure Code is applicable for review of sentence but that section 288 of the Criminal Procedure Code applies to the whole proceeding and this honurable Court can exercise its discretion under section 279 of the Criminal Procedure Code to grant bail for the interest of the accused.
At this stage, the case was adjourned to Thursday 9th October 2014 for ruling on the bail application and hearing of the appeal.