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REPUBLIC OF TRINIDAD AND TOBAGO
IN THE COURT OF APPEAL
(CHAMBER COURT)
CIVIL APPEAL NO. S 192 OF 2016
CV NO. 03229 OF 2015
BETWEEN
THE ATTORNEY GENERAL
OF TRINIDAD AND TOBAGO
Appellant
AND
RYAN RENO MAHABIR
Respondent
BEFORE THE HONOURABLE MADAM JUSTICE JUDITH JONES, J.A.
APPEARANCES:
Mr. F. Hosein, S.C., Ms. S. Sukhram, Ms. R. Hinds, Ms. R. Theophilus and Ms. T.
Toolsie instructed by Ms. K. Matthew and Ms. L. Thomas for the Appellant.
Mr. A. Ramlogan, S.C., Mr. G. Ramdeen and Mr. A. Pariagsingh instructed by
Mr. K. Samlal for the Respondent.
RULING
1. By a fixed date claim filed in the High Court Ryan Reno Mahabir, the
Respondent herein, sought:
(A) A determination of the High Court on the question of
whether section 5(5)(b) (ii) of the Bail Act as amended by the
Bail (Amendment) Act No 7 of 2015 should be correctly read
and interpreted so that the word “unlawful” qualifies the
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possession of a firearm by the Applicant for bail or someone
who was involved in the commission of the offence;
(B) A declaration that the correct interpretation of section 5
(5)(b)(ii) of the Bail Act is that the word “unlawful” is
required to qualify possession of the firearm by the applicant
for bail or a person that was involved in the commission of
the offence;
(C) Costs
(D) All necessary and consequential orders and directions and such
further and/or other relief as the Court might consider necessary
or expedient or as the Court deems fit.
2. After hearing submissions by both sides the order of the trial judge was as
follows:
“The Court interprets Section Five (5) of the Bail Amendment
Act and modifies same to read:
“(5) Subject to subsections two (2), six (6) and seven (7),
a Court shall not grant bail to a person who-
(a) …
(b) On or after the commencement of the Bail
(Amendment) Act 2015, is charged with an
offence:
(iii) Specified in Part II of the First Schedule, except an
offence under Section Six (6) of the Firearms Act, where the
prosecution informs the Court that the person or any other
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person involved in the commission of the offence had in his
possession and used a firearm or imitation firearm during the
commission of the offence”.
IT IS ORDERED THAT:
1. The Defendant shall pay sixty (60%) percent of the
Claimant’s cost on the substantive claim fit for Senior
Counsel and one (1) Junior and Instructing Attorney.
On the application for the admission into evidence of
the Cabinet Note, the Defendant shall pay the
Claimant’s costs of the application fit for Senior
Counsel.
2. Costs are to be assessed in default of agreement.
3. There be a stay of execution of fourteen (14) days.”
3. The modification to the section applied by the judge was with respect to the
words underlined in the order. The effect of the modification was to narrow the
circumstances under which bail may be denied under the section. In other words
the interpretation adopted by the judge allowed a larger number of persons to
be eligible to apply for bail than would have been eligible had the interpretation
proffered by the Attorney General, the Appellant herein and which the
Appellant submitted was the natural and ordinary meaning, been preferred.
4. The stay of execution granted by the judge expired on 3rd June 2016. On 17th
June 2016 the Appellant appealed the decision and, by an application filed on
21st June 2016, seeks before me: (a) a stay of execution of the judgment and
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orders of the trial judge pending the hearing and determination of the appeal
and (b) an expedited hearing of the appeal. At the time of making the application
and up to the time of the submissions before me the order of the judge had not
yet been perfected. The order has now been perfected.
5. The Appellant submits that the appeal is urgent and a stay of execution ought to
be granted. According to the appellant the interpretation placed on the section
by the judge has serious implications for the administration of justice since:
(a) persons currently deprived of bail will now be able to make
applications to the Magistrate’s court to determine whether
they fall within the provision as read by the judge and there
may be an inundation of claims to the High Court for
constitutional relief by those deprived of bail prior to the
judgment. This, he submits, will place a significant strain
on the criminal and civil justice system;
(b) if the judge’s interpretation is applied in the interim but is
subsequently found to be incorrect by the Court of Appeal
it is likely to bring the administration of justice into
disrepute and result in serious detriment to good public
administration;
(c) a stay of the decision and an early hearing of the appeal is
critical as the sunset clause on the Bail (Amendment) Act
is set to expire on the 15th August 2016. There is therefore
still time for the provision as enacted to run. Should a stay
not be granted and the appeal not expedited the matter will
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be considered by the Court of Appeal long after the
provision ceases to be effective;
(d) if the decision is not stayed and the appeal expedited the
manner in which the provision has been read by the judge
will influence the bail legislation currently before the
Parliament and any provision that mirrors the section will
have to be construed in accordance with the interpretation
placed on the section by the judge;
(e) the interpretation of the section has an impact on two
constitutional claims now before the court. It is therefore
important to establish the precise provision upon which the
courts are being called upon to pronounce.
6. Insofar as the Appellant refers to the sunset clause in the Bail (Amendment)
Act, prior to the Bail (Amendment) Act No 7 of 2015, from the year 2008
section 5 of the Bail Act Chap.4:60 had been the subject of various amendments.
The version of section 5, and in particular section 5(5)(b)(ii), considered by the
judge was introduced into the Bail Act by the Bail (Amendment) Act No 7 of
2015 (“the Amending Act”). Section 5 of the Amending Act provides for it to
expire on the 15th August 2016. Subsequent to the filing of the appeal and this
application, on 1st July 2016, a bill which, among other things, sought to extend
the life of the section as amended was defeated in Parliament. There is therefore
no bail legislation currently before Parliament. The appeal concerns a section
of the Bail Act that will no longer be law after the 15th August 2016.
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7. The position is that from 16th August 2016 section 5 of the Bail Act Chap.4:60
will provide:
“5. (1) Subject to subsection (2) a Court may grant bail to any
person charged with any offence other than an offence listed
in Part 1 of the First Schedule.
(2) A Court shall not grant bail to a person who is
charged with an offence listed in Part II of the First
Schedule and has been convicted on three occasions
arising out of separate transactions-
(a) of any offence; or
(b) of any combination of offences,
listed in that Part, unless on application to a Judge he can
show sufficient cause why his remand in custody is not
justified.
(3) In calculating the three prior convictions referred to in
subsection (2), only those convictions recorded within
the last ten years shall be taken in account.”
This original section therefore further widens the category of persons eligible to apply
for bail.
Stay of Execution
8. It is now trite law that to obtain a stay of execution pending appeal an applicant
must satisfy the judge that the appeal has a good prospect of success and that
there are special circumstances that would justify exceptionally the grant of a
stay: National Stadium (Grenada) Ltd v NH International (Caribbean)
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Limited and others Civil Appeal No. 48 of 2011. Of course one of the
accepted special circumstances being, if paid, there would be no reasonable
prospect of getting the money paid pursuant to the judgment back in the event
of a successful appeal. As was said in the NH International case the essential
factor for the Court’s consideration in the exercise of its discretion is the risk of
injustice.
9. The Appellant submits that there is a good prospect of success of the appeal and
refers to the notice of appeal which identifies some 14 grounds of appeal one of
which deals with the judge’s order for costs. With respect to the special
circumstances the Appellant refers to the irreversible effect on the
administration of justice and relies on the matters referred to above. In addition
he submits that should the costs be paid there is no reasonable prospect of being
able to recover these costs should he be successful on the appeal.
10. The Respondent, on the other hand, submits that I have no jurisdiction to order
a stay of the execution of the judgment. Alternatively, he submits, the
application is devoid of any evidence in support of the submissions as to the
impact and repercussions of the decision and there is no good prospect of
success of the appeal.
11. By section 37 of the Supreme Court of Judicature Act Chap.4:01 the jurisdiction
of the Court of Appeal in so far as it concerns the practice and procedure to be
followed in relation to appeals from the High Court is to be exercised in
accordance with that Act and the Rules of Court. Part 64.18 of the Civil
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Proceedings Rules 1998 as amended (“the CPR”) identifies the jurisdiction of a
single judge of appeal.
12. Part 64.18 (1):
“ (1) A single judge may make orders for-
(a) the giving of security for any costs occasioned by
an appeal;
(b) a stay of execution on any judgment or order against
which an appeal has been made pending the
determination of the appeal; and
(c) an injunction restraining any party from disposing
of or parting with the possession of the subject
matter of an appeal pending the determination of the
appeal,
and may hear and determine any procedural application in the
course of the appeal.”
13. The rule therefore gives limited powers to a single judge of appeal. This
includes the power to make an order to stay the execution of any judgment or
order against which an appeal has been made pending the determination of the
appeal.
14. According to the Respondent a stay of execution does not arise where the
judgment is declaratory and only arises where there is an executory order, that
is, an order that requires something to be done. In support of this point he relies
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on an excerpt from Zamir and Woolf: The Declaratory Judgment and two
cases, a decision of the Court of Appeal of Belize, The Attorney General and
others v Prosser and others Civil Appeal No.7 of 2006 and, a decision of the
Supreme Court of Nigeria, Chief R. A. Okoya and others v S. Santilli and
others SC200/1989. In both of these cases the court was of the view that the
consensus among academic writers was that declaratory judgments merely
proclaim the existence of a legal relationship and do not contain any order that
may be enforced against the defendant. In both cases the court refused to order
a stay of execution of declarations made in the order upon appeal.
15. In this regard in The Attorney General and Ors v Prosser and Ors at page
23 Sosa JA quotes from the judgment of Agadje J. in Oksya v Santilli as
follows:
“ it appears to me that the starting point…is the consensus that
a declaratory judgment may be the ground of subsequent
proceedings in which the right …violated receives enforcement
but in the meantime there is no enforcement or any claim to it.
So, until subsequent proceedings have been taken on a
declaratory judgment following its violation or threatened
violation there cannot on the clear authorities I have referred to
above, [be] a stay of execution of the declaratory judgment
because prior to the subsequent proceedings, it merely
proclaims the existence of a legal relationship and does not
contain any order which may be enforced against the
defendant.”
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16. Except to suggest that this court has, in two appeals before it, made orders that
impose a stay of execution in similar circumstances the Appellant has not
challenged the principle of law expressed in the two cases. The Appellant
submits however that, in the absence of the actual order made by the judge, it is
impossible to determine whether a declaration was in fact made by the judge.
He suggests that the judgment is more in the nature of a guideline judgment.
17. It is perhaps appropriate here to deal with the two appeals referred to by the
Appellant. In my view neither of them are of any assistance. In Nabbie and
Mayers v the Law Association of Trinidad and Tobago and the Attorney
General CA No 72 of 2012 the order obtained by the appellants was an
injunction. In that case the Law Association had sought a determination by the
High Court of two questions one of which was whether Law Officers, as defined
by the Legal Profession Act Chap 90:03, were entitled to attend and vote at a
general meeting or at elections of the Association or be elected to the Council
of the Law Association without paying fees under the Act.
18. The trial judge determined that they were not so entitled. The appellants, Nabbie
and Mayers, appealed the decision and before the Court of Appeal Chambers
sought an injunction restraining the Law Association from holding elections
until the determination of the appeal. The Chamber Court judge granted the
injunction sought. No application for a stay of the judgment under appeal was
sought or obtained.
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19. In The DPP v Her Worship Lucena Cardenas- Ragoonanan Civil Appeal
P073 of 2016 the appellant, the DPP, had, by way of judicial review, sought to
review a decision of the magistrate and, by way of interim relief, sought a stay
of the magistrate’s order pending the determination of the judicial review
application. Leave to apply for judicial review of the decision was granted ex
parte but subsequently set aside. The appellant appealed the decision to set aside
the leave and applied for a stay of that decision. A stay of the decision to set
aside leave was ordered by consent. In neither case therefore were there stays
of execution granted with respect to declaratory judgments.
20. In the text, The Declaratory Judgment1, Zamir and Woolf make a distinction
between a declaratory judgment and an executory judgment:
“A declaratory judgment is a formal statement by a court
pronouncing upon the existence or non- existence of a legal
state of affairs. It is to be contrasted with an executory, in other
words coercive, judgment which can be enforced by the courts.
In the case of an executory judgment, the courts determine the
respective rights of the parties and then order the defendant to
act in a certain way, for example, by an order to pay damages
or to refrain from interfering with the claimant’s rights; if the
order is disregarded, it can be enforced by official action,
usually by levying execution against the defendant's property
or by imprisoning him for contempt of court. A declaratory
1 Zamir v Woolf: The Declaratory Judgment, third edition, paragraph 1.02 at page 1.
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judgment, the other hand, pronounces upon a legal relationship
but does not contain any order which can be enforced against
the defendant. Thus the court may, for example, declare that the
claimant is the owner of certain property, that he is a British
subject, that a contract to which he is a party has or has not been
determined, or that a notice served upon him by a public body
is invalid and of no effect. In other words, the declarations
simply pronounce on what is the position.”
21. With respect to guideline judgments and their relationship to declaratory
judgments Zamir and Woolf state:
“Declaratory judgments have also to be distinguished from
guideline judgments. Any judgment by a court of record in a
common law system can clarify and develop the law. It is no
longer necessary to conceal the fact that judges make law by
declaring what the law is in the course of their judgments,
which then provide precedents for the future. This is done
without making a declaratory judgment of the nature with
which this book is primarily concerned, which is a judgment
which concludes by making a formal declaratory order.
However, in recent years it has become increasingly frequent
for appellate courts to not only decide the issue which is
strictly before the court but also to as to what should be a
position in similar situations in the future. Broad guidance is
given as to levels of sentencing, questions of damages and as
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the issue of practice, procedure and costs. The guidelines are
in practice given effect to in other cases. Although not strictly
binding, judgments are accepted as being declaratory of the
legal position and followed by inferior courts until changed.
They are therefore highly influential but not declaratory.”2:
22. Insofar as the trial judge’s order determines how the section is to be read I do
not accept that the decision of the judge was a guideline decision as described
by Zamir and Woolf. Although the word ‘declare’ or variations of it is not found
in the order, or indeed the judgment, the application before her specifically
sought a determination as to how the section should be interpreted and read. In
doing so the judge was in fact declaring what the law was. This was the primary
purpose of the application. This was not broad guidance given in the course of
a judgment but in fact a formal statement by the judge as to the interpretation to
be placed on the section. I am satisfied that in the circumstances the judge’s
determination of the issue before the court was declaratory of the law and a
declaratory judgment in the context used by Zamir and Woolf despite the fact
that the word ‘declare’ was not used.
23. In so far as it is necessary to classify the nature of the order, that is, whether it
is declaratory or executory it is in fact both. In so far as it declares the manner
in which the section is to be read and modified it is declaratory of the law. In so
far as it orders the payment of costs, the manner in which the costs were to be
ascertained and a stay of execution it is executory.
2 Ibid paragraph 1.04 page 3
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24. In both of the cases referred to by the Respondent the court was of the opinion
that there could be no execution of a declaratory judgment. Although both of
the cases are merely persuasive authority I accept the reasoning of the courts on
this point. It is clear to me that in the absence of an order for something to be
done, or executed, there is no execution to be stayed.
25. A similar position was taken by the Eastern Caribbean Court of Appeal in the
case of Cukurova Finance International Limited and another v Alfa
Telecom Turkey Limited [2011] ECSCJ No 257. Here the appellants sought
before the full court a stay of execution of a judgment containing declarations
and orders pending an appeal to the Privy Council. While a stay of execution
was granted with respect to the orders made the Court declined to grant a stay
of execution of the declarations.
26. In agreeing with the submissions made by the respondent in that case, at
paragraph 32, Edwards JA stated:
“…….a declaratory judgment cannot be stayed. It is
elementary that a declaratory judgment merely proclaims the
existence of a legal relationship and does not contain any
order which may be enforced against Culurova. While the
declaratory judgment may be the ground of subsequent
proceedings in which the right, having been violated, receives
enforcement, in the meantime there is no enforcement or any
claim to it. The Court of Appeal made no determination of the
rights of the parties requiring enforcement by making the
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declarations sought by Alfa so Cukrova’s application in
relation to the declarations made by the Court of Appeal must
be refused”.
27. In like manner that part of the order of the trial judge by which she determined
the correct reading of the section does not contain any order that may be
enforced against the Rrespondent. It merely declares the manner in which the
section is to be interpreted and read. In these circumstances I am satisfied that
there can be no stay of execution of that part of the order.
28. With respect to the order for costs however while a stay of execution is available
the order of the judge was that if not agreed the costs were to be assessed. From
the bar table I have been told that there has been no attempt to assess the costs.
It would seem to me that in the circumstances an application to stay the
execution of the order for costs is premature. In any event the Appellant has not
placed any evidence before me in support of his submission that if paid it is
likely that the Respondent will be unable to repay the costs if the Appellant is
successful on the appeal. In the circumstances I decline to make an order staying
the judge’s order for costs.
Expedited appeal
29. Part 64.10 of the CPR permits the court to make an order that the hearing of an
appeal be expedited on the application of any party to the appeal. In this case
both parties are agreed that the appeal ought to be expedited. Such an agreement
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however is not determinative of the application. The question for me is whether
this appeal ought to be given priority over the other appeals filed before it.
30. The principles relevant to expediting an appeal were considered by our Court
of Appeal in the case of Trinidad and Tobago Civil Rights Association v
Patrick Augustus Manning Civil Appeal No 147 of 2004. This was an
application for judicial review and concerned the grant of lands to displaced
workers. At that time the relevant rule, Order 59 rule 41 of the Rules of the
Supreme Court 1975, required the applicant to satisfy the court that it was in the
interest of justice that the appeal be heard urgently. According to Nelson JA:
“…..in order to succeed on an application of this kind there
must be something in the nature of the cause or matter or
the relief sought or for some other reason, it must be in the
interest of justice that the appeal be heard in priority to
other appeals.”
31. Part 64.10 is not in the exact terms of Order 59 rule 41 and makes no reference
to ‘the interest of justice’. In exercising my discretion under Part 64.10 however
I am required by the CPR to apply the overriding objective. I must therefore
treat with the case justly. This is not limited to considerations of what is fair or
right as between the two parties but extends to considerations of fairness to other
users of the court’s resources3. This to my mind includes a consideration of
whether it is in the interests of justice that this appeal be heard in priority to
3 Part 1.1(2)(e)
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other appeals. There is in my view therefore no major difference in the
application of Order 59 rule 41 of the 1975 Rules and Part 64.10 of the CPR.
32. In the Trinidad and Tobago Civil Rights Association case the following
statement made by Sir Thomas Bingham, then Master of the Rolls, in Unilever
PLC v Chefaro Proprietaries Ltd [1995] 1 All ER 587 was endorsed by the
court:
“Since most appeals are scheduled to be heard on dates fixed
well in advance, and since court sittings are so far as possible
planned a long time ahead, the expediting of an appeal other
than the shortest is likely to have one or other of two possible
consequences, usually both. One is that a fixture already
made for the hearing of another appeal has to be cancelled.
The other is that the hearing of another appeal which may
well have been awaiting hearing for about 18 months, has to
be deferred. Both of these consequences are highly distasteful
both to the court and to the parties in the displaced appeal or
appeals.”4
33. In the Trinidad and Tobago Civil Rights case the stated position was that, rather
than the 18 months suggested in Unilever, the time lag between setting down
and hearing was no more than 5 months. Bearing in mind the guidelines for
4 page 8 of the Trinidad and Tobago Civil Rights Association v Manning and page 590-591 of the
Unilever case
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expedited appeals set out in Unilever the court’s position in the Trinidad and
Tobago Civil Rights case was that it ought to be:
“ …. very sparing in its grant applications for urgent hearing
especially in view of the fortunate position in which Court
of Appeal list stands. Secondly, that the court in fixing a date
for an early hearing would give weight not so much of the
wishes of the parties to that appeal, but to the interest of other
parties who would be adversely affected by the cancellation
or postponement of their appeals. One has to consider that
all persons who file appeals feel that those appeals ought to
be heard urgently. It therefore would require some
exceptional case to be made out for an urgent hearing to be
granted especially in view of the relatively short time- lag
between setting down and hearing of the appeal in this
jurisdiction.”5
34. Unfortunately times have changed and the period between the setting down and
the hearing of the appeal in this jurisdiction at this time is more in the vicinity
of the 18 months suggested in Unilever. In that case Sir Thomas Bingham,
recognizing that in the circumstances there needed to be a high threshold which
a party must cross before its application for an expedited appeal is granted, gave
an indication of the principles that the court was likely to apply when making
an order for the expedited hearing. He divided the types of cases into two
5 Ibid page 8
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categories. One of these categories was where justice can only be done if the
appeal is heard immediately or within days.
35. The other category arises in cases where:
“The court recognizes the need to try and arrange expedited
hearings where it appears that without such expedition: (1) a
party may lose its livelihood, business or home or suffer
irreparable loss or extraordinary hardship; (2) the appeal will
become futile; (3) the resolution of numerous cases turning
on the outcome of a case under appeal will be unreasonably
delayed, or the orderly management of class or multi-party
litigation in the lower court will be disrupted; (4) widespread
divergencies of practice are likely to continue, with the
prospect of multiple appeals until the correct practice is laid
down; (5) there would be serious detriment to public
administration or to the interests of members of the public not
concerned in the instant appeal.”6
36. On the evidence before me I am satisfied that this case does not fall within the
category of cases that needs to be heard within a matter of days. Indeed the
application to expedite the appeal was made approximately one month after the
decision. Rather it is to the second category of cases that consideration needs to
be given. Items (2), (3) (4) and (5) are of concern here they all having been
6 Page 591 of the Unilever case
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raised in some form or fashion by the appellant when dealing with the
implications of the judgment on the administration of justice.
37. However the concerns raised by the Appellant have to be considered in the light
of the length of the life of the section, just over two weeks, and the fact that the
application seeks to have this appeal jump the queue over all the other appeals
awaiting hearing.
38. It is not possible for the appeal to be heard before the 15th August 2016 the date
when the section ceases to have any effect. In the circumstances insofar as the
appeal is to make certain the interpretation to be placed on the existing section
for future use for all intents and purposes it is already futile. There is no bail
legislation before Parliament that the decision of the trial judge can influence.
Nor is there any evidence before me of any case the resolution of which turns
on the interpretation to be placed on the section. Or indeed of any constitutional
motions or bail applications brought as a result of the interpretation placed on
the section by the judge.
39. Both constitutional motions referred to by the Appellant predate the judgment
that is being appealed. In any event they both deal with a specific refusal of bail
made prior to the decision of the judge. Any constitutional rights which may
have been breached with respect to those persons flow from that specific refusal
and not from the decision appealed.
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40. There ought not to be a divergence of practice with respect to the application of
the section since there has now been a determination by a court of competent
jurisdiction of the manner in which the section is to be applied. In any event the
section only has two weeks left before it is no longer valid. Even if the Court of
Appeal subsequently determines that the judge was wrong, in the light of the
fact that the reversion to original section narrows even further the circumstances
under which bail may be denied, the effect of such a reversal will be negligible.
Not much will turn on the interpretation placed on a non-existent section by a
judge.
41. There is no evidence of the fear voiced by the Appellant that there will now be
an inundation of claims to the High Court for constitutional relief by those
denied bail as a result of the interpretation placed on the section by the judge.
At the end of the day these fears voiced must be viewed in the context of the
length of time the section has to run and must be weighed against the fact of the
deferment of other appeals and the resulting injustice to those parties.
42. To my mind the determining factor is the length of time left for the section to
have any effect. The reality is that in a little over two weeks the modifications
placed on the section by the judge will have no effect on the eligibility of
persons to apply for bail and will be of little more than academic interest. I am
therefore not satisfied that if the appeal is not expedited there would be serious
detriment to public administration or to the interests of members of the public
not concerned in the instant appeal.
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43. In the circumstances given the length of time left for the section to have any
validity I am of the opinion that an order for an expedited hearing is not
warranted. The Appellant has not satisfied me that it is in the interests of justice
that this appeal have priority over all the other appeals awaiting hearing.
Accordingly the application is dismissed.
Dated this 29th day of July, 2016.
J. Jones
Justice of Appeal