25th July, 2012

VIDEOCONFERENCE MONTSERRAT Wednesday, 25th July 2012 APPLICATIONS AND APPEALS Case Name: Warren Cassell v The Queen [High Court Criminal Appeal No. 1 of 2012] Coram: The Hon. Mde. Janice M. Pereira, Chief Justice [Ag.] The Hon. Mr. Davidson K. Baptiste, Justice of Appeal The Hon. Mr. Don Mitchell, Justice of Appeal [Ag.] Appearances: Appellant / Applicant: In person (Mr. Leon Chaku Symister, counsel on record for the appellant, was unable to be present at the videoconference hearing in Montserrat) Respondent: Mr. Oris Sullivan, Senior Crown Counsel, Office of the Director of Public Prosecutions Issues: Application for bail pending appeal – Whether special circumstances existed to justify grant of bail – Whether conviction was clearly wrong in law – Whether court lacked jurisdiction to charge appellant – Whether trial proceeded in such a manner so as to invalidate indictment – Whether court ought not to have proceeded with certain counts on indictment – Whether trial was a nullity Result / Order: [Oral delivery] The application for bail pending appeal is dismissed. Reason: On the issue of whether an appellate court has a discretion to grant bail (post-conviction) pending the hearing of an appeal, the Court was guided by the case

of The State v Lynette Scantlebury (1976) 27 WIR 103. This authority states that since normally bail would not be granted to an appellant or a prospective one after his conviction by a jury, an applicant would have to show that there were special circumstances which would make it the just thing to do to put him on bail pending the hearing of his appeal. One such special circumstance would be if the conviction appears plainly wrong, so that his appeal has every prospect of success. The Court pointed out that the appellant was merely advancing matters that were in issue and should properly be argued at the hearing of his substantive appeal, and that it was not evident from the record that there were special circumstances. In response to the appellant’s argument that a withdrawal of counts from the indictment would cause it to be invalidated (which, the appellant contended, could be considered a special circumstance), the Court stated that it was not of the opinion that this would have caused any grave injustice to, or would have prejudiced the appellant. If there are multiple counts on an indictment, some of which are bad, this would not render the entire indictment bad. In response to a further submission by the appellant that the charges brought against him were duplicitous, and thus the court had no jurisdiction to charge him (which would be another special circumstance), the Court stated that such an error could be very easily cured with an amendment of the indictment. The Court ultimately held that once a jury has convicted a defendant, it is only where it is plain on the record (and not just argumentative) that there are special circumstances, that a Court of Appeal should even consider granting bail before the hearing of the appeal itself. In this case, the Court could see absolutely no basis to accede to the appellant’s request for bail. The applicant had failed to show that there were special circumstances which would warrant the grant of the relief sought.

1VIDEOCONFERENCE MONTSERRAT Wednesday, 25th July 2012APPLICATIONS AND APPEALS Case Name: Warren Cassell v The Queen [High Court Criminal Appeal No. 1 of 2012] Coram: The Hon. Mde. Janice M. Pereira, Chief Justice [Ag.] The Hon. Mr. Davidson K. Baptiste, Justice of Appeal The Hon. Mr. Don Mitchell, Justice of Appeal [Ag.] Appearances: Appellant / Applicant: In person (Mr. Leon Chaku Symister, counsel on record for the appellant, was unable to be present at the videoconference hearing in Montserrat) Respondent: Mr. Oris Sullivan, Senior Crown Counsel, Office of the Director of Public Prosecutions Issues: Application for bail pending appeal – Whether special circumstances existed to justify grant of bail – Whether conviction was clearly wrong in law – Whether court lacked jurisdiction to charge appellant – Whether trial proceeded in such a manner so as to invalidate indictment – Whether court ought not to have proceeded with certain counts on indictment – Whether trial was a nullity Result / Order: [Oral

delivery] The application for bail pending appeal is dismissed. Reason: On the issue of whether an appellate court has a discretion to grant bail (post-conviction) pending The hearing of an appeal, the Court was guided by the case 2of The State v Lynette Scantlebury (1976) 27 WIR 103. This authority states that since normally bail would not be granted to an appellant or a prospective one after his conviction by a jury, an applicant would have to show that there were special circumstances which would make it the just thing to do to put him on bail pending the hearing of his appeal. One such special circumstance would be if the conviction appears plainly wrong, so that his appeal has every prospect of success. The Court pointed out that the appellant was merely advancing matters that were in issue and should properly be argued at the hearing of his substantive appeal, and that it was not evident from the record

that there were special circumstances. In response to the appellant’s argument that a withdrawal of counts from the indictment would cause it to be invalidated (which, the appellant contended, could be considered a special circumstance), the Court stated that it was not of the opinion that this would have caused any grave injustice to, or would have prejudiced the appellant. If there are multiple counts on an indictment, some of which are bad, this would not render the entire indictment bad. In response to a further submission by the appellant that the charges brought against him were duplicitous, and thus the court had no jurisdiction to charge him (which would be another special circumstance), the Court stated that such an error could be very easily cured with an amendment of the indictment. The Court ultimately held that once a jury has convicted a defendant, it is only where it is plain on the record (and not just argumentative) that there

are special circumstances, that a Court of Appeal should even consider granting bail before the hearing of the appeal itself. In this case, the Court could see absolutely no basis to accede to the appellant’s request for bail. The applicant had failed to show that there were special circumstances which would warrant the grant of the relief sought.