MISC. CRIMINAL APPLICATION NO. 191 OF 2001
CORAM: THE HON. JUSTICE A.C. CHIPETA
The Applicant is a convict under a ten year imprisonment sentence imposed on 28th June, 2000 by the Chief Resident Magistrate at Blantyre for Armed Robbery. He lodged an appeal against both his conviction and his sentence but the mother file of his case has apparently been mislaid between the Blantyre Magistrates Court and the High Court. The appeal has not been heard and due to the uncertainty as to when, if ever, the file will be traced, the date the appeal will be heard and/or determined also hangs in limbo. He swears to the effect that he has faith in the success of his appeal and in the circumstances disclosed above seeks bail pending the determination of his appeal.
I was quite attentive throughout the time the opposing arguments, were
being advanced in this case and I have taken ample time to soberly reflect
upon them. I have in so doing not lost sight of the governing authorities
in situations where bail is sought post rather than pre conviction.
The naked law on the subject is that such bail, as has been sought here,
is only granted on display of exceptional circumstances. I will therefore
only be in a position to consider bail for the Applicant herein if I am
convinced that he has shown me such type of circumstances. The case
of Pandirker -vs- Rep [1971-72]6 ALR Mal. 204, which the State cited in
their argument, was so blunt as to point out that before a conviction has
I certainly do no condone the administrative laxity in our courts that leads to uncertainties such as we have in this case on the whereabouts of the material record. In fact I condemn it. Be this as it may, at law I am bound to view the Applicant convict herein as a guilty man who is not entitled to the free exercise of his freedom per Pandirker (supra). At the same time due to absence of record I do not know what chances of success, if any, his appeal has and I cannot just assume these because the file is presently not traceable. Bearing in mind S 355 of the Criminal Procedure and Evidence Code and the case authorities that have emanated from its interpretation I see no qualification in this matter on the part of the Applicant for him to deserve bail in this case. In the result I dismiss the Applicant’s application but at the same time seriously urge the Registrar to ensure that the Applicant’s trial record is traced so that he is enabled to practically exercise his right of appeal.
Made in Chambers this 27th day of September, 2001 at Blantyre.