Gonzalez v R

• Jurisdiction: Cayman Islands
• Judge: Hull, J.
• Judgment Date: 10 April 1985
• Court: Grand Court (Cayman Islands)
• Date: 10 April 1985

Gonzalez

and

R.

Hull, J.

Grand Court

Criminal Procedure - Bail — bail pending appeal — application after prior refusal — decision of Judicial Committee of Privy Council to grant leave to appeal is material change of circumstances justifying second application for bail, since certainty of lengthy delay replaces mere possibility of it

Criminal Procedure — bail — factors to be considered — excessive period of custody before appeal not justified even when applicant charged with serious offences and likely to abscond-bail, subject to stringent conditions granted to applicant after 20 months' custody when certainty of several months' further delay before hearing of appeal

Criminal practice and procedure - Bail — Factors to be considered — Excessive period of custody before appeal not justified even when applicant charged with serious offences and likely to abscond — bail, subject to stringent conditions granted to applicant after 20 months' custody when certainty of several months' further delay before hearing of appeal

The applicant applied for bail under the Criminal Procedure Code, s.27 while awaiting the hearing of his appeal to the Judicial Committee of the Privy Council against the decision of the Court of Appeal that he should be retried for serious offences involving hard drugs.

The applicant was tried and convicted of serious drug offences. The Court of Appeal set aside the convictions and ordered a retrial (reported at 1984 – 85 CILR 197). The applicant was remanded in custody.

Written reasons for the Court of Appeal's decision were still awaited when the retrial was due to start and the applicant sought an adjournment in order that he might petition the Judicial Committee of the Privy Council for leave to appeal, once the written reasons were available. At the same time, he applied for bail. The magistrate granted an adjournment but refused bail. The applicant then filed his petition for leave to appeal and applied to the Grand Court (Summerfield, C.J.) for bail but it was again refused (reported at 1984–85 CILR 136).

The Judicial Committee of the Privy Council then granted leave to appeal and the applicant made the present application for bail pending the determination of his appeal. At the date of the application the applicant had been in custody for 20 months and it was acknowledged that his appeal would not be determined for several more months.

The Crown raised a preliminary objection that the Court had no jurisdiction to entertain the application because there had been no material change of circumstances since the earlier decision to refuse bail, which had been made in the knowledge that the applicant proposed to appeal to the Judicial Committee of the Privy Council and that the case would, therefore, be further delayed.

The Crown further submitted that the application should in any case be dismissed since (i) it was in the public interest that persons facing serious charges should be brought to trial and there was a strong likelihood that the applicant would abscond if granted bail; and (ii) the delay in disposing of the case was not the fault of the Crown, but was the result of the applicant's own decisions to appeal.

Held, granting the application:

• (1) The Court could entertain the application, since the decision of the Judicial Committee of the Privy Council to grant leave to appeal constituted a material change of circumstances since the previous application. When the earlier application was refused the Court did not know whether leave to appeal would be granted and there was a possibility that the retrial might soon commence. Once leave was granted, it became certain that there would be a delay of several months before the applicant's case would be disposed of and this change of circumstances was sufficient to justify consideration of the present application (page 329, line 40 — page 330, line 25).

• (2) The applicant would be granted bail, subject to stringent conditions. Although it was true that there was a real risk that he would abscond, the public interest had to be balanced against the interest of the individual who was entitled to the presumption of innocence until the case against him was proved. Unless some further change of circumstances occurred, the present decision would affect the applicant's liberty for several more months, pending his appeal, and a refusal of bail might mean, therefore, that he would have been held in custody for as long as 2 ¹/₂ years before the disposal of his case. The fact that the applicant himself had decided to pursue his appeal, and thus cause the delay, was no bar to the application and, since even a person charged with serious offences should not be held in custody for 22 years before trial, the application would be granted (page 331, line 18 — page 332, line 29).

Appearances:

R. Voaderc for the applicant;

R. W. Ground, Senior Crown Counsel, for the Crown.

Hull, J.

1 Yesterday in chambers I granted bail to the applicant Raul Gonzalez. At the time, I said that I would give my reasons for doing so in open Court today.

2 The background to the application is this. Gonzalez was arrested on March 22 ^nd, 1983, and charged, as were other persons, with various offences involving cocaine. He was granted bail pending his trial. This began in the Summary Court on April 20 ^th, 1983. During this trial, the then Commissioner of Police made certain public statements. On May 6 ^th, 1983, the then stipendiary magistrate stopped the trial and ordered a retrial before a different magistrate, for the reason that he found the statements prejudicial. The retrial began on July 11 ^th, 1983. At the close of the prosecution's case, the presiding magistrate withdrew Gonzalez's bail to which he had previously answered. This was on July...