Ferguson and Galbaransingh v Attorney General
| Jurisdiction | Trinidad & Tobago |
| Judge | Archie, C.J,Weekes, J.A.,Soo-Hon, J.A. |
| Judgment Date | 23 February 2011 |
| Neutral Citation | TT 2011 CA 5 |
| Docket Number | Civil Appeal No. 270 of 2010; 4144 of 2010 |
| Court | Court of Appeal (Trinidad and Tobago) |
| Date | 23 February 2011 |
Court of Appeal
Archie, C.J; Weekes, J.A.; Soo-Hon, J.A.
Civil Appeal No. 270 of 2010; 4144 of 2010
Mr. F. Hosein S.C. and Mr. R. Dass for the first appellant
Mr. A. Mitchell Q.C. and Mr. R. Persad for the second appellant
Mr. A. Sinanan S.C. and Mr. K. Ramkissoon for the respondent
Criminal practice and procedure - Committal Proceedings conducted — Bail refused — Whether there is right of appeal to Court of Appeal — Whether Court of Appeal has inherent jurisdiction to hear appeal against refusal of the grant of bail.
Archie. C.J.: We have come to the conclusion that the Court of Appeal has no inherent jurisdiction to entertain an application for bail and, in the absence of any applicable statutory provision or substantive appeal before us, the present appeal must be dismissed. Accordingly, the merits of the appellants’ bail application are not explored in this judgment.
The appellants, by way of an application for judicial review, challenged the validity of an order for their extradition signed by the Attorney General. Meanwhile, they unsuccessfully applied for bail before the bail judge and it is the refusal of that application that they sought to appeal in this Court.
The appellants were on bail during the committal proceedings before the magistrate. Once the order for committal was made, there was of course no longer any power in the magistrate to grant bail. However, a High Court judge granted them bail during the pendency of Habeas Corpus proceedings. When those proceedings were finally dismissed, they were rearrested and taken into custody.
The appellants then filed a constitutional motion challenging, inter alia, the validity of relevant provisions of the Extradition Act and the judge hearing the matter refused a further application for bail. The substantive motion was eventually dismissed by the Court of Appeal, which declined to entertain an application for bail at that time.
While the constitutional motion was under consideration by the Courts, the Attorney General exercised his discretion under section 16 of the Extradition Act to order the return of the appellants to the United States of America. After being refused at first instance, leave to challenge that decision by way of judicial review was granted by the Court of Appeal (which heard that application together with the appeal in the constitutional motion).
The application for leave to file judicial review proceedings came after the refusal of bail in the constitutional motion. There was no prayer for interlocutory relief by way of grant of bail in the judicial review application and the Court of Appeal, after granting leave to apply for judicial review declined to consider the question of bail. The appellants made a fresh application for bail before a high Court judge, which was refused. It is that refusal that is the subject of this appeal, which the appellants have categorized as “procedural and interlocutory in nature” [the significance of that will become apparent later in this judgment].
At the commencement of the hearing before this Court, enquiry was made as to the proper basis, if any, upon which jurisdiction to entertain the appeal could be grounded. Although argued separately and with different emphases, the collective grounds advanced by the appellants were as follows:–
- Section 11A of the Bail Act, Chap 4:60; 2. The Inherent Jurisdiction of the Court; 3. Section 23(1) of the Judicial Review Act, Chap 7:08; and 4. Section 38 of the Supreme Court of Judicature Act Chap 4:01. We now deal with each ground in turn.
Section 11A (1) the Bail Act, Cha.. 4:60
Section 11A (1) of the Bail Act provides that: “where an application is made to the High Court under section 11(1) and the High Court refuses or grants the application or varies conditions, the accused or the prosecution may appeal to the Court of Appeal.” Section 11(1) however speaks only to a scenario “where a Magistrate's Court grants or refuses bail in criminal proceedings or imposes conditions in granting bail in criminal proceedings.” Thus the statutory jurisdiction of the Court of Appeal is predicated upon the prior decision of a Magistrate, which was appealed to the High Court.
The appellants must fail on this ground. Firstly because there is no meaningful sense in which a magistrate, who it is accepted lacks jurisdiction to grant bail upon committal, can be said to make a decision (i.e. a refusal of bail) that is reviewable by the High Court. He must first have the power to make the decision before it can be reviewed because it is the exercise of discretion that is being reviewed by the High Court.
Secondly, even if the appellants’ argument that such a ‘refusal’ is reviewable is accepted, the history of this case as previously recounted makes it clear that the current application bears no relationship to any such appeal. The only thing that could be remotely construed as an appeal against the magistrate's ‘refusal’ is the application for bail in the Habeas Corpus proceedings. That application having been granted and there having been no appeal against the conditions imposed, bail lapsed upon the determination of the Habeas Corpus proceedings, as it was interlocutory in nature. Any subsequent application for bail would be a fresh application under the inherent jurisdiction of the High Court (See Knowles & others v. Superintendent Culmer & others (PC Appeal No 45 Of 2004).) and/or the statutory jurisdiction that may be conferred by the combined effect of sections 3 and 4 of the Extradition Act, but not section 11(1).
However, it does not follow that because the High Court has jurisdiction to entertain a bail application in extradition proceedings that the same jurisdiction resides in the Court of Appeal. We therefore turn attention now to the second limb of the appellants’ submissions on jurisdiction.
The appellants contend that the Court of Appeal has jurisdiction to hear an appeal from the most recent refusal of bail pursuant to an inherent jurisdiction. No authority for this proposition was proffered in written submissions or in oral argument when counsels were questioned by the bench.
The general rule is that the Court of Appeal's substantive (as opposed to procedural) jurisdiction is entirely statutory. This is no doubt why it was considered necessary to specifically introduce section 11A of the Bail Act. Unfortunately it did not go far enough for the appellants’ purposes and we must resist the temptation to read more into that provision on the basis that Parliament intended to enact a more wide-ranging provision than it did. There is no evidence of that and no ambiguity in the language.
Nevertheless, for the sake of completeness we observe that the question of the inherent jurisdiction of Courts of Appeal to grant bail has been examined in other jurisdictions and we mention some of the cases here simply to affirm our agreement with the reasoning and approach.
The Court of Appeal of New Zealand in Pawel Marian Misiuk v. The Queen CA 65/2010; [2010] NZCA 142 considered the question of whether it possessed an inherent jurisdiction to hear an appeal from a refusal of bail in the High Court. Yenning J stated in relation to the jurisdiction of Court of Appeal at paragraphs 8 and 9:
“Jurisdiction
[8] The first issue is whether there is jurisdiction for the appeal. The Crown submits this Court has no jurisdiction to consider an appeal from the High Court dismissing an appeal from the District Court's refusal to grant bail. The appellant submitted that in the interests of justice this Court should have, or should assume, jurisdiction.
[9] Unlike the High Court, this Court does not have an inherent jurisdiction. There is no right of appeal from the High Court to this Court except pursuant to a statutory provision giving that right.” [Emphasis ours]
In New Zealand section 66(1) of the Bail Act, 2000 specifically grants a right of appeal to the Court of Appeal where a High Court judge refuses bail at first instance. The section reads:
“(1) Subject to subsection (4), this section applies to any decision made (whether under any enactment or rule of law or otherwise) by a High Court judge to—
(a) grant or refuse bail to a defendant; or
(b) impose or substitute or revoke or vary any condition of bail; Or
(c) refuse to impose any condition of bail or any particular condition of bail; or
(d) refuse to vary or revoke any condition of bail.”
However, the right of appeal to the Court of Appeal does not apply if the decision of the High Court judge was made on appeal from a decision of a District Court:
“(4) Nothing in this section applies in respect of any decision made by a High Court judgeif that decision was made on appeal from any decision of a District Court.”
. This is in contrast to the position in the Trinidad and Tobago Bail Act. Section 11A specifically grants a right of appeal to the Court of Appeal from a decision of the High Court made under section 11(1). The Bail Act however does not make provision for a right of appeal to the Court of Appeal where a High Court judge grants or refuses bail at first instance. Just as counsel in the present case argued that the Trinidad and Tobago Court of Appeal had an inherent jurisdiction to address a situation not provided for by statute, so too did counsel in Pawel Marian Misiuk v. The Queen (supra) argue that the New Zealand Court of appeal had an inherent jurisdiction to address a situation not provided for in their Bail Act.
argument was not accepted by their Lordships:
-
“11] Section 66(1) confirms that the right of appeal to this Court from a decision of the High Court relating to bail (whether under statute or the inherent jurisdiction of the High Court) is subject to subs (4)....
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