I
must hasten to point out at this stage that the two applicants initially made
an application for bail pending appeal before the trial magistrate.
This
application was mounted prior to filing of notice of appeal and the trial
magistrate correctly threw out the application for it would have amounted to
bail pending nothing which would be improper. It is common knowledge that
for one to make an application for bail pending appeal there should be a notice
of appeal and grounds of appeal filed. The applicant's counsel launched an
unwarranted attack on the trial court for not entertaining such an unprocedural
application.
I
will now turn to the merits of the application for bail pending appeal argued
before this court.
After
hearing arguments for and against the granting of bail I dismissed the
application for bail. In coming up with that decision the court gave due
regard to the settled principals governing bail pending appeal and the
circumstances of the applicants and also the proceedings and findings in the
trial court. In applications of this nature the court has to consider the
following factors;
1.
Whether or not there are prospects of success on appeal.
2.
The likelihood or otherwise of abscondment.
3.
The likely length of delay before the appeal is heard.
4.
Any other factors which the court deems necessary in assessing the suitability
of the applicant for bail pending appeal…..,.
From
the record of proceeding of the trial court it is apparent that the applicants
and the complainant transacted and that the outstanding amount which forms the
subject of the offence was not remitted to the complainant. The trial
court, in its judgment, properly and carefully assessed the evidence adduced
before it and came up with a conviction well-grounded on the
evidence. Most aspects of the case where common knowledge and not
disputed. The applicants did not dispute being given the money by the
complainant. The only issue the court had to decide on is whether the
applicants unlawfully abused the trust bestowed on them and stole the
complainant's money. It is apparent from the record of proceedings that
the complainant did not raise any cry or alarm on the amount the she authorized
the applicants to use but the issue she complained of pertained to the money
the applicants used without any authorization. It was clear in the
uncontroverted evidence on record that she did not give a blanket authorization
for use of all the money but the complainant wrote correspondence where she
authorized and sanctioned the use of the money. There is nothing which was
before the trial court showing she had authorized first applicant and the
second applicant to use the $126,463=17.
The
record of proceeding does not show that the applicants dispute unlawfully using
the complainant's money for their own benefit. The essential elements of
theft of trust funds were fulfilled by the evidence before the trial court and
it was on that basis the trial court came up with a conviction well-founded on
evidence placed before it.
In
the wake of evidence showing that indeed the applicants were entrusted with
money by the complainant and that without authorization they used part of that
money then the conviction by the trial court is well-pinned on evidence
adduced. The fact that the applicants and complainant are related and had
earlier transacted and agreed on other sums of money does not give a blanket
authorization for use of the money. Given the circumstances of the case
before the trial court there is really no basis for another court interfering
with the trial court's decision of conviction, put in other words there are no
prospects of success on appeal against conviction in the face of the
overwhelming and clear evidence of theft of money bestowed for keeping.
The
sentence imposed of 7 years with 2 years suspended on conditions of good
behaviour and 3 years on conditions of restitution for theft of trust property
money to the tune of $126,463=73 cannot be said to be outrageous. If
anything, the trial court properly exercised its sentencing discretion weighing
and matching the offence, the offender, and societal interest.
There
is no likelihood of interference with the sentence as such no prospects of
success on appeal against sentence. Having said there are no prospects of
success against both conviction and sentence the likelihood of the applicants
not availing themselves for prosecution of the appeal are high. The
conviction and sentence can induce them into absconding and that will then put
the interest of justice into jeopardy, I am alive to the likely delay in
prosecution of appeals but given that there are no prospects of success on
appeal that factor of likely delay cannot stand alone. The applicants have
been convicted and sentenced, and, as such, have to prove their entitlement to
bail. In this case, the circumstances are such that the interest of
justice and integrity of the system will be prejudiced by admission of the
applicants to bail in the absence of any prospects of success on appeal against
such conviction and sentence.
It is against this background that the
applicants' application was dismissed.
