Dhirani v. R. Crim. App. 426-M-70; 6/7/70; Mnzavas, Ag. J.

Dhirani v. R. Crim. App. 426-M-70; 6/7/70; Mnzavas, Ag. J.

The appellant was convicted of causing death by dangerous driving and sentenced to 2¹/₂ years imprisonment. The counsel for the appellant applied for bail on the ground that the prospects of the appeal against conviction being successful were overwhelming. The contended that the Magistrate misdirected himself by not taking into account the discrepancies in the evidence given by the prosecution witnesses – in that he thoroughly relied on the evidence adduced by eye witness but failed to take into account the discrepancies in their evidence. This misdirection, e argued was fatal to the prosecution case and that the accused should have been acquitted of the charge. Touching on the question of alleged discrepancy the state attorney was of the view that the magistrate gave thorough and adequate analysis as to why he did not think that the discrepancies were fatal to the prosecution case.

            Held: (1) “I refer to the case of HASSAN WALJI VS. R (1968) H.C.D. Case No. 174 in which Georges C.J. said and I quote ….’ While accused’s arguments are not without merit it is only where the strongest possible case for success is made out that the court ought to grant bail’….. Where a short and simple point of law seems likely to be dispositive of an appeal, bail may be granted. But the test is always whether the appeal has an overwhelming chance of successes and the test is not met ‘where an argument in the facts needs detailed references to the text of the evidence or the judgment to support it’. It is clear that it has been established by a very long unbroken line of authority that bail pending appeal u/s 321(1) (a) of the Cr. Procedure Code should only be granted where there are overwhelmingly good prospects of success on appeal against conviction because of exceptional and unusual reasons….” (2) “In this case, the arguments need detailed references to the text of the evidence as well the judgment … and it cannot be said with any amount of certainty that the appeal has overwhelming chance of success.” (3) Application denied.