Sanja Elliot v R

• Jurisdiction: Jamaica
• Judge: Simmons JA
• Judgment Date: 09 November 2021
• Neutral Citation: JM 2021 CA 136
• Docket Number: BAIL APPLICATION NO COA2021B00014
• Court: Court of Appeal (Jamaica)

[2021] JMCA App 28

IN THE COURT OF APPEAL

BAIL APPLICATION NO COA2021B00014

Sanja Elliot

and

R

Norman Godfrey instructed by Brown, Godfrey and Morgan for the applicant

Ms Channa Ormsby for the Crown

IN CHAMBERS

Simmons JA

1 This is an application by Mr Sanja Elliott for bail pending appeal. Mr Elliott was convicted on 15 May 2020 in the Manchester Parish Court after a trial by Her Honour Mrs Ann Marie Lawrence Grainger. He was charged on an indictment containing 32 counts with seven other defendants for the following offences:

After a submission of no case, 26 of those charges remained, of which 18 concerned the applicant. He was convicted on 16 of those counts. On 27 July 2020 he was sentenced as indicated below:

• (i) Conspiracy to defraud;

• (ii) Engaging in a transaction involving criminal property;

• (iii) Possession of criminal property;

• (iv) Facilitating the retention of criminal property;

• (v) Causing money to be paid out by forged document;

• (vi) Obtaining money by false pretenses; and

• (vii) An act of corruption.

Count	Offence	Sentence
1	Conspiracy to defraud	18 months imprisonment
2	Engaging in a transaction involving criminal property	30 months imprisonment
3	Possession of criminal property	30 months imprisonment
4	Possession of criminal property	30 months imprisonment
5	Possession of criminal property	30 months imprisonment
6	Possession of criminal property	30 months imprisonment
7	Engaging in a transaction involving criminal property	3 years' imprisonment
8	Engaging in a transaction involving criminal property	3 years' imprisonment
9	Engaging in a transaction involving criminal property	3 years' imprisonment
10	Possession of criminal property	30 months imprisonment
11	Possession of criminal property	30 months imprisonment
13	Engaging in a transaction involving criminal property	3 years' imprisonment
14	Engaging in a transaction involving criminal property	3 years' imprisonment
25	Obtaining money by false pretenses	2 years' imprisonment
26	Obtaining money by false pretenses	2 years' imprisonment
30	An act of corruption	18 months imprisonment

2 The sentences for counts 2–11, 13 and 14 were to run concurrently and the sentences for counts 1, 25, 26 and 30 were to run consecutively with those counts. The totality of the sentence was therefore five years' imprisonment at hard labour.

Background

3 The applicant has filed an appeal against his conviction and sentence and has now applied for the grant of bail pending the determination of his appeal. It was agreed that at the time of sentence, Mr Elliott gave verbal notice of appeal.

4 The grounds of appeal on which the applicant intends to rely are as follows:

• “1. The verdict is unreasonable and is against the weight of the evidence.

• 2. The Learned Trial Judge erred in law when she rejected the Appellant's No Case Submission and thereby deprived him of a fair trial.

• 3. The Learned Trial Judge erred in law when she held that the interference with Prosecution witnesses by the Police and in particular with one witness in the presence of Prosecutors was not persistent so as to rise to the level of Abuse of the Process amounting to prosecutorial Misconduct and thereby deprived the Appellant of a fair trial.”.”

It was indicated that the applicant may seek permission to argue additional or supplemental grounds when the reasons for the decision become available.

5 The notice of application was supported by the applicant's affidavit sworn to on 12 July 2021, the supplemental affidavit of the applicant sworn to on 12 October 2021 and the affidavit of Danielle Archer sworn to on 11 October 2021. The two latter affidavits were concerned with the issue of whether the applicant had given verbal notice of appeal at the time of sentence. In the applicant's first affidavit, it was deposed that he had been granted bail on 30 June 2016 when the matter first came before the court and remained on bail throughout his trial until 27 July 2021 when he was sentenced. He stated that he had honoured all of the conditions of bail. The applicant also stated that he had never been charged with a criminal offence before these for which he has been convicted and that his appeal has a real prospect of success. He indicated that the trial lasted several months and as such, the notes of evidence are voluminous and there is no indication that they would be submitted to the court in the near future. This he said, will delay the hearing of his appeal.

6 The grounds on which the application is based are that: there is merit in the grounds of appeal; there is a strong likelihood that the applicant will surrender to custody at the hearing of the appeal; the applicant's record with regard to his fulfilment of his obligations whilst on bail before sentence; and his favourable antecedent report and Social Enquiry Report.

Submissions for Mr Elliott

7 Mr Godfrey, on behalf of the applicant, stated that the applicant was relying on ground three which has a great prospect of success and the issue of delay.

8 In this regard, counsel relied on Dereek Hamilton v R [2013] JMCA App 21 (‘ Dereek Hamilton’), in which Brooks JA (as he then was) found that the delay in the production of the transcript was an exceptional circumstance in the consideration of whether bail pending appeal should be granted. Mr Godfrey indicated that the applicant having been sentenced to five years' imprisonment in total, would be eligible for release after 40 months which was two thirds of that sentence. Counsel reminded the court that the applicant has already served 15 months of his sentence and the notes of evidence have not yet been produced. It was submitted that based on the authorities, this is a good ground for the favourable consideration of bail pending appeal. Reference was made to Omar Anderson v R [2021] JMCA App 11 in relation to this point. In that case Edwards JA stated:

“[15] I have no difficulty in holding that exceptional circumstances exist in this case, such that if the court had the jurisdiction, it might think it fit that bail should be granted in the interests of justice.

Those circumstances are:

• (i) the delay in the hearing of the appeal brought on by the failure to provide the transcript; and

• (ii) the fact that the applicant may have already served his sentences of five and seven years.”

9 Counsel also relied on the following passage in Seian Forbes and Tamoy Meggie v R [2012] JMCA App 20 (‘ Seian Forbes’):

“[36] At the end of the day even if the threshold is not that exceptional, or very exceptional or even unusual circumstances must exist before the court can grant bail to a convicted person, in my view, there must be special circumstances which warrant a convicted person being admitted to bail. It is a discretion which the court exercises and which must of course be exercised judicially and responsibly, and must be dependent on the facts of each and every case.”

10 Reliance was also placed on The State v Lynette Scantlebury (1976) 27 WIR 103 (‘ Scantlebury’) where Haynes C, at page 105, stated:

“From the narrative of the facts alleged, the petitioner is asking the court to admit her to bail on the grounds of: (a) her own ill-health; (b) her husband's ill-health; (c) the great hardship imposed on her family, including her daughters Althea (13) and Gerilyn (11); and (d) the real likelihood that her appeal will come on for hearing after she shall have served her sentence. I would say without any hesitancy whatever that, at least in the circumstances of this case, grounds (a), (b) and (c), separately or cumulatively, will not warrant her admission to bail. It is one of the unavoidable harsh and painful consequences of conviction and imprisonment that the immediate and close family of the convicted person will suffer hardships. It is impermissible generally to treat this factor as a ground for the grant of bail. As regards hers or her husband's state of health, this court makes two observations: One is, that it is conceivable without difficulty that an appellant's state of health might be, in certain circumstances, a ground on which to admit her to bail. But, as at present advised, I am of the opinion that the circumstances must be very special indeed to make the state of health of the appellant's husband by itself, if at all, such a ground or an auxiliary one. In this case, it certainly is not. The other observation is, that the allegations as regards their state of health is unsupported by any medical evidence whatever. I will concede that it is not at all wholly inconceivable that in certain particular circumstances grounds (a), (b) and (c) cumulatively might justify a grant of bail. But they certainly do not do so in this case. Accordingly, in any event, I would not act on these grounds. I think, however, that the fourth ground deserves careful consideration.”

11 The court was also invited to consider the fact that the applicant had been on bail up to the date of his sentence. Specific reference was made to para [6] of Dereek Hamilton where Brooks JA stated:

“[6] In addition to whether exceptional circumstances exist, the tribunal considering the grant of bail pending appeal must also consider the other issues which any application for bail raises, including, whether the applicant will honour the conditions of his bail and whether the grant of bail would jeopardise the proper administration of justice.”

12 Mr Godfrey submitted that, although a conviction removes the presumption of innocence, consideration should be given to section 4(2) of the Bail Act which sets out the factors that should be taken into account by the court when considering an application for bail.

Submissions on behalf of the Crown

11 Ms Ormsby, on behalf of the Crown, submitted that...