Tuesday, 30 April 2013

Law Report - Loophole in the Criminal Appeal Rules?

Brangman v Raynor [2013] SC (Bda) 23 App

In his appeal against sentence, Brangman received a small reduction in his sentence to bring it into line with other sentences for sex offences handed down by the Magistrates' Court.

An interesting issue arose, however, as to whether appellants were able to exploit a provision in the law to get an automatic extension of bail when they appeal.

Kawaley CJ said that sections 11 & 12 of the Criminal Appeal Act appear to allow that if an appeal against conviction is filed before sentencing takes place, the proceedings are automatically stayed and so if the appellant is already on bail he cannot be remanded until the appeal is determined [41].

That appeared to be what had happened in the present case, where the appellant had managed to cleverly get his appeal in between the conviction being read out and the sentencing, presumably by serving it personally on the Senior Magistrate. Kawaley CJ said he would welcome the views of the Court of Appeal on this issue.

Comment - It's also noted that it requires the lawyers to not only get the appeal form drafted in time but to find and serve the Senior Magistrate. If the Senior Magistrate is sitting in Court, it would presumably be contempt of court to approach the bench to serve him without his permission. That might be a practical way for the Senior Magistrate to postpone an appeal until bail and other important issues have been dealt with.

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