Repeat applications in Criminal Procedure

Source: Selasi Kuwornu, Esq.

Repeat applications are recognized and permitted in criminal procedure and are more common with bail applications. What is a repeat application and when can one file same? Adjei, JA eloquently set out the basis for repeat applications in the Court of Appeal case of Paul Larbie & 3 Others v The Republic [2020] Crim.LR 532 (click here for full case).

What it is

A repeat application is an application filed in an appellate court after the same application has been refused by a court below unless a statute provides otherwise. Thus, an applicant whose application has been refused by a lower court can either repeat the application at the court above or appeal against the ruling refusing his application. For instance, a bail application filed at a trial Circuit Court, when refused, can be repeated at the High Court. (See rule 20(2) of C.I. 16 and rules 9(8) and 28 of C.I. 19 for examples of repeat applications at the Supreme Court and Court of Appeal).

When to file a repeat application

A repeat application is always grounded on the refusal of an application by a court below. Thus, merely reapplying at the same court with jurisdiction to determine the application is not a repeat application in the strict sense of the expression; it is an applicant exercising his right to refile applications and may even amount to forum shopping depending on the situation. In the latter scenario of reapplying before the same court, the applicant must demonstrate some change in circumstances warranting the refiling of the application. For instance, in a trial at the High Court, an accused person can file an application for bail; when it is refused, the accused person can refile the application for bail at a later stage in the trial. He may keep applying for bail as long as the court gives him the liberty to reapply. An example of a change in circumstance in a reapplication for bail pending trial is undue delay at the instance of the Prosecution.

What happens when a repeat application is dismissed

Where a repeat application is dismissed by a court, an aggrieved party may either appeal against it or go back to the court below to exercise his right to reapply. For instance, when a repeat bail application from the Circuit Court is refused by the High Court, the applicant can either appeal to the Court of Appeal against the refusal or go back to the Circuit Court and reapply for bail. When the Circuit Court refuses this second application, the applicant can again repeat the application at the High Court or he may appeal to the High Court against the second refusal by the Circuit Court.

What is the legal effect of filing a repeat application without an earlier application at the court below

The application is void as it is built on nothing. The explanation here is that in a criminal matter, an accused person can make several applications before the substantive court but where the application is filed as a repeated one, the appellate Court's jurisdiction is taken away immediately that right is exhausted. For instance, in the Paul Larbie case above referenced, the appellants applied for bail at the District Court which was refused. They repeated the application at the High Court which was also refused. The appellants then filed another repeat application at the High Court instead of either going back to the District Court or appealing against the High Court's refusal. The second High Court refused the application and they appealed against this refusal to the Court of Appeal. The Court of Appeal held that the second refusal by the High Court was not initiated after a refusal by the District Court and was therefore filed contrary to law. The appeal to the Court of Appeal which was filed based on the tainted application was held to be void.

The peculiar case of bail applications for indictable offences

By section 181 of Act 30, a person charged with an indictable offence must first be arraigned before the District Court for committal proceedings. In the case of Martin Kpebu v The Republic [2020] Crim.LR 97, it was held that the District Court does not have jurisdiction to grant bail in cases it does not have jurisdiction to try. Thus, for all indictable offences before the District Court for preliminary proceedings, the District Court cannot determine an application for bail. By virtue of sections 15(1)(a) and 48 of the Courts Act, 1993 (Act 459) as amended as well as section 2(2) of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30), the High Court has jurisdiction to try indictable offences and is therefore the appropriate court with jurisdiction to determine bail applications for such offences.

From the foregoing then, the position is that, when an accused person applies for bail at the High Court and same is refused by the said court with liberty to reapply, any subsequent application is not a repeat bail application in the strict sense as set out above because the substantive court for the trial is the High Court and the subsequent bail applications are not grounded on a refusal by a court below. The explanation in the illustration in the third paragraph above will apply. For, just as applies to reapplications made within a trial, the applicant must demonstrate some change of circumstances warranting the refiling of the application.