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Criminal Procedure - Chapter 10 - Coggle Diagram
Criminal Procedure - Chapter 10
Introduction to bail
Nature of bail - sui generis (unique) The question of fairness and justice always underlies bail.
Onus - S v Yanta - the onus is on the state (usually in criminal cases) but sometimes on the accused himself as was seen in the case of S v Dlamini
Tension - freedom (constitutional right to bail v community interest)
The purpose of bail is to strike a balance between the interests of society (the accused should stand his trial and there should be no interference with the administration of justice) and the liberty of the accused (who, pending the outcome of his trial, is presumed to be innocent)
What is it
Accused is released from custody upon guarantee to pay a sum of money determined for his bail. The accused must then appear at a specific time and place for his trial. If the accused fails to pay or comply with the conditions, bail is cancelled. Bail is always controversial for the public in general.
Types of bail
Prosecutor bail
S59A(3) of the CPA
Person shall be released from custody:
Reasonable discretionary conditions
Payment and reasonable conditions
Payment
Prosecutor bail remains until your first appearance at court
Prosecutor can amend the conditions
Bail application in court
S60 of the CPA - first appearance after arrest
S50(6)
Appeal by accused to HC
Accused - favorem libertas - favour of the accused
DPP
Lower court and the accused can appeal to a higher court if they are unsatisfied with the bail denial
Police bail
S59(1) of the CPA
Payment of cash as condition - usually small amounts for non-serious offences
Limited application
No other conditions
Before your first appearance in court
Does not apply to common law offences like murder and rape
Bail and jurisdiction of courts
Point of view 1
No inherent jurisdiction of courts regarding bail - only statutory function
Point of view 2
Inherent jurisdiction of High Court
Factors relating to bail applications
S60(4) of the CPA - grounds: refusal: interest of justice - evaluated in conjunction with the guidelines listed in the section
S v Dlamini and others - interests of justice
Risks, freedom and interests of administration of justice
Factors
S60(4)(a) and S60(5) - propensity to commit crime again
S60(4)(b) and S60(6) - Likelihood of the accused attempting to evade trial if released
S60(4)(c) and S60(7) - influence / intimidate witnesses; conceal / destroy evidence
S60(4)(d) and S60(8) - undermine or jeopardise proper functioning of the criminal justice system
S60(4)(e) and S60(8A) - disturb public order or undermine the public peace or security
S60(9) - interests of justice and personal freedom, possible prejudice to accused
Other factors
Amount of bail
Bail conditions
Discretionary special conditions - not police bail
Court may change bail conditions regardless of whether they were the court who set the bail
Conditions may not be immoral or unconstitutional
Court can add any further condition they wish
Essential conditions
Showing up to the criminal trial
Reporting to the police station
Cancellation of bail and forfeiture of bail money
Failure to observe conditions the bail may be cancelled
S67(1) CPA - failure to appear at trial
S67A - additional punishment
Provisional forfeiture of the bail money and arrest of accused - onus on accused to convince court provisional order must not becomes final - S67(2)(a)
Procedural and evidentiary matters
Pro-active role of the court
Free system of evidence
Unique - sui generis type of application
Previous convictions of the accused might be brought up at a bail hearing
Procedure normally informal: viva voce evidence under oath v ex parte statements v affidavits
Bail can be heard on a camera: exceptional
Warning regarding incriminating evidence - if the accused is not warned, it will be an irregularity and it will be inadmissible
Child usually not subject to a bail application
Alternatives to bail
Release on warning
Committal to place of safety - juveniles
Release on summons to appear in court
Supervised release