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Learning unit 6 - Coggle Diagram
Learning unit 6
- Bail and some fundamental principles of criminal justice, the release of children on bail, procedure on application for bail before first appearance, risk factors which a court must consider in determining a bail application and release other than on bail.
Bail and some fundamental principles of criminal justice
- Bail application and bail appeals are to be treated or heard as matters of urgency.
- Bail is non-penal in character.
- Neither the amount determined for bail and refusing bail will be influenced by punitive notions. Eg. to punish the alleged offender or deter other possible offenders.
- S 60(5)(f) states that the court must consider the prevalence of the offence.
- The fact that bail is non-penal does not mean that the accuseds prior conduct pending the trial is ignored.
- It is undesirable that the accused should be deprived of pre-trial liberty if the sentence that is likely to be imposed will be in the form of a fine or one other than imprisonment.
- Each case is considered on its merits.
- The prosecutor makes an independent assessment of the case and should not blindly follow the polices recommendations that bail should be refused.
- Court should not act as a mere rubber stamp in confirming the viewpoint and prosecution.
- Refuse on bail is not a substitute for the accuseds right to be brought to trial within a reasonable period.
- Delays caused by prosecution decisions are in absence of mala fides good reasons for conclusion that bail must be granted.
- Issued relating to release and refusal of bail should not be used as an inducement to obtain a statement from an accused.
- Court must inform unrepresented accused of their right to apply for bail and nature of procedure to be followed.
The release of children on bail
- Section 25(2) of the Child Justice Act states:
- An application for the release of a child must consider the following three stages:
a. If the interest of justice permits the release of the child on bail;
b. If so, separate inquiry must be held into the ability of the child and their parent or guardian or appropriate adult to pay the amount of money being considered or any other appropriate amount;
c. If after the inquiry, it is found that the child and their guardian are- i. Unable to pay, the presiding officer must set an appropriate amount of money for the release of the child on bail.
ii. Able to pay, presiding officer must set conditions for the childs release on bail and an amount appropriate in the circumstances.
Procedure on application for police bail before first appearance
- Section 59: bail may in limited circumstances be granted by the police (police bail).
- The purpose is not to oust a judicial decision but to ensure that pre-trial release on bail can in trivial offences be secured as soon as possible even before the first appearance in a lower court.
- If police bail cannot be granted ito section 59 or is refused, accused has a right to apply to a lower court for bail at their first compulsory appearance.
- Procedure:
- Accused who is in custody due to an offence other than an offence in part 2 and 3 of schedule 2 may be released on bail by any official of or above the rank of non-commissioned officer f they deposit at the station the sum of money determined by a police official.
-- Police official who has power to determine PB are statutorily required to consult with the investigating officer.
-- Must at the time of releasing the accused on bail, complete and hand to accused a recognizance on which recepit be given for the sum of money deposited as bail.
-- On what offence the bail is granted.
-- And the place, date and time of the trial of the accused are entered.
-- Police official must forward. a duplicate original of recognizance to clerk of the court.
-- Police must grant accused reasonable opportunity to communicate with their legal representative, famly or friends to obtain amount fixed as PB.
- PB limitations:
- Only takes place before the accuseds first appearance in the lower court.
- PB is not possible for offences referred to in part 2 and 3 of schedule 2 (serious common law crimes like treason, sedition, murder, rape, theft, etc).
- PB is not to be granted in essential infrastructure related offences.
Risk factors that must be considered in determining bail applications
- Pinero case:
1.1. The court does in principle address only one all-embracing issue: 1.1.1. Will the interest of justice to be prejudicial if the accused is granted bail?
1.1.1.1. If accused is refused bail in circumstances where they will stand their trial, the interests of justice is also prejudiced. 1.2. Four questions arise: 1.2.1. If released on bail, will the accused stand their trial
1.2.2. Will they interfere with State witnesses or police investigation?
1.2.3. Will they commit further crimes?
1.2.4. Will their release be prejudicial to the maintenance of law and order and the security of the State?1.3. The court should determine if any any objection to release on bail cannot be suitably be met by appropriate conditions pertaining to release on bail.
- When is the refusal of bail in the interests of justice?
2.1. Where the likelihood if released will endanger the safety of the public or particular person or commit a schedule 1 offence.
2.2. Where likelihood if released will attempt to evade their trial.
2.3.Where likelihood if released will undermine or jeopardise the objectives or the proper functioning f the CJS and bail system.
2.4. Where the likelihood that the release of the accused will disturb the public order or undermine public peace or security.
- Factors the court may consider: s60(5)
3.1. The degree of violence towards others implicit in the charge against the accused.
3.2. Any threat of violence which the accused may have made to any person.
3.3. Any resentment the accused is alleged to harbour against any person.
3.4. Any disposition to violence on the part of the accused evident from their conduct.
3.5. Any disposition of the accused to commit offences referred to in schedule 1 evident from their past conduct.
3.6. The prevalence of a particular type of offence.
3.7. Any evidence that the accused previously committed an offence referred to in schedule 1 while released on bail.
3.8. Other factors which, in opinion of the court, should be considered.
Release other than on bail
- Section 27 of the CJA:
1.1. Placement options for a child who has not been released before first appearance at preliminary inquiry.
1.2. If at any stage before a childs first appearance at preliminary inquiry child has not been released from detention in police custody and is charged in the case of a child who is: 10 and older but under 14 with any offence; 14 or older with an offence as per sch 1 or 2 the police official must consider the detention of the child in appropriate child youth care centre. If centre is available and there is a vacancy. If not available or vacancy in a police cell or lock-up; 14 years or older with an offence referred to in sch 3, police official must cause the child to be detained in a police cell or lock-up.
- Release on warning:
2.1. Section 72 - Accused may be released by the court or a police official and warned to appear before a specified time and date.
2.2. An accuseds release does not depend on the deposit of money or certain conditions.
2.3. This procedure folowed with lesser offence where there is no reason to expect that the accused will abscond or try to evade justice.
- Section 63: Release on warning or on bail account of prison conditions:
3.1. Prisons that are overcrowded.
3.2. Those awaiting trial have been granted bail but cannot afford to pay it.
3.3. They contribute to the problem caused by over-population of prisoners.
3.4. This poses a threat to the dignity, physical health and safety of its inmates. - Section 63A.
3.5. Section 63A(1): provides that if a head of prison is satisfied that the prison population of a particular prison is reaching such proportions that it constitutes a material and imminent threat to the human dignity, physical health or safety of an accused who meets all the criteria set by s63A(1)(a)-(c) then they may apply to a LC for either the release of such an accused on a warning in lieu of bail or the amendment of such an accused bail conditions as imposed by a LC.
3.6. Who can bring a section 63A(1) application: 3.6.1. An accused who is charged with an offence falling within the category of offences that a police official may grant bail ito s59 or in schedule 7.
3.6.2. Those who have been granted bail by LC in respect of that offence but is unable to pay the amount concerned.
3.6.3. Those who are also not in detention in respect of any other offence fallng outside the category of offences referred to in paragraph a.
- Summary trial and pre-trial examinations; preparatory examinations and preliminary enquiries
9.1. Summary trial:
9.1.1. Trial is a summary trial when it was not preceded by a preparatory examination.
9.1.2. DPP may designate any court that has jurisdiction as the forum for a summary trial. May or may not be the same court that the accused has appeared for the first time.
9.1.3. Deciding to hold trial no court is consulted.
9.1.4. Once court is designated, accused will be brought before the court and the trial will commence.
9.1.5. When the accused is in custody, they first be brought before the LC even thugh that court may not have jurisdiction to try them (when this occurs S75(1)(b) read with section 75(2) applies).
9.1.6. At prosecutors request, accused is then referred for summary trial to court with jurisdiction.
9.2. Preliminary inquiry:
9.2.1. It is an informal pre-trial procedure that is inquisatorial in nature.
9.2.2. May be held in a court or any other suitable place - section 43(1).
9.2.3. Purpose: to consider if the matter involving the child may be diverted away from the formal criminal justice process.
9.2.3.1. If the matter is diverted no summary trial will take place.
9.2.3.2. If the matter is not diverted, the it will be referred to a child justice court.
9.2.4. Child justice court will try the case in accordance with the CPA.
9.3. Preparatory examination:
9.3.1. S1: Preparatory examination is a criminal proceeding.
9.3.2. It is not a trial as the final decision in the proceedings rests with the DDP and not with the court.
9.3.3. Its an examination held before a magistrate to determine if the evidence presented before them justifies a trial before a superior court or any other court that has jurisdiction.
9.3.4. Accused is not on trial.
9.3.5. Accused is not requested to plea at the commencement of the proceedings as at trial but only at the conclusion after all the evidence to the charge or charges have been led. S130.
- Bail granted by the prosecution
- Section 59: A DPP or prosecutor authorised in writing by DPP may in respect of offences referred to in schedule 7 and in consultation with the police investigating officer authorise the release of an accused on bail (prosecutorial bail).
- Section 59A(3) provides effect of prosecutorial bail that person shall be released from custody:
-2.1.Upon payment of or furnishing of guarantee to pay the sum of money determined for their bail at their place of detention.
-2.2. Subject to reasonable conditions imposed by the DPP or Prosecutor concerned.
-2.3. Payment of sum of money or furnishing of a guarantee to pay.
2.4. Prosecutorial bail is not granted in essential infrastructure related offences.
2.5. Accused released on pro bail appear n first court day at the court and at the time determined by prosecution.
2.6. Release of accused shall endure until they appear before the court on the first day.
2.7. Pro bail proceedings must be recorded in full including the conditions imposed.
2.8. Pro bail shall be regarded as bail granted by the court but only lasts until accuseds first appearance on the first court day. At this first court appearance judicial intervention or approval is required.
- S59A and provisions of Child Justice Ac:
Prosecutor may prior to childs first appearance at preliminary inquiry, authorise the release ito s25 of CJA. Such a release can only be authorised of offences in schedule 1 and 2. a. CJA - Extend the bail on the same conditions/amend/add conditions as contemplated in S62.
b. Shall, if court does not deem it appropriate to exercise the powers contemplated in (a) consider the bail application and in such considerations the court has jurisdiction relating to the powers, functions and duties in respect of bail proceedings ito S60. Section 60(1)(a) - an accused who is in custody due to an offence shall, subject to provision of S50
- When a court may postpone bail
- Court is of the opinion that it has insufficient information or evidence at its disposal to reach a decision on bail application.
- Prosecutor informs curt that the matter has been or is going to be referred to DPP for issuing of written confirmation.
- Appears to the court that its necessary to provide State with a reasonable opportunity to
a- procure material evidence that may be lost if bail is granted.
b-perform the functions referred to in S37.
- Its in the interest of justice to do so.
- Who may appeal the decision of the court regarding bail?
4.1. Appeal by accused to HC against LC decision:
4.1.1. The appeal may be heard by a single judge.
4.1.2. A local division of HC shall have jurisdiction if the area of jurisdiction of LC is within the same area of that local division.
4.1.3. Accused must serve a copy of notice to appeal on the DPP and on magistrate or registered magistrate.
4.1.4. The notice must set out the specific grounds for why the appeal is lodged.
4.1.5. The magistrate or registered magistrate must furnish the reasons for their decision to the court or judge.
4.2. Appeal by DPP against decision of court to release A on bail:
4.2.1. A DPP may appeal to HC against the decision of LC.
4.2.2. DPP may also appeal.
4.2.3. The court hearing the appeal may order that the state should pay the accused concerned the whole or part of the costs they have incurred in opposing the appeal.
4.2.4. Successful appeal against release on bail, the court which heard the appeal shall issue a warrant for the arrest of accused.
- Payment by accused:
1.1. Where it may be paid: 1.1.1. Deposit must be made with the clerk of any magistrates court.
1.1.2. With the registrar of HC as the case may be.
1.1.3. With a member of the correctional services at the prison where accused is in custody
1.1.4. With any police official at the place where the accused was in custody.
- Payment by third person:
2.1. A third person may pay bail money for the benefit of the accused.
2.2. No person shall be allowed to deposit bail money for the benefit of the accused if the official concerned has reason to believe: 2.2.1. that such a person before or after depositing money has been indemnified or will be indemnified by anyone in any mater against the loss of bail money.
2.2.2. that they will receive or have received financial benefit in connection with deposits of bail money.
- Legal representative:
3.1. Should not pay bail for their clients.
- Issues a court may include in a bail condition:
6.1. Court must establish if any possible objection to release on bail can be met by setting one or more special conditions which can, with the essential conditions govern an accuseds release on bail.
6.2. S62 - any court before which a charge is pending where bail has been granted may at any stage on application by prosecutor add any further condition of bail:
6.2.1. Regard to reporting in person by accused at any specific time and place to any specific person or authority;
6.2.2. With regards to any place that the accused is forbidden to go.
6.2.3. With regards to the prohibition of or control over communication by accused with witnesses for prosecution.
6.2.4. Regard to place at which doc may be served on him or her.
6.2.5. Which in the opinion of the court will ensure that the proper administration of justice is not placed in jeopardy by release of the accused.
6.3. Practical examples of discretionary special bail conditions are:
6.3.1. Accused must report to a specified police station once or twice a day.
6.3.2. Must hand in their passport over to police.
6.3.3. May not leave a specified magisterial district w/o informing police charged with investigation of case.
6.4. In Mathonsi: one bail condition prohibited appellants from contacting or interfering with or intimidating any witness by means of email, WhatsApp, SMS, Twitter, Facebook or any form of communication.
6.5. In Jacobs: siad that appropriate conditions can be effective for the administration of justice as payment of money.
6.6. S62(f): court may add conditions that accused be placed under the supervision of a probation officer or correctional officer.
6.7. Bail conditions in S62 must be practically feasible:
6.7.1. Should be neither vague nor ambitious.
6.7.2. No ultra vires.
6.7.3. Not be contra bono mores (condition prohibitng a husband form communicating to his wife who happens to be complainant is not contra bono mores).
- Role of the court and the rules of evidence in respect of bail applications
7.1. Court should not act as a passive umpire.
7.2. If question of possible release on bail of accused is not raised by accused or prosecutor, the court should mero motu ask accused if they wish bail to be considered by the court.
7.3. The court may acquire in an informal manner the information needed for a decision or order regarding bail (if the matter is not in dispute).
7.4. The court may require the prosecutor or accused to adduce evidence (if matters are in dispute).
7.5. Where prosecutor does not oppose bail, the court must require prosecutor to place on record the reasons for not opposing bail applications.
7.6. In bail proceedings, courts should not play a passive role in the presentation of evidence.
7.7. S 60(3) provides that if the court is of the opinion that it does not have reliable or sufficient information or evidence at its disposal or lacks certain important information to reach decision on bail applications, presiding officer shall order that such information or evidence be placed before the court.
7.8. Fact that court is required to play inquisatorial role in bail application does not entitle it to resort to unfair and excessively robust questioning of witnesses, including bail applicant who elected to testify orally in support of their application.
- The meaning of the term exceptional circumstances
8.1. In Jonas, the court gave the following example of exceptional circumstances:
8.1.1. A bail applicants terminal illness.
8.1.2. Urgent medical operation or cast-iron alibi.
8.1.3. Accused has adduced acceptable evidence that the prosecutions case against them is non-existent or subject to serious doubt.
8.1.4. Evidence of an investigating police officer that applicant is not a flight risk.
8.1.5. Not likely to interfere with state witnesses and the investigation.
8.1.6. Proof of the accused that they would probably be acquitted.
8.1.7. The failure of the that to adduce evidence contradicting the accuseds denial of guilt.
8.1.8. The length period of incarceration.
8.1.9. Good conduct of accused during a period of release after a period of detention.
8.1.10. The states case is subjected to doubt.
8.1.11. The low risk pertaining to flight.
8.1.12. The absence of a likelihood of interference with State witnesses.
8.1.13. The low risk of reoffending.
8.1.14. The fact that on the account to a high number of charges, the accused, if not released on bail would remain in custody for years before their case is finalised.
8.2. The following factors are not exceptional circumstances:
8.2.1. Postponement of trial for five months.
8.2.2. Prior release on bail of co-accused before S60(11)(a) came into operation.
8.2.3. Value of stolen good appearing for less than value initially alleged by prosecution.
8.2.4. Fact that bail applicants bus was suffering due to their detention.
8.3. The standard of proof that an accused must satisfy is proof on a balance of probabilites.
- When preparatory examination is held
10.1. Section 123: If DPP says its not necessary for more effective administration of justice, he may decide to order the holding of a preparatory examination before A is tried in a superior or other court.
10.2. Will take the decision at the following stage:
10.2.1. Following section 119 procedure which accused pleaded guilty if the DPP is in doubt regarding guilt or if he feels facts dont fully appear from the record.
10.2.2. At any stage before conviction during a trial in a magistrates court or registered court.
10.3. DPP will institute PE if he is of the opinion that:
10.3.1. The crime is too serious to be tried by an LC he may refer case to HC on an even more serious charge.
10.3.2. There is a factual deficiency in the States case after the closure of the States case at the end of the trial and that it might be remedied by converting the trial into a PE.