Bailing on justice

Bail applications in high-profile criminal matters have increasingly become the subject of public scrutiny. Community outrage and public opinion in general, seem to influence decisions of the court when considering bail applications. In this article we briefly discuss some realities relating to bail applications, of which the public may be unaware.

Time is of the essence in criminal trials. However, there is an inevitable lapse of time between the arrest of the offender and the completion of the trial. The police investigation needs to be completed, the case must find a place on the congested court rolls and the accused must be granted a reasonable opportunity to prepare for his defence.

The dilemma posed by pre-trial incarceration is that an accused is being deprived of their liberty where they have not yet been convicted. Make no mistake; an acquittal is always on the cards. Roughly 10% of all accused in High Court and District Magistrates’ Court trials are acquitted, while about 25% of all Regional Court cases end in an acquittal. These are significant numbers, especially if regard is had to the fact that most of the criminal trials involving serious crimes are dealt with by the regional courts. Most of the sexual offences, including rape, are tried in the Regional Courts, as is the case with armed robbery, fraud, corruption and attempted murder cases. The quandary deepens when one considers that approximately 20% of all appeals are successful on the merits.

Time spent awaiting trial and in prison is often time well spent for accused who are convicted, as such time is often regarded as double time by sentencing courts. This effectively means that if an accused person has spent one year in prison awaiting trial, two years imprisonment is subtracted from his eventual sentence. Substantial time spent incarcerated awaiting trial will also be regarded as substantial and compelling circumstances with regard to so called minimum sentences.  A court will not impose a minimum sentence (these range from five years to life imprisonment) where it finds substantial and compelling circumstances to be present.

This is all good and well when the accused person is convicted of a serious crime, but what about those who are acquitted or who are eventually convicted of a trivial offence? Very few of them will be successful with malicious prosecution litigation, with the result that the majority of acquitted accused will get no compensation for time they spent in prison awaiting trial. The other side of the coin is of course, the risks involved in releasing accused persons. They may interfere with witnesses, destroy evidence, abscond or otherwise perpetrate further serious crimes.

The court will only release an accused on bail if the court “.... is satisfied that the interests of justice so permit”.

This means that a court is the sole adjudicator of whether an accused may be released on bail. The court is therefore not bound by bail, bargaining between the accused person and the prosecutor. The writer Van der Berg argues, that it’s “anomalous and even undesirable ...” that a court should have the power to interfere in respect of a proposed agreement where the state and the represented accused have reached consensus.

Both the police  and the prosecution  have the right to grant bail in certain circumstances before a first court appearance. This will only apply to instances where there is consensus about the granting of bail. An arrested person does not have the right to be brought to a lower court outside ordinary court hours  for a bail application. The only way will be to bring an application for an interdict de libero homine ex hibendo, as a High Court will only use its inherent jurisdiction to grant bail in exceptional circumstances. Application for an interdict is couched in the form of a petition.

In the petition, the court is requested to issue a rule nisi . The prosecutor may attempt to thwart the bringing of a bail application at the first appearance, by applying for a postponement for no longer than seven days at a time to procure material evidence or to approach the Director of Public Prosecutions for the issuing of a written confirmation to the effect that he or she intends to charge the accused with an offence referred to in Schedule 5 or 6 of the CPA.  The court has the discretion to grant such a postponement, but will in practice generally grant the postponement.

The written confirmation of the DPP issued in terms of section 60(11A) of the CPA, shall upon its mere production at bail proceedings be prima facie proof of the charge to be brought against the accused.

It was found, albeit obiter (as no written confirmation had been issued in that case) in S v Botha en Ander , that the formulation of the charge in the indictment and if need be, supported by the said written confirmation, is sufficient proof that the accused has the burden to prove the section 60(11)(a) requirement.

This judgment is rather surprising. It is submitted that the accused must have the opportunity to disprove that the section 60(11)(a) onus is applicable to them. This should be adjudicated in a trial-within-a-trial at the outset of the bail hearing. It should also be possible to subpoena the DPP, or for that matter the DDPP (a DDPP may do whatever a DPP is empowered to do in terms of section 520(4) of the NPA Act 32 of 1998) and question him/her during the trial within a trial as to the propriety of the written notice.

Bail applications are more often than not settled on affidavits issued in the name of the accused and the investigating officer. An accused who is saddled with the section 60(11)(a) onus will hardly be able to satisfy the burden without testifying.

The prosecution made life easy for the applicant in the Reeva Steenkamp case by calling the investigating officer and thus allowing the defence to punch holes in the evidence of the investigating officer. An accused testifying at a bail application could be exposed to cross-examination on the merits of the case. That evidence could in turn be used against them in the trial proper. The reason for this is simple: Provided that the accused had been warned by the court that anything they say may be used against him/her at the trial, the record of the bail proceedings “.... shall form part of the record of the trial of the accused following upon such bail proceeding".

The accused’s decision to testify or not at the bail hearing is further complicated by the fact that he does not have a right of access to the information contained in the police docket at that stage . The results of the forensic investigations (ballistic reports, toxicology reports, DNA comparisons, blood spatter, handwriting comparisons and so forth) are in any event not yet available at the time of the bail application: those results may come to haunt the accused person who has put all his cards on the table during a bail application.

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