Subject 7.1 Flashcards
(19 cards)
Court Bail
How does sec 60 court bail operate?
Section 60 of the CPA read together with multiple
other sections:
S50(1):An accused who is in detention after arrest must be informed of his rights ASAP to institute bail proceedings. Accused must be brought before a lower court ASAP, but no later than 48 hours after the arrest.
S50(6)(b): Accused may be released at any stage preceding conviction, if the court is of the opinion that such release would be in the interests of justice, but
ONLY s59 and s59A bail may be granted after hours.
Court Bail
Under which circumstances may court bail applications be postponed?
Bail applications may be postponed for a maximum of 7 days at a time on the following grounds: **
- The court is of the opinion that it has insufficient
information/evidence at its disposal to reach a decision on the application; - The prosecutor informs the court that the matter has been/is going to be referred to a DPP for the issuing of a written confirmation referred to in s60(11A);
- It appears to the court that it is necessary to provide the state with a reasonable opportunity to:
A. Procure material evidence that may be lost if bail is granted; or
B. Perform the functions referred to in section 37
C. It appears to the court that it is necessary in the
interests of justice to do so.
Court Bail
Does the accused have a right to be released by a court on bail?
The accused has a right to be released on bail at any stage
preceding conviction – Bail must be granted if the court is
satisfied that the interests of justice so permit.
- If the interests of justice permit release on bail, a separate enquiry must be held to determine the ability of the accused to pay the bail.
Court Bail
What happens if the court hearing the bail application refers the matter to a different court for sentencing?
If a court refers an accused to another court for trial and
sentencing, the court referring the accused retains jurisdiction relating to the power, functions and duties of bail until the accused appears in the next court for the first time.
- The court must play an active role by raising the matter of bail if neither the accused, nor the prosecution raises the matter.
Court Bail
What are the powers of the court during a bail application?
The court is not bound to strict evidentiary rules during bail.
The court may:
* Postpone any such proceedings
* Sec 60(2) -For matters not in dispute between the accused and the prosecutor, the court may acquire in an informal manner the information that is needed for this decision or order regarding bail.
* Sec 60(2) For matters that are in dispute between the accused and the prosecutor, require of the prosecutor or the accused that evidence be adduced
Court Bail
What must the court do when the prosecutor does not oppose bail under sec 60(11)(a)+(b)?
Sec 60(2)-Where the prosecutor does not oppose bail in respect of matters referred to in section 60(11)(a) and (b), require of the prosecutor to place on record the reasons for not opposing the bail application.
Court Bail
What does sec 60(11)(a) provide for regarding the procedure for the release of the accused on bail?
**Sec 60(11)(a)- Where an accused is charged with a schedule 6 offence
= the DC shall order that the accused be detained in custody, unless the accused, provides evidence which satisfies the court that exceptional circumstances exist which in the interests of justice permit his or her release
=1. Accused/Legal representative must disclose all previous convictions, pending charges and whether the accused has been release on bail on the latter
2. This information DOES NOT form part of the record
3. The Prosecutor compares this information with the SAP 69
4. The Prosecutor provides the proof that the offence is a schedule 6 offence by written confirmation by DPP,affidavit,charge sheet
5. The accused leads oral/written evidence to discharge the onus
6. The Prosecutor may: lead oral/written evidence to oppose the bail application or give reasons for not opposing bail.
7. Factors in s60(4)-(9)are considered
9. The court may grant bail/give reasons for refusing bail
Court Bail
What happens if the court believes that it does not have sufficient evidence to make a decision regarding bail?
The court MUST order that more information or evidence be placed before it.
HOWEVER, the court must first exhaust the available
procedures afforded to the court by s60(2).
Court Bail
What are the sec 60(4) factors that determine whether a court granting bail is in the interests of justice?
These factors are not a closed listed and the court can make a decison that is external to these factors:
o A likelihood that the accused if released on bail will endanger the safety of the public or any particular person or will commit a schedule 1 offence
o A likelihood that the accused if released on bail will attempt to evade his trial
o A likelihood that the accused, will attempt to influence or intimidate witnesses or to conceal or destroy evidence
o The accused if released on bail will undermined or jeopardize the objective or the proper functioning of the criminal justice system including the bail system
o A likelihood that the release of the accused will disturb the public order or undermine the public peace or security
What does sec 60 (11)(b) provide for regarding the procedure for the relase of the accused on bail?
**Sec 60(11)(b)- Where an accused is charged with a schedule 5 offence
= the court with juris. shall order that the accused be detained in custody, unless the accused, provides evidence which satisfies the court that exceptional circumstances exist which in the interests of justice permit his release
=1. Accused/Legal representative must disclose all previous convictions, pending charges and whether the accused has been release on bail on the latter
2. This information DOES NOT form part of the record
3. The Prosecutor compares this information with the SAP 69
4. The Prosecutor provides the proof that the offence is a schedule 5 offence by written confirmation by DPP,affidavit charge sheet
5. The accused leads oral/written evidence to discharge the onus
6. The Prosecutor may: lead oral/written evidence to oppose the bail application or give reasons for not opposing bail
7. Factors in s60(4)-(9)are considered
9. The court may grant bail/give reasons for refusing bail
Court Bail
How are previous convictions dealt with in court bail applications?
an accused/ legal representatives must inform the court whether the accused has previously been convicted of any offence and whether there are any charges pending against him, and if so, whether he has been released on bail pending the charges.
>The prior convictions do not form part of the record.
Court Bail
What did the Dlamini case state regarding the admissibilty of evidence in court bail proceedings?
Dlamini-if the accused, in the exercise of an informed and free choice, gives evidence at the bail application, that evidence can be used in the subsequent trial against him without detracting from the right to silence.
The trial court should, guard against any evidence which might infringe upon the fairness of the trial.
Court Bail
Does the accused have access to the police docket for purposes of bail?
Sec60- the accused is not entitled to the docket for the purposes of bail.
-Any information helpful to the applicant in his bail
application, but which does not form part of the docket,
must be given to the defense.
=Dlamini case: held that withholding the docket
content was sometimes constitutionally acceptable.
Bail Conditions
How does a court add bail conditions?
A court can add a further condition to bail relating to:
1. the reporting in person, by the accused, at any specified time and place and to any specified person or authority;
2.any place to which the accused is forbidden to go;
3. the prohibition of,communication by the accused with the witness for the prosecution
4. the place at which any document may be served on him under the CPA;
5.the fact that the accused shall be placed under the supervision of a probation officer or a correctional official.
Bail conditions
Which principles apply to the validity of bail conditions?
- conditions may not be contra bonos mores;
- conditions may not be vague or ambiguous;
- conditions may not be ultra vires
- conditions must be practically feasible.
Amendments to bail conditions
What does sec 63 provide regarding amending bail conditions?
(1) Any court before which a charge is pending in respect of which bail has been granted may, upon the application of the prosecutor/accused,
>increase/ reduce the amount of bail determined under section 59/ 60
>or amend/supplement any condition imposed under section 60 or 62, whether imposed by that court or any other court
=where the application is made by the prosecutor+ the accused is not present when the application is made, issue a warrant for the arrest of the accused+ when the accused is present in court, determine the application
Amendments to bail conditions
Can an accused appeal bail conditions?
Accused may appeal against the court’s decision to
amend or supplement conditions of his/her bail
> NO leave to appeal is necessary.
>The accused is, not bound to the time limits which apply to appeals.
>Accused must state his grounds for appeal
>Where the magistrate erred, the appeal court will make
an order as the magistrate should have made.
Can bail proceedings be recorded?
Sec 64-the proceedings with regard to bail and the conditions on bail, are to be recorded in full.
-The record of the bail proceedings forms part of the record of
the main trial and serves as prima facie proof of proceedings.
Can the state appeal the courts decison to grant the accused’s release on bail?
- State can appeal courts decison to release accused on bail+imposition of any bail condition
-Leave to appeal is granted where the court is satisfied that the State has a reasonable prospect of success on appeal.
-The SCA may dismiss an appeal on the preliminary ground that there will be no practical benefit to the appellant should the appeal succeed
