TLI4801 Assignment 2.

TLI4801 Assignment 2. TLI4801 - Techniques In Trial And Litigation. Critically discuss whether prosecutorial bail may be applied for the release of the accused in this instance. Your answer must also include the most important constitutional provisions which are applicable to pre-trial release. Introduction Every accused person is presumed innocent until proven otherwise. The process of proving guilt takes time therefore when an offender is arrested; justice requires he/she be released on bail at the earliest possible time. In some jurisdictions, the maximum time of detention before bail is 24 hours and in South Africa it is 48 hours. In certain circumstances it may even take much longer for an accused to be released on bail and some other times he may never be released on bail at all. Bail is designed “to ensure a defendant's appearance in court and to protect the community from dangerous defendants,… maintaining the integrity of the judicial process by preventing interference with victims or witnesses”.1 The question is: what offences are competent for prosecutorial bail when an accused is arrested and he calls his attorney to bail him? In this segment of the assignment, we would answer above question by examining the relevant provisions of the criminal procedure Act, (CPA) and the Constitution of the Republic of South Africa, 1996 (the Constitution) to know whether prosecutorial bail can be applied in the release of the accused in the prevailing circumstance. 1. The prevailing circumstance (fact of the case) is that Y is arrested on a charge of murder, in that he killed the deceased in a fight over a woman. He is arrested and taken into custody and he wants his attorney to bail him. May prosecutorial bail be applicable for his release? Prosecutorial bail or ‘after the hours bail’ is bail which a prosecutor authorised by an attorney-general is empowered to grant following a request by a defense attorney. They are provided in section 59A of CPA “(1) An attorney-general, or a prosecutor authorised thereto in writing by the attorney-general concerned, may, in respect of the offences referred to in Schedule 7 and in consultation with the police official charged with the investigation, authorise the release of an accused on bail.”2 Offences which fall within the authority of the prosecutor to grant bail are found in schedule 7 of the CPA and they include: public violence, culpable homicide, assault, involving the infliction of grievous bodily harm, arson, malicious injury to property etcetera.3 However, from the facts of this case the prosecutor charged Y with the offence of murder which is a Schedule 5 and 6 offences. Schedule 5 and 6 offences include murder, treason, premeditated murder, rape, robbery etcetera. Schedule 5 and 6 offences do not fall within the purview of prosecutorial bail. However, it is submitted that while schedule 5 and 6 offences are beyond the ambit of cases prosecutorial bail can be applied, the determination of what exact offence has been committed cannot easily be concluded by the state prosecutors alone within the short time the offence was reported or within the time the arrest was made. It is the duty of the defense attorney to examine the case critically with his client to know actually what specific arguments to present as the basis for their application for bail. It becomes therefore difficult for anyone to conclude that prosecutorial bail is not applicable in this case. It is this difficulty that results in most arrest and bail cases of this nature ending up in a lower court for bail hearing. Below, I would briefly examine the CPA and the Constitution to illustrate how these issues are resolved in bail hearing. 2. Section 59A of CPA 3. Schedule 7 offences CPA When an accused is arrested his chapter 2 Constitutional rights are immediately applicable irrespective of the schedule of offence. The primary concern of the justice system is mainly to avoid prejudging the arrested offender and his attorney’s duty is to ensure the accused enjoys his fundamental rights as enshrined in the constitution. Thus section 12(1) of the Constitution provides: “Everyone has the right to freedom and security of the person, which includes the right - (a) not to be deprived of freedom arbitrarily or without just cause; (b) not to be detained without trial.”4 It is the desire of the Constitution that no one should be detained without trial. Furthermore, section 35(1)(d)-(f) insists that the accused is : (d) to be brought before a court as soon as reasonably possible, but not later than – (i) 48 hours after the arrest; or (ii) the end of the first court day after the expiry of the 48 hours, if the 48 hours expire outside ordinary court hours or on a day which is not an ordinary court day; (e) at the first court appearance after being arrested, to be charged or to be informed of the reason for the detention to continue, or to be released; and (f) to be released from detention if the interests of justice permit, subject to reasonable conditions.5 Subsection (2)(d) of section 35 provides that the accused can challenge his detention in court and if proved unlawful to demand for his release.6 Irrespective of whether the offence falls within 5, 6 or 7 categories, it is onus on the defense attorney to furnish the court with the reasons why the accused should be released on bail. A cursory look at these legislative provisions above reveal that it is not just the enormity of the offence or the guilt of the offender that determines why an accused should be released on bail. It is because at that stage, it is assumed the accused is innocent, denying him his freedom without strong reasons could amount to infringement of his basic rights. Therefore one can conclude that given the charge leveled against Y, prosecutorial bail may not be applicable, his attorney may have to apply to a court for a bail hearing where arguments would be heard at the earliest possible time on the reasons why Y cannot be detained any further. 4. The Constitution of the Republic of South Africa, 19986 Section 12(1) 5. The Constitution sec. 35(1)(d)-(f) 6. The Constitution sec. 35(2)(d) (b) In terms of the Criminal Procedure Act 51 of 1977, the interests of justice do not permit the release from detention of an accused where certain grounds are established. Mention the grounds which a court must take into account before releasing an accused on bail. As observed above in segment one of the assignment, the guilt of the accused is not primarily in consideration when an accused is brought to court for a bail hearing. “A court is not supposed to withhold bail merely in order to punish the accused or to demonstrate disapproval of alleged crime committed by the bail applicant.”7 Section 35(1)(f) of The Constitution states that the accused is: “to be released from detention if the interests of justice permit, subject to reasonable conditions”8 . What then is the ‘interests of justice’ in this context? Interest of justice has to do with “what is fair and equitable to all parties”9 All parties here refer to: the state, the accused, the victim(s) and the community where the crime was committed. It is in contemplation of what the interests of justice are that the legislature and the courts have developed conditions that must be fulfilled by the accused for him to be considered for release or not to be released on bail. The grounds the court must take into consideration are listed in Section 60(4)(a-e) (4) The interests of justice do not permit the release from detention of an accused where one or more of the following grounds are established: (a) Where there is the likelihood that the accused, if he or she were released on bail, will endanger the safety of the public or any particular person or will commit a Schedule 1 offence; or (b) where there is the likelihood that the accused, if he or she were released on bail, will attempt to evade his or her trial; or (c) where there is the likelihood that the accused, if he or she were released on bail, will attempt to influence or intimidate witnesses or to conceal or destroy evidence; (d) where there is the likelihood that the accused, if he or she were released on bail, will undermine or jeopardise the objectives or the proper functioning of the criminal justice system, including the bail system; (e) where in exceptional circumstances there is the likelihood that the release of the accused will disturb the public order or undermine the public peace or security. 10 7. 8. The Constitution sec. 35(1)(d)-(f) 9. Maharaj, A. “Confident criminal litigation” (2010 lexisNexis) pg 6 10. Section 60(4)(a-e) CPA Sub sections 5 to 9 of section 60 elaborate above provisions. From the above, one can decipher that some of the grounds the court must consider is the likelihood the accused would not cause further harm to the community or evade trial or tamper with evidence. The onus is on the accused to adduce evidence through his attorney to prove that above circumstances would not occur if he is released on bail. Above provisions of section 60 of CPA have been confirmed by the Constitutional Court in S v Dladla. This case is the Locus classicus with respect to bail in South Africa. Here the Constitutional court considered several cases at the same time involving bail and related matters. S v Dladla11 involved the ‘taxi war’ in Soweto which led to violent encounters resulting in the murder of some taxi drivers. The offence therefore was a schedule 6 offence which was not within the purview of prosecutorial bail. They were also denied bail by the Protea Magistrate court in Soweto and an application for their bail hearing was brought to the Constitutional court alongside other similar cases for final adjudication. The constitutionality of certain provisions of the CPA was also in contention, but I would focus only on the findings on bail application. The court then confirmed the relevance of section 60(4)(a-e) of CPA and said: “In deciding whether the interests of justice permit the release on bail of an awaiting trial prisoner, the court is advised to look to the five broad considerations mentioned in paragraphs (a) to (e) of sub-s (4), as detailed in the succeeding subsections”12 Then in paragraphs 46 the court explained further: “The interests of justice in regard to the grant or refusal of bail therefore do focus primarily on securing the attendance of the accused at trial and on preventing the accused from interfering with the proper investigation and prosecution of the case”13 11. S v Dladla and other SA 1999 22 SA (CC) 12. S v Dladla para 45 13. S v Dladla para 46 It is clear from the constitutional provisions and CPA that the primary focus in bail trials is not just the guilt of the accused but to ensure fairness and equity is done between the accused and the society to ensure that justice is achieved at the end of the day. To achieve justice when an offence is committed, the accused may be removed from the community where he committed the crime, not as a punishment, but as a way of ensuring that investigation go on smoothly without any interference or intimidation, that the accused appear in court whenever he is needed, and that the integrity of the justice system is maintained. Where the accused can adduce enough evidence to show that he would be available in court whenever needed, that he would not pose any threat to the society or witnesses, the courts may grant him bail. 2. In general, lawyers are required to exercise a high level of honesty, scrupulousness, integrity and professionalism in the performance of their duties. X, Y’s attorney, approaches Z at a well-known supermarket and requests him to recuse himself from the ensuing trial hearing because Z is “biased” against her client. X bases her assertion on the fact that Z has already made several unfavourable rulings against X during the trial. Discuss: (a) The factors to be taken into account in the application for recusal. (10) (b) The appropriateness of X’s “application” for recusal.(5) Introduction The principle of recusal is to ensure a fair trial. To guarantee fair trial the judicial officer must therefore be sufficiently impartial to the point where no one can question his decisions on the grounds of self interest or partiality or accuse him of being biased in relation to the outcome of the case. Where a magistrate is suspected to be ‘tainted’ in anyway by having an interest in a case other than the interest of ensuring that justice is done expeditiously, then such a magistrate maybe asked to recuse himself from such case. This is based on the common law principle of ‘nemo iudex in sua causa’ meaning: no one may act as judge in his own case. The Constitution guarantees fair judgment in its provision to access to courts. “everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.” 14 Under the judicial authority of the courts section 165 (2) of the Constitution states: “The courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice.”15 The magistrate court act 34 of 1944 (2) (a) incorporates a solemn oath of office where they state inter alia “:…I will be faithful to the Republic of South Africa, will uphold and protect the Constitution and the human rights entrenched in it, and will administer justice to all persons alike without fear, favour or prejudice, in accordance with the Constitution and the law”16 These numerous provisions are put in place to ensure citizens receive fair, impartial judgment whenever they approach the court.