What applying for bail entails
IN the high profile bail application of Christopher Panayiotou, public discourse on whether the accused should be granted bail or not became fever pitched. Some critics openly stated in the media he should not be given bail, but “rather rot in hell”.
Others appeared to have a more humane approach. The dogma surrounding the divergent views brings to the fore two philosophies.
Those who believe that as human rights form the bedrock of our constitution and judicial system, to refuse an accused bail impacts adversely on his or her liberty. But it could never have been contemplated by the legislature nor the drafters of the constitution that those rights should be over-accentuated.
Others with the firmly held opinion that courts serve the needs of society believe that the deprivation of a person’s liberty matters not, for the refusal of bail serves the administration of justice. Those philosophies are often at odds in bail applications, causing much agony to judges and magistrates who ultimately decide the question of bail.
Bail has often been viewed as a contract between an accused and the state, with the state recognising the accused’s right to liberty and agreeing to his or her conditional release from custody. The condition includes the payment of a fixed sum of money or the furnishing of a guarantee (where the amount of bail is inordinately high) by the accused.
Where bail conditions serve as a precursor to bail, there is an implied undertaking by the accused to comply with the conditions and should he or she breach any of the conditions, the bail money will be forfeited and the accused detained. Perhaps, an encouragement to the contractual relationship is the recognition given by our law to the presumption of innocence of an accused until his or her guilt has been established in court.
The overpopulation of our prisons, and the threat it poses to the dignity, physical health and safety of inmates also militates against further detention. But, the overhaul of the South African bail laws under the Criminal Procedure Amendment Act 75 of 1995 saw a change in the so-called contractual approach.
The law recognises that with the commission of certain crimes, including murder, rape and robbery, the state has adopted a less liberty-oriented approach and is less likely to conclude those contracts.
Our courts have for decades described bail as a means aimed at “minimising the encroachment on an accused’s freedom” in circumstances where he has not yet been convicted. It has also been stated before that the basic purpose of bail, from society’s point of view, is to ensure the accused’s reappearance for his or her trial and allow him or her to maintain employment and family ties in the event he or she is acquitted or given a suspended sentence.
A hallmark of our criminal justice system has always been an accused’s common law right to liberty while he or she is presumed innocent. That right has also found favour with the drafters of our constitution, but that right is not limitless.
Our courts have on occasions stated that when determining bail, too much emphasis should not be placed upon the presumption of innocence. It is especially where the release of an accused is likely “to prejudice the ends of justice”, that the courts will not hesitate to decline bail.
The Criminal Procedure Act is specific that the courts, in the interests of justice, should not grant bail to an accused where there is a likelihood that he or she will:
Endanger public safety or any particular person or will commit a schedule 1 offence;
Evade his or her trial;
Attempt to influence or intimidate witnesses or to conceal or destroy evidence;
Undermine or jeopardise the objectives or the proper functioning of the criminal justice system, including the bail system;
The release of the accused will disturb the public order or undermine the public peace or security.
Where the state fails to prove any of those factors, the interests of justice will best be served to release the accused on bail. Whether bail is granted or not to an accused, after considering the interests of the state representing society, that is the conventional interests of society and balancing that against the right of freedom of the individual, the outcome needs to serve the best interest of justice.
It appears from reports that in declining bail in the Panayiotou case, the court relied heavily on, inter alia, the likelihood of the accused attempting to flee to Cyprus, tampering with evidence and interfering with witnesses.
The burden of proof in bail applications takes the form of the civil law standard of a balance of probabilities which is understood to be quite onerous. Generally the state bears the onus where an accused is charged with less serious crimes, that is the so-called schedule 1 and 7 offences.
When dealing with schedule 6 offences, which are the most serious, the accused is vested with the onus to adduce evidence which satisfies the court that exceptional circumstances exist which, in the interest of justice, permit his or her release. It is a value judgment that the court has to make.
The second involves schedule 5 offences. Here the accused is required to adduce evidence which satisfies the court that the interests of justice permit his release.
Our law does not prescribe what form the evidence should take. It appears nowadays that it has become an established practice that in opposed bail applications, the opposing parties present their evidence in the form of affidavits, which makes the decision-making process much trickier.
Viewed from a defence perspective, lawyers, save for disclosing the accused’s personal circumstances and some peripheral issues, generally, do not go into the merits of the case. The accused is also not subjected to cross-examination.
Although it may tactically be to the accused’s advantage, it may also be fraught with difficulty in that oral evidence and allowing the accused to be cross-examined may carry greater weight with the court. That may be relevant where there are “damning allegations” which need serious answering and where the accused needs to show “exceptional circumstances” exist.
Not placing exculpatory facts before the court would have a substantial bearing on the outcome of an application for bail.
The act provides a right of appeal to an accused who feels aggrieved at the refusal of bail by a lower court or the imposition of any bail condition, to the superior court having jurisdiction. No leave to appeal is required.
The appeal may be heard by a single judge of the local division of the high court. The judge hearing the appeal may confirm the refusal of bail, or set aside the decision of the lower court and grant bail in the amount and upon the conditions that the judge deems appropriate.
The judge shall not set aside the bail decision, unless the judge is satisfied that the decision was wrong. Factors that may influence the court may include the misdirection of the lower court on the facts or legal principles or overlooking important aspects in refusing bail.