Moffat Mungazi
Legal Position
Trust Maanda
BEING released on bail is a constitutional right.
But that right can be denied in certain circumstances if the State can prove that it is not in the interest of justice for an accused to be granted bail.
In terms of Section 117 of the Criminal Procedure and Evidence Act, a person who is in custody in respect of an offence shall be entitled to be released on bail at any time after he or she has appeared in court on a charge, and before sentence is imposed, unless the court finds that it is in the interests of justice that he or she should be detained in custody.
The prosecutor bears the onus to prove that the accused is not a suitable candidate for bail.
The law has provided factors the court should weigh in arriving at a decision whether to grant or refuse bail.
The court will be of the view that there is a likelihood that the accused, if he or she were released on bail, he or she will endanger the safety of the public or any particular person or will commit an offence referred to in the First Schedule; or not stand his or her trial or appear to receive sentence; or attempt to influence or intimidate witnesses or to conceal or destroy evidence; or undermine or jeopardise the objectives or proper functioning of the criminal justice system, including the bail system.
The court will be of the same view where there is the likelihood that the release of the accused will disturb the public order or undermine public peace or security.
In considering whether the accused will endanger the safety of the public, the court considers if there is a degree of violence towards others implicit in the charge against the accused; whether the made any threat of violence to any person; or any other factor which in the opinion of the court should be taken into account.
In considering whether the accused will abscond and not stand trial the court will take into account factors such as the ties of the accused to the place of trial, the existence and location of assets held by the accused; the accused’s means of travel and his or her possession of or access to travel documents; the nature and gravity of the offence or the nature and gravity of the likely penalty therefor; the strength of the case for the prosecution and the corresponding incentive of the accused to flee, the efficacy of the amount or nature of the bail and enforceability of any bail conditions; any other factor which in the opinion of the court should be taken into account;
In considering whether the accused will interfere with witnesses, the court shall take into account the familiarity of the accused is familiar with any witness or the evidence; whether any witness has made a statement; whether the investigation is completed; the efficacy of any bail conditions; the ease with which any evidence can be concealed or destroyed.
In considering whether granting bail will undermine or jeopardise the objectives or proper functioning of the criminal justice system, including the bail system; the court considers whether the accused supplied false information at arrest or during bail proceedings or any previous failure by the accused to comply with bail conditions; among other factors.
The court also considers whether the nature of the offence and the circumstances under which the offence was committed is likely to induce a sense of shock or outrage in the community where the offence was committed; whether the release of the accused will undermine or jeopardise the public confidence in the criminal justice system; and other factors.
The court also decides the matter by weighing the interests of justice against the right of the accused to his or her personal freedom and in particular the prejudice he or she is likely to suffer if he or she were to be detained in custody.
The court will consider the period for which the accused has already been in custody since his or her arrest; the probable period of detention until the disposal or conclusion of the trial if the accused is not released on bail, the state of health of the accused; any other factor which in the opinion of the court should be taken into account.
Even though the prosecution does not oppose the granting of bail, the court has the duty to weigh up the personal interests of the accused against the interests of justice and deny bail.
TRUST MAANDA is a legal practitioner and a partner at Maunga Maanda And Associates. He writes in his personal capacity. He can be contacted on +263 772432646
