Bail

Question 1

Is bail presumed?

Answer 1

Yes, under S4 SA

Question 2

Imprisonable offences – grounds for objecting bail

Answer 2

the court might not grant bail to D where there are “substantial grounds” to believe that:

1. D will fail to attend a subsequent hearing.
2. D will commit an offence while on bail.
3. D will interfere with a witness or otherwise obstruct the course of justice.
4. Safeguard – there must be no real prospect of a custodial sentence.

Note – substantial grounds means that it is only necessary to show that objections have substance and merit.

Question 3

Summary offences – grounds for objecting bail

Answer 3

The “three big grounds” can only be raised where:
1. D has a previously breached a condition of bail.
2. D has a previous conviction for failing to surrender.

Question 4

D need not be granted bail if…

Answer 4

1. For D’s own protection;
2. Court has insufficient information to grant bail and D is remanded into custody for a short while;
3. D is already serving a custodial sentence.

Question 5

Objecting bail: murder

Answer 5

*Only a CC Judge can grant bail.

A. If D has a pre-conviction for murder, attempted murder or a serious sexual offence D may not be granted bail unless exceptional circumstances justify it.

B. If D does not a pre-conviction (as described above) D may not be granted bail unless there is no significant risk of D causing an offence likely to cause physical/mental injury.

Question 6

Objecting bail: attempted murder, rape, serious sexual offences.

Answer 6

If D has a pre-conviction for murder, attempted murder or a serious sexual offence D may not be granted bail unless exceptional circumstances justify it.

Prosecution can use the three general grounds too (likely if no pre-con)

Question 7

Objecting bail: offence carrying life imprisonment

Answer 7

If D was already on bail or fails to attend a subsequent hearing while on bail, D may not be granted bail unless there is no significant risk of further offences being committed or failure to attend.

Question 8

Objecting bail: offence against partner/family

Answer 8

D need not be granted bail for any imprisonable offence where the court believes that D would commit an offence on bail by engaging in conduct that would, or would be likely to cause physical or mental injury to an associated person.

An associated person is a partner or family member.
Note – ground only available for non-imprisonable offences where D is arrested for a breach of bail.

Question 9

Objecting bail: offence abuse of drugs

Answer 9

Where:
1. A test shows that D has a Class A drug in D’s body; and
2. The offence relates to Class A or was caused/motivated by D taking Class A drugs,

The court may not grant bail unless there is no significant risk of D committing an offence on bail.

Question 10

Objecting bail: cases where there has been an infringement of bail

Answer 10

If D was on bail at the time of the offence:
A. Indictable offence committed – court need not grant bail.
B. Summary offence – court need not grant bail if substantial grounds for believing that D will commit further offences.
C. D absconds while on bail for an indictable offence – court need not grant bail unless “absconding” is prior to the conviction and there is no realistic prospect of D receiving a custodial sentence.

Question 11

Bail factors

Answer 11

1. Nature and seriousness of the offence;
2. Character, antecedents, associations and community ties;
3. Previous bail record;
4. Strength of the evidence.

Question 12

Bail common conditions

Answer 12

• Residence at a given address
• Reporting to a police station
• Curfew
• Surety (promise to pay money by 3P)
• Security (payment of money)
• Restrictions (location and/or contact)
• Electronic monitoring
• Surrender of passport
• Bail hostels
• No contact with X

Question 13

Test for bail conditions

Answer 13

They must be relevant, proportionate and enforceable.

Question 14

Breach of bail conditions

Answer 14

Might result in arrest but not an offence unless failure to surrender to warrant.

Court has power to impose stricter conditions and/or consider whether bail should continue.

Question 15

Failure to surrender: liability

Answer 15

1. Up to 3 months imprisonment and/or unlimited fine in MC.
2. Up to 12 months imprisonment and/or unlimited fine in CC.

Question 16

Bail – application procedure

Answer 16

1. If bail refused by police, D appears before next available MC in custody.
2. D’s advocate check with the prosecution whether they intend to object to bail.
3. Defence presents arguments for bail to be granted.
4. Bail refused or conditions might apply.

Question 17

Bail attempts: MC trial

Answer 17

Two attempts at the MC (as of right) and one at the CC on appeal.

Question 18

MC: after 2 bail attempts…

Answer 18

After two attempts of the same application, D must find fresh points to make (i.e. new condition) or appeal to the CC.

Question 19

Bail attempts: CC trial

Answer 19

D has one attempt at 1st hearing at MC (unless murder) and a further application as of right to the CC.

Note – appeal heard at the HC by a HC judge.

Question 20

Custody time limits

Answer 20

Prosecution cannot hold a defendant beyond time limits unless it applies for a court extension:

1. 56 days for trials in the MC of summary only or either way offences;
2. 182 days for trials in the CC of indictable only or either=way offences, less any days spent in custody prior to the case being sent to the CC (usually zero).

Question 21

Extending custody time limits

Answer 21

Prosecution must show that:
1. it has acted with due diligence and expedition;
2. There is good and sufficient cause to have the defendant remanded into custody.

Question 22

Application for bail – timeline

Answer 22

1. D asks for bail during first hearing at the MC (unless murder)
2. If rejected, D can return and make another application a week later.
3. After two applications have been made, D must secure a ‘certificate of full argument’ from the MC before appealing (summary by magistrates so that CC knows about the case).
4. Appeals heard one business day after notice has been served.
5. If an appeal is refused, D can only apply where there has been a change in circumstances.

Question 23

Application for bail – urgent cases

Answer 23

CC hears appeal no later than one business day after the appropriate notice is served. If D appeals to the CC after having only asked for bail at the MC once, it looses the right to a second application.