Police bail and prosecutorial bail (s59 of CPA)

Question 1

Police bail conditions

Answer 1

1. Bail may only be granted only before the accused’s first appearance
2. police may be must consult with the investigating officer
3. not applicable for schedule 5 or 6 offences
4. Applicable to all offences except part 2 and 3 of schedule two offences on CPA
5. may be granted by non-commissioned officer or higher rank
6. Cash only
7. basic conditions only (date and time of court appearance)
8. continues after first court appearance, court may add additional condition on request by prosecutor

Question 2

Prosecutorial bail conditions

Answer 2

1. may only be granted before the accused’s first court appearance
2. prosecutor must consult with investigating officer
3. not for schedule 5 or 6 offences in CPA
4. only for schedule 7 offences
5. may be granted by Director of public prosecution of duly authorized prosecutor
6. cash and guarantee
7. basic and additional conditions (rendering passport and reporting to police station)
8. continues until first court appearance therefore, the court may extend bail, amend conditions and reconsider bail afresh

Question 3

evidence used by the court for bail application

Answer 3

1 evidence in the form of affidavits
2. oral evidence

Question 4

schedule 5 of bail application [section 60[11][b]]

Answer 4

the accused must present evidence that their release is in the interests of justice

Question 5

schedule 6 of bail applications [section 60 [11][a]]

Answer 5

the accused must present evidence of the existence of exceptional circumstances justifying that their release is in the interests of justice

Question 6

schedule 5 bail inquiry

Answer 6

• court must conduct formal bail inquiry
  -accused must present evidence on a balance of probabilities that their release on bail is in the interest of the justice
  -accused presents evidence first then state presents its evidence
  -state must present reasons for not opposing schedule 5 bail application

Question 7

schedule 6 bail inquiry

Answer 7

-formal bail must be conducted
-accused must present evidence on a balance of probabilities in the existence of exceptional circumstances justifying that their release will be in the interest of justice
-accused presents evidence then state follows
-state must present reasons for not opposing schedule 6 bail application

Question 8

not schedule 5 or 6 bail inquiry

Answer 8

-courts may conduct a informal bail inquiry
-parties may address court from the bar
-if state opposes bail a formal inquiry can be conducted
-state presents evidence first
-state must prove the accused further detention is in the interests of justice.

Question 9

determining whether the offence is a schedule 5 or 6 offence

Answer 9

-section 60 [11][a] provides that the DPP must provide a written confirmation that they intend to charge accused with an offence referred to schedule 5 or 6. written confirmation must be submitted in court and will be the proof of charge
-a description of the charge in the charge sheet is sufficient in determining whether offence resorts under schedule 5 or 6

Question 10

disclosure of previous convictions and pending cases

Answer 10

section 60[11B] [a] and [b] of cpa

Question 11

admissibility of the record of bail proceedings in subsequent trial

Answer 11

section [11B] [c] of cpa

Question 12

failure of the accused to observe a condition of bail section 66 cpa

Answer 12

1. the prosecutor may apply before to the court where the charge is pending to lead evidence to prove that the accused failed to comply with such provisions
2. if accused is present and denies failure to comply such conditions, the court holds an inquiry, court will hear evidence by the accused and prosecutor
3. if accused is not present when the prosecutor bring the application to the court, the court may issue a warrant of arrest, when they appear before the court the inquiry will continue
4. if accused admits that they failed to comply with such conditions in question or the court finds that the fault was on their part, court will cancel bail and declare the bail money forfeited to the state
5. proceedings and evidence must be recorded
6. the accused still retains their basic fair trial rights

Question 13

failure of accused on bail to appear [section 67 cpa]

Answer 13

1. court declares bail provincially cancelled and bail money provincially forfeiture to the state and issue a warrant of arrest for accused and the matter is postponed for 14 days
   2.if accused appears before court with the 14 days of the warrant of arrest, the court must confirm the provincial cancelation of bail and forfeiture of bail money unless accused satisfies the curt that the failure to appear was not due to a fault on their part.
2. if accused does not appear before the court within 14 days of the issue of the warrant of arrest, the provincial cancellation of bail and provincial forfeiture of bail money becomes final