Mbeta & Ors. v R (Criminal Appeal 15 of 2016) [2017] MWSC 1 (9 January 2017)

JUDICIARY IN THE MALA WI SUPREME COURT OF APPEAL Criminal Appeal No 15 of 2016 (Being High Court Case No. 261of 2016) BETWEEN DOROTHY MBETA 1st APPELLANT CHIPUZA GW ADIRE 2ND APPELLANT NINO COSTINO SAIMALA 3RD APPELLANT REPUBLIC RESPONDENT AND Procedure Criminal Procedure (Guidelines) -Bail -application Code -practice on Bail Act and Guidelines and Evidence under section and procedure based on the Bail 118 of the Criminal Procedure Criminal on all principles and factors state and a person arrested necessary or accused for a court to exercise of a crime judgment from the -Bail -application -there must be evidence and information Criminal factor Procedure -Bail -a court must consider each and every principle and in the Guidelines on Bail -failure is wrong exercise of discretion . ·- . .. ' . . 1,�..),.. ·-·��·� '• . ·- ...... � .. l .... ........ ;t:.:,.. . I .. "i, .. .,,.,"'1,,;. .. , state whether he application - practice and procedure - t right to bail or statutory it is the constitutional Criminal Procedure - bail succinctly that is sought Criminal Procedure - Bail - pr proof- on the applicant showing that bears the evidential burden to show that release a p actice and procedure - bu erson arrested or accu n turn in the interests of justice it is not in the interests a/justice to to release - the prosecution i rden and standard of sed of a crime it is must right to establish on balance of probabilities threshold facts Criminal Procedure - cu after expir ation of the maximum custody limits or exten sion stody ti me limits - right to release - with or without bail Criminal Procedure - custody time limits - d court - the state gains n ourt, accuse elay by c d person or o time Criminal Procedure - bail - ap bail - application for bail pending appeal against refits al or granting of bail - application must be inc!uded or accompany the notice of appeal s al t peal - bail pending appeal from refit o gr.ant Human rights - right to release from lawful Constitution - the right to release uncon without bail ditionally ht to rele and rig ase with or detention - section 42 (2) (e) of the Human Rights - the righ interests of justice - a p justice require otherwise t to t to release unconditionally - the ri itionally if inter ests of erson will not be released uncond ght is subjec Human Right interests of justice - a p justice is otherwise erson will not be re s subject to s - the right to release without bail - the right i leased without bail if the interests of Human rights the right to release on condition of bail interests of justice - a c justice require otherwise - the rig ourt will not release on bail where the ht is subject to interests of Q. I OJ Cl) 0.. Legislation Considered Bail Guidelines Act, sections 1; 2; and 3 rule 4 (a); Part 2, rule 4 (a) (i); Part 2, rule 4 (a) (ii); Part 1, rule 1; Part 1, rule 2; Part 1, rule 3; Part 2, rule 1; Part 2, rule 2; Part 2, Bail Guicielines, 'rule 3; Part2, 4 (a) (iv); Part 2, rule 4 (a) (v); Part 2, rule 4 (a) (vi); Part 2, rule 4 (a) (vii); 2, rule 4 (a) (ix); 2, rule 4 (b) (iii); (vii); Part 2, rule 4 (b) (viii); rule 4 ( c) (ii); Part 2, rule 4 ( c) (iii); Part 2, rule 4 ( c) (iv); Part 2, rule 5 ( c) (i); Part 2, rule 5 ( c) (ii); Part 2, rule 5 ( c) (iii); (a); Part2, rule 6 ( Part 2, rule 4 (a) viii Part 2, rule 4 (a) (x); Part 2, rule 4 (b); Part 2, rule 4 (b) (i); Part 2, rule 4 (b) (ii); Part Part 2, rule 4 (b) (iv); Part 2, rule 4 (b) (v); Part 2, rule 4 (b) (vi); Part 2, rule 4 (b) Part 2, rule 4 (b) (ix); Part 2, rule 4 ( c ); Part 2, rule 4 ( c) (i); Part 2, Part 2, rule 4 ( c) (v); Part 2, rule 5 ( c ); Part 2, rule 5 (c) (iv); Part2, rule 6 b); Part2, rule 6 ( d); Part2, rule 6 ( Part 2, rule 4 (a) (iii); 2, rule 6 ( c); Part Part 2, rule ); Part e); Part2, rule 6 ( f); 1) (iii) Constitution, 1966: section 2 ( Courts Act: section 11 (b) Constitution: sections 18; 1 9 (6); 39 (1); 42 (1) (f); 42 (2) (1); 44 (2); 45 (e); 44 Criminal Procedure and Evidence Code: section 35 (1); 97; 118; 1 161E; 161F; 161 0; 161H; 19; 161A; 161B; 161C; 1 1611; 161J; 355 (1) 61D; Criminal Proce (f) (ii); 68.8 dure Rules: rules 1.1; 1.2; 17.25 ( 4); Rule 41.7; 68.3 (2); 68.3 (2) (h ) (iii); 68.6 (6) Supreme Court of Appeal Act: section 7; 8 ( b ); 11 (1 ); 24 Supreme Comi of A ppeal Rules: Order 1, rule 18 ; Order 2, rule 1; Order 4, rule 13; Order 4, ru le 13 (1 ); Order 5, rule 1 Cases cited Finance Bank of Mal Appeal No 45 (MSCA) awi Ltd v Nicolaas H eyns and Nedbank Malawi Ltd (2010) Criminal Dzole v Republic (2016) Criminal Appeal No 14 (M SCA) (unreported); Gadabwali v R epublic (2013) Miscellaneous Criminal Appeal No 2 ( MSCA) (unreported) Kamwangala v R epublic (2013) Criminal Appeal No. 6 ( MSCA) (unreported); Kasambala v R epublic (2013) Misc ellaneous Criminal Appeal No 5 ( MSCA) (unreported) Kaudzu and others v Republic (2016) Criminal Appeal No 16 (MSCA) (unreported). Letasi v Republic (2016) Criminal Appeal No 13 (MSCA) (unreported) Mhave v Republic (2005) Criminal ted) Appeal No. 25 (MSCA) (unrepor Muluzi v Director of the Anti-Corruption (unreported) Bureau (2005) Criminal Appeal No 17 (MSCA) Parekh v The People (SJ) (SC) Patel v Gondwe (2015) Criminal Appeal No 31 (MSCA) (unreported) S v Khumalo (1957/2012) [2012] ZAKZPHC 27 S v Smith and Another, (1969) (4) SA 175 (N) S v Stanfield (1) SACR 221 (C) Salvado v The State 2001 (2) BLR 411 (HC) State v Registrar of Financial Appeal No 41 (MSCA) Criminal Services ex parte Prime Insurance Ltd and another (2016) State v Electoral (DC) (unreported) Commission ex parte Muluzi and another (2009) Constitutional Case No 2 (HC) State and 5 Others exp Right Honourable Dr. Cassim Chilumpha, [2006] MLR 433 Zgambo v Republic (1998) Criminal Appeal Case No 11 (MSCA) (Unreported) Words or phrases judicially considered Bail CORAM: JUSTICE D F MWAUNGULU, JA Maele, Counsel for the appellant Mtonga/Salamba, Counsel for the respondent Minikwa, official court interpreter Mwaungulu, J A JUDGEMENT Mbeta, Chipuza Dorothy of the court below refusing detention considered under section whether Gwadire and Nino Gastino Saimala to release them on bail. They could have applied 42 (2) ( e) of the Constitution. against have appealed the decision from for release The court below would then have it was in the interests of justice to release them unconditionally or release them on condition under the statute, with or without Procedure section 118 of the Criminal and Evidence Code. that they be released bail. They, however, applied for bail At the time of the judgment of the court below, they were in lawful custody the court on this prospect. of the appeal on 25 November 161 A to 16 lJ of the Criminal Procedure so until the hearing the judgment, Code. They remained why the State could not proceed maximum custody time limits under section Evidence were not, at the time I was to deliver addresses that counsel reason admission, Court does not set down homicide cases. is now, there is a limit on the period prosecuting citizens Consequently, or with bail. while they are free without and remained was strong the crime. strong. 2017. The case was adjourned on 9 January so The state gained no time by this. There is no own with the prosecution. The evidence, The State seems to have resigned In this manner, the State overlooked can be in lawful custody are exceeded, when citizens where those limits to that the High that on the law, as while the state is the State will prosecute by the State's within the and 2016. They therefore, is not absolved from these obligations because there is delay in the the accused there are various person or the court. Neither is the state it or an appeal applications before under its duty under Rule 1.1 of the Criminal The State, caused by inertia Rules to act justly from the court, because courts from this responsibility absolved from them. For each case, the State is supposed, Procedure accused Criminal suspect, before or during trial, the Criminal default Procedure Court of Appeal Act, and any practice, persons' Procedure to inform the court, Rules a constant with �ections or suspects' procedure Rules, and fairly to ensure that cases are set down speedily speedy and quick trial. There is, because of Rule 1.2 of the to ensure duty on the state, of course, even on the accused without delay, failure to comply, among other orders person or necessary Code and 161A-J of the Criminal Procedure rules of this court under section and Evidence 8 (a) of the Supreme and law of this court. A single member of this court cmrnot determine an appeal against an order of the court member of the court -must determine Court, albeit on a pretrial bail. The full court - not a single the judgment of the lower court refusing 11(1) of the Supreme below refusing against section comi. Under section determine a substantive appeal. No 2 (MSCA) (unreported) No 5 (MSCA) (unreported), Court of Appeal Act. In Gadabwali v Republic its original that this court was exercising appeal, jurisdiction. 7 of the Supreme Court of Appeal Act a single Gadabwali v Republic (2013) Miscellaneous and Kasambara v Republic (2013) Miscellaneous relied on by the appellants, this court, never regarded thought, member of this Court cannot Criminal Appeal Appeal Criminal section 7 of the Supreme that there was an despite bail. There is a substantive appeal - under order, which should be heard by a full the appeal This comi, except in the context of an appeal, 7 of the Supreme Court of Appeal Act does not make a distinction has no original made in Kasambala v The State and that a single to grant bail. jurisdiction e between final and g judge can determine such a to the P is not borne out. Under section 11 of the Supreme Court of Appeal Act, subject Section interlocutory orders an appeal other provisions of this section, any person aggrieved by a fi Under section nal judgment of the High Court in its 2 of the Supreme Court of Appeal to the Court. •original may appeal decree, decision appealed jurisdiction Act, "judgment" includes final order or single member of this court cannot determine. This is a jurisdiction question and cannot, Court of Appeal Rules. appropriate forum. and decision. order, from as such. Even if it be interlocutory, therefore be disregarded under Order 1, rule 4 and Order 5, rule 1 of the Supreme This Court and the Chief Justice have power to allocate or granting of bail is a it is an appeal which a based on a statute sentence Refusal the case to an The appellants are in custody way past the maximum custody time limits. The intention in sections 161 A-J of the Criminal Procedure and Evidence Code was that they must be! The State gains no time from that there are pending applications could only be in lawful custody pending trial for periods 30 days failing which they may be released absolutely or on bail - in, in 24 of Court of Appeal. This court, therefore, will consider under section prescribed Court of Appeal Act, consider whether the appellants should not be released on bail appeal. Generally, the court below acted on paucity of information s) Act and the Guidelines under the Bail (Guideline and never considered on Bail. The likelihood of the legislature accused persons or suspects and extensions not exceeding released, this case, the Supreme the Supreme pending critical considerations of the appeal succeeding appellants prosecution has done pending which they can be detained on both aspects is high. It would, with this prospect, be inane to let the spend a moment longer in detention pending trial in circumstances where the trial. little to ensure the appellants are pro secuted within the maximum time in The application of appeal for bail pending v Republic should Criminal appeal (2016) (Letasi (2016) Criminal Criminal notice and 1<.audzu and others v Republic Court 24 of the Supreme Republic of Appeal Act is the basis for the power of this Court and the court below -courtesy rule 13 of the Supreme Court Appeal No 14 (MSCA) (unreported); Section Appeal No 16 (MSCA) (unreported). of Appeal Rules -to grant bail pending Appeal No 13 (MSCA) (unreported); appeal. (2016) Order 4, have: been included in or accompanied the Dzole v by section and Evidence stays of execution The court below, unlike this Court, is covered Code. Section of sentences Procedure could, Procedure covers 329 (2) of the Criminal pronouncement. and granting Procedure Criminal the court below -and lower courts and Evidence however, upon which the court may order bail pending 355 (1) of the Criminal including Code all prison -all sentences, The prisoner and Evidence Code and Order 4, rule 13 of the Supreme -have no jurisdiction, apply for stay of execution appeal. of the prison Outside section sentence 355 (1) of the Court of Appeal, 355 (1) of the Criminal Code and Evidence procedure Under section prison sentences. as such, to grant bail pending appeal. sentences are effective on Section 8 (a) of the Supreme Court of Appeal Act provides procedure thereunder; of the Court shall be in accordance provided that if the Act or any rules of court under it do not provide and with the Act and any rules of court made for any that the practice \C a. b Cl 0. of the Court shall be in with the law and practice for the On the particular point of bail Court of Appeal Rules are the Procedure Rules, it is mandatory Court of Appeal Act effective, Under rules 41. 7 and 68.3 (2) of the Criminal matters the practice and procedure point of practice and procedure, as nearly in the Court of Criminal appeal, specific rules because as may be in accordance Appeal in England. the Supreme Court of Appeal Act and the Supreme provision. particular relation to criminal time being observed pending without default to include appeal Kaudzu and others investigated, court can, in the interests of justice, either Ordering under the Criminal Procedure Rules. There was, because under Order 5, rule 1 of the Supreme orders (Letasi the practice v Republic). a non-compliance in the notice to be included of appeal - even appeals against or to accompany a notice would be dilatory 8 (a) of the Supreme compliance discordant and, therefore, of section of appeal waive the non-compliance The Court of Appeal Rules. or order compliance. with the principle of acting justly - for an application pending v Republic, and procedure Dzole v Republic and was no thoroughly for bail pending appeal must be included in the notice in rules 41.7 and 68.3 (2) of the Criminal in asserting the right to bail pending as early as possible reduction appeal. Rules that Procedure of appeal denotes The requirement enables of rights are the prisoner's pro­ so that where there is a prospect or a substantial soonest. Consequently, despite the application is already in sentence, failure by the State and the appellants, appeal in the notice here, was to hear the application for bail pending of appeal, for bail pending Muluzi v Director as participants, the correct since appeal(Patel v Gondwe of the Anti-Corruption order, Appeal No 31 (MSCA) (unreported); the compulsion Moreover, an application and progressiveness action a court on appeal to address the matter success on appeal, a retrial preserved to include the matter (2015) Criminal Bureau (2005) Criminal Honourable Assembly, Criminal Malawi Ltd (2010) v Gondwe (2015) Criminal Financial Services (MSCA) (unreported). Court of Appeal Rules waiving Procedure appeal requires pending and was on the parties' such a process. appeal disabled or dispensing part failure, Appea1 No 17 (MSCA) (unreported); The state and 5 Others exp Right Dr. Cassim Chilumpha, [2006] MLR 433; Mangulama v Speaker of the National [2007] M L R l 39);Finance Bank of Malawi Ltd v Nicolaas Appeal No 45 (MSCA) (unreported); Appeal No 31 (MSCA) (unreported); Gadabwali Heyns and Nedbank Patel v Republic; of Appeal No 41 The State v Registrar Ltd and another (2016) Criminal ex parte Prime Insurance Essentially, this court is either, under Order 5, rule l of the Supreme the requirement under rules 41.7 and 68.3 (2) of the Criminal Rules that such an application should have been made together under Order 1, rule 4 of the Supreme failure Moreover, the court from, under rule 1.1 and 1.2 of the Criminal by the appellants under rule 1 of the Civil Procedure to include Court of Appeal Rules of the with the notice of rule that the application for bail Rules Procedure the court. rule is that the Supreme in open court. The court in open court e g a P an order otherwise, Rules, to assist The general the appellants The matter should not have been heard in Chambers. Court of Appeal must hear an application could adjourn should of this nature Moreover, of right. the matter to Chambers. these hearings as a matter have attended without J\t the stage wher e we are the release of an accused person on bail pending appeal against nly be, based on refusal to gran t bail - like in all circumst ending appeal - can o Court of Appeal Act, as the court sees fit. This is in the interests This is not the case of bail pending an ances of bail p appeal of -the conviction bail, one against an order refusing the accused to release person Republic). 24 of the Supreme (Letasi v remains section justice principle in determining consideration appeal is whether the success. The the hearing of the appeal. consideration against the same. Where there is an appeal against of justice whether bail -if it cannot is not and it should it is in the interests be disposed not be whether of quickly the appeal chance of -has a realistic That is for will succeed. Application for release on bail pending -where there is a right or necessity because of freedom deprived unlawful of justice. or is not in the interests of an appeal against refusal person to release for any moment longer on bail pending the accused appeal of quickly appeal to release must be disposed -an accused where further detention, even there is a real prospect Where, therefore, person should not be lawful, is if initially of success of justice, in the interests and speedily to grant bail, it may be, among other things, and promptly. The prospect of the appeal against bail succeeding in this matter a court is only concerned with assessing appeal may succeed. where the prospects an accused person on bail pending are high, a court may, unless the prospect Where the prospects are very high or .are they or possibility that the are not there or are appeal as a matter there are compelling of against pending a judgment not? At this stage, appeal very low, the court will n@t release Consequently, course. reasons, release are ameliorated freedom. on bail almost in part, if not in whole, by that the law leans in favour of rights invariably. The risk of erring releasing against on bail at this stage -the right to In making such a decision, determining the court is not perturbed on bail. The court is dominated of the the appeal after considering it is a small matter that a court refuses by that it may of only by the interests of case, the interests appeal and all the circumstances or distracted bail pending Where, therefore, favour detention, effectively be justice. justice effectively in release results effectively matter, deciding preoccupied deciding the appeal. Conversely, of an accused person, it is peripheral the substantive The court, to do what is in the interests matter. of justice. to the matter sensitive that in doing so the court is for that is properly, to the appeal, where the interests of justice, after all considered, What then are the prospects of the appeal against the court below never -it should have -considered bail succeeding? all principles They are very high. and factors prescribed by Act for applications for bail under on Bail made under the Bail (Guidelines) Procedure with profundity has not prosecuted and Evidence Code. The principles and specificity required under and factors considered guidelines. under section the Acts and time limits the appellants within the custody The 118 of the Criminal First, the Guidelines section were not treated State, moreover, 161 A-J of the Criminal Procedure and Evidence Code. t r Cl In the court below, on hearing of the application, the court below received conflicting The happened the police to death following with the appellants who all along deny involvement. were on 30 September 2016 assaulted accounts on what actually deceased and his brother death of their had been to the sister. The brothers wanted to sell a plot of land belonging to their sister. The sister courts, and village headmen. about to adjudicate on it. Rumour had it that the brothers against their sister. She incidentally and his brother the funeral brother or by the appellants, for it. They ap funeral to the prosecution. Whatever ctober, 2016. everywhere and the court was a wizard or witch in the village plied for release to the court on 3 O was believed invited assaulted according a few houses from their sister. is true, the appellants and died eventually. to the appellants, were, thereafter, The deceased and his by other furious mental illness The deceased are in custody never attended according developed Her account mourners, The application based on a constitutional 118 of the Criminal Procedure right under section 42 (2) ( e) of the Constitution right under section and the statutory Bail (Guidelines) appellants' 13 October, Act. Initially, release on bail. The State changed 2016. the state was, at the hearing on 6 October, and Evidence Code and the 2016, for the to, was adjourned its mind on the date the matter is framed is important. The way the application the application understood and how counsel argued the release the Criminal It is important, in section 42 (2) ( e) of the Constitution and Evidence differently. matter. Procedure Code. It appears, however, that the court below however, therefore, and the statutory right to bail under section �ight to 118 of itself stems from the application the constitutional to discuss The confusion, The application in the court below is worded 'In the matter of section of the Republic of Malawi and in the matter of section Act." The wording suggests that the application is made under the Constitutio n 42 (2) (e) of the 1 part II of the Bail Constitution (Guidelines) and/or the Bail (Guidelines Act). This can be confusing. The constitutional right is a right to be released. The release, bail. Section 42 (2) (e) of the Constitution provides: without however, can be with or Every person an offence shall, detained person, or without arrested for, or accused of, the alleged to the rights which of he or she has a commission in addition have the right to be released from detention, otherwise. require with bail unless the interest of justice Conceptually, therefore, a citizen applying under the constitutional right disappears. for bail; a citizen question the release word bail. Where, therefore, bail - a suspects or an accused must apply for release from detention. On the other hand, if the court allows release, If the court refuses the question v Kaudzu and others can be with or without bail. the court orders person's This court in Republic release, undertaking it almost invariably or agreement, need not apply the bail release, whether becomes e defined the g a on will order release on a sum, cash or without P cash, to appear a appear. Conceptually, to t the the right - r We can sp ather than a r ight. The righ eak, grotesquely, of a r t to release is ight to be releas itizen's un subject to a c ed on such an undertaking. require a citizen to be released on such an undert aking is dertaking to appear. a clog on time and place state d at the peril of forfeit ing the bonded sum on failure to "Summons for release on bail from pre­ misleading: is taken from the constitutional Procedure provision. and Evidence Code. On an to apply for bail. The expression 'release Code and 118 of the Criminal Procedure and Evidence on bail" The word "pretrial" The prayer in the affidavit, however, locates this The title of the summons is equally The word 'release' right in section detention." it is unnecessary trial from section 161 A-J of the Criminal is probably application for release, derives from the statutory section 42 (2) ( e) of the Constitution. application that this ... court exercise its discretion in granting therefore, properly, a bail application reference to the right of rele the application in my judgment, by the three appellants was for bail under the statute. The court below, therefore, treated, under the statute: "This is for bail the application as being an application of the court below there is no ) of the Constitution. ... " In the judgment tion 42 (2) ( e ase under sec under section 118 of the Criminal Procedure and Evidence Code: "the applicants pray bail to the applicants ... " Substantially, The constitutional right was, however, extensively covered one based on this court's decision in the parties' submissions. in Appeal No 25 (MSCA) (unreported) in the below made two principal points (2005),Criminal The respondents, Mhave v Republic this court's decision in Kamwangala v Republic (2013) Miscellaneous (MSCA) (unreported). the context of the Constitution international law. it can be limited by law - statute, The right in section 42 of the interests (e) is an absolute It is not absolute of justice. judicial because, and the other based on Criminal Appeal No 6 decisions, law or customary right despite it being exercised under sections 44 (1) and 44 (2) in Bail in section 42 (2) (e) of the Constitution is embedded to the right to release. could be released, the court may order that, rather words, once a suspect unconditionally, the accused person is released on an undertaking to appear for trial. The discretion, therefore, would certainly prefer release without leaves it to the court suo motu or at the application on bail. The understanding burden of of the right in section 42 (2) ( e) of the Constitution whether not to attach bail to the release. by the state, to consider is, on release, bail. Section The accused person proof. releasing the suspect impacts on the 42 (2) ( e) of the Constitution, therefore, In other than released It is generally accepted, based on Mhave v Republic, that the burden is on the State to prove that it is not in the interests of justice not to grant bail. The assertion Obviously, it is not for the state, where a suspect applies, the Constitution. Conse quently, the burden cann ot be on the st to assert the right in section 42 (2) ( e) of ate. needs analysis. C r ( t C When asserting a right under section is who asserts must prove. 42 (2) (e) of the Constitution, therefore, The burden of proof, the suspect is the cannot be on the state. The applicant, facts to entitlement that the burden of proof is on the state emanates from not recognizing at the least, must establish threshold from not appreciating the right in section 42 (2) (e) of the Constituti the interests person, as the applicant must establish threshold facts before bail inures. That on the consequence of otherwise' to bail alone. The words of justice require The principle The suggestion applicant. the respondent, to release. that' the accused arises which is to peg the words 'unless pervade all the thr ight. ee aspects of the r There are three aspects to the right in section right; b) the right to be released the dominant on bail. The words 'unless the interests a) the right to 42 (2) ( e) of the Constitution: it be a right, without are not and bail and c) the right, if otherwise' of justice require release, to be released should not be restricted to 'with ... bail.' if standing alone, must be in the interests of justice. The release, if that is all that is asked for, where 'the interests of justice require cases where an accused person, otherwise.' The a court or the State may apply for release without bail is The slightly imprisonment. by law does not require There would be no immediate prescribed release, clearest where the sentence complex situation is where an immediate custodial sentences - absolut be appropriate. person has not to apply for bail - an application because There could be more discretiona e or conditional prison sentence discharge, probation would not be imposed and non­ - would or community service the qccused is the best option. The court could, ry instances. In such circumstances, for release of it, not in spite of it, still suo motu or an application consider releasing on bail. there cannot be release should where the release released person should be place because, Equally, namely, otherwise,' the accused balan_ce, or a trial ever taking bail, never appeared for release trial. that the accused on condition In such circumstances, gives bail person without bail where 'the interests be with bail. The nearest example of justice on here is where, require on bail but there is a risk to quick and speedy trial among other things, the accused, previously with or without application, released the court may without Moreover, there should be no release with bail where 'the interests of justice otherwise,' accused bail previously, to be released namely, where, in the circumstances, for bail. This, for example, in return never showed up for trial. or unjust it is unconscionable to require is where, the accused, released require the on Where, therefore, an accused the onus is upon the applicant person applies Constitution, should be the case, there is lawful detention. entitlement is lawful that it is in the interests to establish The onus is on the suspect, strict on such an application The state, once Any other view entails to be released. The threshold to release. liability detention for a crime. of justice under section the right to release 42 (2) (e) of the where, as often to prove as applicant, as long as there to show is for the applicant as the is reached, the threshold or duty on the state, for release respondent, dispels the th ' ,(suspect. In other word reshold by showing that ate must just demon s, the st it is not in the interests o elease the f justice to r strate, the onus being only evidential, that the of justice interests show that the interests justice entitlement on a balance require otherwise. The onus, however, remains on the suspect, as applicant, The suspect has only to establish to justify release from custody. of probabilities. under section the bail question for release. the suspect in section only in the context Where the court refuses release from custody, based on section 42 (2) (e) of the 42 (2) ( e) of the does not arise. The bail question that the court in the other two situations and, therefore, First, has a right to be released without bail - without an undertaking Constitution, Constitution arises decides release, on a sum, cash or no cash, to appear at the hearing. The court could act suo motu, but it must hear the parties. be basically undertaking. interests of justice to be released without show that the interests of justice require otherwise. evidential. The onus, as an applicant, to demonstrate that it is in the burden to bear an evidential The question of burden of proof does not arise, 42 (2) (e) of the Constitution, demand that he be released without such an The suspect could, however, bail. The state would just would be on the suspect once the court opts for or agreement the burden on both parties will contended, that the burden of proving that it would not be in the interests of justice Once the court inclines be with bail and not without the suspect, the State could demand that the bail. This request, however, does not comport, to releasing normally, as the release respondents not to grant bail is on the State. on bail. The state, therefore, release suspect on bail, the the suspect It is the State, upon the prospect of release, has the onus of proving that it is in not in the interests which demands release of justice if it is not in the interests of justice to release to the on bail with the prospect that, court will rel ease the suspe ct without bail. Finally, it could be the state, rather who applies on behalf of the State, cannot grant bail, the police, inclined than the accused, to release for bail. In cases where it need not, based on section 15 of the Constitution, may a prisoner, be the accused or the state - those directly involved in the proceedings - another All said in the last few paragraphs with a sufficient would apply interest of a right to bail can apply. the police, apply for bail. Moreover, person in enforcement mutatis mutandis. The burden of proof, therefore, is, under section v Republic 42 (2) ( e) of the Constitution (2013) Criminal Appeal No. 6 (MSCA) , variegated. This court's statement in Kamwangala (unreported) must be understood from this perspective: be trite that where one is detained of committing on account in common [ an accused of It should now being suspected parlance] interest it shall be up to the court seized they will be released require of justice an offence from custody that such person the as of right unless Further not be released. to to decide whether of the matter C°" � ( t ( C with or without conditions. release to convince interest with or without the court on a balance that the accused of justice conditions. It is for the State [prosecution] that it is in the of probabilities from detention not be released It is from these considerations to have introduced something understood based on the decision (MSCA) (unreported) Prosecutions, Public citing of this court in Zgambo v Republic this statement from this court v Director Appeal No 16 (MSCA) (unreported), (1998) Criminal in Tembo and others Appeal No 11 of this court (1995) Criminal said: that section new. Counsel 42 (2) ( e) of the Constitution for the respondents contended must be differently a right to bail. He, however, learned In reply, the does indeed create a new right at all; it has always been there ... Pausing to state that I would agree that, generally, bail existed before the present into force. DPP agreed that section said that this is not here, I wish the right to came Constitution in our laws even speaking, 42 of the Constitution in the declaration. until the 1994 Constitution. The of Human Declaration Nations right; as primary in section we ascribed Constitution, Those laws, however, There is no provision laws. The 1994 backing had no constitutional introduced 2 (1) (iii) the United 42 (2) ( e) of the Constitution like section however; were all these, them and they are, like, for Code and the common law and and to that have the equivalent law, overarches and Evidence 118 of the Criminal 261 and 302A of the Criminal 1966 Constitution Rights. were treaties that subservient 118 they of the Criminal section example, right to bail, laws made under the Constitution. Section Evidence Evidence jurisprudence common law (Parekh creates therefore, of the Constitution. 118 of the Criminal section 161A-J, rights. refers to constitutional Code, however, like sections Code, create adjunct Procedure Procedure that Zambian and the Procedure of the Criminal section the right to release under is much broader than I suspect, as bail under statute It is not without bail as in the same breath The right under the Constitutional 42 (2) ( e) the right under v The People (SJ) (SC). Section 118 right to bail sui generis a statutory and Evidence Procedure Procedure statutory reason, Rules, There Code. Section in section 118 ( 1) of the Criminal 42 (2) (f) of the Constitution: rights Procedure and Evidence Code is more confined than the with death, is arrested other than a person accused When any person, punishable police officer, and is prepared officer court to give bail, such person may be released or is brought at any time while in the custody before or at any stage of the proceedings or detained or appears of an offence by a warrant without before subordinate court, of such police such subordinate on bail by such court, officer or such subordinate as the case may be, on a police bond, with or without sureties. First, in relation to the police, it applies only where the police arrested person is arrested or detained an under a or detained to give bail in lieu of detention and, no right to an accused person an accused cannot release accused person without a warrant. Where the accused section 118 warrant, ( 1) gives therefor e, a police officer police officer can, where the arrest of the Criminal because under section prescribe upon arrest. accused person is liable Evidence Code; Part 1, rule 3 of the Guidelines and Evidence 97 of the Criminal bail and, in any event, a warrant to a death penalty Procedure officer cannot The police release was with a warrant of arrest requires the suspect on bail a person arrested ( section on Bail). Code, never provided and Evidence Procedure for release with 97 - in accordance on bail. This is Code a warrant of to be brought for an offence where the and Procedure arrest could to court person, even in circumst and the warrant 118 (1) of the Criminal ances where a on the police. him or her, then the most senior police officer whether where he or she with or without is detained Secondly, there is a further restriction that where a person is arrested, evidence to charge unconditionally Bail provides Senior Police Officer at the police station sufficient her either officer - up to charging release actually charges person has been arrested must decide or to release the accused person. The police the arrested person. the accused person whether to keep him or her in custody him or her on bail. or on bail. Where, therefore, there is sufficient subject officer may only be released Part I, rule 2 of the Guidelines cannot, section after arrest, if the police, on Bail provides: where a Officer Police station, the most Senior till he or she can be brought before the court and is then charged at the police on Part I, rule 1 of the Guidelines warrant, is not satisfied should but the most that th�re is release him or evidence, 42 (2) (b) of the Constitution, a police even for a subordinate court, the power to act only arises when an accused before it. Under section to court only arises when within 48 hours the accused person Moreover, ... to give bail" to "be released on bail ... on a bond, with or without suretie 42 (2) (b) of the Constitution, the right to be has not been charged "is a right where a suspect 118 (1) of the Criminal procedure creates section with can only act where the accused person give bail. Even then the accused There is, therefore, a possibility that after the charge, person may be released the accused person is prepared s." A - not otherwise on bail -with or without - Thirdly, person has been brought brought a crime. prepared subordinate court, therefore, willing sureties. in custody. Of course, motion or upon application, direct the High Court under section that any person 118 (3) has got power to, either of its own be released on bail: would remain e g a P The high court may, either that any person direct be released on bail or that the amount of, or of its own motion or upon application, any condition officer or police be reduced or varied. attached to, any bail required by a subordinate court The High Court cannot act suo has no information abo motu where it ut accused persons who are ' arrested or w ho, having be arrested, are in cus them are not having charged brought that in motu in these circumstances police practice of the Constitution the High Court can act suo for the Such a to a judge, any person in custody. 42 (2) (f) so that the High Court can exercise Procedure powers under section and Evidence before it. It is to ensure that to inform the magistrate, a duty -now widely in disuse should be reinforced 118 (2) of the Criminal for transmission and section practice -emerged Code. r tody because the police has not charged them o provide of section Section bail. Neither 118 (2) does not, therefore, without can it be said, because Court should have this jurisdiction. Evidence does not attract exercise accused the power a magistrate charged who has been person Section has in section Code gives power to a magistrate a death penalty. The power in section court to release an accused of the Courts Act must mean that person where the offence the High Court can 118 (2). It cannot confer the power to release an with burglary, murder, robbery, treason or rape. for the High Court to release somebody 11 (b) of the Courts Act, that the High and 118 (1) of the Criminal Procedure on Bail supposedly a person arrested with or without salvage for, or accused The Guidelines on Bail provides: to be released, entitled conviction in respect or she be detained of the offence, in custod5'. unless the position. of, the alleged commission Part II, rule l of the Guidelines bail, at any stage of the proceedings before the court finds that it is the interest of an offence is his or her that he of justice This statutory right is distinct and in addition It, is not, therefore, amenable to section to the right under section 44 (1) and 44 (2) of the Constitution vis-a.­ 42 (2) ( e) of the 42 (2) ( e) of the Constitution. by statute -is now circumscribed The statutory right -though understood -the Bail (Guidelines from common Act) and the Guidelines Constitution. vis section law principles on Bail. Bail proceedings under section and Evidence 118 of the Criminal Procedure Code are statutory. now essentially cases where the granting Criminal Procedure must apply the Guidelines on Bail: 2 of the Bail (Guidelines) Act applies the Act to all criminal Section of bail is considered by the police and courts 118 of the Act courts 3 of the Bail (Guidelines) under section and Evidence Code. Under section whether In considering guided by the principles, Guidelines on Bail, specified in the Schedule. to grant or refuse bail ... a court ... shall be factors and other matters, constituting that the principles which the court should take on Bail postulates in deciding 4 of the Guidelines and deliberatively Part 2, rule 4 of the Guidelines into account 2, rule deliberately evidence or lack of information or evidence on the matter. parties 2 of the Guidelines order its production and adjourn the hearing resolve disclose all material will provide all the necessary the application evidence consider whether or not bail should be granted on Bail. A court, therefore, faced with an application including those specified in Part for bail must all the principles and information before The Bail Guidelines and factors based on the information or that the court. Part 2, rules 1 and provide that the court could presuppose on Bail, where that information is not available, on paucity of information. The parties, therefore, are under a duty to information, irrespecti ve of the burden o f proof. for that purpose. The Court should not, therefore, The burden of proof depends on who, under section 118 (1) or 118 (3) of the Criminal of course, and Evidence Code, applies for bail. The usual, to a court, should apply. Under section Procedure for bail. There is nothing in section 118 (1) and 118 (3) to suggest that the accused least, in relation Evidence may release accused person's prosecutor, (1) or 118 (2) of the Criminal to act of its own motion or inform the accused person or accused person must just be prepared the accused person or suspect - may have, where there is no application by the accused person or on bail. Consequently, the court - conscious of the of the right under section 118 person, at and 118 (1) of the Criminal Procedure to give bail and the court is that the suspect applies Code, the suspect and Evidence Code. Procedure rights In Kaudzu and others v Republic that sections and Evidence Code were not part of our law until 2010. They adum 161A-J the Criminal brate or enhance, this court concluded the right to be released from detention Procedure rather than limit, in terms of section by the legislature, expressed or implied in this Constitution instance where, under section 10 (2) of the Constitution, Parliament, provisions of the Constitution standards power to extend days, if there was an extension . a relevant of this Constitution." for whether and necessary in an open and democratic the legislature, are furthered organ of State, the custody 8 of the Constitution, with or without bail. They are an attempt to enact laws where "values by the laws enacted." These are an of an Act of and 44(1) and 44 (2) gave "due regard to the principles to section in the formulation ... They are not, therefore, subjected they are reasonable , recognized by international society or negation of a right. human rights time limits and must release the suspect or accused person Court has no after 120 Coming to this case, the chances of the appellants succeeding on their appeal are very high. The only considerati is in this excerpt: ons and the only premises for the court below to refusal bail granting I have looked at all the facts given by both sides and I have considered still mentioned alive and if he did not see the three people, them in his statement There was to be his attackers. the seriousness of this case. White who was attacked he could not have is light outside during the fracas. the fact that the stronger them. In He recognized the evidence he is to jump bail, and looking at the on't feel incli the more likely f the offence, I d electricity my view considering an applicant, seriousness o so bail is denied. trial. the date for ned to gran 2017 at 9.00am as However, I set the 161h January t them bail, against only considered the appellants. had a permanent The court, therefore, against appellants stand in; and that the evidence never considered matters most principles actually The appellants' place of abode; against that the appellants and directly raised and factors it had to consider had permanent by the appellants. of the offence the seriousness in support there were sureties affidavit of the application who were available and the nature showed that the and willing to of evidence the appellants was nebulous. The court below, therefore, place of abode and that there were sureties - never considered The court below actually under the Guidelines on Bail. Section 2 of the Bail (Guidelines) Act, the application section, provides as follows: This Act shall apply is considered by the police Criminal Procedure to all criminal cases where the granting 118 of the under section of bail and courts and Evidence Code. Part 2, rule 1 of the Guidelines on Bail, however, follows the spirit of the right in s�ction 42 (2) ( e) of the Constitution: for, or accused to be released, A person arrestijd offence is entitled preceding court finds that it is in the interests detained of, the alleged with or without her conviction in custody. of justice in respect his or of the offence, the unless that he or she be commission bail, at any stage of an Under section 3 of the Bail (Guidelines) Act, the court granting bail must consider all these factors all the time and every times: whether to grant or refuse bail, a police officer or a factors as the case may be, shall be guided by the principles, in the on Bail, specified constituting Guidelines In considering court, and other matters, Schedule. Equally, requires Guideline that the court "should" consider them all: 4 (2) of the Guidelines on Bail, in relation to all principles and factors, The principles whether or not bail should which the court should take into account in deciding be granted include the following ... InSalvado v The State 2001 (2) BLR 411 (HC), Nganunu C J, said required I respectfully circumstances to grant bail in these agree with the learned judge. I should Apart from the use of the word "very" in describing exceptional cases, also agree with respect bail is an exercise of all judicial relevant of all the court must take into account fact that the grant of As in the exercise discretions discretion. with the obvious factors ... a judicial the In S v Khumalo (1957/2012) [2012] High Court Murugasen,J: ZAKZPHC 27 (4 May 2012) In the Kwazulu-Natal in this respect Mr Ntila has submitted the appellant be granted address and appeal. consider SACR 221 (C) at 226 c -d the totality that it is in the interests that of justice bail. However there has been no In exercising which is also fatal to the application discretion, its judicial of the circumstances. S v Stanfield a court must (1) Part 2, rule 2 of the Guidelines on Bail provides: In bail proceedings expeditiously but may postpone accused or the prosecutor information. the court shall deal with such proceedings the proceedings to allow the to adduce evidence or further Part 2, rule 3 of the Guidelines on Bail provides: If reliable or sufficient court may order its production. information the is not before the court, Rule 1.1 (2) (f) of the Criminal Procedure Rules, for this court, provides: with a criminal Dealing appropriate sentence information are considered. case justly is available includes that ... ensuring to the court when bail and There is a duty on a party and the state is to provide factors covered principles in Part 2, rule 4 of the Guideline and factors in Part 2, rule 4 and Part 2, rule 6 of the Guidelines on Bail. s on Bail. Equally, the court must consider a t r Cl all full information a: on all the principles and In this case, the court below acted without evidence or information on most principles completely overlooked and those that under the Guidelines ered. Under Part 2, rule 4 ( and factors it considered and, with or without information, principles and factors raised by the appellants have been consid • consider the likelihood offence was overwhelming evidence - as the court thought - stand alone. The appellants had a permanent considered place of abode. Moreover, these aspects. was serious. This was a legitimate consideration. the that the accused will evade trial. The court refused bail because The court below never excluded or there were sureties. other on Bail should could not, even if there It, however, a) (i) of the Guidelines on Bail a c ourt should of the offence against family, community or The court below never, which is likely on this head, considered of the the nature and the severity be convicted to be imposed should the accused on Bail; the emotional, to the place at which he or she is to be tried (Part 2, rule 4 (a) (v) ( vi) the assets of the Guidelines punishment him or her (Part 2, rule 4 (a) (iv) of the Guidelines ties of the accused occupational of the Guidelines on Bail); (Part 2, rule 4 (a) (vi) accused which Guidelines bail which may be fixed, Guidelines she flee across (a)(ix) of the Guidelines opinion of the Republic on Bail); or other factors, have been taken into account. if any, to which the accused can afford inducing the extradition are situated by the (Part 2, rule 4 (a) (vii) of the to forfeit the amount of him or her to jump bail (Part 2, rule 4 (a) (viii) of the he or should could readily (Part 2, rule 4 to evade his or her trial which in the held by the accused on Bail); of the accused in an attempt may enable him or her to leave the country the extent, thereby and where such assets the principle, of the court should concerning be affected the borders on Bail); on Bail); whether the means and travel documents held The court below, equally never considered to influence that the likelihood or intimidate never considered witnesses or to conceal that the accused, if he or or was the fact that the accused him which they may bring against had already made the witnesses on Bail); of the Guidelines the relationship to which they could be influenced or against the investigation whether and agreed and with the evidence whether on Bail); (Part 2, rule 4 (b)(ii) witnesses and the extent of the Guidelines of witnesses on bail, will attempt The court below, therefore, to testify with the various (Part 2, rule 4 (b )(iii) had already and enforceable were likely to evidentiary she were released evidence. destroy familiar with the identity or her (Part 2, rule 4 (b )(i) of the Guidelines statements of the accused intimidated the accused effective witnesses had access of the Guidelines of destroyed it to be false, proceedings principle bail conditions to be (Part 2, rule 4 (b)(v) (Part 2, rule 4 (b)(viii) material which (Part 2, rule 4 (b )(vii) false information which in the opinion been completed of the court should supplied the ease with which evidentiary of the Guidelines of the Guidelines is to be presented on Bail); on Bail); on Bail); (Part 2, rule 4 (b )(iv) of the Guidelines prohibiting how on Bail); and the accused communication between of the Guidelines on Bail); at his or her trial material whether (Part 2, rule 4 (b )(vi) could have been concealed the accused the fact that the accused, knowing at the time of his or her arrest or during the bail or any other factor on this on Bail); be taken into account. The court below never considered the principle that the accused, i or any particular person or will commit an offence f released o n bail, of the community consider the degree of violence towards other implicit would endanger the safety (Part 2, rule 4 ( c) of the Guidelines on Bail). The court in considering applicable, accused (Part 2, rule 4 ( c) (i) of the Guidelines on Bail). The court below, however, never took into account if the accused had made any threat of violence the Guidelines on Bail); if the accused persons rule 4 (c) (iii) of the Bail Guidelines) past (Part 2, rule 4 (c)(iv) of the Guidelines on Bail); principle in the to violence or any other factor which under this this principle in the charge against the (Part 2, rule 4 ( c )(ii) of any person (Part 2, of the court should have been taken into account. ; the accused persons had any disposition had any resentment against in the opinion to any person may, where under which the offence was committed of the accused will disturb the public order this principle the court may consider Part 2, rule 4 (b) of the Guidelines on Bail that in of the accused was likely to induce a sense of shock or outrage in the where the offence was committed, and whether the shock or outrage in the of the and whether the shock or outrage that the release peace or security. In considering or the circumstances The court below never considered circumstances, the likelihood special or undermine the public whether the nature of the offence was such that the release community community where the offence was committed, community could, were the accused persons on Bail). by their release because security accused. The court below, however, circumstances for the application Guidelines on Bail. The court, however, never considered of the principle of Part 2, rule 4 ( c) (iii) of the Bail Guidelines, would be undermined among members of the public or jeopardize on Bail) undermined. to whether the sense of peace and of the by the release there were special to be released whether (Part 2, rule 4 ( d)(i) of the Guidelines the safety of the accused persons was of the as envisaged in Part 2, ·rule 4 ( d) (iii) overlooked considering whether (part 2, rule 4 ( c) (ii) of the Guidelines There is reference, The court below was oblivious to that, as a matter of principle, it was supposed to do a personal in custody were likely the prejudice to suffer if they were to be for which the appellants were already in custody since arrest (Part 2, rule 6 (a) of (part 2, rule 6 of the Guidelines on Bail). The court b act, weighing the interests of justice against the right of the appellants the appellants balancing freedom and, specifically, detained (a) the period the Guidelines on Bail); the probable period of trial if the accused is not released on bail (Part 2, rule 6 (b) of the Guidelines for any delay in the disposal or conclusion of the trial and any fault on the part of the accused with regard to such delay (Part 2, rule 6 (c) of the Guidelines preparation may be brought Bail); (e) of the Guidelines on Bail). (Part 2, rule 6 ( d) of the Guidelines by a medical of the or conclusion on Bail); the reason and the state of health of the accused, about by the detention of the accused to the which on or any delay in obtaining of the accused person's practitioner any impediment until the disposal as certified detention (Part 2, rule 6 on Bail); defense legal representation elow, was to consider C C' Court of Appeal, all principles are to be obeyed by prosecutors on Bail, should be considered by the court below to consider or, if the custody time limit had not expired, and factors which, under the of is an error of judgment or improper exercise sitting as a full court, would either allow the appeal Failure Guidelines discretion. The Supreme based on this failure below to have more and better information to exercise the po limits the High Court failed to set the trials for the cases. I cannot even phantom This neglect the detention Where custody time limits are exceeded the court has no discretion discretion detain the accused person. is to further discretion whether person and the further accused person giving bail. It is not mandatory the accuse wer properly. The custody time of an explanation for this. to release the accused on bail - in the sense that The only discretion is to release the accused the accused should be released absolutely beyond the custody time limits. remit the case for to the court person must be released It is just unfortunate on an undertaking that the Registrar to appear with of accused persons in the matter where that and the courts. cannot justify or without sureties. or on the The appeal against the refusal by the court below to grant bail is likely to succeed bail pending appeal. I would, therefore, grant the appellants on the Bail two aspects discussed at length. is granted to consider Criminal Procedure and Evidence Code. on condition that there are four sureties. I remit the case to the judge in the court below with counsel imposing such conditions as are envisaged in section 119 of the Made this 9th day of January 2017' Mwat�A DJ JUSTICE OF APPEAL - - -