Innocent until proven guilty

Tichawana Nyahuma Legal Matters
Criminal law is concerned with offences that are punishable by the State and connected to this is the investigation of crimes and bringing the accused persons to trial. If found guilty at trial, the accused person may be sentenced to perform community service work for a specified number of hours at a stated institution. He may also be ordered to pay a fine or to serve a term of imprisonment or both. However, in practice, this hardly ever happens.

In this contribution, I dissect the aspect of criminal law procedure that follows the arrest of the accused person before the commencement of his trial. That aspect is referred to as bail. There is no doubt that many in our society, particularly victims of crime, are often dismayed when they learn that a certain person accused of committing some very serious offence has, in fact, been granted bail by a court. Denying a person accused of criminal conduct bail is not intended to be some sort of punishment. It is merely to ensure that he attends trial.

Inversely, when an accused person is granted bail, it does not mean that the court does not take the matter seriously but ample facts and evidence would have been placed before the court demonstrating that in all probability, the accused will voluntarily attend his trial.

So upon his arrest and before he is tried and found guilty by a competent court, the accused is only that, the accused. In law, there is a presumption that the accused remains innocent until proven guilty. Bail was conceived as a way of promoting and furthering that presumption.
It is a mechanism that is used by the courts to ensure that a person accused of crime remains with his liberty until after a court actually convicts him of some offence. That the accused is, in fact, facing a very serious offence is not to be used to deny him bail. All that the accused has to show is that despite the offence being viewed as serious or grave, he will nevertheless attend his trial.

Once the court is satisfied, bail will be granted on certain other conditions. The primary consideration in a bail application is whether the accused will attend his trial. In that vein, the court is enjoined to balance the interests of justice against the personal freedom of the accused.

That is why there are countless cases of persons accused of such serious crimes as murder, treason, rape, drug dealing and many others having been granted bail but were eventually tried, convicted and imprisoned. Yet there are persons who have been charged with relatively minor offences such as unlawful entry, assault, theft and the like who have languished in remand prison awaiting trial because the court was not satisfied that if freed on bail, the suspect would voluntarily return to court for his trial.

When entertaining a bail application, the court may not set conditions that are out of the reach of the accused person as that will amount to denying him his freedom.

For instance, if the accused is a gardener who earns only $150 per month was to be required to deposit an amount of $2 000 as a bail condition, then that would equate to opening the door to his freedom and immediately slamming it hard in his face, locking it and throwing the key into the sea.

In short, such an approach will make a mockery of the bail system which will have the effect of eroding the public confidence in the whole administration of justice in our country. Our courts have fortunately always walked on the side of reason as they have constantly matched the means of the accused and the bail conditions that they impose.

There are, however, several factors that may weigh against granting an accused person bail. If the accused was arrested after a man hunt where accused was actually on the run, then it would be completely logical for the court to believe that if released on bail, the accused will abscond.
In a case where the accused was an armed robber who was arrested in the course of his vocation, then chances are high that should such a person be set free on bail, he will escape from the jurisdiction of the court. Such a person is likely to be denied freedom awaiting trial.

In other cases, there may be indications that the accused, if admitted to bail, will temper with evidence or interfere with the witnesses that will testify against him at trial and the court will be disinclined to grant such a person bail. If the court is of the view that if granted bail, the accused is likely to commit similar offences, it will be slow to grant such a person freedom pending trial. There are several other conditions that are too numerous to list here.

When bail has been declined, it does not mean that that person is not entitled to make another application in future. If there are what lawyers refer to as “changed circumstances”, the court is bound to listen to the accused’s pleas for release on bail pending trial.

Changed circumstances are such as where there has been a lengthy intervening period between the date of arrest and the commencement of trial. Where the trial fails to kick off by reason of the prosecution failing to locate certain key witnesses or evidence, then the court might end up with no choice but to allow the bail application. Or where persons are jointly charged, the admission of one of them to bail, may constitute changed circumstances.

Also, if during the course of their investigations, the police stumble upon evidence which tend to exonerate the accused, then that fact may cause the court to finally grant the accused person bail.

These example are not exhaustive, each case ultimately depends upon its own circumstances. However, the fact that there are changed circumstances does not mean that bail then becomes automatic. The court will still look at the application as a whole before it finally comes to a decision.

Accused persons are advised to seek the services of their lawyers when appearing in the criminal court as doing it alone may be sailing too close to the wind. As they say, “he who has himself for a lawyer has a fool for a lawyer”.

The writer is a Harare-based legal practitioner and writes in his personal capacity. Email: [email protected].