Burden of proof in bail applications

The danger of inconsistent legal decisions

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By Shadrack Muyesu

Bail is not a privilege; it is a right.

Unless the Prosecution can demonstrate the existence of compelling reasons for which an accused should not be granted bail, courts have a duty to grant bail. It is immaterial that the accused gave proper reasons in their bail application. It is also immaterial that they applied to be granted bail in the first place. Where an accused person has not applied for bail, the Court, acting on its own motion, has a duty to not only inform them of this right, but to also grant bail on reasonable terms.

The right is based on the notion that one is innocent until proven guilty, and is provided for under Article 49 (2) (h) of the Constitution of Kenya, 2010 as well as Section 123 of the Criminal Procedure Rules. The import of this is that all offences are now bailable. It also means that, in the case of bail pending trial, the legal burden of proof lies on the Prosecution to establish the existence of compelling reasons that would justify the denial of bail, or the imposition of suitable bail terms and conditions.

While this seems settled, problems have arisen in that, not only are there conflicting positions on the standard of proof required, but also the manner of discharging the burden (of proof) remains a mystery. Perhaps inadvertently, some courts have also tended to shift the legal burden.

Burden of proof

Where the Prosecution alleges that an accused person will interfere with witnesses, for instance, should it prove this allegation on a balance of probabilities or beyond reasonable doubt, to persuade the Court? And what form of evidence should the Prosecution present to persuade the courts of the existence of compelling reasons? Although some courts insist that the Prosecution must produce an affidavit sworn by the investigating officer, others do not while others still, in addition to an affidavit, require cogent, strong and specific evidence from the Prosecution.

‘Job Kenyanya Musoni v Republic’ [2012] eKLR is one matter in which the court held affidavit evidence to be of particular importance. But first, in regard to the legal burden, the Court applied itself in the following manner:

Any person accused of committing any criminal offence is entitled to be admitted to bail on reasonable conditions subject only to the existence of compelling reasons. It is trite law that a party alleging the existence of certain facts has the burden of proving that such facts do in fact exist. The law is that he who alleges must prove. Where, as in the present case, the prosecution is opposed to the release of an accused person on bail claiming that there are compelling reasons to justify denial of bail, it is the duty of the Prosecution to prove on a balance of probabilities that such compelling reasons do in fact exist to warrant the exercise of the court’s discretion against an accused person by denying him his constitutional right to bail. The burden to prove the existence of compelling reasons rests on the prosecution and not on the accused person.

Let me state at this point that it has been held in numerous decisions of this court that, in deciding whether or not to admit an accused person to bail, the main or primary consideration that a court must have in mind is whether or not the accused will voluntarily and readily attend his trial and that he will not abscond. If the Prosecution is able to demonstrate to the satisfaction of the court that if released on bail, there is a real danger or risk that an accused person will jump bail and fail to turn up for his trial, then the Prosecution will have established the existence of a compelling reason to justify denial of bail. Similarly, if there is proof that if admitted to bail, an accused person will interfere with witnesses, denial of bond/bail would in my view be justified.

On the evidence to be tendered, the learned judge proceeded as follows:

It is however worth noting that the Prosecution did not avail the said affidavit (sworn by the Investigating Officer) to this court for the court to confirm for itself the depositions therein, and did not file a replying affidavit to tender any evidence in its possession to prove its claim that the accused had jumped bail in another case from which the court would have been able to draw an inference that if granted bail in the current case the accused was likely to abscond.

As matters now stand, the State has not tendered any evidence by, for example, exhibiting a warrant of arrest or copies of proceedings in the lower court to prove that accused has indeed jumped bail in a criminal case filed at the Makadara Law Courts. Counsel for the accused appeared to dispute this claim by the State when he submitted that accused was in fact on bail in the case facing him at Makadara Law Courts.

Mere allegations cannot suffice. In order to satisfy the court that accused is a flight risk, the State must tender tangible evidence to substantiate its claim that accused has previously jumped bail in another case. The State has failed to do so in this case.

Evidential burden

The rule that the Prosecution has a duty to prove its case on a balance of probabilities has several implications. The first, as may be seen from the above cited decision, is that the Prosecution only needs to show that it is probable that, if released, the accused will jump bail and that it is therefore in the interest of justice that they are held in custody. Secondly, the Prosecution will also need to prove the existence of a strong case against the accused. In other words, they must show that there is a fair chance, on the basis of the evidence available, that the accused will be convicted at full trial. While the Court does not apply itself fully to matter at the application stage, it is very unlikely that it will deny an accused person bail when the case against them is obviously weak.   Finally and most importantly, the rule implies an evidentiary burden that keeps shifting throughout the hearing of the bail application. This was the position taken by the Court in ‘Nkambule v S’ (A134/2013) [2013] ZAGPJHC 112.

The facts of this case are as follows:

The appellants were accused of robbing the complainants – a man, his wife and their child. Some four days later, the complainant saw a person who he identified as one of the appellants. He thereafter, took the police to where appellant resides leading to his arrest. In the initial bail application, appellant denied in an affidavit handed in to support his bail bid that he was one of the two alleged robbers. This was supported by an affidavit from his landlord to the effect that he was at the relevant time and on the date in question at home, and never left home until the next day. In opposing bail, the State presented a sworn statement by the Arresting Officer detailing the circumstances under which the appellant was arrested as summarised above.

In addition, the State handed in a statement from the Investigating Officer which suggested that the complainants feared for their lives. From the arresting officer’s statement it was clear that the appellant’s premises were searched but nothing connecting him to the crimes in issue was found. In its closing argument, the State had admitted that an identity parade involving the other victims was still outstanding and therefore that it was necessary the appellants be detained so that they may aid investigations.

The trial court denied bail in the following terms:

The allegations against the accused is a serious one. Even though the issue of identification has been raised by the defence, this court is not charged with consideration of such since it has to decide this obligation on the balance of probabilities not beyond any reasonable doubt, and the finding of the Court is that no exceptional circumstances exits (sic) that warrant that the accused that the accused be released on bail because of the likelihood that the accused if he were to be released on bail will endanger the safety of the complainant or other state witnesses.

In reversing this decision, the South Gauteng High Court in Johannesburg ruled that the trial court had erred in denying bail on the basis of a very weak prima facie case. In its considered opinion, the Court was under obligation to examine the totality of the circumstances when applying itself to questions of bail. In this case, as was also the case in ‘Lukwe and Another v S’ (CA&R64/2014) [2014] ZAECGHC 41 a weak prima facie case was considered an exceptional circumstance that could justify the grant of bail.

Although oppositely worded, the phrase “exceptional circumstances” under Schedule Six of the Criminal Procedure Act No. 51 of South Africa serves the same purpose as “compelling reasons” under Article 49 (1) (f) of the Constitution. In Kenyan courts “compelling reasons” have been defined to mean reasons that are forcefully convincing to persuade the Court to believe that something is true (See Stella Mutuku J in ‘Republic -Vs- Mohamed Hagar Abdirahman & Another’ (2012) eKLR).

Evidentiary burden is discharged as follows: The accused will first apply for bail. As mentioned earlier, such an application need not be supported by evidence as it merely invokes a freely given constitutional right. The Prosecution, in opposing the application, will raise a prima facie case, to which the accused is under obligation to respond. In so replying, they are required to tell an alternative story and produce evidence showing the Court that Prosecution’s version is improbable. Failure to respond to a prima facie case comes with the risk of the application will be denied. As was stated in ‘S v Mathebula’ a state case supposed in advance to be frail may nevertheless sustain proof beyond a reasonable doubt when put to the test. In order successfully to challenge the merits of such a case in bail proceedings an applicant needs to go further, and prove, on a balance of probability, that he will be acquitted of the charge.

Principles to be considered

The following principles should guide the Court when deciding a bail application. Among others, it’s important that it carries in mind the right of the accused to be presumed innocent; the accused’s right to liberty; obligation to attend court; the right to reasonable bail and bond terms; and the principle that bail determination must balance the rights of the accused persons and the interest of justice and considerations of the rights of the victims.

Furthermore, the Court should bear in mind the nature of the offence; the strength of the Prosecution’s case; the character of the accused and antecedents; failure by the accused to observe previous bail or bond terms; witness interference; protection of the victim; relationship between the accused and the potential witness(es); whether the accused is a child offender; whether the accused is a flight risk; if the accused is gainfully employed; public order; peace security; and whether there is need for the protection of accused person. These are codified in law and have been accepted vide a number of decisions.

Interfering with witnesses

In ‘Rep v Dwight Sagaray & others’ High Court Criminal Case No. 61 of 2012, on the evidence that the prosecution needed to adduce in order to persuade the court that the accused was likely to interfere with witnesses, R. Korir, J. stated thus:

For the prosecution to succeed in persuading the Court on this criteria (of interference), it must place material before the Court which demonstrates actual or perceived interference. It must show the Court, for example, the existence of a threat or threats to witnesses; direct or indirect incriminating communication between the accused and witnesses; close familial relationship between the accused and witnesses among others…, at least some facts must be placed before court otherwise it is asking the Court to speculate.

Further, in ‘Republic v Joktan Manyende & others’ [2012] eKLR, Gikonyo, J. stated:

Where there is evidence that a person is accosted, physically or otherwise, by an accused person in the case where the person is a witness, it suffices to prove that the accused did act(s) tending or intended to interfere with a witness. The Court is then entitled, if not bound, to infer that the intention of the accused in accosting the witness had been to dissuade the witness from giving evidence. Threats or improper approaches to witnesses, although not visibly manifest, as long as they are aimed at influencing or compromising or terrifying a witness either not give evidence, or to give skewed evidence, amount to interference with witnesses; an impediment to or perversion of the course of justice.

All that the law requires is that there is interference in the sense of influencing or compromising or inducing or terrifying or doing such other acts to a witness with the aim that the witness will not give evidence, or will give particular evidence or in a particular manner. Interference with witnesses covers a wide range; it can be immediately on commission of the offence, during investigations or at inception of the criminal charge in court or during the trial, and can be committed by any person including the accused, witnesses or other persons. The descriptors of the kind of acts which amount to interference with witnesses are varied and numerous but it is the Court which decides in the circumstances of each case if the interference is aimed at impeding or perverting the course of justice, and if it is so found, it is a justifiable reason to limit the right to liberty of the accused.

Similarly, in ‘Republic v Richard David Alden’ [2016] eKLR Lesiit, J. held that mere relationship, especially one which is not filial, is not sufficient to prove likelihood of interference. There is need of further proof that would demonstrate a real existence of a likelihood that the witnesses have or are likely to be interfered with – for instance, the evidence that the two witnesses will remain in accused employment.

On whether the accused is a flight risk, Lesiit observed that the fact the accused (in the matter) had a job abroad was not proof accused was fleeing the country. Neither could it be used as evidence of an intention to absent himself from court’s jurisdiction for purposes of the trial.

Public interest

In ‘Republic v Fredrick Ole Leliman & 4 others’ [2016] eKLR Lesiit, J opined as follows:

Undermining the criminal justice system includes instances where there is a likelihood that witnesses may be interfered with or intimidated; the likelihood that accused may interfere with the evidence; or may endanger an individual or individuals or the public at large; likelihood the accused may commit other offences. In this instance, where such interferences may occur, the Court has to determine whether the integrity of the criminal process and the evidence may be preserved by attaching stringent terms to the bond or bail terms; or whether they may not be guaranteed in which case the Court may find that it is necessary to subject the accused to pre-trial detention. In order to determine the public interest question, the Prosecution and through them the investigators have a duty to avail evidence in order to convince the Court that there are compelling reasons to deny the accused bail.

The failure of justice in Okoth Obado

Courts have similarly applied themselves to other grounds of opposing bail. Although the decisions are not cited here, the legal principle to be picked from most of them is that in objections to bail, courts will only be moved by tangible evidence and not mere suspicion.

Although courts are supposed to be guided by these factors in their bail decision-making, they do not always explain their decisions. This leads, for example, to situations in which one magistrate denies bail while another allows bail in similar circumstances. Over the years, there have been quite a few instances where courts have denied accused persons bail on the ground only that they face grave charges, without considering other factors. The recent decision by Lady Justice Jessie Lesiit in ‘Republic v Zacharia Okoth Obado’ [2018] eKLR suffices.

In this matter, inter alia, Lesiit J did not consider the Prosecution’s failure to provide witness statements, documentary and other evidence as a compelling reason to warrant the grant of bail. In her considered opinion at Paragraph 25, failure to provide such important evidences could not be interpreted to mean that the Prosecution had no case at all, unless good grounds existed which could lead to such a conclusion. At Paragraph 34, she also took cognizance of ongoing investigations as a ground to warrant the denial of bail. Whether there was better of lack of preparation and inability to proceed than the absence of crucial documents is crucial that perhaps deserves another forum.

Her reasoning on the whole question of the likelihood of interference with the case, investigations and witnesses, the absence of tangible evidence notwithstanding, is even more curious. Herein, the learned Judge applied herself as follows:

I find it difficult to address that point at this stage. The nature of the case has been changing, and additional persons are being brought and charged with the same offence. Interference with the case is not constructively by meddling with the witnesses in a case, it can also be indirect say by releasing someone facing the same charge while others are being arrested.

In doing so she inadvertently elevated the need to conduct investigations as a reason for denying bail. Considered in toto, her decision means that an accused person could be detained indefinitely to allow the Prosecution to gather evidence for the weakest of prima facie cases.

Such a decision can only be bad in law. (

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