Magistrates need to be reminded of the onerous duty cast upon them in applications of this nature, particularly where the accused are unrepresented as was the case in this matter. The words of REYNOLDS J in the case of Attorney General v Phiri 1987 (2) ZLR 33 (HC)…, are worth recounting. In that case, the learned Judge had occasion to remark that:

“The fundamental principle governing the Court's approach to applications for bail is that of upholding the interests of justice. This requires the Court, as expeditiously as possible, to fulfill its function of safeguarding the liberty of the individual, while at the same time protecting the administration of justice and the reasonable requirements of the State.”

In our law, entitlement to bail is regulated by section 117 of the Criminal Procedure and Evidence Act [Chapter 9:07], particularly subsections (1) and (2), which provide as follows:

"(1) Subject to this section and section 32, a person who is in custody in respect of an offence, shall be entitled to be released on bail at any time after he or she has appeared in court on a charge and before sentence is imposed, unless the court finds that it is in the interests of justice that he or she should be detained in custody.

(2) The refusal to grant bail and the detention of an accused in custody shall be in the interests of justice, where one or more of the following grounds are established:

(a) Where there is likelihood that the accused, if he or she was released on bail, will -

(i) Endanger the safety of the public or any particular person or will commit an offence referred to in the first schedule; or

(ii) Not stand his or her trial or appear to receive sentence; or

(iii) Attempt to influence or intimidate witnesses or to conceal or destroy evidence; or

(iv) Undermine or jeopardize the objectives or proper functioning of the criminal justice system including the bail system; or

The applicant applied to this court for bail pending trial.

The respondent opposed the application and raised a point in limine contending that the application is not properly before this court as the applicant has not been formally placed on remand.

The respondent contended that on 24 December 2008, the applicant appeared before a magistrate..., for an initial remand. At the applicant's insistence, the initial remand proceedings were deferred pending the outcome of an application for release of the applicant that was pending in the High Court, and was due to be heard on the same day. The High Court ordered that the applicant appears before a magistrate. On 30 December 2008, the applicant was taken before a magistrate for the initial remand proceedings to be conducted. The proceedings were further deferred pending another application before the High Court for her release, and a request for medical attention. This was followed by yet another urgent chamber application in the Supreme Court..., seeking an order to depart from the Supreme Court Rules in regard to the set down of a Constitutional Court application made in terms of section 24(1) of the Constitution of Zimbabwe (an application for the hearing of the court application on an urgent basis). The CHIEF JUSTICE dismissed the application...,. An application for referral to the Supreme Court was subsequently made before a magistrate on 15 January 2009 who then referred the matter to the Supreme Court in terms of section 24(2) of the Constitution of Zimbabwe.

The respondent argued that the initial remand proceedings were never conducted as the applicant contended that the constitutional issues she was taking before the Supreme Court be resolved first.

As far as the respondent is concerned, it has always wanted to proceed with the initial remand but has met with resistance by the applicant. As the applicant has not been placed on remand she cannot apply for bail at this stage. The applicant can only apply for bail when she has been formally placed on remand.

The applicant, on the other hand, argued that she is properly before this court, and that the applicant can, in terms of both Constitutional, and statutory provisions apply for bail in this court.

In his argument, counsel for the applicant submitted that the question before this court is whether an accused person who has not been formally remanded can apply for bail in the High Court.

He argued that the application is properly before this court. In that regard, he referred to section 116 of the Criminal Procedure and Evidence Act [Chapter 9:07]. Section 116 of the Criminal Procedure and Evidence Act [Chapter 9:07] deals with the power to admit bail and section 117 of the Criminal Procedure and Evidence Act [Chapter 9:07] deals with the entitlement to bail.

In casu, the applicant was arrested and detained on certain allegations.

For the court to place her on remand, the court must be satisfied that there exists reasonable suspicion that she committed the offence in question. The court can only assess this if the State is allowed to set the criminal trial in motion. Initial remand is the process that initiates the criminal trial. To grant bail without first ascertaining whether there is legal justification for the accused to be placed on remand would be incompetent.

This is the procedure I am sure the applicant's legal practitioners are aware of, and if that had been done, they would have curtailed the proceedings remarkably. The manner in which the applicant's legal practitioners chose to act leaves one wondering whether it was for the applicant's benefit or not.

The fact that the applicant's legal practitioners were provided with a copy of Form 242 (Request for Remand) containing the allegations against the applicant did not mean that the court before which she appeared should not be apprised of the reasons for bringing the applicant before it, and to then decide whether, from the facts placed before it, there was legal justification for her to be placed on remand.

As discernible from S v Poli 1987 (2) ZLR 30, an unconditional, or conditional, release of the applicant on remand, without ascertaining whether there is reasonable suspicion that she had, or was about to, commit an offence, would be incompetent. The proper procedure is to firstly found the basis of placing her on remand, and then proceed to consider the desirability of releasing her on bail. To seek to place her on bail before finding that there is legal justification for her to be placed on remand is putting the cart before the horse. What the applicant is, in fact, saying to the State is that “having brought me to court, and before you can tell the court why you have brought me, I must be granted bail.” And to the court it is that “before you can hear why I have been brought before you, and assess whether there is legal justification for my arrest, detention and remand, grant me bail.” Surely this would be improper for any court to do.

Whilst I am mindful of the fundamental right to liberty, and that courts should lean in favour of granting bail, I am of the firm view that this could have been achieved much faster by the applicant following proper procedure from inception.

I did not hear the applicant's counsel to advance any cogent reasons for avoiding the proper procedure...,. I also did not hear counsel to submit that the applicant would have suffered any prejudice in any way had the initial remand proceedings been conducted...,.

The applicant should go through the initial remand hearing so that the magistrate before whom she appears determines whether there is legal justification to place her on remand. The magistrate's decision is crucial to the applicant's next course of action.

From the submissions by counsel for both parties, it is apparent that counsel are not agreed on the proper interpretation of sections 116 and 117 of the Criminal Procedure and Evidence Act [Chapter 9:07].

The basic issue being: 'when is it deemed one has appeared in court on a charge to invoke one's entitlement to apply for bail' In other words, what constitutes appearing in court on a charge for purposes of applying for bail pending trial?

Counsel for the respondent contended that that section must be construed to mean that when one appears in court the charge is read out and one is informed of why they have been brought to court. When one has been informed of the allegations against them in court, and before a magistrate or judge, only then will they be entitled to apply for bail pending trial.

The applicant, on the other hand, argued that the mere fact of appearing in court, coupled with the fact that the applicant had already been informed of the charge by the police that sufficed for the purposes of applying for bail pending trial. In..., his written submissions, counsel for the applicant succinctly put it thus:

“The applicant appeared in court on a charge that was put to her by the investigating officer, and is in custody, and to that end she is properly before this court, and her application must be entertained.”

In a bid to convince the court that that was the correct construction, the applicant's counsel referred to two cases, namely: Inre Mlambo 1991 (2) ZLR 339 (SC) and Shumba v Attorney General 1997 (1) 589 (S).

A reading of those two cases shows that they dealt with the issue of when it is deemed one has been charged in the context of section 18(2) of the Constitution of Zimbabwe. It was the term “charged” for purposes of determining reasonableness of the delay in prosecution.

In Inre Mlambo 1991 (2) ZLR 339 (SC) ..., GUBBAY CJ said that:

“The time frame to be considered starts to run from the moment a person is charged. The key word is “charged”. What does it mean in the context of section 18(2)? Does the provision envisage only the situation where the accused is called upon in court to plead to a formal charge? To my mind, such a restrictive construction has the effect of rendering the protection almost nugatory. It squares more with an arraingnment...,. I have no hesitation in holding that the time frame is designed to relate far more to the period prior to the commencement of the hearing or trial than to whatever period may elapse after the accused has tendered plea. This meaning is wholly consonant with the rationale of section 18(2) – that the charge, from which the reasonable time enquiry begins, must correspond with the start of impairment of the individual's interests in the liberty and security of his person.”

It was in this context that he went on to approve that the word “charged” may be defined as the official notification given to an individual by the (appropriate) competent authority of an allegation that he has committed a criminal offence.

The applicants..., applied for bail pending trial.

The respondent opposed the application, and raised a point in limine, contending that the application was not properly before this court as the applicants had not been formally placed on remand.

The basic facts were that the applicants were taken to the Magistrates' Court on 24 December 2008. The applicants' challenged their appearance in court, before remand proceedings were conducted, on the basis that they stood released by virtue of an order issued by JUSTICE HUNGWE on 11 November 2008...,. On 25 December 2008, JUSTICE OMERJEE had also granted an order, at the instance of the applicants, basically enforcing HUNGWE J's order of 11 November 2008.

The respondent appealed against the order by JUSTICE OMERJEE.

The respondent, in the meantime, was pressing for the applicants to be placed on formal remand.

Counsel for the applicants contended that this application is properly before this court.

He argued that an application for bail can be made at any time after an accused has appeared in court on a charge. In this regard, he referred to sections 116 and 117(1) of the Criminal Procedure and Evidence Act [Chapter 9:07]. He also referred to section 117A of the Criminal Procedure and Evidence Act [Chapter 9:07] which states that –

“Subject to the proviso to section 116, an accused person may, at any time apply verbally, or in writing, to the judge, or magistrate, before whom he, or she, is appearing, to be admitted to bail immediately, or may make such application in writing to a judge, or magistrate.”  

It was apparent that he was alive to the fact that the accused had not been informed of the charges in court. To confirm this, in..., his submissions he stated that:

“It is important to note that sections 116, 117, and 117A of the Act aforementioned do not make it a condition precedent to an application for bail that the accused person must have been formally placed on remand, or formally advised by the court of the charges he, or she, is facing...,.”  

The question that arises is: when is it deemed one has appeared in court on a charge to invoke one's entitlement to apply for bail? In other words what constitutes appearing in court on a charge for purposes of applying for bail pending trial?

Counsel for the respondent contended that the sections in question must be construed to mean that when one appears in court the charge is read out, and he is informed of why he has been brought to court, and the presiding magistrate, or judge, is also informed of the same. Only then will one be said to have appeared in court on a charge entitling one to apply for bail.

The applicants, on the other hand, maintained that the mere appearance in court, coupled with the fact that the applicants had already been informed of the charge by the police that sufficed for the purposes of applying for bail pending trial.

It is apparent..., that before the court can consider the issue of bail pending trial, the State ought to establish that there is a reasonable suspicion that the accused has committed, or was about to commit, a criminal offence. It is only when such legal justification has been established, to the satisfaction of the court, that the issue of release of the accused, unconditionally, or on conditions, can be entertained. To grant bail, or to even consider the issue of bail, without first ascertaining whether there is legal justification to place the accused on remand, would be incompetent.

The initial remand process must be undertaken to ascertain the justification for placing the applicants on remand.

In order to determine whether or not to grant an applicant bail, the courts are guided by the general policy.

In our law, an accused person is presumed innocent until proven guilty by a court of competent jurisdiction.

Where a person applies for bail, he has not yet been tried and the allegations against him have not yet been proven.

Pre-trial incarceration courts across the presumption of innocence, as a person is being incarcerated before trial despite the fact that he may be found not guilty when he is eventually tried.

It appears to me that the rationale behind section 117(1) of the Criminal Procedure & Evidence Act [Chapter 9:07] is that whenever the interests of justice will not be prejudiced by pre-trial release, the courts should lean in favour of liberty and grant release on bail, with or without additional conditions.

Section 117(1) of the Criminal Procedure & Evidence Act [Chapter 9:07] establishes a general entitlement to bail unless the court finds that it is in the interests of justice that the accused be detained in custody pending trial. It reads –

“Subject to this section, and s22, a person who is in custody in respect of an offence shall be entitled to be released on bail at any time after he, or she, has appeared in court on a charge, and before sentence is imposed, unless the court finds that it is in the interests of justice that he or she should be detained in custody.”

In my respectful view, by granting an entitlement to bail unless the interests of justice require that bail not be granted, the legislature has placed an onus on the State to establish that there are clear grounds justifying the refusal of bail.

In the South African case of S v Maki & Others (1) 1994 (2) SACR B30(F), the court stated that the onus is on the State to show, on a balance of probabilities, that the applicant's further detention is necessary for the proper administration of justice.

I am fortified in this regard by the reasoning expressed in the following cases:

(i) S v Chiadzwa 1988 (2) ZLR 19 (S).

(ii) S v Hussay 1991 (2) ZLR 261 (H).

(iii) S v Ndlovu 2001 (2) ZLR 261 (H).

(iv) S v Ncube 2001 (2) ZLR 556 (S).

(v) S v Biti  2002 (1) ZLR 115 (H).

The court is enjoined to have regard of the provisions of section 117(3)(b) of the Criminal Procedure and Evidence Act [Chapter 9:07] which reads thus -

“Section 117 Entitlement to Bail

(3) ...,.

(b) ..., the court shall take into account -

(i) ...,.;

(ii) ...,.;

(iii) The accused's means of travel, and his, or her, possession of, or access to, travel documents;

(iv) The nature, and gravity, of the offence, or the nature, and gravity, of the likely penalty therefore;

(v) The strength of the case for the prosecution, and the corresponding incentive of the accused to flee;

(vi) ...,.;

(vii) Any other factors which, in the opinion of the court, should be taken into account.”

The fact that the applicant is facing a serious charge admits of no doubt.

The question then is, are there one or more factors which should be considered in addition to the seriousness of the charge?

It is the respondent's view that he is likely to abscond.

The applicant, through his legal practitioners, argued that he will not abscond as he is prepared to surrender his travel documents, and undertake to abide by any reporting conditions imposed by the court. It is, further, his argument that it is not enough for the respondent to make a bold assertion that he is likely to abscond when he has not taken steps towards that direction.

While the applicant's argument would, under normal circumstances, hold water, it is well known that people in Zimbabwe are capable of crossing our borders without either adequate documents, or no documents at all. Therefore, that argument is not persuasive in the circumstances. In fact, the fact that people often travel without travel documents is an additional factor to be taken into account in determining this application in the circumstances.  

The cardinal principle in our legal system is the presumption of innocence until proven guilty.

This presumption operates throughout until the suspect is convicted by a competent court upon proof beyond reasonable doubt. While guarding against the danger of releasing a suspect from custody may result in defeating the proper administration of justice, courts should always bear in mind that there is always a heavy weight on the other side of the see-saw, so to speak, being the presumption of innocence. It, therefore, stands to reason that the courts should not lightly deny a suspect his/her liberty.

The liberty of an individual is sacrosanct. It should therefore not be taken away from him/her with ease.

As stated above, the courts should be more inclined to the liberty of a suspect than deprivation thereof, where necessary.

Judicial officers are urged to apply their minds to the facts, and take cognizance of the penalties imposed by the legislature in certain cases, as these give an indication of how serious the offence is viewed by society.

In determining this application, the court should not rely on his mere statement that he will stand trial, but must carefully examine the circumstances of the case. In S v Hudson 1980 (4) SA 145..., THIRION J stated –

The Investigating Officer opposed bail in this matter but has been overruled by the respondent.

It is trite that the procedure of bail is meant to strike a balance between the rights of the individual to his or her freedom, and the interests of the due administration of justice.

While the right of the individual to his or her freedom is easy to identify and give content to, the interests of the due administration of justice, on the other hand, are not easy to define or give expression to as these encompass a number of separate but interrelated factors. The law has attempted, in section 117(2) of the Criminal Procedure and Evidence Act [Chapter 9:07] to codify the considerations that the court must take into account in assessing whether or not the interests of justice will be defeated if the applicant is allowed bail. The list is not intended to be exhaustive, and is, indeed, not exhaustive.

The Law

Section 117(2) of the Criminal Procedure and Evidence Act [Chapter 9:07] sets out in detail the grounds upon which a judge may refuse to grant bail to an accused. These include-

(i)Where there is a likelihood that the accused will not stand trial.

(ii) Attempt to influence or intimidate witnesses or to conceal or destroy evidence.

These grounds have been expanded on in case law.

Taking into account the factors contained in Section 117 of the Criminal Procedure and Evidence Act [Chapter 9:07], the court must endeavour to strike a balance between the protection of the liberty of the individual and the administration of justice.

The administration of justice may be prejudiced if the accused person does not stand trial, commits other offences while on bail, or interferes with witnesses. The usual barometer to determine the probability of abscondment is where, owing to the strength of the evidence standing against him, the accused person is likely to abscond. S v Malunjwa HB34-03.

In terms of section 117 of the Criminal Procedure and Evidence Act [Chapter 9:07], an accused person is entitled to bail pending trial unless it is in the interest of justice that he or she should be detained in custody.

Section 117(2) of the Criminal Procedure and Evidence Act [Chapter 9:07] provides that it shall be in the interest of justice to deny bail where it is established that there is a likelihood that if granted bail, the accused will endanger public safety, will not stand trial, will attempt to influence witnesses or will undermine the proper functioning of the justice system.

It is not necessary to discuss all the other factors given that the State is relying on the ground that the respondent will not stand trial owing to the seriousness of the charge.

I do not agree with the claim that the magistrate did not consider the seriousness of the offence. She actually did and came to the conclusion that it is not a good ground to deny bail. She went on to say that, in any event, contravening section 31 of the Criminal Law Code is not so serious an offence as to deny an accused bail. In fact, the penalty for breaching that section is a fine up to or exceeding level 14 or imprisonment for a period not exceeding 20 years or both.

It is trite law that where a statute provides for a penalty of a fine and an alternative penalty of imprisonment, the sentencing court must give effect first and foremost to the sentence of a fine.

Accordingly, I do not agree that there was any misdirection on the part of the magistrate in that regard. 

Under section 117(3)(b) of the Criminal Procedure and Evidence Act [Chapter 9:07] the following factors have to be considered in the determination of bail:

(i) The ties of the accused to the place of trial.

(ii) The accused's means of travel and his/her possession of or access to travel documents.

(iii) The nature and gravity of the likely penalty therefore…,.

The other factor relied on by the respondent is that the applicant is likely to abscond as he is a South African resident.

While this may be a possibility, the question of abscondment should be looked at very carefully as it can result in a suspect failing to attend court which can no doubt frustrate the otherwise proper administration of justice.

Where a suspect is facing a serious charge, which upon conviction is likely to be sentenced to a lengthy prison term, the temptation to abscond is quite high. This is the general approach. See S v Nichas 1977 (1) SA 257 (C). This, however, does not mean that bail should not be granted in a serious case. See R v Mtatsala and Another 1948 (2) SA 585. The seriousness of the charge must be taken into account with regards to other factors. The strength or weakness of the State case is one such factor. Where the State case is weak, bail should be considered, as failure to do so will be prejudicial to the accused.

In casu…, the identification parade is alleged to have been irregular. If this is proved to be true, that will dent the State case. Therefore, if it is correct, the possibility of the applicant absconding to avoid trial is remote as he will be eager to clear his name.

In an application for bail, the applicant must prove, on a balance of probabilities, that there are facts rendering it unlikely that he will abscond or otherwise interfere with the proper administration of justice. See Leibman v Attorney General 1950 (1)….,. The factors to be considered in the determination of bail where a question of abscondment arises were succinctly dealt with in Aitken and Another v Attorney General 1992 (1) ZLR 249, quoted with approval in S v Jongwe 2002 (2) ZLR 209 (H)…, where CHIDYAUSIKU CJ stated -

“b. That in judging the risk that an accused person would abscond the court should be guided by the following factors:

(i) The nature of the charge and the severity of the punishment likely to be imposed on the accused upon conviction;

(ii) The apparent strength or weaknesses of the State case;

(iii) The accused's ability to reach another country and the absence of extradition facilities from the other countries;

(iv) The accused's previous behaviour;

(v) The credibility of the accused's own assurance of his intention and motivation to remain and stand trial;

d. That the risk of interference with investigation, if alleged, must be well founded and not based on unsubstantiated allegation and suspicion.”

The applicant's averments that he has never used the Beitbridge-Masvingo road and that the identification parade was irregular - which has not been controverted - render, the State's case weak, thereby eliminating the incentive for him to abscond from the court's jurisdiction. The applicant is a Zimbabwean based in South Africa and has a good and responsible job. In addition to this, the applicant voluntarily went to the police station to seek clarification as to why his car had been embargoed. This, to me, is not the behaviour of a guilty mind. This factor cannot be ignored. See S v Jongwe 2002 (2) ZLR 209 (H).

It is a fact that there exists an extradition order between Zimbabwe and South Africa which makes it possible to bring the applicant back to the country should he decide to abscond.

I am, therefore, of the view that the applicant has made a good case for himself for bail and accordingly the following order is made:-

Order

The applicant be and is hereby granted bail on the following conditions that:

(i) He deposits US$200= with the office of the Registrar, High Court, Bulawayo;

(ii) He surrenders his travel documents with the Registrar's Office, High Court, Bulawayo;

(iii) He reports three times a week on Mondays, Wednesday and Fridays at Zimbabwe Republic Police, Nkulumane, Bulawayo between the hours of 6am and 6pm;

(iv) He resides at House Number 108 Nkulumane, Bulawayo until the trial is finalised;

(v) He does not interfere with State witnesses; and

The appellant's grounds of appeal in this matter are that the magistrate misdirected himself by not considering that:-

“(a) The offence the respondents are facing is inherently serious.

(b) Respondents are likely to abscond in the face of the serious charges which will no doubt attract a long term of imprisonment upon conviction.

(c) Respondents will interfere with witnesses and investigations.

(d) Release of respondents will endanger the safety of the community in which the offence was committed.

(e) Release of respondents is likely to trigger severe loss of sense of peace and security and will result in public disorder.”

The appellant prays that the order of the court a quo be set aside and that the respondents remain in custody until the trial is finalised.

The appellant contends that justification for the granting of its prayer is to be found in the fact that there is no indication in the magistrate's written decision that he applied his mind carefully to the concerns and fears raised by the State. The said concerns and fears are said to be well set out in the Request for Remand Form 242 as well as in the affidavit of the Investigating Officer attached thereto.

The Request for Remand Form 242 and the Investigating Officer's affidavit list the following as the reasons for opposing bail, which reasons were placed before the magistrate by the public prosecutor at the bail hearing:·

(i) That the appellants (accused) are facing a serious charge which attracts a custodial sentence of up to 10 (ten) years hence they may abscond in order to avoid a possible conviction and sentence.

(ii) That the appellants are persons of influence in the Nyamaropa area Nyanga, hence they are likely to interfere with witnesses/evidence. 

(iii) That they are likely to commit similar or other offences judging from the way they “courageously and wantonly committed this offence to further their political ends.” 

(iv) That the police are still making frantic efforts to arrest seventy (70) outstanding accused persons and that the release of the respondents may influence or cause the disappearance of the seventy.

The respondents, in opposing this appeal, contend that no misdirection on the part of the magistrate has been shown or proven. They contend that that there is therefore no basis for this court to exercise fresh discretion in this matter. They also contend that the magistrates written decision refers not only the legal principles relied upon but also the facts to which the legal principles were applied.

Besides citing two (2) case authorities, the magistrate's decision reads as follows:-

“The court has put into cognisance both parties' submissions concerning the issue of bail. As the law requires in bail issue, the right to liberty is one of the most fundamental rights and should not be lightly interfered with. The court should lean in favour of protecting the right to liberty unless State established the necessity to deprive one of their liberty pending trial.

In S v Ndlovu 2001 (2) ZLR 261 (H) the court should strike a balance between the interests of society and the liberty of the accused. This accused should stand trial and that there is to be no interference with witnesses. Bail must therefore be granted provided the interests of justice will not be prejudiced.

In S v Kuruneri HH111-04, if the State's fears of that the accused will abscond or interfere with witnesses and the applicants' assurances to the contrary are equally balanced, the presumption of innocence would require the court to lean in favour of the liberty of the person and granted bail.

Reasons for opposition led by the State are that: (1) seriousness of the offence (2) interference with witnesses and that the outstanding perpetrators. (sic). These are not enough to deny one bail basing on the issues of need for accused persons to be given the presumption of innocence before they are tried.

Court's Decision

Bail is granted on the following conditions:-

...,.”

A perusal of the magistrate's written decision shows that the first three paragraphs thereof in effect deal with or refer to legal principles. What might be referred to as or what purports to be reference to the merits of the matter appears only in the fourth paragraph.

In Taruwona and Another v The State HH06-05..., MAKARAU J..., said -

“It is trite, in my view, that when a Judicial Officer decides on an application, he or she must at least refer to that legal principle upon which the decision is based in addition to the facts upon which the legal principle is applied. In the above ruling by the trial magistrate, no legal principle is referred to and the evidence that the claims to have looked at thoroughly is not referred to. It is the lack of these basic features in the ruling by the trial magistrate that, in my view, constitutes the misdirection on his part.”

In casu, the magistrate referred to the legal principles. He did not, however, refer to the evidence, or as he put it, the submissions that he looked at or had regard to in arriving at his decision. He made much generalised statements. As in the Taruwona and Another v The State HH06-05 case this lack of a basic feature in the magistrate's written decision constitutes a misdirection on the part of the magistrate.

I shall deal first with a point in limine which was raised by the respondents' counsel during his address in response to State counsel's submission. It was contended that this appeal is not properly before this court because the High Court (Bail) Rules 1991, envisage service of the written statement referred to in Rule 7(1) of the High Court (Bail) Rules 1991 on the magistrate against whose decision the appeal is made.

It was submitted that there has been no such service and consequently the appeal is not properly before the court. Furthermore; that whilst no Rule specifically requires the appellant to serve on the magistrate this requirement can be inferred from Rule 7(3) of the High Court (Bail) Rules 1991. Rule 7(3) of the High Court (Bail) Rules 1991 states that where practicable, a magistrate on whom a statement has been served shall file with the Registrar his written comments on the appeal at least three hours before the hearing. It was also submitted that Rule 7(3) of the High Court (Bail) Rules 1991 must be read in conjunction with Rule 7(2) of the High Court (Bail) Rules 1991.

The appellant's contention was that there is no such requirement in the Rules for the appellant to serve the written statement upon the magistrate. Furthermore, that in any event, even if there was therein such a requirement, the appellant did comply with it, albeit, the appellant is at this particular stage unable to furnish proof of such service on the magistrate; given the limited time in which they have had to respond to the preliminary issue. It was submitted that if it was given the opportunity, the appellant would be in a position to furnish proof of such service to the court.

Rule 7(1) of the High Court (Bail) Rules 1991 states as follows:

“An appeal by the Attorney-General in terms of paragraph (b) of subsection (1) of section 111A of the Criminal Procedure and Evidence Act [Cap 9:07] shall be noted, within seven days after the magistrate granted bail, by filing with the registrar a written statement setting out -

(a) The name of the person who was granted bail; and

(b) Where the appeal is brought against the decision of a magistrate granting bail to a person -

(i) The offence with which the person is charged; and

(ii) The court by which and the date on which the person was granted bail; and…,.”

Rule 7(2) of the High Court (Bail) Rules 1991 states:

“As soon as possible after the appeal referred to in subrule (1) has been filed -

(a) The appellant's legal practitioner, where the appellant is legally represented; or

(b) The registrar where the appellant is not legally represented;

shall cause a copy of the written statement referred to in subrule (1) to be served on the Attorney-General or his representative.”

It is patently clear that Rule 7(2) of the High Court (Bail) Rules 1991 cannot possibly have any place in appeals by the Attorney-General.

A reading of paragraphs (a) and (b) of Rule 7(2) of the High Court (Bail) Rules 1991 makes it clear that this subrule cannot be referring to the Attorney-General. The inapplicability of this Rule is further confirmed by the requirement for service on the Attorney-General or his representative. The interpretation sought by the respondents would lead to absurdity as the Attorney-General cannot be required to serve the written notice filed in terms of Rule 7(1) of the High Court (Bail) Rules 1991 on himself.

Rule 7(3) of the High Court (Bail) Rules 1991, which the respondents placed much emphasis on, provides as follows:

“Where practicable, a magistrate on whom a statement has been served in terms of subrule (2) shall file with the registrar his written comments on the appeal at least three hours before the hearing of the appeal.” ....,.

Rule 7(3) of the High Court (Bail) Rules 1991 can thus not be read on its own. It is a sequitur to Rule 7(2) of the High Court (Bail) Rules 1991. The written statement which the magistrate is given an opportunity to comment on is a statement which has been served on him in terms of Rule 7(2) of the High Court (Bail) Rules 1991; yet Rule 7(2) of the High Court (Bail) Rules 1991 has no such requirement for the magistrate to be served with the written statement.

Whatever the intention of the draftsperson was in this regard, it is not the role of this court to introduce its own words into the two subrules with a view to making them compliant with procedures to be followed in appeals by the Attorney-General. The two subrules (2) and (3) do not appear to have any place in the matter at hand.

In our law, the onus lies on the applicant to show, on a balance of probabilities, that he is a suitable candidate for admission to bail. See Aitken & Anor v Attorney-General 1992 (1) ZLR 249 (S)…,.; S v Makamba (3) 2004 (1) ZLR 367 (S)…,.

The basic principles for admission to bail were crystallized by CHIDYAUSIKU CJ in S v Jongwe 2002 (2) ZLR 209 (S)…, thus -

“In the case of Aitken & Anor v Attorney-General 1992 (1) ZLR 249 (S) this Court reviewed a long line of cases and laid down the following guiding principles for the determination of bail applications:

(a) That the Supreme Court can only interfere with a High Court decision if there has been a misdirection or irregularity in the High Court or if the judge had exercised his discretion in a manner which was so unreasonable as to vitiate the decision reached.

(b) That when dealing with the matter of bail the court has to strike a balance between the liberty of the accused and the State's need to ensure that the person stands trial and does not interfere with the course of justice.

(c) That the onus is on the accused to show, on a balance of probabilities, why it is in the interests of justice that he should be freed on bail, but that the amount of evidence necessary for him to discharge this onus would vary according to the circumstances of each case.

(d) That in judging the risk that an accused person would abscond the court should be guided by the following factors:

(i) The nature of the charge and the severity of the punishment likely to be imposed on the accused upon conviction;

(ii) The apparent strength or weaknesses of the State case;

(iii) The accused's ability to reach another country and the absence of extradition facilities from the other countries;

(iv) The accused's previous behaviour;

(v) The credibility of the accused's own assurance of his intention and motivation to remain and stand trial;

(vi) That the risk of interference with investigation, if alleged, must be well founded and not based on unsubstantiated allegation and suspicion.”

These principles are set out in more detail in Part IX of the Criminal Procedure and Evidence Act [Chapter 9:07] especially in sections 116 and117….,.

In the present matter, while the applicant averred that he was a suitable candidate for admission to bail, the respondent opposed bail on two grounds. The first was that the applicant was a flight risk and the second was that there existed a real likelihood that he would interfere with State witnesses.

In terms of section 117(1) of the Criminal Procedure and Evidence Act [Chapter 9:07] the courts should, in considering bail applications, lean towards granting bail unless the court finds that it is in the interests of justice that an applicant for bail should be detained in custody. Section 117(1) of the Criminal Procedure and Evidence Act [Chapter 9:07] provides as follows:

“(1) Subject to this section and s32, a person who is in custody in respect of an offence shall be entitled to be released on bail at any time after he or she has appeared in court on a charge and before sentence is imposed unless the court finds that it is in the interests of justice that he or she should be detained in custody.”

In terms of section 117(2) of the Criminal Procedure and Evidence Act [Chapter 9:07] it will be in the interest of justice to keep an accused person in custody:

“(a) Where there is a likelihood that the accused, if he or she were released on bail, will -

(i) Endanger the safety of the public or any particular person or will commit an offence referred to in the First Schedule; or

(ii) Not stand his or her trial or appear to receive sentence; or

(iii) Attempt to influence or intimidate witnesses or to conceal or destroy evidence; or

(iv) Undermine or jeopardise the objectives or proper functioning of the criminal justice system, including the bail system; or

(b) Where, in exceptional circumstances, there is the likelihood that the release of the accused will disturb the public order or undermine public peace or security.”

The use of the word “or” after each subsection means, if the State proves that the applicant for bail can do one or more of the things mentioned in section 117(2)(a) to (b) of the Criminal Procedure and Evidence Act [Chapter 9:07] he can be denied bail. They need not all be proved before a court can find that it is in the interest of justice for an accused to be detained in custody pending his or her trial.

Section 117(1) of the Criminal Procedure and Evidence Act [Chapter 9:07] makes it clear that an accused person is entitled to be released on bail unless the court finds that it is in the interests of justice that he or she should be detained in custody. The detention of an accused person in custody can only be in the interests of justice if one or more of the factors mentioned in section 117(2) of the Criminal Procedure and Evidence Act [Chapter 9:07] is, or are, established against him.

The release of an accused person on bail is aimed at enabling him or her to continue to enjoy his or her liberty, and attend trial from out of custody. It does not mean he or she has no case to answer. On the other hand, the detention of an accused in custody is to secure his or her attendance to stand trial if there are genuine grounds for believing that one or more of the factors mentioned in section 117(2) of the Criminal Procedure and Evidence Act [Chapter 9:07] have been established against him. That is why the seriousness of the charge the accused is facing is not, on its own, enough to deny an accused person bail. In the case of the State v Hussey 1991 (2) ZLR 187…, EBRAHIM JA commented on this issue as follows:

“I do not understand that either the Chiadzwa or the Maratera cases supra are authority for the proposition that the mere fact that an offender is facing a serious charge, albeit a very prevalent offence, justifies his incarceration pending his trial. It is clearly a factor that should be taken account of, together with other factors, in determining whether a person should be kept in custody until the time of his trial, but it can never be the only factor to justify keeping alleged offenders in custody. It is a well-established principle of our law that a man is innocent until proved guilty. To disregard this very well-founded principle and to incarcerate an individual purely because he faces a serious offence would be in disregard of this very valid and important principle and weaken respect for the law and the social condemnation of those who break it.”

The court must therefore endeavor to strike a balance between the interests of justice and the accused's liberty.

It was submitted, on behalf of the respondent, in opposing the admission of the applicants to bail, that section 117A(4)(b)(i) of the Criminal Procedure and Evidence Act [Chapter 9:07] provides that, in bail proceedings, the court may receive evidence on oath - including hearsay evidence.

This is a correct statement of the law, and it disposes of the applicants' objection to the evidence given on behalf of the respondent by the Investigating Officer.

As part of its response to the bail application, the respondent filed an affidavit deposed to by the Investigating Officer, in terms of section 33(1) of the Criminal Procedure and Evidence Act [Chapter 9:07], on 4 April 2014.

The Investigating Officer deposed to the fact that he had received a tip off from an informer at Nyamapanda Border post that the registration book presented by the applicant was a forgery.

Section 50(1)(d) of the Constitution says that any person who is arrested must be released unconditionally or on reasonable conditions, pending a charge or trial, unless there are compelling reasons justifying their continued detention.

In my recent judgments in S v Nemaringa & Anor HMA03-16 and Shava v S HMA08-16, I demonstrated that the Constitution purposefully made bail a right of an accused person the breach of which carries adverse consequences on all concerned, including judicial officers, unless there is a law protecting them in the bona fide discharge of their duties.

The law relating to bail is well settled. There is really nothing new to add. The fundamental aspects are re-stated merely as a route to the final decision.

Bail is a right. By it, any person arrested on suspicion of having committed a crime secures his liberty and continues to enjoy his freedom. This is enshrined in section 50 of the Constitution. Section 70 is a re-statement of the common law. It says an accused person is presumed innocent until proved guilty.

The applicant is a legal practitioner employed at a law firm in Bulawayo. He is aged 36. He was arraigned before the Magistrates' Court on charges of contravening section 136 and 184(1)(e) of the Criminal Law (Codification and Reform) Act.

It is alleged, by the State, that the applicant and his co-accused, one Absolom Hlupo, a prison officer based at Khami Maximum Prison, connived to generate a fraudulent warrant of liberation to secure the release of a convicted prisoner.

The applicant and his co-accused appeared before a magistrate sitting at Tredgold Magistrates' Court and applied for bail pending trial.

The application for bail was refused on the following grounds:

(a) The applicant is facing serious charges.

(b) The applicant faces charges which brings his profession (the legal profession) and the justice delivery system into disrepute.

(c) The offences involve numerous individuals working as a syndicate to issue warrants of liberation.

(d) If convicted, the applicant faces a term of imprisonment and this will be an inducement to abscond.

The applicant has appealed against the refusal to grant bail on the grounds that the court a quo erred by finding that the applicant was a flight risk in that there was no indication that the applicant had any inclination to abscond.

Further, the applicant avers that the court grossly misdirected itself by making findings which were not supported by evidence placed before the court.

In addition, the applicant argues that the court failed to consider that whatever the States' fears were in regard to the applicant's ability to stand trial, such could be safeguarded by the imposition of appropriate bail conditions.

The applicant contends that the seriousness of the offence, in itself, is not a sufficient ground to deny bail.

I will deal with each of the grounds for refusal of bail in turn:-...,.

The court misdirected itself by making findings not supported by evidence

The argument has been made, on behalf of the applicant, that the applicant is presumed innocent until he is proven guilty in a court of law of competent jurisdiction.

It has been argued that there is no evidence before the court to show that the applicant may abscond if granted bail pending trial.

While it is trite that the liberty of an individual must not be lightly interfered with: it is also important to safeguard the interests of justice by ensuring that suspects stand trial.

What is most disconcerting about the allegations in this matter is that the applicant, who is a legal practitioner, sought to subvert justice by securing the release of a convicted and a serving prisoner.

If the allegations are proved, the applicant will most likely face a prison sentence.

The inducement to abscond lies in the fact that, apart from the applicant's bare denial of the allegations, the applicant has not proffered any meaningful defence to the allegations.

At the hearing of this matter, I quizzed counsel for the applicant, and he seemed to suggest that the allegations are a mere fabrication.

While an application for bail is not a trial on the merits of the case itself, an applicant must, and should, take the court into its confidence by at least raising some plausible defence to the charge.

I therefore do not agree that there was a misdirection on the part of the magistrate in the court a quo....,.

The court exercised its judicial discretion, and, in the absence of a misdirection, the court must not interfere with the court's findings.

In my view, in an application for bail pending trial, the starting point is to consider the dispensation brought about by the new Constitution in May 2013.

Section 50(1)(d) of that Constitution says that any person who is arrested must be released, unconditionally, or on reasonable conditions, pending a charge or trial, unless there are compelling reasons justifying their continued detention. It is now a fundamental human right and freedom that an arrested person be charged or tried out of custody. That he or she may remain incarcerated until the charge or trial is rather the exception. There ought to be some compelling reasons justifying it. This, in my view, is an exceptionally high burden. And it is now provided for in no less a law than the Constitution.

The Constitution does not say, directly, on who this onerous burden lies. But, manifestly, it must be the State. That, in my view, and from a purposive approach, is clearly the spirit of the Constitution. But the Criminal Procedure and Evidence Act has recently been amended, effective 17 June 2016 (see the Criminal Procedure and Evidence Amendment Act, No.2 of 2016).

Section 115C has been inserted. It first states that in any application, etc. where, among other things, the grant or denial of bail is in issue, the grounds specified in section 117(2), being grounds upon which a court may find that it is in the interests of justice that an accused person should be detained in custody until he or she is dealt with in accordance with the law, are to be considered as the compelling reasons for the denial of bail by a court.

In terms of section 117(2) of the Criminal Procedure and Evidence Act, grounds upon which a court may deny bail are the likelihood that if released on bail:

1. The accused will endanger the safety of the public, or of any particular person; or

2. The accused will commit an offence referred to in the First Schedule [i.e. an offence at common law other than bigamy, compounding, contempt of court, etc., or a statutory offence the minimum penalty for which exceeds six months without the option of a fine, and any conspiracy, incitement, attempt or being an accessory after the fact, to commit those crimes]; or

3. The accused will not stand his or her trial or appear for his sentence; or

4. The accused will attempt to influence or intimidate witnesses or to conceal or destroy evidence; or

5. The accused will undermine or jeopardise the proper functioning of the criminal justice system, including the bail system; or

6. In exceptional circumstances, there is a likelihood that the release of the accused will disturb the public order or will undermine public peace or security.

As counsel for the State correctly points out, these factors have been the traditional grounds for denying bail. But the amendment has reversed the onus of proof from the State to the accused in respect of certain crimes. In terms of section 115C(2)(a)(ii)B of the Criminal Procedure and Evidence Act:

“Where an accused who is in custody in respect of an offence applies to be admitted to bail…, before a court has convicted him or her of the offence…, the accused person shall, if the offence in question is one specified in…, Part II of the Third Schedule, bear the burden of showing, on a balance of probabilities, that exceptional circumstances exist, which, in the interests of justice, permit his or her release on bail.”…,.

In this matter, the constitutionality of…., the aforesaid amendment (section 115C of the Criminal Procedure and Evidence Act [Chapter 9:07]; see the Criminal Procedure and Evidence Amendment Act, No. 2 of 2016), was not raised, let alone argued.

Counsel for the applicant argued that the recent amendment to the Criminal Procedure & Evidence Act [Chapter 9:07], which, by the insertion of section 115C, thrusts the onus on the accused to prove the right to bail, is manifestly in conflict with the Constitution. As such, the Constitution, being the superior law, should prevail.

But counsel for the applicant would not commit himself to urging the court to make a specific declaration as to the constitutional invalidity of the amendment, let alone to refer the matter to the Constitutional Court in terms of section 175 of the Constitution….,.

The applicant's emphasis that the dental surgeon's statement should only have been by way of an affidavit before it was given any weight is not always the practice.

In considering whether, if released on bail, there is a likelihood that an accused will not stand trial, section 117(3)(b) of the Criminal Procedure & Evidence Act [Chapter 9:07] directs the court to take the following factors into account:

1. The ties of the accused to the place of trial.

2. The existence and location of assets held by the accused.

3. The accused's means of travel and his or her possession of access to travel documents.

4. The nature of the offence or the nature and gravity of the likely penalty.

5. The strength of the case for the prosecution and the corresponding incentive of the accused to flee.

6. The efficacy of the amount or nature of the bail and enforceability of any bail conditions.

7. Any other factor which, in the opinion of the court, should be taken into account.

In the present case, counsel substantially touched on almost all the above factors, albeit in varying degrees of emphasis. Fireworks were largely on paragraphs 4 and 5.

The issue of the nature of the case, the gravity of the likely penalty, the relative strength of the case for the prosecution, and the corresponding incentive of the accused to flee are factors that help the court to gauge the pull of the inducement to abscond.

The general premise is that the stronger the State's case is, the greater the likelihood of absconding, and vice versa: see Fletcher Dulini Ncube v State SC126-01.

Of course, by itself, this factor is not decisive.

In my view, a final decision on the bail factors cannot be made without reference to the new Constitution.

In my recent judgment in S v Jealous Nemaringa and Anor HMA03-16, I said…,:

“In my view, in an application for bail pending trial, the starting point is to consider the dispensation brought about by the new Constitution in May 2013. Section 50(1)(d) of that Constitution says that any person who is arrested must be released unconditionally or on reasonable conditions, pending a charge or trial, unless there are compelling reasons justifying their continued detention. It is now a fundamental human right and freedom that an arrested person be charged or tried out of custody. That he or she may remain incarcerated until the charge or trial is rather the exception. There ought to be some compelling reasons justifying it. This, in my view, is an exceptionally high burden. And it is now provided for in no less a law than the Constitution.”

On the question of who the onus to prove compelling circumstances lies, I had this to say:

“The Constitution does not say directly on who this onerous burden lies. But manifestly, it must be the State. That, in my view, and from a purposive approach, is clearly the spirit of the Constitution. But the Criminal Procedure & Evidence Act has recently been amended, effective 17 June 2016 (see the Criminal Procedure and Evidence Amendment Act, No.2 of 2016). Section 115C has been inserted. It first states that in any application, etc. where, among other things, the grant or denial of bail is in issue, the grounds specified in section 117(2), being grounds upon which a court may find that it is in the interests of justice that an accused person should be detained in custody until he or she is dealt with in accordance with the law, are to be considered as the compelling reasons for the denial of bail by a court.”

Section 115C(2)(a)(ii) A and B of the Criminal Procedure & Evidence Act [Chapter 9:07] have reversed the onus of proof from the State to the accused in respect of certain crimes. The new provision relevant to this case is section 115C(2)(a)(ii] A. After editing out irrelevant matter, it reads:

“(2) Where an accused who is in custody in respect of an offence applies to be admitted to bail;-

(a) Before a court has convicted him or her of the offence -

(i) …,.

(ii) The accused person shall, if the offence in question is one specified in -

A. Part 1 of the Third Schedule, bear the burden of showing, on a balance of probabilities that it is in the interests of justice for him or her to be released on bail, unless the court determines that, in relation to any specific allegation made by the prosecution, the prosecution shall bear that burden.”

Rape is one of the Third Schedule offences in respect of which the power to admit persons to bail is excluded or restricted.

In S v Jealous Nemaringa and Anor HMA03-16, I said the constitutionality of, inter alia, section 115C of the Criminal Procedure & Evidence Act [Chapter 9:07] had not been raised, let alone argued. So I expressed no further view on it. But before I abandoned the point, I said this…,:

“…, Mr Chavarika's argument seemed to me to run counter to the ethos or principle or spirit of the new Constitution. In terms of it, the emphasis is on the right of accused persons to personal liberty. Among other things, one should not be deprived of one's liberty without just cause (s 49(1)(b)). Once arrested and not released, a person is entitled to be brought to court within forty-eight hours or else he or she must be released immediately, unless a competent court has authorised his or her continued detention (s 50(2)). It does not matter that the forty-eight hours may lapse on a Saturday, Sunday or a public holiday.

Probably to emphasise the importance of the right to personal liberty, parts of s 50 empower anybody to bring an application for a habeas corpus in respect of someone who, among other things, is being detained illegally, so that they may be released or brought before the court for the lawfulness of their detention to be justified. To cap it all, any person who has been illegally arrested is entitled to compensation from whosoever might have been responsible, except if there is a law that has been passed to protect judicial officers or other public officers acting reasonably and in good faith.

But sub-section (6) of s 50 speaks directly to the situation of Accused 2 herein. It says any person who is detained pending trial for an alleged offence, and is not tried within a reasonable time, must be released conditionally or unconditionally. Furthermore, in terms of s 70(1)(a), an accused person is presumed innocent until proved guilty.”

In the present case, the constitutionality of section 115C(2)(a)(ii)A has squarely been raised.

Both Counsel readily agree that it being in conflict with the Constitution, it must give way. It is akin to a clash between a locomotive and a motor vehicle at a rail-road crossing. Such a clash only goes one way – in favour of the train.

Counsel for the applicant was not keen that in the event that I find the provision to be unconstitutional, as indeed I have, I should then go on and refer the matter to the Constitutional Court for a final declaration of constitutional invalidity in terms section 167(3) and section 175(1) and (4) of the Constitution. He was merely content to urge me to follow the Constitution and to ignore any other dissident provision.

On the other hand, counsel for the State felt that once a declaration of constitutional invalidity is made by a subordinate court, the issue must, as a matter of course, be referred to the Constitutional Court for a final declaration of invalidity.

However, unlike the situation that MUREMBA J and I dealt with in the cases of S v Willard Chokurumba HH718-14 and S v Walter Mufema & Ors HH409-15 respectively, the referral of a matter to the Constitutional Court for a declaration of constitutional invalidity is now governed by the Constitutional Court Rules that were published under S.I.61 of 2016. In terms or Rule 24 thereof, a subordinate court wishing to refer an issue to the Constitutional Court for a final declaration of constitutional invalidity, must request the parties to make submissions on the issue and state the specific constitutional question to be referred.

A referral to the Constitutional Court may also be made upon request by a party. Part of the material to be referred may include a statement of agreed facts, or the evidence led by the parties, and the specific findings of fact by the subordinate court. The record is then referred via the Registrar.

The Constitution has rendered dysfunctional the provisions of section 117 of the Criminal Procedure and Evidence Act [Chapter 9:07]. 

Its elaborate requirements for the admission of an arrested person to bail cannot remain part of our law to the extent that they are inconsistent with section 50(1) of the Constitution. 

Before dealing with the application filed I wish to make certain remarks on the structure of the application for bail filed in this court.

It is noted that the bail application itself, and as has become common in similar applications filed in this court, is a combination of the written statement in support of bail application and heads of argument. It occurs to me that this approach is wrong and not supported by the Rules which regulate such an application, viz High Court of Zimbabwe (Bail) Rules (High Court of Zimbabwe (Bail) Rules 1991).

The Rules in question sufficiently speak to what must be contained in the statement for bail. They do not speak to having to combine that statement with heads of argument. If heads of argument have to be filed these must be separately filed to avoid contaminating the statement itself.

The statement for bail must be kept simple as dictated by the Rules that create it.

Our new constitutional dispensation stresses the presumption of innocence of an accused person until proved guilty by a trial process: section 70. The right to bail, in the absence of compelling reasons to deny it, has been entrenched as one of the fundamental human rights and freedoms: section 50.

Section 117 of the Criminal Procedure and Evidence Act [Chapter 9:07] provides, in relevant part, as follows:

“117A Application for bail, bail proceedings and record thereof

(1)…,.

(2)…,.

(3)…,.

(4) In bail proceedings, the court may —

(a)…,.

(b) Subject to subsection (5), receive —

(i) Evidence on oath, including hearsay evidence;

(ii) Affidavits and written reports which may be tendered by the prosecutor, the accused or his or her legal representative;

(iii) Written statements made by the prosecutor, the accused or his or her legal representative;

(iv) Statements not on oath made by the accused;

(c) Require the prosecutor or the accused to adduce evidence;

(d) Require the prosecutor to place on record the reasons for not opposing bail.

(5)…,.

(a)…,.

(b)…,.

(6)…,.

(7) The record of the bail proceedings, excluding the information referred to in subsection (5), shall form part of the record of the trial of the accused following upon such bail proceedings: Provided that if the accused elects to testify during the course of the bail proceedings the court must inform him or her that anything he or she says may be used against him or her at his or her trial and such evidence becomes admissible in any subsequent proceedings.

(8)…,.

(a)…,.

(b)…,.

(9)…,.

(10) Notwithstanding anything to the contrary contained in any law, no accused shall, for the purposes of bail proceedings, have access to any information, record or document relating to the offence in question, which is contained in, or forms part of, a police docket, including any information, record or document which is held by any police officer charged with the investigation in question, unless the Prosecutor-General otherwise directs: Provided that this subsection shall not be construed as denying an accused access to any information, record or document to which he or she may be entitled for the purposes of his or her trial.”