- December 27, 2022
- |Concise Law Reports (CLR), Criminal Law And Procedure
CRIMINAL PROCEDURE – BAIL ON NEW FACTS – FACTS MUST BE NEW, RELEVANT TO THE NEW APPLICATION, AND MUST RELATE TO, AND CHANGE THE BASIS OF THE INITIAL REFUSAL OF BAIL
The applicant was arrested on 27 November 2019. He is indicted together with 27 others on charges ranging from racketeering, money laundering, conspiracy to commit crime, corruptly giving gratification for reward, fraud, theft, and fraud in relation to tax evasion in the Fishrot Scandal. The applicant initially applied for bail in the Magistrates Court, but his application was dismissed. He appealed against the refusal of bail and his appeal was unsuccessful. He then applied for bail on new facts which was opposed by the State.
The new facts were that investigations were complete, thus, there was no longer any threat of interference; that two cases were joined and the disclosure runs into some 80 000 plus pages; that the applicant has been in detention for about two years between the time of his initial failed bail application and the current bail application whilst the trial is yet to commence; that the disclosure reveals that the State does not have a strong case against him; that the State added additional charges which were not canvassed in the initial bail application; and that his personal circumstances have deteriorated exponentially over the past two years since his last bail application.
The State opposed the granting of bail on the grounds that: the applicant is facing serious charges involving a criminal syndicate, and if found guilty, a lengthy custodial sentence will be imposed; that the State has a strong case against the applicant; that there is a strong possibility that he may interfere with state witnesses and the evidence; that it will not be in the interest of the public and the administration of justice for the applicant to be granted bail; and that there is a genuine concern that the applicant would abscond, particularly in light of the compelling evidence supporting the serious allegations against him.
MUNSU AJ considered the application and held that:
a) On the authority of Sheelongo v S (CC 16/2018) [2020] NAHCNLD 51 (18 May 2020) at para [10]: where an applicant relies on new facts which have come to the fore since the previous bail application, the court must be satisfied firstly, that such facts are indeed new and secondly that they are relevant for purposes of the new bail application.
b) The new facts must be such that they are related to and change the basis on which bail was initially refused.
c) The facts set out by the applicant as new facts did not exist at the time of his initial bail application, entitling him to launch another bid to be released on bail.
d) The court is required to consider all the facts which the applicant has placed before the court, new and old, and decide on the totality of those facts.
e) The magistrate did not refuse bail based on the likelihood of interference with investigations, thus, the fact that investigation is now complete has no impact upon the old facts.
f) A court considering a bail application must strike a balance i.e., weigh the necessity to protect the liberty of those who are presumed innocent until proven guilty against the interests of the proper administration of justice.
g) The grounds relied upon, being pre-trial incarceration, protracted trial, and deterioration of the applicant’s personal circumstances, although new, they do not establish a new perspective that impacts on the old facts, considering the reasons upon which bail was refused.
h) The State made out a strong prima facie case against the applicant. Accordingly, the new fact that the disclosure reveals that the State has no prima facie case against the applicant has no impact on the old facts.
i) Having considered all the facts placed before court, the new and old, the court is satisfied that the new facts did not establish a new perspective that impacts on the old facts. It is therefore not open to the court to admit the applicant to bail.
As a result, the application for bail was dismissed and the applicant was remanded in custody pending trial.
Hatuikulilpi v S (CC 06-2021) [2022] NAHCMD 693 (27 December 2022)