CA
48/94

THOMAS
JAFET VERSUS THE STATE 1994/08/29

FRANK,
J et HANNAH,
J

CRIMINAL
PROCEDURE

Bail.
- Amended section 61 of the Criminal Procedure Act confeal a much
wider discretion on the Court than was the case previously. - Court
need only be of the opinion that it is in the interest of the public
or the administration of justice that bail be
refused.

If
there is material upon which such an opinion can be formed an
appellate court will not lightly interfere.

IN
THE HIGH COURT OF NAMIBIA

In
the matter between

THOMAS
JAFET

versus
THE
STATE

CORAM: FRANK,
et
HANNAH,
JJ.

Heard
on: 1994.08.29

Delivered
on: 1994.08.29

Circulate

CASE
NO.

D. The
Applicant had failed to prove on a balance of
probabilities that
he shall not interfere with the
State witnesses if granted bail;

E. The
interest of justice will be prejudiced if the
accused is granted
bail."

The
brief facts of the case are as follows. The Appellant is a married
man with a family and has no previous convictions. Before his arrest
he made a living repairing motor-vehicles from which he earned
approximately $800 per month. In February of this year he was
arrested on a charge of forging motor-vehicle change of ownership
certificates and he was granted bail in the sum of $1000 when he
appeared before the Magistrate's Court. Then at the end of April he
was arrested again this time on a charge of theft of a motor-vehicle.
It was with regard to this charge that bail was refused.

During
the application for bail various grounds for refusing bail were
advanced by the State but in refusing bail the only grounds relied
upon by the Magistrate were that the appellant "is likely to
commit further offences and that it is in the interest of the
administration of justice if accused is refused bail."
Amplifying this when addressing the grounds of appeal the Magistrate
said that the Court had to take into account all the relevant
evidence and on that evidence the State had made out a prima
facie
case that the Appellant showed a propensity to commit offences
involving theft of motor vehicles and the illegal disposal of motor
vehicles. In refusing bail she had taken account of the
prevalence of this type of offence in her district and the
seriousness of this type of offence and had come to the opinion that
it was in the interest of the administration of justice that bail be
refused. In reaching this decision she had not accepted the State's
contention that the Appellant would interfere with witnesses or with
police investigations.

Deciding
whether to grant bail or not is often a difficult task. However,
since section 61 of the Criminal Procedure Act was amended in May
1991, the Courts have been granted a much wider discretion than
previously when considering bail applications. The section now
reads:

"If
an accused who is in custody in respect of any offence referred to in
Part IV of Schedule 2 applies under section 60 to be released on bail
in respect of such offence the court may, notwithstanding that it is
satisfied that it is unlikely that the accused, if released on bail,
will abscond or interfere with any witness for the prosecution or
with the police investigation, refuse the application for bail if in
the opinion of the court, after such inquiry as it deems necessary,
it is in the interest of the public or the administration of justice
that the accused be retained in custody pending his or her trial."

As
may be seen, bail may be refused if the Magistrate is of the opinion
that it is in the interest of the public or the administration of
justice that it should be refused. And if there is material before
the Magistrate upon which such an opinion can be formed this Court
will not lightly interfere. In the present case there was the fact
that within a short
period of time the Appellant had been arrested and charged with
offences involving the theft or illegal disposal of motor vehicles
and there was no suggestion made on behalf of the Appellant during
the application that the police did not have reasonable grounds for
making those arrests. Then there was evidence that two Angolans were
shot while driving a motor vehicle bought from the accused. It was
reasonable to assume, in my view, that this was the motor vehicle the
subject of the theft charge and the Appellant, when he gave evidence,
admitted having some connection with those people. Another piece of
evidence which is rather ominous was the appellant's answer to the
following question:

QUESTION:
I put it to you that you are likely to commit further offences
because this offence is allegedly committed whilst on bail.

ANSWER:
I won't do it again.

The
Appellants attorney made no attempt to clarify that answer in
re-examination.

In
my view, there was material before the Magistrate upon which she
could form an opinion that it was in the interest of the public or
the administration of justice that the Appellant be held in custody
pending his trial and I can see no good reason to find
that the Magistrate's opinion was wrong or to interfere with the very
wide discretion conferred upon her by
section 61 of the Criminal Procedure Act.