STUDENT NO:
MODULE CODE: TLI4801
ASSIGNMENT: 02
DATE: 06 SEPTEMBER 2022
1.
(a) Prosecutorial bail may be applied for the release of the accused Y, as the
charge of arson does fall within the list of offences listed in Schedule 7 of
the CPA, which provides for prosecutorial bail. Therefore, prosecutorial
bail can be applied for in this instance having regard to the given facts.
(b) Bail is regarded as a compromise or striking a balance between the
interests of society and the liberty of an accused. The court may consider
the strength of the state’s case against the accused, when deciding if the
accused would evade trial, be a fugitive from justice or tamper with
evidence if released. The accused’s attorney must persuade the court that
the release of the accused will not be detrimental to the interests of justice.
It involves a value judgment of what is fair and equitable having regard to
all circumstances.
The CPA mentions various factors that a court may take into account to
determine whether bail should be granted or not. Thus, s 60 (4) (a) – (e)
lists factors that a court may consider when the interests of justice do not
permit such release on bail. The interests of justice do not permit release
in the following circumstances/on the following grounds:
(a) where there is the likelihood that the accused if released on bail, will
endanger the safety of the public or any particular person or will commit a
Schedule 1 offence; or
(b) where there is the likelihood that the accused, if released on bail, will
attempt to evade his or her trial; or
, (c) where there is the likelihood that the accused, if released on bail, will
attempt to influence or intimidate witnesses or to conceal or destroy
evidence; or
(d) where there is the likelihood that the accused, if released on bail, will
undermine or jeopardise the objectives or the proper functioning of the
criminal justice system, including the bail system; or
(e) where in exceptional circumstances there is the likelihood that the
release of an accused will disturb the public order or undermine the public
peace or security.
The focus at the bail stage is to decide whether the interests of justice
permit the release of the applicant pending trial, which entails, in the main,
protecting the investigation and prosecution of the case against any
hindrance.
2. Section 105 A of the Criminal Procedure Act, 1977 allows prosecutors to
negotiate and enter into a plea and sentence agreement with the defence.
Many parties are involved in this process, namely, the prosecutor, accused
and legal representative, investigating officer, complainant and presiding
officer. It should be noted that the prosecutor can only conclude the plea and
sentence agreement once he or she is authorized to do so by the National
Director of Public Prosecutions (s 105 A (1)(a).The agreement must be
negotiated and entered into before an accused has pleaded to the charge.
The contents of the sentence agreement are:
(a) The accused must plead guilty to the charge and be convicted
(b) It must include the sentence to be imposed
(c) It must state the substantial facts of the matter
(d) It must cover all legal elements of the offence
(e) The prosecutor must consult the investigating officer and afford the
complainant and his or her representative an opportunity to make
representation to the prosecutor regarding the contents of the agreement
and the inclusion of any conditions.
The defence attorney approaches the prosecutor with the proposal that a
sentence agreement be entered into and a suggestion as to what
constitutes a just and proper sentence. If the court does not confirm the
agreement, the defence must withdraw from the agreement and the trial
MODULE CODE: TLI4801
ASSIGNMENT: 02
DATE: 06 SEPTEMBER 2022
1.
(a) Prosecutorial bail may be applied for the release of the accused Y, as the
charge of arson does fall within the list of offences listed in Schedule 7 of
the CPA, which provides for prosecutorial bail. Therefore, prosecutorial
bail can be applied for in this instance having regard to the given facts.
(b) Bail is regarded as a compromise or striking a balance between the
interests of society and the liberty of an accused. The court may consider
the strength of the state’s case against the accused, when deciding if the
accused would evade trial, be a fugitive from justice or tamper with
evidence if released. The accused’s attorney must persuade the court that
the release of the accused will not be detrimental to the interests of justice.
It involves a value judgment of what is fair and equitable having regard to
all circumstances.
The CPA mentions various factors that a court may take into account to
determine whether bail should be granted or not. Thus, s 60 (4) (a) – (e)
lists factors that a court may consider when the interests of justice do not
permit such release on bail. The interests of justice do not permit release
in the following circumstances/on the following grounds:
(a) where there is the likelihood that the accused if released on bail, will
endanger the safety of the public or any particular person or will commit a
Schedule 1 offence; or
(b) where there is the likelihood that the accused, if released on bail, will
attempt to evade his or her trial; or
, (c) where there is the likelihood that the accused, if released on bail, will
attempt to influence or intimidate witnesses or to conceal or destroy
evidence; or
(d) where there is the likelihood that the accused, if released on bail, will
undermine or jeopardise the objectives or the proper functioning of the
criminal justice system, including the bail system; or
(e) where in exceptional circumstances there is the likelihood that the
release of an accused will disturb the public order or undermine the public
peace or security.
The focus at the bail stage is to decide whether the interests of justice
permit the release of the applicant pending trial, which entails, in the main,
protecting the investigation and prosecution of the case against any
hindrance.
2. Section 105 A of the Criminal Procedure Act, 1977 allows prosecutors to
negotiate and enter into a plea and sentence agreement with the defence.
Many parties are involved in this process, namely, the prosecutor, accused
and legal representative, investigating officer, complainant and presiding
officer. It should be noted that the prosecutor can only conclude the plea and
sentence agreement once he or she is authorized to do so by the National
Director of Public Prosecutions (s 105 A (1)(a).The agreement must be
negotiated and entered into before an accused has pleaded to the charge.
The contents of the sentence agreement are:
(a) The accused must plead guilty to the charge and be convicted
(b) It must include the sentence to be imposed
(c) It must state the substantial facts of the matter
(d) It must cover all legal elements of the offence
(e) The prosecutor must consult the investigating officer and afford the
complainant and his or her representative an opportunity to make
representation to the prosecutor regarding the contents of the agreement
and the inclusion of any conditions.
The defence attorney approaches the prosecutor with the proposal that a
sentence agreement be entered into and a suggestion as to what
constitutes a just and proper sentence. If the court does not confirm the
agreement, the defence must withdraw from the agreement and the trial
