FORMAL BAIL APPLICATION – PRESIDING OFFICER DISQUALIFIED FROM PRESIDING AT TRIAL

S v BOOYSEN 2016 (1) SACR 521 (ECG)

Bail — Presiding officer — Where formal hearing held considering factors in s 60 of Criminal Procedure Act 51 of 1977, presiding officer ordinarily disqualified from presiding at subsequent trial.

 

The appellant was convicted in a magistrates’ court on charges of housebreaking with intent to steal and theft and common assault. After the state proved certain previous convictions, the magistrate transferred the matter to the regional court for sentence. The latter court certified that the proceedings were in accordance with justice as required in terms of s 116 of the Criminal Procedure Act (the CPA) and proceeded to sentence the appellant to five years’ imprisonment on the first count and six months’ imprisonment on the second. He was granted leave to appeal on the basis that another court might conclude that the proceedings were not in accordance with justice as the magistrate had presided over the bail application involving the appellant before presiding at the trial. The record indicated that the magistrate had expressed an opinion at the conclusion of the bail hearing that, by virtue of his having acquired knowledge of certain facts, it would not be in the interests of justice for him to preside at the trial. For reasons that were not explained, the magistrate did not recuse himself from presiding at the subsequent trial.

Held, that, where a bail application involving formal consideration of the numerous factors set out in s 60 of the CPA was heard, the presiding officer at the bail application would ordinarily be disqualified from hearing the subsequent trial of the accused person. That magistrate would only be ‘ordinarily’ disqualified as there might be circumstances where the existence of a reasonable suspicion of bias either could not be sustained on the facts, or reliance upon such was precluded in the interests of justice because of the circumstances in which the claim arose.

Held, further, that the fact that the magistrate indicated that he did not consider himself qualified to preside over the subsequent trial must have created in the minds, not only of the appellant but also any member of the observing public, the perception that he was signalling reasonable and acceptable grounds to justify his disqualification by recusal from further engagement in proceedings involving the accused. His subsequent failure to do so, in circumstances where such recusal was required, rendered the further proceedings a nullity. It did not matter that the accused had not asserted his reasonable apprehension of apparent bias. That he had not done so was because he had a different legal representative at that stage who had no knowledge of the magistrate’s expressed views. The appeal was upheld and the conviction and sentence were set aside.

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