Sheelongo v The State (CC 16/2018) [2020] NAHCNLD 51 (08 May 2020);

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Headnote and flynote
Flynote: 

Criminal Procedure – Bail – New facts – Court’s approach in considering whether there are new facts – Those new facts be considered against the background of the old facts – Notwithstanding new facts – Bail was refused.

Headnote and Holding: 

Applicant brought a bail application based on new facts. The new facts were; time spent in custody, continued treatment for schizophrenia, police do not take the accused on time to the Oshakati State Hospital to receive his medication to control the schizophrenia, no new suicide attempts, prejudice to accused person to assist and actively participate in preparation of his defence, trial date not yet set as psychiatric report is disputed and enquiry is first to be held. Held, that, the grounds raised have not changed the position upon which bail initially was refused as they have not addressed the issue of public interest or the interest of the administration of justice.

Full judgment

REPUBLIC OF NAMIBIA 

HIGH COURT OF NAMIBIA NORTHERN LOCAL DIVISION

 

HELD AT OSHAKATI

 

BAIL RULING

Case no: CC 16/2018

 

In the matter between:

 

HANS SHEELONGO                                                                                     APPLICANT                                                 

 

v

 

THE STATE                                                                                                  RESPONDENT

 

Neutral citation:      Sheelongo v S (CC 16/2018) [2020] NAHCNLD 51 (8 May 2020)

 

Coram:          SALIONGA, J

Heard:           30 April 2020

Delivered:     8 May 2020

 

Flynote:         Criminal Procedure – Bail – New facts – Court’s approach in considering whether there are new facts – Those new facts be considered against the background of the old facts – Notwithstanding new facts – Bail was refused.

Summary:   Applicant brought a bail application based on new facts. The new facts were; time spent in custody, continued treatment for schizophrenia, police do not take the accused on time to the Oshakati State Hospital to receive his medication to control the schizophrenia, no new suicide attempts, prejudice to accused person to assist and actively participate in preparation of his defence, trial date not yet set as psychiatric report is disputed and enquiry is first to be held. Held, that, the grounds raised have not changed the position upon which bail initially was refused as they have not addressed the issue of public interest or the interest of the administration of justice.

 


ORDER


 

The application for bail on new facts is dismissed.

 


BAIL APPLICATION RULING


 

SALIONGA J:

 

[1]        The applicant herein brought an application before this Court for bail on new facts after the first bail application was refused in the district court of Grootfontein. Applicant was charged with murder read with the provisions of the combating of Domestic Violence Act, Act 4 of 2003. The matter was transferred to the High Court, Northern Local Division, for plea and trial before Judge January. The applicant is represented by Ms Horn and Mr. Gaweseb appears for the respondent.

[2]         For purposes of this bail application Ms Horn submitted that the following constitutes new facts;

'(a) The time spent in custody (b) continued treatment for schizophrenia (c) police do not take the accused on time to the Oshakati State hospital to receive his medication to control the schizophrenia (d) no new suicide attempts since started medication in 2016 (e) prejudice to accused person to assist and actively participate in preparation of his defence (f) trial date not yet set as psychiatrist report is disputed and enquiry is first to be held’.

[3]        The applicant testified under oath that he was 32 years old. Before his arrest he resided at the police barracks Maroela boom police station. His house was at Oshikulu in Onyaanya and was going to stay there if released on bail. In the first bail application applicant indicated Okankolo police station as his address. His mother however moved since then to Oshikulu. He was arrested on 16 December 2016 and has been in custody to date. On 20 December 2016 he brought a bail application in the Grootfontein Magistrate’s court which was refused. He did not appeal against the magistrate’s ruling but opted to file this application. He further testified that he has been seeing the doctor every month and was getting medication as per his health passport. That the follow up dates were indicated on each page of his health passport. The police sometimes did not take him on time to get his medication from the hospital.

[4]        According to the applicant, the investigating officer told the court during the formal bail application that there were four suicide attempts which he could not remember. However since he started taking medication in 2016 there were no suicidal attempts. Applicant confirmed that no trial date was set as yet and the matter was postponed to 30 March 2020. He did not know why the matter was postponed. He further testified that he was unable to consult with his lawyer but, eventually got to consult with his lawyers. Therefore for the aforesaid grounds the applicant wants to be released on bail.

[5]         In substantiating the application, Ms Horn in her address repeated the grounds as indicated in the bail application. Counsel submitted that applicant has been in custody for more than three years and could not be kept in detention as a form of anticipatory punishment.

[6]        Counsel further submitted that no suicide attempts were experienced since December 2016. That was because the applicant was initially treated for depression, then various medications for schizophrenia were administered and eventually he was kept on constant medication of Sulpiride. This was apparent from the health passport that accused has not experienced any episodes related to his mental illness since his medication has been changed. Ms Horn submits, that suicidal risk was no longer an important consideration for purposes of this application.

[7]        It was counsel further submission that there is evidence before Court supported by health passport that, applicant was not always taken on the “refill dates” and same was not disputed. Although the investigating officer admitted a delay for one day.  The investigating Officer is stationed at Otjiwarongo and could only checks the OB book to verify the accuracy and he was unable to verify as the accused is kept at Ongwediva police station.

[8]        On the other hand, Mr Gaweseb opposed bail being granted to the applicant. He submitted that the only issue this court has to decide is whether new facts exist. If they are, they must be considered in conjunction with the facts placed before the magistrate in the previous bail application in deciding whether they change the basis on which bail was initially refused. His proposition is aligned with the court’s approach in S v De Villiers 1996 (2) SACR 122 (T) at 126 e-f, that, new facts must be placed before court and must be such that they are related and change the basis on which bail was initially refused. In his view when bail was initially refused, many other factors were taken into consideration in refusing bail

[9] Counsel argued that on time spent in custody a formal bail application was heard and bail was denied. The fact that he did not appeal the lower court’ decision meaning he was in lawful custody according to procedures established by law. He further argued that since the matter was placed on the High Court role, the State was ready to proceed with the trial. That all the postponements were made on the behest of the applicant and he had two lawyers before the third who is dealing with the bail applications on new facts. In his opinion, counsel argued that applicant could not benefit from this my delaying tactics by claiming that the time he spend in custody is a new fact. Counsel further submits that the continued treatment of schizophrenia and no new suicide attempts were facts already mentioned in the formal bail hearing in the lower court and not new facts. Factors such as time spent in custody, that the police did not take the applicant on time to hospital to collect his medication and the prejudice for the applicant to prepare for his defence were factors not relevant in the determination whether to grant bail or not and could have been taken up with the authority at the police station. In any event applicant admitted in cross examination that neither he nor his lawyer had laid a complaint in that regard and counsel prays the application to be dismissed.

[10]      It is settled law that once a bail application is heard and concluded, there can be no new bail application on the same facts unless new facts exist. I agree with what the Court stated in S v Petersen 2008 (2) SACR 355 (C) Van Zyl J at page 371 para 57 that ‘When as in the present case, the accused relies on new facts which have come to fore since the first, or previous, bail application, the court must be satisfied, firstly that such facts are indeed new and secondly they are relevant for purposes of new bail application. They must not constitute simply a reshuffling of old evidence or an embroidering upon it.’

[11]      From the reading of the record, it was apparent the applicant was denied bail in the lower court on 20 April 2018. The magistrate ruled that it was not in the public interest or interest of the administration of justice to grant him bail, after taking the following into consideration; that applicant is facing serious charges, that there was a likelihood that the accused will be sentenced to a longer term of imprisonment if convicted, that there was a likelihood for the accused to abscond and a possibility that accused once released on bail may commit suicide and will escape facing the wrath of justice. Court a quo further ruled that applicant will not stand trial. There was further evidence that the accused is mentally ill although he was treated and was in a good mental state, the court played an active and inquisitive role in reaching a just decision on whether to remit accused on bail and ruled the accused was not a good candidate for bail.

[12]      In the light of the above, the court finds that indeed new facts exist, and the only issue to be decided was whether these new facts have changed the basis on which bail application was initially refused as pointed out in S v Petersen warranting the granting of bail.

[13]      On the issue of time spent by applicant in custody I find the views expressed by Tommasi J in a bail application of an accused who was held in custody in S v Walter Lupalwezi (CC5/2016) NAHCNLD (19 September 2017) worth citing. She indicated that ‘The applicant has been deprived of his personal liberty according to procedures established by law. The State may lawfully detain the applicant and infringe his right to liberty.’ In my view the time spend in custody could be a new fact but not a factor warranting the release of an accused on bail. Applicant applied for bail which was refused and no appeal was lodged to date. If applicant felt there was a misdirection in the ruling of a presiding officer he should have appealed against the lower court’s ruling.

[14]      Factors such as continued treatment of schizophrenia, that police do not take the applicant on time to Oshakati hospital to take medication and that no new suicide attempts were not mentioned in the formal bail hearing conducted in the lower court. I disagree with counsel for the State’s submission and found same new facts.

[15]     However the health condition issues of inmates and detention or time spend in custody were addressed in Samahina v The State (CA 77-2014) [2014] NAHCMD 291 (07 October 2014 where Hoff J agreed with the findings S v Mpofana 1998 (1) SACR 40 (Tk) that;

‘.one whose detention has been pronounced lawful and in the interest of justice cannot simply resort to a further bail application merely because he has been detained under inhumane and degrading conditions or on the ground that his right to consult with a doctor of his own choice has been infringed. It is however, available to such person firstly to apply to the prison authorities concerned and call upon them to remedy whatever complaints he or she has with regard to the conditions of his/her detention. Should the prison authorities fail to remedy such complaints, it is available to the detainee concerned either to challenge the detention before a court of law as being unconstitutional or obtain a court interdict to force the prison authority to comply with the law’.

I concur and endorse the above findings and on the basis of the above this court, finds that even if the applicant was not taken on time for his medication there were remedies available for actions.

[16]      The issue of prejudice to the applicant to prepare for his defence was a factor not addressed in the first bail application. It was also not disputed that applicant was sometimes taken late to the hospital to collect his medicine. This was confirmed by the health passport. The Station Commander testified that the applicant being a former police officer gets better treatment from the fellow officers and no complaint was lodged with her office. The legal principles applied in S v Carlos Samahina (CA 77/2014 NAHCMD (7 October 2014) were found applicable on this ground. The station Commander confirmed that lawyers do have access to accused persons in custody and applicant is no exception to the rule. It appears applicant had no difficulties accessing his legal team as he conceded that in cross examination. In my view there was no prejudice as the applicant could certainly prepare for his defence while in custody.

[17]      Another factor mentioned as new was the delay in the finalisation of the State’s case. Applicant is lawfully in custody according to procedures established by law. After bail application was unsuccessful. Moreover it has not been proven or submitted that the delay in the prosecution of the trial was attributed to the negligence, fault or mala fides of the respondent in the conduct of the proceedings. The said delay was because the defence was disputing the psychiatric report. In my view such delay is regrettable but could not be attributed to the State if no trial date has yet been set.

[18]       In order to curb the serious escalation of crimes and the escalation of accused persons evading the course of justice by absconding, the Legislature gave the court wider powers and additional grounds to refuse bail in cases involving serious crimes, by amending s 61 of the Criminal Procedure Act 51 of 1977[1].  Section 61 provides as follows:

‘61 Bail in respect of certain offences

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.’

The offence of murder preferred against the accused was one listed in Part IV of Schedule 2 of the Act.’

[19]     Having considered the grounds relied upon by the defence in this application and notwithstanding the finding when regard is had that some of the factors are new, the Court is not satisfied that they address the issue of public interest or the administration of justice warranting the release of the applicant on bail.

[20]      In the result, the application for bail on new facts is dismissed.

 

 --------------------------------

 J T Salionga

 Judge

 

 

APPEARANCES

 

APPLICANT:                         Ms W Horn

                                              W Horn Attorneys, Oshakati

                                              Instructed by Legal Aid, Oshakati

                                               

RESPONDENT:                   Mr T Gaweseb

                                             Of the Office of the Prosecutor-General, Oshakati

 

 


[1] As amended by s 3 of Act 5 of 1991.

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