arrest

My son has been arrested… what now?

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“I recently heard from a friend that her son had been arrested for drunk driving and that it had been quite a traumatic experience for the family to get their son released on bail. I have to admit I know nothing about bail and I am worried that I won’t know what to do to help my own child should he or she be arrested one day. How does bail work and what should I know? ”

The reality is that arrest is much more common than one realises, and it doesn’t necessarily only happen to violent criminals. It is therefore important that one knows the basics of how the process works and what has to happen to get released on bail.

Firstly, it is important to be aware of the different types of bail. Our law makes provision for three types, namely police bail, prosecutor’s bail, as well as court bail.

Police bail:

Police bail is usually fixed after hours by the particular police station where the arrested person is detained, and is only possible when a person is accused of a ‘less serious’ charge, for example drunk driving, common assault or store theft.

To have someone release on police bail, it is firstly important to determine where the person is being detained. It will ordinarily be the police station nearest to where the incident took place. Take proof with of where the person lives and works. As soon as you know where the person is detained, you can approach the relevant police office in command of that station and ask if the person has already been charged. If the person has been charged, the police docket will have a ‘CAS’ number and be allocated to an investigative officer. Ask who the investigative officer is and enquire from him/her if he/she will be willing to fix bail – and if yes, on what basis.

Important to remember is that police bail can only be fixed if a person has a clean criminal record – thus no former offences or pending cases against their name. If police bail cannot be granted, the police may, according to the law, detain a person for 48 hours before the person is brought before court.

Prosecutor’s bail:

Prosecutor’s bail is commonly determined after hours by the particular police station. This type of bail can be fixed for more serious offences, such asn for examplen culpable homicide, assult with the intent of grievious bodily harm, housebreak and theft where the alleged stolen goods don’t exceed R20,000. Prosecutor’s bail may not be fixed for offences such as, for example, murder or rape.

The same process that’s followed with police bail, can be followed here. What differs from police bail however, is that a state prosecutor has to be present during bail fixing. A list of the particular state prosecutors and more specifically which prosecutor is on duty, can be found at your nearest Magistrate’s Court.

It is important to remember that the investigative officer as well as the prosecutor’s permission is required for this type of bail. The state prosecutor may also link any reasonable conditions to the bail, such as that the accused may not contact the complainant, etc.

Court bail:

Court bail is fixed in court in respect of any other offence. In terms of our law a person has to be brought before court within 68 hours, where the person can then apply for bail. This will be the case where police- or prosecutor’s bail had not been permitted or requested.

The process followed during court bail is complex, seeing as there are various factors that the court has to take into account when deciding whether to grant bail or not. Factors the court needs to consider include whether the person has a fixed address, any previous offences and whether the person has any pending cases against him/her.

Important to remember is that the State has the right to postpone any bail application for a period not exceeding seven days, which means the accused will be sent to jail until he/she can be brought before court again. The State may then once again request a postponement for a formal bail hearing. With the congestion in our courts it can happen that that bail application only takes place in two weeks’ time. To assist with managing the complex process of court bail, and to prevent a person from having to wait for two weeks vir for a bail application it’s important to acquire the assistance of a criminal law specialist.

If you are the arrested, it is always wise not to just make a statement. Often one is under strain and one’s thoughts are not always clear, in which case it is preferable not to make a statement in such circumstances. Therefore it is actually advisable in all instances of arrest to acquire the assistance of a criminal law specialist that can help manage the legal process best during this taxing time.

legal advice

legal advice

George Kleynhans

LEGAL ADVICE

Shakespeare taught us “Only a fool defends himself”.  In South Africa every second accused conducts his/her own defence, rejecting the legal assistance provided by the state. This chapter is dedicated to those unfortunate accused that don’t trust the legal-aid, this word of advice to avoid those legal traps and mistakes most people fall into appearing in court for the first time.

The natural reaction when confronted by the police for the first time is fright, fight, flight or freeze… most people will start singing like a canary (flight) giving the police all the information they need, thereby incriminating themselves, unaware of the danger that too much detail may expose you as a suspect, accomplice or even a witness.

You are obliged to give your correct name and address to any officer-of-law when asked for that, but for the rest of any confrontation you may remain silent, even during an arrest. Do not give any verbal or written statements as you may forget the contents thereof… the most important aspect of your defence is that your version of events remains the same during the long process of trial.

George was the founder of SA non-citizen Legal Protector, a close corporation registered for the soccer world-cup 2010, with the main goal to give legal assistance to all the visitors to South Africa. The criminal procedure of our legal system is applicable in most countries, internationally accepted.

On any arrest the police may detain you; however within 48hours you must be brought to a court-of-law to appear and exercise your rights as an accused. This time-frame is illegally used and abused by police to force a confession from the suspect; these arrests will be left to Thursday/Friday to include the weekend-time on the suspect. In most of these cases you find that the police promise the suspect to be released after his/her statement is made.

Do not panic during an arrest, you may suffer some discomfort at first but afterwards almost each and every accused will get bail… remain cool, calm and collective, you will demand the respect by the police that you deserve. You are entitled to full disclosure of the charge against yourself but remember your defence only starts at COURT proceeding… do not start your defence on arrest.

On your first appearance in court, you have the right to apply for your release on warning or bail. The amount of the bail should be set at the riskof  you standing trial, the seriousness of the crime, the interest  of the community and your personal circumstances will be considered.

On the second appearance at court, you may be asked how do you plea to the charge/s against you… guilty or not guilty… the latter requires from you to disclose the nature of your defence. Pleading not guilty covers you with a presumption of innocence until the state has proven a prima facie case against yourself, your duty will be to answer that, create a reasonable doubt by calling your own witnesses.

There is no burden of proof on your shoulders… so beware at this stage of pleading that your defence may include some admissions to the charge that you can’t withdraw, besides why help the state to prove its case while you may apply to be discharged after the prosecutor closes his case. The safest option will be to remain silent about the basis of your defence unless there is an obvious mistake in the charge against you that may lead to a withdrawal, this scenario should be negotiated before pleading.

Your best ammunition in any defence is the art of cross-examination: The golden rule of evidence is that any witness can only testify to facts that fall within his/her personal knowledge, in other words he/she can only testify about events that he/she saw with his/her own eyes or heard with his/her own ears, observed personally.

The way you conduct your cross-examination of state-witnesses is the fastest way to success or failure, the first witness called by the prosecutor is the most important one for evidence, usually the complainant. Crack or shake the evidence by this witness, the prosecutor may decide to close his case, not to waste the court’s time with other witnesses.

Always start with the background of every witness, learn as much as possible about the witness with short and direct questions about his/her ability to testify about facts in his/her evidence in court. The definition of the alleged crime should be studied before any cross-examination, know the requirements by law, statutory or common law and direct your questions towards non-qualifications thereof.

The so-called fishing expedition in cross-examination is mentioned when the same questions are put to the witness in different ways without any effect or result. The best result will come when you find a change in the version given by the witness to the prosecutor and the version given during cross-examination by yourself. Remember that each and every allegation by a witness against yourself will stand in evidence until contra versed by yourself to the witness.

A very effective way to get any witness to change his version of events is to direct questions around emotional feelings… religion, society and relationships. Most people will change their story during fear, anger or sympathy.

Once you have reached the stage in you trial where your evidence will be needed, you are probably in trouble already. Your version of events should be as short as possible, your evidence directed to those issues that can influence the outcome of the trial, your answers to cross-examination directly to the point without explanation on detail.

A final word of advice on conducting your own defence, is that time is on your side. The state usually has the difficulty to sub-poena witnesses; arrange their presence at each hearing and every postponement may cause a possibility that a witness will not be available at the next hearing. Do not run the risk of having a crime on your record, only because you were in a hurry to end the drama.