S v Ehrlich (309/2002) [2002] ZASCA 108 (13 September 2002)

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[2002] ZASCA 108
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S v Ehrlich (309/2002) [2002] ZASCA 108; 2003 (1) SACR 43 (SCA) (13 September 2002)

Appeal
no 309/02
In
the matter between
BRUCE
EHRLICH
APPELLANT
and
THE
STATE
RESPONDENT
Coram :
SCOTT, STREICHER et CONRADIE JJA
Heard : 21
AUGUST 2002
Delivered : 13
SEPTEMBER 2002
Bail appeal – appellant facing charges of indecent assault
involving boys – bail previously cancelled for breach of bail
conditions
– appeal without merit
J
U D G M E N T
______________________________________________________________
SCOTT
JA/
...
SCOTT JA
:
[1]
This is an appeal against the refusal to grant bail. The
appellant is currently on trial in the Regional Court, East London,
where
he faces 14 counts of indecent assault involving minor boys.
He is not a first offender. He was convicted of the same offence in
1991. By reason of the previous conviction, the offences with which
he is now charged fall within the ambit of Schedule 6 of the
Criminal
Procedure Act 51 of 1977 (‘the Act’). This being so, the
appellant was obliged in terms of s 60 (11) (a) of the Act
to
establish on a balance of probabilities the existence of exceptional
circumstances which in the interests of justice permitted
his release
on bail. (The section has survived the scrutiny of the Constitutional
Court. See
S v Dlamini
[1999] ZACC 8
;
1999 (4) SA 623
(CC) at 661 D
et
seq
.) Surprisingly, no mention is made of s 60 (11) (a) and its
effect on the application in the judgment of the magistrate refusing
bail or in the judgment of the Court
a quo
dismissing the
appeal. In the event, it is of little consequence. Even applying
the ordinary principles applicable to bail applications
as set out in
ss 60 (4) to 60 (9) of the Act I am satisfied that bail was correctly
refused. Indeed, I have difficulty in appreciating
why leave to
appeal was granted at all, let alone to this Court.
[2]
The matter has a long history. The appellant was
arrested in March 2000. He applied for bail, but it was refused. He
applied
again on 5 May 2000. This time he was successful mainly, it
would seem, because it was anticipated that the trial would only
commence
in September of that year. The conditions of bail were
stringent. One of them was that the appellant was not to be in the
company
of anyone under the age of 18 years. Thereafter, on three
occasions,
viz
9 June 2000, 21 September 2000 and 15 November
2000, he applied unsuccessfully to have the bail conditions amended.
He appealed
against the refusal on the last occasion but the appeal
was dismissed on 19 December 2000. This did not deter him. He
ignored the
condition in question and on 14 May 2001 his bail was
cancelled in terms of s 66 (1) of the
Act. He appealed but the appeal was dismissed.
[3]
On 7 June 2001 the appellant again applied for bail. It
was refused. Further applications for bail followed on 30 August, 25
September
2001 and on 21 February 2002. All were refused. The
present appeal is a sequel to the refusal of bail on 21 February
2002.
[4]
In the meantime, the trial finally commenced in
September 2001. There were various reasons for the delay. In 1996
the appellant
had been charged in the Knysna Regional Court on a
number of counts involving alleged offences of a similar nature to
those he presently
faces. During the course of the trial one of the
assessors withdrew and the proceedings were set aside on review by
the Cape High
Court. One of these counts related to an offence
allegedly committed in the Eastern Cape. This count was added to
those the appellant
presently faces, but it all took time. Once the
trial commenced, it appears that progress was slow. Not only was
there a heavy court
roll to contend with but much time was lost while
the appellant consulted with his legal aid attorney after each
witness completed
his evidence-in-chief. The appellant also brought
three separate applications for the presiding magistrate to recuse
himself.
All were refused. The last was heard on 14 December 2001.
The appellant appealed but without success.
[5]
While out on bail the appellant was given legal aid. The
appellant was highly critical of the attorney appointed to act on his
behalf and following the application to have the appellant’s bail
withdrawn the attorney applied for and was granted leave to withdraw.
Another attorney was appointed by the legal aid board. He too was
criticized by the appellant and after he had been relieved of
his
mandate he withdrew in February 2002 shortly before the bail
application on 21 February 2002. By this time the trial had taken
up
some 20 court days. Eighteen witnesses had given evidence, including
the complainants in seven of the 14 counts.
[6]
The appellant was unrepresented at the hearing on 21
February 2002. At the time he was embroiled in a dispute with the
legal aid
board which apparently was reluctant to afford him further
legal aid in the light of what had gone before. In addition, he
wanted
to be represented by an advocate, not an attorney. One of the
grounds he advanced at the bail hearing was that by reason of his
detention in prison and inability to generate funds he was unable to
procure legal representation which he required not only for
the trial
but also for two applications he wished to bring before the High
Court, one being for a stay of the criminal proceedings
on the ground
of unreasonable delay, the other to review the decision of the legal
aid board.
[7]
It was on the strength of this ground that the Court
a
quo
granted the appellant leave to appeal. Indeed, despite the
appellant’s assertions to the contrary, there were in reality no
other
new facts distinguishing the application from the previous one.
(I mention in passing that we were informed by counsel that the
appellant has in the meantime been afforded further legal aid and
that the trial has progressed to the stage where the State has
closed
its case.)
[8]
The dilemma in which the appellant temporarily found
himself,
viz
without legal representation and deprived by
reason of his imprisonment of the ability to earn money to pay for
such representation,
is no doubt a factor which in appropriate
circumstances may be taken into account when determining the issue
of bail. But it goes
without saying that it is a factor which must
be weighed in the light of other relevant considerations. The
appellant was largely
instrumental in the withdrawal of his second
attorney. The predicament in which he found himself was therefore at
least partly his
own doing. But quite apart from the circumstances
in which the attorney came to withdraw there are other factors which
weigh heavily
against the granting of bail. As previously mentioned,
the appellant has a previous conviction for a similar offence. On
that occasion
he pleaded guilty. Professor Edwards of Rhodes
University was called to give evidence in mitigation. On the basis
of his clinical
examination of the appellant he diagnosed him as
being a regressive paedophile. The appellant denies the correctness
of Professor
Edwards’s diagnosis and denies that he was guilty of
the charge to which he pleaded guilty. He now insists that he
pleaded guilty
as a result of poor legal advice. His evidence in this
regard is hardly persuasive. Following his plea of guilty, he was
sentenced
to imprisonment which was suspended conditionally. One of
the conditions was a prohibition against making contact with
under-age
boys. As a result of a breach of this condition the
sentence was put into operation and the appellant was sent to prison.
This
notwithstanding, he breached a similar condition while out on
bail pending the commencement of the trial in the present case. As
in the case of the previous breach the appellant sought to justify
his conduct, but the excuse is unconvincing. The point is that
he
breached a condition of his suspended sentence with full knowledge of
the consequences. This landed him in prison. While out
on bail in
the present case he sought, but failed, to have the condition
removed. He even took the magistrate’s refusal on appeal.
Once
again he breached the condition. As the Court
a quo
correctly
observed, the appellant has shown himself to be unworthy of being
trusted.
[9]
Even applying the ordinary principles applicable in
applications for bail, I can see no basis for interfering with the
decision of
the magistrate to refuse bail in the exercise of his
discretion. In the present case, as I have said, the appellant was
obliged
in terms of s 60 (11) (a) of the Act to establish the
existence of exceptional circumstances which in the interests of
justice permitted
his release on bail. He quite clearly failed to do
so.
[10]
The appeal is dismissed.
D G SCOTT
JUDGE OF APPEAL
CONCUR:
STREICHER JA
CONRADIE JA