Criminal Procedure – Phase 2 The Trial

1Chapter 12 – Indictments and Charge Sheets

ALodgement and service of indictments and charge sheets

Rights of access allowed to any person in terms of s32 of the constitution for the exercise of protection of any rights – this extends to criminal process – an accused is in principle entitled to have access to documents in the police file but not if such disclosure will prejudice the police investigation (s39 of the Protection of Access to Information Act 2 of 2000). An accused has the right to be informed of the charge with sufficient detail to answer it.

The law stipulates strict requirements when the charge isdrawn up. But the legislature has tried to avoid trials rendered abortive because of insignificant mistakes, thus there is now a less formalistic process. However the golden rule remains that an indictment should inform the accused in a clear and unmistakeable language of the charge he has to meet.

An indictment in the superior court:

  • DPP lodges a document informing the court that the accused is guilty of an alleged crime – the document contains; date, place of crime and summary of salient facts if no preparatory examination has been held.
  • The state is not bound by the facts and can lead other evidence.
  • List of names and addresses of persons the DPP intends calling must be supplied but can be withheld if these witnesses may be tampered with.
  • Indictment then served, together with trial notice at least 10 days before the trial unless a shorter period agreed to.

Charge in lower court

  • the proceedings of a summary trial are commenced by lodging a charge sheet with the clerk of the court and is presented in court.
  • The accused is brought to court by summons, written notice or under arrest.
  • The latter two methods is on short notice but a summons must be served at least 14 days before the trial.
  • Accused can apply for extension to court if they believe there is insufficient time for preparation.

BForm and substance of charges and indictments

  • Charge sheets kept as simple as possible.
  • Offence must be set out in such a manner that the accessed is sufficiently informed of the nature of the charge against him. – S84
  • All the elements of the offence should be disclosed and sufficient particulars related to time, place, against whom and property.
  • S92 – certain omissions will not invalidate the charge – for example if time, is not of essence to the offence the indictment is not necessarily deficient.
  • If the accused raises an alibi that would otherwise prejudice him then the court has to reject the alibi.
  • The place where the crime was committed may also be of essence

Incriminating factors must be proved by the prosecution and must be mentioned in the charge. Exculpatory factors must be proved by the accused.

If words or particulars in the charge are superfluous an amendment may be made if it does not prejudice the accused – if not made it does not affect the validity of the proceedings.

S87 - If the accused feels that the particulars are insufficient, he or legal representatives may request particulars or further details from the prosecutor. A court may also order this. If the accused fails to apply for particulars he cannot set up such a defect on appeal.

The function of particulars on the charge sheet is to define them and not enlarge – the prosecutor must give particulars about evidence to be led and is not entitled to set out an endless list of alternatives. If the trial court refused an application for particulars, and on appeal it appears the accused was prejudiced the conviction can be set aside.

CDefect in indictment or charge cured by evidence

Prior to 1959 the courts required indictments to disclose the offence and facts which if proved would render the accused guilty. Where a material element was omitted, the accused could be found not guilty even though the evidence proved otherwise. To change this s 179bis was introduced which allowed defects to be cured by evidence proving the matter which should have been averred – this is now S88 – defect in charge cured by evidence.

Some further comment;

  • At the very least the offence should be named in the indictment
  • The prosecutor should exercise caution in framing the charge that does not disclose the offence
  • If the accused brings the want of averment to the notice of the court and the court refuses to amend the charge the accused may on appeal rely on the defect
  • A defect can only be cured by evidence proper
  • S88 does not authorise replacement of one offence by another.

DCorrection of errors in charge

S86 makes provision for the amendment of an indictment;

  • where it is defective for want of an essential averment;
  • where there is a variance between he averment in charge and the evidence offered in proof;
  • where words have been omitted or unnecessarily added.

Comments;

  • s86(1) the court may order an amendment only if this will not prejudice the accused. There will not be prejudice if there is but a slight variance or where the defence would have remained the same
  • S86 makes provision for amendment of the charge, not replacement with another – the approach to adopt is to ascertain whether the amendment differs from the original to such an extent that it is a new charge. Should a new charge be framed the possibility of prejudice is strong.
  • S86(4) provides that the fact that a charge has not been amended shall not affect the validity of the proceedings

Combined effect of S86 and S88;

  • Unless prejudicial, an amendment to the charge can be made at any time before judgement
  • Inadvertent failure to amend a charge does not affect a guilty verdict provided the necessary evidence has been forthcoming
  • A defect in the charge can be adduced on appeal if the trial court knowingly failed to correct it.

ESplitting of charges or duplication of convictions

It happens frequently that one and same act constitutes more than one offence. General considerations of fairness militate against a perpetrator being charged and convicted of all the offences. In Grobler, the rule against the splitting of charges was directed at the duplication of convictions. The State may formulate as many charges as the available facts justify and no exception can be taken if the accused is charged with more than one offence in respect of one punishable fact. If though it appears that on the facts two charges comprise only one, the court will convict on one only. The rule against the duplication of offences is approached on the following bases;

  • A single act constitutes more than one statutory offence or statutory and common law offences: s336 provides for this but the perpetrator may not be held liable for more than one punishment e.g. driving under the influence and reckless driving constitutes duplication
  • A single act constitutes more than offence at common law e.g. charged with rape and incest arising from the same act he can be convicted of only one offence
  • More than one act of the same nature or more or less the same nature is committed practically simultaneously constituting more than one offence; the test applied is – were the acts done with a single intent in one continuous transaction or does the evidence required to prove the one charge necessarily involves proof of the other. If the totality can be accommodated in one charge the accused may not be convicted of multiple charges. But where the nature of separate acts and the intent of each differs considerable then multiple charges can be applied. E.g. if an act of rape is then accompanied by robbery the accused may be convicted of both
  • Conduct of the perpetrator is spread over a long period of time and amounts to continuous repetition of the same offence – courts have conflicting decisions.

Prejudice can result if an accused is convicted of more than one offence arising from the same set of facts and the combined punishment could exceed that which a magistrate would have been competent to impose if the accused was found guilty of one charge only. The number of convictions could affect the accused in subsequent convictions .

FJoinder of offences

In practice the prosecutor will charge with the most serious offence and the lesser offences as alternative charges. Any number of offences may be charged in one indictment but must take place before any evidence has been led in respect of any charge. The court though could direct that charges thus joined be tried separately.

GJoinder of several accused

S155 provides that any number of participants in the same offence may be tried together as well as any number of accessories after the fact. S156 provides that when two or more persons have committed separate offences at the same time and place and the prosecutor informs the court that the evidence led would be admissible in each trial, these may then be joined. This section does state that if it is in the opinion of the public prosecutor as to admissibility but the court should satisfy itself of the prosecutor’s bona fides.

2The Court

AVenue of the Court

For a superior court the venue is fixed at the permanent seat of the provincial and local divisions. Lower courts sit at places assigned by the president. If an accused is brought before a court lacking jurisdiction he may object but if he doesn’t he can’t object when the trial has run its course and a conviction is secured. S149 allows for removal of a criminal case from one superior court to another on application by the prosecution or accused, but will not be granted unless the applicant can show it is in the interests of justice. A court can remove the trial to another venue in order to protect the witnesses.

BConstitution of the Court

Lower Courts

These are presided over by magistrates. In a district or regional court the trial magistrate may summon one or two assessors to assist him before any evidence is led.

At a trial in a regional court in respect of murder, the judicial officer must summon two assessors unless the accused allows the trial to otherwise proceed. Non-compliance with this is considered a failure of justice. In considering the summoning of assessors, the officer needs to take into account the cultural, social and educational background of the accused, nature and seriousness of the offence, interests of the community etc. The assessors commence their duties after the plea has been recorded – with regards matters of fact, the majority decision carries on matters of law the judicial officer.

The prosecutor or accused may apply for an assessor’s recusal and the presiding officer may order such if he is satisfied that; the assessor is conflicted; there is a personal interest; likelihood of bias; assessor is absent; assessor has died. An assessor may also request their own recusal on the basis of the above. The presiding officer is obliged to give reasons for an order of recusal.

Abscondment during the trial of an assessor without good reason and the trial continues is a fatal irregularity.

Superior courts

Criminal courts are tried either by a judge alone or sitting with one or two assessors. In practice the judge is obliged to rely to a certain extent on the recommendation of the DPP or member of his staff. A failure to give consideration to having assessor constitutes a serious irregularity even when the accused has agreed to dispense with them.

An assessor is a person who in the opinion of the judge has experience in the administration ogf justice and could be an advocate, magistrate etc or an expert in a particular field (engineering, accountancy etc) If an assessor is unable to continue at any time the judge may direct the trial to proceed or begin anew. Where this has been found it is incumbent upon the judge to hear the parties on the question of how the proceedings will continue.

Rights and duties of assessors

Before the trial commences the assessors must take an oath and after this they become members of the court with the following provisos

  • A decision or finding on fact is taken by the majority of the court – in the case of one assessor, the judge rules
  • The presiding judge may decide it would be in the interests of justice that the assessor(s) do not take part in any decision on the admissibility of evidence, confession or statement and thus may sit alone for this purpose.
  • The presiding judge alone shall decide upon questions of law or whether a matter constitutes a question of law or question of fact.
  • In a criminal trial the judge shall give reasons for his decision on questions of law or whether any matter constitutes a question of law or question of fact

When an assessor receives information detrimental to the accused which has not been tested in court, he will retire. The assessor needs to show absolute impartiality. The assessors have no part to play in the assessment and imposition of sentence.

Trial by jury

Discontinued in 1969 – main objection is that it is cumbersome and inefficient and that judicial decisions should be left in the hands of specialists.

CImpartiality and Fairness

The concept of justice in its procedural sense is closely related to legality. It does not matter whether the accused is guilty or not, the only question is whether the basic right to a fair trial has been affected by an irregularity to such an extent that it can be said that justice was not done. The standards which the judicial officer should maintain include;

  • The court must not conduct its questioning such that its impartiality can be questioned or doubted
  • The court should not take part in the case to such an extent that its vision is clouded and then unable to adjudicate properly
  • The court should not intimidate or upset a witness or accused so that answers are weakened or credibility shaken
  • The court should control the trial such that is impartiality, fairness etc is evident to all

The presiding judge must be absolutely fair to both the prosecution and defence. No ruling of any importance either on the merits or on procedural points should be made without giving both parties the opportunity of expressing their view. Judicial officers must base their decisions solely upon evidence heard in open court in the presence of the accused. Evidence must be given under oath or upon solemn affirmation in lieu of an oath.

Fairness to the accused

Where the accused is undefended, the court should ensure that the accused is aware of his rights at all times. These rights have to be explained by the presiding judicial official. The accused rights include the right to cross examine in the language of choice. , putting of his defence to state witnesses, to call witnesses, to produce relevant documents, to record evidence, to present argument to court and to make representation regarding sentence.

Presiding officer needs to be patient and courteous at all times. It is a general principle that the court is not entitled to question the accused on the merits of the case unless he testifies under oath. The accused may offer a defence of silence.

After an accused has been convicted the court is entitled to know of previous convictions in order to assist in sentencing. During the trial all knowledge of previous convictions should be kept from the court since it could prejudice the accused. The accused will not be entitled to complain of inferential knowledge of previous convictions or disclosure by the defence. However if this information is improperly disclosed the conviction can be set aside unless the court of appeal is satisfied that no failure of justice has occurred.

Recusal

It is clear that no person with an interest in the matter should adjudicate thereon. The CPA does not contain any provisions and hence common law rules apply

Application for recusal of a judicial officer –requirements for the test are as follows;

  • There must be a suspicion that the judicial officer might be (not would) be biased
  • The suspicion must be that of a reasonable person in the position of the accused
  • The suspicion must be on reasonable grounds
  • The suspicion is one which the reasonable person would (not might)have held

Where a magistrate has in a previous capacity as a prosecutor been concerned with the merits of the case he must recuse. Similarly it is irregular for a presiding officer to hear an application for bail when he has taken down a previous confession. The principle is that no reasonable man should by reason or action of the judicial officer have grounds for suspecting that justice will not be administered in an impartial fashion. If there are these presumptions then this must be proved. This is an objective test. A magistrate is not disqualified because previously he has dealt with a similar charge against the accused. Similarly mere knowledge of the facts of the case, knowledge of the facts in civil proceedings and previous convictions afford grounds for recusal. A recusal and subsequent conviction by another judge is not seen as a failure of justice. A judge who recuses himself renders the trial void and a new trial must be instituted.