Unit 1 a Basic Understanding of Criminal Procedure

Unit 1 – a basic understanding of criminal procedure

Distinguish between the accusatorial and inquisitorial systems of law. To which

system does South Africa essentially adhere? (6)

Accusatorial and Inquisitorial procedures

Difference between the two procedures lies in the functions of the parties.

Accusatorial Procedure:

e.g. Anglo-American systems and SA (although witness can be called by the judge and procedure of questioning contains inquisitorial elements)
Judge is in the role of detached umpire who should not enter the argument between the prosecution and defence for fear of becoming partial or loosing perspective.
Police primary investigative force passing evidence to prosecutor in file formatwho then becomes the dominus litis.
Prosecution decides on appropriate charges, court etc.
Trial is in the form of a contest between two theoretically equal parties.

Inquisitorial Procedure:

e.g. France
Judge is master of proceedings (dominus litis) – he actively conduct | controls the search for the truth by dominating the questions of witnesses | accused.
After arrest: accused questioned by judge not police.
In trial judge primarily does the questioning and not the counsel for defense

Do you agree with the following statement and, if so, why? The presumption of innocence principle is the cornerstone of constitutionalism. If this principle is not upheld at all costs in criminal procedure law and the law of evidence in South Africa, then the law in these categories could be classified as a ``crime control model''.

Crime Control Model

Regards the repression of criminal conduct as the most important function of criminal procedure.

Due Process Model

Regards the adherence to rules which duly and properly acknowledge individual rights at every stage of the criminal process as the only ground on which a conviction and sentence can be secured. Supported by the Bill of Rights.

Criticism – tends to neglect the right of victims of crime and law abiding citizens in favour of the rights of the accused as a result truth seeking suffers.

Both models do not exclude each other, and no existing system of criminal procedure consists of only one model.

Discussion and description of the presumption of innocence applied in the law of criminal procedure

Criminal procedure does not deal with the detection, investigation and prosecution of criminals, but of suspects (not yet charged) and Accused (charged).

The presumption of innocence & legal guilt:

Due to the Presumption of innocence every person is innocent until:-

Convicted by a court of law in compliance with the rules of evidence & criminal procedure.
Conviction is an objective and impartial pronouncement proving legal guilt in accordance with the principle of legality.
Factual or moral guilt is not the same as legal guilt, conviction in any other way except legally may amount to vigilantism, mob trials and even anarchy.

The presumption of innocence as a statement of the prosecution’s burden of proof:

Prosecution to prove every element of the crime. If a single element is not proved beyond a reasonable doubt the accused cannot be convicted.
the onus of proof rests on the prosecution who must prove guilt beyond a reasonable doubt.
If the State does succeed in proving a prima facie case and the accused does nothing to disturb that case, prima facie proof may harden into proof beyond reasonable doubt and

the accused may be convicted because there is nothing which produces a doubt in the court’s mind about the guilt of the accused.

If the accused can make the court doubt reasonably that one of the required elements has been proved, he must be acquitted.
Even if the State’s version is more probable than the accused’s, he will be acquitted if there is a reasonable possibility that his version may be true and it is not even necessary for the court to believe the accused.

The presumption of innocence and the nature of the alleged crime:

Neither the prevalence nor offensiveness of the crime can disrupt the presumption of innocence.
Not convicting an innocent person far outweighs the public interest of bringing the perpetrators to justice.
In Coetzee the Constitutional Court held, inter alia that the more serious the crime and greater the public interest in securing a conviction of the guilty the more important do constitutional protections of the accused become.

The right to silence

Accused can never be forced to testify, he has the right to silence – privilege against self-incrimination.

Constitution guarantees the right of every arrestee to remain silent & not be compelled to make a confession or admission which could be used in evidence against him. As well as the right to remain silent & not to testify during the proceedings.

The root of this is that the subject is a full legal subject and not merely an object of enquiry.
A full legal subject is entitled to participate in his trial according to his own autonomous decisions and to be assisted. He cannot be tried if he is mentally unable to understand enough to participate meaningfully & communicate with his lawyer.
Many of the rights of accused persons can be traced to
The presumption of innocence
The status of the accused as a legal subject.
Coupled with the notion of legality, that the state is not absolute but limited to the rule of law.
No adverse inference should be drawn against his decision to remain silent or not to testify as

he may think that the state is weak and does not merit an answer or the court cannot be trusted
if an element of crime has not been covered by prima facie proof the nothingness of the accused’s silence cannot logically fill the gap of the state’s case.

May cause the conviction where the state has proved a prima facie case and the accused has remained silent, then the state’s evidence is uncontroverted and becomes proof beyond a reasonable doubt as the silence of the defence did not ‘disturb’ the state’s case.

Constitutionalism in the light of what the ``rule of law'' and the legality principle require in a constitutional state, for example that juridical guilt is important in a constitutional state. This means that it is not important to secure a verdict of guilty at any cost and by any means whatsoever, but that it is imperative that the rules of evidence and criminal procedure law be complied with according to the entrenched rights in the Constitution. It also means that the burden of proof generally falls on the state to prove the guilt of the accused beyond reasonable doubt; that if a legal provision shifts the burden of proof to the accused, then the restriction of the constitutional

right of the accused to be deemed innocent until proven guilty must comply with the limiting provisions of section 36 of the Constitution, namely that the restriction must be reasonable and justifiable as in an open and democratic society based on the principles of human dignity, equality and freedom, taking due account of factors such as the nature of the law, the importance and purpose of the restriction, the nature and extent of the restriction, and whether there is a less restrictive way of achieving the set purpose. A practical example of such a curtailment of the presumption can be found in the inverse or reversed burden of proof in the case of applications

for bail for Schedule 6 offences as contemplated in section 60 (11) of the Criminal Procedure Act, where the accused has to convince the court that unusual circumstances exist under which it is justifiable in the interests of justice that the accused should be released although facing a serious charge. It can be said, therefore, that where bail applications relating to certain serious offences are concerned, South Africa espouses the ``crime control'' model in the interests of justice. The different criteria of proof required for each stage/phase/component may also have an impact on assessment of the type of model.

What are the rights of the arrested suspect and the accused?

Section 35 of Constitution - Arrested, detained and accused persons

(1) Everyone who is arrested for allegedly committing an offence has the right-

(a) to remain silent;

(b) to be informed promptly-

(i) of the right to remain silent; and

(ii) of the consequences of not remaining silent;

evidence against that person;

(d) to be brought before a court as soon as reasonably possible, but not later than -

(i) 48 hours after the arrest; or

(ii) the end of the first court day after the expiry of the 48 hours, if the 48 hours

expire outside ordinary court hours or on a day which is not an ordinary court

day;

(e) at the first court appearance after being arrested, to be charged or to be informed of

the reason for the detention to continue, or to be released; and

(f) to be released from detention if the interests of justice permit, subject to reasonable

conditions.

(3) Every accused person has a right to a fair trial, which includes the right-

(a) to be informed of the charge with sufficient detail to answer it;

(b) to have adequate time and facilities to prepare a defence;

(d) to have their trial begin and conclude without unreasonable delay;

(e) to be present when being tried;

(f) to choose, and be represented by, a legal practitioner, and to be informed of this right

promptly;

(g) to have a legal practitioner assigned to the accused person by the state and at state

expense, if substantial injustice would otherwise result, and to be informed of this right

promptly;

(h) to be presumed innocent, to remain silent, and not to testify during the proceedings;

(i) to adduce and challenge evidence;

(j) not to be compelled to give self-incriminating evidence;

(k) to be tried in a language that the accused person understands or, if that is not

practicable, to have the proceedings interpreted in that language;

(l) not to be convicted for an act or omission that was not an offence under either national

or international law at the time it was committed or omitted;

(m) not to be tried for an offence in respect of an act or omission for which that person has

previously been either acquitted or convicted;

(n) to the benefit of the least severe of the prescribed punishments if the prescribed

punishment for the offence has been changed between the time that the offence was

committed and the time of sentencing; and

(o) of appeal to, or review by, a higher court.

(4) Whenever this section requires information to be given to a person, that information must be

given in a language that the person understands.

(5) Evidence obtained in a manner that violates any right in the Bill of Rights must be excluded if

the admission of that evidence would render the trial unfair or otherwise be detrimental to the

administration of justice.

What is meant by the statement that criminal procedure is a system?

Criminal procedure functions as part of a system which is referred to as the criminal justice system.

Criminal Justice consists of criminal procedure, substantive criminal law, law of evidence in criminal proceedings, law of sentencing and related disciplines and the law governing prisoners and prisons.

The common binding factor between the aforementioned branches of law is that they deal primarily with crime and its perpetrators and form a coherent whole in order to ensure that there is, in the interests of society, firm but fair enforcement of the rules of substantive law in accordance with constitutional and all other legal requirements.

Write notes on the contents and meaning of the privilege against self-incrimination(right to silence). (5)

The right to silence

Accused can never be forced to testify, he has the right to silence – privilege against self-incrimination.

Constitution guarantees the right of every arrestee to remain silent & not be compelled to make a confession or admission which could be used in evidence against him. As well as the right to remain silent & not to testify during the proceedings.

The root of this is that the subject is a full legal subject and not merely an object of enquiry.
A full legal subject is entitled to participate in his trial according to his own autonomous decisions and to be assisted. He cannot be tried if he is mentally unable to understand enough to participate meaningfully & communicate with his lawyer.
Many of the rights of accused persons can be traced to
The presumption of innocence
The status of the accused as a legal subject.
Coupled with the notion of legality, that the state is not absolute but limited to the rule of law.
No adverse inference should be drawn against his decision to remain silent or not to testify as

he may think that the state is weak and does not merit an answer or the court cannot be trusted
if an element of crime has not been covered by prima facie proof the nothingness of the accused’s silence cannot logically fill the gap of the state’s case.

1.a. Name and discuss the remedies available to a suspect, arrested or accused person against any infringement or pending infringement of his or her fundamental rights.

The rights of the suspect are maintained and state official encouraged to conform to the principle of legality by sanctions ranging from informal social sanctions to formal legal sanctions.

The writ of habeas corpus (interdictum de libero homine exhibendo):

Remedy to obtain judicial review of police action – protecting the subject against unlawful deprivation of his liberty.
Court asked for order that the respondent produce the detainee before the court at a certain date.
Order coupled with a rule nisi that the respondent must show reason why the detainee should not be released.
Prima facie reasons for believing the detention is wrongful must be adduced.
The application heard by single judge in civil court & preference on roll.
Application may be made ex parte.
The return date is set as early as possible may be same day.

Civil Action for damages

e.g. on the grounds of wrongful arrest.
A delictual liability which may be used by suspects for compensation of abuse which they suffered.
The interdict:

An order of court whereby a person is prohibited from acting a certain way.
to limit or prevent harm or damage.
May be obtained where harm has not occurred but is threatening.
May be employed during criminal proceedings to obtain relief for e.g. detainees.

Mandamus:

1. The reverse of an interdict – a positive order that a functionary perform their duty.

e.g. Furnish an accused with proper particulars relating to the charges.

5. The exclusionary rule:

Contingent on a finding that admission would be unfair to the administration of justice.
Courts have guided discretion to exclude or admit.
Aims to deter unlawful police conduct in the pre-trial process by rendering illegally obtained evidence inadmissible.
Remedy as a means of maintaining and vindicating the principle of legality.

6. Informal remedies:

To resist unlawful arrest or escape from unlawful custody, however may be risky.

7. Constitutional mechanisms:

1. for maintenance of human rights and legality as against overbearing state action

contained in the constitution.

State and private institutions supporting constitutional democracy. (Public Protector, HRC)

In proving the guilt of an accused person in a state under the governance of the rule of law and committed to respect for fundamental human rights, juridical guilt only is of importance. Discuss the meaning of juridical guilt, indicate the connection between juridical guilt and the presumption of innocence and discuss how these two principles are applied in South African law in the pre-trial and trial phases of the criminal process.(12)

Discuss and describe the presumption of innocence applied in the law of criminal procedure

Criminal procedure does not deal with the detection, investigation and prosecution of criminals, but of suspects (not yet charged) and Accused (charged).

The presumption of innocence & legal guilt:

Due to the Presumption of innocence every person is innocent until:-

Convicted by a court of law in compliance with the rules of evidence & criminal procedure.
Conviction is an objective and impartial pronouncement proving legal guilt in accordance with the principle of legality.
Factual or moral guilt is not the same as legal guilt, conviction in any other way except legally may amount to vigilantism, mob trials and even anarchy.

The presumption of innocence as a statement of the prosecution’s burden of proof:

Prosecution to prove every element of the crime. If a single element is not proved beyond a reasonable doubt the accused cannot be convicted.
the onus of proof rests on the prosecution who must prove guilt beyond a reasonable doubt.
If the State does succeed in proving a prima facie case and the accused does nothing to disturb that case, prima facie proof may harden into proof beyond reasonable doubt and

the accused may be convicted because there is nothing which produces a doubt in the court’s mind about the guilt of the accused.

If the accused can make the court doubt reasonably that one of the required elements has been proved, he must be acquitted.
Even if the State’s version is more probable than the accused’s, he will be acquitted if there is a reasonable possibility that his version may be true and it is not even necessary for the court to believe the accused.

The presumption of innocence and the nature of the alleged crime:

Neither the prevalence nor offensiveness of the crime can disrupt the presumption of innocence.
Not convicting an innocent person far outweighs the public interest of bringing the perpetrators to justice.
In Coetzee the Constitutional Court held, inter alia that the more serious the crime and greater the public interest in securing a conviction of the guilty the more important do constitutional protections of the accused become.

The right to silence

Accused can never be forced to testify, he has the right to silence – privilege against self-incrimination.

Constitution guarantees the right of every arrestee to remain silent & not be compelled to make a confession or admission which could be used in evidence against him. As well as the right to remain silent & not to testify during the proceedings.

The root of this is that the subject is a full legal subject and not merely an object of enquiry.
A full legal subject is entitled to participate in his trial according to his own autonomous decisions and to be assisted. He cannot be tried if he is mentally unable to understand enough to participate meaningfully & communicate with his lawyer.
Many of the rights of accused persons can be traced to
The presumption of innocence
The status of the accused as a legal subject.
Coupled with the notion of legality, that the state is not absolute but limited to the rule of law.
No adverse inference should be drawn against his decision to remain silent or not to testify as

he may think that the state is weak and does not merit an answer or the court cannot be trusted
if an element of crime has not been covered by prima facie proof the nothingness of the accused’s silence cannot logically fill the gap of the state’s case.

May cause the conviction where the state has proved a prima facie case and the accused has remained silent, then the state’s evidence is uncontroverted and becomes proof beyond a reasonable doubt as the silence of the defence did not ‘disturb’ the state’s case.

The constitution of the Republic of South Africa and the National Prosecuting Authority Act provide for the powers of the prosecuting authority and the framework within which such authority must operate. Discuss these powers and statutory framework (but do not include a discussion of the composition of the prosecuting authority.(12)