Criminal procedure law - SPR 400 / study notes PDF

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CRIMINAL PROCEDURE 420STUDY UNIT 1 : ALTERNATIVE PROCEDURE TO FINALISE A CRIMINAL TRAIL1 DIVERSIONSource MaterialJ Gallinetti ‘Getting to know the Child Justice Act’ Chapter ‘Diversion’ pgPart 7 of the National Policy Directives for prosecutors dealing with diversionsParagraph 4(c) of the NDPP Prose...

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CRIMINAL PROCEDURE 420 STUDY UNIT 1: ALTERNATIVE PROCEDURE TO FINALISE A CRIMINAL TRAIL 1.1

DIVERSION

Source Material J Gallinetti ‘Getting to know the Child Justice Act’ Chapter ‘Diversion’ pg43 Part 7 of the National Policy Directives for prosecutors dealing with diversions Paragraph 4(c) of the NDPP Prosecution Policy (Joubert 70) Child Justice Act 75 of 2008 (Ch 6; Ch 7 (only s 49); Ch 8) CLASS SLIDES SUFFICIENT FOR THIS STUDY THEME. WHAT IS DIVERSION?

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Definition in CJA: o Diversion involves the referral of cases away from the formal criminal court procedures where there exists a suitable amount of evidence to prosecute - A new legislative feature in our law – court must make such order (previously done informally – NICRO & NDPP policy) - Object of the CJA: o To prevent CHILDREN being exposed to the adverse effects of the formal justice system DIVERSION CAN HAPPEN:

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prior to (and instead) of preliminary inquiry at preliminary inquiry (prior to and instead of the trial) during the trial in child justice court Register (s 60) Accreditation of programmes (s 56) See chapter 8 CJA for full discussion of diversion

WHEN MAY DIVERSION BE CONSIDERED- S52(1) - IF child acknowledges responsibility for offence - child has not been unduly influenced to acknowledge responsibility - prima facie case against the child - child has consented to the diversion along with his or her parent, guardian or appropriate adult if available - Prosecutor (Schedule 1 and 2 offences) or DPP (Schedule 3 offences/ in writing) indicates that the matter may be diverted - Probation officer ‘s view regarding diversion in assessment report - only recommendation before the court - Decision to divert is always made by the prosecutor or DPP ito s52: requirements nb (consult victim, investigating officer) S 54 - factors to be considered for selection of option

FAILURE TO COMPLY BY CHILD- S58

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Warrant of arrest/ summons (any of the three magistrates) Inquiry into reasons: o not due to child’s fault (continue/ adapt/ assist child) o due to child’s fault (prosecution/ trial – s 220 admissions/ diversion)

LEGAL CONSEQUENCES-S59 - When child successfully completes diversion: o No new prosecution on same facts \ o No previous conviction o No private prosecution

PURPOSES OF DIVERSION (S51 OBJECTIVES)

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Deal with child outside criminal justice system Encourage child to be accountable for the harm caused Meet particular needs of the individual child Promote the reintegration of child into family and community Provide opportunity to those affected by the harm to express their views on its impact on them Encourage the rendering to the victim of some symbolic benefit as compensation Promote reconciliation between the child and the person/ community harmed Prevent stigmatising child + adverse consequences flowing from being subject to the criminal justice system; Reduce the potential for re-offending Prevent having a criminal record Promote the dignity and well-being of the child + development of sense of self-worth and ability to contribute to society

LEVELS OF DIVERSION LEVEL 1 DIVERSION OPTIONS (SCHEDULE 1 OFFENCES):

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Oral or written apology Formal caution - with/ without conditions Orders: o supervision and guidance o reporting o compulsory school attendance o family time o peer association o good behaviour o prohibiting child from visiting/ frequenting/ appearing at place

LEVEL 1 & 2 (OVERLAP)

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Referral to counseling or therapy Compulsory attendance: vocational/ educational/ therapeutic programs Symbolic restitution Restitution of a specified object Community service Provision of some service or benefit by the child to a victim; and Payment of compensation

LEVEL 2 DIVERSION OPTIONS (SCHED 2 + 3 OFFENCES) :

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Compulsory attendance of vocational, educational or therapeutic programmes, which may include a period of temporary residence

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Referral to intensive therapy, which may include a period of temporary residence Placement under the supervision of a probation officer on conditions which may include restriction of the child’s movement without prior written approval. Add measures – across levels - S 53(7): family group conferences (s 61) victim offender mediations (s 62) other restorative justice processes may replace above diversion orders/ use in combination

DIVERSION FOR ADULTS - NDPP policy guidelines: minor offences/ taking responsibility/ fixed address - Hatfield community court - No accreditation of programmes required- more adult diversions than child diversions - Example of Gibbs: arrested for driving under the influence –had to attend programme & teach children cricket FIND CJA ATTACHED TO EMAIL. 1.2 PLEA AND SENTENCE AGREEMENTS- S105 CPA Source Material Joubert Ch 14 par 3

PLEA BARGAINING INTRODUCTION

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The traditional forms of plea bargaining such as negotiation and agreement between the parties have always taken place in practice in various formats. The main object thereof is to lighten the burden which the accused has to bear o In the sense that: the accused faces less serious implications as far as sentence is concerned AND o To spare the State the time and expense involved in a lengthy criminal trial with all of its attendant evidentiary risks Statutory plea bargaining/negotiation was introduced for the first time in SAn criminal procedural law by the insertion of S105A into the CPA, by way of the 2nd Criminal Procedure Amendment Act of 2001

TRADITIONAL PLEA BARGAINING

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To achieve this object a plea to a lesser offence (which may be an offence which is a competent verdict to the offence charged or an alternative charge) is negotiated with the prosecutor, which the latter agrees to accept o Eg: an accused that is charged with murder tenders a plea of guilty to culpable homicide. Alternatively, the accused pleads guilty to the charge, but on a different basis from that alleged by the State o Eg: the accused is charged with murder committed with dolus directus and tenders a plea of guilty on the basis of dolus eventualis instead. In both these Egs an agreement is reached with the prosecutor on the facts which are to be placed before the court to justify a conviction on the basis agreed to. Another form of plea bargaining occurs when more than one accused stands arraigned on a particular charge/s, and an agmt is reached wherein it is stated that the accused, who is undoubtedly guilty, will plead guilty in return for the withdrawal of the charge(s) against the other accused. An accused may also undertake to supply vital info to the investigating officer, which expedites and is necessary for the proper investigation of the case, on the understanding that the accused will not be prosecuted o this would entail that the investigating officer is approached, with the consent of the prosecutor, to initiate negotiation.

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Where an accused faces numerous charges, an agreement can be reached with the prosecutor that the accused pleads guilty to a specified number of charges, in return for an undertaking that the remaining charges will be withdrawn. o this procedure is often followed to avoid a lengthy and expensive trial. The prosecutor and the defence CANNOT bind the court to a sentence o The prosecutor CAN however agree to suggest to the court a possible light/er sentence o Eg: a fine and not imprisonment The negotiating process may in some instances be simple o The legal rep will make an offer that the accused will plead guilty to the lesser offence, which will then be accepted by the prosecutor In more involved matters the negotiating process may take months to complete. In accordance with basic fairness and justice the State is to be held to a plea bargain it has made.

STATUTORY PLEA BARGAINING

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Ito s2 of the Criminal Procedure Second Amendment Act 62 of 2001, a new s105A has been inserted into the CPA. Ito s105A the process of plea bargaining has now been formalised in the CPA o In essence it is a codification of the traditional plea bargaining process (discussed above). The central innovation is that the prosecutor can now also reach an agmt with the defence on the sentence to be imposed. Certain mandatory formalities are prescribed, such as that the whole agmt must be in writing. The time for entering into an agmt/s is before the commencement of the trial o ie before plea s105A does not apply to a charge/s on acceptance of plea during trial o It is also not a once-off situation: if the court has ruled for a de novo trial (on the merits or the sentence), the parties may not enter into a plea and sentence agmt iro a charge arising out of the same facts. In determining whether a plea agmt complies with the requirements stipulated in s105A, a court will also examine ss(1)(b)(iii), which provides for the participation of the complainant/victim (Sassin [2003] 4 All SA 506 (NC)). The scheme of s105A is broadly as follows: o An ‘authorised in writing’ prosecutor and a legally represented accused may negotiate an agmt on plea and sentence. Non-represented accused are excluded from the provision. o The judicial officer is not to participate in the negotiations. It may be asked what the ambit of the prohibition is: It would be a pity if it were to preclude the parties from obtaining an intimation from the judicial officer as to whether he would be willing to consider Eg: a non-custodial sentence. o In court the judicial officer officer must question the accused on the contents of the agmt to satisfy himself whether he is in fact admitting all the allegations in the charge. If the court is satisfied, it proceeds to the sentencing phase without, for the moment, recording a conviction. o When considering the sentence agmt, the court must be satisfied that the sentence agmt is just, and if so, the court convicts the accused and sentences the accused to the sentence agreed upon. If the court is not so satisfied, it informs the parties of the sentence which the court considers just. In the latter event, 2 possibilities arise: 1. The prosecutor and the accused may elect to abide by the agmt on the merits and the court then convicts the accused and proceeds to consider sentence in the normal way; 2. The other alternative is that the parties (or one of them) opt to withdraw from the agmt: this will mean that the trial MUST start de novo before another judicial officer. Once a trial starts de novo, s105A dictates that the agmt is pro non scripto: o No regard may be had, or reference made, to any proceedings negotiations on the agmt itself, although the accused may consent to all or certain of the admissions made by him, either in the agmt or in the course of the proceeding.

o The parties may not, however, plea bargain ito s105A iro a charge arising from the same facts. o This does not however preclude traditional plea bargaining as it exists in practice. Armugga 2005 (2) SACR 259 (N) - The court noted thato Plea bargaining could be defined as the procedure whereby the accused relinquished his right to go trial in exchange for a reduction in sentence. o The system involves bargaining on both sides, the accused bargaining away his right to go to trial, in exchange for a reduced sentence and the prosecutor bargaining away the possibility of a conviction in exchange for a punishment which feels would be retributively just and cost the least ito the allocation of resources. In the process of bargaining, numerous assumptions are made and mistakes are bound to happen...The fact that the assumptions turn out to be false does not entitle such a party to resile from the agmt. De Koker 2010 (2) SACR 196 (WCC) - Plea bargaining is described as the settlement of the lis between the State and the accused once and for all.

STUDY UNIT 2: INDICTMENTS AND CHARGE SHEETS Source Material Joubert Ch 12

LODGMENT AND SERVICE OF INDICTMENTS AND CHARGE SHEETS INTRODUCTION

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Everyone has the right of access to any information held by the state and any information held by another person that is required for the exercise of protection of any rights- S32 Constitution. This principle applies to various facets of the criminal process: Access to the content of the police docket or relevant parts thereof In Shabalala v Attorney-General, Transvaal and Another; Gumede and Others v Attorney-General, Transvaal, the Constitutional Court gave direction as to the factors and principles that could influence the decision by the prosecution or the court (where relief is sought from the court against the States denial of access) as to whether the accused should be allowed or denied access: In general, an accused person should be entitled to have access at least to documents in the police docket which are exculpatory for the accused (or which are prima facie likely to be helpful to the defence) unless, the State is able to justify the refusal of such access on the grounds that it is not justified for the purposes of a fair trial. Ordinarily, the right to a fair trial would include access to the statements of witnesses (whether or not the State intends to call such witnesses) and such parts of the contents of a police docket as are relevant to enable an accused person properly to exercise that right, but the prosecution may, in a particular case, be able to justify the denial of such access on the grounds that it is not justified for the purposes of a fair trial. This would depend on the circumstances of each case. Considerations to be taken into account are for eg: o the simplicity of the case, either on the law or on the facts or on both; o the degree of particularity furnished in the indictment or the summary of substantial facts ito s144 of the CPA; o the particulars furnished pursuant to s87 of the CPA; o the details of the charge, read with such particulars. The State is entitled to resist a claim by the accused for access to the dossier or to any particular doc in the police docket on the grounds that access is not justified for the purposes of enabling the accused properly to exercise his right to a fair trial; or on the ground that it has reason to believe that there is a reasonable risk that access to the relevant doc would lead to the disclosure of the identity of an informer; or of divulging State secrets; or on the grounds that there was a reasonable risk that such disclosure might lead to the intimidation of witnesses or otherwise prejudice the proper ends of justice. The courts retain a discretion and it should balance the degree of risk involved in attracting the potential prejudicial consequences for the proper ends of justice preferred against the degree of risk that a fair trial may not ensue for the accused (if such access is denied): A court may review and change its own decision later. S39 of the Promotion of Access to Information Act 2 of 2000 provides that: An information officer of a (governmental) public body may refuse access to a police docket before the commencement of the trial, if such disclosure may prejudice the police investigation or prosecution of the crime committed by the alleged offender, and must refuse disclosure if the access to the police docket concerns certain bail proceedings ito s60(14) of the CPA. To be informed of the allegations (s35(3)( a) of the Constitution) An accused has the right (included in his right to a fair trial) to be informed of the charge with sufficient detail to answer it (s35(3)(a) Constitution) The accused may, however , be entitled to have access to the relevant parts of the police docket even the cases where the particulars furnished might be sufficient to enable the accused to understand the charge against him or her but, in the special circumstances of a particular case, it might not enable the defence to exercise its other fair trial rights, for Eg:

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To prepare its own case sufficiently (s35(3)(b) of the Constitution)

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To properly exercise its right ‘to adduce and challenge evidence’ (s35(3)(i) of the Constitution) This includes the right; o to identify witnesses able to contradict the assertions made by the State witnesses or to obtain evidence which might have a sufficient impact upon the credibility of the State witnesses during cross-examination or; o to instruct expert witnesses properly to adduce evidence which might similarly detract from the probability of the versions given by the State witnesses or; o to focus properly on significant matters omitted by the State witnesses to their statement or; o to deal properly with the significance of matters stated in their statements by such witnesses in one statement. In order to avoid uncertainty concerning the facts which must be proved, our law stipulates strict requirements which have to be satisfied when an indictment or charge is drawn up. o NOTE: The term ‘indictment’ is used in connection with prosecutions in a division of the High Court while ‘charge’ refers to a prosecution in a lower court. These docs, in which it is alleged that the accused is guilty of a specific crime/s, furnish specific info, as it is essential that the accused should know exactly what the charge against him is. The legislature, nevertheless, has endeavoured to avoid criminal trials being rendered abortive merely because of insignificant mistakes made by persons who draw up indictments and charge sheets. In the past the requirements for indictments were so strict that the slightest technical error often vitiated proceedings. Our legislature has therefore enacted provisions through the years in order to bring about a less formalistic practice o However this does not mean that an indictment or charge sheet may be carelessly drawn. o The golden rule remains that an indictment/charge sheet should inform the accused in clear and unmistakable language of the charge he has to meet

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IN THE HIGH COURT OF SOUTH AFRICA

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Having decided to indict an accused, the DPP must lodge an indictment with the registrar of the HC o This is a doc presented in the name of the DPP whereby he informs the court that the accused is guilty of the crime therein alleged. o The doc further sets out the date and place at which the crime was allegedly committed, together with certain personal particulars of the accused- s144(1) and (2). Where no preparatory examination has been held, the indictment must be accompanied by a summary of the salient facts of the case, to inform the accused of the allegations against him, provided that this will not be prejudicial to the administration of justice or the security of the State. o The purpose of the summary of the substantial facts is to fill out the brief picture almost inevitably presented by the indictment. o The State is not bound by the summary and cannot be precluded from leading evidence which contradicts it. A list of the names and addresses of persons the DPP intends calling must also be supplied, although this may be withheld if the DPP is of the opinion that the witnesses may be tampered with or intimidated- s144(3). The indictment must then be served on the accused in accordance with the rules of court o Service of the indictment, together with a notice of trial, must take place at least 10 days (Sundays and public holidays excluded) before the date appointed for the trial, unless the accused agrees to a shorter period Service is effected either ito the rules of court, or by the magistrate handing the docs to the accused when committing him to the HC- s144(4).

IN THE LOWER COURTS - Unless an accused has been summoned to appear in court the proceedings at a summary trial ...