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CRIMINAL PROCEDURE EXAM05.TRUE / FALSE : A district court has the jurisdiction to try serious offences against the State. TRUE A regional court may try offences except treason, murder, rape and compelled rape. FALSE – regional courts have jurisdiction to try all crimes except treason. South Africa f...

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CRIMINAL PROCEDURE EXAM 05.06.2020

TRUE / FALSE : 1. A district court has the jurisdiction to try serious offences against the State. TRUE 2. A regional court may try offences except treason, murder, rape and compelled rape. FALSE – regional courts have jurisdiction to try all crimes except treason. 3. South Africa follows a system of compulsory prosecution. FALSE 4. A prosecutor may withdraw a case without the permission of the DPP. TRUE 5. An indictment is a document which is used to bring an accused before court in both lower and higher courts. FALSE – only at trial in a supreme court is the charge contained in an indictment. 6. The police are empowered in the case of certain serious offences to arrest persons and detain them for the purpose of interrogation. TRUE 7. The function of further particulars is to define issues and not to enlarge them. TRUE 8. As a rule, the court is bound to the agreement between the State and the defence in the instance of traditional plea bargaining. FALSE 9. The phrase ‘course of the criminal trial’ refers to the procedures which must be followed during the pre-trial stage. FALSE – refers to all the procedures which may / must be followed from the time an accused has pleaded until verdict on the merits, and, if the accused is convicted, the determination of an appropriate punishment imposed by the trial court. 10. The principle of ‘equality of arms’ essentially implies that an unrepresented accused must, during the proceedings enjoy better opportunities than a well-resourced prosecution. FALSE – the principle holds that the prosecution and defence must have equal opportunities in presenting their respective cases. 11. Generally, force must be used to effect arrest. FALSE – force may be used only under certain circumstances. 12. Escaping from unlawful custody constitutes a serious offence. FALSE – an informal way of obtaining relief is to resist unlawful arrest or to escape from unlawful custody. 13. South Africa does not follow a system of compulsory prosecution. TRUE 14. A plea of lis pendens implies that there is another case pending against the accused in another court. TRUE 15. Common assault is a competent verdict on a charge of murder or attempted murder. TRUE 16. A defect in the charge sheet or indictment may be cured by evidence. TRUE

17. Statutory plea bargaining may be concluded by way of oral agreement between the parties. FALSE – certain mandatory formalities are prescribed, such as that the whole agreement must be in writing. 18. With the plea of autrefois acquit the accused implies to the court that he or she was previously convicted on the offence with which he or she is being currently charged. FALSE – if the accused is informed by the magistrate that the DPP has decided not to prosecute him, he may, if charged with the same crime again, plead that he has been previously acquitted of such charge. 19. The review process essentially challenges the decisions of the court on the basis of the merits and the facts. FALSE – an appeal is based on the substantive correctness of the decision by the court based on the facts or merits of the case on the record and the law relevant to such facts, whereas a review is concerned with the validity of the proceedings. 20. Criminal Procedure provides a process that vindicates adjectival criminal procedural law goals effectively. TRUE 21. Procedural Law puts substantive law into action, and the rules of criminal procedure form part of procedural law. FALSE – adjectival law puts substantive criminal law into action and the rules of criminal procedure form part of adjectival law which assists in making substantive criminal law dynamic. 22. Persons who have been found guilty by a Superior Court may automatically appeal to the Supreme Court of Appeal. FALSE – leave has first to be sought from the High Court (or on refusal from the SCA) before an appeal can be made to the SCA. 23. The Supreme Court of Appeal can only amend a sentence on review. FALSE 24. The accused can be described as dominus litis (“master of the suit”). FALSE – the judge is the dominus litis aka “master of the proceedings” 25. Previous convictions are irrelevant in bail applications. FALSE 26. The procedure in terms of which the defence asks questions to the state witnesses is called examination-in-chief. FALSE – examination-in-chief is the process whereby the party who called the witness follow a question-and-answer technique. In cross-examination, the parties who did not call the witness have the fundamental right to question the witness. 27. The test for a discharge is based on the question whether there is sufficient evidence upon which a reasonable man might convict. TRUE 28. A caution amounts to a sentence. TRUE 29. A convicted accused may appeal his or her conviction by a district court to a regional court in the same division. FALSE 30. Previous convictions are regarded as a mitigating factor in sentencing proceedings. FALSE – prev convictions are regarded an aggravating factor in sentencing. 31. The state is the dominus litis and is therefore in control of the prosecution. FALSE 32. The amount of the fine to be paid by the accused is left to the discretion of the prosecutor. FALSE – normally left to the discretion of the court. 33. An appeal court has the general discretion to correct a sentence. FALSE – although an appeal court is vested with jurisdiction to reduce a sentence, it is to be noted that a court of appeal, ie SCA or ‘provincial’ or ‘local’ division with appeal jurisdiction, does not have a general discretion to correct sentences of trial courts.

34. A review is concerned with the validity of proceedings. TRUE 35. No review may be instituted at the instance of the prosecution. FALSE – the divisions of the High Court with jurisdiction may review an alleged procedural irregularity at the instance of the prosecution. 36. Public violence is a competent verdict to a charge of murder. TRUE 37. In general, youth is regarded as an aggravating factor in sentencing. FALSE 38. A declaratory order may be applied for to establish a conviction. FALSE 39. An application for leave to appeal may not be brought verbally in the lower court and the higher courts directly after the verdict. FALSE 40. Extraordinary review proceedings apply in respect of criminal proceedings which are not ordinarily subject to automatic review. TRUE 41. Section 9 of Child Justice Act 75 of 2008 deals with the procedure for child offenders between 10 and 14 years of age. FALSE – deals with children under the age of 10. 42. The methods of securing the attendance of a child at a preliminary inquiry are limited to arrest. FALSE – written notice, summons or arrest. 43. The purpose of the probation officer’s report is to determine the criminal capacity of the child offender. TRUE 44. A preliminary inquiry is an informal inquisitorial procedure conducted in court. TRUE 45. Condonation will be readily granted by the court if there is a reasonable prospect of a successful appeal. TRUE 46. The trial of the accused does not usually commence at his first appearance in court. TRUE

PREVIOUS EXAMS : 1. Discuss the jurisdiction of regional and district courts iro offences. (4) -

A district court has jurisdiction to try all crimes except treason, murder, rape and compelled rape. A district court may even try some serious offences against the state. A regional court may try all crimes except treason – thus both murder and rape.

2. Discuss circumstances under which prosecution against an accused may be withdrawn or stopped. (8) -

The prosecuting authority has the discretion to withdraw a charge before the accused has pleaded. However, the accused is not entitled to a verdict of acquittal, as he/she may again be prosecuted if new evidence is discovered. A prosecutor may withdraw a charge without the consent of his DPP and the DPP, if dissatisfied with the withdrawal, may charge the accused afresh. A DPP may, at any time after the accused has pleaded, but before conviction, stop the prosecution iro that charge and then the accused is entitled to an acquittal.

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The accused can later successfully rely on a plea of autrefois acquit (previous acquittal). A public prosecutor may, however, not stop a prosecution without the consent of the DPP.

3. Discuss the circumstances under which nolle prosequi may be granted by the prosecutor in the instance where he decides not to prosecute. (8) -

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A certificate nolle prosequi is a certificate signed by a DPP in which he confirms that, firstly, he has examined the statements and/or affidavits upon which the charge is based, and, secondly, that he declines to prosecute at the instance of the state – s 7(2)(a). A DPP must, at the request of the person intending to prosecute, grant the certificate nolle prosequi in every case in which he has declined to prosecute. In the case of Mullins and Meyer v Pearlman: o Held that only persons who can prove that they have suffered actual damage as a result of the commission of the alleged offence are entitled to institute a private prosecution. ▪ The mere apprehension of injury or of an invasion of rights which may possibly cause damage in the future is insufficient. Two or more persons may not prosecute in the same charge, except where two or more persons have been injured by the same offence – Williams v Janse van Rensburg. The DPP is not entitled to investigate whether the person requesting the certificate nolle prosequi has the locus standi to apply for such certificate – instead, at trial the accused can raise lack of locus standi of the private prosecutor. A DPP may refuse to issue such certificate where the applicant is a ‘juristic person’ and not a ‘private person’ as required by section 7(1)(a).

4. Discuss, with ref to the CPA, which articles may be seized from the suspect and exceptions thereto. (8) -

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Section 20 of the Criminal Procedure Act is concerned with articles that nay be seized from the suspect, namely: o Articles which are concerned in or are on reasonable grounds believed to be concerned in the commission or suspected commission of an offence, whether in the Republic or elsewhere (s20 (a)); o Articles which may afford evidence of the commission or suspected commission of an offence, whether within the Republic or elsewhere (s20 (b)); o Articles which are intended to be used or are on reasonable grounds believed to be intended to be used in the commission of an offence (s20 (c)) The only exceptions relate to documents which are privileged and in respect of which the holder of the privilege has not yet relinquished his privilege. o Prinsloo v Newman 1975 (1) SA 481 (A) - accordingly held that such a document may not be seized.

5. Discuss the accused’s right to a passive defence. (4) -

An accused has a passive defence right and is under no obligation to assist the prosecution in its case – Du Toit et al Commentary 11-50A. Combined with the passive defence right is the legal representative’s common law right to control the defence case. The passive defence right of the accused and the legal representative’s control of the defence case do not absolve the defence lawyer from the ethical duty which binds every defence counsel.

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Legal representatives should therefore avoid strategies that are only designed to cause unnecessary questioning, thus causing an excessively long record, or unnecessary technical objections that do not assist to clarify matters. Control of the defence case does not absolve a legal representative of his/her ethical duty towards the court and the process.

6. Discuss the factors which were set out in Ex Parte: Minister of Safety and Security: In Re: S v Walters 2002 (4) SA 613 (CC) regarding the use of force in order to effect arrest. (10) -

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In this case, the CC stated the law w regard to the use of force in order to effect arrest as follows: o The purpose of arrest is to bring before court for trial persons suspected of having committed offences. o Arrest is not the only means of achieving this purpose, nor always the best. o Arrest may never be used to punish a suspect. o Where arrest is called for, force may be used only where it is necessary in order to carry out the arrest. o Where force is necessary, only the least degree of force reasonably necessary to carry out the arrest may be used. o In deciding what degree of force is both reasonable and necessary, all the circumstances must be taken into acc, incl the threat of violence the suspect poses to the arrester or others, and the nature and circumstances of the offence the suspect is suspected of having committed; the force being proportional in all these circumstances. The following requirements must be complied with before the arrester may use force in order to effect the arrest: o The person who is to be arrested must have committed an offence. If the arrester is acting on suspicion, the suspicion must be reasonable. ▪ In deciding this, the test is objective – ie the circumstances should be such that a reasonable person would also have concluded that the suspect has committed an offence – Nell 1967 (4) SA 489 (SWA) o The arrester must be lawfully entitled to arrest the suspect. o The arrester must attempt to arrest the suspect. o The arrester must have the intention to arrest the suspect and not to punish him/her. o The suspect must attempt to escape by fleeing or offering resistance. o The suspect must be aware that an attempt is being made to arrest him/her and must in some way be informed of the intention and continue to try and flee or resist the attempted arrest despite being aware thereof. o There must be no other reasonable means available to effect the arrest of the suspect. o The force used must be directed at the suspected offender. o The degree of force must be reasonably necessary and proportional in all the circumstances.

7. Release on bail shall be refused, if such release is not in the interests of justice. Discuss the grounds on which such release will not be in the interests of justice. (5) -

Section 60(4) of the CPA provides that refusal of such release will be in the interests of justice where one or more of the following grounds are established: o Where there is a likelihood that the accused, if released on bail, will endanger the safety of the public or any particular person or will commit a Schedule 1 offence; or o Where there is a likelihood that the accused, if released on bail, will attempt to evade his/her trial; or

o Where there is a likelihood that the accused, if released on bail, will attempt to influence or intimidate witnesses or to conceal or destroy evidence; or o Where there is a likelihood that the accused, if released on bail, will undermine or jeopardise the objectives or the proper functioning of the criminal justice system, incl the bail system; or o Where in exceptional circumstances there is a likelihood that the release will disturb the public order or undermine public peace or security. 8. Define the powers of private persons to arrest another person. (5) -

Ito section 42, a private person may, w.out a warrant, arrest the following persons: o Any person who commits or attempts to commit in his presence or whom he reasonably suspects of having committed a Schedule 1 offence; o Any person whom he reasonably believes to have committed any offence and to be escaping from and to be escaping from and to be freshly pursued by a person whom such private person reasonably believes to have authority to arrest that person for the offence; o Any person whom he is by any law authorised to arrest without a warrant iro any offence specified in that law; o Any person whom he sees engaged in an affray; o The owner, lawful occupier or person in charge of property on iro which any person is found committing any offence, and any person authorised thereto by such owner.

9. Discuss competent verdicts for robbery. (5) -

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Section 260 of the CPA holds that the competent verdicts ito robbery or attempted robbery are: o Assault with intent to do grievous bodily harm; o Common assault; or o Theft Robbery is the only crime where an accused can be convicted of 2 other crimes if the single robbery charge is not proved but the other two latent crimes are: theft and common assault, or theft and assault with intent to do grievous bodily harm as two separate competent verdicts. The reason for this: the substantive criminal law definition of robbery, which is the theft of property through the use of violence where there is a causal link between the violence and the taking of the property. Thus where there is a single charge of robbery and the evidence fails to establish the causal link between the theft and violence, there may nevertheless be proof of theft and violence – thus, two competent verdicts.

10. List any 5 sentences introduced by the Child Justice Act 75 of 2008. (5) -

Imprisonment; Compulsory residence in a care centre; Correctional supervision; Fines; and Community-based sentence

11. Briefly discuss the objectives of sentencing child offenders ito the Child Justice Act 75 of 2008. (5) -

Encouraging the child to understand the implications of the crime and to accept responsibility for the harm;

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Finding a balance, within the facts of the specific case, between the interests of the child and society and the seriousness of the crime; Promoting the reintegration of the child into the family and community and ensuring that the child receives the required guidance and supervision to this end; Avoiding imprisonment as far as possible.

12. What do you understand by the “audi alteram partem” principle? (3) -

The principle refers to the need to hear the other side, or hear both sides of the matter, before coming to a conclusion or judgment regarding it.

13. What are the general principles of sentencing that are enumerated in S v Rabie 1975 (4) SA 855 (A)? (3) -

The punishment should fit the crime, be fair to society and be blended with a measure of mercy, depending on the circumstances.

14. Discuss the basic differences between the appeal and review procedure in circumstances where constitutional issues are not exclusively involved. (4) -

Both processes are inherently aimed at setting aside a conviction or a sentence. The difference between appeal and review in matters where constitutional issues are not exclusively involved are: o An appeal may be brought against findings of a lower court on any point of law and/or fact. ▪ A review ito the Supreme Courts Act may be brought only on the ground of specific procedural irregularities. o In an appeal, the parties are confined to what appears on record, but – ▪ In a review, it is permissible to prove any of the grounds for review (incl alleged irregularities which do not appear on the face of the record by affidavit so as to show that a judge had an interest in the cause or that he acted maliciously or corruptly. o A review is not generally permissible on a finding of fact unless that finding is so unreasonable that it constitutes an irregularity. ▪ Any question of law or fact, as well as any irregularity appearing on the face of the record, may be raised by means of an appeal. o An appeal must be brought within a specific period of time, whilst – ▪ There is no limit to when a review must be brought. o Appeal means that a retrial on the record will take place, whereas – ▪ In the case of review, facts can be brought to the notice of the court by means of an affidavit in order to prove the irregularity, and the enquiry is then whether the proceedings have been in acc with justice and/ or whether the accused has been prejudiced by the irregularities in the proceedings. o A court has no inherent appellate jurisdiction and its powers on appeal are statutorily limited. It is thus not possible to invoke the court’s appellate powers by any means other than those set out in the relevant s...