SPR Print ME - Notes for Criminal Procedure Law PDF

Preview

Summary

PROCEDURE THEME 1: INTRODUTION: Hey so this is pretty much the slides. I have however added in the little bit more to give the cases some more background and Ive changed the format a little bit. Hope it helps! Good luck! Anja Criminal law is part of the adjective (procedural) law. It is used to enfo...

Description

`CRIMINAL PROCEDURE

THEME 1: INTRODUTION: Hey guys… so this is pretty much the slides. I have however added in the little bit more to give the cases some more background and Ive changed the format a little bit. Hope it helps! Good luck! Anja Criminal law is part of the adjective (procedural) law. It is used to enforce the rules of substantive law within the criminal law sphere. Difference between Substantive and Formal law: Substantive law: Legal rules; Rights and duties Individuals vs. State Private Law

Public Law

Formal (adjective) law: Criminal Procedure fits into formal law Substantive Criminal law needs the formal law to:  Put the Substantive criminal law into action Law of evidence operates in tandem with criminal procedure rules

Ex substantive criminal law  Determines the prerequisites for Criminal liability  Describes the various elements of crimes Attaches sanctions for breach of prohibitions

Crime Control and Due Process A balance must be struck between the society’s interest in effective criminal law enforcement and society’s interest of the protection of the rights of suspects, arrestees, accused and convicted persons Internal Tensions: How the different interests of society are balanced: 1. The system must recognise the fact that criminal procedure does not just apply to criminals and that innocent people can also get drawn into the system 2. Liberty of an innocent person should not be sacrificed in order to increase crime control 3. If the state had absolute powers it would be able to prevent crime easily, however the people would live under state tyranny 4. Criminal Procedure rules must regulates state power by authorising as well as limiting this power 5. Rights of the Accused and the victim will always be in conflict and a balance must be struck 6. If the court would admit reliable and incriminating evidence despite the fact that it was obtained in breach of constitutional rights, by doing so, the courts would set an example

1

that unlawful evidence gathering is acceptable and that criminal procedure is not subject to fundamental rights Position of the Victim in the criminal process: The victim is usually an ordinary witness and called to testify first. He/she must testify in detail about the incident, but may testify during sentencing in respect of the effect of the crime or the victim impact report Frustration: How do some complainants experience the system?     

System focuses on the offender Not properly supported Not properly protected against secondary trauma Not sufficiently informed Not properly compensated

Victim Participation

Statutory Provision S 179(5) of the Constitution

What happens in practice Victim may make representations if the prosecutor declined to prosecute  PP is Dominus Litis S 105(A) of the CPA May make representation during plea and sentence agreements  PP not obliged to accept the same sentence/condition S 300 of the CPA Compensation for damages  May not later be enforced by civil action S 274 of the CPA Court may receive evidence during sentencing proceedings  In hands of PP whether complainant be called or report handed in S 66(1) of Sexual Offences Act Victim impact report must be obtained in sexual offence System in favour of due process does not ignore the rights of the victim. The system merely seeks that no further injustices are triggered. Victim Protection of complainants during: S 144 (3) of the CPA

S 153 (2)

S 158(3)(e) S 170A

Provides that the details of a witness may be withheld if the DPP thinks that such a witness may be intimidated Provides that a witness mat testify behind closed doors and have his details withheld if there is a likelihood that harm may result to such witness Witness may testify through CCTV if doing so would prevent prejudice and harm Court may appoint intermediary if the 2

physical/mental age of the of the person is below 18 years AND undue mental stress or suffering may occur

Supremacy of the Constitution:      

Protective Umbrella Applies to all areas of Law Supreme law of the country Common Law rules and legislation which is in conflict would be set aside Binds legislature, executive and judiciary Binds organs of state

Sec 35 (5) of the Constitution: “Evidence obtained in a manner that violates a right in the Bill of Rights must be excluded IF the admission of that evidence would render the trial unfair or the detrimental to the administration of justice”. Vertical operation of the Constitution in Criminal Procedure provisions:   

Do not regulates relationships between equal persons Regulates relationships between the state and the subject Thus: Regulates the relationship between the interests of the community in state power and interest of the community in individual rights and liberties

Horizontal operation of the Constitution in Crim Proc provisions:  

Binds natural persons and juristic persons Depending on the nature of the right and the duty imposed by the right

How does Constitution reflect Crim Proc provisions?  



Usually stated negatively, thereby limiting state power and prohibiting the infringement of fundamental rights On occasions mandatory: o Right to legal representation o Provision for free legal assistance o Limitations on acts like torture Most rights are not absolute and these may be limited o Who guards the process? INDEPENDENT BENCH

Contents of the Constitution: Sections S7 S8 S 9-35 S 36

Provisions “Cornerstone of Democracy” Places duty on state Vertical and Horizontal application and operation Fundamental rights Limitations Clause 3

S 37

Derogation of the BoR’s in a state of emergency But only to the extent that is required (competent court decides on the validity thereof) Right to life and dignity may however never be limited List of those who have locus standi in constitutional litigation where fundamental rights have been violated or threatened

S 38

Rules of Fair Play: Section 12 of the Constitution Right to Freedom and Security CRIME CONTROL MODEL  Protects against the machinery of the state  Ferreira v Levin: Section 12 guarantees physical freedom and physical security  May apply to protect fundamental freedoms not specifically mentioned  De Lange v Smuts: Physical Integrity and Procedural guarantees 

Sec 35 of the Constitution Rights of arrested, detained and accused DUE PROCESS MODEL  Rights are specified  S 35 (3) (j): Accused may not be compelled to give self-incriminating evidence  Physical freedom and physical security limited  De Lange v Smuts: “It prevents due seepage from section 12 to section 35

De Lange v Smuts: Created a “conceptual wall” between s 12 and s 35

The presumption of Innocence:     

Applicable to Suspects, arrested persons and accused persons Right to be considered innocent until proven guilty in a court of law Means that rules of evidence and criminal procedure must have been followed properly Only legal guilt counts, not moral guilt Onus of proof: o State must prove beyond reasonable doubt o Every element must be prima facie proved o Accused must the create reasonable doubt

Accusatorial and inquisitorial systems:

4

Accusatorial Judge does not enter the arena Impartial Police investigates the case State is dominus Litis

Inquisitorial Judge enters the arena Judge questions witnesses and even the accused after arrest Judge is dominus litis

Position in SA: Accusatorial Exceptions: Section 186 – Court calls witnesses or asks accused questions of his own Sections 112 and 115 – Inquisitorial elements as judge may directly question the accused as to his plea

Our Sources: 1. Constitution 2. Legislation  Criminal Procedure Act  Child Justice Act  Other statutes 3. Common Law and Case Law  If legislation remains quiet, common law must be followed  Case law for the interpretation of Constitution, Legislation and Common Law Remedies: Writ of Habeas Corpus:  Remedy before trial  Judicial review of police action (example: unlawful deprivation of liberty)  Court is asked for an order that the respondent (person who authorised the detention of the detainee) produce the detainee before court  At a certain time and date  Respondent must show why such person should not be released  Detainee must show prima facie why his detention is wrongful  Heard by a single judge in a civil court  Ex parte application Exclusionary Rule:    

Remedy during trial Section 35 (5) of the constitution Must render trial unfair or be detrimental to the administration of justice Court has discretion

5

 Evidence must have been illegally obtained in pre-trial stage and state wants to present evidence in trial Civil Action for damages:  A delictual remedy  May be used by suspects who have been abused in the course of the criminal process Interdict:  Used by detainees to obtain relief Mandamus:  Reverse of an interdict  Order a functionary to perform his duty Constitutional Mechanism:  Section 38: Person may approach the court to allege that a right in the BoR’s has been infringed Phases of the Criminal Process: 1. 2. 3. 4.

Pre-trial phase Trial phase Sentencing phase Appeal or review phase

Shabalala:  Right of accused to fair trial and access to information  Right to have access to contents of police docket prior to trial  Blanket docket privilege unreasonable and unjustifiable in open and democratic society and unnecessary  Court may use discretion o Where there is a reasonable risk o Intimidation of witnesses o Impede the proper ends of justice o Balancing the accussed’s need for a fair trial against the legitimate interests of the state King:  Costs of documents: 1,5 million  Concept of a fair trial: Blanket docket privilege conflicts with the guarantees in the Constitution  Litigation privilege no longer applies if documents are helpful to the defence. Therefore accused is entitled to the dockets if they are helpful  Not only entitles to statements and exhibits 6

    

“ALL” documents to “adduce and challenge evidence” However, Accused does not have an unlimited right Discovery always a compromise Requires fairness toward the public who is represented by the state May not become impractical for state to prosecute

THEME 2: THE COURTS AND PROSECUTING AUTHORITY: THE COURTS Constitutional Court:      

Seat in situated in Braamfontein, Johannesburg Final court of appeal in all constitutional matters Chief Justice, Deputy Chief Justice and 9 other judges Must be heard by at least 8 judges (quorum) If the SCA or a High Court gives any order of invalidity, it must still be confirmed by the CC. Section 167 (3) of the Constitution provides that the CC: 1. Is the highest court in all constitutional matters 2. May adjudicate only on constitutional issues and matters related thereto 3. Final decision-maker on constitutional issues  Section 167(7) provides that only the CC may: 1. Decide disputes between organs of state 2. Decide on the constitutionality of any bill 3. Decide on the constitutionality of any amendment to the constitution 4. Decide whether parliament or president has failed to comply with a constitutional obligation 5. Certify a provincial constitution

High Courts: Jurisdiction Jurisdiction Appeal:

SCA (5 judges quorum) Any decision of the HC. However, must first ask leave from HC.

Offences:

Appeal court for all offences except in cases of contempt of court. Appeal from any judgement of HC.

Area:

Prov Dev of HC All decisions from lower courts. Decisions from HC if: 1. Court sits at full bench 2. Acc was convicted by a single judge 3. Matter does not require attention of SCA Original jurisdiction in respect of ALL offences.

Local Dev of HC South Gauteng HC: Same appeal jurisdiction as provincial HC. Other 2 local divisions (KZN, HC, Durban and EC, HC, PE) do not have any appeal jurisdiction.

Original jurisdiction within area. Exceptions:

In the areas of the local divisions, the provincial division have concurrent

Original jurisdiction in respect of ALL offences.

7

1. Effect a suspended sentence heard by another division of MC 2. Legislation – certain offences deemed to be committed in place Acc happens to be 3. Act confers jurisdiction to lower court – HC jurisdiction remains unless provided otherwise 4. DPP may order trial within area SCA AND HC may impose: 1. Imprisonment including life imp. 2. Periodical imprisonment 3. Declaration of habitual criminal 4. Committal to treatment centre 5. Fine 6. Correctional supervision Only when 80% or 25 years imprisonment is served

jurisdiction Therefore, a prosecution for an offence committed on the area of jurisdiction can be tried in either the local or provincial division

S V DE BEER: 4 km rule does not apply to HC trials

SCA AND HC may impose: 1. Imprisonment including life imp. 2. Periodical imprisonment 3. Declaration of habitual criminal 4. Committal to treatment centre 5. Fine 6. Correctional supervision Parole Only when 80% or 25 years imprisonment is served Criminal Law Amendment ACT 105 of 1997(aka Minimum Sentences Act offences which are contained in here can get harsher sentences than normally prescribed). Sentencing

SCA AND HC may impose: 1. Imprisonment including life imp. 2. Periodical imprisonment 3. Declaration of habitual criminal 4. Committal to treatment centre 5. Fine 6. Correctional supervision

Lower Courts: Jurisdiction: (MC’s) Jurisdiction Appeal Offences

Area

Regional Court

District Court

Jurisdiction for all common law crimes except: 1. Treason

Jurisdiction for all common law crimes except: 1. Treason 2. Murder 3. Rape and compelled rape IN SA. In terms of the 4 km rules: A person may be tried even though he committed the offence in another province/district, PROVIDED that he was within 4 km’s from the boundary of first offence IF it is a common law offence IF it is a statutory offence, the same

In SA. In terms of the 4 km rules: A person may be tried even though he committed the offence in another province/district, PROVIDED that he was within 4 km’s from the boundary of first offence IF it is a common law offence IF it is a statutory offence, the same

8

Sentencing

Parole

statutory provision must apply in both provinces or districts. Summary trials or preparatory examinations. S99 of MCA 1. Imprisonment not exceeding 15 years 2. Periodical imprisonment 3. Declaration of habitual criminal 4. Committal to treatment centre 5. Fine not exceeding R300 000 6. Correctional supervision 7. Imprisonment from which a person may be placed under correctional supervision Only available when 80% or 25 years imprisonment is served

statutory provision must apply in both provinces or districts. Summary trials or preparatory examinations. S99 of MCA 1. Imprisonment not exceeding 3 years 2. Periodical imprisonment 3. Declaration of habitual criminal 4. Committal to treatment centre 5. Fine not exceeding R60 000 6. Correctional supervision 7. Imprisonment from which a person may be placed under correctional supervision

Guideline on the implementation of the 4km Rule: 1. If uncertain, prosecute in any of the 2 jurisdictions 2. If the act or an element or omission is committed in that division, may be prosecuted in that division 3. If possession of stolen goods or theft is committed, may be prosecuted in division where he possessed the goods 4. If the accused has kidnapped a person or child, he may be prosecuted in the division where the person is If the Accused commits various offences within different districts? One first has to ask oneself whether the acts were committed in the area of one DPP If the answer is yes, section 90(8) applies Requirements: 1. PP brings the matter to the attention of the DPP with a report 2. DPP directs in writing 3. All offences prosecuted in one magistrate court as if all the offences where committed within that area of jurisdiction If the Accused commits offence in a specific division? One first has to ask oneself whether the acts were committed in the area of one DPP If the answer is yes, section 90(9) applies Requirements: 1. PP brings he matter to the attention of the DPP with a report 2. DPP directs in writing 9

3. All offences prosecuted in one Magistrate court as if all the offences were committed within that area of jurisdiction Provided that: 1. Expedient on account of the fact that there are many Accussed’s 2. It is not inconvenient to do so 3. It is not in disturbance of the public order Jurisdiction of offences committed outside SA: The general rule is that our courts only have jurisdiction over offences committed in SA territory However, we will have jurisdiction over the following: 1. High Treason 2. Theft 3. Offences on vessels a. Offences committed on SA ships or on any other ships committed by SA citizens b. Offences committed on SA aircrafts anywhere in the world whether on air or land c. In respect of other aircrafts, our courts will only have jurisdiction if: Such aircraft lands with the offender still on board The lessee’s principal place of business or residence is in SA The offender is present in SA 4. Offences committed on territory which is subsequently annexed by SA 5. Offences committed in Antarctica by SA citizens 6. If statutory provisions secure SA jurisdiction 7. SA citizens are immune from prosecution in other countries (Diplomats) S V EBRAHIM: If a SA citizen commits a crime in another country we will not have jurisdiction to try him if he was unlawfully arrested in contravention with international law by SA role players S V MAHALA: Voluntary cooperation of person with police acceptable despite extradition procedures not followed Assessors: Lower Courts: A presiding officer (magistrate) may appoint one or two assessors if:  

It is in the interest of the administration of justice (Before evidence is given) The magistrate considers a community-based sentence (After evidence is given)

But, a magistrate must appoint an assessor or two when Acc is prosecuted of murder If the Acc does not want and assessor: The magistrate must inform the Acc that he is entitled to assessor(s). Otherwise, the procedure is grossly irregular and this would be a failure of justice (S V MOKALAKA)

10

However, if Acc does still not want an assessor, the court may still have discretion to appoint an assessor. Factors taken into account: 1. Background of the Acc 2. Nature and seriousness of offence 3. Interests of the community Assessors are only allowed to give decisions on matters of FACT; never matter of law or whether a matter is law or fact. Superior Courts: The presiding officer (judge) may appoint one or two assessors, however the judge has a discretion in this, irrespective if it is a murder case or not The DPP may sometimes make a recommendation. In the opinion of the judge, the assessor must have:    

Experience in the administration of justice Or be skilled in any matter to be considered at the trial May be an advocate, magistrate, attorney or professor of law Experts in medicine or engineering or accountancy

What if the Magistrate/Judge or assessor has interest or is biased? Application for recusal must be brought, preferably at the commencement of the trial or all the evidence must again be led before the new court. The test:    

Suspicion that judicial officer might be biased Suspicion of the reasonable person in the position of the Acc Suspicion must be based on reasonable grounds Reasonable person ...