Criminal Procedural Law and Criminal Trial Processes

1. Criminal Procedural Law and Criminal Trial Processes A G Bradshaw Session 2

2. Who prosecutes? • National Prosecuting Authority – at the instance of the State (S vs Bradshaw) • Private Prosecutions • NolleProsequi certificate issued • Person must have substantive interest in matter arising out of injury he suffered in consequence of commission of the offence e.g. husband/ wife and children on death of deceased person/curator of mentally ill person. • In the name of the private person A G Bradshaw Session 2

3. Prescription • Most offences lapse after 20 years from time of commission of offence • Some offences have no prescription • Murder • Rape • Kidnapping • Robbery with aggravated circumstances A G Bradshaw Session 2

4. Criminal Procedure Act 51 of 1977 A G Bradshaw Session 2

5. Schedule 1 Offences Treason. Sedition. Public violence. Murder. Culpable homicide. Rape or Sexual assault, Any sexual offence against a child or a person who is mentally disabled Trafficking in persons Robbery. Kidnapping. Childstealing. Assault, when a dangerous wound is inflicted. Arson. Malicious injury to property Breaking or entering any premises Theft, Receiving stolen property knowing it to have been stolen. Fraud. Forgery or uttering a forged document knowing it to have been forged. Escaping from lawful custody, where the person concerned is in such custody in respect of any offence referred to in this Schedule or is in such custody in respect of the offence of escaping from lawful custody. Any conspiracy, incitement or attempt to commit any offence referred to in this Schedule. A G Bradshaw Session 2

6. Schedule 2 Offences • Theft/receiving stolen property knowing it to have been stolen, in each case if the amount or value involved in the offence exceeds R2 500. • fraud; forgery or uttering a forged document knowing it to have been forged, in each case if the amount or value involved in the offence exceeds R2 500. • possession of dagga exceeding 115 grams; or any other dependence-producing drugs; or conveyance or supply of dependence-producing drugs. • Any conspiracy, incitement or attempt to commit any offence referred to in this Part. A G Bradshaw Session 2

7. Schedule 3 Offences • Any contravention of a bye-law or regulation • Any offence committed by • driving a vehicle at a speed exceeding a prescribed limit; • driving a vehicle which is defective • owning or driving a vehicle for which no valid licence is held; • driving a motor vehicle without holding a licence to drive it A G Bradshaw Session 2

8. Pre trial Procedure: Traps/Undercover Operations • May do so to detect/investigate the commission of a crime/prevent the commission of an offence provided it does not provide opportunity to commit an offence; • If goes beyond providing opportunity to commit an offence evidence may be ruled inadmissible – court weighs public interest against personal interest of the accused. • Prosecution bears onus of proving evidence admissible. A G Bradshaw Session 2

9. Pre Trial Procedures: Search and Seizure • May seize anything reasonably believed to be used in the commission of an offence or suspected commission of an offence/may afford evidence of the commission or suspected commission of an offence/reasonably believed to be intended to be used in the commission of an offence/may enter premises if there are reasonable grounds for believing an offence has been committed or arrangements been made for commission of an offence on premises. • May only search or seize under a search warrant issued by magistrate/judge • Warrant allows police to search person/premises identified in the warrant • Can search and seize without a warrant if person consents to the search and seizure or if police officer on reasonable grounds believes a warrant will be issued and any delay would defeat the object of the search. • On arrest, police may search arrested person and seize any article found in possession of the arrested person. • Police who are lawfully able to search any person/premises may use reasonable force to overcome any resistance after audibly demanding admission and notification of purpose for which he seeks entry unless reasonable grounds to believe that to do so the article concerned would be destroyed. • Search to be conducted in a decent and orderly manner • Article seized given an identifying mark and retained in the exhibits register until required A G Bradshaw Session 2

10. Pretrial procedures: Ascertainment of Bodily Features • “body-prints” means prints other than fingerprints, taken from a person and which are related to a crime scene. • intimate sample” means a sample of blood or pubic hair or a sample taken from the genitals or anal orifice area of the body of a person, excluding a buccal sample; taken by a registered medical practitioner or registered nurse only. • buccal sample” means a sample of cellular material taken from the inside of a person’s mouthtaken by authorised person = any police official or member of the Independent Police Investigative Directorate, who is not the crime scene examiner of the particular case, but has successfully undergone the training prescribed by the Minister of Health under the National Health Act, in respect of the taking of a buccal sample. • “bodily sample” means intimate or buccal samples taken from a person; • Authorised person: photographic images, fingerprints or body-prints, any police official or a member of the Independent Police Investigative Directorate, referred to in the Independent Police Investigative Directorate Act, in the performance of his or her official duties; A G Bradshaw Session 2

11. Fingerprints • Finger prints in respect of accused / convicted persons • A police official must take the fingerprints or must cause such prints to be taken of any— • person arrested upon any charge related to an offence referred to in Schedule 1 or any charge; • person released on bail if such person’s fingerprints were not taken upon arrest; • person upon whom a summons has been served in respect of any offence referred to in Schedule 1; • person convicted by a court and sentenced to a term of imprisonment without the option of a fine, whether suspended or not, if the fingerprints were not taken upon arrest; A G Bradshaw Session 2

12. Fingerprints continued • Fingerprints are retained on database on conviction for purposes of crime detection/ investigation/conducting of a prosecution/identification of missing persons/establishing if a person has convicted an offence • If found not guilty/not prosecuted/conviction set aside on appeal, etc = prints must be deleted from the database • Similar provisions apply in respect of photographic images/body prints/etc A G Bradshaw Session 2

13. Securing attendance at court: Arrest • Arrest – • with a warrant • Issued by a magistrate or judge directing that the person identified in the warrant be arrested • Must be executed in terms set out in the warrant • without a warrant Person commits/attempts to commit offence in presence of police officer Person reasonably suspected of committing a Schedule 1 offence Escaped from lawful custody Found in possession of housebreaking/car breaking implements Found in possession property reasonably suspected to have been stolen • Person reasonably suspected of being a prohibited immigrant/contravening law regarding entry into or residence in the country. • Person reasonably suspected of having committed an act of Domestic Violence • Person who willfully obstructs officer in performance of his duties A G Bradshaw Session 2

14. Securing attendance at court: Arrest Resistance to arrest • he arrestor may, in order to effect the arrest, use such force as may be reasonably necessary and proportional in the circumstances to overcome the resistance or to prevent the suspect from fleeing, • the arrestor may use deadly force only if the suspect poses a threat of serious violence to the arrestor or any other person; or the suspect is suspected on reasonable grounds of having committed a crime involving the infliction or threatened infliction of serious bodily harm and there are no other reasonable means of effecting the arrest, whether at that time or later. Detention Person must be brought before court at brought before a lower court as soon as reasonably possible, but not later than 48 hours after the arrest. If the 48 hours expires outside ordinary court hours ( 9h00 to 16h00)or on a day which is not an ordinary court day, the accused shall be brought before a lower court not later than the end of the first court day. A G Bradshaw Session 2

15. Securing Attendance at Court: Summons and Notice • Summons • Where person not arrested or in custody • Summons containing the relevant charge and specifying date, time and court in which accused is to appear is served on the accused • Must be served no less than 14 days before appointed date • Return of service filed – if properly served and accused fails to appear, warrant of arrest authorised. • Notice to appear • Police officer issues accused with notice outlining the date, time and court of appearance, includes Admission of Guilt, certifies that original notice been handed to the accused • If accused fails to appear, warrant of arrest can be authorised A G Bradshaw Session 2

16. Securing Attendance at Court: Summons and Notice • Person must be advised of right to legal representation at time of arrest/service of summons or notice. • Right includes legal representation of own choice or if cannot afford, Legal Aid, etc • In case of accused under age of 18 years, the right to be assisted by parent/guardian/etc A G Bradshaw Session 2

17. Bail • Police can set bail in respect of certain Schedule 2 offences before first appearance in court • Bail in court • Court must consider interests of justice and then enquiry into ability to pay – can then set an amount/conditions not including an amount if cannot afford to pay bail • Accused must declare whether he has previous convictions or pending cases • Interests of justice do not permit release if:- • Likelihood accused will endanger public/person/commit schedule 1 offence; evade trial/interfere with witnesses. • Weigh the interests of justice against rights of the accused to his freedom • Record of bail proceedings, excluding the PC or pending cases, forms part of the trial proceedings • If fails to appear when released on bail, warrant authorised, bail provisionally forfeited to the state. If accused appears before court before lapse of 14 days and court satisfied failure to appear not due to fault of accused, cancellation of bail lapses. If no appearance within 14 days, bail finally forfeited to state. • Bail can be cancelled at request of State or Accused. A G Bradshaw Session 2

18. Bail • in Schedule 6, the court shall order that the accused be detained in custody, unless the accused, having been given a reasonable opportunity to do so, adduces evidence which satisfies the court that exceptional circumstances exist which in the interests of justice permit his or her release; deals with premeditated murder, murder of law enforcement officer/person who was to give evidence in respect of Schedule 1 offence; rape; robbery involving firearm; taking of a motor vehicle; bodily harm • In Schedule 5, the court shall order that the accused be detained in custody unless the accused, having been given a reasonable opportunity to do so, adduces evidence which satisfies the court that the interests of justice permit his or her release– deals with treason, murder, attempted murder, drug offences where value of drug greater than R50 000; dealing in firearms, ammunition, etc; extortion fraud >R500 000; Schedule 1 offences where accused on bail at time of commission of offence/has previous conviction for Schedule 1 offence. A G Bradshaw Session 2

19. First Appearance in Court:Rights and Charge Sheet • Accused advised of rights to legal representation • Accused advised of right to apply for bail • May be released on warning • Advised of the charge/s against him – at any time before trial, additional charges may be joined – the charge must detail date, place and time offence is alleged to have been committed and person/property against whom committed. If details unknown, such must be stated. A G Bradshaw Session 2

20. Subsequent Appearances • May be adjournments for completion of investigation • For supplying copy of statements • For furnishing Further Particulars • For holding pre trial conference • Once pre trial has determined matter is trial ready, then matter is adjourned for trial. A G Bradshaw Session 2

21. TrialPlea: Guilty • The Public Prosecutor will put the charge/s to the Accused. • Plea and sentence agreements – written agreement to plead guilty to the charge, states the facts of the matter, states admissions made, signed by prosecutor and accused and the agreement contains sentence agreed upon – if court not satisfied accused guitly, enter a not guilty plea and matter will proceed before another court. If not satisfied with sentence agreed upon, court will notify parties and parties can either abide by the agreement, whereupon the court will impose a sentence deemed just or the parties can withdraw from the plea agreement whereupon trial starts de novo before another presiding officer. • Can plead guilty/not guilty – if refuses to plead, court enters a not guilty plea • Guilty i.t.o Section 112(1)(a) court finds person guilty on their plea only and imposes competent sentence • Guilty i.t.o Section 112(1)(b) court questions the accused to ascertain whether he admits all the elements of the offence and if satisfied convict on the guilty plea. If person found not to admit all the elements or has a valid defence, then court i.t.o Section 113 changes plea to one of not guilty and prosecution proceeds. • Guilty i.t.o Section 112(2) a statement setting out the facts which accused admits and to which he is pleading guilty, court does not need to question can convict on basis of statement. Court can ask questions to clarify aspects of the statement. Prosecutor can present evidence on sentence. A G Bradshaw Session 2

22. TrialPlea: Not Guilty • Section 115 may make a statement indicating the basis of his defence, court can ask questions to clarify issues and can ask whether issues not in dispute can be recorded as admissions i.t.o Section 220 A G Bradshaw Session 2

23. Trial Procedures • Generally, conducted in open court • Can be conducted behind closed doors e.g. sexual offences matters/if witness a minor, court can on request of person order court room cleared • Conducted in presence of accused – witnesses can on application by the public prosecutor/accused/witness give evidence via closed circuit television. • Can be conducted in accused absence if his conduct makes continuation of proceedings in his presence impractical, court can order he be removed. • Postponements via audio visual link. A G Bradshaw Session 2

24. Trial (Witnesses) • Competent and Compellable (see Law of Evidence Notes) • Viva Voce Evidence – Witnesses attendance secured by subpoena – Court can call a witness if evidence of such witness is essential to a just decision. • Evidence given under oath or affirmation • Evidence can be given via intermediaries – where court of opinion that witness below biological or mental age of 18 years would undergo undue mental stress or suffering testifying at proceedings, court may appoint competent person as intermediary – witness gives evidence through the intermediary – the intermediary relays the general purport of questions to witness – and relays the answers • Evidence on Commission A G Bradshaw Session 2

25. Trial Evidence • Except where the fact of a previous conviction is an element of any offence with which an accused is charged, evidence shall not be admissible at criminal proceedings in respect of any offence Section 217 Admissibility of Confession • Confession must be proved to have been freely and voluntarily made by such person in his sound and sober senses and without having been unduly influenced thereto, to be admissible in evidence against such person at criminal proceedings relating to such offence • where the confession is made to a magistrate and reduced to writing by him, or is confirmed and reduced to writing in the presence of a magistrate, the confession shall, upon the mere production thereof at the proceedings in question be admissible in evidence against such person if it appears from the document in which the confession is contained that the confession was made by a person whose name corresponds to that of such person and, in the case of a confession made to a magistrate or confirmed in the presence of a magistrate • be presumed, unless the contrary is proved, to have been freely and voluntarily made by such person in his sound and sober senses and without having been unduly influenced thereto, • If disputed matter is determined in a trial within a trial – accused leads evidence to rebut the presumption and prosecutor can lead evidence. A G Bradshaw Session 2

26. Trial Evidence Section 219 A Informal Admissions Evidence of any admission made extra-judicially by any person in relation to the commission of an offence shall, if such admission does not constitute a confession of that offence and is proved to have been voluntarily made by that person, be admissible in evidence against him at criminal proceedings relating to that offence. Section 220. Formal Admissions An accused or his or her legal adviser or the prosecutor may in criminal proceedings admit any fact placed in issue at such proceedings and any such admission shall be sufficient proof of such fact. A G Bradshaw Session 2

27. Trial EvidenceProof by way of affidavit • Whenever any fact established by any examination or process requiring any skill— • (i) in biology, chemistry, physics, astronomy, geography or geology; • (ii) in mathematics, applied mathematics or mathematical statistics or in the analysis of statistics; • (iii) in computer science or in any discipline of engineering; • (iv) in anatomy or in human behavioural sciences; • (v) in biochemistry, in metallurgy, in microscopy, in any branch of pathology or in toxicology; or • (vi) in ballistics, in the identification of fingerprints or body-prints or in the examination of disputed documents, fact: is or may become relevant to the issue at criminal proceedings, a document purporting to be an affidavit made by a person who in that affidavit alleges that he or she is in the service of the State or of a provincial administration or any university in the Republic or any other body designated by the Minister for the purposes of this subsection by notice in the Gazette, and that he or she has established such fact by means of such an examination or process, shall, upon its mere production at such proceedings be prima facie proof of such A G Bradshaw Session 2

28. Trial EvidenceProof by way of Affidavit • In criminal proceedings in which the finding of or action taken in connection with any particular fingerprint, body-print, bodily sample or crime scene sample is relevant to the issue, a document purporting to be an affidavit made by a person who in that affidavit alleges that he or she is in the service of the State and that he or she is in the performance of his or her official duties— • (a) found such fingerprint, body-print, bodily sample or crime scene sample at or in the place or on or in the article or in the position or circumstances stated in the affidavit; or • (b) dealt with such fingerprint, body-print, bodily sample or crime scene sample in the manner stated in the affidavit, shall, upon the mere production thereof at such proceedings, be prima facie proof that such fingerprint, body-print, bodily sample or crime scene sample, was so found or, as the case may be, was so dealt with. A G Bradshaw Session 2

29. Trial EvidenceProof by way of Affidavit/Chain Evidence • In criminal proceedings in which the collection, receipt, custody, packing, marking, delivery or despatch of any fingerprint or body-print, article of clothing, specimen, bodily sample, crime scene sample, tissue (as defined in section 1 of the National Health Act, 2003 (Act 61 of 2003), or any object of whatever nature is relevant to the issue, a document purporting to be an affidavit made by a person who in that affidavit alleges— • (i) that he or she is in the service of the State or of a provincial administration, any university in the Republic or any body designated by the Minister under subsection (4); • (ii) that he or she in the performance of his or her official duties— • (aa) received from any person, institute, State department or body specified in the affidavit, a fingerprint or body-print, article of clothing, specimen, bodily sample, crime scene sample, tissue or object described in the affidavit, which was packed or marked or, as the case may be, which he or she packed, or marked in the manner described in the affidavit; • (bb) delivered or despatched to any person, institute, state department or body specified in the affidavit, a fingerprint or body-print, article of clothing, specimen, • bodily sample, crime scene sample, tissue or object described in the affidavit, which was packed or marked or, as the case may be, which he or she packed or marked in the manner described in the affidavit; • (cc) during a period specified in the affidavit, had a fingerprint or body-print, article of clothing, specimen, bodily sample, crime scene sample, tissue or object described in the affidavit in his or her custody in the manner described in the affidavit, which was packed or marked in the manner described in the affidavit, • shall, upon the mere production thereof at such proceedings, be prima facie proof of the matter so alleged: A G Bradshaw Session 2

30. Trial Procedure • Witness gives evidence in chief • Cross Examined • Re- examined • Section 174 Discharge of accused at end of state case – “If, at the close of the case for the prosecution at any trial, the court is of the opinion that there is no evidence that the accused committed the offence referred to in the charge or any offence of which he may be convicted on the charge, it may return a verdict of not guilty." • At conclusion of all evidence, the Prosecutor and Accused may address the court • Court makes a decision A G Bradshaw Session 2

31. Conviction Section 208. Conviction may follow on evidence of single witness An accused may be convicted of any offence on the single evidence of any competent witness. Section 209. Conviction may follow on confession by accused An accused may be convicted of any offence on the single evidence of a confession by such accused that he committed the offence in question, if such confession is confirmed in a material respect or, where the confession is not so confirmed, if the offence is proved by evidence, other than such confession, to have been actually committed. A G Bradshaw Session 2

32. Conviction • Convicted on charge • Convicted of an attempt • Convicted on a competent verdict e.g. murder/culpable homicide/assault GBH robbery/assault GBH/Theft/Pointing a firearm theft/receiving stolen property/possession of property suspected to be stolen. A G Bradshaw Session 2

33. Sentence • 271. Previous convictions may be proved after conviction but before sentencing • 274. Evidence on sentence (1) A court may, before passing sentence, receive such evidence as it thinks fit in order to inform itself as to the proper sentence to be passed. (2) The accused may address the court on any evidence received under subsection (1), as well as on the matter of the sentence, and thereafter the prosecution may likewise address the court. A G Bradshaw Session 2

34. Types of Sentences • imprisonment, (cumulative or concurrent) • imprisonment from which such a person may be placed under correctional supervision in the discretion of the Commissioner or a parole board. • periodical imprisonment; • declaration as an habitual criminal; • committal to any institution established by law; • a fine; • correctional supervision; • Suspended sentence • Caution and Discharge • Award compensation (has effect of a civil judgement) A G Bradshaw Session 2