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Summary LLB CPR3701 9.-Autrefois-Convict-and-Autrefois-Acquit.
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Summary LLB CPR3701 9.-Autrefois-Convict-and-Autrefois-Acquit.
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TOPIC NINE: PLEAS OF AUTREFOIS CONVICTAND AUTREFOIS ACQUIT
Note that this topic must not be confused with Topic 7 dealing with the rule against
duplication of charges.
Sections 106 (1)(c) and (d) of CPA
It must be noted that this is basically a rule against being charged with the same crime
twice, thus it is distinguishable from the rule against duplication of charges
o The former involves a previous trial in which the accused was
convicted/acquitted and the prosecution wants to institute another trial on
substantially the same offence
o The latter involves the rule against improper duplication of convictions
operating when more than 1 offence is being charged in one trial
This plea is based on the principle that one should not be tried twice for the same
offence, and in other legal systems, is sometimes referred to as the rule against double
jeopardy
A plea of autrefois convict or aurefois acquit is a special plea, originating from the
French word “autrefois” which means “formerly”
m
Section 106 (1)(c) of the CPA states that an accused can plead that he/she has
er as
already been convicted of the offence charged (autrefois convict)
co
Section 106 (1)(d) of the CPA states that an accused can plead that he/she has
eH w
already been acquitted of the offence charged (autrefois acquit)
Furthermore, s106(3) states that proper notice of the plea is to be given
o.
rs e
ou urc
Section 35 (3)(m) of the Constitution
Note that there is a slight difference in the wording of s35(3)(m) of the Constitution,
when compared with s106 of the CPA
o
The most important thing to note is that this right to not be tried twice for substantially
aC s
the same offence existed for a long time before it was entrenched in the Constitution,
v i y re
therefore s35(3)(m) of the Constitution merely recognises this principle of fairness
The Test to be Satisfied for Plea to Succeed
ed d
It must be noted that the test for autrefois acquit is threefold, however the test for
ar stu
autrefois convict comprises simply of the first two legs of the said test as the third leg
is inapplicable because a conviction would necessarily be on the merits of the case
The test:
1. Was the acquittal/conviction for the same offence?
sh is
2. Was it by a court of competent jurisdiction?
3. Was it on the merits?
Th
1. Was the acquittal/conviction for the same offence?
The meaning of ‘same offence’ has been extended to mean ‘substantially identical’
Therefore not exactly the same offence is S required
v Ndou for such a plea to succeed, provided
thataccused
The there iswere
substantial identity
on trial for acts of between
libertarianthe offences
struggle and thus charged with contraventions of the
The principle
Suppression is not limited
of Communism to offences
Act. After this, for
the which theAct
Terrorism accused could have
was promulgated been
and the prosecutor
thought it would
convicted be easier to
at a previous charge
trial the
(i.e. it isaccused under
not limited tothe Terrorism verdicts
competent Act. Therefore the prosecution
as listed in
under the 26
Chapter Suppression
of the CPA) of Communism Act was stopped and the accused were acquitted
The prosecution then launched a prosecution under the Terrorism Act, based on the same facts
A plea of autrefois acquit must be upheld if the offences charged in the two indictments are
substantially the same, even though the offence alleged in the second indictment would not have been
a competent verdict on the first indictment
In determining whether substantial identity exists the Court may consider the essential ingredients of
the criminal conduct respectively charged in the two indictments and apply the test as accepted R v
Kerr, namely whether the evidence necessary to support the second indictment would have been
sufficient to procure a legal conviction upon the first indictment 1
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, S v McIntyre en Andere
The applicants were security police charged in the regional court for the murder of S who was assaulted
during an interrogation
A special plea of autrefois acquit was rejected by the trial court and the matter was then sent on
special review. The applicants based the plea on the fact that they were previously charged and
acquitted on the charge of assault with intent to commit grievous bodily harm of S
They were acquitted on the assault charge as prosecution was stopped due to the victim not being able
to be found. The victim was later found to have died on the night of the assault due to the injuries
therefrom
The court considered whether the two offences were substantially similar
It was held that the test in determining this question was to ascertain whether the evidence necessary
m
to support the second indictment would have been sufficient to procure a conviction on the first. It was
er as
noted that the interim Constitution had widened the ambit of the right to the extent that a person could
not be tried for an offence in respect of an act or omission for which that person had previously either
co
been convicted or acquitted. The emphasis lay on the act with which the accused was charged and not
eH w
so much on the description of the charge
The court held that on the present charge, the applicants could have been convicted on the first charge
o.
of assault. The two charges were held to be substantially similar
rs e
ou urc
Note: this case should not be followed in the future as there was much manipulation behind
the scenes as M knew that the victim was deceased and kept this information to himself in
order to ensure the prosecution would be stopped. The principle regarding substantial
similarity, however, is valid
o
aC s
S v Nkosi
N was a sentenced prisoner who had escaped whilst he was in the process of being transferred from
v i y re
one prison to another
N had initially been charged with escaping from custody in contravention of s51(1) of the CPA but was
found not guilty as the magistrate was of the R v opinion
Constancethat he had been incorrectly charged and should
After
have the
beensecond appellant
charged and two othersofhad
with a contravention committted
s48(1) a Prisons
(a) of the robberyAct
they walked towards the
panelwagon driventhe
This was because by provision
the first appellant.
in the CPAInrelates
the meanwhile
to escapes the personsthe
between who hadofbeen
time arrestrobbed had
and being
ed d
loosened thewhilst
imprisoned, ropes the
withprovision
which they hadPrison
of the been Act
bound and to
relates raised an alarm
escapes after as a result of which one W
imprisonment
ar stu
pursued the threecharged
N was thereafter personswithin his delivery vanthat section of the Prisons Act and was found guilty
contravening
W continued
The facts on to chase
which thethe second
State reliedappellant who was
in both cases were armed
exactlywith a same
the revolver. The first appellant had,
however, turned
The plea of his panelwagon
autrefois in front of the delivery van causing it to stop. The first appellant
acquit was upheld
shouted to the second appellant to shoot W. The second appellant fired two shots and hit a native, who
had just arrived on the scene, in his stomach as a result of which he later died. The Crown had served
sh is
two indictments on the appellants, one in respect of the robbery and the other in respect of the murder
The appellants were convicted in May of robbery with aggravating circumstances but were not
Th
sentenced to death. In imposing sentence Judge did not take the death of the native into consideration
S v Nyathi
because he was of the opinion that it had no connection with the robbery and accordingly he could not
T The two accused were found not guilty of dealing in dagga
take it into account
Less than 3 weeks later, they were charged with possession of dagga
In December the two appellants were tried on a charge of murder of the native (this was because there
Their plea of autrefois acquit was rejected and they were found guilty and each was sentenced to two
was a rule that where an accused appeared on a trial of murder, he could not simultaneously appear on
years' imprisonment. A comparison of the two charge sheets and of the evidence led at both trials
another charge). On their behalf a special plea of autrefois convict was tendered. This plea was rejected
showed that such difference as there was between the charges and the evidence was one of
by one judge and thereafter the appellants were tried by another judge who found them guilty of
particularity, and not one of substance
murder and sentenced them to death
On review, the court held that having regard to the definitions of 'dealing', 'possess' and 'possession' in
The appellants applied to the court on the following question of law: Whether or not the judge erred in
the Act, that the offences charged in the two indictments were substantially the same and accordingly
rejecting the special plea of autrefois convict
that the plea should have been upheld
The court held that the first judge had erred in not having taken into account the death of the native
when he imposed sentence
It was further held that as the conviction on the charge of robbery was not a conviction in respect of an
offence which was substantially the same as the charge of murder of the native, that the plea of
autrefois convict had rightly been rejected
2
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