LML4806 Notes_-
_Criminal_Court_Practice.
1
CRIMINAL COURT PRACTICE
Summary of Exams supplemented by course packs
The right to be brought before a court within 48 hours
S50 of the CPA must be read with s35(1)(d) of the Constitution. s50 contains fundamental right that are
entitled to freedom...
CRIMINAL COURT PRACTICE
Summary of Exams supplemented by course packs
The right to be brought before a court within 48 hours
S50 of the CPA must be read with s35(1)(d) of the Constitution. s50 contains fundamental right that are
entitled to freedom from arrest. It provides that if you are arrested with or without a warrant the
person must be brought as soon as possible to a police station or to any other place mentioned in the
warrant and there detained for a maximum period of 48 hours unless brought before lower court and
further detention is authorized by the court.
Must appear on court day when 48 hour period expires provided it is within court hours. If expires on
public holiday or weekend the must appear before end of next court day before 4 o’clock.
Powers of police to search, seize, arrest, to obtain evidence
Searches
Without warrant
The police official in terms of Section 22 of the Criminal Procedure Act of 1977 may without a search
warrant search any premises FOR THE PURPOSE OF SEIZING ANY ARTICLE referred to in Section 20 (i.e.
concerned in the commission or suspected commission of an offence, may afford evidence thereof, or
to be used in the commission of an offence) IF:
1. The person who may consent to the search of the premises consents to search and
seizure of the article in question
OR
2. (a) If he believes that on reasonable grounds a search warrant will be issued to him under
paragraph 21(l)(a) if he applies for such warrant
AND
(b) The delay in obtaining such warrant would defeat the object of the search.
Entering a premises for purposes for interrogating and obtaining a statement
Without a warrant
S26 empowers a police official in the investigation of an offence or alleged offence where he or she
reasonably suspects that a person who may furnish info with regard to such an offence is on any
premises. Such police official may without a warrant enter such premises for interrogating such a
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person and obtaining a statement from him provided that police officer shall not enter any private
dwelling without the consent of the occupier.
A person is entitled to refuse a police official access to the premises in these circumstances in terms of
Section 26. Although he is entitled without a warrant to enter premises in the course of investigation of
an offence and if he suspects a person on the premises may furnish him with information regarding the
offence, he may only interrogate and obtain a statement from such person (Namely James) if the
occupier of the private dwelling (namely Mrs M) consents to his entering the premises for this purpose.
S27(1) deals with resistance against entry and search. It provides that the police official who is lawfully
entitled to search any person or premises may use such force as may reasonably be necessary to
overcome any resistance. They may break any door or window of such premises. Before officials may
use such techniques they must audibly demand admission to the premises and notify the purpose for
which they seek to enter the premises.
S27(2) provides that police officers are not required to audibly demand admission where the police
officer concerned is on reasonable grounds of the opinion that any article which is the subject of the
search may be destroyed or disposed of if the provisions of s27(1) are complied with e.g. with drugs.
This is known as the ‘no knock’ clause.
Ito s28(1) an unlawful search by a police official constitutes an offence and a compensation order may
be made against him.
Questioning of the accused
The accused is not obliged to answer questions. Suspects and accused have a fundamental right to
remain silent (Section 35 (1)(a) and Section 35 (3)(h) of the Constitution). He cannot however refuse to
be questioned but can only refuse to answer the questions.
His refusal to answer questions cannot be held against him at a later trial as his right to remain silent is
enshrined in the Constitution and the accused need not assist the State in any manner whatsoever to
prove his guilt.
The only information which he is obliged to give to the investigating officer is his name and address -
Section 41 of the CPA.
When will one advise a client to make a statement?
Under certain circumstances it is indeed advisable to make a statement, particularly when your client
intends pleading not guilty and has a feasible defence. It could be in his interest to place same on record
as soon as possible to exclude the subsequent argument of the Prosecutor of same being a recent
fabrication. Having a statement on record could also dissuade the prosecutor from proceeding with the
prosecution when he is obliged to weigh up the probabilities of a conviction.
Example: Jack Jones has the right to remain silent. He should advise the police-investigating officer that
he has consulted with his attorney and that he prefers not to make a statement at this stage. He should
further inform the officer that he elects to make a statement either to his attorney or if so advised, only
at trial. Also client should be advised that if he makes a statement, it could be used against him at trial.
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Securing the release of the accused and the necessary instructions required
Information to be obtained in initial telephone conversation
Usually from a relative
-Obtain information as to when the accused was arrested?
-Obtain information as to the name and telephone number of the investigating officer who had arrested
the accused,
-The name of the unit to which the investigating officer is attached,
-The name of the police station or prison whereat the accused is detained,
-The facts and circumstances of the alleged offence,
-The personal particulars of the accused, including details as to his residential address, the duration of
his habitation thereat, details as to his employment, income, assets, previous criminal convictions,
evidence of good character, details of probability of conviction.
-Further information regarding his medical condition and information as to the amount of bail the family
would be able to raise.
From the investigating officer
-In which court will the accused appear or has he already appeared.
-Whether there will be an objection to any proposed bail application.
BAIL
After-hours bail
S50(6)(b) provides that there is no more after hours bail subject to two exceptions.
o S59(1)(a) It is only for certain minor offences that can get police bail (from a high ranking
officer)
Police bail is for any offence that is not in Part II or II of Schedule 2 e.g. theft under
R2500, common assault, <115g of Dagga
o For more serious offences can get prosecutor bail.
S59A deals with prosecutor bail
It authorizes the DPP to authorize a prosecutor to release an accused on bail. There
are two important points.
Only a prosecutor authorized by DPP, which in practice is all of them, can release an
accused. (prosecutor is often at police station)
The prosecutor can only release after consultation with the investigating officer.
Prosecutor bail is for Schedule 7 offences e.g. public violence, CH, Assault GBBH,
bestiality
Call the charge office and speak to the investigating officer. Ask whether there is
any objection to bail. Then contact the prosecutor. Inform him that you want to
bring a bail application after hours and tellhim about the attitude of the
investigating officer. Find out what time the magistrate will be available to hear
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