18/10/2018
18:00 – 19:00
HB 4-9 SPR SICK TEST 2018
SEMESTER 1
STUDY UNIT 1 INTRODUCTION
CHAPTER 1- A basic introduction to criminal procedure:
1- Introduction:
1. Introduction
Main purposes: criminal procedure
1. Provide a process that vindicates substantive criminal law goals
2. Dispute resolution mechanism that allocates scarce resources efficiently &
distributes power amongst state officials
3. Legitimation function – resolving state-citizen disputes in a manner that
commands the communities respect.
Types of offences:
Common law or statutory offence
Must get the right balance between powers of state and right of the individual
Common law?
Certain principles
NOW mostly con
OVERVIEW OF PROCESS IN A CRIMINAL CASE
Pre-trial
1. Someone reports crime
2. Investigation by police
3. Prosecuting authority then deals with docket DPP (decide to prosecute each HC)
a. NDPP – intervene in any matter
4. Own procedures for children *
a. Probation officers report
b. Preliminary enquiry (informal procedure before inquiry mag is inquisitorial nature)
5. Bring person to court:
a. Summons;
b. Written notice;
c. Arrest (thereafter: bail / in custody/ release on warning)
6. Plea and sentence agreement s105A (otherwise trial)
7. Diversion (central feature of procedure for children)
Trial
(Child in child justice court with requisite jurisdiction. CPA applies as extended / amended
by Ch 9 Child Justice Act)
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a. Copy of docket: accused entitled to copy of the docket when case is postponed
for trial
b. Charge sheet – accused must be informed of charges (including possibility of the
minimum sentence / if statutory offence: any presumption & maximum sentence)
Plea
Guilty (s112)
- s112(1)(a) – convict on plea
- s112(1)(b) – court must question accused / finding
(1) Where an accused at a summary trial in any court pleads guilty to the offence
charged, or to an offence of which he may be convicted on the charge and
the prosecutor accepts that plea –
(a) presiding judge, regional mag or mag may, if he/ she opines that offence oes
not merit punishment of imprisonment / other detention / WO option of a fine
may (i)impose any competent sentence, other than imprisonment or any form
of detention without the option of a fine
(ii) deal with accused otherwise in accordance with the law
(b) presiding judge, regional mag or mag may question the accused regarding
the facts of the case to which accused has pleaded guilty to see if accused
admits to offence – impose competent sentence.
Not guilty (s 115)
115(1) accused pleads not guilty at summary trial to offence presiding judge,
regional mag and mag, as the case may be, may ask him whether he wishes to make
a statement indicating the basis of defence.
220
An accused on his/ 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.
[S. 220 substituted by s. 12 of Act 86 of 1996.]
Not make a statement or not clear whether admit or deny disputed fact – question accused.
Case for the state
Examination in chief / cross-examination/ re-examination
Defence case
Options: s174 discharge/ close case/ oral evidence
S174 Accused may be discharged at close of case for prosecution
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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.
Argument on merit
Verdict – guilty / not guilty (acquittal)
Sentencing phase
(child – CPA applies as extended or amended by Ch 12 CJA)
Previous convictions (SAP 69)
Mitigating and aggravating
circumstances o Witnesses
o Argument
S276 Nature of punishment
Subject to the provisions of this Act and any other law and of the common law, the
following sentences may be passed upon a person convicted of an offence, namely
[Para. (a) deleted by s. 34 of Act 105 of 1997.]
(b) imprisonment, including imprisonment for life or imprisonment for
an indefinite period as referred to in section 286B (1);
substituted by s. 3 of Act 107 of 1990 and by s. 20 of Act 116 of 1993.]
(c ) periodical imprisonment;
(d ) declaration as an habitual criminal;
(e ) committal to any institution established by law;
(f ) a fine;......
[Para. (g) deleted by s. 2 of Act 33 of 1997.]
(h ) correctional supervision;
[Para. (h) added by s. 41 (a) of Act 122 of 1991.]
(i ) imprisonment from which such a person may be placed under correctional
supervision in the discretion of the Commissioner or a parole board.
Appeal or review
(child – CPA applies as extended / amended by chapter 12 CJA. LM v S)
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