Exam (elaborations)
Criminal Law
- Course
- Bachelor of Laws (LLB101)
- Institution
- University Of South Africa (Unisa)
Provides an in depth step by step of the conduct of a trial
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UNIT 6 - THE CONDUCT OF THE TRIALIntroduction
Once the investigation of the matter is complete the matter will be set down for
trial on a date that suits both the defense and the Prosecution. On the date of the
trial the charge will be put to the accused and he/she will be called upon to plead.
Should the accused plead not guilty the matter will proceed to trial. This is dealt
with under Chapter 22 of the CPA.
SEVEN BASIC PRINCIPLES THAT GOVERN A CRIMINAL TRIAL
1. THE FAIR TRIAL PRINCIPLE
Section 35(3) of the Constitution makes provision for the accused’s right to
a fair trial. This includes the right to be presumed innocent until proven
guilty (s 35(3)(h); the right to adduce and challenge evidence [s 35(3)(i)]
and the right not to testify during proceedings [s 35 (3)(h)]. See the case
of Dzukuda 2000 (2) SACR 443 (CC); Mofokeng 2013 (10 SACR 143 (FB)
and Mashinini 2012 (1) SACR 604 (SCA).
2. THE PRINCIPLE OF LEGALITY
The prosecution must prove the legal guilt of the accused in a properly
conducted trial where all the relevant common –law, statutory and
constitutional due process rules were adhered to. The accused must be
factually and legally guilty.
3. THE PRINCIPLE OF JUDICIAL IMPARTIALITY
South African courts follow the adversarial system and as such the
presiding officer should not enter or descend into the arena. The role of
the judicial officer is adjudicate on the basis of the evidence that has been
led and should not get involved in the cross-examination of the witnesses.
The judicial officer should ask questions only for the purposes of clarity.
Please read s 186 of the CPA.
4. THE PRINCIPLE OF EQUALITY OF ARMS
The prosecution and the defence must be given an equal opportunity to
present their cases.
5. THE PRINCIPLE OF JUDICIAL CONTROL
The court should impartially manage and control the proceedings within
the bounds of the law of criminal procedure. The judicial officer must also
protect the witnesses from being treated badly during the proceedings.
6. THE PRINCIPLE OF ORALITY
In terms of the rules of evidence a witness should be called to court to
give oral evidence that can be tested under cross-examination. A witness
should be allowed to testify in the language of choice with the use of an
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, interpreter where necessary. The interpreter must be a sworn interpreter.
The evidence of the witness should go through the stages of
examination/evidence in chief where the party calling the witness is
allowed to lead the evidence of the witness; cross-examination where the
opposing party is given the opportunity to question the witness in an
attempt to discredit the witness AND re-examination where the party who
called the witness can ask questions to clarify aspects that arose during
cross-examination. The court is also allowed to ask questions but these
questions should simply to clarify aspects. Courts should not lead
evidence or cross-examine witnesses.
7. THE PRINCIPLE OF FINALITY
Once the state and the defence have closed their cases they should be
allowed to re-open their cases unless it is to rebut evidence that was
adduced from a witness that takes them by surprise.
What are the basic stages of a trial?
- The Prosecution bares the onus of proving its case beyond a reasonable doubt
so it will start by leading evidence to prove its case.
- In terms of Section 150 of the CPA the Prosecutor may address the court and
adduce evidence in order to prove the allegations against the accused. It does
not always happen that the Prosecutor will address the court before leading any
evidence. However the prosecutor may address the court after the accused has
pleaded to the charge and before evidence is adduced. This may be done for the
purpose of explaining the charge against the accused and without comment on
the details, the prosecutor may inform the court of the evidence it intends leading
in support of the charge. This is more popular in complexed cases that are often
dealt with in the high court. Section 150 addresses may be useful in the lower
courts where there are numerous charges against the accused and where the
charge itself is of a complexed nature.
-The witness will give evidence in chief and will be cross-examined by the
defense and sometimes questioned by the Presiding Officer and re-examined by
the Prosecutor.
-The Prosecution will close its case.
-Thereafter the defense will lead evidence in support of its case.
-The defense witness will give evidence in chief and be cross-examined by the
Prosecutor and sometimes questioned by the Presiding officer and then re-
examined by the defense.
-The defense will close its case.
-Once all the evidence has been led the two parties will argue why the Presiding
Officer should find in their favour.
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