lOMoAR cPSD| 784381
Criminal Procedure (CPR3701) EXAM
Questions AND Answers (University of South Africa)
Unit 1 – a basic understanding of criminal procedure
Distinguish between the accusatorial and inquisitorial systems of law. To which
system does South Africa essentially adhere? (6)
Accusatorial and Inquisitorial procedures
Difference between the two procedures lies in the functions of
the parties. Accusatorial Procedure:
e.g. Anglo-American systems and SA (although witness can be called
by the judge and procedure of questioning contains inquisitorial
elements)
Judge is in the role of detached umpire who should not enter the argument
between the prosecution and defence for fear of becoming partial or
loosing perspective.
Police primary investigative force passing evidence to prosecutor in file
format who then becomes the dominus litis.
Prosecution decides on appropriate charges, court etc.
Trial is in the form of a contest between two theoretically equal parties.
Inquisitorial Procedure:
e.g. France
Judge is master of proceedings (dominus litis) – he actively conduct | controls
the search for the truth by dominating the questions of witnesses | accused.
After arrest: accused questioned by judge not police.
In trial judge primarily does the questioning and not the counsel for defense
Do you agree with the following statement and, if so, why? The presumption of innocence principle is the
cornerstone of constitutionalism. If this principle is not upheld at all costs in criminal procedure law and the
law of evidence in South Africa, then the law in these categories could be classified as a ``crime control
model''.
Crime Control Model
Regards the repression of criminal conduct as the most important function of criminal
procedure.
Due Process Model
Regards the adherence to rules which duly and properly acknowledge individual
rights at every stage of the criminal process as the only ground on which a
conviction and sentence can be secured. Supported by the Bill of Rights.
Criticism – tends to neglect the right of victims of crime and law abiding citizens in favour of
the rights of the accused as a result truth seeking suffers.
Both models do not exclude each other, and no existing system of criminal procedure
consists of only one model.
Discussion and description of the presumption of innocence applied in the law of criminal
procedure
Criminal procedure does not deal with the detection, investigation and
prosecution of criminals, but of suspects (not yet charged) and Accused
(charged).
The presumption of innocence & legal guilt:
Due to the Presumption of innocence every person is innocent until:-
, lOMoAR cPSD| 784381
Convicted by a court of law in compliance with the rules of evidence & criminal
procedure.
Conviction is an objective and impartial pronouncement proving legal guilt in
accordance with the principle of legality.
Factual or moral guilt is not the same as legal guilt, conviction in any other
way except legally may amount to vigilantism, mob trials and even anarchy.
The presumption of innocence as a statement of the prosecution’s burden of proof:
Prosecution to prove every element of the crime. If a single element is not
proved beyond a reasonable doubt the accused cannot be convicted.
The onus of proof rests on the prosecution who must prove guilt beyond a
reasonable doubt.
If the State does succeed in proving a prima facie case and the accused does
nothing to disturb that case, prima facie proof may harden into proof beyond
reasonable doubt and the accused may be convicted because there is nothing
which produces a doubt in the court‟s mind about the guilt of the accused.
If the accused can make the court doubt reasonably that one of the required
elements has been proved, he must be acquitted.
Even if the State‟s version is more probable than the accused‟s, he will be
acquitted if there is a reasonable possibility that his version may be true and it is
not even necessary for the court to believe the accused.
The presumption of innocence and the nature of the alleged crime:
Neither the prevalence nor offensiveness of the crime can disrupt the
presumption of innocence.
Not convicting an innocent person far outweighs the public interest of
bringing the perpetrators to justice.
In Coetzee the Constitutional Court held, inter alia that the more serious the
crime and greater the public interest in securing a conviction of the guilty the
more important do constitutional protections of the accused become.
The right to silence
Accused can never be forced to testify, he has the right to silence –
privilege against self- incrimination.
Constitution guarantees the right of every arrestee to remain silent & not be
compelled to make a confession or admission which could be used in evidence
against him. As well as the right to remain silent & not to testify during the
proceedings.
The root of this is that the subject is a full legal subject and not merely an object of
enquiry.
A full legal subject is entitled to participate in his trial according to his own
autonomous decisions and to be assisted. He cannot be tried if he is mentally unable
to understand enough to participate meaningfully & communicate with his lawyer.
Many of the rights of accused persons can be traced to
The presumption of innocence
The status of the accused as a legal subject.
Coupled with the notion of legality, that the state is not absolute but
limited to the rule of law.
No adverse inference should be drawn against his decision to remain silent or not to
testify as
1. he may think that the state is weak and does not merit an answer or the
court cannot be trusted
2. if an element of crime has not been covered by prima facie proof the
nothingness of the accused‟s silence cannot logically fill the gap of the
state‟s case.
May cause the conviction where the state has proved a prima facie case and the
accused has remained silent, then the state‟s evidence is uncontroverted and becomes
proof beyond a reasonable doubt as the silence of the defence did not „disturb‟ the
, lOMoAR cPSD| 784381
state‟s case.
Constitutionalism in the light of what the ``rule of law'' and the legality principle require in a
constitutional state, for example that juridical guilt is important in a constitutional state. This
means that it is not important to secure a verdict of guilty at any cost and by any means
whatsoever, but that it is imperative that the rules of evidence and criminal procedure law be
complied with according to the entrenched rights in the Constitution. It also means that the
burden of proof generally falls on the state to prove the guilt of the accused beyond
reasonable doubt; that if a legal provision shifts the burden of proof to the accused, then the
restriction of the constitutional
right of the accused to be deemed innocent until proven guilty must comply with the limiting
provisions of section 36 of the Constitution, namely that the restriction must be reasonable
and justifiable as in an open and democratic society based on the principles of human dignity,
equality and freedom, taking due account of factors such as the nature of the law, the
importance and purpose of the restriction, the nature and extent of the restriction, and whether
there is a less restrictive way of achieving the set purpose. A practical example of such a
curtailment of the presumption can be found in the inverse or reversed burden of proof in the
case of applications
for bail for Schedule 6 offences as contemplated in section 60 (11) of the Criminal Procedure
Act, where the accused has to convince the court that unusual circumstances exist under
which it is justifiable in the interests of justice that the accused should be released although
facing a serious charge. It can be said, therefore, that where bail applications relating to
certain serious offences are concerned, South Africa espouses the ``crime
, lOMoAR cPSD| 784381
control'' model in the interests of justice. The different criteria of proof required for each
stage/phase/component may also have an impact on assessment of the type of model.
What are the rights of the arrested suspect and the accused?
Section 35 of Constitution - Arrested, detained and accused persons
(1) Everyone who is arrested for allegedly committing an offence has the right-
(a) to remain silent;
(b) to be informed promptly-
(i) of the right to remain silent; and
(ii) of the consequences of not remaining silent;
(c) not to be compelled to make any confession or admission that
could be used in evidence against that person;
(d) to be brought before a court as soon as reasonably possible, but not later than -
(i) 48 hours after the arrest; or
(ii) the end of the first court day after the expiry of the 48 hours, if
the 48 hours expire outside ordinary court hours or on a day
which is not an ordinary court day;
(e) at the first court appearance after being arrested, to be charged or to be
informed of the reason for the detention to continue, or to be released;
and
(f) to be released from detention if the interests of justice permit, subject to
reasonable conditions.
(3) Every accused person has a right to a fair trial, which includes the right-
(a) to be informed of the charge with sufficient detail to answer it;
(b) to have adequate time and facilities to prepare a defence;
(c) to a public trial before an ordinary court;
(d) to have their trial begin and conclude without unreasonable delay;
(e) to be present when being tried;
(f) to choose, and be represented by, a legal practitioner, and to be informed
of this right promptly;
(g) to have a legal practitioner assigned to the accused person by the state
and at state expense, if substantial injustice would otherwise result, and to
be informed of this right promptly;
(h) to be presumed innocent, to remain silent, and not to testify during the proceedings;
(i) to adduce and challenge evidence;
(j) not to be compelled to give self-incriminating evidence;
(k) to be tried in a language that the accused person understands or, if
that is not practicable, to have the proceedings interpreted in that
language;
(l) not to be convicted for an act or omission that was not an offence under
either national or international law at the time it was committed or
omitted;
(m) not to be tried for an offence in respect of an act or omission for which
that person has previously been either acquitted or convicted;
(n) to the benefit of the least severe of the prescribed punishments if the
prescribed punishment for the offence has been changed between the
time that the offence was committed and the time of sentencing; and
(o) of appeal to, or review by, a higher court.
(4) Whenever this section requires information to be given to a person, that
information must be given in a language that the person understands.
(5)Evidence obtained in a manner that violates any right in the Bill of Rights must
