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Summary CIP2601 NOTES
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CIP2601 EXAMINATION NOTES AND SUMMARY.
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NOTESCriminal Procedure 1
CMP201-6
1. A BASIC INTRODUCTION TO CRIMINAL PROCEDURE
1.1. The place of the law of criminal procedure in the legal system
The law of criminal procedure is the entire body of rules that prescribes the procedure to follow in
punishing criminals by virtue of state authority.
Criminal procedure must, subject to the supremacy of the Constitution:
- provide a process to enforce criminal law;
- allocate power to state officials; and
- articulate fair process norms with reliable outcomes.
LAW
Public law Private Law
Substantive law Constitutional law Family law
Legal rules deter- Administrative law Property law
mining the rights and
duties of individuals International law Law of persons
and the state Criminal law Law of delict
Adjectival law Offence Instituted Claim
Procedures to enforce
substantive law by Public/Criminal procedure law Civil procedure law (used in public
proving and judging procedure, eg mandamus, interdict)
Law of evidence
the - Law of evidence
1.2. Crime control and due process
Criminal procedure is a system which seeks to incorporate certain fundamental values and balance
two conflicting social interests, namely individual freedom and effective crime control. This can be
best explained in terms of the following models:
Crime Control Model Due Process Model
Regards the repression of criminal conduct Regards the adherence to rules which duly and
as the most important function of criminal properly acknowledge individual rights at every
procedure. stage of the criminal process as the only ground on
which a conviction and sentence can be secured.
Not rival models! Both seek to vindicate the goals of substantive criminal law
No real-life systems conform exactly to one specific model, an appropriate balance must be
secured, and there are certain tensions between the underlying values of the two models. Case
law illustrates the tension between the two models:
Naidoo 1998 (1) SACR 479 N
The police had obtained incriminating evidence in breach of the constitutional right to privacy. This
evidence was excluded on the basis of Section 35(5) and resulted in acquittal of the accused
despite the fact that the robbery in question was (at that stage) the ‘biggest robbery’ in the history
of South Africa.
,CMP201-6 Page 2 of 51
Our system, essentially weighted in favour of due process in the spirit of the Bill of Rights, does not
neglect the rights of the victims of crime; it merely seeks to ensure that vindication of the rights of
victims should not trigger or lead to further injustices against accused by preventing abuse of
power and putting practical limitations on state power in place.
Crime control and due process are not the sole models in criminal process and we can also
distinguish the –
- punitive model, which affirms the retributive importance of punishment and the need for the
rights of victims to be considered along with the rights of the accused; and
- non-punitive model, which attempts to minimise the pain of both victimisation and punishment
by stressing crime prevention and restorative justice.
Restorative justice involves a process that seeks to avoid the invocation of the formal criminal
sanctions and aims to reach a non-punitive resolution of a dispute. The co-operation of the
offender, the victim and members of the community are required to secure restorative justice.
The role of victims are confined to that of ordinary witnesses and they often feel alienated from the
process worsened by factors like repeated remands granted to accused, inadequate pre-trial
communication with victim, poor investigation and presentation of the case by over-worked officials.
Some statutory provisions promote victim participation and some aims at protecting the victim.
1.3. Constitutional criminal procedure
Constitutional supremacy entails that it is now possible to have legislation and common law rules
which conflict with the Constitution set aside. In the Bill of Rights:
- the criminal procedural provisions usually have vertical operation (i.e. state as power-wielder
and the subject);
- constitutional criminal procedural provisions are usually stated negatively prohibiting the state
from infringing certain fundamental rights;
- it is recognised that most rights are not absolute and may be limited;
- requires a strong and independent judiciary, whose judges may sometimes go against popular
sentiment in interpreting the Bill of Rights.
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.
(2) Everyone who is detained, including every sentenced prisoner, has the right-
(a) to be informed promptly of the reason for being detained;
(b) to choose, and to consult with, a legal practitioner, and to be informed of this right
promptly;
(c) to have a legal practitioner assigned to the detained person by the state and at state
expense, if substantial injustice would otherwise result, and to be informed of this right
promptly;
,CMP201-6 Page 3 of 51
(d) to challenge the lawfulness of the detention in person before a court and, if the
detention is unlawful, to be released;
(e) to conditions of detention that are consistent with human dignity, including at least
exercise and the provision, at state expense, of adequate accommodation, nutrition,
reading material and medical treatment; and
(f) to communicate with, and be visited by, that person's -
(i) spouse or partner;
(ii) next of kin;
(iii) chosen religious counsellor; and
(iv) chosen medical practitioner.
(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 be excluded if
the admission of that evidence would render the trial unfair or otherwise be detrimental to the
administration of justice.
The presumption of innocence
Criminal procedure does not deal with the prosecution of criminals, but of –
- suspects, generally referring to persons who have not yet been charged; and
- accused, referring to persons who have been charged.
Due to the presumption of innocence, every person is regarded as innocent until properly convicted
by a court of law. A person may be morally or factually guilty of a crime in the public’s view, but
that does not mean that he will or can be proved to be legally guilty and only legal guilt counts.
The accused do not need to prove his innocence, the onus of proof rests on the prosecution who
must prove his guilt beyond a reasonable doubt. If a single element is not proved by the
prosecution, the accused cannot be convicted and can even be discharged at the end of the
State’s case. 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
, CMP201-6 Page 4 of 51
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 right to silence
Related to the presumption of innocence is the rule that an accused can never be forced to testify,
also called his privilege against self-incrimination. The Constitution guarantees the right of every
arrestee to remain silent and not to be compelled to make a confession or admission which could
be used in evidence against him, as well as the right of every accused person to remain silent and
not to testify during the proceedings. The interrelatedness of the presumption of innocence and the
right to silence is apparent in Section 35(3)(h) and was explored in:
Zuma 1995 (4) BCLR 401 (A)
Section 217(1)(b)(ii) of the Criminal Procedure Act requiring an accused, in certain circumstances,
to prove that a confession was not freely and voluntarily made, was unconstitutional.
Presumption of innocence is the basis of the rule that the onus in criminal cases should always be
on the State. If an accused is unrepresented, he should at all stages in the process be informed of
his rights and options, as well as their implications, and he should not be penalised for exercising
those rights, otherwise the rights in reality amount to nothing.
A person who exercises his right to silence at his trial should accordingly not be penalised for the
exercise of the right. No adverse inference should be drawn against his decision not to testify, for 2
reasons:
- there may be a multitude of reasons why he does not wish to testify
- no such conclusion could logically be drawn to fill the gaps in the State case (if an element of a
crime has not been covered by the State’s prima facie case, the accused’s silence can’t fill that
gap).
However, the accused’s defence can be severely or fatally damaged by his silence if the State has
proved a prima facie case against the accused and the accused has not raised a reasonable doubt
on any of the elements. The prima facie case hardens into sufficient evidence for a conviction.
This only happens because the accused did not disturb the State’s case and not because the
silence of the accused added anything positive to the State’s case.
1.4. Accusatorial and inquisitorial procedures, and a brief history of South African criminal procedure
Parties Accusatorial Inquisitorial
Judicial Judge’s role is that of a detached Judge is the master of the proceedings in
officer umpire, who should never enter the that he actively conducts and even
arena of the fight between the controls the search for the truth by
prosecution and the defence for fear of dominating the questioning of witnesses
his becoming partial or losing and the accused.
perspective because of the dust.
Prosecution The police are the primary investigative After arrest, the accused is questioned
force. They pass the collected evidence primarily by the investigating judge, not
on to the prosecution who then the police.
becomes master of the proceedings
(dominus litis).
Defence In court, the trial takes the form of a In the trial, the presiding judge does the
contest between 2 theoretically equal questioning, not the counsel for the
parties who do the questioning. prosecution or defence.
South African criminal procedure has basically been accusatorial, but there are inquisitorial
elements (eg the procedure of questioning under Section 115 – plea of not guilty; part of Section
112 – questioning pursuant to a plea of guilty).
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