Summary CPR3701_ CRIMINAL PROCEDURE LAW NOTES UPDATED SEMESTER 02 2021.

CPR3701_ CRIMINAL PROCEDURE LAW NOTES UPDATED SEMESTER 02 2021. 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 Legal rules determining the rights and duties of individuals and the state • Constitutional law • Administrative law • International law • Criminal law • Family law • Property law • Law of persons • Law of delict Adjectival law Offence Instituted Claim Procedures to enforce substantive law by proving and judging the - • Public/Criminal procedure law • Law of evidence • Civil procedure law (used in public procedure, eg mandamus, interdict) • 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 as the most important function of criminal procedure. 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. 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. S - The study-notes marketplace Downloaded by: lalabvuma | Distribution of this document is illegal Downloaded by DESMOND CHIKASHA 8 () lOMoARcPSD| S - The study-notes marketplace 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; S - The study-notes marketplace Downloaded by: lalabvuma | Distribution of this document is illegal Downloaded by DESMOND CHIKASHA 8 () lOMoARcPSD| S - The study-notes marketplace 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 S - The study-notes marketplace Downloaded by: lalabvuma | Distribution of this document is illegal Downloaded by DESMOND CHIKASHA 8 () lOMoARcPSD| S - The study-notes marketplace 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 officer Judge’s role is that of a detached umpire, who should never enter the arena of the fight between the prosecution and the defence for fear of his becoming partial or losing perspective because of the dust. Judge is the master of the proceedings in that he actively conducts and even controls the search for the truth by dominating the questioning of witnesses and the accused. Prosecution The police are the primary investigative force. They pass the collected evidence on to the prosecution who then becomes master of the proceedings (dominus litis). After arrest, the accused is questioned primarily by the investigating judge, not the police. Defence In court, the trial takes the form of a contest between 2 theoretically equal parties who do the questioning. In the trial, the presiding judge does the questioning, not the counsel for the 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). S - The study-notes marketplace Downloaded by: lalabvuma | Distribution of this document is illegal Downloaded by DESMOND CHIKASHA 8 () lOMoARcPSD| S - The study-notes marketplace CMP201-6 Page 5 of 51 1.5. Sources of the South African criminal procedure - The Constitution - The Criminal Procedure Act 51 of 1977 (“CPA”) - Other legislation - Common-law rules - Case law 1.6. Remedies It is in society’s interests that the police should act lawfully and that meaningful control should be exercised over the actions of the executive, therefore the powers of the authorities are subjected to limitations. The rights of the suspect are maintained by a number of sanctions, such as: - criminal sanctions on the ground of assault; - rules of evidence regarding admissibility of admissions; - judicial criticism of police action; - newspaper reporting and editorial comment; - internal disciplinary measures by the police; - public protest; - The writ of habeas corpus (or interdictum de libero homine exhibendo) An important remedy to obtain judicial review of police action and thus to protect the subject against unlawful deprivation of his liberty. The court is asked for a remedy that the respondent (Minister / chief warden) produce the body of the detainee before the court at a certain date and time. This order is coupled with a rule nisi that the respondent must show reason why the detainee should not be released. Prima facie reasons for believing that the detention is wrongful must be alleged. - Civil action for damages An action for damages (eg on the ground of wrongful arrest, wrongful detention, physical injury) is an example of delictual liability which may arise in the course of the criminal process and which may be used by suspects to compensate them for any abuse they may have suffered. - Interdict An order of court whereby a person is prohibited from acting in a certain way to limit or prevent harm or damage, it may even be obtained where harm has not yet occurred but is threatening. - Mandamus It is a positive order that a functionary perform his duties (eg furnish the accused with proper particulars relating to the charges) and is the reverse of an interdict. - The Exclusionary Rule Section 35(5) of the Constitution provides that 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 be detrimental to the administration of justice. The exclusion is, however, not automatic, but is contingent on a finding that admission would render the trial unfair and the courts thus have a discretion to exclude or admit it. It aims to deter unlawful police conduct in the pre-trial criminal procedure by rendering inadmissible in a court any evidence which was obtained by state officials by unlawful means. - Informal Remedies An informal way of obtaining relief is to resist arrest or to escape from unlawful custody, being risky in practice. - Constitutional mechanisms Various mechanisms for promotion of the maintenance of human rights and legality as against overbearing state action are contained in the Constitution. S - The study-notes marketplace Downloaded by: lalabvuma | Distribution of this document is illegal Downloaded by DESMOND CHIKASHA 8 () lOMoARcPSD| S - The study-notes marketplace CMP201-6 Page 6 of 51 2. CRIMINAL COURTS OF THE REPUBLIC 2.1. Constitutional Court Seated in Johannesburg and consisting of a Chief Justice, Deputy Chief Justice and 9 other judges, it is the highest court in all constitutional matters. It may decide only constitutional matters to decide whether issues are constitutional or not. It must also confirm constitutional decisions made by the Supreme Court of Appeal, High Court, etc before they have force. Section 167 of Constitution - Constitutional Court (4) Only the Constitutional Court may – (a) decide disputes between organs of state in the national or provincial sphere concerning the constitutional status, powers or functions of any of those organs of state; (b) decide on the constitutionality of any parliamentary or provincial Bill, but may do so only in the circumstances anticipated in section 79 or 121; (c) decide applications envisaged in section 80 or 122; (d) decide on the constitutionality of any amendment to the Constitution; (e) decide that Parliament or the President has failed to fulfil a constitutional obligation; or (f) certify a provincial constitution in terms of section 144. 2.2. Superior Courts 2.2.1. The Supreme Court of Appeal Seated in Bloemfontein and consisting of a President, a Deputy President and the number of judges of appeal determined in terms an Act of Parliament, it decides appeals in any matter. It is the highest court of appeal except in constitutional matters and 3 to 5 judges usually hears a criminal appeal. 2.2.2. The High Court Consists of 6 provincial divisions, 3 local divisions and the High Courts of Bophuthatswana, Ciskei, Transkei and Venda. Local circuit divisions may also be instituted in all the divisions. A Judge President is appointed for each division of the High Court, except for the High Courts of Ciskei, Transkei and Venda, and the number of judges differs for each division. 2.3. Lower Courts Any court established under the provisions of the Magistrates’ Courts Act 2.3.1. The Magistrates’ Court Instituted for districts and consists of Chief Magistrates, Magistrates of District Court Magistrates. 2.3.2. The Regional Courts Instituted for regional divisions and consists of Regional Court Presidents or Regional Court Magistrates. 2.3.3. Periodical Courts Magistrates’ Courts which sit at regular intervals at places other than the seats of fixed permanent district courts and performs the same function in large and sparsely populated areas as circuit courts in the High Court. 2.4. Jurisdiction Jurisdiction of Criminal Courts Appeal jurisdiction Jurisdiction in respect of offences Territory Punishment Validity of the provisions of any Act S - The study-notes marketplace Downloaded by: lalabvuma | Distribution of this document is illegal Downloaded by DESMOND CHIKASHA 8 () lOMoARcPSD| S - The study-notes marketplace CMP201-6 Page 7 of 51 2.4.1. Appeal jurisdiction • The Supreme Court of Appeal o Jurisdiction to hear and determine an appeal against any decision of a high court. o Appeal ≠ automatic - Leave to appeal must first be sought from the High Court. Section 333 of CPA - Minister may invoke decision of Appellate Division on question of law Whenever the Minister of Justice has any doubt as to the correctness of any decision given by any superior court in any criminal case on a question of law, or whenever a decision in any criminal case on a question of law is given by any division of the Supreme Court which is in conflict with a decision in any criminal case on a question of law given by any other division of the Supreme Court, he may submit such decision or, as the case may be, such conflicting decisions to the Appellate Division of the Supreme Court and cause the matter to be argued before that Court in order that it may determine such question of law for the future guidance of all courts. Ex Parte Minister of Justice: In Re R v Bolon 1941 AD 345 The Minister referred a question of what degree of proof was required from an accused when a statute stated that the onus was on the accused to the SCA and it held that it was the same as in a civil trial (discharge the onus on a balance of probabilities) • Provincial divisions of the High Court o Jurisdiction to hear and determine appeals and reviews in respect of criminal matters emanating from lower courts. o A ‘full court’ (ie, 3 judges) has appellate jurisdiction to hear an appeal from a single judge’s decision of the High Court, if the matter does not require the attention of the Supreme Court of Appeal. • Local divisions of the High Court o WLD has the same appellate jurisdiction as a provincial division. o The other local divisions have no appellate jurisdiction. 2.4.2. Jurisdiction in respect of offences • The Supreme Court of Appeal Act as court of appeal only, except in case of contempt of court = may impose sentence. • Provincial and local divisions of the High Court Original jurisdiction in respect of all offences. • District court Jurisdiction to try all crimes except treason, murder and rape. • Regional court Jurisdiction to try all crimes except treason. 2.4.3. Jurisdiction in respect of offences committed on South African territory • The Supreme Court of Appeal Jurisdiction to hear an appeal against any judgment of a High Court in South Africa. • Provincial divisions of the High Court Original jurisdiction in respect of all offences committed within their respective areas. This rule has been extended in the following respects: o Hull 1948 (4) SA 239 (C): One division has jurisdiction to put into effect a suspended sentence imposed by another division or Magistrates’ Court. S - The study-notes marketplace Downloaded by: lalabvuma | Distribution of this document is illegal Downloaded by DESMOND CHIKASHA 8 () lOMoARcPSD| S - The study-notes marketplace CMP201-6 Page 8 of 51 o Civil Aviation Act: An offence is deemed to have been committed in any place the accused happens to be. o Fairfield 1920 CPD 279: If an Act creates an offence and confers jurisdiction merely on a lower court in respect of such offence, a high court is not excluded from hearing the trials. o Section 111 of CPA: Empowers the National Director of Public Prosecutions to order a trial in a court within the area of a Director of Public Prosecutions although the offence was committed within the area of another director. Section 22(3) of Act 32 of 1998 states nearly the same if it is in the interest of the administration of justice. • Local divisions of the High Court Area of jurisdiction of each local division includes a number of magisterial districts. In the areas of jurisdiction of local divisions, the provincial divisions have concurrent jurisdiction. • Regional courts and district courts o Summary trial Here the accused is charged in the Magistrates’ Court and this court itself decides whether he is guilty. Section 90 of the Magistrates’ Court Act provides that district or regional courts have jurisdiction to hear trials in respect of offences committed within the district or regional division. This principle has been extended as follows: 1. When a person is charged with any offence – (a) committed within the distance of 4km beyond the boundary of the district, or regional division; or (b) committed in or on a vessel or vehicle on a voyage or journey, any part whereof was performed within a distance of 4km from the boundary of the district or regional division; or (c) committed on board a vessel on a journey upon a river within South Africa and such journey or part thereof was performed in the district or regional division or within 4km thereof; or (d) committed on board a vessel on a voyage within the territorial waters of South Africa and the said territorial waters adjoin the district or regional division; or (e) begun or completed within the district or regional division, such person may be tried within the district or regional division, as if he had been charged with an offence committed within the district or regional division. This rule applies if it is an offence under the common law, and probably also if it is an offence in terms of statutory law operative in both districts. This 4km rule only applies within South Africa and not to crimes committed outside our border, but which fall within 4km of our borders. 2. Where it is uncertain in which of several jurisdictions an offence was committed, it may be tried in any of such jurisdictions. 3. A district or regional court may try an offence if the act, omission or even an element of the offence was committed in that district or regional division. 4. Any person charged with theft or receiving property knowing it to be stolen, etc, may be tried in any district or regional division, where he had part or all of the property in his possession. 5. A person charged with kidnapping, child-stealing or abduction may be tried in any district or regional division through or in which he conveyed, concealed or detained the victim. 6. A statutory provision may grant a Magistrates’ Court jurisdiction in respect of an offence committed beyond the local limits of the district or regional division. 4km Rule! S - The study-notes marketplace Downloaded by: lalabvuma | Distribution of this document is illegal Downloaded by DESMOND CHIKASHA 8 () lOMoARcPSD| S - The study-notes marketplace CMP201-6 Page 9 of 51 7. Where an accused is alleged to have committed several offences in different districts falling within the Director of Public Prosecution’s area, he may order in writing that all the matters be heard in one Magistrates’ Court in his area. 8. If there are a number of accused, the Director of Public Prosecutions may order in writing that an accused be tried in a district or regional division in his area, to avoid excessive inconvenience or disturbance of a particular area. 9. In terms of Section 110(1) of the CPA, if a person is, as far as territorial jurisdiction is concerned, wrongly charged before a particular court, and fails to object timeously, such court will acquire jurisdiction. 10. In terms of Section 18 of the Aviation Act, if an offence is committed on a South African plane, the offence is deemed for purposes of criminal jurisdiction to have been committed in any place the accused happens to be. 11. In terms of Section 111 of the CPA, the National Director of Public Prosecutions has the power to move a trial from one Director of Public Prosecutions’ area to another. o Preparatory examination There is a hearing in which the accused is not tried and the Magistrate does not judge whether he is guilty or not guilty, but only hears the evidence which is then sent to the Director of Public Prosecutions who will decide whether to institute a prosecution or not and in which court. 2.4.4. Jurisdiction in respect of offences committed outside South Africa General Rule: South African courts will only exercise jurisdiction with regard to offences committed on South African territory. There are however a number of exceptions: • High Treason (eg South African citizen resident in a foreign country and joins enemy army in wartime); • Theft committed in foreign country, but the accused has the stolen property in South Africa (ie a continuing offence); • Offences on ships (ie territorial waters are considered part of that state); • Offences on aircraft: Offence on South African aircraft Offence outside South Africa on nonSouth African aircraft Section 18 of the Aviation Act, if an offence is committed on a South African plane, the offence is deemed for purposes of criminal jurisdiction to have been committed in any place the accused happens to be. • Lands in South Africa with offender still on board ; or • Principal place of business or permanent residence of lessee of aircraft is in South Africa; or • Offender is present in South Africa. • Offences committed on territory subsequently annexed by South Africa; • Offences committed on South African aircraft – Section 18 of Aviation Act; • Offences committed by South African citizens in Antarctica falls within the jurisdiction of the Cape Town Magisterial District; • Offences deemed to be committed in Republic regardless where the accused happens to be (eg Correctional Services Act – unauthorised access to any computer of the Department of Correctional Services, South Africa has jurisdiction even if the offence was committed outside South Africa and the computer or accused was in South Africa) • However, an accused’s mere presence does not always settle the matter: when an accused is illegally abducted from a foreign state by agents of the South African authorities and subsequently handed over to the South African police, the court before which such abducted person is arraigned has no jurisdiction to try such person. • Embassies - Diplomats remain subject to the jurisdiction of their home states. S - The study-notes marketplace Downloaded by: lalabvuma | Distribution of this document is illegal Downloaded by DESMOND CHIKASHA 8 () lOMoARcPSD| S - The study-notes marketplace CMP201-6 Page 10 of 51 2.4.5. Punishment • The Supreme Court of Appeal, and the High Court The Supreme Court of Appeal will only impose a sentence (any lawful sentence) as a court of first instance where it convicts a person of contempt of court. The Supreme Court of Appeal, a provincial division or the WLD can only impose sentence that could have been imposed by the court of first instance. The following sentences may be imposed: o Imprisonment (including for life); o Periodical imprisonment; o Declaration as habitual criminal; o Committal to a treatment centre; o Fine; o Correctional supervision; and o Imprisonment from which person may be placed under correctional supervision. • Regional courts The following sentences may be imposed: o Imprisonment not exceeding 15 years; o Periodical imprisonment; o Declaration as habitual criminal; o Committal to treatment centre; o Fine not exceeding R 300,000 (subject to change by Minister); o Correctional supervision; and o Imprisonment from which person may be placed under correctional supervision. • District courts Only the following sentences may be imposed: o Imprisonment not exceeding 3 years; o Periodical imprisonment; o Committal to a treatment centre; o Fine not exceeding R 60,000 (subject to change by Minister); o Correctional supervision; and o Imprisonment from which person may be placed under correctional supervision. 2.4.6. Validity of the provisions of any Act Section 110 of the Magistrates’ Court Act provides that no Magistrates’ Court shall be competent to pronounce upon the validity of any law or conduct of the President. If an accused pleads not guilty in a lower court and his defence is based on the alleged invalidity of a provincial ordinance or a proclamation issued by the President, the accused must be committed for summary trial before a superior court having jurisdiction. 3. PROSECUTING CRIME 3.1. Introduction - Most states do not adhere to the principle of compulsory prosecution. - Prosecuting authorities are vested with a discretion whether to prosecute or not, but the victim may still proceed in a personal capacity against the alleged perpetrator (private prosecution). - Most states perceive the commission of a crime as a violation of the public interest and punishment is sought on behalf of society. A prosecution, however, does not deprive the injured party of any civil remedies he might have and the victim might still seek to recover his losses in a civil court. - A conviction or acquittal will, therefore, not bar a civil action for damages, except where the criminal court has ordered the convicted accused to pay compensation to the complainant or to return stolen property – cannot be compensated twice in respect of one and the same loss.