CRIMINAL PROCEDURE
PRE-TRIAL REVISION STUDY PACK
Abstract
Typical examination questions and answers
Joseph
0784683517
, 1
CHAPTER ONE
Discuss the differences between the inquisitorial and accusatorial legal processes. In addition,
indicate to which system the Republic of South Africa subscribes. (7)
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
[1] 2. Discuss the principles relating to "due process (legality, the rule of law) and the need
to limit state power" in criminal procedure (8)
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.
“The expert in anything was once a beginner”
, 2
Both models do not exclude each other, and no existing system of criminal procedure
consists of only one model.
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' 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.
There is a viewpoint that the criminal justice system is offender -orientated, to the
detriment of the rights and interests of victims an d other witnesses. Victims, it has
often been said, feel alienated from the process, which is further exacerbated by the
absence of a comprehensive victim compensation fund for certain categories of
victims.
Discuss the position of the victim in the South African criminal procedural system.
(10)
The criminal prosecution at the instance of the State is essentially a contest between the State
and the accused. The role of the victim (or relatives of the deceased) is, in principle, confined
to that of an ordinary witness who is simply called upon to testify on the question of the guilt or
innocence of the accused or the sentencing of the accused, if found guilty.
There are however, certain provisions which do indeed promote victim participation in the
criminal process which will become apparent later in your studies of criminal procedure.
Perhaps of more importance is the concept of victim protection in the criminal process. There
are some statutory provisions aimed at protecting the victim. Selected examples found in the
CPA are for example:
“The expert in anything was once a beginner”
, 3
1 Section 144(3)(a)(ii) indicates that where an accused is arraigned for summary trial in the
High Court, the indictment must be accompanied by a list of names and addresses of
prospective prosecution witnesses and if the Director of Public Prosecutions is of the opinion
that these witnesses may be tampered with or may be intimidated in one way or another, or
in the interest of the security of the State, he may specify that the names and addresses
may be withheld.
2 Section 153(2) indicates that if it appears to the court that there is a likelihood that harm may
result to a witness, the court may direct that such witness shall testify behind closed doors
in order to protect his identity.
3 In terms of s 158(3)(e) a witness may testify by means of closed circuit television, if it
appears to the court that such witness would be harmed or prejudiced by testifying in open
court.
4 Section 170A empowers the court to appoint an intermediary to facilitate the testimony of a
witness under the age of 18 who may otherwise be exposed to mental strain or harm.
5 A witness may apply to be placed in a witness protection programme under the auspices of
the Witness Protection Act 112 of 1998.
6 In terms of part 16 of the Prosecution Directives issued by the National Director of Public
Prosecutions, certain factors regarding witness protection must be taken into account by
prosecutors.
In Mabaso 1990 (3) SA 185 (A) it was suggested that the legislature should provide or
legislation in terms of which an arrested person should be informed of his right to legal
representation (representation or legal counsel) upon arrest. This has now been embodied in s
73(2A) of the CPA.
The Role of the Victim 1
Criminal prosecution is essentially a contest between the state and the accused. The role of the victim
is confined to that of an ordinary witness called to provide testimony and victim participation inadequate
and victims feel alienated from the process. The perception of ordinary members of society in general,
and victims of crime in particular, is that criminals enjoy more protections and more rights in law than
the average law abiding citizen. This is created, in large measure, by a liberal constitutional make-up
which has a Bill of Rights which aims to protect the rights of every individual, notwithstanding that the
person might have committed a crime and that the system lacks adequate victim support strategies
such as protecting victims from traumatisation. Inadequate pre-trial communication with victims is
common and poor investigation and presentation of cases often occurs.
Contrary to belief, however, the legal system in general, and the Criminal Procedure Act in particular,
does provide adequate means of participation and protection to victims of crimes as evidenced in the
following provisions of the Act:
Victim Participation
“The expert in anything was once a beginner”
PRE-TRIAL REVISION STUDY PACK
Abstract
Typical examination questions and answers
Joseph
0784683517
, 1
CHAPTER ONE
Discuss the differences between the inquisitorial and accusatorial legal processes. In addition,
indicate to which system the Republic of South Africa subscribes. (7)
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
[1] 2. Discuss the principles relating to "due process (legality, the rule of law) and the need
to limit state power" in criminal procedure (8)
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.
“The expert in anything was once a beginner”
, 2
Both models do not exclude each other, and no existing system of criminal procedure
consists of only one model.
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' 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.
There is a viewpoint that the criminal justice system is offender -orientated, to the
detriment of the rights and interests of victims an d other witnesses. Victims, it has
often been said, feel alienated from the process, which is further exacerbated by the
absence of a comprehensive victim compensation fund for certain categories of
victims.
Discuss the position of the victim in the South African criminal procedural system.
(10)
The criminal prosecution at the instance of the State is essentially a contest between the State
and the accused. The role of the victim (or relatives of the deceased) is, in principle, confined
to that of an ordinary witness who is simply called upon to testify on the question of the guilt or
innocence of the accused or the sentencing of the accused, if found guilty.
There are however, certain provisions which do indeed promote victim participation in the
criminal process which will become apparent later in your studies of criminal procedure.
Perhaps of more importance is the concept of victim protection in the criminal process. There
are some statutory provisions aimed at protecting the victim. Selected examples found in the
CPA are for example:
“The expert in anything was once a beginner”
, 3
1 Section 144(3)(a)(ii) indicates that where an accused is arraigned for summary trial in the
High Court, the indictment must be accompanied by a list of names and addresses of
prospective prosecution witnesses and if the Director of Public Prosecutions is of the opinion
that these witnesses may be tampered with or may be intimidated in one way or another, or
in the interest of the security of the State, he may specify that the names and addresses
may be withheld.
2 Section 153(2) indicates that if it appears to the court that there is a likelihood that harm may
result to a witness, the court may direct that such witness shall testify behind closed doors
in order to protect his identity.
3 In terms of s 158(3)(e) a witness may testify by means of closed circuit television, if it
appears to the court that such witness would be harmed or prejudiced by testifying in open
court.
4 Section 170A empowers the court to appoint an intermediary to facilitate the testimony of a
witness under the age of 18 who may otherwise be exposed to mental strain or harm.
5 A witness may apply to be placed in a witness protection programme under the auspices of
the Witness Protection Act 112 of 1998.
6 In terms of part 16 of the Prosecution Directives issued by the National Director of Public
Prosecutions, certain factors regarding witness protection must be taken into account by
prosecutors.
In Mabaso 1990 (3) SA 185 (A) it was suggested that the legislature should provide or
legislation in terms of which an arrested person should be informed of his right to legal
representation (representation or legal counsel) upon arrest. This has now been embodied in s
73(2A) of the CPA.
The Role of the Victim 1
Criminal prosecution is essentially a contest between the state and the accused. The role of the victim
is confined to that of an ordinary witness called to provide testimony and victim participation inadequate
and victims feel alienated from the process. The perception of ordinary members of society in general,
and victims of crime in particular, is that criminals enjoy more protections and more rights in law than
the average law abiding citizen. This is created, in large measure, by a liberal constitutional make-up
which has a Bill of Rights which aims to protect the rights of every individual, notwithstanding that the
person might have committed a crime and that the system lacks adequate victim support strategies
such as protecting victims from traumatisation. Inadequate pre-trial communication with victims is
common and poor investigation and presentation of cases often occurs.
Contrary to belief, however, the legal system in general, and the Criminal Procedure Act in particular,
does provide adequate means of participation and protection to victims of crimes as evidenced in the
following provisions of the Act:
Victim Participation
“The expert in anything was once a beginner”
