MODULE: CIV3701 ( Criminal Procedure)
ASSIGNMENT: 02
UNIQUE CODE: 832319
DUE DATE: 06 September 2019
QUESTION 1
1
, (1) ‘An accused is, in principle, entitled to have access to documents in the police
file’. Discuss this statement with reference to case law and include an explanation for
the qualified ‘in principle.
Although section 32 (1) of the Constitution provides that everyone has the right of access to
any information held by the state; and any information that is held by another person and
that is required for the exercise or protection of any rights. Arrested, detained and accused
persons have a right to a fair trial, which includes the right and to be informed of the charge
with sufficient detail to answer it, is all provided in Section 35 (3) of the Constitution
provides. However, the common law position was that most documents in the police docket
were privileged.
The latter was proven otherwise in Shabalala v Attorney-General where Constitutional Court
held that the right to a fair trial required disclosure of information in the police docket; hence,
rejecting the blanket docket privilege. The Shabalala decision demonstrated that there is no
need for routine disclosure of internal documents. Thus, the right of access does not include
the right to inspect all the contents of the police docket. The Constitutional Court recognized
a number of exceptions to the access rule in Shabalala. However, at the end of the day, the
trial court has a discretion to balance the accused’s need for a fair trial against the legitimate
interests of the state in enhancing and protecting the ends of justice. However, the
prosecution can refuse access, by convincing the trial court that access is not justified for the
purposes of a fair trial. This would depend on the simplicity of the case and the degree of
information already in the accused’s possession. The golden rule is that prosecution must
prove incriminating factors and the charges must also reflect on the charge sheet. The
accused must prove exculpatory factors if there are any factors to be mentioned. The court
has a discretion to determine whether unnecessary averments have to be included or not.
Validity of the proceedings will not be affected by unnecessary averment, unless it
embarrasses the accused in his defence. The accused has a right to request further
particulars from the State if he believes the content of the indictment are not sufficient to
inform him properly of the charge and for preparation of his defence. Denial of access to the
police docket violates the accused’s right to a fair trial. Presenting a challenge in terms of
preparation for a plea and adequate defence. It is also possible that reliability of the
prosecution’s evidence will not be adequately challenged if the accused is not granted prior
access to such dockets. The right to a fair trial may also entail that information in the
possession of third parties could be necessary for the adequate preparation of a defence.
However, an accused’s right to fair trial may conflict with a third party’s right to privacy.
2
ASSIGNMENT: 02
UNIQUE CODE: 832319
DUE DATE: 06 September 2019
QUESTION 1
1
, (1) ‘An accused is, in principle, entitled to have access to documents in the police
file’. Discuss this statement with reference to case law and include an explanation for
the qualified ‘in principle.
Although section 32 (1) of the Constitution provides that everyone has the right of access to
any information held by the state; and any information that is held by another person and
that is required for the exercise or protection of any rights. Arrested, detained and accused
persons have a right to a fair trial, which includes the right and to be informed of the charge
with sufficient detail to answer it, is all provided in Section 35 (3) of the Constitution
provides. However, the common law position was that most documents in the police docket
were privileged.
The latter was proven otherwise in Shabalala v Attorney-General where Constitutional Court
held that the right to a fair trial required disclosure of information in the police docket; hence,
rejecting the blanket docket privilege. The Shabalala decision demonstrated that there is no
need for routine disclosure of internal documents. Thus, the right of access does not include
the right to inspect all the contents of the police docket. The Constitutional Court recognized
a number of exceptions to the access rule in Shabalala. However, at the end of the day, the
trial court has a discretion to balance the accused’s need for a fair trial against the legitimate
interests of the state in enhancing and protecting the ends of justice. However, the
prosecution can refuse access, by convincing the trial court that access is not justified for the
purposes of a fair trial. This would depend on the simplicity of the case and the degree of
information already in the accused’s possession. The golden rule is that prosecution must
prove incriminating factors and the charges must also reflect on the charge sheet. The
accused must prove exculpatory factors if there are any factors to be mentioned. The court
has a discretion to determine whether unnecessary averments have to be included or not.
Validity of the proceedings will not be affected by unnecessary averment, unless it
embarrasses the accused in his defence. The accused has a right to request further
particulars from the State if he believes the content of the indictment are not sufficient to
inform him properly of the charge and for preparation of his defence. Denial of access to the
police docket violates the accused’s right to a fair trial. Presenting a challenge in terms of
preparation for a plea and adequate defence. It is also possible that reliability of the
prosecution’s evidence will not be adequately challenged if the accused is not granted prior
access to such dockets. The right to a fair trial may also entail that information in the
possession of third parties could be necessary for the adequate preparation of a defence.
However, an accused’s right to fair trial may conflict with a third party’s right to privacy.
2
