Summary SPR 421 Study Unit 1 to 4

SPR 420
Semester Test 1 Summaries

Contents
Study Unit 1: Introduction...................................................................2
CPA phases................................................................................ 2
Criminal procedure before trial........................................................2
Law of evidence Recap.................................................................. 4
Study Unit 2: Diversion & Flowchart of the criminal process..........................5
1. Flowchart of the criminal process..................................................5
2. Diversion............................................................................... 5
→ S 41: Diversion by Prosecutor ito minor offences.........................6
→ S 51/52: Diversion by Prosecutor ito chapter 8............................9
Diversion of schedule 3 offences..............................................11
Criminal capacity of children..................................................12
To prosecute a child who is 10 years or older but under 14..............13
Study Unit 3: Plea & sentencing agreements............................................14
Arraignment & plea of an accused...................................................14
When plea by accused may be dispensed with..............................17
Plea bargaining.......................................................................... 28
Traditional plea bargaining....................................................28
Statutory plea bargaining.......................................................29
Pleas which may be raised by accused..............................................32
1. Pleas mentioned in the act.................................................32
4. Plea of prior conviction or acquittal.......................................33
5. Pardon by the president.....................................................40
6. Plea to jurisdiction of the court............................................40
7. Discharge from prosecution................................................41
8. Lack of authority of the prosecutor.......................................41
9. Plea as to an order of court on an unreasonable delay in a trial......41
10. Lis pendens................................................................... 43
11. Pleas in case of criminal defamation....................................43
S 106(4): After pleading accused is entitled to verdict...........................43
Study Unit 4: Indictments and charge sheets............................................44
4.1 Lodgement, service of indictments, charge sheets...........................44
4.1.1 In the high court..........................................................46
4.1.2 In the lower courts.......................................................47
4.2 Form and substance of charges/indictments..................................47
4.2.1 Necessary averments in the charge sheet............................47


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, 4.2.2 Negativing exceptions, exemptions, provisos, excuses or
qualifications............................................................49
4.2.3 Inclusion of unnecessary averments...................................50
4.2.4 Obligation to provide particulars.......................................51
4.3 Defect in indictment or charge cured by evidence...........................52
4.4 Correction of errors in charge...................................................53
4.5 Splitting of charges/ duplication of convictions...............................55
4.6 Joinder of offences................................................................61


Key:
S
Learning objectives
t
Legislation
Case law u
d
y Unit 1: Introduction
CPA phases
 S 1-74: Phase 1
o Investigation of crime allegedly committed
o Timeframe: offence – trial
o Proactive (law enforcement must protect public from crime)
 S75 – 270: Phase 2 Trial judgement
o Beginning of the trial until judgment by the court
 S271-301: Phase 3 Sentencing phase
o Only if court decided that the accused is guilty of the offence
o Starts at conviction of the accused until court imposes a sentence
 S302- 327: Phase 4 Legal remedies after trial + sentencing
o Starts from the moment of sentencing until last possible remedy
available have been disposed of

Criminal procedure before trial
 Purpose of phase: to investigate the alleged crime and to decide whether
there is sufficient admissible evidence to incriminate the person alleged of
committing the crime and which justify a prosecution
 S 205 Constitution: SAPS primarily responsible for investing crime
o To assist police to do so CPA has many provisions granting them
necessary authority (S 20 – 23; 25 – 27; 39 – 42, 48 – 49)



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, As soon as alleged offence reported at police station → file will be opened
= “docket”
o All witness statements taken by police + all other documents
relevant to investigation are filed in the docket
o All steps taken by police during investigation documented in the
docket ( “investigation diary” part of the docket)
o VS civil litigation w/ court file containing all pleadings
 In criminal case no one can see docket besides police and
prosecutor (will be irregularity – sufficient to set aside
conviction)
 In practice usually staple docket to ensure the
privileged info is protected
 Exception: to hand out statement which was in
docket where witness deviates from statement in
docket
 Lay a foundation (ie. meet admissibility
requirements for documents)
 → Ask court to declare them a hostile witness +
cross-examine them
 In civil case presiding officer must be familiar w/ contents
o Consists of 3 parts:
 A: Complainants statement, eyewitness statements
 B: Clients previous convictions (from criminal record
bureau)
 C: Investigative diary (letters exchanged between
investigating officer + prosecutor)
 After conclusion of investigation + if police can identify and find the
accused → docket will be submitted to the Director of Public Prosecutions
(DPP) or to a person duly authorise to by DPP
 Prosecutor is usually the responsible person
o Will study the docket + decide whether the investigation of the
alleged crime was conducted satisfactory
o If not → prosecutor will return the docket to the police with
instructions to complete
o If satisfied→ he/she will decide to prosecute or not
 Test to be applied by State before a prosecution: whether there is a
reasonable prospect of success



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, o If prosecutor decides not to prosecute → docket will be returned
to the police + matter is considered finalised
 Unless police later find further evidence
 If State declines → “private prosecution” could be
considered by an interested party (e.g. family of victim)
 S18: State as a general rule has 20 years to conduct a prosecution
 If prosecutor decides to prosecute, charge is formulated, steps taken to
ensure the attendance the suspect to appear an appropriate court to face
charges (s 80 – 104)
 Prosecutor determines jurisdiction +which court case will be instituted in
 Every defence lawyer entitled to file memorandum to not or to proceed to
trial
o Must first reach out to local prosecutor
 If declines → Directors of public prosecutions office
 If decline → National director of public prosecutions office
o Ie. representations (no prescribed formalities)
o DPP or NDPP is entitled to alter decision of prosecutor
 S7-17 Private prosecutions
o Strict requirements:
 Nulla prosecuta = paper saying no reasonable prospect of
success ∴ state will not proceed with case
 DPP may issue certificate
o Deposit at clerk of criminal court (but very expensive)
o Risk involved: if lose you pay accused’s fees
o State can intervene half-way through trial + State may take over to
complete the prosecution
o Exception to rule: civil security in criminal cases
o Skip the role of SAPS/NPA
 In practice: regional magistrate conduct 99% of all criminal cases
o Exception high treason & high profile cases


Law of evidence Recap
 Documentary evidence
o R v Daye: any written thing capable of being evidence regardless of
what it is written on
o s 33 CPEA: any book, map, plan, drawing or photograph




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