19 OCTOBER 2023 EXAM (ANSWERS) CRIMINAL PROCEDURE (CPR3701)

A, B, C and D allegedly rob a Town Bank, which is located in the city of Cape Town. Members of the South African Police Services (SAPS) are called to the scene of the crime, during which a shoot-out ensues between police and the robbers. Two of the robbers, A and B manage to escape with an undisclosed amount of the loot. C who is holed up inside the bank, is arrested by Sgt. F, whilst trying to walk out through the main door of the bank. D (who is unarmed) is ordered by Capt. G to surrender. D declines the order, and instead runs away in the opposite direction. H, a client of the bank (and, a civilian), who just happened to be present on the scene, produces his licenced firearm and fires a shot into D’s back, critically wounding him. H arrests D and hands him over to G for detention. An R4 Rifle which was allegedly used by the assailants is found abandoned on the floor of the bank. Section 1 1.1 Name the part of law which determines the procedure to be followed when effecting the arrest of C and D. (1) 1.2 Name the part of the law which determines the elements of the crimes with which C and D are subsequently charged. (1) 1.3 Name the document which is an indispensable pre-requisite for conducting a private prosecution, if the prosecution declines to prosecute C and D. (1) 1.4 Briefly indicate (in two short sentences, at the most) whether H had the authority (in law) to arrest D in the manner that he did. (2) 1.5 C and D are subsequently charged with robbery with aggravating circumstances. V, the investigating officer, reckons that he is qualified to grant bail to C and D. Briefly explain (in two short sentences, at the most), whether V’s assumptions are, indeed, correct. (2) 1.6 Name the measure of punishment which will be applied by the court to C and D, in finalizing the case if they are subsequently convicted. (1) 1.7 Name the term which describes the “putting forward” to the next date of the case against C and D, before the trial starts. (1) 1.8 Name the procedure which may be used to challenge some of the irregularities which occurred during the trial if C and D are subsequently convicted. (1) 10 CPR3701 Oct/Nov 2023 [10] Section 2 2.1 In the course of the investigations, Sergeant V sets out to interrogate C, in order to obtain more information regarding the crime committed. However, C asserts his “right to remain silent”, and also insists that as a “free citizen”, V does not have the right to question him (C). Discuss whether C’s assertions are correct. (10) 2.2 After arrest, but before his first court appearance, C requests to be afforded the opportunity to be represented by an attorney, but is informed by Sergent V that the right to legal representation “strictly speaking …only applies during actual court proceedings”. Fully discuss the accuracy and implications of V’s assertion. (10) [20] Section 3 3.1 During the subsequent trial, M, the presiding officer, informs the prosecution and the defence that she is, in fact, dominis litis in the case, and that she will “control the proceedings, as mandated by law”. Discuss M’s assertions in the light of the following aspects: (a) The name/ designation of the court regime which is followed in South African legal practice as it relates to the role of the parties to the proceedings; and (1) (b) The role of the presiding officer in South African criminal justice proceedings as opposed to that of the presiding officer in the European or Continental System. (12) 3.2 “In terms of s 35(1)(d)(i), everyone who is arrested for allegedly committing an offence has the right to be brought before a court as soon as reasonably possible, but not later than 48 hours after the arrest”. D, who was shot and injured by H during the robbery is, in the meantime in hospital under police guard. He is made to appear in court ten weeks after the robbery. Upon his first appearance in court, D instructs his attorney L, to apply for the case to be ‘struck of the roll’ on the grounds that his Constitutional right to appear before court within 48 hours has been violated. Discuss the merits of D’s contention. (12) 11 CPR3701 Oct/Nov 2023 3.3 A and B are subsequently arrested a few weeks after the robbery. A, B, C and D apply for bail. The prosecutor, Ms. PP, argues, during the bail proceedings, that the accused will be charged, in the subsequent criminal trial, with robbery with aggravating circumstances. The accused contend, on the other hand, that the State does not have a strong case against them, and that “the interests of justice” justify their release on bail. During the bail application, Ms.PP, is adamant that the accused must not be granted bail. She further contends before court, that (a) the crime of robbery with aggravating circumstances is classified under Schedule 5 of the Criminal Procedure Act; and (1) (b) the prosecution must discharge its onus beyond any reasonable doubt; (2) (c) in terms of section 60(11)(a) the prosecution bears the onus to prove to the court beyond any reasonable doubt that “substantial and compelling” circumstances exist which justify release on bail (2) Discuss the accuracy or otherwise dynamics of the aspects referred to in (a), (b) and (c). [30] Section 4 4.1 The subsequent trial is heard before regional court magistrate M, who sits with an assessor, Q, for the duration of the proceedings. It comes to the attention of L, A, B, C and D’s attorney, that Q is, in fact, a shareholder of City Bank, which was allegedly robbed by the accused. Discuss the process and the circumstances under which the recusal of Q as assessor may be embarked upon to ensure the fairness of the trial. (10) 4.2 During the subsequent trial E, who is testifying for the prosecution, refuses, upon being requested to do so by the court, to take the prescribed oath “because the taking of an oath is not in agreement with her intellectual beliefs”. (a) Briefly discuss whether E’s objection can be upheld by the court, and/ or whether any alternatives can be pursued to accommodate her objections. (6) (b) One of the eyewitnesses to the robbery, F was previously diagnosed with cerebral palsy. L, the accused’s attorney, is the view that such a witness is not competent to testify before a court because of her “apparent mental deficiency”. Briefly discuss the weight or otherwise of L’s argument.