LEARNING UNIT 13 - LECTURE 2 (3).pptx legal procedi gs of a court case

legal proceedings

1. LEARNING UNIT 13 Criminal Proceedings Chapter 10

2. Description When is it criminal proceedings? : Criminal proceedings arise when a person commits a crime or an offence. Certain offences are created under common law e.g crimen injuria . An offence is a public wrong such as theft, robbery, rape, assault, murder and alike. An offence is created or determined by statute : a specific legislation stipulates that certain conduct amounts to an offence.

3. Identifying a criminal case The parties: preferred by the state (the National Prosecuting Authority – Section 179, Const., National Prosecuting Authority Act, 1998) against an individual – natural person (accused, appellant) . Van der Merwe and Others v S (A366/10) [2011] ZAFSHC 88; 2011 (2) SACR 509 (FB) (23 June 2011) (saflii.org) Outcomes : A guilty person is convicted of an offence and the punishment is referred to as a sentence. The major aim is punishment and eventual rehabilitation of the offender. A person is charged with an offence or indicted for an offence . A person that is found not guilty of an offence is acquitted.

4. Criminal Procedure This is a series of rule-based actions (governed by rules) taken to establish responsibility for an offence. Procedure is set out by the Constitution, legislation (Acts of Parliament, rules of courts) and common law (custom and precedent). All criminal procedure is subject to the standards laid down in the Constitution .

5. Stages of criminal procedure Pre-trial procedure - Reporting a crime (with police) Investigation of crime (Gathering evidence ) Arrest of the suspect (taking their evidence) Consideration of the file by the state prosecutor and decision to prosecute

6. Trial-Phase Plea taking Examination of witness Tendering exhibits into evidence Submissions Sentencing Judgement Consideration by court Trial within a trial Trial on the sentence Application for leave to appeal

7. Trial process Trial on the merits Charges put to the accused (a person is charged or indicted or arraigned ). Plea taking : Accused pleads either guilty or not guilty. A plea is a formal answer to charges. Once accused has pleaded they are entitled to verdict . Charges cannot simply be withdrawn.

8. The plea of guilty A guilty plea is admission to all the elements of the charge. Conviction on verbal plea of guilt : Section 112(1) of CPA (questioned by court) Minor offences that do not warrant detention without option of fine or fine exceeding R 5000. Section 112(2) of CPA – conviction on written plea – read into record and questioned by court. More serious offences that could warrant imprisonment or severe fines. If the court is not satisfied that plea is good in law – change plea to not guilty i.t.o . Section 113 of CPA. Trial continues on part of plea in issue. A plea of guilt stops the proceedings (section Section 121(2), CPA).

9. Plea bargaining There are two forms of bargaining : Under common law plead guilty to lesser charge Prosecutor may accept/reject offer. Disadvantage is that court may sentence according to what it considers appropriate without reference to plea bargain. Section 105A, CPA. prosecutor and represented accused agree formally in writing to guilty plea to charge or competent verdict offence and sentence. Court does not have to accept sentence. Parties may then either incorporate court sentence or cancel agreement and start trial afresh.

10. The plea of not guilty Section 115 of CPA applies. Plea explanation by the accused. The purpose is to clarify issues in dispute and record formal admissions if any. Plea explanation not compulsory – all facts then considered in issue. Trial then commences by the state adducing evidence to show that the accused person committed the offence. Prosecutor makes opening statement – overview of case against the accused (Not compulsory). State opens case and calls first witness . Examination (evidence) in chief – allow witness to tell story in their own words – no leading questions allowed. Defence now cross examines the witness – to test evidence of witness – leading questions allowed. State can the re-examine witness to clarify issues extracted during cross examination. Process is then repeated for all the state witnesses. State then closes its case.

11. Trial after plea of not guilty If the defence believes that the state has not established a prima facie case and not produced evidence to secure a conviction they may apply for discharge (section 174 of the CPA). If 174 refused or not applied for, the defence case starts. Defence may immediately close its case or actively present their defence. Process is the same as the case for the state. After the defence closes their case both parties may present closing arguments . Court delivers verdict of either guilty or not and accused is acquitted or matter proceeds to sentencing stage. All evidence is not automatically admissible – there may be objections for e.g. obtained illegally/unconstitutionally.

12. Trial on Sentencing Further evidence about appropriate sentence . State presents aggravating factors and proves previous convictions (SAP 69) for harsher sentence. Defence presents mitigating evidence for lighter sentence. Court has wide discretion when imposing a sentence and various options are available such as direct imprisonment, suspended sentences of imprisonment, community service, fines and reparations to victims. Minimum sentencing legislation may also apply that sets out compulsory sentences for particular crimes. Court may deviate from minimum if there is substantial and compelling circumstances.

13. Post-trial procedures Final administrative matters Production of bail receipts and paying back of money Payment of fines if any and issuance of receipts A convicted person is taken by correctional services Appeal or review applications are lodged. Legal costs in the trial process Prosecution is state funded . Accused pays for defence unless act in person or have legal aid.

14. Guarantees of fair criminal trial Information on charges Adequate time and facilities to prepare their defence Public trial Trial without undue delay Presence at trial Legal representation The presumption of innocence The right against self–incrimination To adduce evidence

15. Concluding Remarks Parties to a criminal offence have the right to be heard. The prosecution has the burden of proving the guilt of the accused person beyond reasonable doubt. No cost order against state in criminal case where accused is found not guilty.

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