Chapter 12 Flashcards
Explain the necessary averments in a charge sheet or indictment
S84(1) says that the offense should be set forth in such a manner that accused is sufficiently informed of charge brought against him. Charge should disclose the offense. Sufficient particulars as to the time and place which the offense is alleged to have been committed, the person against whom the property in respect of which the offense is alleged to have been committed should be furnished in the charge.
Name the procedure for requesting further particulars to a charge
1- The name of the offense for which the accused is indicted (murder).
2- All the elements of the crime of murder. (Unlawful, intentional, killing of another human being)
3- The time and place where the offense was allegedly committed.
4- The person against whom the offense was allegedly committed.
Explain the correction of defects in charge sheets and indictments
S86(1) makes provision for the amendment of and indictment in the following three situations:
1- Where it is defective for want of an essential averment.
2- Where there is variance between the averment in the charge and evidence offered in proof of averment.
3- Where words have been omitted or unnecessarily inserted or any other error is made.
Explain the amendments of a charge sheet
S86(1) says that court may order an amendment only of it considers that making of amendment will not prejudice accused in his defence.
S86 makes provision for amendment of the charge, not for replacement thereof by an all together new charge.
S86(4) if charge sheet provisions not amended for in terms of the section, shall not unless the court refuses to allow the amendment, affect the validity of the proceedings there under.
Explain the splitting of charges or duplication of convictions
Happens frequently that one and the same act of a person constitutes more than one offence. If man assaults female idiot below 16years of age and has forcible intercourse with her, conduct may constitute one of the following offenses: common assault, assault with intention to rape, rape, connection of a girl below the the age of 16years in contravention of s15(1) act 32 of 2007.
Can also exist that person commits more than one offense:
1- By conduct which is spread over a period of time eg. person who for a period of a year pretends to be medical doctor and treats patients
2- Man who attacks woman, rapes her then runs away with her handbag thereby within a brief period of time assaults, assaults with intention to commit rape, rape, robbery and theft.
Can accused be convicted of all these offenses???
Assault, assault with intent to commit rape, rape, robbery and theft
S83 says that if reason of uncertainty as tomcats which can be proved, or for other reasons it is doubtful which of the several offenses is constituted by the facts which can be proved, accused may be charged with having committed all the offenses.
Court developed rule agains splitting or duplication of charges
Ex parte minister of justice: In re R v Moseme
Grobler
S83.
Pg215
Explain how a single act constitutes more than one statutory offence, or statutory and common law offences
S336 state that where act constitutes an offense under two or more statutory provisions or is an offense against statutory provision or common law, perpetrator may be prosecuted and punished under both.
Learn page216
Learn page216
Explain the nature of jointer of offences
Prosecution usually charges accused with most serious crime as a main and lesser offenses as alternative charges.
S81(1) Says that Any number of offenses may be charged against the accused in one indictment. Must be done before any evidence has been led on respect of particular charge. If provisions not complied with, proceedings are void.
S81(2) Says that Court can order that charges this joined be tried separately if it is in interests of justice to do so.
It is desirable that where the state has knowledge of a number of charges against a person, it should endeavor as far as possible to bring such charges before court in one indictment so they are tried together.
Explain the joinder of several accused
S155 says that any number of participants in same offense may be tried together as well as number of accessories after the fact to an offense or both participants and accessories in respect of the same offense.
S156 provides that whenever in a charge it is alleged that two or more persons have committed separate offense at the same place and time, and the prosecutor informs the court that any evidence which is admissible at the trial of one of those persons, is in his opinion admissible at the trial of the other person or persons, such may be tried jointly for those offense on that charge. Persons who participate in same transaction committed different offenses may be jointly charged and tried.
Explain the lodgment and service of indictments and charge sheets
S32 of the constitution:
1 - An accused in principle is allowed to have access to documents in a police file.
S39 of the promotion of access to information act says in terms of which an information officer is allowed to refuse access to police docket if such disclosure may prejudice police investigation or prosecution of crime committed by an alleged offender.
2- An accused in terms of s35(3)(a) has a right to be informant of the charge with sufficient detail to answer it.
