Chapter 15 Flashcards
Explain how to secure the attendance of a witness
Prosecutor or accused may compel the attendance of a witness by way of subpoena.
S188- If witness fails to obey subpoena, he may be arrested and brought to court.
S184- Whenever a person is likely to give material evidence in criminal proceedings , and there is reason to believe that he is about to abscond, or has abandoned, such a person may be arrested upon a warrant and committed to prison.
S185- If public prosecutor thinks that there is danger that a potential state witness in respect of an offense may be tampered with or intimidated, state witness may be abscond, whenever he deems fit or in interest of justice to do so, may apply to judge in chambers for order that witness be detained pending relevant proceedings.
Explain recalcitrant witness
This is a witness who refuses to take the oath or refuses to answer questions.
S189- empowers court to institute summary inquiry and if person does not have a just excuse for his refusal, he may be sentenced to a maximum imprisonment of 2 years.
Explain the trial of a mentally abnormal person
S77 to S79- If after commencement of trial, it appears or is alleged that accused is not sound of mind, must be dealt with in manner provided for in act in regard to mental disorder. This means that court must grant adjournment for a medical examination and if necessary accused must be sent to an institution for observation.
Explain the trial of a drug addicted person
In during trial, it appears that accused is a person such as described in s21(1) of prevention and treatment of drug dependency act, trial may be stopped and an enquiry in terms of s22 may be held.
Determine the requirement for a postponement adjournment
1- It is in interest of society that guilty person be duly convicted and not discharged due to an error which could have been avoided had the case been adjourned
2- An accused is deemed to be innocent and therefore has a right, once charged to a speedy hearing.
Discuss the concept of a speedy trial in light of s342A
S35(3)(d)- An Accused person has right to a trial commenced and concluded without unreasonable delay.
Court recognizes three forms of prejudice that accused can potentially suffer for want of a speedy trial:
1- loss of personal liability resulting from detention or restrictive bail conditions.
2- impairment of personal security resulting from loss of reputation, social ostracism or loss of income or employment.
3- trial related prejudice such as memories of witnesses fading or witnesses themselves not being available.
Open justice: who may attend a public trail
Conduct of criminal trials should be conducted in open court and in the presence of the accused. An Accused’s right to a fair trial includes the right to a public trial- s35(3)(c) of the constitution. This means that the public is generally entitled to be present.
Principal of open justice based on two principles, Firstly, notion of fair trial of which openness is regarded as an open component.
Secondly, the consideration of publicity, members of the public are entitled to be informed of the conduct of criminal proceedings.
Discuss procedural consequences of a trial involving and adult and child co-accused
In such a case court must apply the provision of the child justice act in respect of the child and provisions of act 51 of 1977 in respect of an adult.
According to the Child Justice act 75 of 2008 the following must be noted with regards to a child being a co-accused
1- In terms of S1 a child means any person under the age of 18 years and in certain cases a person who is 18years of age but not older then 21years.
2- Child Justice Court as any Court provided for in the Criminal Procedure Act dealing with bail application, plea, trial or sentence of a child.
3- Where child and adult are tried together in the same trial in respect f the same facts in terms of S155,156 and 157 of the CPA, Court must apply provisions of Child Justice Act in respect of the child.
