Chapter 20 Flashcards
Various manners in which the High court may review criminal proceedings in lower courts and by whom it may be instituted
1- s302 Automatic review
2- s304 Extraordinary review
3- s304A Review of proceedings before sentencing
4- s306 Setting a case down for argument
S302 Automatic review
Applicable only to district court sentences on condition that the accused was unrepresented during the trial and the penalty imposed by the magistrate exceeded certain legal limitations.
S304 Extraordinary review
Applicable in cases where regional or lower court or even the state requests that the High court review an irregularity or incorrect verdict so that the relevant decision or order may be rectified if it has been wrongly made. Court is FUNCTUS OFFICIO IN THAT AFTER DECISION OR ORDER IT CANNOT MAKE CORRECTIONS ON ITS OWN ACCOUNT UNLESS IT REALISES ITS MISTAKE IMMEDIATELY AFTER PASSING THE VERDICT OR SENTENCE AND RECTIFIES IT IMMEDIATELY.
S304A review of proceedings before sentencing but after conviction
Where case referred to regional court for sentencing and regional court finds that there are irregularities or legal defects in record of the proceedings and the accused has wrongfully been convicted.
S306 review, setting a case down for argument
Allows accused whether or not he was legally represented at the trial to present his case through automatic review procedure by submitting written heads of argument.
Discuss the execution of sentence pending review
Execution of sentence brought under review , is not suspended pending the review, unless the magistrate grants bail or convicted person is released on a warning or surrender himself for sentence at a later stage
Discuss retrial where conviction is set aside
Whenever convictions or sentences in lower courts set aside on review on ground:
1- court that convicted the accused was not competent to do so
2- that the charge sheet on which the accused was convicted was invalid
3- that there has been any technical irregularity or defect in the procedure,
proceedings in respect of the same offense to which conviction and sentence referred may be instituted DE NOVO. New trial could either be on original charge, amended where necessary, or upon any other charge of the accused has not been previously arraigned, tried and convicted.
Declaratory order
Is issued where there is a dispute regarding legal representation between contesting litigants. Can also be granted where there is no legal dispute between the parties concerned but the dispute must still be alive.
When will appeal proceedings be more appropriate the review proceedings
When accused person dissatisfied with the outcome of his criminal trial on fact or law in a lower court, he may bring matter before the High Court either by way of appeal or review.
Accused seeking redress from a decision or order made by a court of first instance, in challenging the correctness of his conviction or sentence, may appeal against such conviction or sentence.
However where an irregularity in criminal proceedings against the accused person is involved, must seek relief by way of review.
