Criminal Court Practice

Question 1

Is accused, in bail application, entitled to peruse docket?

Answer 1

Sec 60(14) states that no accused, for the purpose of bail proceedings, will be allowed to have access to the docket and any information relating to the offence in question. Unless prosecutor directs otherwise.

Question 2

What information must be provided by legal rep. of accused ito Sec 60(11)(B) during bail applications?

Answer 2

• Whether accused has been previously convicted of any offence,
• if there are any charges pending against accused and whehter released on bail for the charges,

Question 3

List grounds to court must consider to determine if its in the interest of justice to release accused on bail?

Answer 3

Section 60(4) states:
Where there is the likelihood that the accused, if released on bail:
- will endanger the safety of the public or any particular person or will commit a schedule 1 offence;
- will attempt to evade his/her trial;
- will attempt to influence or intimidate witnesses or to conceal or destroy evidence;
- will undermine or jeopardise the objectives or the proper functioning of the criminal justice system, including the bail system;
- will disturb the public order or undermine the public peace or security.

Question 4

What are the grounds court would consider in Application for discharge ito Sec 174?

Answer 4

If the court is of the opinion that no evidence exists that the accused committed the offence refered to in the charge or any offence of which he may be convicted on the charge, a verdict of not guilty may be handed down.

Question 5

At what stage in criminal proceedings may the state, withdraw a charge or stop prosecution against accused?

Answer 5

• Before accused pleads to a charge the state may withdraw the charge. However, the effect of this is that the accused may be charged with the same offence again.
• After accused has pleaded to the charge but before judgement has beend delivered may the state stop prosecution. The accused must be aquited of the charge.

Question 6

What are the requirements for admission into evidence of a confession in criminal proceedings before a court?

Answer 6

In terms of Section 217 the statement:
1. Must be shown to have been made freely and voluntarily.
2. The accused must have been at the time in his/her sober senses.
3. There must have been no undue influence exercised on him to induce him to make
such statement.
4. The accused must have been informed of his constitutional right to remain silent.
5. The accused must have been informed of his constitutional right to require that his
legal representative be present when the statement is taken
6. The statement must have been made before a Magistrate or Peace Officer.
7. The accused must have been informed that the statement will be used in evidence
against him.

Question 7

What are the legal requirements for the Police to be able to grant bail to a suspect in their custody?

Answer 7

Ito Section 59 provides that bail may be granted when:
- before the first appearance of the accused in the court;
- If accused is in custody iro any offence other than an offence referred to in Part II or Part III of schedule 2.
- accused is released on bail by any police official of, or above the rank of non-commissioned officer.
- Can only grant bail upon consultation with investigating officer.
- Accused deposits a sum of money at police station determined by police official.

Question 8

Can prosecutor discuss evidence with state witness during an adjournment? Will it affect the trial?

Answer 8

• The conduct of the Prosecutor is an irregularity as nobody is entitled to discuss
  evidence with a witness once he/she is under oath. At that point the witness belongs to the Court.
• if the witness confirmins the discussion it could very well affect his credibility as a witness and the value that the court will attach to his evidence. It could result in a ground for appeal/review.

Question 9

Can a client be awarde an order for compensation for damages ito CPA if its found that driver of other vehicle is guilty reckless driving? What is the effect of such an order?

Answer 9

a.)
- Ito Section 300 of CPA - where a person is convicted of by a Court of an offence causing damage or loss to another person’s property, the Court or prosecutor acting on instruction of injured person, award compensation to the injured for such damages.
- To determine amount of compensation, the court will refer to evidence and proceedings during trial or hear furhter evidence present by affidavit or orally.
- Client can advise the Court or request Prosecutor to make such application on his/her behalf.
- The court would require documentary proof of damages in the form of expert evidence.

b.)
- The order will have the same effect as a civil judgment in the civil action. Same can be recovered in ito remedies available in civil actions i.e WOE or Sec 65 proceedings.

Question 10

Accused convicted of theft totaling R2 million, minimum sentence 15 years. How has to be proven to avoid minum sentence to be imposed?

Answer 10

court will have to be convinced that there are substantial and compelling circumstances to impose a sentence less than the compulsory sentence.

Question 11

What are alternative sentences to be imposed other than the minum sentence?

Answer 11

Ito Section 276 of CPA provides relevant senteces which can by imposed namely:

• Imprisonment
• Periodical Imprisonment
• A fine
• Correctional Supervision ito Sec 276(h) (house arrest with civic duties)
• Imprisonment from which a person is placed under correctional supervision by discretion of Commissioner or a parole board ito Sec 276(i)

Question 12

What are the guidlines to draft Guilty Plea ito Section 112(2)?

Answer 12

• Must be in writing;
• Admits the facts/elements of the offence commited;
• Satisfied the court that accused is guilty of the offence.