Criminal law and Procedure Flashcards
The study of “criminal law” generally focuses on the substantive law: namely, the principles of law according to which criminal liability (guilt or innocence) is determined, whereas the law of criminal procedure, together with the law of evidence, generally focuses on the procedures used to decide criminal liability .
Distinguish between formal law and substantive law
Formal law: Deals with the methods and procedures by which Substantive law is enforced
Substantive law: The rights and duties of subjects of the state
The 3 questions that is asked by SA court to determined if a person acted with negligence
” Do you swear that the evidence which you will give will be the truth, the whole truth and nothing but the truth so help me God”
What does the novus actus interveniens rule refer to ?
A Latin term for an intervening unforeseeable event that occurs after the defendant’s negligent act and operates to precipitate or worsen the plaintiff’s loss. The defendant is not liable for the loss precipitated or aggravated by such an event.
What do you understand of the term: a rebuttable an an irrebuttable presumption
Rebuttable: The court can hear evidence regarding the child to show that the child did, in fact, have criminal capacity
Irrebuttable: It can never be proved that the child did have criminal capacity
Name 2 sources of criminal law
common law crimes
statutory crimes
Describe 10 circumstances under which a person can be arrested without a warrant as set out in section 40 of the Crime Procedure Act
Attempts to commit any offense in the presence of peace officer
Person who escaped or attempts to escape from lawful custody
Person who is in possession of house breaking implements, and can not give a reason to having it in his possession
Any person who fails to pay a fine as determent by court
Outline the general court principles for trails
Before court the trail, obstacles to determine the truth regarding the alleged offense and whether or not accused is involved should be kept to minimum
Trial should be controlled by a presiding officer who is independent , impartial and competent
Audi alterem, impartial rule should be followed
Accused should have the right to legal presentation
Accused should be present at trial
Trial should be conduct in open court, open to the public
Discuss the requirements for a lawful arrest
*Unless the person that is being arrest submits to custody, his body must be touched or even forcibly confined under certain
circumstances
* the person affecting the arrest must inform the person who is being arrested about the reason for the arrest
*
Who ma search without a search warrant and what may be search
Who- a police official
What- Belief to be concerned in the commission or suspected commission of an offense
Afford evidence of the commission or suspected commission
Pan offense, whether within the Republic or elsewhere
List the requirements for a valid search warrant
Specify the specific premises that must be search
Specify the specific person
Must be carried out during the day
Remains in force until it is executed or until it is cancelled
A copy of the warrant must be handed to the person whose right have been affected
Must be strictly done according to the necessary specifications
Owner or occupier of premises must be present when it is searched
Discuss the use of force during arrest
An attempt to arrest which the suspect resists
Suspect cannot be arrested without the use of force
Suspect flees when it is clear that an attempt to arrest is being make
Suspect resist such attempt and flees
Distinguish between pleading guilty and pleading not guilty, and the processes to be followed in each case
Pleading guilty : Means that he admits to all the elements of the offense he has been charge with
Processes: Presiding officer is satisfied with guilt plea, accused will be convicted and procedure. Firstly to determent a suitable sentence
Pleading Not guilty: Means the accused does not plead guilty to all or some elements of the crime
Processes: State or prosecution in whose name the prosecution takes place must try to prove the accused ins in fact guilty by presenting evidence against the
accused
