Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

Court Procedure > Criminal Procedure > Flashcards

Criminal Procedure Flashcards

1
Q

What are the sources of Criminal Law Procedure?

A
  • The Criminal Procedure Act
  • The Constitution of the RSA
  • Magistrates Court Act
  • Supreme Court Act
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

Name the rights of the accused once they have been arrested?

A
  1. The right to remain silent and not testify during proceedings
  2. To be presumed innocent until proven guilty beyond reasonable doubt
  3. Right to legal representation
  4. Access to the police docket
  5. Right to be brought before a court within 48 hours
  6. Right to a speedy trial
  7. Right to not be compelled to give self-incriminating evidence or answer questions on the merits of the case
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

What is the procedure after an accused has been arrested?

A

Any person arrested with or without warrant shall as soon as possible:

1) Be brought to the police station / any other place expressly mentioned in the warrant
2) Be informed of his/her right to institute bail proceedings
3) Be brought before a lower court as soon as is reasonably possible and not later than 48 hours of the arrest, provided that they were arrested on an ordinary court day within ordinary court hours

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

Define an ordinary court day and ordinary court hours

A

Day - A day on which the court normally sits as a court

Hours - From 09:00 - 16:00 on a court day

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

What are the three classes of objects susceptible to search and seizure?

A
  1. Objects reasonably suspected to have been involved in the commission or alleged commission of an offence
  2. Objects that provide evidence of the commission or suspected commission of an offence
  3. Objects that are reasonably suspected to have been intended to be used during the commission or suspected commission of an offence within or outside the Republic of SA
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

Explain in detail the powers of the police to search a person/premises, seize items

A
  1. Search of arrested person: Only a police/peace officer may search an arrested person. Any object found must be kept in safe custody.
  2. Search with warrant:
    - Must be issued by Mag/ Peace officer
    - based on information given under oath that reasonable grounds exist to form the opinion that such object is under the control of a person or on their premises
    - Only items specified in the warrant may be seized
    - warrant that is too vague will be set aside and declared invalid
    - Must be executed during the day unless expressly ordered otherwise
  3. Search without warrant:
    section22
    - If person who may consent has consented to search of premises and seizure of articles
    - if PO on reasonable grounds believes that warrant would be issued under s21(1) and delay in obtaining same would defeat the object of the search
    section 24
    - any person in charge/occupation of premises, may, if PO not readily available enter premises suspected to be used for the commission of an offence, without a warrant for purposes of search and seizure
    Section 25
    - if state security and maintenance of the law endangered, PO has power to conduct search and seizure without a warrant if reasonable grounds to believe it will be issued and delay defeats object of search
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

Explain in detail the power that a police officer has to arrest a person to obtain evidence or conduct interrogations to establish details of an alleged crime

A

If a peace officer is lawfully authorised to make an arrest and they know or suspect on reasonable grounds that the person is on premises, they may:

  • request permission to enter premises
  • must audibly announce the purpose of entry and requests permission
  • if permission denied, may forcibly enter premises to execute arrest. Purpose must be to arrest and not interrogate.

In terms of interrogations, PO may enter any premises without a warrant where reasonably suspects that someone has info but:

  • must audibly announce purpose for entry (to interrogate/obtain statement) and request permission
  • if permission denied, may not forcible enter
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

What remedies does a person have when any of their rights are violated during investigations

A
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

Discuss the elements for search and seizure with or without a warrant and the consequences of not following the correct procedure.

A

Elements of S&S with warrant:

  • A search and seizure warrant must be issued by a Magistrate or peace officer on information under oath that reasonable grounds exist to form the opinion that a certain person is suspected to be in control of the article or that it is suspected to be on certain premises
  • warrant must not be vague. it must be sufficiently clear as to who will conduct it, date time and place, what alleged commission of offence is and articles sought.
  • Must be executed during day unless warrant expressly orders otherwise

Elements of S&S without warrant:

  • Must be with consent of person eligible to consent to search and seizure of premises
  • or conducted with reasonable belief of PO that warrant will be issued and delay of obtaining warrant will defeat object of search

Consequences of non-compliance with procedure:
With warrant
- Warrant may be set aside (if mala fides/improper exercise of discretion/vague)
- Articles seized may be rendered inadmissible in court proceedings as seizure invalid

without warrant
- Fully reviewable on merit

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

Identify the methods of securing attendance in terms of the CPA.

A

arrest
summons
written notice to appear (fine less than R5000)
Release on warning (certain offences)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

What degree of force may be used, if any, to restrain a person suspected of committing an offence.

A

Such force as may be reasonably necessary to overcome resistance

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

What information is required when brining application for the release of an accused?

A
  1. When was arrest?
  2. Where was arrest and in which police station is he being detained?
  3. What crime alleged to have been committed?
  4. Who is the investigating officer?
  5. In which court will accused appear/has accused appeared?
  6. Particulars of accused?
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

How does attorney go about making arrangements for the appearance of an accused before court?

A
  1. Phone police station and ask charge officer who IO dealing with matter
  2. Phone IO and establish when client will appear, on what charge and if bail will be opposed
  3. Arrange consult with client, if possible
  4. If police bail possible, make those arrangements for payment & release of client
    Or
    Prosecutor bail arranged
  5. If bail can’t be arranged, bring court app for bail
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

When can an accused be eligible for police bail?

A

If accused:

1) before their 1st appearance in Lower Court
2) In respect of an offence that is not Part 2 or Part 3 of a Schedule 2 offence
3) Such bail can only be granted by any police official of higher rank than a non-commissioned officer

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

When can prosecutor bail in terms of section 59A be granted?

A

Release of an accused on prosecutor bail may take place when:

1) Prosecutor has been authorised by the DPP & after IO consulted
2) offence listed in schedule 7
3) before accused has their 1st appearance in Lower Court

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

Which offences committed by accused will not make them eligible for police or prosecutor bail but eligible for bail in terms of section 60?

A

Offences involving precious metals.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

How is a court bail application brought?

A
  1. Contact charge officer and request to speak to IO in charge
  2. Ask IO if there’s an objection to bail
  3. Contact prosecutor informing him that intend to bring bail application and what attitude of IO is
  4. Find out what time Mag will be available to hear application
  5. Inform IO and attend court to bring application
18
Q

Who bears the onus of proof in bail applications?

A

section 60(11) of CPA imposes onus in certain circumstances

1) if charged with schedule 5 offence, onus on accused to adduce evidence that it is in the interests of justice to permit their release
2) if schedule 5 offence, accused must adduce evidence to satisfy court that exceptional circumstances exist that permit release
3) where state does not oppose bail application, onus on prosecutor to satisfy why they should not be released

19
Q

Does an accused have the right to access the police docket during bail proceedings.

A

No. An accused is not allowed access to the police docket unless otherwise permitted by prosecutor.

They are however entitled to any information helpful to accused in bail proceedings but which does not form part of police docket.

20
Q

May a bail application be postponed?

A

Yes it may.

1) in court’s discretion
2) for period not exceeding 7 days at a time
3) IO needs to verify address of accused
4) court must have enough info to make decision

21
Q

What facts should be adduced in bail application

A
  1. Fixed address
  2. Fixed employment at time of app
  3. Character
  4. Nature of the offence
  5. Strength of state’s case
  6. Possible conviction
  7. Period of time accused will spend in custody while awaiting trial
  8. Whether accused will communicate or is able to communicate with state witnesses
  9. Ability to travel abroad
  10. Ability to pay bail amount
  11. Will disturb public order or safety
  12. Previous convictions and outstanding cases
22
Q

What principles are considered by the court in bail applications?

A

The basic principle is whether it best serves the interests of justice and the court considers whether, if the accused is released on bail, there is a likelihood that:

1) accused will endanger the safety of the public or any person or commit a schedule 1 offence;
2) will attempt to evade trial
3) will intimidate and threaten witnesses or conceal and destroy evidence
4) undermine/jeopardise the objects/proper functioning of the criminal justice system
5) Disturb the public order or undermine public peace/security

23
Q

What bail conditions may the court impose?

A
  1. Reporting to police station
  2. Prohibit going to certain places
  3. Prohibit communication with state witnesses
  4. Hand over passport
  5. Supervision by probation officer
  6. Payment of amount which will be forfeited if bail conditions breached
  7. Any other conditions which ensure the proper admin of justice
24
Q

What is the procedure after bail is granted?

A

The charge sheet must reach the clerk before payment of bail can be made.

The court orderly will take the charge sheet from the court to the clerk, after which a payment can be made of the bail amount and a receipt given.

Receipt must be taken to police station in order for release of accused to happen.

25
Q

Discuss representations to DPP regarding withdrawal of a case.

A

DPP and SPP have the authority to withdraw certain cases.

Representations must be made to DPP in writing or by personal consultation, which is the norm in practice.

Representations must motivate for the withdrawal of the case by stating

1) personal interest
2) interests of the community

26
Q

What does an admission of guilt (confession) entail?

A

An admission of guilt is a fine paid on admission of guilt by an accused.

  1. It constitutes a conviction and thus it will appear on criminal record
  2. Difference between AOG and spot fine because prosecution instituted
  3. AOG fine paid to get out of spending weekend in jail, it can be reviewed
27
Q

How can an accused indemnify themselves against prosecution?

A

Regulated by s204 of CPA. An accomplice who is willing to give frank and honest answers to questions in respect of an offence for which they are charged, which might self-incriminate them, is eligible for indemnity from prosecution and may be turned into a state witness.

1) must be a competent witness
2) information given must be self-incriminating by nature

28
Q

On what grounds may you object to a charge sheet?

A
  1. It does not set out the essential elements of the charge
  2. It does not disclose an offence
  3. It does not correctly name or describe the accused
  4. It does not have sufficient particulars in respect of the allegations of the charge
  5. It is non-compliant with the CPA iro elements of the charge
29
Q

What essential averments must the criminal charge sheet contain?

A

1) name of offence
2) time of commission of offence
3) place of commission of offence
4) person against whom offence committed
5) property if any in respect of which offence committed to grant accused opp to appreciate the nature of charge

30
Q

Discuss what a plea and sentence agreement is and provide the requirements for same

A

A plea and sentence agreement is regulated by section 105A and provides an opportunity for an accused who is accused of a crime they did not commit, is considering pleading guilty but is anxious about the possible sentence, to enter into discussions with the prosecutor regarding an agreement.

Requirements:

  1. Accused has legal representation
  2. admits to most of the allegations in the charge
  3. does so voluntarily and in sober senses
  4. is not being unduly influenced to do so
  5. has had their rights read to them and in particular
    - right to remain silent and not testify
    - right to not be compelled to give self-incriminating evidence
  6. Magistrate satisfied that accused knows their rights
  7. Sentence agreement is fair
31
Q

What will the prosecutor consider when entering into a plea bargain/agreement?

A
  1. The nature of the charge
  2. Personal circumstances of the accused
  3. Community interests
  4. Previous convictions of the accused
32
Q

Discuss plea of not guilty in case where the accused has told its attorney that it is guilty.

A

An attorney may advise the accused to plead not guilty in circumstances where they have told the attorney that they are, if the attorney is convinced that the State will not be able to prove its case.

1) The accused can plead not guilty wherein they do not deny or admit to any of the allegations
2) Must do so without misleading the court
3) if the state proves its case, the accused may change their plea to one of guilty

33
Q

What are the types of pleas that an accused can make?

A
  1. Guilty
  2. Not Guilty
  3. Already tried and acquitted for offence charged
  4. Already tried and convicted for offence charged
  5. Received free pardon from State President iro charge
  6. Court doesn’t have jurisdiction to try him
  7. Indemnified from prosecution ito section 204
  8. Prosecutor has no title to prosecute (private prosecution)
  9. Prosecution may not be resumed owing to order of court relating to unreasonable delays in completion of proceedings such that court has struck off the roll
34
Q

Discuss a plea in terms of section 112 of the CPA

A
  1. S112 regulations a plea of guilty
  2. An attorney must first explain the full consequences of the plea in detail
  3. Attorney must never advise the accused to make the plea for sake of finalising the case and writing fees
  4. Must only draft the plea after ascertaining strength of the state’s case
  5. When plea of guilty made, court does not convict on the face of such plea.
  6. Court may question the accused irt the facts of the case to establish that they admit to all the allegations of the charge
35
Q

Discuss a plea in terms of section 115 of the CPA

A
  1. Section 115 provides for a plea of not guilty
  2. An accused may plead not guilty even under circumstances where during instructions they have informed the attorney that they are guilty of the offence
  3. it is advised that the attorney establish the strength of the State’s case before the accused pleads
  4. If the state proves their case, the accused is entitled to change their plea
  5. where accused pleads not guilty, magistrate may ask them to make statement on basis of their defence
  6. Statement must indicate extent to which accused admits/denies charge to narrow down what is in dispute
36
Q

Discuss section 113 of CPA

A

1) This section regulates the amendment of a plea from guilty to not guilty
2) This correction may be based on the following grounds:
a. Doubtful whether accused guilty in law of offence to which pleads guilty
b. appears to court that accused does not admit allegation of charge
c. accused incorrectly admitted allegation
d. accused has valid defence to charge
e. court for any other reason of opinion that plea should’t stand

37
Q

How would accused enforce section 113?

A

Procedure:

1) Court advised by attorney that accused intends to bring application ito s113 to correct plea of guilty to not guilty
2) Accused will have to give evidence under oath giving reasonable explanation of mistake/misunderstanding
3) State afforded opportunity to cross-examine accused
4) Mag also entitled to question accused
5) Defence closing arguments
6) Prosecutor closing arguments
7) Court decides

38
Q

How would an accused change their plea from not guilty to guilty?

A

An accused may change their plea from not guilty to guilty at any stage before sentencing.

  1. By offering a plea of guilty, the accused must make formal admissions in terms of section 220
  2. Change can only be made with the approval of court
  3. Change will only be permitted by court if accused succeeds in convincing court that initial plea due to misunderstanding
39
Q

Describe how a practical criminal trial would proceed where the accused pleads guilty to offence

A
  1. Before commencement of proceedings, attorney will approach Prosecutor and request that they accompany them to introduce themselves to the magistrate
  2. Matter called by prosecutor and charge put to the accused
  3. Accused pleads to charge and attorney confirms/ attorney says how accused pleads and accused confirms it
  4. Attorney hands Magistrate section 112 statement
  5. Magistrate asks accused if they confirm contents of statement
  6. Magistrate asks attorney if they wish to say anything further on merits and convicts accused
  7. Prosecutor brings up previous convictions - whether they exist or not
  8. Attorney asked to address court on sentencing + provide mitigating evidence
  9. Prosecutor asked to address court on sentencing + provide aggravating evidence
  10. Probation officer’s report may be requested
  11. Court finalises sentencing
40
Q

What types of sentences may the court impose?

A
  1. Imprisonment
    - Life/indefinite
    - periodical
  2. Fine
  3. Correctional supervision
  4. Suspended Sentence
  5. Postponed sentence
  6. Declaration as habitual criminal
  7. Committal to institution
41
Q

What factors may an accused adduce in mitigation of a sentence?

A
  1. Personal circumstances of the accused
  2. Interests of the community
  3. Compensation ito section 300
  4. Nature of offence
  5. previous convictions
  6. Alternative sentences which may be imposed
  7. Influence
  8. Provocation
  9. Remorse

Court Procedure (4 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions