Part 4- The Plea Flashcards
Where must the accused sit in court?
As a matter of practice, it is from the dock where the accused will remain throughout the duration of his appearance in a postponement or trial.
The presiding officer does have the discretion of allowing the accused to sit alongside her legal representative. This is usually in cases involving voluminous documentation pertaining to fraud or economic offences.
When does the plea take place?
The plea takes place once the investigation has been finalised and a charge sheet or indictment has been drafted.
It is now that the accused is required to enter a plea to the charge or offence in the indictment for a trial to proceed.
How must the accused be referred to?
As a matter of courtesy the accused should not be referred to as ‘accused’ but rather by his surname (S v Tyebela 1989 2 SA 22 A).
When will the accused be required to plead to the charges against him?
Once informed of the charge the accused is required to plead thereto in terms of s105 of the CPA. (Recalling that any objections to the charge should already have been raised in terms of s85).
Who can may plead?
In practice the accused himself is requested to plead (in terms of s115(1)) and once having done so, the legal representative is asked to confirm the plea.
When may an accused give a plea explanation?
Once the accused has pleaded and his legal representative has confirmed the plea, the accused is then given an opportunity of furnishing a plea explanation, and where she does so, the legal representative will be called upon (in terms of s115(3)) to confirm that the explanation is in accordance with her instruction.
In what circumstances may a plea be dispensed with?
1) Where accused refuses to speak or render his cooperation then the court will enter a plea of not guilty (S v Monnanyane);
2) Where ambiguity appears from the plea of the accused;
3) In instances where the accused purposefully obstructs the conduct of the proceedings;
4) If the accused is not mentally competent to stand trial;
5) Where the court finds the accused indeed committed the offence, but by reason of mental illness or defect wasn’t criminally responsible;
6) The prosecutor and defence may enter into a plea and sentence agreement in terms of s105A of the CPA.
What happens when an accused is called to plea and he wishes to consult with his legal representative?
Insisting that the accused pleads where he wishes to consult with his legal representative, and has not been given reasonable time therefore, constitutes a gross irregularity (S v Mkhize 1978 3 SA 1065 (T)).
When will ambiguity appear in a plea from the accused?
This usually occurs in instances of unrepresented accused who would admit to certain elements of the offence but base their conduct upon certain grounds of justification.
The court then enters a plea of not guilty and commences to question the accused in terms of s115 of the CPA to ascertain the facts that are admitted.
What happens when an accused purposefully obstructs the conduct of the proceedings?
The court may order the accused be removed from the court in terms of s159(1) of the CPA and that the proceedings are conducted in his absence. Such order is usually preceded by a warning.
What happens when an accused is t mentally competent to stand trial?
Evidence to this effect may appear from the conduct of the accused or brought to the attention of the prosecutor or court by the investigating officer or a person with an interest in the matter.
The case will then be postponed in terms of s77 and s79 of the CPA for the state to make an investigation into the mental state of the accused by a medical superintendent of a psychiatric hospital.
- Where the finding is that an accused is capable of understanding the proceedings, the proceedings will continue in their ordinary course.
- Where, however, the accused is found incapable, the accused must be detained in a psychiatric hospital or prison pending the decision of a judge in chambers in terms of s29(1)(a) of the Mental Health Act 18 of 1973.
What happens where a court finds that the accused indeed committed the offence but by reason of mental illness or defect wasn’t criminally responsible.
Where a court finds the accused indeed committed the offence but by reason of mental illness or defect was not criminally responsible, the court must find the accused not guilty and direct that he be detained pending the decision of a judge in chambers.
If the finding concerning mental capacity is made after conviction but before sentence, the court must set aside the conviction, enter a verdict of not guilty and order the accused be detained pending the decision of a judge in chambers (ss76(b) and 78(6)).
When may a prosecutor and defence enter into a plea and sentence agreement?
The prosecutor and defence may enter into a plea and sentence agreement in terms of s105A of the CPA. The entire agreement must be in writing and done before the trial.
What happens where the accused decides to enter into a plea bargaining agreement after pleading guilty?
Where the accused decides to enter into a plea bargaining agreement after pleading guilty, the matter must begin de novo before another presiding officer unless the accused waives his right in this regard.
Is the court bound by a plea agreement?
The court ultimately is not bound by the agreement. In practice it usually accepts the terms and conditions thereof, but should it not or if either one or both of the parties withdraw from the agreement the trial proceeds in its ordinary course.
