Part 5- The Trial Flashcards
What are the fundamental principles of the trial procedure that Joubert has referred to?
Joubert has referred to seven fundamental principles which include:
1) Fair trial;
2) Legality;
3) Judicial impartiality;
4) Equality of arms;
5) Judicial control;
6) Orality; and
7) Finality
What is the aim of the trial?
Pursuant to the finalisation of the criminal investigation and after the accused has pleaded the trial procedure takes place the aim of which is to determine whether the accused is guilty of not guilty of the charges.
Are there a list of factors that should be taken into account when determining the fairness of a criminal trial?
Ackermann J in S v Dzukuda 2000 2 SACR 443 correctly pointed out that there is no exhaustive list of factors that necessarily renders a criminal trial fair.
It is submitted that there is also no so-called ‘check-list’ a presiding officer can keep ensuring the fairness of a trial.
If there is no set group of factors in determining the fairness of a criminal trial, how is fairness ensured?
Each trial has its own dynamics determined by its unique facts and circumstances. Formal compliance with what may be deemed fair is not what is envisaged.
On the contrary, it is the substantive manner in which effect has been given to the underlying values and principles upon which criminal procedure is based that will and can determine whether a trial can be said to be fair in terms of the requirements to a fair trial which an accused has in terms of s35 (3) (a)-(o) of the Constitution.
An important principle to keep in mind is that form should never be placed above substance. Another important principle is that justice must not only be done but also ‘be manifestly seen to be done (See R v Sussex Justices (1924) 1 KB 256).
What does the significance of equality of arms refer to?
What this in fact refers to is that in an accusatorial system such as the one we have one South Africa, each adversary thereof, namely the prosecutor and defence must have equal allowance or opportunity of:
1) Presenting their cases;
2) Cross questioning witnesses;
3) Calling witnesses;
4) Re-examining witnesses;
5) Addressing the court; and
6) Having legal representation.
Why is reference made to ‘arms’ in the trial?
Reference to ‘arms’ is appropriately made since the adversarial system is one in which the state and defence will ‘fight-out’ their cases in the ‘judicial arena’ presided over by the impartial presiding officer.
Why is it befitting that the trial stage refers to a ‘equality of arms’?
Re-calling that the pre-trial investigative procedure was balanced in favour of the state, it is befitting that the trial stage refers to a ‘equality of arms’ since it envisages a process where now, at and during the trial, both parties will have an equal ability and opportunity to presenting their respective cases and challenge the case of the opposing party.
What did Claasen J say about the fairness of trial and ‘equality of arms’?
In S v Lavhengwa 1996 (2) SACR 453 (W) Claasen J said:
‘A fair trial envisages…equality of arms… A fair trial embraces equality before the law between litigants in a criminal trial. Although inequalities between accused persons are inherent in any criminal justice system…inequalities between opposing litigants in a criminal trial is contrary to the principle of a fair trial’.
What duty is imposed on the presiding officer in instances where an accused is unrepresented?
In reality an unrepresented accused in a criminal trial is at an extreme disadvantage.
It is submitted that in such instances a greater duty is imposed on the presiding officer to ensure the unrepresented accused’s rights and interests are protected.
However, the extent to which the magistrate or judge may do so before he may be criticized for favouring the accused creates a problematic situation.
When may an accused be discharged?
After the state has closed its case, s174 of the CPA entitles a court to return a finding of not guilty if it is of the opinion that there is ‘no evidence’, that the accused committed the offence as charged, or an offence which is a competent verdict.
What is the discharge test that our courts use?
The traditional test of discharge that our courts used was the one set out in S v Shuping 1983 (2) SA 119 (B) where the test was set out thus:
‘At the close of the state case, when discharge is considered, the first question is:
(i) is there evidence on which a reasonable man might convict, if not;
(ii) is there a reasonable possibility that the defence evidence might supplement the state case?
- If the answer to either question is yes, there should be no discharge and the accused should be placed on his defence’.
What problem may arise from the Shuping test?
As far as the second leg of the Shuping test is concerned a potential constitutional problem arises since, if there is not sufficient evidence upon which a reasonable court may convict, why then should the accused be called upon to climb into the witness stand and incriminate himself and assist the state in proving the charge(s) against him.
After all, in terms of S v Zuma 1995 (2) 642 (CC) there is no burden of proof on the accused and the accused has a Constitutional right to remain silent in terms of s 35(1)(a).
Due to the constitutional problem that arises from the Shuping test, should the test still have authority in our law?
The Shuping case is still good authority, but it would be improper, irregular and unconstitutional for a presiding officer to rely on the second leg of the enquiry.
Consequently, if at the close of the state’s case there is no evidence upon which a court may convict, other than by means of the accused taking the stand and incriminating himself, then the court must render a not guilty finding and order the discharge of the accused in terms of s174 (See S v Luxaba 2001 (2) SACR 703 (SCA).)
