Subject 1 Flashcards
Pre-Trial Stage
What is the process in the pre-trial stage?
1.Reporting the Crime
2.Police Investigation
3.Docket to DPP
4.Procedure for Childern
a.Probation Officers report
b.preliminary enquiry
5.Securing Accused Attendance
6.Plea and Sentence Agreement
7.Diversion (Children)
Up until which point is the state dominus litus?
State is dominus litus until plea stage and afterwards the court is dominus litus
-Charges can’t be withdrawn once the accused has pleaded
What is contained in an SAP 69?
The accused’s previous convictions
What is an inquest?
The exception to the accusatorial system in SA
=Occurs when a person dies + post-mortem is conducted
=Determine:
1.date of death
2.identity of deceased
3.manner of death
4.someone is prima facie responsible
=Purpose to determine whetehr someone can stand trial
What is the difference between substantive and adjectival law?
A.Substantive law= legal rules that deterine the rights and duties of individuals+state+determine pre-requisites for criminal liability
B.Adjectival law=Adjectival law enforces substantive law and crim.proc rules form art of adj law
What is the crime control model?
Repression of criminal conduct is important function of criminal process
What is the due process model?
Primary function of criminal justice system is to ensure that when securing a conviction the rights of the individual are protected throughout the trial stages
Internal Tensions
What are the 5 internal tensions in the crim process?
1.Strict crim. rules can’t be created to only apply to criminals and there must be provision for innocent people
2.State can’t have absolute powers to curb crime+indiv. can’t have absolute rights
3.Crim proce. rules are positive+negative in that they authorise police conduct +limit police authority
4.Accused’s rights+ victims rights are always in conflict
5.Admission of unconst. obtained eveidence sec 35(5) renders the trial unfair even if the evidence secures a conviction.
What is the importance of the due process model?
System that uses this model ensured that in the vindication of victim’s rights further injustices are not created.
What is the position of the victim in the criminal process?
The victim is an ordinary witness+ is only called to testify on guilty and innocence
How can the CJ system be offender oriented?
-lack of victim support strategies
Victim Protection
What are forms of victim protection in the CPA?
* S144>In summary Trials in HC, the indictment contains names+addresses of prospective prosecutio witnesses if the DPP is of opinion that witnesses will be intimidates then their name+addre must be witheld.
* S153> A witness can testify behind closed doors+their identity witheld to prevent harm
*** S158> **A witness can testify with CCTV to prevent prejudice
*** S170> **A court can appoint an intermediary for witness under 18yrs if court proceedings will expose witnesses to undue stress
What is a conviction?
An objective+impartial pronouncement that a person is proved legally guilty by the state in a properly conducted trial
>prosecution must prove beyond a reasonable doubt to secure an accused’’s conviction
What is the difference between an inquisitorial and accusatorial system?
Inquisitorial system- Judge is master of proceedings+actively questions the accused+witnesses
Accusatorial system-Judge has a detached role in proceedings+proceedings are conducted by prosecution and defence
SA=accusatorial system
Remedies for Infraction of Fundamental Rights
- What is the Writ of Habeas Corpus?
-Protects against unlawful infringement of liberty
-court asks the respondent to produce body of detainee at a certain date+time
-Respondent shows reasons why the detainee should not be released
-Prima facie reasons for wrongful detention must be given.
-Application is heard by 1 judge in a civil court + is ex parte
Remedies for Infraction of Fundamental Rights
2.What is an interdict?
A court order that prohibits certain action or harm that is threatening
Remedies for Infraction of Fundamental Rights
- What is a civil action for damages?
-Can apply for a civil action for damages when delictual liability arises in crim. process
Remedies for Infraction of Fundamental Rights
- What is a mandamus?
A positive order that compels a functionary to perform their duty
Remedies for Infraction of Fundamental Rights
5.What is the Exclusionary Rule?
Sec35(5) of constitution- exclusion of unconstitutionally obtaine devidence ensures tha a trial remains fair
Remedies for Infraction of Fundamental Rights
6.What are informal remedies?
7. What are constitutional remedies?
6.Mediation, ADR, excaping unlawful arrest
7. Constitutional remedies for violation of fundamental rights eg.right to privacy
