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Criminal Procedure - Chapter 1 - Coggle Diagram
Criminal Procedure - Chapter 1
SA Law
Formal (adjectival) public law
Law of evidence
Criminal procedure
Puts substantive law in action
Does not act in isolation - requires the existence of substantive law
Substantive public law
Criminal law
Encompasses public and private law
Legal rules determining the rights and duties of individuals and the state
3 phases of criminal procedure
Trial
Court hears the case; judgement
Appeal and review
Pre-trial
Complaint / arrest / investigation / bail
Double functionality of criminal procedure law
Formal consequences = exclusion of evidence
Substantive consequences = claim for damages
E.g., unlawful search of property
Sheshape case is a good example of this
Apart from regulating procedure, also operates as ground of justification in substantive law
Tension between crime control and due process
Crime control
Repression of criminal conduct is by far the most important function of the criminal process
No recognition of rights of offenders
Only object is to control crime
Individuals in society should know that the conduct which they committed is punishable
Due process model
Primary goal of a criminal justice system is not merely to secure a sentence but also to ensure rules are followed, that acknowledge the rights of individuals during the course of the process
Care about preventing and controlling crime but there are also other aspects such as protecting the rights of the accused
This model is consistent with the value entrenched in the BoR
Seeks that the vindication of the victim does not lead to further injustices
Criminal procedural law should limit the power of the state in order to promote individual's rights in practical terms in the areas of detection, prosecution, investigation and the punishment of crime
One cannot make strict rules on the assumption that only criminals will be suspects
The problem is not that the laws are too lenient, but rather that the existing laws are not being enforced
The Constitution is pro-criminal
Victim participation
Service charter for victims of crime in SA
No absolute right
Paragraph 21 of the National Instruction on Sexual offences
Impact statement: victims of sexual offences - S v Mhlongo
S179 of the Constitution
Decision to prosecute
S299A of the CPA
Serious crimes - day parole under correctional supervision
S300 of the CPA
Compensation order
S7 of the CPA
Private prosecution
S105 of the CPA
Consult the victim before offering a Plea and sentence agreement
Witness / victim protection
S170A of the CPA
Intermediary - if someone below mental / physical age of 18 or if it will cause undue mental stress
SORMAA
Framework for protection of sexual offence victims
S158 of the CPA
Testify via CCTV or similar means
Witness Protection Act
Under threat of person or group of persons
S153 of the CPA
Testify anonymously if it seems likely harm will be done to the witnesses - in camera; anonymous
Part 16: prosecution directives
Principles: safety / protection of witnesses
S144 of the CPA
Withholding of names
Constitutional Criminal Procedure
Bill of Rights
S8 - Application of the BoR
S7 - The BoR is the cornerstone of democracy in SA. The state must protect, respect, promote and fulfill the rights int he BoR. The limitations are in S36
S36 - Limitations clause
S37 - State of emergency - non-derogable rights e.g., human dignity and life
S2 - This Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled.
S38 - locus standi in constitutional litigation
S39 - Interpretation of the BoR - international law must be considered
S v Makwanyane - death penalty
S35 - Detained, arrested, accused - Veldman v DPP
Passive defence right
Burden and standard of proof - the state is required to prove guilt beyond a reasonable doubt
Presumption of innocence and nature of the crime
Presumption of innocence and legal guilt
Right to remain silent and privilege against self-incrimination - S35 of the Constitution
Accusatorial v Inquisitorial criminal procedure
Accusatorial (SA)
Judicial official - Judge acts as an impartial third party, police are the primary investigative force, Defence v State
Prosecuting authority - does not cross examine the accused, described the appropriate charges, NPA is the dominus litis
Accused - has absolute right to silence
Victims - participation restricted to acting as a witness
Characteristics - trial takes place as a contest between 2 competing parties who are theoretically equal
Defence - trial takes the form of a contest between 2 equal parties who do the questioning
Inquisitorial (SA Bail)
Judicial official - Judge is the dominus litis, state decides whether to go ahead with the trial, Judge also does pre-trial questioning, police does not do primary investigation
Prosecuting authority - still an active role player but function diminished
Accused - loses the right to remain silent
Defence - in the trial, the presiding judge does the questioning, not the counsels for the prosecution or defence
Characteristics - focus on due process and accused's rights - exception SA during Apartheid
Victims - participation restricted to acting as a witness
Remedies in CPL
Mandamus - order (compels)
Exclusionary rule - where evidence was obtained by the violation of a constitutional right courts may exclude such evidence
Interdict - prohibits
Public protector; Human Rights Commission; Independent Complaints Directorate
Action for damages - unlawful conduct by the state
Informal remedies - escape
Habeas corpus (interdictum de libero homine exhibendo) - Legal interest: liberty - protects the individual from unlawful infringements of liberty
Constitutional mechanisms - class action
Reasons people remain silent
Protecting someone else
Feel the state's case against them is weak or may be afraid or ignorant to strategy
Lack of trust in the legal system
May simply want to exercise his right to silence