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Criminal Procedure - Chapter 13 - Cases - Coggle Diagram
Criminal Procedure - Chapter 13 - Cases
S v Mbatha
Application was brought on the second day of the trial after the cross examination of the witness
The application for the recusal of the assessor is dismissed
They only contribute to factual findings
Grounds for the recusal were that the assessor seemed to have a bad attitude which showed she had already made up her decision regarding the outcome of the case
They are sworn in as such
Onus of proof rests on the applicant to show that the assessor is indeed biased
This is because assessors are members of the court
This is an objective test
The test for recusal of an assessor is the same as that of a judicial officer
S v Le Grange
Criminal trials must be done keeping in mind the basic principles of fairness and justice
The judge violated all 3 canons of judicial behaviour
S35 – fair trial rights
Justice must not only be seen to be done, but must actually be done
Affects your right to a fair trial because the judicial officer is not seen to be impartial / independent anymore
This relates to the conduct of the judicial officer.
The court said we are now evaluating if there was a failure of justice because of this refusal and the subsequent case that has occurred
The court refers to 3 factors indicating proper judicial behaviour
He had interrupted the cross examination of the counsel for the defence
The defence council was not given enough time to consult with a particular witness – this was proved to be true
The questioning of Mr Le Grange demonstrated the appearance of bias on the part of the judicial officer
There was improper questioning by the judicial officer – he questioned in a way that is cross examination – he is not allowed to do this
In this case the sentences were set aside but the state could reinstitute proceedings before a new judicial officer.
Court refused the recusal and they appealed