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Criminal Procedure - Chapter 5 - Coggle Diagram
Criminal Procedure - Chapter 5
Exceptions to the rule that the accused must be present at trial
Technological possibilities
S159A-D CPA - postponement of certain criminal proceedings via audiovisual link
Covid-19 - directives issued by Chief Justice Mogoeng Mogoeng in terms of S8(3)(b) of the Superior Courts Act 10 of 2013 for the Management of Courts during the Lockdown period
Closed circuit TV
Specially designed courtrooms and intermediaries - S v Manzi
Multiple accuseds
Compounding of minor offences
Misbehaviour - also specific offence - contempt in facie curiae
Admission of guilt fine
General rule
S35 – arrested, detained and accused persons – every accused person has a right to a fair trial, which included the right to a public trial before an ordinary court, to be present when being tried, to adduce and challenge evidence
S158 – except as otherwise expressly provided by this act or any other law, all criminal proceedings in any court shall take place in the presence of the accused.
S34 – access to courts – everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing by a court or, where appropriate, another independent impartial tribunal or forum
Where an accused is tried in his / her absence
States that wish to exercise criminal jurisdiction in absentia should also be committed to the protection of human rights standards in criminal procedure, and in related matters such as extradition and international co-operation in criminal matters.
Even in cases of in absentia trials, it must be guaranteed that charges are brought by a public prosecutor that is independent from political, governmental or other extra-legal influence.
Where an accused is tried in absentia the individual should be notified of the initiation of criminal proceedings and should be given a reasonable opportunity to appear in person
The state where the accused person resides should be given the opportunity to deal with the matters and to provide legal assistance and advice if necessary.
Circumstances to consider when a closed-circuit TV should be used
Where the witness may be intimidated as a witness by the accused and/or members of the public
Where the witness may be part of a witness protection programme in terms of the Witness Protection Act 112 of 1998.
Where the courtroom environment intimidates the witness
Where the impact of the offence is so severe on the witness that he or she is unable to testify in open court
Where the complainant is acquainted with or related to the accused
Where the quality of the witness’s testimony would be compromised should he or she testify in the presence of the accused.
Where the nature of the offence involved violence
Where the mental age of the witness requires it
Where the witness is unwilling or unable to testify in the presence of the accused due to fear of the accused.
Compounding of an offence
The offender pays a certain amount to someone (e.g., municipality) in order not to be prosecuted for some minor offence which he or she has committed – usually used with traffic offences