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Criminal Procedure - Chapter 7 - Coggle Diagram
Criminal Procedure - Chapter 7
Methods of securing the attendance of the accused at the trial
Written notice
Indictment
Summons
Apprehension / arrest
Summons
Procedure:
The clerk of the court prepares a summons, which essentially contains the charge and the information handed to him or her by the prosecutor. The summons specifies the place, date and time for the appearance of the accused in court.
The clerk of the court hands the summons to a person who is empowered to serve a summons, such as, for example, a police official or sheriff.
The summons is served by means of delivery to the person specified therein at his or her residence, or place of employment pr place of business. Can be delivered to person over 16.
The prosecutor draws up the charge. The document, which contains information relating to the name, address and occupation or status of the accused, is then handed to the clerk of the court.
Must be served 14 days before the trial date
Official tasked with delivery of the summons returns a report regarding his or her charge
Failure to attend or remain in attendance
To ignore summons is criminal offence and liable to punishment of a fine or imprisonment for a period not exceeding 3 months
Warrant for arrest
Accused not in custody or under arrest
Children
Primarily summary trials in lower courts
Legal nature
In force anywhere in RSA
Loses status when terms adhered to
Written notice
Differs from summons:
Gazette 14 Feb 2003: minor offences
Court appearance not necessary if accused opts to pay admission of guilt fine - S57(2)(a) CPA
Prepared and served by peace officer - not prepared by prosecutor
Court date must, however appear on the notice
Same consequences if failure to respond as with summons
If a peace officer on reasonable grounds believes that a magistrate’s court, on convicting an accused of an offence, whether the accused is in custody or not, will not impose a fine exceeding the amount determined by the Minister from time to time by notice in the Government Gazette (at present R5 000), he or she may hand to the accused a written notice
Indictment
Context: trial in high Court
The indictment and a notice of trial must be served at least 10 days before trial date
Consequences: failure to appear
Contains charge + other particulars; signed by DPP
Contains a list of names and addresses of state witnesses
Apprehension / arrest
Basis in principle of the above
Constitution S12(1)(a); S21(1) and S35(1)
As a general rule, the purpose of an arrest must be to bring the accused before a court so that he / she can be tried for the charge that has been brought against him / her - not so that he / she may be punished.
Police must use discretion
Charles v Minister of safety and security - reasonably suspect
Forms of arrest
Without warrant
With warrant
Requirements for a valid arrest
Physical control / limitation of freedom
Give information / reasons for arrest
Statutory authorisation
Arrestee taken as soon as possible to place of detention
Arrest without warrant
Context - discretion
Key concepts
Civilians v peace officers
In flagranto delicto
Reasonable suspicion
Time aspect
Freedom of individual
Schedule 1 offences
Procedure after arrest
S35(1)(d) Constitution + S50 CPA
2 stages of arrest
Arrest to place of detention
Detention
:48 Hour rule - 16:00 week days - S50
Use of violence and arrest
Constitutional implications
Old S49(2) unconstitutional
S49(2)(a) - (c) - reasonableness; proportionality; necessity
New requirements more concrete (try to give effect to judgement in Walters
Requirements - S49(2) of the CPA
And there is resistance of the attempt
Or the suspect flees
Arrestor attempts to arrest suspect
Or both
Clear arrest being attempted
And suspect cannot be arrested without force
Arrestor may use force in order to effect arrest
As reasonably necessary and proportional in circumstances to overcome resistance
In addition to reasonably necessary and proportional in circumstances:
Deadly force may be used only if:
Suspect poses threat of serious violence to arrestor or any other person
Suspicion on reasonable grounds that the suspect having committed a crime: infliction or threatened infliction of serious bodily harm and there are no other reasonable means of affecting arrest - now or later
Person must have committed an offence
Use of deadly force
In cases of murder / attempted murder: the state must prove beyond reasonable doubt that the accused (SAPS) used deadly force with the intent to kill or cause serious bodily harm; then the accused must show on a balance of probabilities that one of the justification grounds in S49(2)(a) - (b) find application
S49
The suspect poses a threat of serious violence to the arrestor or any other person;
The suspect is suspected on reasonable grounds of having committed a crime involving the infliction or threatened infliction of serious bodily harm and there are no other reasonable means of effecting the arrest, whether at that time or later.
Police officer may arrest a child
Will continue to commit offences unless arrested
Poses a danger to any person
Does not have a fixed address
Where the offence is in the process of being committed
E.g., of when peace officer may arrest without warrant - S40
Any person who commits or attempts to commit any offence in his or her presence
Any person whom he or she reasonably suspects of having committed an offence referred to in Schedule 1, other than the offence of escaping from lawful custody
Any person who has escaped or who attempts to escape from lawful custody.
Any person who has in his or her possession any housebreaking implement or car-breaking implement