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Criminal Procedure - Chapter 12 - Coggle Diagram
Criminal Procedure - Chapter 12
Indictments and charge sheets introduction
S39 of Promotion to access to information act
Charge sheet vs indictment - clear and unmistakable language
Access to police docket - S39 below
To prepare own case - S35(3)(b)
An accused has the right to be informed of the charge with sufficient detail to answer it - S35(3)(a) of the Constitution
Properly exercise right - challenge and adduce evidence
Right to information - S32 of the Constitution
S324 of the CPA
Technical irregularity / defective indictment
Prosecution - de novo
Lower courts
Not served on the accused but presented in court
Accused is brought to court on written notice; summons, or under arrest
Lodge a charge sheet with the clerk of the court - S76(1)
The accused may examine charge sheet at any stage - S80
A summons to appear should be served at least 14 days before trial - S53(3)
High Courts
Indictment lodged by DPP and served on the accused
Factors
Details of crime
Details of witnesses
Summary of material facts
Time - must be served 10 days before the start of the trial
Contains the date and place the crime was allegedly committed
Contains personal particulars of the accused
Form and substance
Relevant offence
Statutory wording / definition of crime
Also also sufficient particulars
Time / date / place
Against whom (victim) / property
May state "unknown"
Common purpose must be mentioned
Aggravating circumstances must be mentioned
When someone killed someone it is necessary to say whether it was intentional or not
Exceptions, exemptions, provisos, excuses, qualifications
Exculpatory factors and exceptions: accused must prove it
For example
Possession of certain types of medicines
Driving without a license
Incriminating facts - state must prove it
Unnecessary averments excluded
S90 - exceptions (not applicable to accused in terms of statute) proven by accused
Obligation to provide particulars
All co-accused's are entitled to further particulars
Before or at trial - before evidence led
S87 - may request particulars or further particulars from the prosecutor on the charge
Constitutional standard
No trial by ambush
Further particulars should define the issues not enlarge the issues
Defect in indictment / charge sheet
Automatic cure
Does not disclose offence
Appeal - you can't
Offence named
Evidence proper - not presumptions
S88 only in the absence of an application for amendment of indictment - viz. "automatic"
Not replacement
S88
Correction of errors
Essential allegations (averment) missing
Variance - allegations and evidence - difference between the two
S86(1)
Technical
Words / particulars omitted / inserted
Any other error made
Conditions
Must not prejudice the accused
Before judgement
State requests; court order
Splitting of charges or duplication of convictions
The question - may the accused be charged with all possible offences?
S83 of the CPA - Yes
Any number of charges may be tried at once
Or charges in the alternative
S v Whitehead - good discussion
There is a rule against duplication of convictions - not of charges
General considerations of fairness
S336 of the CPA - act / omission constitutes offence under 2 or more statutory provisions or is an offence against a statutory provision and common law
The context and the principle
Test in court
Common sense
Fairness to court / accused
Some scenarios are full of grey areas
Test 2 - single intent test
Test 1 - separate facts (evidence) test
S366
Joinder of several accused
Multiple participants of a crime may be tried together in one case
Accessories after the fact may also be tried together in one case
S155 of the CPA
Combination of both
S156 of the CPA
Opinion of prosecutor – is the prosecutor of the opinion that where 2 or more persons committed a crime or crimes at the same place and time or about the same place and time they may also be tried together even if it is separate offences