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Criminal Procedure - Chapter 13 - Coggle Diagram
Criminal Procedure - Chapter 13
Relevant factors taken into consideration - assessors in lower courts
Nature and seriousness of offence
Interest of community
Cultural, social and educational background of the accused
Lower courts - procedural aspects
Assessors commence with their functions after the plea has been entered and recorded
Lower courts - Role of assessors in terms of decisions by the court
Matters of fact
Majority of court (except where there is one assessor and one magistrate
Finding of magistrate then the final decision
Matters of law
Magistrate only
Appointment of assessors in High Court
DPP can deliver an input on whether assessors should be called
Assessor - person who has experience in administration of justice or skill in discipline relevant to the case
Judge has discretion
S147 of the CPA - unavailability and recusal
Normal composition of criminal courts - a judge sitting with one or two assessors
Questions of fact
Recusal of assessors
Assessor may request own recusal
Personal interest in proceedings; potential conflict of interest; potential bias; absent; death
Order by magistrate before end of proceedings
Test for recusal - S v Mbatha
On application by prosecutor or accused
Recusal
Common law rules - developed by the courts
Duty on presiding officer
General principle - justice must not only be seen to be done it must be done
Accused may apply
What was required of a judge was judicial impartiality and not complete neutrality. It is accepted that judges are human and that they bring their life experiences to the bench. They are not expected to divorce themselves from these experiences and to become judicial stereotypes. What judges are required to be is impartial, that is, to approach matters with minds open to persuasion by the evidence and the submissions of course
Requirements for the test for judicial bias
Suspicion - reasonable person in position of accused
Reasonable grounds
Suspicion that judicial officer might be biased
Objective test - suspicion reasonable person would, not might, have held
Impartiality and fairness
Audi alteram partem - hear the other side - the judge must not act in a manner where he cuts off one side and lets the other side speak their side
Decisions on evidence
Impartiality and courtesy
Questioning
Justice - substantive and procedural justice
Fairness to the accused
Justice must be seen to be done