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Criminal Procedure - Chapter 14 - Coggle Diagram
Criminal Procedure - Chapter 14
Traditional
Negotiation in which accused agrees to plead guilty to a charge in exchange for concessions by prosecutor. Accused waives right to trial, losing any chance of acquittal, but avoids conviction on a more serious charge. The agreement will include a specific recommendation on sentencing. Court must confirm validity of plea agreement
Traditional
Multiple accused
Provide information: investigation - S204 of the CPA
Guilty: different grounds as alleged by state
Withdrawal: certain charges if you agree to some charges
Plea to a lesser / alternative charge
Under the common law process the judge is not obliged to follow the plea agreement decided by the prosecutor
Plea and sentence agreements - statutory framework- S105A of the CPA
Role of the court - not a formal conviction yet
Approval: court
Prosecuting authority and accused with legal representation: formalities
Appeal
Plea and sentence agreement - subject to certain conditions
Non-approval of sentence by court
Continue: normal sentencing
Trial de novo - a new trial - pro non scripto - may not be referred to at all in the subsequent trial
Process transparent; role of victim - no veto by victim
NDPP directives
e.g., charge of murder - relatives of victim must be consulted
Minimum sentence applicable - agreement must contain reasons for deviation from minimum sentence
Formalities
The whole agreement must be in writing
The agreement must be reached before the accused has plead
Once off deal
Victim participation
Plea bargaining
Pre-trial
Informal - traditional
Not the same as a S204 CPA (state witness)
Formal - statute - S105A CPA
E.g., Mr A and B were involved in a crime, Mr B says he will testify against Mr A, but he wants immunity. That would strengthen the case against Mr A
If the plea agreement under the formal process falls through you can still institute a plea agreement under common law
Arraignment
Formal objections to the indictment or charge sheet must be taken before the accused has pleased - S85 of the CPA
If the accused has already pleaded, an objection cannot be raised and the trial must proceed
An accused's plea must be recorded, otherwise a conviction cannot stand
The defect can however be rectified during the trial in terms of S86 or S88
The calling upon the accused to appear, then informing them of the crime charged against him, then demanding of them whether they be guilty or not guilty, and then entering of their plea. Their plea having been entered they are said to stand arraigned.
Pleading in the ordinary sense
Plea of not guilty will be entered (plea dispensed of)
Ambiguity
Behaviour
Refusal to plea
Mental illness or intellectual disability
Mental illness (intellectual disability)
S78 - Criminal responsibility
S79 - Provides the mechanism whereby the theoretical provisions of S77 and S78 are accomplished in practice
S77 - Fitness to stand trial
Objective - where issues relating to mental illness and criminal capacity arise, the court will be guided by expert evidence
Arraignment
Objections to the charge
S85(1) of the CPA
No offence disclosed
Particulars
Essential elements
ID of accused
Non-compliance: provisions of CPA
Before pleading, after pleading, failure to comply
Differentiate
Correction of errors
Formal request
Before judgement
S86(1) of the CPA
Automatic cure
No formal request
Cured by evidence
S88 of the CPA
Objections to the charge
S85(1) of the CPA
Before pleading
Different pleas - S106 of the CPA
Pardon
Lis pendens
The same case is pending in another court
Jurisdiction
Autrefois aquit
S204 of the CPA
Autrefois convict
Together with Autrefois aquit
Previous judgement must have been delivered by a competent court
Offences substantially the same
Previous judgement on the merits
Not guilty
Accused has the right not to answer questions
S115 and silence of the accused
Unreasonable delay
Guilty
S112 of the CPA
Differentiate
Less serious offences
Serious offences
Questioning by the court
Elements of the crime and admissions of facts
Admissions as subsequent evidential material
Written statement by accused
Evidence or questioning regarding sentence
S107 of the CPA - truth and public benefit - criminal defamation
Prosecutor
Less serious offences vs serious offences
Less serious offences
Fine does not exceed R5 000
No questioning
No other form of detention without option fo fine
No direct imprisonment
S112(1)(a)
Serious offences
Direct imprisonment or another form of detention without option of a fine
Or fine exceeds R 5000
S112(1)(b)
Questioning mandatory
Correction of plea
Where there is doubt accused
S113 of the CPA
In law guilty
No admission: allegation
Incorrect admission
Valid defence
Any other valid reason - meaning
During any stage of the proceedings under S112 and before sentencing
Types of plea agreements
Traditional approach - informal process under the common law
Formal process under S105A