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Criminal Procedure - Chapter 15 - Coggle Diagram
Criminal Procedure - Chapter 15
Speedy trial
For trial-related prejudice / delay - not pre-trial delays
Unreasonable? Factors to be considered by the court
Duration of delay
Reasons
Can someone be blamed?
Effect on the administration of justice
Effect on personal circumstances of accused and witnesses
Actual / potential prejudice caused to defence / state
Seriousness, extent, complexity of charge
The nature of the prejudice suffered by the accused
The nature of the case
Systematic delays
S342A of the CPA: unreasonable delays in trials - everyone has a right to a speedy trial
Three stages followed
Investigation into cause (considering factors)
Finding: delay unreasonable or not
Appropriate remedy (considering stage of proceedings
Refusing further postponement
Postponement: conditions
Trial (not yet pleaded)
Permanent stay of the prosecution
S35(3)(d) of the Constitution
Witnesses - S179 of the CPA
Attendance
S186 of the CPA - court calls witnesses
Abscond; tamper or intimidate
Obligation
Protective custody
Subpoena - state / accused
Recalcitrant witnesses - S189 and S205 of the CPA - a witness must appear in person in court and answer questions posed to them, if they do not they are a recalcitrant witness and the court can compel the witness to appear in court and answer questions
The witness does have privilege against self-incrimination, a spouse need not give evidence regarding their husband or wife, and, on the presentation of a lot of evidence, a witness can argue that testifying will place their life in danger
3 forms of prejudice
Impairment: personal security
Loss of reputation; ostracism; loss of income / employment
Trial-related prejudice
Fading witness memory; unavailability of witness
Loss: personal liberty
Open justice: who may attend the trial
S152 of the CPA - open court
Media - limitations
S25(3)(c) and S34 of the Constitution
Restrictions on open court
Prevent harm to victim or witnesses
Safeguard privacy interests of victims and children
Necessary to protect state / innocent from unnecessary harm
Encourage reporting of sexual offences
Trial of mentally abnormal persons
Substantive law defence
Criminal incapacity due to mental illness or intellectual disability
S78(1) of the CPA
Procedural issue
Non-trialability due to mental illness or intellectual disability
S77 of the CPA
Adjournment and postponement S168 - S179 of the CPA
Discretion of judicial officer
S35(3)(d)
Used interchangeably
Basic principles considered
Interest of society
Presumption of innocence and right to speedy hearing
Adjournment - hearing already underway - rescheduling of the court proceedings
Failure to attend
Postponement - before hearing starts
The difference between an adjournment and a postponement are that the former is for a shorter period of time, even being able to occur for a number of minutes in one day, while the latter is a much longer period of time, normally incorporating a return date
Diversion for children
S51
Aim of restorative justice
Diversion must be done with the consent of the prosecutor