PVL3701 EXAM PREP Q&A.

THE FOLLOWING QUESTIONS ARE SET TO ENABLE YOU TO PREPARE FOR THE EXAMINATIONS. ONCE YOU ARE ABLE TO ANSWER THEM IT MEANS YOU HAVE COVERED EVERY SCOPE OF THE EXAMINATIONS. Please read them in conjunction with your tutorial letters and the assignments TRUE or FALSE QUESTIONS (1) A district court has the jurisdiction to try serious offences against the State. (1) True – may try some serious cases against the state. (2) A regional court may try offences except treason, murder, rape and compelled rape. (1) False – only exception is treason. (3) South Africa follows a system of compulsory prosecution. (1) False – prosecutors discretion exercised when deciding whether to prosecute, otherwise (in the event that the prosecutor refuses to prosecute) individual may prosecute privately on the basis of a certificate nolle presequi. Private Prosecution on the basis of a certificate nolle presequi:  Locus standi of PP  Private person who prove substaintial interest in outcome of issue arising out of an injury he personally suffered in consequence to the offense.  Husband, if offense committed in respect of wife.  Wife, child, next of kin of deceased person.  Legal guardian, curator of minor or lunatic if offense committed against his ward.  The certificate nolle presequi  Lapses in 3 months  Signed by DPP  Declares that DPP : examined statement on which charge is based & declines to prosecute at the instance of the state.  Security by PP  Deposit of R1500.00 with Magistrates Court.  Failure of PP to appear  Charged dismissed – accused may not be Privately charged again but State may Prosecute.  If PP prevented beyond his control – deposit forfeited and case moved to later date.  Cost of Successful PP  Paid by PP, court may rule for convicted to pay.  Cost of Unsuccessful PP  Court my order PP to pay whole/part of accused cost/expenses connected to prosecution.  Intervention by State in PP  DPP my apply for proceedings to be stopped to prosecute in the instance of the State. PVL3701 EXAM PREP Q&A. Relevant Factors regarding Discretion to Prosecute: (depend of case-to-case basis) a. Nature and seriousness of offense b. Interests of victim and broader community c. Circumstances of offender  Previous convictions  Personal circumstances  Mitigating & Aggravating factors, ect. (4) A prosecutor may withdraw a case without the permission of the DPP. (1) True – As the DPP may charge the accused afresh. Prosecutor may not stop a prosecution without the permission of the DPP. DPP my stop prosecution anytime from between pleading – conviction. Accused is entitled to Acquittal and may later successfully rely on a plea of autrefois acquit. (5) An indictment is a document which is used to bring an accused before court in both lower and high courts. (1) False – used only in high court. Indictment used in High Courts & Summons used in Lower Courts (6) The police are empowered in the case of certain serious offences to arrest persons and detain them for the purpose of interrogation. (1) True – Section 12 of the Drugs and Drug Trafficking Act - “certain serious offences” (7) The function of further particulars is to define issues and not to enlarge them. (1) True – Section 35(3)(a) of Constitution: ‘every accused person has a right to fair trial, which includes the right to be informed of the charge with sufficient detail to answer it…’ (8) As a rule, the court is bound to the agreement between the State and the defense in the instance of traditional plea bargaining. (1) False – Traditional Plea Bargaining: accused agrees to accept the plea tendered on a different basis from that alleged by the state. (eg. Culpable homicide instead of murder) North Western Dense Concrete CC case – State to be held to plea bargain it has made (9) The phrase ‘course of the criminal trial’ refers to the procedures which must be followed during the pre-trial stage. (1) False – refers to procedures to be followed during pre-trial, trial, sentencing and post-trial stages. (10) The principle of ‘equality of arms’ essentially implies that an unrepresented accused must, during the proceedings enjoy better opportunities than a well-resourced prosecution. (1) False – requires that there be a fair balance between opportunities afforded the parties involved in litigation. (11) Generally, force must be used to effect arrest. (1) False – Section 49(2): ‘… arrestor may… use such force as may be reasonably necessary and proportional in circumstances to overcome resistance or to prevent suspect from fleeing. Arrestor is justified – in terms of this section – to use deadly force that is intended or likely to cause death or GBH to a subject ONLY if he/she believes on reasonable grounds that: (a) Force immediately necessary for protecting arrestor, person assisting arrestor, any other person from imminent or future death or GBH. (b) Substantial risk that suspect will cause imminent or future death or GBH if arrest delayed. (c) Offence is in progress and is of forcible and serious nature and involved use of life threatening violence or strong likelihood that it will cause GBH. (12) Escaping from unlawful custody constitutes a serious offence. (1) False – escaping from lawful custody constitutes a serious offence. (13) South Africa does not follow a system of compulsory prosecution. (1) True – prosecutors discretion exercised when deciding whether to prosecute, otherwise (in the event that the prosecutor refuses to prosecute) individual may prosecute privately on the basis of a certificate nolle presequi. Please refer to question (3) (14) A prosecutor may stop a prosecution without the permission of the DPP. (1) False – Prosecutor may not stop a prosecution without the permission of the DPP. DPP my stop prosecution anytime from between pleading – conviction. Accused is entitled to Acquittal and may later successfully rely on a plea of autrefois acquit. Prosecutor may withdraw a prosecution as accused not entitled to conviction or acquittal. DPP may charge the accused afresh after Prosecutor withdrew. (15) A charge sheet is a document which is used to bring an accused before court in both lower and high courts. (1) False – a charge sheet (indictment) is a document which is used to bring an accused before a High Court only. (16) Where the accused refuses to plead or to grant an intelligible plea, the court is entitled to register the plea of ‘guilty’. (1) False – Section 109 of CPA: plea of ‘not guilty’ entered and trial commences. (17) A plea of lis pendens implies that there is another case pending against the accused in another court. (1) True – Delaying effect on the waiting of an outcome of another criminal case against the accused. (18) Common assault is a competent verdict on a charge of murder or attempted murder. (1) True – Section 258(e): ‘the offense of common assault’