CPR3701 STUDY PACK 2021.

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 EXAMINATION. 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) False. A district court may never try serious offences against the State. (2) A regional court may try offences except treason, murder, rape and compelled rape. (1) False. The Regional Magistrates’ Courts deal with more serious cases than the ordinary Magistrates’ Courts - for example, murder, rape, armed robbery and serious assault (3) South Africa follows a system of compulsory prosecution. (1) False. South Africa does not, in principle, follow a system of compulsory prosecution, a prosecutor has a duty to prosecute if there is a prima facie case and no compelling reason for refusal - “Is there a reasonable prospect of success?” The prosecutor must ascertain whether there is a reasonable and probable cause for prosecution and at trial be able to furnish proof beyond a reasonable doubt (4) A prosecutor may withdraw a case without the permission of the DPP. (1) True. A prosecutor may withdraw a charge without the consent of his DPP because a DPP, if dissatisfied with the withdrawal, may charge the accused afresh (5) An indictment is a document which is used to bring an accused before court in both lower and high courts. (1) False. At a trial in a superior court the charge is contained in a document known as a indictment, which is drawn up in the name of the DPP. It contains: - the charge against the accused; - the accused’ s name, address, sex, nationality and age; - a summary of the substantial facts of the case; and - a list of the names and addresses of State witnesses. The indictment, together with a notice of trial, must be served on the accused at least 10 day (Sundays and public holidays excluded) before the date of the trial unless the accused agrees to a shorter period. The procedure: (1) Served by handing it to the accused in substantially the same manner as a summons; or is handed to the accused by the Magistrate or Regional Magistrate who commits him to the superior court for trial. (2) A return of service is prima facie proof of service. (3) Failure to appear is mutatis mutandis governed by Section 55 of the CPA. (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. lOMoARcPSD| CPR3701 LATEST STUDY PACK. Detention for the purposes of interrogation: - Cases of serious offence legislature makes provision for → arrest & detain for interrogation. - Drugs & Drug Trafficking Act: powers of detention for interrogation with warrant: suspected of having committed offences | having information regarding offence. → May be detained indefinitely subject to brining before magistrate w/i 48hrs after arrest & thereafter no less than once every 10days. - Detainee entitled to legal representation before the magistrate. - Doubtful whether this provision will withstand constitutional scrutiny: as right not to be detained w/o trial constitutes part of the constitutional right to a fair trial. (7) The function of further particulars is to define issues and not to enlarge them. (1) True. (8) As a rule, the court is bound to the agreement between the State and the defence in the instance of traditional plea bargaining. (1) False. In the case of traditional plea bargaining, the prosecutor and the defence cannot bind the court to a sentence. However, the prosecutor may agree to suggest to the court a possible lighter sentence (9) The phrase ‘course of the criminal trial’ refers to the procedures which must be followed during the pre-trial stage. (1) False. The phrase “in the course of a criminal trial” refers to all procedures which may or must be followed from the time the accused has pleaded until a verdict on the merits. (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. The principle of equality of arms emphasises that an accused should have legal representation. (11) Generally, force must be used to effect arrest. (1) False. Where force is used in making an arrest, the nature of the force and the way in which it is used must be in proportion to the envisaged objective (to prevent the escape of a suspect so that an arrest can be made, or in order to avert threatening danger). (12) Escaping from unlawful custody constitutes a serious offence. (1) False. Escaping from unlawful custody may be risky. (13) South Africa does not follow a system of compulsory prosecution. (1) True (14) A prosecutor may stop a prosecution without the permission of the DPP. (1) False. A prosecutor may not stop a prosecution, unless the Director of Public Prosecutions concerned, or his or her delegate, has consented thereto. (15) An charge sheet is a document which is used to bring an accused before court in both lower and high courts. (1) False. Charge sheet (in a lower court) is the document informing all parties involved in a criminal trial (i.e. the court, the state and the defence, which includes the accused and his legal representatives) of the substance of the trial, that is, what offence was committed and where, when and against whom lOMoARcPSD| (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. If the defendant refuses to enter a plea—or to even speak—then the judge will typically enter a not guilty plea on his or her behalf (17) A plea of lis pendens implies that there is another case pending against the accused in another court. (1) False. It must be One and Same Case before Two or More Courts. If the accused offers any plea other than guilty or not guilty, the court will consider the plea and reach a finding on it. For example, if the court were to find that the accused had, in fact, been found guilty of the same offence earlier, the proceedings would be stopped and the accused released. However, if the court decided the opposite, the trial would continue.. (18) Common assault is a competent verdict on a charge of murder or attempted murder. (1) True. Competent verdicts on a charge of murder and attempted murder – Section 258 - Culpable homicide; - assault with intent to do grievous bodily harm; - common assault; - robbery; - public violence; - pointing a firearm, air-gun or air-pistol; - exposing an infant; and - disposing of the body of a child with intent to conceal the fact of its birth (19) The phrase ‘course of the criminal trial’ refers to the procedures which must be followed during the pre-trial stage. (1) False. The phrase “in the course of a criminal trial” refers to all procedures which may or must be followed from the time the accused has pleaded until a verdict on the merits. (20) 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. The principle of equality of arms emphasises that an accused should have legal representation (21) A defect in the charge sheet or indictment may be cured by evidence. (1) True. Section 88 of the Act, however, now provides that where a charge is defective for the want of an averment which is an essential ingredient of the relevant offence, the defect shall be cured by evidence led at the trial proving the matter which should have been averred, unless the defect is brought to the notice of the court before judgment. If it is brought to the notice of the court and the court refuses an amendment, the accused cannot be found guilty on the defective charge. Take note that section 88 cannot save a defective charge sheet which does not comply to the demands of section 35(3)(a) of the Constitution. The offence should, however, at least be named in the charge, and the prosecutor should exercise caution in framing the charge because before pleading the accused may except to the charge.