CPR3701 EXAM PREP

Open justice can be equated with the concept that justice must be “seen to be done”. True – The general principle is that the conduct of criminal trials should take place in open court and in the presence of the accused: an accused’s right to a fair trial includes the right to a public trial as protected in s 35(3)(c) of the Constitution. This means that the public is generally entitled to be present. The concept of courts open to the public underscores the more comprehensive notion of open justice. The concept of open justice embraces issues relevant to an open democracy, such as fairness, accessibility, transparency, accountability of the judicial system and freedom of expression. The principle of open justice is based on two main considerations. The first is the notion of a fair trial, of which openness is regarded as an important component. The second is a consideration of publicity: members of the public are entitled to be informed of the conduct of criminal proceedings, and the administration of justice benefits from the publicity given to such proceedings (TEXTBOOK – 314 or 281 of electronic copy) 2. Open justice is protected by the right to a fair trial and is an absolute right. False – The latter consideration embraces the notion that open justice demonstrates that justice dispensed in the courts is accessible to all, and is fundamental to the proper functioning of a transparent justice system, to enhancing accountability and deterring misconduct. However, while recognising that the open court principle is not absolute, given the potential conflict with the demands of privacy, security and protection, the question is how the courts have to balance the constitutional rights of an accused on the one hand and protecting the interests of the administration of justice, vulnerable witnesses and children on the other hand. (TB 314 or 281) CPR3701 EXAM PREP 3. The court cannot exclude any member of the public from the trial of an adult accused. False – It may. In terms of s 153(1) of the Criminal Procedure Act all courts are empowered to exclude the public from their proceedings whenever it appears to be in the interests of the security of the State or of good order, public morals, or the administration of justice. Section 154(1) authorises the court to order that no information relating to such proceedings may be published; but the court must allow publication of personal information of the accused, his plea, the charge, verdict and sentence, unless the court finds that such publication may defeat the object of its direction under s 153(1). (TB 315 or 282) 4. In cases where a witness for the state is about to abscond, the prosecutor may apply for a warrant of arrest and have the said witness detained pending the trial. True – Whenever the Director of Public Prosecutions thinks that there is any danger that a potential State witness in respect of specified offences may be tampered with or intimidated, or that such witness may abscond, or whenever he deems it in the interest of the witness or of the administration of justice, he may apply to a judge in chambers for an order that such witness be detained pending the relevant proceedings—s 185. (TB 316 or 283) 5. Co-accused are ordered numerically. True – In the event of a joint trial, the accused are identified numerically, for example, accused one, two and three. The prosecution decides who should be accused one or two or three, as the case may be. It is the duty of the court to ensure that the correct numerical order is maintained during the course of the trial (TB 323 or 288) 6. The prosecution decides the numerical order of co-accused at a trial. True – See above 7. The court can of its own accord raise the issue of separation. True – After the state has decided to charge several accused together, in certain circumstances an accused may request that his trial be separated from the rest. The court may also order such a separation on its own account (mero motu). (Study Guide 64) 8. The principle of legality is constitutionally entrenched. True – The requirement that the prosecution must prove legal guilt in a properly conducted trial in accordance with the principle of legality, that is, in a trial where all relevant common-law, statutory and constitutional due process rules were followed. Factual guilt, ascertained at the expense of a fundamental right of the accused, falls short of the standard set by the principle of legality. (TB 333 or 296) 9. The principle of equality of arms is founded on equal opportunities being available to both the state and the defence to prove their respective cases. True - However, this approach is only valid if the prosecution and defence have equal opportunities. It is in this context that the so-called ‘principle of equality of arms’ developed. (TB 335 or 298)