Distribution of this document is illegal and constitutes a copy-right violation
1
Criminal Procedure Notes and Cases
Key
- Cases in bold = prescribed cases
- Highlighted in orange = asked previously in a test/exam
- Blue = headings
- Purple = topics
- Green = readings (textbook, legislation and prescribed cases)
Topic 1: Introduction to criminal procedure and models of the criminal process
Readings
- Textbook pages 4 -17
- Handbook pages 8-13
- Section 35 of the Constitution
Introduction
- Part of public law
- integral component of the criminal justice system with the function of providing the pre-trial,
trial and post-trial procedural mechanisms
- adjectival/procedural law: the portion of the law that deals with the rules of procedure
governing evidence, pleading, and practice. Looks not at what needs to be proven but how it
must be proven
- focuses on the procedures, the mechanisms and structures that are in place to give effect to
that substantive law
-
- safeguards individual constitutional rights by imposing reasonable checks and balances on
the procedural powers of the police service and Prosecuting Authority
Scope
Criminal procedure regulates a number of procedural and structural processes:
- the criminal courts
- the police
- the NPA
- the defence
Kaya Borkowski
, Distribution of this document is illegal and constitutes a copy-right violation
2
- rights of arrested, detained or accused persons
- pre-trial procedural matters (such as bail)
- procedures during the course of the trail
- sentencing
- post-trial procedures (such as appeal and review).
- The regulation of the role players to the criminal justice system is not just to protect individual
accused persons who face arrest or have been brought to trial – although that is of primary
importance.
- The regulation of these actors, especially the state actors, are fundamental to a constitutional
democracy
Substantive v adjectival law
- Substantive law comprises the legal rules and duties.
- eg. criminal law – with its focus on the elements of criminal liability and defences – is part of
substantive law.
- The substance of WHAT must be proven in a criminal trial is substantive law.
- Adjectival law
- The process and rules for HOW it must be proven, is largely adjectival. Criminal procedure
contains the processes for how the substantive criminal law is enforced.
- Criminal Procedure also applies safeguards to the exercise of power, particularly by state
bodies, by stipulating restrictions on conduct like arrest and prosecution.
- The sanctions attached is one of the links between substantive and adjectival.
Because it is the enforcement of the sanctions promised by substantive law that is the role of
adjectival law.
Accusatorial and inquisitorial criminal justice systems (asked previously in a test/exam)
- Our system has largely been influenced by two major international systems of criminal justice
- Two models focus on procedural aspects but can include substantive law
- These are the accusatorial system based on English common law and the inquisitorial
system based on Continental Roman law.
- differences between these two systems are to be found in the differing functions allocated to
a judge, State prosecution and the accused’s defence.
- The distinction between the procedures lies largely on the role of the presiding officer during
the trial (which in turn affects the roles of other parties), and to some extent, the source of
law.
Accusatorial/adversarial system
Kaya Borkowski
, Distribution of this document is illegal and constitutes a copy-right violation
3
- The presiding officer plays the role of the detached umpire. The police are the primary
investigators and the prosecution and defence lead their own cases and witnesses. Law is
developed over time through the courts, what is known as the common law.
- The South African system is largely accusatorial, but there are certain instances in which
a presiding officer may call witnesses or question witnesses. This will usually be for the
purposes of seeking clarity, and not to conduct a separate cross-examination.
- Our system is based on an accusatorial system as a consequence of its colonial history (UK)
- places a strong emphasis on due procedural process rights
- However, it does contain a limited number of inquisitorial elements eg. a bail application is an
inquisitorial procedure ( s60 of the CPA)
- Prosecutorial control:
- A State prosecutor as dominus litis is in control of a trial and must adduce sufficient
evidence to prove the prosecution’s case.
- A prosecutor will only adduce evidence that is favourable to the prosecution’s case at
trial.
- The charge:
- The prosecutor decides on a charge based on the evidence in the police docket.
- Legal representation:
- An accused person usually employs a professional practitioner. The defence has the
duty to adduce evidence that will support its case and rebut that of the State.
- Judicial passivity:
- In the trial process, a judge plays a neutral but objective role. A judge makes the final
decision on the admissibility of evidence and the verdict.
- Party confrontation (State vs defence):
- The opposing parties confront each other through a process of oral presentation of
evidence and actively compete with each other to persuade a judge
- Principle of orality:
- Presentation of all evidence is by way of party and witness participation. The orality
principle is constitutionally guaranteed in s 35(3)(i) of the Constitution.
- Cross-examination:
- Witnesses present oral testimony at trial by way of examination-in-chief and
cross-examination. Leading questions are discouraged, and a witness may be
declared a hostile witness.
- Burden of proof:
- The prosecution has to start the trial and make a prima facie case. They also have a
set burden of proof. The person who is being accused is thought to be innocent, so
they only have to show that the prosecution's primary case is not true.
- Standard of proof:
- The prosecution must discharge its fixed burden of proof beyond a reasonable doubt.
- Precedent:
- A judge is bound by the decisions of higher courts on the same issues of law and fact.
Kaya Borkowski
, Distribution of this document is illegal and constitutes a copy-right violation
4
Inquisitorial system
- The presiding officer actively conducts questioning witnesses and the accused. There is also
an investigating judge who conducts the questioning of an arrested person rather than the
police. The bulk of law is codified in statute.
- Judicial control:
- The judge as dominus litis conducts an active judicial inquiry and determines the
evidence to be admitted and the probative value to be attached to the admitted
evidence. The judge has access to favourable and unfavourable evidence.
- The charge:
- The investigatory magistrate decides on the charge based on the evidence in the
dossier.
- Legal representation:
- Lawyers play a limited role and are largely subordinate to the judge at trial – but they
may suggest avenues of inquiry to the judge and follow judicial questioning with their
own questioning in the interests of the accused.
- Active judicial management and decision-making:
- The judge controls the trial process whereby parties present their respective cases
and actively question witnesses. The judge may call witnesses and require witnesses
to address specific points.
- Judicial confrontation (judge vs defendant):
- In practice, the confrontation is between the judge and a party, or witness, in which
the judge chooses, directs, and controls the questioning.
- Written record of evidence:
- The judge will usually rely on a written dossier. This dossier of evidence will have
been collected over a series of pre-trial judicial hearings. Most inquisitorial judges rely
on written witness depositions at trial.
- No cross-examination:
- The witness is allowed to answer questions in a discursive narrative form. There are
no formal rules on how questions are put to the witness.
- No formal burden of proof:
- The judge assumes the burden of admitting evidence, questioning witnesses and the
final decision-making.
- No formal standard of proof:
- Judicial decision-making is based on the principle of intime conviction or the inner
reasonable and moral certainty of a judge.
- No precedent:
- Judges are free to make decisions independently on a case-by-case basis.
Crime control versus due process
Crime Control and Due Process
(useful video)
Kaya Borkowski
, Distribution of this document is illegal and constitutes a copy-right violation
5
(asked previously in multiple tests/exams)
- The two of these do not neatly fall into the accusatorial or inquisitorial system
- the ‘due process’ model = provides for individual safeguards by limiting the powers of the
police and prosecution
- greater emphasis is placed on the procedural interests of an accused person and a lesser
emphasis on the crime control interests of the State.
- The accused is entitled to the protections offered by a comprehensive list of substantive
constitutional rights and specific procedural rights (the presumption of innocence, right to
silence etc.)
- Sees more delays unlike the the crime control model because it aims to make sure all is in
check to allow fair process
- Critique = by prioritising the rights of the accused, this may delay justice and frustrate the
legal system. There needs to be a balance.
- The crime control model = concentrates on crime prevention by increasing the powers of
the police and prosecution
- The principal purpose of a crime control model is to emphasise cost-effective crime control at
the expense of individual procedural rights.
- In an extreme crime control model, there may even be a presumption of guilt, some types of
involuntary confessions are admissible etc.
- Does not mean that the system will be oppressive -unless extreme- just pushes the
boundaries of state control and power
- Promotes efficiency
- Critique = by doing things quickly, mistakes are more likely
- In practice, the SA system is primarily a due process model with a limited number of crime
control features.
- a fair system of criminal procedure must make reasonable compromises between the
interests of the State in effective crime control and the due process interests of an alleged
offender.
Kaya Borkowski
1
Criminal Procedure Notes and Cases
Key
- Cases in bold = prescribed cases
- Highlighted in orange = asked previously in a test/exam
- Blue = headings
- Purple = topics
- Green = readings (textbook, legislation and prescribed cases)
Topic 1: Introduction to criminal procedure and models of the criminal process
Readings
- Textbook pages 4 -17
- Handbook pages 8-13
- Section 35 of the Constitution
Introduction
- Part of public law
- integral component of the criminal justice system with the function of providing the pre-trial,
trial and post-trial procedural mechanisms
- adjectival/procedural law: the portion of the law that deals with the rules of procedure
governing evidence, pleading, and practice. Looks not at what needs to be proven but how it
must be proven
- focuses on the procedures, the mechanisms and structures that are in place to give effect to
that substantive law
-
- safeguards individual constitutional rights by imposing reasonable checks and balances on
the procedural powers of the police service and Prosecuting Authority
Scope
Criminal procedure regulates a number of procedural and structural processes:
- the criminal courts
- the police
- the NPA
- the defence
Kaya Borkowski
, Distribution of this document is illegal and constitutes a copy-right violation
2
- rights of arrested, detained or accused persons
- pre-trial procedural matters (such as bail)
- procedures during the course of the trail
- sentencing
- post-trial procedures (such as appeal and review).
- The regulation of the role players to the criminal justice system is not just to protect individual
accused persons who face arrest or have been brought to trial – although that is of primary
importance.
- The regulation of these actors, especially the state actors, are fundamental to a constitutional
democracy
Substantive v adjectival law
- Substantive law comprises the legal rules and duties.
- eg. criminal law – with its focus on the elements of criminal liability and defences – is part of
substantive law.
- The substance of WHAT must be proven in a criminal trial is substantive law.
- Adjectival law
- The process and rules for HOW it must be proven, is largely adjectival. Criminal procedure
contains the processes for how the substantive criminal law is enforced.
- Criminal Procedure also applies safeguards to the exercise of power, particularly by state
bodies, by stipulating restrictions on conduct like arrest and prosecution.
- The sanctions attached is one of the links between substantive and adjectival.
Because it is the enforcement of the sanctions promised by substantive law that is the role of
adjectival law.
Accusatorial and inquisitorial criminal justice systems (asked previously in a test/exam)
- Our system has largely been influenced by two major international systems of criminal justice
- Two models focus on procedural aspects but can include substantive law
- These are the accusatorial system based on English common law and the inquisitorial
system based on Continental Roman law.
- differences between these two systems are to be found in the differing functions allocated to
a judge, State prosecution and the accused’s defence.
- The distinction between the procedures lies largely on the role of the presiding officer during
the trial (which in turn affects the roles of other parties), and to some extent, the source of
law.
Accusatorial/adversarial system
Kaya Borkowski
, Distribution of this document is illegal and constitutes a copy-right violation
3
- The presiding officer plays the role of the detached umpire. The police are the primary
investigators and the prosecution and defence lead their own cases and witnesses. Law is
developed over time through the courts, what is known as the common law.
- The South African system is largely accusatorial, but there are certain instances in which
a presiding officer may call witnesses or question witnesses. This will usually be for the
purposes of seeking clarity, and not to conduct a separate cross-examination.
- Our system is based on an accusatorial system as a consequence of its colonial history (UK)
- places a strong emphasis on due procedural process rights
- However, it does contain a limited number of inquisitorial elements eg. a bail application is an
inquisitorial procedure ( s60 of the CPA)
- Prosecutorial control:
- A State prosecutor as dominus litis is in control of a trial and must adduce sufficient
evidence to prove the prosecution’s case.
- A prosecutor will only adduce evidence that is favourable to the prosecution’s case at
trial.
- The charge:
- The prosecutor decides on a charge based on the evidence in the police docket.
- Legal representation:
- An accused person usually employs a professional practitioner. The defence has the
duty to adduce evidence that will support its case and rebut that of the State.
- Judicial passivity:
- In the trial process, a judge plays a neutral but objective role. A judge makes the final
decision on the admissibility of evidence and the verdict.
- Party confrontation (State vs defence):
- The opposing parties confront each other through a process of oral presentation of
evidence and actively compete with each other to persuade a judge
- Principle of orality:
- Presentation of all evidence is by way of party and witness participation. The orality
principle is constitutionally guaranteed in s 35(3)(i) of the Constitution.
- Cross-examination:
- Witnesses present oral testimony at trial by way of examination-in-chief and
cross-examination. Leading questions are discouraged, and a witness may be
declared a hostile witness.
- Burden of proof:
- The prosecution has to start the trial and make a prima facie case. They also have a
set burden of proof. The person who is being accused is thought to be innocent, so
they only have to show that the prosecution's primary case is not true.
- Standard of proof:
- The prosecution must discharge its fixed burden of proof beyond a reasonable doubt.
- Precedent:
- A judge is bound by the decisions of higher courts on the same issues of law and fact.
Kaya Borkowski
, Distribution of this document is illegal and constitutes a copy-right violation
4
Inquisitorial system
- The presiding officer actively conducts questioning witnesses and the accused. There is also
an investigating judge who conducts the questioning of an arrested person rather than the
police. The bulk of law is codified in statute.
- Judicial control:
- The judge as dominus litis conducts an active judicial inquiry and determines the
evidence to be admitted and the probative value to be attached to the admitted
evidence. The judge has access to favourable and unfavourable evidence.
- The charge:
- The investigatory magistrate decides on the charge based on the evidence in the
dossier.
- Legal representation:
- Lawyers play a limited role and are largely subordinate to the judge at trial – but they
may suggest avenues of inquiry to the judge and follow judicial questioning with their
own questioning in the interests of the accused.
- Active judicial management and decision-making:
- The judge controls the trial process whereby parties present their respective cases
and actively question witnesses. The judge may call witnesses and require witnesses
to address specific points.
- Judicial confrontation (judge vs defendant):
- In practice, the confrontation is between the judge and a party, or witness, in which
the judge chooses, directs, and controls the questioning.
- Written record of evidence:
- The judge will usually rely on a written dossier. This dossier of evidence will have
been collected over a series of pre-trial judicial hearings. Most inquisitorial judges rely
on written witness depositions at trial.
- No cross-examination:
- The witness is allowed to answer questions in a discursive narrative form. There are
no formal rules on how questions are put to the witness.
- No formal burden of proof:
- The judge assumes the burden of admitting evidence, questioning witnesses and the
final decision-making.
- No formal standard of proof:
- Judicial decision-making is based on the principle of intime conviction or the inner
reasonable and moral certainty of a judge.
- No precedent:
- Judges are free to make decisions independently on a case-by-case basis.
Crime control versus due process
Crime Control and Due Process
(useful video)
Kaya Borkowski
, Distribution of this document is illegal and constitutes a copy-right violation
5
(asked previously in multiple tests/exams)
- The two of these do not neatly fall into the accusatorial or inquisitorial system
- the ‘due process’ model = provides for individual safeguards by limiting the powers of the
police and prosecution
- greater emphasis is placed on the procedural interests of an accused person and a lesser
emphasis on the crime control interests of the State.
- The accused is entitled to the protections offered by a comprehensive list of substantive
constitutional rights and specific procedural rights (the presumption of innocence, right to
silence etc.)
- Sees more delays unlike the the crime control model because it aims to make sure all is in
check to allow fair process
- Critique = by prioritising the rights of the accused, this may delay justice and frustrate the
legal system. There needs to be a balance.
- The crime control model = concentrates on crime prevention by increasing the powers of
the police and prosecution
- The principal purpose of a crime control model is to emphasise cost-effective crime control at
the expense of individual procedural rights.
- In an extreme crime control model, there may even be a presumption of guilt, some types of
involuntary confessions are admissible etc.
- Does not mean that the system will be oppressive -unless extreme- just pushes the
boundaries of state control and power
- Promotes efficiency
- Critique = by doing things quickly, mistakes are more likely
- In practice, the SA system is primarily a due process model with a limited number of crime
control features.
- a fair system of criminal procedure must make reasonable compromises between the
interests of the State in effective crime control and the due process interests of an alleged
offender.
Kaya Borkowski
