ARRAIGNMENT AND PLEA 1. 2. ARRAIGNMENT The prosecutor is dominus litis and will determine the charges.

arges. The police officer plays no role here. He merely makes the investigation and provides the evidence (dossier police docket) on which the prosecutor will build the case. Once the prosecutor is satisfied from the police docket that there is sufficient evidence to build a prima facie case against the accused, the prosecutor will formulate the charge. The prosecutor formulates a charge (Magistrate Court) or an indictment (High Court) and the accused is arraigned for trial. Once officially charged, the accuseds right to a speedy trial (see chapter 15) comes into effect. Accused at the arraignment is asked to plead. PLEAS

There are a number of common law and statutory pleas which are divided between extraordinary and ordinary pleas. There is also the procedure of plea bargaining. (a) When may the accuseds plea be dispensed with? (i) Refusal to plead The court enters a plea of not guilty. Ambiguity in plea Where the accused admits some facts and denies others, the court will enter a plea of not guilty and then question the accused in terms of s115 (see later). Obstructive and rowdy behaviour The court may order the accused to be removed and proceed without him. Mentally abnormal accused Where the accused is unable to plead because of a lack of mental understanding, an inquiry into his mental state must be conducted (ss77 and 79). An investigation is made by a medical superintendent of a state mental hospital, assisted by a psychiatrist (court appointed) and a psychiatrist appointed by the accused. If the investigation concludes that the accused does understand, the proceedings continue in the normal way. If the investigation concludes that the accused does not understand, he is detained in a psychiatric hospital. If the accused did commit the crime, but is found mentally defective, he is found not guilty and the declared a state patient and held in a psychiatric hospital or psychiatric prison.

(ii)

(iii)

(iv)

In respect to children-sec 48(5) The proceedings of a preliminary inquiry may be postponed for a period determined by the inquiry magistrate in the case wherethe child is in need of medical treatment for illness, injury or severe psychological trauma; or the child has been referred for a decision relating to mental illness or defect in terms of s 77 or 78 of the Criminal Procedure Act.

(v)

Objection to charge The accused may object to a charge on the following grounds: Charge does not set out all the essential elements of a crime. Charge does not disclose an offence. Charge does not contain sufficient particulars. The accused is not correctly named or described.

(b)

Plea which may be raised by the accused (i) Statutory plea (s106) The accused may plea the following: That he is guilty of the offence charged, or of any offence of which he may be convicted on the charge. That he is not guilty. That he has already been convicted of the offence with which he is charged (autrefois convict). That he has already been acquitted of the offence with which he is charged (autrefois acquit). That he has received a free pardon from the president for the offence charged. That the court has no jurisdiction to try the offence. Or: That the prosecutor has no title to prosecute. Or: That the prosecution may not be resumed or instituted owing to an order by a court under s342A(3)(c) Two or more pleas may be pleaded together (except with a plea of guilty). Truth and public benefit (s107) Can only plead this when charged with criminal defamation. May be pleaded with any other plea, except a plea of guilty. Lis pendens (common law plea) The case is the subject of adjudication in another court (see later). The accused may plead guilty (s112) or plead not guilty (s115) See below.

(ii)

(iii)

(iv) 3.

A PLEA OF GUILTY (S112(1) A plea of guilty means that the accused admits all the elements of the crime (facts-in-issue) and there is no issue between the accused and the state and therefore no need of a trial. The accused may be convicted and sentenced immediately. S112(1) sets out two different procedures to be follows: Less serious offences: For minor offences the judicial officer may convict and impose a sentence immediately without questioning the accused (s112(1)(a)). Serious offences: The judicial officer must question the accused in order to ascertain whether the accused admits all the elements of the crime. If he is satisfied by the accuseds answers, he can then convict and sentence (s112(1)(b)). S112(2): Requires the accused to make his admissions together with all the facts on which the admissions are based. Questioning by the presiding officer

(i)

An uneducated and unrepresented accused who pleads guilty must be questioned by the judicial officer. Questioning is directed at satisfying the judicial officer that the accused fully understands the charge. The purpose of questioning is to protect the accused against an incorrect plea of guilty. The accuseds answers cannot be used to draw inferences of guilt. The accuseds plea of guilty must be clear, direct and unequivocal. Questioning must occur in such a way as to place all the evidence (sufficient information) before the judge to allow him to convict and sentence properly. Note: Questioning in terms of s112(1)(b) (serious offences) is peremptory, and a failure to question will result in the conviction being set aside.

(ii)

The accuseds version Accused should be encouraged to give his version. The court cannot judge the accuseds truthfulness or plausibility. The court must simply evaluate the facts to determine whether they substantiate the accuseds admissions and his plea. The test is to analyse what the accused has said, not what the court thinks of it. If the accuseds version of the facts is materially different to those before the court, a plea of not guilty must be entered. The prosecutors role Prosecutor must give the court a brief summary of the states case which contains all the material facts. The summary must be noted on the court record. If the accused disputes certain facts, the prosecution must admit evidence to prove them. If the accused pleads guilty to a lesser offence which is a competent verdict on the main more serious offence, the prosecutor may accept the plea without leave of the court. The accuseds plea of guilty to a less serious charge (ie. culpable homicide) and his plea of not guilty to the more serious charge (ie. murder) does not stop the prosecution.

(iii)

(iv)

Statements by the accused The court may convict on the strength of a written statement by the accused, in which he sets out all the facts and pleads guilty. The court may question the accused on any matter raised in the statement to satisfy itself of the accuseds guilt. A statement which simply copies out the charge sheet is insufficient, and must set out all the necessary admissions as well as the facts on which the admissions are based. Correction of a plea of guilty (s113) During the s112 proceedings, there may be doubt that: The accused is in fact guilty The accused is not admitting a relevant fact-in-issue The accused has incorrectly admitted a relevant fact The accused has a valid defence Any other factor.

(v)

The court based on the above, must record a plea of not guilty (s113) and require the prosecutor to proceed with the prosecution. A reasonable doubt and not a probability is sufficient to compel the court to record a plea of not guilty.

(vi)

Committal for sentencing to regional court A magistrates court may, before sentencing, but after a plea of guilty refer the accused to the regional court when: The offence exceeds the sentencing jurisdiction of the Magistrates Court; The accuseds previous convictions coupled to the present offence merits a sentence in excess of the Magistrates Court jurisdiction; The accused is a dangerous criminal (s286A). The accused is then sentenced in the regional court, unless the regional court overturns the plea of guilty and records a plea of not guilty, in which case the prosecution proceeds as a summary trial. Amendment of plea from guilty to not guilty An accused, with the courts permission, may withdraw a plea of guilty. The accused must give a reasonable explanation for the change (ie. fear, duress, mistake, ignorance). An application may be brought after conviction but before sentencing. The onus of proof is on the accused to show on a balance of probability why change should be allowed (this onus has been criticised by S v Botha). In Botha, it was held that the onus should remain on the state and not shift to the accused. Only in exceptional cases will a change of plea be allowed after the verdict.

(vii)

4. (i)

PLEA OF NOT GUILTY (S115) S115(1) (Explanation of plea) Purpose: To identify the allegations/issues in the charge that is in dispute. The court must inform the accused that he is not obliged to answer any questions, i.e. the right to silence. Failure to do so constitutes an irregularity, the effect that would depend on the circumstances. Spontaneous admissions, made immediately after the plea, before the accused has been warned of the right to remain silent, are admissible. The court may put questions to accused to clarify any matter regarding the basis of the accuseds defence, or to clarify his answers to questions relating to issues in dispute, but the questioning should not go beyond the matters in issue and should be limited to issues in respect of which accuseds statements is unclear. Accused need not make his statement setting out basis of his defence under oath and court should advise accused accordingly. S115 procedure must take place after plea but before the starting of the states case. The explanation by the accused of a plea of not guilty is not evidential material upon which a conviction can be based. Admissions made in the course of an explanation of plea The accused is asked whether a fact which is admitted during the explanation of plea, may be recorded against him as an admission.

(ii)

 (iii)

If the accused consents, such an admission is duly recorded (s220). The admitted fact is no longer in dispute between the prosecution and the accused. A s220 admission is sufficient proof of that fact and absolves the state from the burden of proving it. A s220 admission is labelled a formal admission. Where the accused does not consent to an admission being recorded, then the fact must still be proved by the state. Such an admission is referred to as an unrecorded informal admission made in court. (For a more detailed explanation, see Chapter 14).

Accuseds participation If an accused is unrepresented the judge directs his questions at the accused, but where the accused is represented questions must be put to the legal representative as the legal practitioner is acting as shield, and not to accused directly. The accused must, however, declare whether he confirms the answer of representative. Plea explanations cannot be used against a co-accused, except when the accused repeats his allegations in his explanation of plea in evidence under oath (because then it is evidence). The difference between s112 and s115 in respect to what inferences may be drawn from the accuseds invocation of a right to silence are as follows: On a plea of not guilty, the accused has a right to remain silent, and the courts questioning should be directed at establishing the facts-in-issue, and the accused should be protected from jeopardising his plea of not guilty. On a plea of guilty, the right to silence becomes irrelevant but the court should question the accused in a way which protects the accused from an unjustified plea of guilty. S115 has a dual purpose: An invitation to indicate the basis of his defence. Questioning to ascertain which allegations in the charge are in dispute. Committal to regional court After the plea of not guilty, at the request of the prosecutor and before any evidence is tendered, the court may refer the trial to regional court with jurisdiction. Amendment of plea of not guilty An accused may at any stage change a plea of not guilty to one of guilty, with leave of the court. In such a case, s112 proceedings become applicable. PLEA OF AUTREFOIS ACQUIT AND AUTREFOIS CONVICT

(iv)

(v)

5.

It is a deep-seated principle of any civilised system of criminal law that no person shall be punished more than once for the same offence. This basic principle is also part of our Constitution (s35(3)(m)). Every accused person has the right to a fair trial, which includes the right not to be tried for an offence in respect of an act or omission for which that person has previously been either acquitted or convicted. The plea that a person has already been convicted of the same offence is known as autrefois convict. The law goes even further and provides that no person shall be in jeopardy of being tried for and convicted of the same offence more than once (the so-called principle of double jeopardy). (No person shall be harassed twice for the same cause). An accused

may evade a second prosecution even though he was acquitted previously on the same charge by pleading autrefois acquit. The onus of proving a plea of previous conviction or previous acquittal rests upon the accused. Proof of the previous trial is usually rendered by producing the record (or a copy thereof) and by oral evidence that the accused is the same person who was previously tried. Note that in Mcintyre and others 1997 (2) SACR 333 (T), the court found that the provision of section 35(3)(m) of the Constitution, broadened the law concerning what was previously regarded as the same offence according to the principle in German law by looking at the deed or omission (ie the action) with respect to which the accused was found guilty or not guilty before, rather than at the description of the offence. The same approach as with multiplication (or duplication) of convictions can be followed to determine whether the offence or action was essentially the same as the one with which the accused was charged in the first trial. (a) Autrefois convict The essentials of this plea are that the accused had previously been convicted Of the same offence; By a competent court. It is often stated as a third requirement that the accused must have been found guilty upon the merits. However, it is superfluous to state this here as a requirement: it is apparent that a conviction can be based only upon the merits. The plea is also available where the offence with which the accused is now charged is a lesser one than that of which he had been convicted, and the current offence is one of which he could have been convicted on the previous charge. If the accused had previously been convicted of murder, he cannot now be charged with culpable homicide. If the accused had previously been charged with murder and convicted of assault, he cannot now be charged with culpable homicide. (Conviction of the latter two offences is competent upon a charge of murder). On the other hand, the plea is not available where it was impossible at the previous trial to prefer the more serious charge now presented. Thus, if the victim of an assault dies after the accused has already been convicted of assault; the accused may be indicted for murder or culpable homicide. Likewise, conviction of negligent driving of a motor vehicle is not a defence on a charge of culpable homicide. (b) Autrefois acquit The essentials of the plea of autrefois acquit are that the accused has previously been acquitted: Of the same offence with which he is now charged; By a competent court; and Upon the merits. If these three factors were present the accused is said to have stood in jeopardy, ie was in danger of having been convicted. For a plea of autrefois acquit to be sustained if an accused is charged again, there must have been a trial or a prosecution followed by an acquittal. The remarks made under the heading of autrefois convict regarding the concept of the same offence are equally applicable here. The plea can also be relied upon where the offences are substantially the same. Another way of putting it is that he must legally have been in jeopardy on the first trial of being convicted of the offence with which he was charged on the second trial. It is required that the acquittal must have been on the merits. This means tha t the court (whether at the trial or ultimately upon appeal) must have considered the merits of the case, whether in fact or in law, and must not have acquitted the accused merely because of a technical irregularity in the procedure. Where the trial proves abortive because of such an

irregularity, the accused may be brought to trial de novo and the plea of autrefois acquit cannot prevail. The plea of autrefois acquit can be sustained even where it is based on the judgment of a foreign court. AUTREFOIS CONVICT Requirements: The accused previously been convicted: Of the same offence; By a competent court. AUTREFOIS ACQUIT has Requirements: The accused has previously been acquitted : Of the same offence; By a competent court; Upon the merits. The court will look at the true essence There must have been a trial or a of the offence and not at technicalities. prosecution followed by an acquittal, ie The plea is also available when the there must have been a danger of offence now charged with is a lesser conviction. one than that of which accused has It must be for substantially the same been convicted and when current offence. offence is one of which he could have If at the trial there is not a substantial been convicted in the previous charge. difference between the facts alleged in Accused can be charged with more the charge and the facts proved by serious offence, eg. If an assault evidence, the accused may be victim dies after accused has already convicted if he then is acquitted, he been convicted of assault, the accused may plead autrefois acquit. may, however, be charged with murder Even if a plea of autrefois acquit fails, or culpable homicide. court still has a discretion to prevent the second trial from proceeding on the basis that a trial should not proceed in piecemeal fashion. The acquittal must have been on the merits-the court must have considered the merits and not merely acquitted the accused on a technicality. If due to procedural technicality a trial may be brought de novo. Sometimes difficult to decide and will depend on the nature of the technicality.

(c) S106 and the pleas autrefois acquit/convict S106(4) provides, inter alia, that an accused who has pleaded to a charge is entitled to demand that he be acquitted or convicted. We have already pointed out that this may result in an acquittal on the merits even if the State did not lead any evidence. For instance, this may happen if the accused has pleaded, there have been several postponements, the State witnesses are still not available and the court (in the regular exercise of its discretion) refuses a further postponement. The accused is acquitted on the merits, there being simply no evidence against him. Pardon by the President The accused may plead that he has received a pardon from the President for the offence charged s106.

Plea to the jurisdiction of the court Such a plea may be based on an allegation that the offence was committed outside the area of jurisdiction of the court or that some condition precedent necessary to confer jurisdiction on the court has not been satisfied. Discharge from prosecution S204 of the Code deals with the immunity accorded to accomplices who give satisfactory evidence for the State in criminal proceedings. According to this section, if the prosecutor informs the court that any person called as a witness on behalf of the State will be required to answer questions which might incriminate him, the court must inform such witness that he will be obliged to answer such questions but that if he answers frankly and honestly, he will be discharged from liability to prosecution. If the witness does in fact answer the questions put to him frankly and honestly, the court must discharge him from prosecution. Lack of authority of the prosecutor This plea relates to the locus standi of the prosecutor to act. It will most probably occur with private prosecutions where a municipality must, for instance, brief a prosecutor to act. Lis pendens (common law plea) The lis or case pending in another court against the accused must be a criminal case. This plea is not recognised in the Code, but the general powers of postponement of the trial can be exercised on such a plea, which cannot have anything but a delatory effect. If the other trial is completed and a plea of autrefois acquit or convict does not then become effective, the fact that the other trial took place will be irrelevant at the trial where the plea of lis pendens has been raised. Pleas in the case of criminal defamation These pleas are the same as the defences in a civil case subject to the remarks already made. Plea as to an order of court on an unreasonable delay in a trial In terms of s342A, a court before which criminal proceedings are pending, must investigate any delay in the completion of proceedings which appears to the court to be unreasonable and which could cause substantial prejudice to the prosecution, the accused or his/her legal adviser, the state or a witness. If the court finds the delay to be unreasonable, the court may order, in the case where the accused has not yet pleaded, that the case be struck off the roll and the prosecution not to be resumed or instituted de novo without the written instruction of the director of public prosecutions. If the accused is charged again, he/she may raise a special plea that the trial was stayed by an order of court made in terms of s342A(3)(c). AFTER PLEADING, ACCUSED ENTITLED TO VERDICT (s 106(4)) Once an accused has pleaded, he is entitled to demand that he be either acquitted or found guilty, excepting where specially provided for in the Act or in any other law s106(4). This sub-section will apply only where the court as it was constituted at the time that the plea was entered, remains so constituted and retains its legal authority up to the time when it passes sentence. The following instances are examples of when an accused will not be entitled to acquittal or conviction: Where the magistrate has recused himself from the trial. Where separation of trials takes place (s157). Where a trial is referred to a regional court, or is converted into a preparatory examination ss116 and 123.

 Where the magistrate dies, resigns, or is dismissed where a magistrate resided the case is to be resumed before another magistrate de novo without the need for an order to this effect from another court. Where it appears that the accused is before the wrong court. Where the director of public prosecutions makes an application in terms of s13 that a private prosecution be stopped and that the accused be prosecuted de novo by the State. Where a youth is referred to the Childrens Court (s254) or where an enquiry is held in terms of the Prevention and Treatment of Drug Dependency Act 20 of 1992 (s255). If a court finds that an accused, because of a mental disorder, is not capable of understanding the proceedings so as to make a proper defence, the court must direct that the accused be detained in a mental hospital or a prison pending the signification of the decision of the Minister, and if the court so directs after the accused has pleaded to the charge, he will not be entitled to be acquitted or convicted. If the court makes such a finding after the accused has been convicted but before sentence is passed, the court must set aside the conviction (s77(6)). After recovery, the accused may again be charged and tried. Where an accused has pleaded in terms of s119. Where the prosecution has been stopped by the prosecutor without the required consent of the director of public prosecutions or any person authorised thereto by the director of public prosecutions in terms of s6(b). The question of whether an accused who is acquitted in terms of s106(4) may be retried must be answered on the basis of the principles relating to autrefois acquit.