Criminal Law and Fair Trial Principles

The Fair Trial Principle

• Embraces the concept of substantive fairness, which cannot be equated with what might have passed muster in criminal courts prior to the Constitution coming into effect.
• Enshrines the right to be presumed innocent, the right to adduce and challenge evidence, and the right to not testify during proceedings (S35(3) of the Constitution).
• Ensures that no one may be convicted without a fair trial, as held in Kruse 2018, where the court failed to ensure the accused could follow the proceedings and communicate effectively.

The Principle of Legality

• Requires the prosecution to prove legal guilt in a properly conducted trial, where all relevant common-law, statutory, and constitutional due process rules were followed.
• Legal guilt falls short of the standard set by the principle of legality, making it absent where conviction rests on facts obtained in breach of the accused's privilege against self-crimination or right to consult confidentially with their legal representatives.

The Principle of Impartiality

• Requires a presiding judicial officer to play the role of a passive umpire in court proceedings.
• Prohibits the cross-examination of an accused person by a presiding judicial officer, as it can lead to the administration of justice falling into disrepute and a perception of bias.
• Allows for an application for recusal of a presiding officer if they are perceived to be biased.

The Principle of Equality of Arms

• Ensures that truth-finding is enhanced if parties present their respective cases, with equal opportunities to do so.
• Prohibits denying a party the right to cross-examine the opponent's witness.

Judicial Control

• Requires a presiding judicial officer to control and manage trial proceedings within the bounds of the law for criminal procedure.
• Empowers the officer to issue orders that all parties must obey, such as issuing a warrant of arrest for offences committed in court or directing the removal of an accused person whose behavior affects the continuance of the proceedings.

The Fair Trial Principle

• The Constitution (S35) ensures substantive fairness in criminal trials, which cannot be equated with pre-Constitutional standards.
• The right to a fair trial includes the right to be presumed innocent, adduce and challenge evidence, and not testify during proceedings.
• No one may be convicted without a fair trial, as seen in Kruse (2018), where the court failed to accommodate an accused person with hearing and speech impairments.

The Principle of Legality

• The prosecution must prove legal guilt in a properly conducted trial, following common-law, statutory, and constitutional due process rules.
• Legal guilt is absent if a conviction rests on facts obtained in breach of the accused's privilege against self-crimination or right to confidential consultations.

The Principle of Impartiality

• A presiding judicial officer plays a passive role, ensuring the administration of justice, and maintaining impartiality.
• The judicial officer may not cross-examine an accused person, as it may lead to a perception of bias.
• A party may apply for the recusal of a presiding officer if they feel biased.
• The presiding officer may subpoena or recall a witness if their evidence is essential to the case.

The Principle of Equality of Arms

• The SA criminal trial system is accusatorial in nature, ensuring truth-finding through equal opportunities for parties to present their cases.
• Parties must have equal opportunities to cross-examine witnesses.

The Principle of Judicial Control

• A presiding judicial officer must control and manage trial proceedings within the bounds of the law.
• The officer may issue orders to ensure the trial's continuance, including issuing a warrant of arrest for contempt of court.
• The officer ensures that the accused's behaviour does not disrupt the proceedings.