Securing Accused Attendance at Trial 2024 PDF

Securing the attendance of the accused at the trial 2024 1  Introduction Methods of securing the accused’s (above age of 18yrs) attendance in court (s38 of the CPA) o Arrest; summons; written notice and indictment o Extradition; warned to appear...

Securing the attendance of the accused at the trial 2024 1  Introduction Methods of securing the accused’s (above age of 18yrs) attendance in court (s38 of the CPA) o Arrest; summons; written notice and indictment o Extradition; warned to appear 2  Summons – issuing (S54 of the CPA) o Ordinarily used in a summary trial in a lower court o Accused not in custody and no warrant for his/her arrest. o Where there is no reason to suppose that the accused will abscond, attempt to hamper with the police investigation, or attempt to influence witnesses it is preferable to secure the attendance of such accused with a summons and not arrest. o Accused can still be arrested after the a summons has been served on him/her. This will happen where it is clear that the accused will attempt to defeat the ends of justice o Prosecutor draws up charge and submits it with accused’s name, residential address and occupation to the clerk of the court. o Clerk: (a) Prepares the summons containing the charge and information received from the prosecutor (b) Summons specifies the place, date and time of appearance (c) delivers summons to person empowered to serve the summons (court messenger) (d) Summons is served by means of delivery at the accused’s residence, place of employment or place of business 3  Serving of summons Must be delivered to person named in the summons If the accused cannot be found? Summons is delivered to the residence of the accused or his/her place of employment to a person older than 16 years of age. If accused fails to appear after summons had been served, a return indicating that summons had been served may be handed in as prima facie proof of such service. Summons must be served at least 14 days (excluding Sundays and public holidays) before commencement of trial Summons is enforceable throughout the Republic and may be served anywhere in the Republic Summons transmitted by telegraph and service of a telegraphic copy has the same effect as an original summos. 4  Failure of accused to appear on summons Guilty of an offence and liable to punishment If the court is satisfied that from the return of service that summons had been properly served and X failed to attend or remain in attendance, the court may issue a warrant of arrest. If X fails to show that his absence was not due to any fault on his part, he may be convicted and a fine not exceeding R300 or imprisonment not exceeding 3 months may be imposed. (contempt of court) 5  Failure of accused to appear on summons If X failed to attend his trial when a summons was served and a warrant of arrest has been issued, a police official may not arrest X, if it appears that X will attend his trial or X has valid reasons for not appearing on the summons. X must then be released on warning in respect of the offence of failing to answer the summons. NB!! Note the distinction between section 55(2)(a) and 55(2)(b) Section 55(2)(a) the accused may be released on warning (discretion) Section 55(2)(b) the accused must be released on warning (no discretion) 6  Failure to appear for trial where the accused could pay an admission of guilt fine S55(2A) of the CPA: A court must endorse the warrant of arrest to the effect that the accused may admit his guilt iro the offence in question and pay the fine stipulated in the summons without appearing in court. The court may make a further endorsement on the warrant of arrest that the accused may upon arrest, admit his guilt in respect of his failure to appear in court in answer to the summons and pay the amount stipulated on the warrant. 7  Minors CJA: A child may be summoned to a preliminary hearing for committed offence Summons to be handed to the accused minor in the presence of a parent or guardian Parent/guardian must acknowledge receipt of the summons by signing or making a mark Summons may only be served on a minor the absence of a parent/guardian in exceptional circumstances If parent/guardian is not available and exceptional circumstances exists, a copy of the summons must be served on the parent/guardian asap and such parent/guardian must acknowledge receipt Police officer, upon service must explain the nature of the allegation as, the child’s rights and the procedure to be followed The probation officer involved in the case must be notified of the service of the summons within 24 hours of such service having taken place. 8  Written notice to appear If a peace officer believes on reasonable grounds that magistrates court will not upon convicting an accused impose a fine not exceeding R5000, he may hand a written notice to the accused. S56(1) The written notice shall contain: Name, residential address and occupation of the accused It shall call upon the accused to appear in court at a date, place and time to answer to the charge. It shall contain an endorsement in terms of s57 that the accused may admit his guilt iro the offence and that he may pay the stipulated fine without appearing in court. It must also contain a certificate that the peace officer has handed the original of the written notice to the accused and that he has explained the import thereof. 9  Written notice to appear S56(2) of the CPA: If X is in custody when the written notice is handed to him, X shall be released. Differences between summons and written notice to appear? Written notice- prepared, issued and handed directly to the accused by the peace officer Summons – prepared by the prosecutor, issued by the clerk of the court and served by a messenger or a police officer. Written notice always offers the accused the option of paying a set admission of guilt fine Summons need not provide this option Purpose of the procedure is to expedite the course of justice in minor offences Minors : CJA makes provision for a Notice to appear, but such notice may not make provision for an admission of guilt or payment of a fine Same requirements apply as with a summons or Notice to Appear ito the CPA 10  Indictment In superior courts the charge is contained in an indictment. (drafted by DPP) Includes: charge against X; X’s name; address (if known/applicable); age nationality; sex Indictment must be accompanied by a summary of essential facts and addresses and names of state witnesses. Should be served on X at least 10 days (excluding Sundays and holidays) before commencement of proceedings. Unless X agrees to a shorter period. Served in the same manner as a Summons. Return of service prima facie proof Failure to appear = same consequences as ito s55(1) and (2) of the CPA 11  Extradition Used to bring a person from another country to stand trial for an offence committed in SA. Governed by Extradition Act 67 of 1962. SA has signed extradition agreements with many countries. Extradition agreements between the republic and another state must always be interpreted in line with the spirit of the Constitution. SA is also a state party to the European Convention on Extradition which allows SA to apply for the extradition of citizens of several European countries who commit offences in SA. 12  ARREST The CPA requires that an arrest should occur in terms of a warrant except where substantial circumstances exist. Most drastic method of securing attendance at trial. Should be confined to serious cases where X faces relatively serious charges – National Commissioner of Police and Another v Coetzee 2013 (1) SACR 358(SCA) If however, a lawful arrest is made ito s40(1)(a) of the CPA and iro a less serious offence the arrest or detention does not become unlawful simply because a summons or notice to appear would have been equally effective 13  The requirements for a lawful arrest Four pillars of lawful arrest 1. Arrest must be authorised – must be based on a statutory provision whether with or without a warrant 2. Arrester must exercise physical control over the arrestee. 3. The arrester must inform the arrestee of the reason for the arrest. 4. The arrestee must be taken to the appropriate authorities as soon as possible. NB!! When a minor is arrested, the minor must immediately be informed of the allegation and his/her rights, the procedure to be followed and the parents/guardian must be notified. 14  Arrest with a warrant Warrant directs that person described shall be arrested iro offence set out in the warrant and that he be brought before a lower court. How is a warrant of arrest issued? o A magistrate or justice may issue a warrant upon written application of DPP, prosecutor or a commissioned officer of police. o Application must allege that such offence was committed with in the jurisdiction of the court or the accused is on reasonable grounds suspected to be in the court’s jurisdiction o From information taken upon oath there is a reasonable suspicion that the person iro whom the warrant is applied for has committed the alleged offence. 15  Arrest with a warrant A warrant of arrest may be issued on any day Remains in force until it is cancelled by the person who issued it or if such person is not available someone with equal authority or until it is executed. A warrant issued in one district is valid in l other districts throughout the republic A warrant of arrest may be executed by a ‘peace officer’ – See s1 of CPA. A person authorised to arrest ito a warrant and who reasonable believes he is lawfully arresting such person shall be exempt from liability iro wrongful arrest. A warrant issued iro of a child must direct that the child be brought be to appear at a preliminary enquiry. 16  Arrest with a warrant If a warrant of arrest is bad in law due to a defect in the substance or form thereof, and the arrester has no knowledge of the defect, the arrester is exempt from criminal liability. S331 of the CPA Minister of Safety and Security v Kruger 2011 (1) SACR 529(SCA)- An arrester who arrests without legal justification commits a delict and is liable for the damage caused. This section does not render the act lawful. The employer will be vicariously liable for its consequences. 17  Arrest without a warrant Purpose is to bring the accused before the court S40 of the CPA: a peace officer may without warrant arrest any person : (a) Who commits or attempts to commit any offence in his presence; (b) Whom he reasonably suspects of having committed an offence referred to in Schedule 1, other than the offence of escaping from lawful custody. (a) Schedule 1 – serious offences such as murder or rape (c) Who has escaped or attempts to escape from lawful custody (d) Who has in his possession any implement of house-breaking or car breaking as contemplated in s82 of the General Law Third Amendment Act 1993 and who is unable to account for such possession to the satisfaction of the peace officer (e) Who is found in possession of anything which the peace officer reasonably suspects to be stolen property (f) Who is found at any place at night in circumstances which afford reasonable grounds that such person has committed or is about to commit an offence (g) Who is reasonably suspected of being or have been in unlawful possession of stock 18  Arrest without a warrant Generally a person is not obliged to furnish his/her name to a police officer There are statutory provisions other than the CPA which permits arrest without a warrant S41(1) of the CPA: provides 3 instances in which a person may be compelled to provide his/her name and address, namely a person : 1. whom the police officer has the power to arrest 2. who is reasonably suspected of having committed or having attempted to commit an offence 3. who, in the opinion of the peace officer, may be able to give evidence in regard to the commission or suspected commission of any offence If a police officer suspects that the person supplied incorrect details, like a false name, such person may be arrested and detained for a period not exceeding 12 hours until the name and address has been verified Failure to provide his name or/and address may result in a conviction and fine of not more than R300 or 3 months imprisonment 19  Arrest by a private person without warrant May arrest any person : 1. Who commits in his presence or whom he reasonably suspects committed a schedule 1 offence 2. Whom he reasonably believes committed an offence and to be escaping and to be freshly pursued by a person whom the private person reasonably believes to have authority to arrest 3. Whom he is by any law authorised to be arrest without a warrant iro an offence specified by that law 4. Whom he sees engaged in an affray 20  Arrest by members of a Neighbourhood Watch No general duty of NW to effect arrest on another person NW who stands in position of owner or lawful occupant, as the right to arrest any person who commits an offence in respect of such property NW may use force to arrest NW must inform the suspect of the reason for the arrest Where the arrestee escapes before the NW could explain the reason for the arrest, he/she commits the offence of escaping lawful custody NW has the power to trespass o property belonging to another without permission to go after an escaping suspect NW may break/enter and search any premises for purposes of arresting a suspect (must audibly announce the reason for his/her presence before entering) NW must asap hand the arrested person to the police for detention 21  After arrest X must be taken to police station or a place specified in the warrant. X must as soon as reasonably possible be informed of his right to apply for bail If X is not released on police or prosecutorial bail he must appear before the court as soon as reasonably possible, but not later than 48 hours after arrest. If the 48 hours expires outside court hours or on a day that is not a court day, X must be brought before the court not later than the end of the first court day. 22  48 Hour rule Ordinarily, the accused should appear in court on a week day. The 48 hours period expires as follows: Where the suspect is arrested outside the regulated court hours, he/she must appear either on the next court day or 48 hours after the initial arrest Where the suspect is arrested on a day which falls on a weekend, he/she must appear on the next weekday or 48 hours after the initial arrest In both instances, the 48 hour period is deemed to expire at 16h00 If the accused is in detention and in transit to a particular jurisdictional area, the 48 hour period must be deemed to expire at the end of the next court day in the jurisdiction of the forwarding court 23  After arrest At the first appearance in court, X: o Shall be informed of the reasons for his further detention, or o Be charged and apply for bail o Be released o Shall be entitled to adjudication of the cause of his arrest if he had not been arrested iro an offence. 24  Arrest of child suspects Child under the age of 12 may not be arrested, the child must immediately be handed over to the parents or guardians or suitable youth care centre Child who is 12 years and older, has the right not to be detained, except as a measure of last resort and for the shortest appropriate period od time If the child is detained, the child’s best interests must be considered. CJA- a child 12 years and older may not be arrested for a schedule 1 offence, unless there are compelling reasons justifying the arrest Compelling reasons include the reason to believe that the child does not have a fixed address, will continue to commit offences, unless he/she is arrested or poses a danger to any person(including him or herself), where the offence is in the process of being committed If the child is arrested, the child must be released asap thereafter unless the parents cannot be located or there is a substantial risk that the child may be a danger to any person, including him/herself. 25  Duty to arrest General Rule: private person has no duty to arrest. Male persons 16-60 years if called upon by a police official to assist in arresting a person must do so. Failure to assist is an offence punishable by a fine or imprisonment for a period not exceeding 3 months 26  Use of force during arrest S49(2) of the CPA permits the use of force during an arrest if the arrestor attempts to arrest the suspect and the suspect resists, or flees (or both) when it is clear that an attempt is being made. Force may be used as is reasonably necessary and proportional in the circumstances to overcome resistance or prevent X from fleeing. Deadly force should be regarded as referring to that degree of force which has the potential of killing the suspect, or force which can reasonably expected either to kill or to seriously injure the person to be arrested. o The court in Ex Parte: Minister of Safety and Security: Re Walters 2002 (4) SA 613 (CC) set out the law with regard to use of force: o Purpose of the arrest is to bring before the court the persons suspecting of having committed a crime o Arrest is not the only means of achieving this, not always the best o Arrest may never be used to punish a suspect o Where force is necessary, only the least degree of force reasonably necessary may be used o In deciding what degree of force is reasonable and necessary, circumstances such as the threat of violence the suspect may pose to the arrestor and the nature of circumstances of the offence must be considered- force should be proportional o Shooting a suspect to carry out an arrest permitted in very limited circumstances o Generally not permitted unless the suspect poses a threat to the arrestor or is suspected of committing a serious offence involving the infliction of serious bodily harm o These limitations does not detract from an arrester attempting to carry out an arrest to kill a suspect in self defence or defence of any other person 27  Requirements for the use of force The person to be arrested must have committed an offence. If the arrester is acting on suspicion, it must be a reasonable suspicion The arrester must be lawfully entitled to arrest the suspect The arrester must attempt to arrest the suspect The arrester must have the intention to arrest the suspect and not punish the suspect The suspect must attempt to escape by fleeing or offering resistance The suspect must be aware that an attempt is being made to arrest him/her and must in some way be informed of the intention and continue to try to flee or resist the attempted arrest There must be no other reasonable means available to effect the arrest The force used must be directed at the offender The degree of force used for the arrest must be reasonably necessary and proportional in all circumstances 28