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Essay discusses about The Process of the Trial subject to the management of the judicial officer presiding

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The Process of the Trial

Introduction

The CPA lays down certain rules of procedure which should be observed, but the trial is otherwise subject to the management of the judicial officer presiding over it.  All orders given in the judicial discretion of the judicial officer must be obeyed by the parties, court staff and public, who are liable to be committed or fined for contempt of court for willful disobedience.  As stated in Sussex Justices, it is of fundamental importance that justice must be done and be seen to be done.  One facet of this is that witnesses and accused persons should be treated courteously by the court, the defence and the prosecution.  The standards which a judicial officer should maintain in the questioning of witnesses and the accused have been summarized in Mabuza as follows: _ Court shouldn’t conduct its questioning in such a manner that its impartiality can be questioned or doubted. _ Court shouldn’t take part in the case to such an extent that its vision is clouded by the “dust of the arena” and it is then unable to adjudicate properly on the issues. _ Court shouldn’t intimidate or upset a witness or the accused so that his answers are weakened or his credibility shaken. _ Court should control the trial in such a way that its impartiality, its open mindedness, its fairness and reasonableness is manifest to all who have an interest in the trial, in particular the accused. A judicial officer can only properly fulfil his demanding and socially important duties if he guards against his own actions, is attentive to his own weaknesses, personal whims and opinions and continually restrains them. 6.2. The case for the prosecution _ Opening the State’s case

Section 150 of the CPA - Prosecutor may address court and adduce evidence (1) The prosecutor may at any trial, before any evidence is adduced, address the court for the purpose of explaining the charge and indicating, without comment, to the court what evidence he intends adducing in support of the charge.

This is called the opening statement and is heard after arraignment is complete.  It only applies if the accused pleaded not guilty and the prosecutor intends to lead evidence.  It is deemed unnecessary in simple cases, but can be very helpful to the court in complicated cases.  The prosecution is expected to give a summary of the essential features of the case for the State so that the court will be in a position to appreciate the significance of each item.  Any reference to inadmissible evidence or contentious matters, which may prejudice the case of the accused, should be avoided.

 

 Evidence for the State Language Section 35(3)(k) of the Constitution provides that every accused has the right to be tried in a language which he understands or to have the proceedings interpreted to him.  The accused must understand the language used by the witnesses.  If the accused doesn’t understand the language of the witness, an interpreter must be used.  If the accused leads the court to believe he understands the witness, he will have difficulty appealing on the ground that he did not understand the proceedings.  If the interpreter is not sworn in, it amounts to an irregularity which may render the trial abortive.   Evidence must be given viva voce Evidence must be given orally, in open court, in the presence of the accused, except insofar as specific provision to the contrary is made by law: (i) Section 212 Evidence of certain formal matters may be given on affidavit (eg pathology and fingerprint reports) subject to the right of the opposing party, either the accused or the State, to object against such evidence.  The prosecutor shall read out such document in court, unless the accused has a copy or dispenses with the reading thereof.  Statements made by witnesses at a preparatory examination may not be proved in this manner, even where the accused admits the facts in the record. (ii) Section 213 A written statement made by a witness will, in certain circumstances, be admissible as evidence to the same extent as oral evidence given by such person.  Such statement must be served on the opposing party, who may, at least 2 days before the commencement of the proceedings at which the statement is to be tendered object.  If the opposing party is the accused, the statement must be accompanied by a written notice stating that he has the right to object.  If no objection is raised, the statement may be admitted as evidence “upon the mere production thereof”.  The court may, however, mero motu or at the request of either the State or the accused still call the witness.  The accused himself cannot give a statement in terms of Section 213 instead of testifying. (iii) Civil Aviation Offences Act, 10 of 1972 This Act relates to ‘hi-jacking’ and other offences in connection with aviation.  A statement in writing made on oath outside the Republic by a person whose evidence is required and who cannot be found in the Republic, may be submitted as evidence.  Such statement must have been made in the presence of the accused and to a competent judicial officer or consular officer. Preparatory examination State may read out the accused’s evidence or statement made at a preparatory examination.  If the accused wants to give evidence, he must give evidence viva voce from the witness box, where he is subject to cross-examination.  Even where the accused gave no evidence at the trial, statements from the preparatory examination will form part of the record and must be considered by the court. General rules relating to witnesses (i) Prosecutor isn’t obliged to call all witnesses who testified at the preparatory examination. (ii) The prosecutor is also not obliged to call witnesses whom he believes to be untruthful, hostile to the prosecution or in league with the accused. (iii) When a state witness gives evidence at variance with a statement in the possession of the prosecutor must, it the variance is a material one, immediately make the statement available to the defence or, where the accused is unrepresented, disclose the discrepancy to the court. (iv) The prosecutor is free to call any witnesses, even if they did not give evidence at the preparatory examination or their names do not appear on the list which an attorneygeneral has to supply to an accused who is arraigned in a superior court.  Where such a witness is to be called, the accused should be given notice and a copy of the witness’s statement should be given to the defence.  If notice is not given, a postponement will probably be granted to the accused to prepare on such new evidence. (v) Once a State witness is testifying, the prosecutor may not interview the witness privately, at least not without first informing the court and explaining the reason. (vi) Prosecutor must present to court (accused is unrepresented) any information favourable to the accused which may come to his notice or to the accused if he represented.

 

Right to cross-examination The defence is entitled to cross-examine every state witness, including a co-accused who has elected to testify.  An unrepresented and unsophisticated accused must be assisted with his cross-examination.  All accused must be given sufficient opportunity to fully cross-examine each witness.  There must be no suspicion that the defence was hampered in its cross-examination.  Where the accused has more than 1 legal representative, only 1 may cross-examine.  Undefended accused are usually unaware of the proper way in which to conduct their defence and court should treat them with careful patience.  Court should assist a struggling undefended accused with his cross-examination The accused can ask for a witness to be recalled for further cross-examination and should only be refused by the court is it is clearly a delaying tactic or frivolously made.  Where an accused has already cross-examined the State witnesses and put his defence to them, he suffers no prejudice if the court refuses his request.  Where the defence proposes to submit another version of any fact or event testified to by a State witness, there normally rests a duty on the defence to put its version to the State witness whose evidence it will contradict. Even if the accused doesn’t cross-examine a witness, he can still dispute the truth of that evidence.  A decision not to cross-examine or put his version to a witness, is a dangerous one, because the failure implies an acceptance of the witness’s version, and should, thus, only be taken after careful consideration. Re-examination After a witness has been cross-examined, the State may then re-examine these witness on any matter arising from cross-examination.  The purpose is to clear up any misunderstanding which may have arisen during cross-examination.  The purpose is not to lead new evidence. This can only be done with the leave of the court. Close of State’s case After all the evidence for the State has been disposed of, the prosecutor must close the case.  The presiding officer can’t close the State’s case.  However, if the prosecutor’s application for a postponement is refused and he refused to presents further evidence or to close the State’s case, it is presumed that the State’s case is closed.  The judicial officer should continue with the proceedings as if the prosecutor has indeed closed the State’s case.

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