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2.1 With limited human and financial resources to provide legal aid for all who cannot afford legal representation, a large number of accused persons will remain undefended in court. Most undefended accused cannot participate effectively in an adversarial system because the rules and practices in terms of which participation takes place, require forensic skills. With the principle of equality before the law further entrenched in the Constitution, it is necessary to investigate whether the mode of procedure denies access to justice to this category of accused persons. The project committee thus resolved to include in its programme of work
an investigation into the viability of the establishment of a dual system of criminal procedure for defended and undefended accused persons and the incorporation of inquisitorial elements in the procedure to address the problems referred to above.
2.2 On investigating the development of a more inquisitorial mode of procedure for undefended accused persons, the following difficulties were encountered. First, in practice it could cause difficulties and confusion to develop two separate modes of procedure for defended and undefended accused. Second, arguments could also be raised that a bifurcated system may offend the principle of equality before the law. Third, the operation of the adversary system in defended cases may also result in miscarriages of justice from the point of view of the public and the effective functioning of the criminal justice system. This will occur where the prosecution does not perform its role as a competent adversary. Furthermore, the terms of reference of this Project allude to a more general problem pertaining to all adversarial proceedings. It was noted that –
the adversarial system is also criticized for causing inordinate delays in the criminal justice system and the Committee proposed the incorporation of inquisitorial elements in the South African criminal procedure as a possible solution to this problem.
2.3 It therefore became clear that examining the impact of the adversarial system on access to justice should not be confined to the trials of undefended accused, but that the issue should be discussed more broadly.
2.4 The main objectives of the criminal trial can be summarised as follows:
a) the court proceedings must perform a truth-finding function - the outcome of the trial must be that the guilty are convicted and the innocent acquitted;
b) the truth-finding process must be fair in respect of protecting both the rights of the accused and the interests of society;
c) the two preceding objectives must be accomplished in an efficient and effective manner.
2.5 In the words of Van Dijkhorst J:[1] "Our aim is to arrive at the truth expeditiously and fairly". These objectives ought to be realised through the application of the adversarial mode of procedure. However, the operation of this adversarial system impedes in some respects the achievement of these objectives. Where either the accused or the prosecution fails to perform their roles as competent adversaries, the proceedings, presided over by a passive judicial officer, are bound not to achieve the stated objectives. Even where the two adversaries are competent, their dominance of the proceedings may defeat one or more of the objectives.
2.6 It has been said that distinguishing between the two modes of procedure is "almost a ‘metaphysical question' which is now sterile and obsolete" because "nowhere is the model any longer pure; it is, for better or worse, contorted, attenuated, modified."[3] The basic differences between the two modes of criminal procedure are nevertheless useful reference tools for discussing developments in modes of criminal procedure.
2.7 The adversarial and inquisitorial modes of procedure have traditionally been linked to the Anglo-American common law system of procedure and the continental system respectively. Most procedures for the prosecution of crime reflect some of the elements of both models. While some fall squarely in one camp, others are hybrids. The two system do not differ on the goals of criminal procedure – that the truth be established in a way that is regarded as fair. This is exemplified in Europe, where both the British adversarial and the Continental inquisitorial systems have to comply with the fair trial requirements of the European Convention on Human Rights. The difference between the two systems is about their fundamental assumptions as to the best way of achieving these goals.[4]
2.8 Models are by definition not reflections of reality but provide a set of norms and principles that form a coherent structure serving specified purposes. One can, by outlining the key features of each model, provide an analytical tool with which to assess specific features of a concrete mode of procedure.
2.9 The main difference between the two systems is the role of the judicial officer in the proceedings.[5] The inquisitorial system is judge-centred while the adversary system is party-driven. The difference in the judicial role-description has profound implications for the way in which the objectives of the criminal justice are pursued.
2.10 In the inquisitorial system a judicial officer generally controls the pre-trial stage – the investigation and gathering of evidence. The dossier containing witnesses' statements and other materials is equally at the disposal of the prosecution and the defence. Evidence in the dossier is often given a higher value than the oral statement a witness may later make in court.[6] A judicial officer also decides whether there are grounds for instituting a prosecution. The judicial dominance continues during the open court proceedings. On the basis of the dossier, the judge determines which witnesses to call and conducts their questioning. As the judge is also the trier of fact, an open system of evidence is followed – all relevant evidence may be considered. Exclusionary rules are thus avoided. The process is likened to an inquest – the judicial officer attempts to establish the truth by his or her own efforts. The prosecutor and defence counsel play a relatively minor role of assisting the court; the production of evidence is thus not as a result of their efforts. Moreover, they cannot limit the court's field of inquiry through pleadings.[7] It is thus said that the court establishes the "material" truth in contradistinction with the "formal" or "party-centred" truth produced in the adversarial system (that which the parties have presented in a partisan manner). The fundamental assumption underlying the judge-dominated system is the belief that a State official will proceed in an objective and professional manner to establish the truth and, at the same time, protect the interests of the accused.
2.11 The adversarial system is party-driven. During the pre-trial stage each party conducts his or her own investigation, and in a partisan way builds a case. While there may be judicial control over whether a prosecution may be instituted, the trial process continues to be party-driven. The prosecutor must provide, independent of the accused, proof of any accusation made. The parties may determine the area of contest through pleadings and agreements over guilt. The key element of the trial is the emphasis on the spoken word - evidence is produced orally - and written statement of witnesses have little value. The role of the judicial officer is to remain essentially passive and to intervene only to ensure that each party plays according to the rules. The role of the judicial officer as umpire is the most pronounced where a jury is the trier of fact. The basic assumption of the adversarial system is a scepticism about trusting the State to produce the truth and protect the interests of the accused.[8] Those goals are best secured by the parties themselves. However, for the system to work, there ought to be equality of arms between the parties.
2.12 In this section it will be argued that the operation of the adversarial trial proceedings in South Africa may, in some respects, impede the realisation of the objectives of truth-finding, fair process and the expeditious completion of proceedings.
2.13 In terms of the logic of the adversary process, the objective of truth-finding is defeated if the parties are not equal. This occurs where an accused cannot adequately engage in the process because he or she is not represented (or not properly represented). The same may happen where the prosecution is poor or inexperienced and the defence able. More fundamentally, in a well-matched contest the truth may not emerge because of the partisan approach to evidence production.
2.14 With regard to undefended accused, an empirical study revealed that
it is evident that the lower criminal courts routinely produced unjust practices and outcomes. It was also clear that this was a result of the legal structure's failure to guard adequately against the undesirable consequences flowing from an undefended accused's ability to be a competent adversary in highly professionalised adversarial proceedings. ... The undefended accused failed to fulfil his role as an effective adversary to the prosecutor. He lacked the legal knowledge, skill, and experience to make considered legal decisions, to test State evidence, to challenge the prosecutor's actions and to present an adequate defence case.[9]
2.15 The undefended accused's inability as an adversary is the most acute in the adversarial truth-finding process.[10] Where "we are operating the adversary system without the adversaries",[11] the truth will simply not emerge. The consequence is inevitably that innocent accused may be convicted because they do not have the benefit of legal representation.
2.16 The same questions emerge in the case of poor defence counsel. The truth may not emerge and rights may not be protected[12] when defence counsel are incompetent or lack commitment.[13] S v Siebert[14] is an example of where defence counsel failed to inform the trial court adequately about the accused's circumstances for the purposes of sentencing. The defence counsel also appeared not to be fully au fait with the rules relating to the sentence of correctional supervision.
2.17 The converse may happen in defended trials. Where the prosecutor is inexperienced or incompetent, the contest model also collapses. The extent of this problem has recently received some judicial attention.[15] In S v Motsasi[16] the High Court conducted a far-reaching investigation into the undue delays in that trial. It found that one of the reasons for delays in general, in addition to a large number of vacancies in the prosecution service, was the presence of inexperienced and incompetent prosecuting counsel in the High Court.[17]
2.18 The failure of the prosecutor to be an adversary is amply illustrated in S v Manicum[18] where the prosecutor showed a total lack of interest in or commitment to the prosecution. Despite the fact that the accused contradicted his plea explanation in his evidence-in-chief, the prosecutor failed to put any questions. The explanation by the magistrate of the purpose of cross-examination and the consequences of a failure to challenge the accused's exculpatory evidence was to no avail. On appeal the judge commented as follows on the conduct of the prosecutor:
When I said it was alarming I was not being extravagant with language. There were the two contradictory versions and to think that a prosecutor would in these circumstances have no questions, is incredible. It demonstrates a total lack of competence on the part of the prosecutor and a deplorable attitude of the authorities to put a case in the hands of a prosecutor who just did not care, did not want to care and who, even it she had cared, was not able to contribute a single morsel of cross-examination to assist the magistrate to unravel the issue.[19]
2.19 The court of appeal did not fault the magistrate for not subjecting the accused to an examination, but placed the acquittal of the possibly guilty person firmly at the door of poor prosecution. Such a state of affairs, the court concluded, will undoubtedly have the following consequences:
But if the prosecuting authorities wish to let inexperienced prosecutors loose on the public they must be prepared to pay the price of seeing possibly guilty persons being acquitted, a price which, I may say, at this time in our history, is one which society cannot afford to pay. Not only does it favour the criminal to an unreasonable extent, but it also frustrates the efforts of the over-strained police force and tends to lower their morale. Also, it understandably causes the law-abiding majority to lose confidence in the system of criminal justice. Furthermore, it is a waste of the court's time and competence to allow prosecutions to fall into the hands of incompetent, inexperienced prosecutors. At a time when the rule of law cries out to be supported, this state of affairs is to be deplored.[20]
2.20 Even where equality of arms between the prosecution and the defence is more manifest, the operation of the adversarial system may result in the distortion of the truth.[21] This argument has been made most forcefully in respect of sexual offences.[22] The ability of the skilled defence lawyer to confuse honest witnesses and distort the truth is well established, and in relation to the cross-examination of child witnesses, the primary tool of the adversarial system has been curtailed by means of legislation.[23]
2.21 Where an accused is acquitted when he or she is guilty of the crime charged and should rightly have been convicted, the trial is seen and the entire criminal process perceived as unfair. The public perceives the system as favouring the criminal at the expense of society. This could have serious implications for the Rechtstaat when the Bill of Rights is seen to be the criminal's licence to crime.
2.22 Distinct from the goal of truth-finding, and at times in conflict with it, an accused's right to a fair trial is enshrined in the Bill of Rights, affording a considerable level of protection. However, as far as undefended accused are concerned, they are usually not aware of their rights and, if informed about them, may not be able to understand or exercise them effectively.
2.23 A similar argument can be made in regard to poorly defended accused. Speaking from a Canadian perspective, Young argues that the defining characteristic of adversarial justice - that control of the process should be left in the hands of the litigants -
can undercut the foundation for the implementation of constitutional rights because so much will depend upon the good faith exercise of discretion of Crown counsel and the competence of defence counsel.[24]
2.24 He argues that the jurisprudence under the Canadian Charter of Rights and Freedoms has consistently placed the burden of assertion and proof upon the accused and his or her counsel. This assumption runs the risk of leaving the protection of the Charter in the hands of lawyers with varying degrees of competence, commitment and resources.[25] He thus concludes that
the excessive reliance upon competent defence counsel to uncover and present Charter claims may not be a simple affirmation of the basic values of our cherished adversarial system, but may actually be a major shortcoming of the Charter.[26]
2.25 Young thus argues that the only way of ensuring "institutional respect for constitutional rights is to ensure that all the players (e.g., police, Crown, defence and judge) share the burden of being vigilant in preventing constitutional violations."[27]
2.26 In the adversarial trial the conduct of the trial is in the hands of the litigants, and this may result in prolonged trials. The prosecution may delay the process in marshalling sufficient evidence while the defence may employ delaying tactics to avoid the prosecution taking place.[28] Delays in seeing that justice is done may undercut the very objectives of the trial, ie of establishing the truth and implementing penal policy effectively and expeditiously. Increasingly the answer has been sought by granting the presiding judicial officer powers of intervention in bringing the proceedings to a satisfactory conclusion.
[1] Van Dijkhorst 1998, 138.
[2] See generally Damaska 1997; McEwan 1998 ch 1; Jorg, Field & Brants 1995; Osner, Quinn & Crown 1992; Jackson & Doran 1995 ch 3; Hatchard, Huber & Vogler 1996.
[3] Tulkens 1995, 8.
[4] Jorg, Field & Brants 1995, 42.
[5] Albrecht 1996, 90.
[6] Jorg, Field & Brants 1995, 47.
[7] McEwan 1998, 4.
[8] Jorg, Field & Brants 1995, 45; McEwan 1998, 2.
[9] Steytler 1987, 503-4.
[10] See also McEwan 1998, 15.
[11] Telford George, former Chief Justice of Tanzania, quoted in Twaib 1998, 57.
[12] See para 4.2 below.
[13] See S v Siebert 1998 1 SACR 554 (A).
[14] 1998 1 SACR 554 (A) 559b.
[15] In S v Van der Berg 1995 4 BCLR 479 (Nm) O'Linn J said the following about Namibia: "In a developing country like Namibia, the prosecution suffers from all the constraints caused by lack of financial means, experience and proper qualifications". See also Van Dijkhorst 1998, 136.
[16] 1998 2 SACR 35 (W).
[17] At 68.
[18] 1998 2 SACR 400 (N).
[19] At 403h-i.
[20] At 406a-c.
[21] McEwan 1998, 14-15.
[22] McEwan 1998, 14.
[23] S 170A Criminal Procedure Act.
[24] Young 1997, 365.
[25] Young 1997, 367.
[26] Young 1997, 406.
[27] Young 1997, 366.
[28] See Van Dijkhorst 1998, 237.
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