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• Judicial Participation And Trial Management
• Part B
• Greater Judicial Participation In The Process Of The Trial
• Part C
• Case And Trial Management
• Recommendation

CHAPTER 7

JUDICIAL PARTICIPATION AND TRIAL MANAGEMENT

PART B

GREATER JUDICIAL PARTICIPATION IN THE PROCESS OF THE TRIAL

7.1 In the research done on behalf of the Commission by Professor Steytler^[306] he raised the question whether the powers of judicial officers to question and call witnesses should be expanded to ensure better truth finding. He concluded that the truth-finding role of judicial conduct should be emphasised to enable the court to compensate for inadequate effort and skill on the part of the litigants.

7.2 As pointed out by Professor Steytler, the accepted approach to the power and duty of the court to question and call witnesses for the ‘just decision in the case’ is to be found in the dictum of Curlewis JA in R v Hepworth^[307]:

By the words ‘just decision in the case’ I understand the legislature to mean to do justice as between the prosecution and the accused. A criminal trial in not a game where one side is entitled to claim the benefit of any omission or mistake made by the other side, and the Judge’s position in a criminal trial is not merely that of an umpire to see that the rules of the game are applied to both sides. A Judge is an administrator of justice, not merely a figure head, he has not only to direct and control the proceedings according to recognized rules of procedure but to see that justice is done ... The intention of section 247 [ s 186 CPA 1977] seem to me to give a Judge in a criminal trial a wide discretion in the conduct of proceedings, so that an innocent person be not convicted or a guilty person get free by reason, inter alia, of some omission, mistake of technicality.’^[308]

7.3 There have been many decisions dealing with what that means in practice. A court may exercise its powers where to do so would benefit the defence^[309] and judicial intervention to the prejudice of the defence is not per se irregular,^[310] provided the judicial officer does not assume the role of the prosecution.^[311] Whilst a judicial officer may not call witnesses from the outset in order to prove the allegations contained in the charge sheet ^[312] he or she may call evidence which has been omitted by mistake or is necessary in order to rectify some technical deficiency.^[313] On the other hand it would be an irregularity for the court to tell the prosecution how to conduct its case.^[314] Furthermore, a judicial officer must not by his or her conduct create the impression that he or she is biased in favour of the prosecution.^[315]

7.4 Quite evidently, achieving the appropriate balance between ensuring there has been full a enquiry and not causing prejudice (or apparent prejudice) to the parties is a most delicate process. The real question is whether legislative intervention can assist in achieving that balance.

7.5 In the Commission’s view it is most doubtful that legislative intervention can assist in achieving the appropriate balance. None of the judicial pronouncements upon what is required in particular cases is such that they ought to be overridden by legislation, and the Act provides judicial officers with all the powers that might be necessary in order to intervene appropriately. The difficulty lies with the application of those powers in practice, and ultimately that will depend upon the qualities and skills of the particular judicial officer.

7.6 Professor Steytler’s views that legislative intervention is required appear to be based largely on the approach that was taken by the court in S v Matthys^[316], in which it was found that the manner in which a regional magistrate exercised his right to call and examine a witness was grossly irregular. It is clear that the court’s objection in that case was not to the calling of the witness, or to judicial questioning, but to the manner in which this was done.

7.7 In the Commission’s view the provisions of sections 167 and 186 of the Act provide all the powers that a judicial officer requires in order to intervene appropriately in the context of an adversarial process, and no attempt should be made to direct the judicial officer by legislative measures as to how he or she should exercise those powers in particular cases. There is, however, one respect in which the judicial officer could be placed in a more advantageous position to exercise those powers.

7.8 It is not practically feasible for the judicial officer to intervene in the conduct of a trial if he or she has no, or little, knowledge of the ambit of the prosecution or defence case. Clearly there is no basis upon which the judicial officer might enquire into the ambit of the defence case in advance or during the course of the trial, except to the extent that it has emerged during the course of the trial. However, the position is a little different in relation to the prosecution case.

7.9 Since the decision in Shabalala v Attorney-General of Transvaal,^[317] the prosecution has been required to disclose to the defence, in advance of the trial, all material information in the docket.^[318] Accordingly, both the prosecution and the defence are fully aware of the nature of the evidence that will be advanced by the prosecution in advance of the commencement of the trial.

7.10 There is no good reason why that material should not equally be available to the judicial officer. If it is made available to the judicial officer, it enables him or her to make an informed decision as to what evidence is available to the prosecution; the extent to which witnesses materially depart from previous statements; and the extent to which the power to call witnesses might usefully be exercised. There can be no prejudice to either the prosecution or the defence if the judicial officer is in possession of such information.

7.11 There are no good grounds, however, for the information encompassed by that material to become admissible in evidence merely because it has been placed before the judicial officer. To the extent to which there are sound reasons for requiring facts to be proved in accordance with the rules of evidence, none of those reasons is detracted from merely because the contents of the document are made available to the judicial officer. There might, of course, be an objection that the judicial officer may be influenced by information that is not capable of being proved. While that objection has some merit, it must be borne in mind that in our system of criminal trial, in which the judicial officer is both judge and jury, it is common for information to come to the knowledge of the fact finder, from which he or she must disabuse the mind in reaching a conclusion. The safeguard to ensure that this is done lies in the requirement that reasons be given for factual conclusions. To have access to the information places the judicial officer in no different position to that in which he or she would be once the prosecution has opened its case fully, as it is permitted to do by section187 of the Act.

RECOMMENDATION - OPTION 1

7.12 The Commission recommends that the Criminal Procedure Act be amended to allow for the material to which the defence has access from the prosecution docket to be placed before the judicial officer to enable him or her properly to exercise the powers provided for in section 186, but that such information shall not constitute evidence unless and until it becomes admissible in the normal course. The Commission submits the following amendments for comment:

(a) The following Chapter is hereby inserted in the principal Act after section 104:

CHAPTER 14A

PROSECUTION AND DEFENCE DISCLOSURE

Disclosure of material contained in police docket

104A. (1) An accused may at any stage request the prosecution to disclose the following material in possession of the prosecution or contained in the police docket:

(a) Documents which tend to exculpate the accused;

(b) statements of witnesses, whether or not the prosecution intends to call such witnesses;

(c) any other material that is reasonably required to enable the accused to prepare his or her defence.

(2) Copies of the documentation or material requested under subsection (1), shall be delivered to the accused or, where impracticable, the accused shall be allowed to inspect such documentation or material at the court: Provided that the accused may be denied access to the requested documentation and material or part thereof where–

(a) it is not reasonably required in order to enable the accused to exercise his or her right to a fair trial;

(b) disclosure could lead to the disclosure of the identity of an informer or state secrets; or

(c) there is a reasonable risk that such disclosure may lead to the intimidation of witnesses or otherwise prejudice the proper ends of justice.

(b) ALTERNATIVE PROPOSAL FOR PARAGRAPH (c):

(c) there is reason to believe that such disclosure may prejudice the course of justice, whether by interference with evidence or witnesses, or otherwise..

Disclosure of documentation to court

104B (1) The court may at any stage of the proceedings, for the purpose of assessing how to conduct the proceedings, require that the prosecution make available to it copies or permit inspection of the documentation or material which the accused would be entitled to receive in terms of section 104A: Provided that a statement by an accused in those proceedings shall not be made available to the court except where it has been admitted or proved ; Provided further that unless the accused has already had access to the said documentation or material, the accused shall simultaneously receive the same copies or access .

(2) The documentation or material received in terms of subsection(1) shall not form part of the record and shall have no evidential value unless it has been properly admitted or proved.

7.13 Having regard to the discussion on defence disclosure and the arguments put forward by the National Director of Public Prosecutions^[319] and the proposals on defence disclosure contained in option 2, chapter 6, an alternative proposal outlined hereafter, is also submitted with regard to the presiding officer’s access to information relating to the case:

RECOMMENDATION - OPTION 2

Insertion of a new Chapter14A in Act 51 of 1977.

CHAPTER 14A

DISCLOSURE

Application of this Chapter and general interpretation

104A. (1) This Chapter shall apply where–

(a) the accused is charged with a Schedule 1 offence–

(i) at a summary trial contemplated in section 75;

(ii) in an indictment contemplated in section144;

(b) the accused pleads not guilty to the charge; and

(c) the accused is represented by a legal adviser.

(2) Where more than one accused is charged, the provisions of this Chapter shall apply separately in relation to each of the accused.

(3) References to material are to material of all kind, and includes in particular references to–

(a) any information; and

(b) any object.

(4) References to recording information are to putting it in a durable or retrievable form.

Disclosure by prosecutor

104B. (1) (a) An accused may at any stage before any evidence of any particular charge has been led, in writing request the prosecution to disclose any prosecution material and the court before which a charge is pending may at any time before any evidence in respect of any charge has been led, direct the prosecutor to-

(i) disclose to the accused any prosecution material which has not previously been disclosed to the accused which, in the prosecutor’s opinion, might be detrimental to the case for the prosecution against the accused ; or

(ii) give to the accused a written statement that there is no material of a description mentioned in paragraph(a).

(b) The court may, if necessary, adjourn the proceedings for a period determined by the court in order that the prosecutor discloses such material.

(c) The court may, on application by the prosecutor and if good reasons exist for doing so, extend the period contemplated in paragraph(b).

(2) For the purposes of this section prosecution material is material which–

(a) is in the prosecutor’s possession, and came into his or her possession in connection with the case against the accused; or

• is not in the prosecutor’s possession, but which he or she has inspected in connection with the case against the accused.

(3) (a) Where material consists of information which has been recorded in any form, the prosecutor shall disclose such information–

(i) by securing that a copy is made of it and that the copy is given to the accused;

(ii) if in his or her opinion it is not practicable or desirable, by allowing the accused to inspect such material at a reasonable time and at a reasonable place or by taking steps to secure that the accused is allowed to do so.

• A copy of the material may be in such form as the prosecutor thinks fit and may not be in the same form as that in which the information has already been recorded.

(4) (a) Where material consists of information which has not been recorded, the prosecutor shall disclose such information by securing that it is recorded in such form as he or she thinks fit and–

(i) by securing that a copy is made of it and that the copy is given to the accused;

(ii) if in his or her opinion it is not practicable or desirable, by allowing the accused to inspect such material at a reasonable time and at a reasonable place or by taking steps to secure that the accused is allowed to do so.

• A copy of the material may be in such form as the prosecutor thinks fit and may not be in the same form as that in which the information has already been recorded.

• Where material does not consist of information, the prosecutor shall disclose such material by allowing the accused to inspect it at a reasonable time and at a reasonable place or by taking steps to secure that the accused is allowed to do so.

(6) The prosecutor may refuse to disclose material under this section where the court, on application by the prosecutor, orders that–

(a) the material is not reasonably necessary in order to enable the accused to exercise his or her right to a fair trial;

(b) disclosure of the material would lead to the disclosure of the identity of an informer or state secrets; or

(c) there is a reasonable risk that such disclosure may lead to the intimidation of witnesses or otherwise prejudice the proper ends of justice.

(7) Material shall not be disclosed under this section to the extent that–

(a) it has been intercepted in obedience to a direction issued under section 3 of the Interception and Monitoring Act, 1992(Act No.127 of 1992); or

(b) it indicates that such a direction has been issued or that material has been intercepted in obedience to such a direction.

Disclosure by accused

104C. (1) An accused–

(a) may on his or her own accord; or

• shall, where the prosecutor complied or purports to comply with a direction referred to in section 104B,

give a written defence statement to the court and the prosecutor.

(2) The accused’s defence statement contemplated in subsection(1)(b) shall–

(a) set out in general terms the nature of his or her defence;

• indicate the matters on which he or she takes issue with the prosecution; and

(c) set out, in the case of each such matter, the reason why he or she takes issue with the prosecution.

(3) (a) The court may, if necessary, adjourn the proceedings for a period determined by the court in order that the prosecutor discloses such material.

• The court may, on application by the accused and if good reasons exist for doing so, extend the period contemplated in paragraph(b).

Additional disclosure by prosecutor

104D. (1) This section shall apply where the accused has given a defence statement under section 104C.

(2) The prosecutor shall–

• disclose to the accused any prosecution material which has not previously been disclosed to the accused and which might be reasonably expected to assist the accused’s defence as disclosed by his or her defence statement under section 104C; and

• give to the accused a written statement that there is no material of a description mentioned in paragraph(a).

Application by accused for additional disclosure by prosecution

104E (1) If the accused has at any time reasonable cause to believe that–

(a) there is prosecution material which might be reasonably expected to assist the accused’s defence as disclosed by his or her defence statement given under section 104C; and

(b) that the material has not been disclosed to the accused by the prosecution;

the accused may apply to the court for an order directing the prosecutor to disclose such material to the accused.

(2) The provisions of section 104B(2) to(7) apply for the purposes of this section as they apply for purposes of that section.

Continuing duty of prosecutor to disclose

104F. (1) This section shall apply at all times–

(a) after the prosecutor has complied or purports to comply with section 104B; and

(b) before–

(i) the accused is discharged in terms of section 174;

(ii) the accused is acquitted;

(iii) the accused is convicted: or

(iv) the prosecutor decides to withdraw the case against the accused.

(2) The prosecutor must keep under review the question whether at any given time there is prosecution material which–

• in his or her opinion might be detrimental to the case for the prosecution against the accused or which might be reasonably expected to assist the accused’s defence as disclosed by his or her defence statement given under section 104C; and

(b) has not been disclosed to the accused,

and if there is such material at any time, the prosecutor shall disclose it to the accused as soon as possible.

(3) The provisions of section 104B(2) to(7) apply for the purposes of this section as they apply for purposes of that section.

Failure or faults in disclosure by accused

104G. (1) Where an accused–

(a) fails to give a defence statement under section 104C;

• gives a defence statement under that section after the period or extended period determined in section 104C(3)(a) or(b);

• sets out inconsistent defences in his or her defence statement given under section 104C;

• at his or her trial puts forward a defence which is different from any defence set out in his or her defence statement given under section 104C,

the provisions of subsection(2) shall apply.

• Whenever in criminal proceedings the court has to decide whether–

(a) the accused may be discharged at the close of the case for the prosecution in terms of section 174;

(b) the accused is guilty of the offence charged; or

• the accused is guilty of another offence which constitutes a competent verdict on the offence charged,

the court may draw such inference from the accused’s failure contemplated in subsection(1)(a) or the faults in his or her defence statement contemplated in subsection(1)(b), (c) or (d), as may be reasonable and justifiable in the circumstances.

• An accused shall not be convicted of an offence solely on an inference drawn under subsection (2).

Review of decision not to disclose

104H. (1) This section shall apply at all times before–

(a) the accused is discharged in terms of section 174;

(b) the accused is acquitted;

(c) the accused is convicted: or

(d) the prosecutor decides to withdraw the case against the accused.

(2) The court may on its own accord or on application by the accused in open court, review its order in terms of section 104B(6) that–

(a) the prosecution material is not reasonably necessary in order to enable the accused to exercise his or her right to a fair trial;

• disclosure of the material would lead to the disclosure of the identity of an informer or state secrets; or

• there is a reasonable risk that such disclosure may lead to the intimidation of witnesses or otherwise prejudice the proper ends of justice.

(3) If the court concludes that the requested prosecution material should be disclosed, the court shall so order and the provisions of section 104B(1) to (6) shall apply regarding the disclosure of such material by the prosecutor.

Confidentiality of disclosed information

104I. (1) If the accused is given or allowed to inspect a document or other object under the provisions of this Chapter, then, subject to this section, he or she shall not disclose it or any information recorded in it.

(2) The accused may only use or disclose the–

(a) object or information in connection with the criminal proceedings for whose purpose he or she was given the object or allowed to inspect it;

(b) object to the extent that the object has been displayed to the public in open court;

(c) information to the extent that the information has been communicated to the public in open court.

(3) If the accused applies to the court for an order granting permission to use or disclose the object or information and the court makes such an order, the accused may use or disclose the object or information for the purposes and to the extent specified by the court.

(4) Any person who contravenes this section shall be guilty of an offence and liable on conviction to the penalties which may be imposed under the law for the offence of contempt of court.

PART C

CASE AND TRIAL MANAGEMENT

7.13 To some degree, section 115 of the Criminal Procedure is directed towards assisting to isolate the true issues and enable a trial to be conducted more expeditiously. The difficulty only really arises in relation to an accused who chooses not to co-operate. It has already been pointed out that, while the presumption of innocence remains, there is no means of enforcing co-operation. An accused will always be entitled to call upon the State to prove every element of the offence.

7.14 Section 115 of the Act facilitates defence disclosure if the defence chooses to make such disclosure. Generally disclosures are made by unrepresented accused but not by represented accused, who recognise that there is little advantage to the defence in doing so. While the Commission’s view is that no realistic mechanism exists for compelling an accused to make disclosures, there is scope for enhancing the judicial officer’s powers of questioning in terms of section 115 of the Act.

7.15 It has been suggested that the question whether an accused who does so should be penalised when it comes to sentence (which, on the face of it, seems to be impermissible) or whether an accused who provides co-operation should be rewarded, raises matters of principle which are similar to those which arise in relation to plea-bargaining.

7.16 Nevertheless, there is some merit in providing for a formal structure within which, particularly in more complex cases, proper and serious attempts can be made to isolate issues, and generally regulate the conduct of the case.

7.17 Section 625.1 of the Canadian Criminal Code makes provision for such a procedure. The procedure is mandatory before a jury trial, but optional in other cases. It reads as follows;

Subject to subsection (2), on application by the prosecutor or the accused or on its own motion, the court, or a judge of the court, before which , or the judge, provincial court judge or justice before whom, any proceedings are to be held may order that a conference between the prosecutor and the accused or counsel for the accused, to be presided over by the court, judge, provincial court judge or justice, be held prior tot he proceedings to consider the matters that, to promote a fair and expeditious hearing, would be better decided before the start of the proceedings, and other similar matter, and to make arrangement for decisions on those matters.

RECOMMENDATION

7.18 The Commission recommends that provision be made in the Criminal Procedure Act for an amendment of section 115 of the Act which enhances the powers of judicial officers and a procedure for the holding of a conference in appropriate cases before the trial. The following amendments are submitted for comment:

(a) Section 115 of the principal Act is hereby amended by the substitution for subsections (1) and (2) of the following subsections:

(1) Where an accused at a summary trial pleads not guilty to the offence charged, the presiding judge, regional magistrate or magistrate, as the case may be, [may] shall–

(a) inform the accused–

(i) that he or she has a right to remain silent;

(ii) of the consequences of not remaining silent;

(iii) that he or she is not compelled to make any confession or admission that could be used in evidence against him or her; and

(b) ask [him] the accused whether he or she wishes to make a statement indicating the basis of his or her defence.

(2) (a) Where the accused does not make a statement under subsection (1) or does so and it is not clear from the statement to what extent he or she denies or admits the issues raised by the plea, the court [may] shall question the accused in order to establish which allegations in the charge are in dispute.

(b) The court may in its discretion put any question to the accused in order to clarify any matter raised under subsection (1) or this subsection, and the court–

(i) shall enquire from the accused whether an allegation which is not placed in issue by the plea of not guilty; and

(ii) may enquire from the accused whether any other allegation,

may be recorded as an admission by the accused of that allegation, and if the accused so consents, such admission shall be recorded and shall be deemed to be an admission under section 220.

(b) The following Chapter is hereby inserted in the principal Act after section 149:

CHAPTER 21A

PRE-TRIAL CONFERENCE

Court may direct that pre-trial conference be held

149A. (1) The presiding judge, regional magistrate or magistrate may, on the application of the prosecutor or the accused or at his or her own instance, at any time after the accused has entered a plea of not guilty and before any evidence in respect of any particular charge has been led, direct the prosecutor and the accused and, if the accused is represented, his or her legal adviser, to appear before him or her in chambers to consider–

(a) the identification of issues not in dispute;

• the possibility of obtaining admissions of fact with a view to avoiding unnecessary proof;

(c) where the accused indicates his or her intention of raising an alibi defence, the disclosure of sufficient details to enable the prosecution to investigate such alibi defence;

(d) where the accused indicates his or her intention of raising a defence contemplated in section 151C, the disclosure of such defence;

(e) the necessity of calling or disposing of expert evidence;

(f) such other matters as may aid in the disposal of the trial in the most expeditious and cost effective manner.

• The court shall record in open court the agreements entered into and the concessions made.

(3) The accused shall be required by the court to declare whether he or she confirms such agreement or concession and if he or she so confirms, such agreement or concession shall be binding, unless retracted at the trial to prevent manifest injustice.

(4) The failure of an accused to disclose sufficient details of an alibi defence to enable the prosecution to investigate the alibi may be a factor taken into account by the trial court in determining the weight of the alibi defence.

(5) The accused’s co-operation at such pre-trial proceedings may be taken into account as a mitigating factor by the trial court for purposes of sentencing.

^[306] See chapter 3 paragraphs 3.10 et seq.

^[307] 1928 AD 265 at 277.

^[308] See also R v Omar 1935 AD 230 at 323 where Wessels CJ said when interpreting s 247 of the CPA of 1917 that the task of the judicial officer ‘to see that substantial justice is done, to see that an innocent person is not punished and that a guilty person does not escape punishment.’ See also S v Gerbers 1997 (2) SACR 601 (SCA) 606b.

^[309] See S v Mosoinyane 1988 (1) SACR 583 (T) 595a-d; N Steytler The Undefended Accused on Trial (1988) 150, 175-7.

^[310] See Gerbers supra in which the following dictum in R v Hepworth supra was approved:

‘The discretion and power under s 247 [186 of CPA] can be exercised by a Judge, whether the effect thereof be in favour of the Crown or the accused person. I see no reason to distinguish between the exercise of that power on behalf of the accused or of the Crown, provided that the power is the purpose for the purpose of doing justice as between the prosecution and the accused.’ See also S v Van Dyk 1998 (2) SACR 363 (W).

^[311] S v Manicum1998 (2) SACR 400 (N).

^[312] S v Jada 1985 (2) SA 182 (EC); S v Kwinika 1989 (1) SA 896 (W).

^[313] R v Hepworth supra.

^[314] See S v Matthys supra.

^[315] See S v Matthys supra.

^[316] Supra.

^[317] 1995 (2) SACR 761 (C).

^[318] This report does not purport to analyse precisely what material is required to be disclosed. The comments made in this report apply in relation to the material that is required to be disclosed irrespective of precisely what that encompasses.

^[319] See Chapter 6 paragraphs 6.101 et seq.