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DRAFT BILL

REPUBLIC OF SOUTH AFRICA

_________

CRIMINAL PROCEDURE

AMENDMENT BILL

_________

(As introduced)

___________

(MINISTER OF JUSTICE)

[B –2000]

_________________________________________________________________________

REPUBLIEK VAN SUID-AFRIKA

___________

STRAFPROSESWYSIGINGS-

WETSONTWERP

__________

(Soos ingedien)

__________

(MINISTER VAN JUSTISIE)

[W –2000]

GENERAL EXPLANATORY NOTE:

[ ] Words in bold type in square brackets indicate omissions from existing enactments.

{ } Words in bold type in these brackets indicate an alternative proposal.

____________ Words underlined with a solid line indicate insertions in existing enact-

ments.

BILL

To amend the Criminal Procedure Act, 1977, so as to make provision for the disclosure of material in possession of the prosecution or contained in the police docket; to further regulate plea proceedings; to make provision for the holding of a pre-trial conference where an accused pleads not guilty; for an accused to give notice if he or she intends to raise certain defences or to call expert evidence; the court in criminal proceedings to draw inferences from the accused’s failure to mention certain facts when questioned by the police or charged, his or her silence at trial, his or her failure or refusal to account for certain objects, substances or marks, or his or her failure or refusal to account for his or her presence at a particular place; to further regulate the admissibility of admissions and confessions made by an accused; and to provide for matters connected therewith.

__________

BE IT ENACTED by the Parliament of the Republic of South Africa, as follows:–

PART A

POLICE QUESTIONING AND DEFENCE DISCLOSURE FROM THE TIME SUSPICION FALLS UPON THE ACCUSED UNTIL THE TIME HE OR SHE IS INDICTED

OPTION 1

Insertion of Chapter 23A in Act 51 of 1977

1. (a) The following Chapter is hereby inserted in the principal Act after Chapter 23:

CHAPTER 23A

INFERENCES FROM ACCUSED’S SILENCE

Effect of accused’s failure to mention facts when questioned or charged

207A. (1) Where in criminal proceedings evidence is given that the accused–

(a) at any time before he or she was charged with an offence, on being questioned under warning and on being informed of the provisions of subsection(2) by a police officer in an attempt to determine whether or by whom the offence had been committed, failed to mention any fact relied on in his or her defence in such criminal proceedings; or

on being charged with the offence or officially informed by such police officer that he or she might be prosecuted for the offence and that the court might draw an inference contemplated in subsection(2), failed to mentioned any such fact, being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned, charged or informed,

the provisions of subsection(2) shall apply.

(2) 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 court may draw such inference from the accused’s failure contemplated in subsection(1), as may be reasonable and justifiable in the circumstances.

Subject to any directions by the court, evidence tending to establish the failure referred to in subsection(1), may be given before or after evidence tending to establish the fact which the accused is alleged to have failed to mention.

(4) This section also applies to questioning by persons, other than police officers, who are charged with the duty of investigating alleged offences, conducting inquiries in respect of the commission or attempted commission of suspected offences or the charging of offenders.

(5) This section does not–

(a) prejudice the admissibility in evidence of the silence or other reaction of the accused in the face of anything said in his or her presence relating to the conduct of which he or she is charged, in so far as evidence thereof would be admissible apart from this section; or

(b) preclude the drawing of any inference from any such silence or other reaction of the accused which could properly be drawn apart from this section.

Effect of accused’s silence at trial

207B. (1) This section applies in criminal proceedings in respect of any accused who has attained the age of 14 years, but does not apply–

(a) where the accused’s guilt is not in issue;

where it appears to the court that the physical or mental condition of the accused makes it undesirable for him or her to give evidence;

if, at the conclusion of the case for the prosecution, the accused or his or her legal adviser informs the court that the accused will give evidence.

(2) Where the court has asked the accused whether he himself or she herself intends to give evidence contemplated in section 151(1)(b), and–

(a) if the accused answers in the negative but decides, after evidence has been given on behalf of the defence, to give evidence himself or herself; or

if the accused chooses not to give evidence, or having taken the oath or made an affirmation, without good cause, refuses to answer any question,

the court may draw such inference from the accused’s conduct as may be reasonable and justifiable in the circumstances.

(3) In determining whether an accused is guilty of the offence charged or of another offence which constitutes a competent verdict on the offence charged, the court may draw such inferences from the accused’s decision and failure referred to in subsection(2)(a) and (b), as may be reasonable and justifiable in the circumstances.

(4) This section does not render the accused compellable to give evidence on his or her own behalf, and he or she shall accordingly not be guilty of contempt of court by reason of his or her failure to do so.

(5) For the purposes of this section an accused who, having taken the oath or made an affirmation, refuses to answer any question shall be taken to do so without good cause unless–

(a) he or she is entitled to refuse to answer the question on the ground of privilege; or

the court in the exercise of its general discretion, excuses the accused from answering it.

Effect of accused’s failure or refusal to account for objects, substances or marks

207C. (1) (a) Where a person is arrested by a police officer, and there is–

(i) on his or her person;

(ii) in or on his or her clothing or footwear;

(iii) otherwise in his or her possession;

(iv) in any place in which he or she is at the time of the arrest,

any object, substance or mark, or there is any mark on such object, and that police officer reasonably believes that the presence of the object, substance or mark may be attributable to the person arrested in the commission of an offence specified by the police officer, the police officer may inform the arrested person that he or she so believes and requests that person to account for the object, substance or mark.

If the arrested person referred to in paragraph(a), fails or refuses to account for the object, substance or mark, the provisions of subsection(2) shall apply in any criminal proceedings against that person.

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;

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 or refusal contemplated in subsection(1), as may be reasonable and justifiable in the circumstances.

(3) Subsections(1) and (2) do not apply unless the accused was informed in ordinary language by the police officer when making the request referred to in subsection(1)(a), what the effect of this section would be if he or she failed or refused to comply with the request.

(5) This section does not preclude the drawing of any inference from any such failure or refusal of the accused to account for the presence of an object, substance or mark, or from the condition of clothing or footwear, which could properly be drawn apart from this section.

Effect of accused’s failure or refusal to account for presence at a particular place

207D. (1) Where–

(a) a person arrested by a police officer was found by him or her at a place at or about the time the offence for which the person was arrested is alleged to have been committed; and

the police officer reasonably believes that the presence of the person at that place and time may be attributable to the person’s participation in the commission of the offence; and

the police officer informs the person that he or she so believes, and requests the person to account his or her presence; and

(d) the person fails or refuses to do so,

then, if in any criminal proceedings against that person, evidence of those matters is given, the provisions of subsection(2) shall apply.

(2) 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;

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 or refusal contemplated in subsection(1), as may be reasonable and justifiable in the circumstances.

Subsections(1) and (2) do not apply unless the accused was informed in ordinary language by the police officer when making the request referred to in subsection(1), what the effect of this section would be if he or she failed or refused to comply with the request.

(5) This section does not preclude the drawing of any inference from any such failure or refusal of the accused to account for his or her presence at a place which could properly be drawn apart from this section.

(b) Section 151 of the principal Act is hereby amended by the substitution for paragraph (b) of subsection(1) of the following paragraph:

(b) The court shall also ask the accused whether he himself or she herself intends giving evidence on behalf of the defence, and[-

(i)] if the accused answers in the affirmative, he or she shall, except where the court on good cause shown allows otherwise, be called as a witness before any other witness for the defence[; or

(ii) if the accused answers in the negative but decides, after other evidence has been given on behalf of the defence, to give evidence himself, the court may draw such inference from the accused's conduct as may be reasonable in the circumstances].

(c) ALTERNATIVE PROPOSAL TO SECTION 151 - Amendment of section 151 of Act 51 of 1977

Section 151 of the principal Act is hereby amended by the deletion of paragraph (b) of subsection(1).

OPTION 2 - NO ADVERSE INFERENCE FROM FAILURE TO DISCLOSE BY THE ACCUSED

2. It is recommended that no change be made to the common-law position concerning the drawing of inferences from silence.

QUESTIONING OF SUSPECTS - POLICE CONDUCT

3. It is recommended that a police code of conduct for the treatment of persons in custody be incorporated in regulations published in terms of the Police Act and that the Police Services take responsibility to develop such regulations.

ADMISSIBILITY OF ADMISxSIONS AND CONFESSIONS

4. (a) Section 121 of the principal Act is hereby amended by the substitution for paragraph (aA) of subsection(5) of the following paragraph:

(aA) The record of the proceedings in the magistrate's court shall, upon proof thereof in the court in which the accused is arraigned for a summary trial, be received as part of the record of that court against the accused, and the plea of guilty and any confession or admission by the accused shall stand and form part of the record of that court unless the accused satisfies the court that such plea, confession or admission was incorrectly recorded.

(b) The following section is hereby substituted for section 217 of the principal Act:

Admissibility of confession or admission by accused

(1) Evidence of any confession or admission made orally, in writing or by conduct by any person in relation to the commission of any offence shall, if such confession or admission is proved to have been freely and voluntarily made by such person in his or her sound and sober senses and without having been unduly influenced thereto, be admissible in evidence against such person at criminal proceedings relating to such offence[: Provided-

(a) that a confession made to a peace officer, other than a magistrate or justice, or, in the case of a peace officer referred to in section 334, a confession made to such peace officer which relates to an offence with reference to which such peace officer is authorized to exercise any power conferred upon him under that section, shall not be admissible in evidence unless confirmed and reduced to writing in the presence of a magistrate or justice; and

(b) that where the confession is made to a magistrate and reduced to writing by him, or is confirmed and reduced to writing in the presence of a magistrate, the confession shall, upon the mere production thereof at the proceedings in question-

(i) be admissible in evidence against such person if it appears from the document in which the confession is contained that the confession was made by a person whose name corresponds to that of such person and, in the case of a confession made to a magistrate or confirmed in the presence of a magistrate through an interpreter, if a certificate by the interpreter appears on such documents to the effect that he interpreted truly and correctly and to the best of his ability with regard to the contents of the confession and any question put to such person by the magistrate; and

(ii) be presumed, unless the contrary is proved, to have been freely and voluntarily made by such person in his sound and sober senses and without having been unduly influenced thereto, if it appears from the document in which the confession is contained that the confession was made freely and voluntarily by such person in his sound and sober senses and without having been unduly influenced thereto.

(2) The prosecution may lead evidence in rebuttal of evidence adduced by an accused in rebuttal of the presumption under proviso (b) to subsection(1).

(3)] (2) Any confession or admission which is under subsection (1) inadmissible in evidence against the person who made it, shall become admissible against him or her

(a) if he or she adduces in the relevant proceedings any evidence, either directly or in cross-examining any witness, of any [oral or written] statement made by him or her either as part of or in connection with such confession or admission; and

(b) if such evidence is, in the opinion of the judge or the judicial officer presiding at such proceedings, favourable to such person..

(3) Should an accused give evidence or call a witness in his or her defence, the evidence of the accused or any admission made by or on behalf of the accused and the evidence of any such witness during a trial within the trial relating to the contents of the confession, shall be admissible against the accused if it is relevant to the credibility of the accused.

(c) Section 218 of the principal Act is hereby amended by the deletion of subsection(2).

(d) Sections 219 and 219A of the principal Act are hereby deleted.

DEFENCE DISCLOSURE FROM THE TIME THE ACCUSED IS INDICTED UNTIL THE PLEA

OPTION 1

5. The Commission’s provisional view is that no legislative intervention is necessary at this stage in relation to defence disclosure after the accused has been indicted and until the time he or she is called upon to plead.

OPTION 2

6. Insertion of sections 151A to 151D in Act 51 of 1977

The following sections are hereby inserted in the principal Act after section 151:

Notice of alibi

151A. (1) This section shall apply to all trials before any court where the accused is represented by a legal adviser.

(2) An accused may not, without the leave of the court, adduce evidence in support of a defence, commonly called an alibi, unless, at any time before plea proceedings or during plea proceedings, the accused, or his or her legal adviser, gives notice of particulars of the alibi.

(3) Without limiting subsection(2), the accused may not, without the leave of the court, call any other person to give evidence in support of an alibi unless–

the notice under subsection(2) includes the other person’s name and address or, if the other person’s name or address is not known to the accused at the time he or she gives notice, any information in his or her possession that might be of material assistance in finding the other person;

if the other person’s name or address is not included in the notice, the court is satisfied that the accused, before giving notice, took and thereafter continued to take all reasonable steps to ensure that the other person’s name and address would be ascertained; and

if the other person’s name or address is not included in the notice, and the accused subsequently discovers the other person’s name and address or receives information that might be of material assistance in finding that other person, he or she immediately gives notice of the name, address or other information.

(4) (a) The court may not refuse leave under this section if it appears to the court that the accused was not informed –

(i) in the notice contemplated in section 144(4)(a)(i);

(ii) by the magistrate or regional magistrate committing the accused to the superior court contemplated in section 144(4)(a)(ii); or

(iii) by the presiding judge, regional magistrate or magistrate during plea proceedings, of the requirements of subsections(2), (3) and (7).

For purposes of paragraph(a), an endorsement on the said notice, or an endorsement by the magistrate or regional magistrate on the record of the committal proceedings, or an endorsement by the presiding judge, regional magistrate or magistrate on the record of the plea proceedings that the accused was informed of those requirements, is evidence that the accused was so informed.

(5) Any evidence to disprove an alibi may, subject to any direction by the court, be given before or after evidence is given in support of the alibi.

Any notice purporting to be given under this section on behalf of the accused by his or her legal adviser shall, unless the contrary is proved, be deemed to have been given by the authority of the accused.

(7) (a) A notice under this subsection(2) before plea proceedings, shall be given in writing to the registrar or the clerk of the court concerned, as the case may be.

The registrar or clerk of the court, as the case may be, shall forthwith hand such notice to the prosecutor concerned.

(8) For the purposes of this section “evidence in support of an alibi” means evidence tending to show that, by reason of the presence of the accused at a particular place or in a particular area at a particular time, the accused was not, or was unlikely to have been, at the place where the offence is alleged to have been committed at the time of its alleged commission.

Notice of allegation that accused is by reason of mental illness or mental defect not criminally responsible for the offence charged

151B. (1) This section shall apply to all trials before any court.

(2) (a) The accused or his or her legal adviser may not, without the leave of the court, allege at criminal proceedings that the accused is by reason of mental illness or mental defect not criminally responsible for the offence charged unless, at any time before plea proceedings or during plea proceedings, the accused gives notice of such allegation.

Where the accused gives notice or if the court grants leave under paragraph(a), the court shall direct in terms of section 78(2) that the matter be enquired into and be reported on in accordance with the provisions of section 79.

(3) (a) If the accused is not represented by a legal adviser, the court may not refuse leave under this section if it appears to the court that the accused was not informed –

in the notice contemplated in section 144(4)(a)(i);

(ii) by the magistrate or regional magistrate committing the accused to the superior court contemplated in section 144(4)(a)(ii); or

(iii) by the presiding judge, regional magistrate or magistrate during plea proceedings, of the requirements of subsections(2), and (6).

For the purposes of paragraph(a), an endorsement on the said notice, or an endorsement by the magistrate or regional magistrate on the record of the committal proceedings, or an endorsement by the presiding judge, regional magistrate or magistrate on the record of the plea proceedings that the accused was informed of those requirements, is evidence that the accused was so informed.

Any evidence tendered to disprove an allegation contemplated in this section, may, subject to any direction by the court, be given before or after evidence is given in support of the allegation.

(5) Any notice purporting to be given under this section on behalf of the accused by his or her legal adviser shall, unless the contrary is proved, be deemed to have been given by the authority of the accused.

(6) (a) A notice under this subsection(2) before plea proceedings, shall be given in writing to the registrar or the clerk of the court concerned, as the case may be.

The registrar or clerk of the court, as the case may be, shall forthwith hand such notice to the prosecutor concerned.

Notice of intention to raise certain defences

151C. (1) This section shall apply to all trials before any court where the accused is represented by a legal adviser.

(2) An accused or his or her legal adviser may not, without the leave of the court, raise a–

(a) statutory or any other ground of justification; or

defence which excludes mens rea {ground for exclusion of culpability}

unless, at any time before plea proceedings or during plea proceedings, the accused gives notice of such ground of justification or defence.

(3) (a) The court may not refuse leave under this section if it appears to the court that the accused was not informed –

in the notice contemplated in section 144(4)(a)(i);

(ii) by the magistrate or regional magistrate committing the accused to the superior court contemplated in section 144(4)(a)(ii); or

(iii) by the presiding judge, regional magistrate or magistrate during plea proceedings, of the requirements of subsections(2), and (6).

(b) For the purposes of paragraph(a), an endorsement on the said notice, or an endorsement by the magistrate or regional magistrate on the record of the committal proceedings, or an endorsement by the presiding judge, regional magistrate or magistrate on the record of the plea proceedings that the accused was informed of those requirements, is evidence that the accused was so informed.

Any evidence tendered to disprove the evidence given or statements made by a witness under this section, may, subject to any direction by the court, be given before or after evidence is given by such witness.

(6) (a) A notice under subsection(2) before plea proceedings, shall be given in writing to the registrar or clerk of the court concerned, as the case may be.

The registrar or clerk of the court, as the case may be, shall forthwith hand such notice to the prosecutor concerned.

Notice to call expert witness

151D. (1) This section shall apply to all trials before any court where the accused is represented by a legal adviser.

(2) An accused or his or her legal adviser may not, without the leave of the court, call an expert witness unless, at any time before plea proceedings or during plea proceedings, the accused discloses the names and addresses of such expert witness, and copies of expert reports upon which the defence proposed to rely on at the trial.

(3) (a) The court may not refuse leave under this section if it appears to the court that the accused was not informed –

in the notice contemplated in section 144(4)(a)(i);

(ii) by the magistrate or regional magistrate committing the accused to the superior court contemplated in section 144(4)(a)(ii); or

(iii) by the presiding judge, regional magistrate or magistrate during plea proceedings, of the requirements of subsections(2), and (6).

(b) For purposes of paragraph(a), an endorsement on the said notice, or an endorsement by the magistrate or regional magistrate on the record of the committal proceedings, or an endorsement by the presiding judge, regional magistrate or magistrate on the record of the plea proceedings that the accused was informed of those requirements, is evidence that the accused was so informed.

(4) Any evidence tendered to disprove the evidence given or statements made by an expert witness under this section, may, subject to any direction by the court, be given before or after evidence is given by such expert witness.

(6) (a) A notice under subsection (2) before plea proceedings, shall be given in writing to the registrar or clerk of the court concerned, as the case may be.

The registrar or clerk of the court, as the case may be, shall forthwith hand such notice to the prosecutor concerned.

DEFENCE DISCLOSURE IN THE COURSE OF THE TRIAL

7. The Commission sees no scope for imposing any duties of disclosure upon the accused in the course of the trial which do not already exist at common law and in the rules and practices of cross-examination.

PART B

JUDICIAL PARTICIPATION IN THE PROCESS OF THE TRIAL

OPTION 1

8. (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;

(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.

OPTION 2

9. Insertion of 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

(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–

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;

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;

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–

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

(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–

(a) 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.

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–

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–

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

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;

(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;

(b) 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;

(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

9. 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

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 is sue 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.

10. 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.

Transitional arrangements

11. (1) Section 1 does not apply in relation to a failure or refusal by an accused if that failure or refusal occurred before the commencement of that section.

(2) Section 1 applies–

in relation to a criminal trial on indictment as contemplated in section 144(1), only if the accused is arraigned for trial by a superior court after the commencement of that section;

(b) in relation to a criminal trial in any other court, only if the time when the court begins to receive evidence in the proceedings falls after the commencement of that section.

Short title and commencement

12. This Act shall be called the Criminal Procedure Amendment Act, 2001, and shall come into operation on a date determined by the President by proclamation on the Gazette.

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