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3.1 This chapter discusses primarily the right of the State to appeal in criminal cases with reference to international human rights documents and to practices in a some foreign jurisdictions.[24]
3.2 Article 14 (5) of the International Covenant on Civil and Political Rights (hereinafter referred to as the ICCPR)[25] provides that everyone convicted of a crime shall have the right to have his conviction and sentence reviewed according to law by a higher tribunal. Article 14(7) of the ICCPR is as follows:
No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.
Article 14 applies both to the reopening of a conviction and to the reopening of an acquittal. Read literally, it therefore prohibits even the power of an appellate court to quash a criminal conviction and to order a re-trial if new evidence or a procedural defect is discovered after the ordinary appeals process has been concluded. In its General Comment on Article 14(7),[26] however, the United Nations Human Rights Committee (the treaty body charged with implementing the ICCPR) expressed the view that the re-opening of criminal proceedings "justified by exceptional circumstances" did not infringe the principle of double jeopardy. The Committee draws a distinction between the “resumption" of criminal proceedings, which it considers to be permitted by Article 14(7), and “retrial" which is expressly forbidden.
3.3 The distinction between "resumption" and "retrial" has taken firm root in European human rights law, and is now reflected in Article 4(2) of Protocol 7 to the ECHR. When the ECHR was drafted in 1950, the original signatory States made no express reference to the prohibition on double jeopardy. In its early case law the Commission left open the question whether the principle could be implied into the right to a fair trial in Article 6.[27] In 1984, however, the Commission held that "the Convention guarantees neither expressly nor by implication the principle of ne bis in idem". [28] Shortly after this decision, on 22 November 1984, Protocol 7 to the ECHR was opened for signature. It entered into force in respect of those states which had ratified it, on I November 1988.
3.4 Article 4 of Protocol 7 provides:
(1) No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.
(2) The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case.
(3) No derogation from this Article shall be made under Article 15 of the Convention.
3.5 Article, 4(l) thus embodies the principle against double jeopardy as it applies to the unilateral action of a prosecuting authority or private prosecutor. But Article 4(2) permits a case to be “re-opened" in accordance with the provisions of domestic law if there is "evidence of new or newly discovered facts" or if there has been "a fundamental defect in the previous proceedings".
3.6 Article 4(1) prohibits the bringing of proceedings only where the defendant has been “finally acquitted or convicted" of the offence now charged, "in accordance with the law and penal procedure" of the state in question. The Explanatory Report to Protocol 7 states that a decision is to be regarded as final for the purposes of Article 4(l)
if, according to the traditional expression, it has acquired the force of res judicata. This is the case when it is irrevocable, that is to say when no further ordinary remedies are available or when the parties have permitted the time limit to expire without availing themselves of them.
3.7 Article 7 of the African [Banjul] Charter on Human and Peoples' Rights[29] provides similarly. Protocol No. 7 to the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms[30] in express terms accepts the right of the State to appeal against an acquittal and provides that if such an appeal is successful the accused shall not be entitled to a further appeal. The ICCPR accepts implicitly the right of appeal of the state because it does not deny it. It assumes that a court of appeal may increase a sentence and that the accused has no further appeal as of right.
3.9 There is no international covenant on human rights the Commission is aware of which - in the case of an acquittal on the merits of the case - prohibits an appeal by the prosecuting authority or provides an acquitted person with the right not to have the acquittal set aside on appeal.
3.10 The Commission quotes extensively from a recent study done on the provisions around the Commonwealth on the right of the prosecution to appeal (emphasis added):[31]
APPEALS BY THE PROSECUTION FROM TRIALS ON INDICTMENT
INTRODUCTION
In recent years there has been from time to time in some parts of the Commonwealth criticism of criminal courts both for passing what are thought to be unduly lenient sentences, and for acquitting accused persons on what are seen, at least to laymen, as unduly technical grounds. This is not altogether surprising, as many societies have experienced increases in violent crimes, and in crimes of a sophisticated and international character often involving the illicit drugs trade, which have caused them concern, if not alarm. And where those accused of involvement are apprehended and prosecuted only to receive minimal sentences, or to be acquitted on what are seen as unmeritorious points, there is bound to be a degree of anxiety, about, if not an undermining of public confidence in, the system of criminal justice. . . .
Generally speaking trials in subordinate courts do not present a problem and prosecutors usually have the right to appeal acquittals, at least on points of law, and to appeal unduly lenient sentences or bring them up to the High Court for review. In trials on indictment however, which except in the largest Commonwealth jurisdictions normally take place before the High Court or equivalent, the rights of a prosecutor to appeal tend to be much more restricted. It is with these latter rights that we are concerned in this short study.
THE COMMON LAW POSITION
The reasons for the traditionally restricted rights of the prosecutor to appeal lie in the common law with its repugnance to the idea that a man should be put in a situation analogous to double jeopardy (though, as will be seen below, it has been held that appeals by prosecutors do not in fact constitute double jeopardy). Examples of statements of this underlying principle can be found around the Commonwealth. In the 1949 Canadian case of Cullen v. R, Rand J said -
It is the supreme invasion of the rights of an individual to subject him by the physical powers of the community to a test which may mean the loss of his liberty or his life; and there is a basic repugnance against the repeated exercise of that power on the same facts unless for strong reasons of public policy.'
And in the earlier English case of Cox v Hakes, Lord Halsbury, in referring to general principles of appeal by the prosecution, said -
... I for one would be very slow to believe, except it was done by express legislation, that the policy of centuries has been suddenly reversed and that the right of personal freedom is no longer to be determined summarily and finally, but is subject to the delay and uncertainty of ordinary litigation, so that the final determination upon that question may only be arrived at by the last court of appeal.
It has also been suggested that the reason for the lack of appeal against an acquittal lies in the fact that it would be inconsistent with the ancient right of a jury to return a perverse verdict.
PROSECUTORS' RIGHTS OF APPEAL
The common law has however been modified by statute in varying degrees, both in the UK and the Commonwealth generally, and there are now five possible basic sets of situations in relation to trial on indictment -
(a) no right of appeal by the prosecutor;
(b) a right of appeal or "reference" on a point of law, but with no affect on the outcome of the trial giving rise to it;
(c) a right of appeal against leniency of sentence;
(d) a substantive right of appeal on a point of law against acquittal;
(e) a substantive right of appeal on law, mixed law and fact, and fact alone, against acquittal.
These categories are not of course all mutually exclusive and there are in some jurisdictions combinations of the rights under (b) and (c), or under (c) and (d) or (e). Moreover, appeals may be brought sometimes only with leave of the trial court or the appeal court (or either), sometimes without the need to obtain leave, or sometimes under a combination of restricted and unrestricted rights depending on the nature of the appeal.
The basic common law situation under (a) needs no further elaboration but each of the other categories merits further examination.
Right of appeal or reference on a point of law not affecting the outcome of the trial
This was the first step towards appeals from trials on indictment taken in England and Wales. By section 36(1) of the Criminal Justice Act 1972 -
Where a person tried on indictment has been acquitted .... the Attorney-General may, if he desires the opinion of the Court of Appeal on a point of law which has arisen in the case, refer that point to the court, and the court shall .... consider the point and give their opinion on it.
However the effect of such a reference was made quite clear by section 36(7)
A reference under this section shall not affect the trial in relation to which the reference is made or an acquittal in that trial.
Furthermore, the reference was limited to acquittals; there was no power to refer sentences. Similar provisions have been enacted in a number of jurisdictions, for example Kenya and Trinidad and Tobago.
Right of appeal against leniency of sentence
Although it is circumscribed by conditions, the right has now been granted to the prosecution in England and Wales. By section 36(l) of the Criminal Justice Act 1988 --
If it appears to the Attorney-General -
(a) that the sentencing of a person in a proceeding In the Crown Court has been unduly lenient; and
(b) that the case is one to which [Part IV] applies,
he may, with the leave of the Court of Appeal, refer the case to them for them to review the sentencing of that person, and on such a reference the Court of Appeal may -
(i) quash any sentence passed on him in the proceedings; and
(ii) in place of it pass such sentence as they think appropriate for the case and as the court below had power to pass when dealing with him.
Cases to which Part IV of the Act applies are offences triable ONLY on indictment (i.e. only the most serious offences such as homicide, rape and robbery) or offences triable on indictment or summarily which are specified in an order of the Secretary of State. It is to be noted that no change is made to the situation whereby on an appeal by AN OFFENDER the Court of Appeal cannot increase the sentence!
A similar, though less restricted, right is granted to the Solicitor General in New Zealand; he has the right to appeal, with leave of the Court of Appeal, any sentence passed on a person on conviction on indictment (unless of course that sentence is fixed by law). And under a still less restricted right the Attorney-General of Sri Lanka may appeal, without leave, to the Court of Appeal -
....in all cases on the ground of inadequacy or illegality of the sentence imposed .... (by) the High Court.
Right of appeal on a point of law against acquittal
This right can be seen in its most embryonic form in Western Australia where it exists only in respect of an acquittal by direction of the trial judge.
A more extended right of appeal has existed since 1930 under the Canadian Criminal Code which now gives power to the Attorney-General to appeal to the Court of Appeal, inter alia -
... against a judgment or verdict of acquittal of a trial court in proceedings by indictment on any ground of appeal that involves a question of law alone.
There is a mass of case law in Canada on the question of the distinction between "law" and fact" and one commentator has written that the distinction .... is a morass of irreconcilable precedents, ad hoc decisions, and judgments which tend to state that a "question of law alone” must be interpreted in the "strict sense” and then ignore that advice."
It is to be noted that the right of the Attorney-General to appeal against acquittal has been challenged as contravening the guarantees against double jeopardy in the Canadian Charter of Rights and Freedoms. The Ontario Court of Appeal held however in R v Morgentaler and others that it did not do so.
A similar right of appeal exists, for example, in Malawi, where -
The Director of Public Prosecutions may appeal to the court against any judgment, including a finding of acquittal, of the High Court if, and only if, he is dissatisfied with such judgment upon a point of law. Subject as aforesaid no appeal shall lie against a finding of acquittal made by the High Court.
and in New Zealand.
Right of appeal on law, mixed law and fact, or fact alone
Although rights are sometime given only in respect of law and mixed law and fact, it is convenient to take these categories together, as once the element of fact is allowed into the appeal it must necessarily considerably widen its scope.
A transition from the previous category of rights to this one can be seen most simply in the case of Tasmania. Until recently the Attorney-General's right of appeal to the Court of Criminal Appeal was -
by leave of the Court (of Appeal) or upon the certificate of the judge of the court of trial that it is a fit case for appeal, against an acquittal on a question of law alone.
However, by s.7 of the Criminal Code Amendment Act (No.83 of 1987) the word "alone" at the end of the provision was removed and the section is now construed as including questions of mixed fact and law.
There are variations on this right. For example in the Northern States of Nigeria, where the rights of the prosecutor to appeal are found in both the Federal Constitution and the Criminal Procedure Code, an acquittal may be appealed as of right on a question of law, and with leave of the trial court or the appeal court on a question of fact or mixed law and fact. Similar rights exist in Sri Lanka.
Finally, for the most comprehensive power of all, one turns for example to Singapore whose law provides for an appeal by the Public Prosecutor against acquittal or sentence "on a question of fact or a question of law or on a question of mixed fact and law" without any need for leave.
POWERS OF APPELLATE COURTS
What, then, are the powers of the appellate court where the prosecutor's appeal is successful? Typical of its powers on appeal against sentence (whether by the prosecutor or the offender) are those contained in the New Zealand Crimes Act 1961 (RS VoI I) s.385(3) -
On an appeal against sentence the Court of Appeal, if it thinks that a different sentence should have been passed, shall either quash the sentence passed and pass such other sentence warranted in law (whether more or less severe) ... as the court thinks ought to have been passed or vary .... the sentence or any part of it or any condition imposed in it; and in any other case the court shall dismiss the appeal.
On a successful appeal against acquittal the court normally has powers to set aside the verdict of the trial court and either order a new trial or enter a verdict of guilty of the offence for which, in the court's judgment, the accused should have been convicted. In Canada the appellate court originally had the widest powers to order a retrial or to substitute a verdict of guilty of its own; however, since 1976 the latter power has been confined to cases which have been tried by a judge alone. Where an appeal is from a judge and jury the court can now, in allowing the prosecutor's appeal, only order a new trial.
Wide as some of these powers may seem it is clear that, for, an appeal from acquittal on issues of fact to succeed, wholly exceptional circumstances must apply in view of the heavy burden of proof which lies on the prosecution. In a 1931 Sri Lanka case (which was actually an appeal from an inferior court but to which exactly the same principles apply) Lyall Grant J, echoing sentiments referred to at the beginning of this study, said -
An appeal from an acquittal is a remedy which has no place in most parts of the British Empire. The general rule is that if a person has been fairly and properly tried and acquitted, he ought not to be put in jeopardy twice for the same offence .... It is obviously not sufficient that the court should think that there is material on which another Magistrate might come to the conclusion that the accused was guilty. It must, I think, be satisfied that no other conclusion was reasonably possible but that the accused was guilty or that the Magistrate did not apply his mind to the whole evidence in the case.
On the question of an appeal against an acquittal by a jury, Chief Justice Bora Laskin of the Supreme Court of Canada was, in the 1976 case of Morgentaler v the Queen, even more emphatic on the question of an appeal court's power to substitute a conviction -
.... I have been unable to find any reported Canadian case where an appellate Court, in setting aside a jury's verdict of acquittal, has entered a conviction on the very offence charged and of which the accused has been acquitted by a jury, and has not been content to order a new trial with accompanying directions. Counsel for the respective parties were unable to produce any such case, and I am not particularly surprised that they could not. Where a case is left to the jury on evidence that may be found to support a defence to the offence charged, and the accused is acquitted, the fact that the trial judge may have erred in charging the jury on the law would ordinarily result in a direction for a new trial... It must be an unusual case, indeed, in which an appellate court, which has not seen the witnesses, has not observed their demeanour and has not heard their evidence adduced before a jury, should essay to pass on its sufficiency, either as to a defence or in support of a charge, and thereupon to substitute its opinion for that of the jury and to enter a conviction (rather than ordering a new trial) where the jury has acquitted."
This case was, of course, decided on the law as it existed before the statutory amendment referred to on page 5 above.
In seeking to obtain an order for a new trial under the Canadian Criminal Code the prosecutor must not only show that there was misdirection by the trial judge, but also that the verdict would not necessarily have been the same if the trial judge had properly directed the jury, or himself. In clear cases, however, the appellate court will order a verdict of guilty to be entered. The principles for so doing were stated in the 1983 case of R v Courville, where the issue had been self-induced intoxication by drugs -
Where all of the elements of the offence have been proved but the trial judge has erred in law in failing to draw the conclusion of guilt required by the facts as found by him, the court is empowered to enter a verdict of guilty.... That is the case here. There is really nothing left to be tried or determined.
EXERCISE OF RIGHTS OF APPEAL
So much, then, for the law and procedure. But how are the provisions interpreted and what criteria are applied?
Our enquiries show that in those jurisdictions which allow the prosecutor to appeal from trials on indictment the power is used sparingly. There are obvious reasons for this such as the public expense involved in appeals and retrials and the embarrassment to the public prosecutor in losing appeals, with its attendant danger of his department being branded as an instrument of persecution.
In cases of appeals against acquittal, or against the imposition of non-custodial sentences, there may be matters of tracing the accused, of re-arrest, and sometimes also of re-opening issues of bail. However, unless express provisions allow it there would normally be no power to re-arrest until such time as the appellate court orders a new trial, substitutes a verdict of guilty or imposes a custodial sentence. In Canada, for example, there are no provisions in the Criminal Code providing for conditions of bail where a person is neither an accused nor an appellant sentenced to custody. Presumably similar considerations would be given to bail as in the case of an accused awaiting his initial trial, although the balance would probably more easily be tipped in favour of granting it than in a case of remand before a first trial.
Thus, an appeal against acquittal would, it is suggested, in practice be undertaken only where there has been a clear miscarriage of justice and normally where the offence is a serious one. ...
3.11 The English system permits a large range of appeals against both conviction and sentence. These are basically designed to ensure that the defendant’s trial was a fair one, and that there was no irregularities in its conduct, also that there is some consistency in the process. For the most part only the defendant (and not the prosecutor) may appeal. Provision is, however, made for the prosecutor to appeal on a point of law from the magistrates' court and he may bring an Attorney-General’s reference after an acquittal by the jury in cases where the prosecution takes the view that the judge has misrepresented the law.[33]
3.12 In ordinary appeals by the accused, the Crown Court has the jurisdiction to increase sentence. An appeal on a stated case is open to an accused against conviction and to the prosecutor on acquittal. The magistrates states a case for the opinion of the High Court and the High Court may uphold, reverse or amend the decision or remit the case for reconsideration.
3.13 It is more difficult to appeal against a conviction on indictment, mainly because it usually involves questioning the verdict of the jury. Initially there was no right of appeal until the Criminal Appeal Act of 1907, which established the Court of Criminal Appeal. At that stage the right of appeal was limited to matters of law, similar to the position in South Africa under the 1917 Act. There is an appeal as of right where a question of law is involved. On an appeal on a mixed question of law and fact, leave is required.
3.14 In the discussion paper the Commission pointed out that the appeal must be based on the grounds that (1) the conviction is in all circumstances unsafe[34] or unsatisfactory, (2) that the trial judge made a wrong decision on a question of law or (3) that there was a material irregularity in the course of the trial. However, the law has changed a little from what it was in the discussion paper. The test for an appeal against conviction by the defendant is now simply that the conviction is unsafe (Criminal Appeal Act 1968 as amended by the Criminal Appeal Act 1995). The Attorney General can refer a sentence passed by the Crown Court to the Court of Appeal if he considers it to be unduly lenient (Criminal Justice Act 1988 s.36). The Court can increase the sentence.
3.15 The court is notoriously reluctant to interfere on the first of these grounds. In other words, there is not a full or substantial appeal on the merits.[35] One of the reasons is that the jury does not give reasons for its decision and another is that a jury is presumed to be right. Halsbury [36] points out that in order to establish that a conviction is unsafe or unsatisfactory, it will not generally be sufficient to show that the case against the appellant is a weak one, or that the verdict is against the weight of the evidence, or that the trial judge felt some doubt about it. The Court of Appeal is not prepared to usurp the functions of the jury. It is for this same reason that the prosecution does not have a right of appeal on the merits. It is historically based and linked to the constitutional history of that country. [37]
3.16 Germany is taken as representative of the Continental systems. The detail differences between the different countries are for present purposes of little consequence.
3.17 The judgment on the merits rendered by a court of first instance can be appealed against (“Berufung”) by either the prosecuting authority or the accused, either challenging the judgment or just part of it, for example the sentence. The proceedings involve a reconsideration of the whole matter. The prosecutor has to assume a neutral role and he may even lodge an appeal in favour of an accused.
The decision of the first appellate court proceedings can only be challenged before a second on questions of law (“Revision”).
3.18 California is taken as an example. It confirms the fact that the State ('the people') does not have a right of appeal, save on very limited legal grounds.
3.19 The provisions dealing with the right to appeal are found in the Penal Code (sections 1235-1246) and the provisions relevant for this investigation are quoted:
1235. (a) Either party to a felony case may appeal on questions of law alone, ... .
1238. (a) An appeal may be taken by the people from any of the following:
(1) An order setting aside all or any portion of the indictment, information, or complaint.
(2) An order sustaining a demurrer [legal exception] to all or any portion of the indictment, accusation, or information.
(3) An order granting a new trial.
(4) An order arresting [suspending] judgment.
(5) An order made after judgment, affecting the substantial rights of the people.
(6) An order modifying the verdict or finding by reducing the degree of the offense or the punishment imposed or modifying the offense to a lesser offense.
(7) An order dismissing a case prior to trial made upon motion of the court pursuant to Section 1385 whenever such order is based upon an order granting the defendant's motion to return or suppress property or evidence made at a special hearing as provided in this code.
(8) An order or judgment dismissing or otherwise terminating all or any portion of the action including such an order or judgment after a verdict or finding of guilty or an order or judgment entered before the defendant has been placed in jeopardy or where the defendant has waived jeopardy.
(9) An order denying the motion of the people to reinstate the complaint . . ..
(10) The imposition of an unlawful sentence, ... .
3.20 Where a defendant is charged with an indictable offence and is found guilty of a summary conviction offence the prosecutor has the right to appeal on issues of fact. An acquittal may only be set aside where the verdict is unreasonable or not supported by the evidence.[40] Where a ruling by the trial judge makes the outcome of the trial a foregone conclusion, the prosecutor may seek a dismissal of the charges and proceed with an appeal. [41]
3.21 Section 676 defines the rights of appeal of the Attorney-General or counsel instructed for purpose of proceedings by indictment: the Attorney-General may appeal to the court of appeal against a judgment or a verdict of acquittal of a trial court in proceedings on indictment, upon a question of law alone. Leave to appeal is not required. Section 676(3) affords an equivalent right of appeal against a verdict of unfit to stand trial. A judgment or verdict of acquittal includes an acquittal of the offence charged where the defendant has nonetheless been found guilty of a lesser offence.
3.22 The Attorney-General may appeal against a sentence imposed at the trial with leave unless the sentence imposed is fixed by law.
3.23 If a trial judge finds all the facts necessary to reach a conclusion in law, and in order to reach that conclusion the facts can simply be accepted as found, a court of appeal may disagree with the conclusion reached without trespassing on the factual findings of the trial judge since the disagreement concerns a question of law and not the facts or the inferences to be drawn from them. Failure to appreciate the evidence amounts to an error of law only where it is based on a misapprehension of some legal principle. A question of law also arises where a finding that the prosecutor has not proven guilt beyond a reasonable doubt is based upon an erroneous approach to or treatment of evidence adduced at the trial, a self-misdirection with respect to relevant evidence or where there is error as to the legal effect rather than the inferences to be drawn from undisputed or found facts.[42] The total absence of a foundation for a finding of fact is an error of law.
3.24 On an appeal from acquittal an appellate court has no jurisdiction to consider the reasonableness of a trial court’s verdict. The question whether the proper inference has been drawn from the facts established in evidence and also the sufficiency of evidence are questions of fact. The prosecutor may appeal an acquittal on a matter of fact where the trial judge has failed to appreciate or has disregarded evidence. The prosecutor does not have the right to appeal an acquittal on the ground that the verdict of the jury was perverse on a question of fact. A finding of fact, in the absence of a misdirection as to a governing principle or a disregard of relevant evidence, is not appealable by the prosecutor.
3.25 In 1993 the Namibian Criminal Procedure Act was amended to make provision for the right of the Attorney-General to appeal on questions of fact (especially secs 310 and 311). For the sake of brevity only the provision in respect of appeals against decisions of lower courts (s 310) is quoted. It provides as follows:
'310(1) The Prosecutor-General or, if a body or a person other than the Prosecutor-General or his or her representative, was the prosecutor in the proceedings, then such other prosecutor, may appeal against any decision given in favour of an accused in a criminal case in a lower court, including -
(a) any resultant sentence imposed or order made by such court;
(2) . . ..
(3) The Prosecutor-General or other prosecutor shall, at least 14 days before the day appointed for the hearing of the application, cause to be served by any police official or the deputy sheriff upon the accused in person a copy of the notice, together with a written statement of the rights of the accused in terms of ss (4): Provided that if any police official or the deputy sheriff is not able so to serve a copy of the notice, it may be served in any other manner that may on application be allowed.
(4) The accused may . . . lodge a written submission with the registrar, and the registrar shall submit it to the Judge who is to hear the application, and shall send a copy thereof to the Prosecutor-General . . ..
(5)(a) Any decision of a Judge under ss (1) in respect of an application for leave to appeal referred to in that section, may be set aside by the Supreme Court . . ..
(b) ....
(6) . . ..
(7) If any application for leave to appeal referred to in ss (1) or an application to set aside a decision referred to in ss (5) or an appeal in terms of this section brought by the Prosecutor-General is refused or dismissed, the Judge or the Court, as the case may be, may order that the State pay the accused concerned the whole or any part of the costs to which such accused may have been put in opposing any such application or appeal, taxed according to the scale in civil cases of the court concerned.
3.26 The amendment and the implications thereof was discussed in S v Van den Berg[43]. The accused was arraigned in a magistrate's court on charges of unlawfully dealing in rough and uncut diamonds. Throughout the trial no mention was made of the issue whether the diamonds in question were indeed rough and uncut. At the close of the State case the defence relied on this omission by the prosecution and the court discharged the accused. The defence had not contested any of the evidence given by the State. Furthermore, no mention had been made by any of the parties involved in the dispute, as to the applicability of a statutory provision which created a presumption in favour of the State in that the accused had to prove, on a balance of probabilities, that the diamonds in question were not rough and uncut. Neither the magistrate nor the prosecutor was seemingly aware of this presumption. The accused's legal representative probably knew about the presumption, but failed to inform the court about its applicability.
3.27 After the accused was discharged, the Prosecutor-General instituted appeal proceedings. The Court remarked that the purpose of the amended section 310 was to assist the State. Namibia is a developing country and the prosecution suffered from constraints caused by lack of financial means, experience and proper qualifications. The accused's legal representative had evidently exploited the ignorance of the magistrate and prosecutor. This exploitation had led to the mistaken discharge of the accused. The Court stressed that the role of the court in criminal matters, and the primary aim of criminal procedure, was to ensure that substantial justice was done. The accused was, because of actions of the defence lawyer, not entitled to claim a vested right in the finality of an acquittal by a lower court.
3.28 Mr Justice O’Linn, who gave the judgment, was of the opinion that a court of law should not protect an accused from purported prejudice arising merely from the fact that the State is given a provisional right of appeal to reverse a lower court decision where that decision mistakenly allowed the acquittal of an accused. In his view, the role of the court in criminal matters and the primary aim of criminal procedure should be to ensure that substantial justice is done. In view of the importance of this judgment to the subject of the Commission’s current investigation reference is made in detail to the courts reasoning in defending the State’s right to appeal on questions of fact. The Court referred with approval to the words of some eminent Judges when interpreting the provisions of section 247 of Act 31 of 1917 [44]:
'. . . 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'.
These words were used by Wessels CJ in R v Omar 1935 AD 230 at 323, when interpreting the provisions of s 247 of Act 31 of 1917, relating to the role of the Court and the powers and duties relating to the calling and recalling of witnesses.
. . .. It is in line with the dictum of Curlewis CJ in R v Hepworth 1928 AD 265 at 277.
. . .
'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 is not a game where one side is entitled to claim the benefit of any omission or mistake made by the other side, and a Judge's position in a criminal trial is not merely that of an umpire to see that the rules of the game are applied by 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 recognised rules of procedure but to see that justice is done. . . . The intention of s 247 seems to me to give a judge in a criminal trial a wide discretion in the conduct of the proceedings, so that an innocent person be not convicted or a guilty person get free by reason, inter alia, of some omission, mistake or technicality.'
Although these words were used in connection with the role of the court when applying the then s 247 of Act 31 of 1917, the words express the basic aim of the courts and the provisions of the Criminal Procedure Act to ensure substantial justice, by ensuring that an innocent person is not punished and that a guilty person does not escape punishment.
A perception exists in some circles that the fundamental right to a fair trial focuses exclusively on the rights and privileges of accused persons. These rights, however, must be interpreted and given effect to in the context of the rights and interests of the law-abiding persons in society and particularly the persons who are victims of crime, many of whom may be unable to protect themselves or their interests because they are dead or otherwise incapacitated in the course of crimes committed against them.
Another perception which needs careful thought is the role of the State in criminal law and criminal proceedings. The prosecution in a criminal case acts formally in the name of the State, but is not an entity acting in its own cause. The counsel and/or lawyers acting for the State are officers of the Court who are expected also to divulge to the Court matters favourable to the accused and, as such, they not only have to attempt to ensure that a guilty person does not escape punishment but that an innocent person is not convicted and punished. The prosecution in our criminal law and procedure is not the all-powerful, specialised, competent, and even evil entity with all the means at its disposal, bent on the conviction and punishment at all costs of a hapless and helpless innocent. The prosecution should rather be seen as the representative of society, of the people and of the victims of crime.
In a developing country such as Namibia the prosecution suffers from all the constraints caused by lack of financial means, experience and proper qualifications and is not always dealing with the unrepresented, ignorant, innocent criminal who is being charged with a minor offence. No, the prosecution often has to confront intelligent, well-educated, callous and dangerous criminals committing grave crimes, often members of powerful crime syndicates, with all the expertise and means at their disposal to frustrate and defeat the ends of justice. Furthermore, the prosecution must overcome formidable hurdles, including that it must prove its case beyond all reasonable doubt, after being compelled to provide, before trial, full particulars of its case, including the statements of its witnesses. In contrast, the defence is not compelled to provide particulars of the defence or to disclose the statements and identity of defence witnesses beforehand and not even at the time of plea; the prosecution is required to maintain complete openness; not so the defence, and the defence is never required to prove the defence beyond reasonable doubt, not even in regard to issues where a statutory presumption purports to place a burden of proof on the accused in respect of the particular element or issue.
Notwithstanding the escalation of crime and the progressive disillusionment of the public with the enforcement of the law and the system of justice as applied in the Courts of law, the claims for further concessions to accused persons proliferate without corresponding and balancing measures to ensure not only that innocent persons are not punished but also to ensure that the guilty do not escape punishment.
. . ..
It is clear that the amendment introduced a provisional right of appeal, inter alia to combat abuses and miscarriages of justice of this nature and to attempt to ensure that substantial justice is done, not only in that an innocent person is not punished but also in that a guilty person does not escape punishment.
If an accused is discharged as a result of tactics such as these described, it is really such tactics which place the accused in jeopardy. The State should not be blamed for attempting to reverse such a pyrrhic victory.
In enacting the substituted s 310 of the Criminal Procedure Act, the Legislature also attempted to restore some balance between prosecution and accused in providing for a right of appeal by the State against lower court decisions in criminal cases, compared to the accused's unconditional right of appeal.
It is also consistent with the approach in R v Hepworth and R v Omar (supra). In R v Hepworth it was said that the aim of the criminal procedure provision there discussed was to 'do justice as between the prosecution and the accused'.
This provision also goes some way in giving effect to the letter and spirit of art 10 of the Constitution of the Republic of Namibia, where it states in a mandatory form:
'All persons shall be equal before the law.'
. . ..
Although the Constitution of the Republic of Namibia enumerates the various requirements for a fair trial, one would have thought that it would expressly prohibit appeals by the State as envisaged in the substituted s 310, if such was the intention.
The retrospectivity which is prohibited in subart (3) of art 12 does not prohibit appeals by the State to test the correctness of a decision in a criminal case.
[Emphasis added.]
[24] Criminal Procedure Systems in the European Community, C van den Wyngaert; C Cane; HH K_hn;F McAuly;Butterworths, 1993, London at 100 et seq.
[25] International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171.
[26] General Comment 13/2 1, para 19.
[27] See, for example, X v Austria (1970) 35 CD 15 I. The Convention institutions have, on occasion, implied into Article. 6 gaurantees which are absent from its text, but which are to be found in analogous texts of the UN or other international organisations: Funke v France A 256-A (1993) (protection against self-incrimination as provided in Article 14(3)(g) of the ICCPR; S v Switzerland A 220 (1991) (confidentiality of privileged communications as provided in Article 8(2)(d) of the American Convention on Human Rights, and Article 93 of the Standard Minimum Rules for the Treatment of Prisoners); V and T v UK (Application No. 24888/94, 4 December 1998) (confidentiality of juvenile proceedings as provided in Article 40 of the UN Convention on the Rights of the Child, and the United Nations Standard Minimum Rules for the Administration of juvenile justice).
[28] S v Federal Republic of Germany (1983) 39 DR 43.
[29] African [Banjul] Charter on Human and Peoples' Rights, adopted June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982).
[30] Protocol No. 7 to the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms, E.T.S. 117.
[31] “Appeals by the prosecution from trials on indictment - a short survey of provisions around the commonwealth” The commonwealth legal advisory service - The British Institute of International and Comparative Law Charles Clore House, 17 Russell Square London WC1B, DR New Memoranda Series No. 8. June 1990.
[32] Information obtained from Criminal Procedure Systems in the European Community, at 100 et seq.
[33] Section 36 of The Criminal Justice Act, 1972.
[34] Before 1966 the test was whether the conviction was unreasonable or cannot be supported having regard to the evidence.
[35] Delmas-Marty The Criminal Process and Human Rights p 75.
[36] Laws of England 4th ed (reissue) par 1388.
[37] Benson v North Ireland Road Transport Board [1942] AC 520, [1942] All ER 465 (HL).
[38] Information obtained from Criminal Procedure Systems in the European Community, at 160 et seq.
[39] See 1996 Tremeear’s Criminal Code David Watt and Michelle Fuerst (Carswell, Ontario) 1142 et seq.
[40] R v Crocker (1986), 73 N.S.R. (2d) 151 (CA); R v Sall (1990), 54 C.C.C. (3d)48 (Nfld. T.D.).
[41] R v Davis (1977), 37 C.R.N. S. 302, C.C.C. (2d) 388 (Ont.C.A.).
[42] R v B (G) (1990), 77 C.R. (3d) 370, 56 C.C.C. (3d) 181 (S.C.C).
[43] 1996 (1) SACR 19 (N).
[44] 1996 (1) SACR 28-33.
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