Why wasn't this brilliant article published before the trial? It would have saved lots of :lookingitup:
... GroundUp asked a lawyer to answer them.
These are the questions canvassed: (Ive included some text)
Are all murder trials in South Africa decided by a judge and two assessors?
When the judge reaches her judgment, must the assessors agree? Must a judgment be unanimous?
What is reasonable doubt? Is it precisely defined?...
This means that the judge and assessors must be satisfied that there is no reasonable possibility that the accused is innocent. Not any possibility but only reasonable possibilities count in favour of the accused.
The rationale for the higher test is that everyones freedom is fundamental; that a criminal penalty is a very grave harm to impose; and that it is better to let the guilty go free than to punish the innocent. Requiring proof beyond reasonable doubt means that criminal punishment is imposed only when the court is very sure of the accuseds guilt. It is hard to give any definition more precise than that.
Must the judge write the judgment, or can it be delivered orally?
Must the judge provide reasons for his or her decision?
Yes. This is a fundamental duty of any judge deciding any matter.
After the prosecution has presented its case, can the defence ask the judge to dismiss the case immediately for lack of evidence?
If a person is found not guilty, can the victims family still sue him or her in a civil court?
Ive been charged with murder. Is my defence going to be costly?
Is there a limit on how long a prosecutor or defence attorney can question someone?
The right to cross-examine witnesses is vitally important and is constitutionally protected. The prosecution and the defence are given the chance to control the cross-examination and to decide what questions to put to witnesses. But the presiding judge can curtail excessive or deliberate time-wasting.
Can either side stall by calling a long list of witnesses?
Lawyers often try stalling tactics. But in a criminal trial, this tactic is unlikely to work. It may just backfire.
Presiding judges can curtail the questioning of each witness. In addition,
if a witness does not appear of their own free will, the court can compel them to testify only if the evidence is essential.
So trying to stall by calling irrelevant witnesses is subject to some judicial control, and is likely anyhow not to work: if a witness has nothing to contribute, the judge can cut short her testimony.
What alternative is there for a witness who is an atheist or does not wish to take an oath to God before taking the stand?
Does an accused have to take the stand?
Do all witnesses have to be identified to both the prosecution and defence at the beginning of the trial?
The prosecution must compile a list of witnesses so that the accused can know who it is planning to call. But the prosecution may call a surprise witness with the judges permission if there is good reason.
The defence doesnt have to tell the prosecution who it plans to call.
Can a witness refuse to answer questions?
Can a witness refuse to take the stand?
Any witness who is served with a subpoena must arrive at court, and must take the stand when required to do so.
Every person can be called as a witness unless the law expressly excludes her from giving evidence. Again, the number of exclusions is small. One has already been mentioned: the accused cannot be forced to testify by the prosecution. Other examples are persons who have serious mental illness or are mute.
What restrictions is a witness under once she is on the stand?
What are the different types of killing you can be tried for in South Africa?
In South Africa there are only two types: murder (the intentional, unlawful killing of a human being) and culpable homicide (the negligent, unlawful killing of a human being, which is similar to the crime some countries call manslaughter).
...
It is true that in South Africa we speak of premeditated murder (planned in advance), which attracts a harsher sentence than murder that is intentional but not premeditated (section 51 of the Criminal Law Amendment Act, 1997). But that does not make it a separate crime, distinct from normal murder. It is simply murder though the legislature has said that when a murder was premeditated it should be particularly severely punished.
If the prosecution makes the case for murder but the judge decides murder has not been proven, can she find the accused guilty of a different crime?
Yes, the judge can find the accused guilty of a range of lesser crimes, for example culpable homicide.
If an accused is found guilty, is there a separate part of the trial for sentencing?
Yes. The main part of the trial is to decide whether the accused is guilty. The shorter, second phase, if the accused is convicted, is to decide the appropriate sentence.
Usually the sentence and conviction stages are part of the same continuous trial. Even then, the sentencing stage is noticeably different: it is relatively informal, with less rigid court processes, easier rules of evidence, and a generally more open-ended, discretionary enquiry by the court. Both the accused and the prosecution are entitled to make representations to the court on what sentence is fair and appropriate.
Can an accused be called back to the stand during the sentencing part of the trial?
The prosecution cannot compel the accused to testify at any stage of the trial. But
the accused may elect to testify again, for example if she wants to express remorse, which is an important consideration in sentencing.
What is the typical length of a sentence for murder in South Africa?
What is the maximum sentence? Is there a "life" sentence and is it really for life?
Life imprisonment which is indeed a real sentence and does mean the whole of the offenders life is the longest sentence a court can impose.
...
But in the case of particularly serious forms of murder, like premeditated murder and the murder of a police officer or state witnesses, as well as aggravated rape, terrorism and crimes against humanity, the legislature has made life imprisonment the minimum sentence. This was widely seen as too harsh and wrong because it takes away judges discretion to craft a sentence appropriate to the particular offender and her circumstances. But judges do retain some discretion: they can depart from the minimum sentence of life imprisonment if they are satisfied that there are substantial and compelling circumstances that justify the imposition of a lesser sentence.
The mandatory minimum sentence for normal murder is 15 years except for repeat offenders, where the minimum is longer. No minimum sentence is prescribed for culpable homicide the sentencing judge has a very wide discretion to decide how culpable (blameworthy) the offenders negligent killing was.
After how long can a person serving a sentence apply for parole?
The parole board has a wide discretion to grant parole, although the law puts limits in the case of more serious offences.
Offenders sentenced to life imprisonment must serve 25 years before being eligible for parole, and even if they are released will remain on parole until they die. Offenders sentenced to more than two years (but less than life) in prison must serve half their sentence before being eligible for parole.
If someone is found guilty can he or she always appeal?
Yes,
any convicted person always has a right to appeal. The Constitution guarantees this. The right to appeal doesnt always mean a full appeal. It means simply that you are entitled to ask another court to look at your case after you have been convicted. The higher court can refuse you leave to appeal after considering your application.
Which courts can be appealed to and who grants leave to appeal?
Where the accused has been convicted by a single judge of the High Court, she may seek leave to appeal against her conviction or sentence (or both) by applying to the same judge who convicted her. That judge must decide whether there is a reasonable prospect that an appeal court would reach a different finding. If the judge decides the appeal does have reasonable prospects of success, she can grant leave to appeal either to a full court (three judges) of the High Court or, if the matter is difficult, straight to the Supreme Court of Appeal.
If the single High Court judge refuses leave to appeal, that decision is itself appealable: the accused may petition the Supreme Court of Appeal, asking it to overturn the single judges refusal and grant leave to appeal.
The Constitutional Court is the highest court. It decides who can bring appeals to it. Normally it gives leave to appeal to it only in constitutional cases, but it can also decide a case if it involves an arguable point of law of general public importance.
If someone is sentenced to prison but appeals, does he or she still go to prison while the appeal is being heard?
It depends. Much like when the accused is first arrested and charged,
the state may imprison her pending the outcome of proceedings, but she is entitled to apply for bail.
The basic rule is that the conviction and sentence are not suspended pending the appeal, so the appellant must go to prison in the meantime. But the court that convicted the appellant may, upon application and if it deems it appropriate, release the accused on bail.
On appeal, can witnesses be called again?
No.
An appeal court studies the record of the trial proceedings and hears oral argument from each sides lawyers. It usually does not hear any new evidence. The purpose of the appeal is to decide whether the trial court reached the right conclusion on the evidence before it not to conduct a re-trial. But in very rare cases, an appeal court can allow new evidence in.
On appeal, are the facts of the case carefully looked at again or only the interpretation of the law?
Both the law and the facts are reconsidered. But in South African law,
appeal courts pay very great respect to the trial courts factual and credibility findings. This means these are not easily overturned. An appeal court is not strictly confined to the legal issues, but its power to overturn the trial courts factual findings is limited. It will show deference to the court that saw first-hand the witness testimony, physical evidence, and so on, and may depart from the trial courts factual findings only if the inference it drew from the evidence before it was clearly wrong.
http://www.news24.com/SouthAfrica/O...ing-tried-for-murder-in-South-Africa-20140516
