Topic 1 & 4 : Prosecution of crime & docket disclosure cont.

Prosecutors: ethical burden

- 'Ministers of truth' (ie function is not to secure conviction at all costs)
- Prosecutors & Defence = Officers of Court
ie 1st duty is proper administration of justice

Stinchcombe on role of prosecutor

The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings.

DOCKET DISCLOSURE

 Docket is basis of decision to prosecute conduct of prosecution

Contains witness statements ; record of previous convictions, notes on conduct of investigation, correspondence etc
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Pre-Constitutional position (Trial by ambush)

-- police docket and contents privileged (S v Steyn)

-- Ethical rule obliged prosecutor to disclose statement if witness deviated -- Stinchcombe highly influential on SA cases post Interim Constitution (See Shabalala v AG, Transvaal; Phato v AG, Eastern Cape ; S v Yengeni )
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Constitutional provisions
S 32 S 35(3) : access to information : right to fair trial

Current Position: The principle of docket disclosure is now firmly established in our law however it does not necessarily apply to all sections of the docket viz. National Director of Public Prosecutions v King 2010 (2) SACR 146 (SCA)
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At bail hearing: is accused entitled to access to docket?

- Accused not ordinarily entitled to police docket for bail hearing:
-- S 60(14) of CPA: Notwithstanding anything to the contrary contained in any law, no accused shall, for the purposes of bail proceedings, have access to any information, record or document relating to the offence in question, which is contained in, or forms part of, a police docketunless the prosecutor otherwise directs. (See S v Dlamini)
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Promotion of Access to Information Act

Does the Promotion of Access to Information Act apply to the disclosure of police dockets? Short answer: No See s 39: major limitations relating to police dockets.

Topic 3 : LEGAL REPRESENTATION

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Legal representation a basic constitutional right

Constitution: s 35 (2)(b), (2)(c), (3)(f) and (3)(g)

See also: -CPA s 73; -Child Justice Act.

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Pre-Constitutional/Common Law Position

- Hlantalala case (see also S v Radebe; S v Mbonani ):

--

distinction between common law & Constitutional rights facts & findings in casu
Implications if SCA had found that although common law right violated, no prejudice?

--

--

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Content of Right
Right to legal representation applies even to most trivial cases Also applies pre-trial eg during pointing-out (Melani)

If can afford it includes choice of legal rep if available. No postponement to do so (Swanepoel)

If cant afford it must accept States/LABs appointment (Halgryn)
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LIMITATIONS ON ENTITLEMENT

Only if substantial injustice would otherwise result Subject to LABs means test viz Legal Aid Board v The State & O 2011 (1) SACR 166 SCA
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What is meant by substantial injustice?

- No exact meaning: depends on circumstances of each case - Likelihood of imprisonment without option of fine would probably be considered substantial injustice [viz Hlantalala but cf. Cordier] - Irrelevant if conviction inevitable
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Quality of Legal Representation

- S v Halgryn: The constitutional right to counsel must be real and not illusory and an accused has, in principle, the right to a proper, effective or competent defence. BUT:- Whether defence so incompetent that trial unfair is a factual question. - Doesnt depend on ex post facto dissatisfaction of litigant cont.,
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Assessment is objective & without benefit of hindsight Distinction must be made between: -failure to take basic steps eg to consult [S v Majola 1982 (1) SA 125 (A); Chabedi] ; and failure to cross-examine effectively or to call/not to call witnesses

--

Where counsels discretion is involved the scope for complaint is limited

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Accuseds overriding choice

- Accused can decide if wants to be represented /not
- Court to ascertain reasons & advise representation especially in serious matters. Failure to do so can be fatal irregularity.
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Effect of setting aside

- Basis for setting aside of proceedings due to lack of legal representation is technical (not on merits) ie trial can therefore be reinstituted de novo

- Applies to either situation: where is substantial injustice because right to legal representation or to effective legal representation infringed
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Judges Rules
- CPA Appendix A - Introduced in 1931 as code of conduct to guide police in their dealings with suspects and accused persons - Administrative directives. No legal effect - Complemented by Constitution
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