QUESTION TWO
Inspector Campbell receives information that could lead to securing material evidence in a murder case. The information entails that a motor vehicle with the specific registration number and description left the scene in a rush after the shooting incident that caused the death of Lolo Jem. The driver of the vehicle could be a material witness for the state. Inspector Campbell decides to follow up on the information received and visits Zilver Ferris, the vehicle's registered owner. Zilver Ferris admits that he was parked next to the shop where the murder occurred on the specific day but refuses to provide further cooperation since he does not want to "get involved" in the matter. He also refuses to give a statement. Inspector Campbell is convinced that Zilver Ferris has material information that might assist the investigation. Advice Inspector Campbell, with reference to the provisions of the Criminal Procedure Act, 51 of 1977, what steps he can take to obtain the information from Zilver; and how the procedure is applied, with reference to case law. [5]
QUESTION THREE
Provide a short summary of the procedure after arrest, substantiated with reference to legislation and case law. You need to discuss what happens to the accused after arrest until the point where the accused is released on bail in the magistrates' court. [5]
QUESTION FOUR
This question is a reflection question, meaning you will be asked to answer the question using your own experience as a guide. Therefore, your experience will not be assessed in terms of correct or incorrect, but the reference to the applicable theory will be evaluated in context.
Identify an issue and describe the challenges you foresee if you had to represent an accused in a bail application where the accused is charged with murder.
Marks for this section will be awarded as follows:
Is the issue clearly identified?
Why is the issue reasonably to be expected from a legal practitioner and justifiably relevant to specifically the bail application of an accused?
A brief description of a plausible way to proceed to address the issue, or prepare for the issue, or to deal with the issue (whichever finds application to your example).
[5]
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QUESTION TWO:
Inspector Campbell can take the following steps to obtain the information from Zilver Ferris:
1. Request a search warrant: Inspector Campbell can apply for a search warrant from a magistrate, allowing him to search Zilver Ferris's premises for any evidence related to the murder case. The search warrant should specify the items or documents to be seized.
2. Apply for a subpoena: Inspector Campbell can apply to a magistrate for a subpoena, compelling Zilver Ferris to appear in court and give evidence. If Zilver Ferris still refuses to cooperate, he may be held in contempt of court.
3. Conduct further investigations: Inspector Campbell can interview other witnesses or gather additional evidence to corroborate the information received about the motor vehicle. This may include reviewing CCTV footage, obtaining witness statements, or conducting forensic analysis.
4. Consider the use of informants: Inspector Campbell can try to gather information from other sources, such as confidential informants, who may have knowledge about Zilver Ferris's involvement or the motor vehicle in question. This should be done within the limits of the law and with proper authorization.
The procedure for obtaining information from Zilver Ferris should follow the provisions of the Criminal Procedure Act, 51 of 1977. Specifically, Section 205 of the Act allows for the issuance of search warrants, and Section 208 allows for the issuance of subpoenas. These sections provide the legal framework for obtaining evidence and cooperation from individuals during an investigation.
In terms of case law, the case of S v Phokolosi and Another (2003) is relevant. In this case, the Supreme Court of Appeal held that a search warrant obtained without valid grounds violates the accused’s right to privacy, as enshrined in the Constitution. Therefore, Inspector Campbell must ensure that he has sufficient grounds to obtain a search warrant and follow the proper procedure to avoid any potential violation of Zilver Ferris's rights.
QUESTION THREE:
After arrest, the procedure for the accused can be summarized as follows:
1. Arrest: The accused is apprehended by the police or law enforcement authorities based on reasonable suspicion or a warrant. The accused is informed of their rights and the reason for their arrest.
2. Detention: The accused is taken into custody and brought to a police station or holding facility. They may be searched, fingerprinted, and photographed. The accused may be questioned by the police, but they have the right to remain silent and the right to legal representation.
3. First court appearance: The accused is brought before a magistrate or judge as soon as possible, but no later than 48 hours after their arrest. The purpose of this appearance is to inform the accused of the charges against them and to consider bail.
4. Bail application: The accused has the right to apply for bail. The bail application is heard in a magistrates' court, where the court considers various factors, such as the seriousness of the offense, the likelihood of the accused fleeing, and the risk of the accused interfering with witnesses or the investigation. The court may grant bail, impose conditions for bail, or deny bail.
5. Remand: If bail is denied, or if the accused is unable to pay the bail amount, they will be remanded in custody until the next court appearance or the conclusion of the trial.
The procedure described above is based on the Criminal Procedure Act, 51 of 1977. Sections 35-43 of the Act set out the procedural rights of the accused after arrest, including the right to legal representation, the right to be informed of the charges, and the right to apply for bail. Section 59 of the Act deals specifically with bail applications in magistrates' courts.
Case law relevant to this procedure includes S v Dlamini (1999), where the Constitutional Court held that the right to a fair trial includes the right to reasonable bail. This means that the court must balance the interests of the accused and the interests of society when considering bail applications. The court must also consider the presumption of innocence and the principle that pretrial detention should be an exception rather than the rule.
QUESTION FOUR:
Issue: The issue is the presumption of innocence and the potential prejudice it may cause in a bail application for an accused charged with murder.
• Why is the issue reasonably to be expected from a legal practitioner and justifiably relevant to specifically the bail application of an accused?
This issue is reasonably to be expected from a legal practitioner as the presumption of innocence is a fundamental principle in criminal law. It ensures that an accused is not prejudiced before their guilt is proven beyond a reasonable doubt. In a bail application for an accused charged with murder, the seriousness of the offense may lead to concerns by the court that the accused may pose a flight risk or a danger to the community. Balancing these concerns with the presumption of innocence can be challenging for a legal practitioner.
• A brief description of a plausible way to proceed to address the issue, or prepare for the issue, or to deal with the issue (whichever finds application to your example).
To address this issue, a legal practitioner representing an accused charged with murder in a bail application can present evidence and arguments to demonstrate that the accused is not a flight risk or a danger to the community. This may include presenting evidence of strong community ties, employment stability, or family support. The legal practitioner can also argue that the strength of the prosecution's case has not been proven yet, and therefore, the presumption of innocence should weigh heavily in favor of granting bail. Additionally, the legal practitioner can propose stringent bail conditions, such as electronic monitoring or regular reporting to the police, to address any concerns the court may have about the accused's potential danger to the community.
By addressing these factors, a legal practitioner can mitigate the potential challenges posed by the presumption of innocence in a bail application for an accused charged with murder.
QUESTION TWO:
To obtain the information from Zilver and assist the investigation, Inspector Campbell can take the following steps, with references to the Criminal Procedure Act, 51 of 1977:
1. Issue a Notice to Attend:
Inspector Campbell can serve Zilver Ferris with a notice to attend court as a witness, as provided for in Section 205(1) of the Criminal Procedure Act. This notice compels Zilver to appear before the court and provide necessary information regarding the incident.
2. Issue a Subpoena:
If Zilver still refuses to cooperate, Inspector Campbell can apply for a subpoena, as provided for in Section 205(3) of the Criminal Procedure Act. The subpoena would require Zilver to provide a statement and testify as a witness, and failure to comply with the subpoena may result in contempt of court.
3. Apply for a Search Warrant:
If Zilver has material evidence but is refusing to disclose it, Inspector Campbell can apply for a search warrant under Section 20 of the Criminal Procedure Act. This would allow the police to search Zilver's premises, vehicle, or any other relevant place to locate and seize the evidence.
Case law: In the case of S v Moipolai (2009), the court held that the police have the power to issue a notice to attend, subpoena, or search warrant to secure evidence and witness cooperation in a criminal investigation.
QUESTION THREE:
After arrest, the procedure for the accused, leading up to the point of release on bail in the magistrate's court, involves the following steps:
1. Detention and Arrest:
Upon arrest, the accused is taken into custody by the police. The police must inform the accused of their rights, including the right to remain silent and the right to legal representation, as provided for in Section 35(1)(b) and (c) of the Constitution of South Africa.
2. First Court Appearance:
The accused must be brought before a court within 48 hours of arrest, or as soon as reasonably possible. At this first court appearance, the court informs the accused of the charges, explains their rights, and decides on further detention or bail.
3. Bail Application:
If the accused wishes to apply for bail, they must formally do so in court. The magistrate will consider factors such as the seriousness of the offense, the likelihood of the accused fleeing, and the interest of justice when determining whether to grant bail or not, as provided for in Section 60 of the Criminal Procedure Act.
4. Remand Detention:
If bail is denied or not granted, the accused will be remanded in custody until the trial. The accused will then be transferred to a prison or holding facility.
Legislation: These steps are guided by the Constitution of South Africa (Section 35) and the Criminal Procedure Act, 51 of 1977 (Section 60).
QUESTION FOUR:
Issue: Challenging the presumption of innocence and the gravity of the charge in a bail application where the accused is charged with murder.
Reason for Expectation and Relevance:
As a legal practitioner, it is reasonable to expect this issue due to the nature of the offense. Murder is a serious crime and courts may be reluctant to grant bail due to concerns about the accused being a flight risk or a danger to society. Challenging the presumption of innocence and addressing the gravity of the charge becomes relevant in persuading the court to grant bail.
Plausible Way to Proceed:
To address this issue, the legal practitioner representing the accused can:
1. Gather evidence on the accused's ties to the community:
Demonstrate that the accused has strong roots in the community, such as stable employment, family ties, and community involvement. This helps to establish that the accused is not a flight risk and is likely to appear in court.
2. Present a detailed bail application:
Prepare a comprehensive bail application that addresses the specific circumstances of the accused and provides compelling reasons to grant bail. This may include highlighting any weaknesses in the prosecution's case, ensuring access to legal representation, and proposing suitable bail conditions to address any concerns about public safety.
3. Secure character references:
Obtain references from trusted individuals in the community who can vouch for the character and trustworthiness of the accused. These references can help counterbalance the severity of the charge and demonstrate the accused's potential for rehabilitation.
Overall, the legal practitioner should present a strong case that highlights the accused's presumption of innocence, while addressing the concerns associated with the gravity of the charge, in order to persuade the court to grant bail.
QUESTION TWO
Inspector Campbell can take the following steps to obtain the information from Zilver Ferris:
1. Request a Search and Seizure Warrant: Inspector Campbell can apply to a magistrate for a search and seizure warrant to search for potential evidence, such as the vehicle, at Zilver Ferris's premises. The Criminal Procedure Act, 51 of 1977 allows for the issuance of search warrants in cases where there are reasonable grounds to believe that the evidence is on the premises.
2. Interview Zilver Ferris as a Witness: Even though Zilver Ferris refuses to provide a statement, Inspector Campbell can still interview him as a witness. He can question Zilver about his presence at the scene, his observations, and any other relevant information he may be willing to share. The information obtained during the interview can be used to build a case against the suspect.
3. Compel Zilver Ferris to Give Evidence: Inspector Campbell can utilize the provisions of the Criminal Procedure Act, 51 of 1977 to compel Zilver Ferris to give evidence. Section 179 of the Act states that a witness can be subpoenaed to appear before a court and provide relevant evidence. If Zilver Ferris continues to refuse to cooperate, he can be held in contempt of court.
4. Obtain a Section 205 Order: Inspector Campbell can apply for a Section 205 order, which allows the court to compel a person who possesses information relevant to an investigation to answer questions. This can be used to compel Zilver Ferris to provide further cooperation and information.
It's important to note that the specific application of the Criminal Procedure Act and case law will depend on the jurisdiction and the exact circumstances of the case. Inspector Campbell should consult with legal advisers and follow the relevant legal procedures and precedents in his jurisdiction.
QUESTION THREE
After arrest, the accused goes through the following procedure until the point where they are released on bail in the magistrates' court:
1. Initial Appearance: The accused is brought before a magistrate as soon as possible after arrest. The magistrate informs the accused of their rights and the charges against them. The accused may also be informed of their right to legal representation.
2. Remand in Custody or Release on Bail: The magistrate then decides whether the accused should be kept in custody or released on bail. This decision is based on factors such as the seriousness of the offense, the accused's criminal history, the likelihood of the accused fleeing, and the potential danger they may pose to the community. The decision is made in accordance with the Bail Act or relevant legislation in the jurisdiction.
3. Bail Application: If the accused is remanded in custody, they have the right to apply for bail. The bail application involves presenting arguments and evidence to persuade the court that the accused should be released on bail. The court considers factors such as the strength of the evidence against the accused and their likelihood to appear for trial.
4. Bail Hearing: A bail hearing is conducted where the prosecution and defense present their arguments and the court determines whether to grant bail, deny bail, or impose conditions on the bail. The court may also consider the seriousness of the offense, the accused's ties to the community, and any potential risks associated with releasing the accused on bail.
5. Bail Decision: The magistrate makes a decision on whether to grant bail or deny bail. If bail is granted, the accused may be required to provide certain conditions, such as a monetary deposit, reporting to a police station, surrendering travel documents, or having a surety. If bail is denied, the accused will remain in custody until their trial.
It's important to note that the specific procedure after arrest and the criteria for granting bail may vary depending on the jurisdiction and applicable legislation. Legal practitioners should refer to the relevant legislation and case law in their jurisdiction to assist their clients effectively.
QUESTION FOUR
In representing an accused in a bail application where the accused is charged with murder, one major issue could be the presumption against bail in cases involving serious offenses. This issue can be identified as follows:
1. Issue Identification: The issue of obtaining bail in a murder case involves the presumption against bail, as murder is regarded as a serious offense with a potentially high penalty. The accused may face significant challenges in convincing the court that they should be released on bail.
2. Reasonable Expectation and Relevance: This issue is reasonably expected from a legal practitioner because it is common for courts to be cautious in granting bail in murder cases due to concerns about flight risk, danger to the community, and the seriousness of the offense. The issue is relevant to the bail application of an accused because it directly affects the accused's right to liberty and their ability to prepare for their defense.
3. Addressing the Issue: To address this issue, the legal practitioner could proceed by presenting compelling arguments and evidence that demonstrate the accused's ties to the community, their strong support network, their previous good character, and any other factors that reduce the flight risk or danger to the community. Additionally, the legal practitioner could propose conditions, such as electronic monitoring or a curfew, to mitigate these concerns and assure the court that the accused will comply with bail conditions.
It's essential to consider that the specific challenges and strategies may vary depending on the jurisdiction and the specifics of the case. The legal practitioner should thoroughly analyze legislation, case law, and precedents to effectively address the issue and advocate for their client's bail application.