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Chapter 1 intro Flashcards

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1
Q

What is the constant need in balancing values related to crime?

A

To balance crime control and upholding the rights and freedoms of all individuals.

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2
Q

What is the fundamental principle regarding individuals accused of crimes?

A

The idea that someone is innocent until proven guilty.

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3
Q

What are the main goals of the Criminal Control Model?

A

To repress criminal conduct.

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4
Q

What is the main objective of the Due Process Model?

A

To ensure that sentencing and convictions respect the rights of the individual at every critical stage.

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5
Q

How does the Due Process Model gain momentum?

A

When assessed in light of the Bill of Rights.

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6
Q

Are the Criminal Control Model and the Due Process Model in conflict?

A

No, they are different and must be balanced.

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7
Q

What did Davis J observe regarding the burden of crime control?

A

It is wrong to conclude that preserving the Constitution is a nod to criminals.

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8
Q

What is a potential consequence of stricter crime control rules?

A

Sending more innocents to prison.

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9
Q

What must any system recognize about innocence and accusation?

A

Even innocents can be accused and have rules applied to them.

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10
Q

What would absolute State power improve, and what would it create?

A

It would improve crime control but create tyranny.

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11
Q

What must Criminal Procedure rules do regarding State Power?

A

Regulate State Power both positively and negatively.

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12
Q

What conflict exists in the rights of the accused and the victim?

A

The victim has the right to seek justice, while the accused has the right to a fair trial.

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13
Q

What does Section 35(5) of the constitution prevent?

A

It prevents the State from obtaining evidence unconstitutionally in pursuit of a conviction.

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14
Q

Fill in the blank: The function of the criminal justice system is not exclusively to curb crime but also to ensure that _______.

A

suspects are not treated unfairly.

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15
Q

What does Packer state about power in the criminal process?

A

Power is always subject to abuse, sometimes subtle and other times open and ugly.

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16
Q

What has the Constitution done regarding the State?

A

Brought the State under the rule of law to prevent future abuse.

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17
Q

What is the purpose of the Service Charter for Victims of Crime in South Africa?

A

It sets out victim rights as contained in the Constitution and legislation.

Adopted by parliament in terms of section 234 of the Constitution.

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18
Q

What is a concern regarding the criminal justice system’s orientation?

A

It is offender-orientated to the detriment of the rights and interests of victims and other witnesses.

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19
Q

What statutory provisions exist to promote victim participation in the criminal process?

A

There are various provisions designed to enhance victim participation.

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20
Q

In Wickham v Magistrate, Stellenbosch, what did the Constitutional Court find regarding victim rights?

A

The rights of the victim were properly accommodated through extensive participation afforded by the prosecutor.

Ruling referenced section 105A.

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21
Q

Does the Service Charter for Victims of Crime in South Africa provide a victim with an absolute right to be heard?

A

No, it does not provide an absolute right to be heard on demand.

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22
Q

What must investigating officers collect from victims in sexual offences?

A

An impact statement detailing how the offence has affected their life.

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23
Q

What was the finding in Mhlongo regarding the absence of a victim impact statement?

A

It was found unacceptable as it deprived the rape victim of the opportunity to express how the crime affected her.

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24
Q

What does Section 299A of the Criminal Procedure Act provide?

A

It gives complainants or relatives of the deceased the right to make representations regarding a convicted person’s placement on parole.

Read with section 75(4) of the Correctional Services Act.

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25
What duty does the prosecution have according to Nxumalo regarding victims' rights?
To ensure that victims are present during the sentencing phase to inform them of their rights regarding future representations for parole.
26
What does Section 144(3)(a)(ii) require for the arraignment of an accused in a summary trial?
The charge must be accompanied by a witness list unless there is reason to believe they will be intimidated.
27
What does Section 153(2) allow the court to do if there is a likelihood of harm to a witness?
The court may direct that the witness testify privately to protect their identity.
28
Under what circumstances can a court order a witness to testify via closed-circuit television?
If it would prevent harm or prejudice.
29
What is the purpose of appointing an intermediary according to Section 170A?
To assist children or mentally challenged witnesses who may experience undue mental stress.
30
What regulations can the minister make under Section 191A?
Regulations relating to assistance, support to witnesses, establishment of reception centers, and counseling of witnesses.
31
What is the focus of the Criminal Law (Sexual Offences and Related Matters) Amendment Act?
It provides for the protection of sexual offence victims.
32
Who can apply for witness protection under the Witness Protection Act?
Any person that is or may be threatened or has reason to believe their safety will be affected.
33
What does the Bill of Rights provide regarding criminal procedural provisions?
They operate vertically between the State and community's interests and have horizontal application as required by case facts. ## Footnote Section 8(2) allows for horizontal application in specific cases.
34
How are constitutional criminal procedural provisions stated?
In the negative, limiting state power. ## Footnote This means that the provisions restrict what the state can do regarding individual rights.
35
Are most rights in the Bill of Rights absolute?
No, they may be curtailed or limited under certain circumstances. ## Footnote This reflects the balance between individual rights and societal interests.
36
What principle is essential for the usefulness of a Bill of Rights?
Justiciability. ## Footnote Without justiciability, individuals cannot seek enforcement of their rights.
37
What does Section 7 of the Bill of Rights refer to?
Limitations to the rights referred in the Bill of Rights. ## Footnote This section acknowledges that rights may not be absolute.
38
What is the focus of Section 8 of the Bill of Rights?
Regulates the application of chapter 2 in vertical and horizontal terms. ## Footnote This section clarifies how rights apply in different contexts.
39
What fundamental rights are stated in Sections 9 to 35 of the Constitution?
They range from the right to equality to the rights of arrested, detained, and accused persons. ## Footnote This includes a broad spectrum of civil liberties.
40
What does Section 36 of the Constitution address?
The limitations clause. ## Footnote This clause outlines how and when rights can be limited.
41
What does Section 37 provide for?
Derogation from the Bill of Rights during a State of Emergency, under strict conditions. ## Footnote This ensures that derogation is consistent with international law and does not affect non-negotiable rights.
42
What is the purpose of Section 38?
Lists who has locus standi in constitutional litigation. ## Footnote This includes individuals acting in their own interest, on behalf of others, or in the public interest.
43
What does Section 39 of the Constitution establish?
Interpretations clause. ## Footnote This section guides how rights should be interpreted in legal contexts.
44
What is the right addressed in Section 35 of the Constitution?
The right to a fair trial. ## Footnote This right is fundamental to criminal justice.
45
What does the case Veldman v DPP WLD indicate about the right to a fair trial?
It embraces more than the specific rights listed in section 35(3)(a) – (o). ## Footnote The case emphasizes broader notions of fairness and justice in trials.
46
What does the right to a fair trial require according to the Constitution?
Criminal trials must be conducted in accordance with basic fairness and justice notions. ## Footnote This places a duty on courts to ensure these principles are upheld.
47
What does criminal procedure deal with?
Suspects and accused persons ## Footnote Criminal procedure focuses on the legal processes surrounding individuals who are suspected or accused of crimes, rather than the detection or investigation of crimes themselves.
48
What is the presumption of innocence?
Every person is innocent until properly proven guilty ## Footnote 'Properly' implies compliance with the rules of evidence and criminal procedure.
49
What constitutes a conviction in a criminal trial?
An objective and impartial official pronouncement of legal guilt by the State ## Footnote This must occur in a properly conducted trial in accordance with the principle of legality.
50
What must the prosecution prove to secure a conviction?
Guilt beyond a reasonable doubt ## Footnote The burden of proof lies solely on the prosecution.
51
Who bears the burden of proof in a criminal trial?
The prosecution ## Footnote The accused does not need to prove their own innocence.
52
Can the presumption of innocence be affected by the nature of the alleged crime?
Yes, factors like offensiveness or prevalence can disturb the presumption ## Footnote The more serious the crime, the greater the importance of constitutional protections for the accused.
53
What is the right to silence in the context of criminal procedure?
An accused can never be forced to testify ## Footnote This right applies at all stages: pre-trial, trial, and sentencing.
54
What does Section 35(1)(a) of the Constitution guarantee?
Right to remain silent for arrestees ## Footnote This section protects individuals from self-incrimination.
55
What does Section 35(1)(c) of the Constitution state?
Right not to be compelled to make a confession or admission ## Footnote This right ensures that confessions cannot be used against the accused.
56
What is the role of the judge in the inquisitorial system?
The judge controls and conducts the search for truth ## Footnote The judge acts as the investigator, prosecutor, and defense counsel.
57
What is the primary characteristic of the accusatorial system?
The judge acts as an impartial umpire ## Footnote This system is used in South Africa, where the judge ensures fairness between prosecution and defense.
58
What is the significance of the Criminal Procedure Act 51 of 1977?
It is the fundamental legislation governing criminal procedure in South Africa ## Footnote This act is routinely amended to adapt to legal changes.
59
What is a writ of habeas corpus?
A court order to produce a detainee before the court ## Footnote This serves as a positive interdict ensuring the detainee's rights are upheld.
60
What is the purpose of a civil action for damages in criminal procedure?
To address wrongful arrests ## Footnote This action seeks compensation for violations of rights.
61
What does the exclusionary rule entail?
Exclusion of evidence obtained in violation of rights ## Footnote This is based on Section 35(5) of the Constitution.
62
What is the purpose of informal remedies in criminal procedure?
To resist unlawful arrest or escape from unlawful custody ## Footnote These methods, while risky, provide an avenue for individuals to protect their rights.
63
What does Section 38 of the Constitution allow?
Individuals to approach a court alleging infringement of rights ## Footnote This provision empowers citizens to seek justice for violations of their rights.
64
What type of organizations assist citizens in upholding their rights?
Non-governmental organizations ## Footnote These organizations work alongside state institutions to support constitutional democracy.

SPR 411 (4 decks)

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