Discharge of the accused at the close of the case for the prosecution: Public opinion and the right to a fair trial in terms of the accusatorial system of criminal procedure

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According to section 174 of the Criminal Procedure Act 51 of 1977 a court may, at the close of the case for the prosecution, if it is of the opinion that there is no evidence that the accused committed the offence referred to in the charge sheet or any other offence of which the accused may be convicted of, return a verdict of not guilty. This procedure is referred to as a discharge at the end of the case for the prosecution.

On 8 December 2014 the deputy judge president of the Western Cape high court, Traverso DJP, granted an application for the discharge of the accused in the case of Shrien Dewani, who was accused of conspiring to kidnap, rob and murder his wife Anni. The decision of the court to discharge the accused came as a shock to the deceased's family and the public in general. Two public interest groups, the Higher Education Transformation Network and the Justice4ANNI Campaign, subsequently lodged complaints against the decision of the deputy judge president with the judicial conduct committee of the Judicial Services Commission.

In this contribution the application of section 174 of the Criminal Procedure Act, as well as the application thereof in the Dewani case, are set out and discussed. It is trite law that the term no evidence does not mean no evidence at all, but that it means no evidence upon which a reasonable court acting carefully might convict the accused. The test was originally interpreted as a two-stage inquiry: first, it should be asked whether there is evidence upon which a reasonable man acting carefully might convict the accused; if not, it should secondly be determined whether there is a reasonable possibility that the defence evidence might supplement the state's case. If the answer to either question is yes, there should be no discharge and the accused should be placed on his defence.

The second leg of this test did not always find favour, even before 1994. The supreme court of appeal held that an accused is entitled to his discharge at the close of the case for the prosecution if there is no possibility of a conviction at that stage, except if the accused enters the witness box and incriminates himself. However, this will indeed infringe upon his constitutional rights to silence and the prohibition against self-incrimination, resulting in the trial being unfair. The credibility of state witnesses plays a very limited role at this stage of the proceedings and their evidence can be ignored only if it is of such poor quality that no reasonable person could possibly accept it.

At this stage it is important to distinguish between the decision of the prosecution to institute a prosecution, the application of the test whether to grant an application to discharge the accused and the general onus resting on the prosecution to prove the guilt of the accused beyond a reasonable doubt.

The application of the accusatorial system of criminal procedure in South Africa is evaluated with specific reference to the question whether certain rules of this system may create the impression in the mind of the public in general that the system does not reveal the truth and is therefore unfair. In terms of the accusatorial system the prosecution and the defence act as opponents who place their respective cases before an impartial presiding officer, who is not expected to descend into the arena. This system leaves it to the parties to unearth the truth. In terms of the inquisitorial system the presiding officer is in charge of the case and takes part and controls the process to find the truth. The control that the parties has over the process in the accusatorial system, the exclusionary evidentiary rules applicable and the accused's right to silence may have the effect that values other than truth-finding are treated as more important. In a democratic order where the protection of human rights is put first and foremost, the playing field between the prosecution and the accused is not always level. There is, for instance, no duty to discover information on the accused and he has a right to silence. These rules may act as barriers to truth-finding. In the Dewani case the prosecution was faced with such barriers, which are set out and discussed.

The complaints levelled against the deputy judge president are discussed and evaluated. The judicial complaints committee of the Judicial Services Commission held that the complaints against the deputy judge president were unfounded, as they were not based on reliable facts or the official court record. The complaints that she was prejudiced against the prosecution were also dismissed. The committee held that a complainant who alleges prejudice had to overcome the presumption of impartiality. The complainant must show that the remarks complained of were of such a number and quality as to go beyond any suggestion of mere irritation. It should establish a pattern of conduct sufficient to dislodge the presumption of impartiality and replace it with a reasonable perception of bias.

Although the complaints against Traverso DJP were dismissed, public opinion regarding the criminal justice system cannot be ignored. The courts need public support and institutional legitimacy to function fairly and efficiently. In a recent study it was confirmed that if the courts exercised their duties in an effective and fair manner, it would foster a sense of responsibility and moral support among members of the public. This would enhance compliance with the principle of supremacy of the law.

In instances where a court has to exclude evidence against an accused that was obtained in an unconstitutional manner in terms of section 35(5) of the Constitution, public opinion has a role to play. Public opinion can, however, never dictate to a court how to exercise its discretion in this regard. The court has a duty to educate the public that a fair trial is one that takes place according to constitutional values. In this regard even accused persons qualify as vulnerable minorities who should be protected by the Constitution. The willingness of the courts to protect the constitutional rights of accused persons will enhance confidence in the criminal justice system.

It is submitted that the court in the Dewani case applied the relevant legal principles in a sound manner. The court correctly did not heed public opinion that the accused should have been placed on his defence. The court also correctly held that the state did not adduce sufficient evidence implicating the accused in the commission of the offences he was charged with and that the only consequence of placing the accused on his defence would be that he would incriminate himself. This would clearly have infringed on his right to silence and the prohibition against self-incrimination.

It is concluded that although public opinion plays a role during the interpretation of the Constitution and the application of the law of criminal procedure, public opinion remains subservient to the long-term values which the Constitution endeavours to foster and protect.

Keywords: accusatorial system; discharge of the accused at the close of the case for the prosecution; prohibition against self incrimination; public opinion; right to silence, S v Dewani;section 174 of the Criminal Procedure Act


Lees die volledige artikel in Afrikaans: Ontslag van ’n beskuldigde na die sluiting van die vervolgingsaak: openbare mening en die reg op ’n billike verhoor ingevolge die akkusatoriese strafprosesregstelsel

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