Verdict - 11

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1

Verdict
 Constitution s (35) a, d, k, o
 CPA s 106;108 and S 256-270
2 Recap of previous class

 Adversarial justice system in South Africa


 Sequence of oral testimony
 Examination in chief
 Cross-examination
 Re-examination

 Closing case

3 Learning outcomes

 Meaning of a verdict
 Burden of proof and evidentiary burden
 A prima facie case
 Competent verdict and alternative verdict
 General principles on competent/alternative verdict
 Possible competent verdicts
4 Law applicable

 Constitution s (35) a, d, k, o
 CPA s 106;108 and S 256-270 Competent verdicts
 Constitution
 Constitution 35(3) (a) – Accused has to be properly informed of the charge against him to
be able to answer charge properly.
 Constitution s 35(3)(d) -Accused entitled to have trial ..conclude without unreasonable
delay.
 Constitution s35(3)(o) – Reasons –Appeal and Review

5 Verdict meaning

 After the close of the prosecution and the defence, a judicial officer must make a decision on the
proved facts – This is commonly referred to as considering a verdict on the merits of a case.
A judicial officer must convict or acquit an accused depending on:
 Burden of proof.
 The question of who has the burden of proving his or her case is called the burden of proof and
determined at the beginning of each trial. Based on substantive law.
 Burden of proof does not shift between the parties during the trial. Criminal trial it is the State –
beyond reasonable doubt. Wigmore (1940) referred to burden of proof as the “risk of non-
persuasion”. This means that if a party does not persuade the court of the merits of his/her
case, they risk losing it.
 The burden of proof is determined at the beginning of trial and it remains the same throughout.

6 Cont …

 Evidentiary Burden Differs from burden of proof. It is the burden that rests on a party to lead enough
evidence to force the other side to respond. Usually on the party seeking to establish case.
 It has two stages for prosecutor.
 First to produce sufficient evidence to justify the court allow the trial to continue on the merits.
 Second the evidence produced must convince the court to consider if the substantive burden has been
discharged.
 It is this evidentiary burden that may shift between the parties during the trial. Depending on how evidence is
led
 In most cases the evidentiary burden initially rests on the state on account of the resumption of innocence.
Moreover, the state must establish a prima facie case against the accused so that the accused can be
placed on his/her defence. Once a prima facie case is established, then the evidentiary burden shifts to
the accused who runs the risk of conviction if the evidence led by the prosecution is not challenged.
Accused discharged if no prima facie case established by state.


7 Cont …

 S v Boesak
 State bore onus of proving guilt beyond reasonable doubt (burden of proof)
 Once State had led a certain amount of incriminating evidence the accused had to make a
tactical choice: challenge by countervailing evidence, or remain silent (evidentiary
onus)
 If accused remains silent, there is risk that court will accept opposing evidence and regard
case as proved

8 ‘Prima facie case’: meaning and
implications on verdict
 Term often used - on the face of it ….at first glance / hearing
 In criminal trial can mean: Sufficient evidence to go ahead with prosecution OR Sufficient evidence to get
past application for discharge at end of State case OR Evidentiary onus satisfied: if no challenge by
countervailing evidence, court will regard case as proved
 Failure to rebut a prima facie case means that it may harden inti conclusive proof and accused found guilty. A
guilty verdict means prosecution has proved every element of the charge beyond reasonable doubt.
 Alternatively, acquittal follows where accused successfully establishes reasonable doubt in respect of one or
more of the substantive elements of the charge and establishes that there is a reasonable probability that
the defence’s version may be true.
 NB. Proof beyond reasonable doubt not absolute certainty. But can a reasonable judge rely on such proof to
find accused guilty? Beyond reasonable doubt closer to absolute certainty than proof on a balance of
probabilities (Constantine Oxford page 349).


9 Verdict in precise terms therefore:

 After - all evidence from both sides heard.


 PO – evaluate + assess. Establish the probabilities and improbabilities – weigh against
each side.
 Prosecutor – sufficient evidence to prove offence charged – beyond reasonable doubt ?
 YES = Presiding Officer has to convict and deliver verdict of guilty.
 Prosecutor fails to prove its case beyond a reasonable doubt ?
 NO = Pres Officer - gives verdict of not guilty & acquit.
10 Cont …

 Verdict means: decision/ judgment of the court to acquit or convict


 Must be given within reasonable time – ex tempore –immediately
 Court can postpone to consider its verdict.
 Open court –language accused understands
 Verdict for each count in a charge sheet in single judgement.
 Have to give reasons, especially if handing down a competent verdict.

11 Competent verdict/ alternative verdict:
Example
 CPA - s262 - provides : Accused faces >
 Main Charge is Housebreaking with Intent to commit an offence. Ancillary charges created
by CPA : Includes: Offences that accused could commit on premises :
1. Theft
2. Possession of stolen goods
3. Injury to property.
 If State unable to prove main charge but did prove the elements of any of the other
offences included under the charge the accused faces…..

12 Cont …

 Then in principle the accused may be convicted of the alternative / lesser offence.
 The main charge refers to the specific offence and the lesser crimes could be encompassed
in such offences and could therefore form the basis for the competent verdict.
 General Rule: CPA s262. Because it is mentioned as alternative offences it need not be
mentioned in the charge-sheet.
 Chauke- Now duty on court to inform accused of alternative charge – failure to warn
violate s35(3) (a)

13 What then is a competent verdict?

 A verdict, expressly permitted by law, when guilty of an offence other than the offence
charged. It may only be given where the evidence does not prove the offence charged,
but does prove - other offence in CPA section.
 CPA (Ch 26) provides a list of competent verdicts for different types of charges. See s 256-
269A.
 If court finds that evidence does not prove the offence charged, but does prove an offence
which is a competent verdict on the charge, court may convict accused of such other
offence.
 Not necessary for competent verdicts to be formally mentioned in the charge, but
undefended accused should be informed at outset of trial. Nb. Best to inform.

14 General Principles

 If State unable to prove commission particular offence BUT succeeded to prove the elements –
encompassed in the offence charged on charge sheet – then in principle accused can be
convicted on alternative charge.
 Not necessary for alternative lesser charge to be explicitly mentioned in charge sheet.
 Regulated by CPA - but Court has duty to inform accused. Best practice is to INFORM accused.
 Failure – violation of right to inform and answer
 S v Masita (2005)- Accused must be informed timeously of the competent verdict. S v Kester
(1996)- A competent verdict must be explained to accused before he/she pleads. S v Fellies
(2006) para 9 – Prejudice occurs when there is a failure to inform unrepresented accused of
possible competent verdict and accused conducts defence unaware of the risk of a competent
verdict.
15 Verdict - Court required to give reasons

 CPA s146 : Judgment should give findings and reasons for findings on fact and law.
 Importance of providing reasons: Public confidence the Criminal Justice System.
 NDPP v Naidoo 2011(1) SACR – has to give due consideration - and express the basis
for their decision through reasoned judgements.
 Proper reasons requires an intelligent analysis of the evidence - Court bases its
decisions on rational grounds.
 Evidence – holistic and accounts for all evidence
16 Difference between competent verdicts and
alternative charges
Competent Verdict Alternative charge
 Competent verdicts are ‘automatic ‘ as  Alternative charges are not ‘automatic’.
per CPA.  Have to be specified in the charge sheet.
 Do not need to be specified in the charge  Court can decide to convict on
sheet – but best inform
alternative charge even if main
 Court can only convict on competent charge is proved.
verdict if offence for which charged 
not proved by evidence.

17 Possible competent verdicts on particular charge
regulated by following sections of CPA.

 S 256: Attempt
 S 257: Accessory after the fact
 S258: Murder and attempted murder
 S260: Robbery
 S261: Sexual Offences – statutory offences
 S 270: general provision for other offences not mentioned in S 259-262.
 See also s 1 of Criminal Law Amendment Act 1 of 1988 – crime of ‘ statutory intoxication
‘.

18 Attempt: s 256 CPA

 Attempt
 Where the evidence in criminal proceedings does not prove the commission of the offence
charged but proves an attempt to commit that offence or any other offence that the
accused may be convicted of, the accused may be found guilty of an attempt to commit
that offence or as the case may be any such offence.
 S 256 makes attempt a competent verdict on all offences and all offences which are
competent verdicts to charged offences.

19 Old Example of competent verdict of
attempt
 Alletta Elliot, the 46-year-old woman accused of murdering her estranged husband’s girlfriend
in a flatlet in Cowie’s Hill in 2004 before wrapping the body in a sleeping bag and driving to
Johannesburg with it in her car boot a few days later, was found guilty of attempted murder
in the Durban High Court yesterday. Judge Shyam Gyanda said there are strong suspicions
that Elliot had killed the deceased, Annette Grobler, although this could not be proved
beyond a reasonable doubt. Gyanda said there were two major problems faced in arriving at
judgment: that Elliot was the only witness to the incident and that no cause of death could be
determined. The advanced stage of decomposition of the body did not allow for accurate, or
in fact ‘any’ finding to this effect, said Gyanda. He said it could only be speculated that
Grobler was suffocated, as the State suggested on the evidence of a plastic bag found over
the deceased’s head and tape wrapped around her mouth and nose. Furthermore, the
toxicology report did not reveal the presence of Rattex, which Elliot claimed to have placed
in food she prepared for Grobler on the day of her death. Sentencing is today.


20 Accessory after the fact: s 257 CPA

 If there is no proof that an accused was a perpetrator or co-perpetrator or accomplice in a


crime charged.. At the time of commission.
 He may be convicted as an accessory after the fact to the crime charged…
 Should there be proof that he had acted in such a capacity.

21 Accessory after the fact example

 Beach killing – accused admits to being accessory after the fact One of the two men
accused of the murder of Timothy Cox (18), of Anerley, on the KZN South Coast, in
November 2005 has pleaded guilty to being an accessory after the fact of murder.
Shaun Whyte and his friend Johannes du Plessis are accused of murdering Cox on a
Southport beach in 2005, says a report in The Mercury. Whyte told the Port Shepstone
Magistrates’ Court he saw Du Plessis strangle Cox and throw the body behind some
rocks. Whyte admitted he had assisted Du Plessis by covering up footprints and tracks
on the beach and that he had not informed the police of the murder. Whyte was
sentenced to correctional supervision and house arrest for three years. In addition, he
received three years' imprisonment, suspended for five years. He will testify against Du
Plessis next month.
22 General provisions for other offences:
CPA - s 270
 Offences not mentioned in Chp 26.
 270 Offences not specified in this Chapter
If the evidence on a charge for any offence not referred to in the preceding sections of this
Chapter does not prove the commission of the offence so charged but proves the commission of
an offence which by reason of the essential elements of that offence is included in the offence so
charged, the accused may be found guilty of the offence so proved.
 ‘Catch all ‘- This provision causes some difficulty in interpretation.
 It does not occur very often in practice
 Most offences referred to in CPA as competent verdicts
 Courts cautioned not to use this section to remedy the slovenly and inept work of Prosecutors
who fail to draft the correct charges by not including the essential elements of the alleged
component verdict in the original charge.
23 S 1 of Criminal Law Amendment Act

 Introduced in answer to the problem raised by S v Chretien – intoxicated but not liable.
 Now voluntary self induced lack of criminal non-responsibility caused by intoxication –
 Is now guilty of an offence put as an express or alternative charge = ‘ statutory
intoxication’.
 Example : Murder or alternatively contravention of s(1) of Act 1 OF 1988 and
 S1(2) this may be used as competent verdict for any prosecution for any offence with
reference to the original charge eg Charge : ‘ guilty of contravening s(1) of Act 1 of
1988 ( Murder )’.

24 Some specific competent verdicts

 On a charge of murder or attempted murder


 S 258: murder and attempted murder
 S 259: culpable homicide
 S 260: robbery – assault GBH, common assault, theft
 S 261: rape, compelled rape, sexual assault, compelled sexual assault, compelled self-
sexual assault
 S 264: theft

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