Accused in a Criminal Trial?
| CRIMINAL LITIGATION |
| When accused of contravening a statute or committing a crime, you are usually charged by the state. The type of court case is referred to as criminal litigation. |
| Right to Representation |
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Whether guilty or not, you are entitled to be represented by an attorney of your choice. You are also entitled to remain silent and first consult an attorney. Attorneys are trained and experienced in applying the law and scrutinising charges. They can also point you to defences that may be available to one based on the given set of facts. Even if you intend pleading guilty, the attorney can present a case in mitigation of sentence or assist in the plea bargaining process. |
| The Courts |
| There are different courts in which one can be charged, depending on the nature of the charge and the location of the alleged offence. Most criminal charges are started in the Magistrates’ Courts ‹known as the lower courts in South Africa.› More serious offences ‹or repeat offenders› are referred to the Regional Courts or the applicable High Court. We have attorneys to assist you with right of appearance in all these forums. We also act from time to time on Legal Aid matters where the Legal Aid Board funds the litigation. This aid is only given to people who cannot afford paying ‹according to a prescribed means test.› |
| The trial |
| The process commences with a first appearance at which the accused is advised of various rights regarding the trial. Thereafter the matter is, more often than not, postponed for further investigation or trial. One has the right to a “speedy” trial and may object to postponement without good reason. If the court refuses postponement, it could in certain circumstances mean the end of the matter and the accused free to go. If the accused is in custody, he/she may give notice and apply for Bail. Once the trial commences, the public prosecutor ‹who represents the state› will read the charge to the accused and he/she will be required to plead. There are different mechanisms ‹ways to plead› in the Criminal Procedure Act, depending on how one plans to conduct ones defence. |
| If a not guilty plea is entered, the State must lead evidence by calling witnesses. The witnesses may be cross examined by the accused. The rules of procedure and evidence govern the cross–examination and the trial attorney is trained/experienced in this discipline. |
| After the State has finished presenting its evidence, the accused may argue for acquital. If not acquitted, the accused may testify and/or present evidence by calling witnesses to “prove” his/her defence. The burden of proof is however on the State to show beyond reasonable doubt that the accused is guilty. |
| Once the defence ends its case, argument will be presented by both sides. Then the presiding officer ‹eg. the magistrate› must consider and bring out his/her verdict of guilty or not–guilty. |
| If there is a finding of guilty, the accused may present evidence in mitigation of sentence. Such evidence may be contested by the State. The court then decides on an appropriate sentence. |
| The right to appeal |
| If unhappy with either the verdict or the sentence, one may apply for leave to appeal to a Higher court. The appeal process is often rewarding, but it is a minefield of time periods and procedural rules and it is best to let a professional handle your appeal. |
