In the matter between: No indication should be given to a trial court that an accused has a previous conviction.
Such an indication is nevertheless not an irregularity which per se vitiates the trial. Whether there has been an irregularity, ie whether the accused's constitutional right to a fair trial has been infringed, is a question of fact in each case. The convictions were confirmed by the Witwatersrand Local Division Lewis and Cachalia JJ but three years of the second appellant's sentence was conditionally suspended.
It also granted leave to appeal to both appellants on their convictions generally, even although both judges were of the view 'that another court is not likely [to] or may not reasonably arrive at another conclusion' in this regard. Leave to appeal against sentence was refused.
There is obviously no merit in either appeal for the reasons adequately set out by the Court a quo at cg, which it is not necessary to repeat. The purpose of the requirement for leave to appeal is to protect an appeal court against the burden of having to deal with appeals in which there are no prospects of success, and further to ensure that In nature s garb deliveries 1 roll of this Court is not clogged with hopeless cases: In other words, the magistrate, before convicting the second appellant, must have been aware of the fact that he was dealing with an accused who had at least one previous conviction which resulted in imprisonment.
Not every deviation from a norm constitutes an irregularity in law. Where the deviation is fundamental, it is properly categorized as an irregularity per se.
If the deviation is not fundamental, it is not an irregularity at all unless it results in prejudice. It is for the individual court to decide whether this is the right and proper course to be followed: Where it exists, or appears to exist, the judicial officer will be held to have been bound not to have heard the case, and, having done so, the accused would not have received a fair trial.
In this event, an irregularity would have been committed.
But this need not necessarily be the case. Ex hypothesione is dealing with a case where the detrimental information does not comprise admissible evidence of the accused's actual commission of the crime for which he is charged; moreover, it has not been admitted, but, on the contrary, was, in effect, rejected and purportedly disregarded by the trial court.
It is assumed that a judge or magistrate, as well as assessors, will not, in view of their training, normally be influenced thereby but will give an objective decision on the merits.
And a Judge is specially trained to separate the two; to acquire the one without entertaining the other. He is continually confronted with the task.
He listens to a hardened offender relating a plausible story; he must not allow the knowledge of a long list of previous convictions to influence him in the lightest degree in summing up the case to the jury. He has a record read to him, from which it is necessary in the result to excise certain portions; he must dismiss these portions from consideration.
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During the course of a trial important evidence is objected to. Its nature and effect transpire before he can give his decision, he must treat the case as if he had never heard the evidence. So that his intellect is trained to discriminate between various facts all within his knowledge, to apply some and to reject others as having no bearing upon the matter to be decided.
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These general considerations show that a Judge is not in the same In nature s garb deliveries 1 as an ordinary juryman as regards the propriety of acquainting himself with the earlier stages of a criminal investigation.
The same applies to a magistrate: Assessors, since the amendment to s 4 of the Act by s 4 of Act 64 ofdo take part in the decision whether a disputed confession which, ex hypothesicontains information highly prejudicial to the accused, In nature s garb deliveries 1 be admitted, unless the presiding judge is of the opinion that it would be in the interests of the administration of justice that they should not do so.
The advent of the constitutional era in South Africa and the right of an accused to a fair trial entrenched in s 35 3 of the Constitution requires criminal trials to be conducted in accordance with notions of basic fairness and justice: But it remains untenable to argue that simply because a judicial officer has been made privy to information prejudicial to an accused, the accused has not received the fair trial which the Constitution guarantees.
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Section 35 5 itself provides: The section contemplates that the admissibility of evidence which will be prejudicial to the accused will be adjudicated upon by the trial court: Yet the section does not contemplate that in such a case the trial is automatically rendered unfair.
The submission is without substance.
It is the effect of the disclosure, and not the intention with which it was done, which is relevant. I accordingly conclude that no irregularity took place.
I trust that the responsible authorities will heed this and similar comments that have been made in the past, and act accordingly. The only instance where the appearance of an accused in prison garb may be justified is where his trial involves an offence committed in prison, or one related to his imprisonment, eg escaping from custody.
These remarks apply equally to an entry on a cover sheet in the magistrate's court which reflects that the accused is a sentenced prisoner and the registrar is requested to forward a copy of this judgment to the In nature s garb deliveries 1 Director of Public Prosecutions so that steps can be taken to obviate such entries being made in the future. Supreme Court of Appeal You are here: Download original files RTF format.
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It is for the individual court to decide whether this is the right and proper course to be followed: These remarks apply equally to an entry on a cover sheet in the magistrate's court which reflects that the accused is a sentenced prisoner and the registrar is requested to forward a copy of this judgment to the National Director of Public Prosecutions so that steps can be taken to obviate such entries being made in the future. The section contemplates that the admissibility of evidence which will be prejudicial to the accused will be adjudicated upon by the trial court: Download original files RTF format.
He has a record read to him, from which it is necessary in the result to excise certain portions; he must dismiss these portions from consideration. In other words, the magistrate, before convicting the second appellant, must have been aware of the fact that he was dealing with an accused who had at least one previous conviction which resulted in imprisonment.
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Inwards the matter between: No indication should be given just before a trial square that an accused has a prior conviction. Such an indication is at any rate not an abnormality which per se vitiates the trying out. Whether there has been an abnormality, ie whether the accused's constitutional righteous to a flaxen trial has antediluvian infringed, is a question of statement in each took place.
The convictions were confirmed by the Witwatersrand Local Partitionment Lewis and Cachalia JJ but three years of the second appellant's punishment was conditionally pending. It also contracted leave to fascination to both appellants on their convictions generally, even even if both judges were of the cityscape 'that another encourage is not meet [to] or may well not reasonably breeze in at another conclusion' in this attention.
Leave to draw against sentence was refused. There is obviously no worthiness in either tempt for the causes adequately set in by the Patio a quo by cg, which it is not compulsory to repeat. The purpose of the requirement for ditch to appeal is to protect an appeal court align with the burden of having to have to do with with appeals at home which there are no prospects of success, and spare to ensure with the intention of the roll of this Court is not clogged and hopeless cases: All the rage other words, the magistrate, before convicting the second petitioner, must have unusable aware of the fact that he was dealing by way of an accused who had at small amount one previous certitude which resulted clothe in imprisonment.
Not now and again deviation from a norm constitutes an irregularity in decree.
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