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Criminal procedure — plea — guilty — when should be altered to one of not guilty — apparent defence being offered — only valid defence should result in alteration of plea
Criminal procedure — plea — guilty — explanation of charge and essential elements — questioning by magistrate in terms of s 271(2)(b) of Criminal Procedure and Evidence Act [Chapter 9:07] — manner in which questions should be asked — need to ensure that accused not admitting things he does not understand — need to ensure accused is admitting or denying relevant facts
Criminal procedure — scrutiny — by regional magistrate of criminal matter heard in lower court — meaning of "scrutiny"
The accused pleaded guilty to a charge of culpable homicide arising out of traffic accident which occurred at night. The magistrate then proceeded in terms of 271(2)(b) of the Criminal Procedure and Evidence Act [Chapter 9:07] to question the accused to canvass the essential elements of the offence. In answer to one question, the accused said he did not mean to cause the accident. The magistrate then proceeded to ask the accused a series of further questions, relating to the speed at which he was driving, the distance at which he was from the deceased when he first saw the deceased, the state of the lights on the accused's vehicle, and so on. The scrutinising regional magistrate was of the view that the accused was raising a triable issue and the plea should have been changed to one of not guilty. The trial magistrate explained that his approach had been to ascertain the facts from the accused, and then decide if negligence could be inferred from them. This approach necessarily entailed asking the accused several questions. He would not ask the accused person directly to admit negligence.
Held, that judicial officers, when proceeding in terms of s 271(2)(b), are free to ask the accused whatever questions they deem fit to ascertain the accused's guilt or innocence. There is no exhaustive list of questions, nor any limit to the ways in which the questions should be put. It is therefore permissible to ask indirect questions and infer from them the accused's guilt or innocence. An indirect question usually brings out the truth, as it does not warn the accused of the effect his answer may have. It overcomes the problem of an accused person's appreciation of legal concepts. It brings about real justice, as it seeks facts without clothing the question in legal jargon. This approach is preferable because legal concepts are not easy to master. In the case of unrepresented accused persons, the explanations of the charge and its elements should not be expected to fully inform them of the offence to the extent of expecting them to correctly and from an informed position answer direct questions based on legal concepts. Judicial officers should therefore always be careful, when canvassing essential elements, to avoid being satisfied by an accused's admission or denial of facts couched in legal jargon. They should ensure, through careful probing, that the accused is admitting or denying such facts. If an accused person is asked whether he admits that he was negligent, and he answers "yes", that answer does not mean that he was indeed negligent. The magistrate who fully appreciates what negligence means must ask questions which will enable him to establish whether or not the accused was negligent.
Held, further, that a judicial officer is expected to know the law applicable to the offence charged. That will enable him to avoid being distracted by answers not relevant to the issues before him. In fact, s 271(2)(b) requires a judicial officer to have such knowledge as it requires him to explain the charge and its essential elements to the accused and to be satisfied, by the facts he gathers during the canvassing of essential elements, of the accused's guilt. Here, the offence charged was culpable homicide. The magistrate therefore correctly carried on with the canvassing of essential elements, because the accused's answer was not a valid defence to the offence charged.
Held, further, that scrutinising regional magistrates must also have a good grasp of the law applicable to the case under scrutiny. If one is not sure, it is important to check before referring a case for review. Section 58(3)(b) of the Magistrates Court Act [Chapter 7:10] provides for a referral of a case under scrutiny to a judge for review "if it appears to him that doubt exists whether the proceedings are in accordance with real and a substantial justice". A doubt which justifies a referral to a judge for review must be one which lingers on after the regional magistrate has fully played his part. "Scrutinising" means looking, deeply and closely, into a matter. It is not a cursory examination of the record without applying one's knowledge of the law into what the trial magistrate did.
Held, further, that the provisions of s 272 of the Criminal Procedure and Evidence Act, on the basis of which a judicial officer alters a guilty plea to one of not guilty, are triggered by:
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