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Criminal procedure (sentence): " general principles " questioning of accused in relation to matters relevant to sentence " how such questioning should be conducted
Where an accused person has pleaded guilty to an offence and been convicted, it is permissible, in terms of s 271(5) of the Criminal Procedure and Evidence Act [Chapter 9:07], for the prosecutor and the court to question the accused person with regard to sentence. The questions which the prosecutor and the court may put to the accused in terms of this section must be relevant to sentence and not conviction. The provisions of this section must be used sparingly and only in circumstances where the prosecutor or the court hold the view that there are pertinent facts relative and material to the assessment of sentence which the accused needs to shed light on. If not properly invoked and utilized, there is a danger that the procedure may degenerate into a mini trial and some questions, if not properly measured, may solicit answers which may lead the court to reconsider its verdict as the answers may raise a defence. It is also permissible where the accused is represented to elicit the relevant facts which need filling up by directing questions to the accused's counsel who can always be approached by his counsel with the leave of the court to solicit the answers. Lastly, where the provisions of the section have been invoked and the accused is represented, defence counsel should strictly be guided by rules relating to re-examination. The questions which defence counsel may ask the accused should arise from questions by the prosecutor or the court, as the case may be, by way of clarifying any points or facts adduced during questioning by the prosecutor or the court. The procedure is not designed to give the accused's defence counsel a second bite of the cherry to mitigate on sentence or elicit from the accused new facts in mitigation, save as such facts may arise from questions put to the accused by the prosecutor or the court.
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