Card, Cross and Jones Criminal Law

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Language: English

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The court shall inform counsel of its proposed action upon the requests prior to their arguments to the jury, but the court shall instruct the jury after the arguments are completed. Section 94 The offence committed by negligence, petty offence and offence committed by the offender while not to be over seventeen years of age, irrespective of whether the prior offence or the subsequent offence, shall not be deemed as the offence so as to increase the punishment under the provisions of this Chapter.

Pages: 1000

Publisher: Oxford University Press; 17 edition (September 7, 2006)

ISBN: 0199286663

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See Carmichele v Minister of Safety and Security (Centre for Applied Legal Studies Intervening) 2001 (4) SA 938 (CC); Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA); Van Eeden v Minister of Safety and Security (Women’s Legal Centre Trust, as Amicus Curiae 2003 (1) SA 389 (SCA); Snyman Criminal Law 5th ed (2008) 97-8. [17] Defined as the unlawful intentional killing of another human being. [19] Minister of Police v Skosana 1977 (1) SA 31 (A) 34; Road Accident Fund v Russel 2001 (2) SA 34 (SCA) para 17; S v Daniëls 1983 (3) SA 275 (A) 324-5 & 31; S v Mokgethi 1990 (1) SA 32 (A) 39. [20] Minister of Police v Skosana 1977 (1) SA 31 (A) 33-5, & 43-4; S v Daniëls 1983 (3) SA 275 (A) 324 & 31; S v Haarmeyer 1971 (3) SA 43 (A) 47; S v Mokgethi 1990 (1) SA 32 (A) 39 Community Europe ideatoaction.co.uk. Powers in respect of buccal samples, bodily samples and crime scene samples (a) take a buccal sample; or (b) cause the taking of any other bodily sample by a registered medical practitioner or registered nurse defined in the National Health Act, (i) after arrest but before appearance in court to be formally charged for any offence referred to in Schedule 8; (ii) released on bail in respect of any offence referred to in Schedule 8, if a buccal sample or a bodily sample of that person was not taken upon his or her arrest; (iii) upon whom a summons has been served in respect of any offence referred to in Schedule 8; (iv) whose name appears on the National Register for Sex Offenders; or (v) charged or convicted by a court in respect of any offence, which the Minister has by notice in the Gazette, and after notification of Parliament, declared to be an offence for the purposes of this subsection. (a) take a buccal sample; or (b) cause the taking of any other bodily sample by a registered medical practitioner or registered nurse, (i) after arrest but before appearance in court to be formally charged in respect of any offence; (ii) released on bail in respect of any offence, if a buccal sample or bodily sample was not taken upon his or her arrest; (iii) upon whom a summons has been served in respect of any offence; (iv) whose name appears on the National Register for Sex Offenders; or (v) charged or convicted by a court in respect of any offence, which the Minister has by notice in the Gazette, and after notification of Parliament, declared to be an offence for the purposes of this subsection. (3) The authorised person must supervise the taking of a buccal sample from a person referred to in subsection (1) or (2) who is required to submit such sample and who requests to take it himself or herself. (4) The Station Commander or other relevant commander must within 30 days furnish every bodily sample taken under subsection (1) or (2) to the authorised officer, who must carry out a forensic DNA analysis on every such sample in terms of Chapter 5B of the South African Police Service Act. (a) an authorised person from re-taking or supervising the re-taking of a buccal sample from any person referred to in subsection (1), (2) or (3), if the buccal sample taken from him or her was either not suitable or insufficient for forensic DNA analysis; or (b) a registered medical practitioner or registered nurse from re-taking a bodily sample taken from any person referred to in subsection (1) or (2), if the bodily sample taken from him or her was either not suitable or insufficient for forensic DNA analysis. (6) The forensic DNA profile derived from bodily samples, taken under any power conferred by this section, may be used to conduct a comparative search. (a) Any forensic DNA profile derived from such sample, taken under any power conferred by this section must only be used for the purposes referred to in section 15F of the South African Police Service Act. (b) The forensic DNA profile derived from bodily samples, taken under any power conferred by this section must be retained on, or removed from, the NFDD in accordance with the provisions of Chapter 5B of the South African Police Service Act. (c) Any person who uses or allows the use of a bodily sample, crime scene sample or any forensic DNA profile derived from such sample for any purpose other than as contemplated in paragraph (a), is guilty of an offence and liable in the case of a natural person, to imprisonment for a period not exceeding 15 years, and in the case of a juristic person, to a fine. (i) by a registered medical practitioner or registered nurse; and (ii) in accordance with strict regard to decency and order. (1) Subject to subsection (2) and section 36A(5), an authorised person may take a buccal sample of a person or a group of persons, or supervise the taking of a buccal sample from a person who is required to submit such sample and who requests to do so himself or herself if there are reasonable grounds to— (a) suspect that the person or that one or more of the persons in that group has committed an offence referred to in Schedule 8; and (b) believe that the buccal sample or the results of the forensic DNA analysis thereof, will be of value in the investigation by excluding or including one or more of those persons as possible perpetrators of the offence. (2) If a person does not consent to the taking of a buccal sample under this section, a warrant may be issued by a judge or a magistrate if it appears from written information given by the authorised person on oath or affirmation that there are reasonable grounds for believing that— (a) any person from whom a buccal sample is required has committed an offence listed in Schedule 8; and (b) the sample or the results of an examination thereof, will be of value in the investigation by excluding or including that person as a possible perpetrator of the offence. (3) The provisions of section 36D(4), (5)(a), (6) and (7) apply with the necessary changes, to a sample or forensic DNA profile derived therefrom as contemplated in subsection (1). (i) of any person arrested upon any charge; (ii) of any such person released on bail; (iv) of any person upon whom a summons has been served in respect of any offence referred to in Schedule 1 or any offence with reference to which the suspension, cancellation or endorsement of any licence or permit or the disqualification in respect of any licence or permit is permissible or prescribed; or (v) of any person convicted by a court; or (vi) of any person deemed under section 57(6) to have been convicted in respect of any offence which the Minister has by notice in the Gazette declared to be an offence for the purposes of this subparagraph; (b) make a person referred to in paragraph (a)(i) or (ii) or paragraph (a) or (b) of section 36B(1) available or cause such person to be made available for identification in such condition, position or apparel as the police official may determine; (c) take such steps as he or she may deem necessary in order to ascertain whether the body of any person referred to in paragraph (a)(i) or (ii) or paragraph (a) or (b) of section 36B(1) has any mark, characteristic or distinguishing feature or shows any condition or appearance: Provided that a police official may not – (i) take a blood sample of any person; or (ii) examine the body of a person who is of a different gender to the police official; (a) Any medical officer of any prison or, if requested thereto by any police official, any registered medical practitioner or registered nurse may take such steps, including the taking of a blood sample, as may be deemed necessary in order to ascertain whether the body of any person referred to in paragraph (a)(i) or (ii) of subsection (1) or paragraph (a) or (b) of section 36B(1) has any mark, characteristic or distinguishing feature or shows any condition or appearance. (b) If any registered medical practitioner attached to any hospital is on reasonable grounds of the opinion that the contents of the blood of any person admitted to such hospital for medical attention or treatment may be relevant at any later criminal proceedings, such medical practitioner may take a blood sample of such person or cause such sample to be taken. (a) in any case in which a police official is not empowered under subsection (1) or section 36B(1) to take fingerprints or body-prints or to take steps in order to ascertain whether the body of any person has any mark, characteristic or distinguishing feature or shows any condition or appearance, order that such prints be taken of any accused at such proceedings or that the steps, including the taking of a blood sample, be taken which such court may deem necessary in order to ascertain whether the body of any accused at such proceedings has any mark, characteristic or distinguishing feature or shows any condition or appearance; (b) order that the steps, including the taking of a blood sample, be taken which such court may deem necessary in order to ascertain the state of health of any accused at such proceedings. (4) Any court which has convicted any person of any offence or which has concluded a preparatory examination against any person on any charge, or any magistrate, may order that the fingerprints, body-prints or a photographic image of the person concerned be taken. (5) Any fingerprints, body-prints or photographic images taken under any power conferred by this section, may be the subject of a comparative search. (a) Subject to subsection (7), the body-prints or photographic images, taken under any power conferred by this section, and the record of steps taken under this section- (i) must upon the conviction of an adult person be retained on a database provided for in section 5A of the South African Police Service Act; (ii) must, upon conviction of a child be retained on a database referred to in Chapter 5A of the South African Police Service Act, subject to the provisions relating to the expungement of a conviction and sentence of a child, as provided for in section 87 of the Child Justice Act; and (iii) in a case where a decision was made not to prosecute a person, if the person is found not guilty at his or her trial, or if his or her conviction is set aside by a superior court or if he or she is discharged at a preparatory examination or if no criminal proceeding with reference to such body-prints or photographic images was instituted against the person concerned in any court or if the prosecution declines to prosecute, must be destroyed within 30 days after the officer commanding the Division responsible for criminal records referred to in Chapter 5A of the South African Police Service Act has been notified. (b) Body-prints or photographic images which may be retained in terms of this section, may only be used for purposes related to the detection of crime, the investigation of an offence, the identification of a missing person, the identification of unidentified human remains or the conducting of a prosecution. (c) The body-prints or photographic images referred to in paragraph (a)(i) and (ii), must be stored on the database established by the National Commissioner, as provided for in Chapter 5A of the South African Police Service Act. (7) Subsection (6) does not prohibit the use of any body-prints or photographic image taken under any powers conferred by this section, for the purposes of establishing if a person has been convicted of an offence. (1) Subject to section 4(2) of the Child Justice Act, 2008 (Act No. 75 of 2008), the methods of securing the attendance of an accused who is eighteen years or older in court for the purposes of his or her trial shall be arrest, summons, written notice and indictment in accordance with the relevant provisions of this Act. (2) The methods of securing the attendance of an accused who is under the age of eighteen years at a preliminary inquiry or child justice court are those contemplated in section 17 of the Child Justice Act, 2008. (1) An arrest shall be effected with or without a warrant and, unless the person to be arrested submits to custody, by actually touching his body or, if the circumstances so require, by forcibly confining his body. (2) The person effecting an arrest shall, at the time of effecting the arrest or immediately after effecting the arrest, inform the arrested person of the cause of the arrest or, in the case of an arrest effected by virtue of a warrant, upon demand of the person arrested hand him a copy of the warrant. (3) The effect of an arrest shall be that the person arrested shall be in lawful custody and that he shall be detained in custody until he is lawfully discharged or released from custody. (a) who commits or attempts to commit any offence in his presence; (b) whom he reasonably suspects of having committed an offence referred to in Schedule 1, other than the offence of escaping from lawful custody; (c) who has escaped or who attempts to escape from lawful custody; (d) who has in his possession any implement of housebreaking or carbreaking as contemplated in section 82 of the General Law Third Amendment Act, 1993, and who is unable to account for such possession to the satisfaction of the peace officer; (e) who is found in possession of anything which the peace officer reasonably suspects to be stolen property or property dishonestly obtained, and whom the peace officer reasonably suspects of having committed an offence with respect to such thing; (f) who is found at any place by night in circumstances which afford reasonable grounds for believing that such person has committed or is about to commit an offence; (g) who is reasonably suspected of being or having been in unlawful possession of stock or produce as defined in any law relating to the theft of stock or produce; (h) who is reasonably suspected of committing or of having committed an offence under any law governing the making, supply, possession or conveyance of intoxicating liquor or of dependence-producing drugs or the possession or disposal of arms or ammunition; (i) who is found in any gambling house or at any gambling table in contravention of any law relating to the prevention or suppression of gambling or games of chance; (j) who wilfully obstructs him in the execution of his duty; (k) who has been concerned in or against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists that he has been concerned in any act committed outside the Republic which, if committed in the Republic, would have been punishable as an offence, and for which he is, under any law relating to extradition or fugitive offenders, liable to be arrested or detained in custody in the Republic; (l) who is reasonably suspected of being a prohibited immigrant in the Republic in contravention of any law regulating entry into or residence in the Republic; (m) who is reasonably suspected of being a deserter from the South African National Defence Force; (n) who is reasonably suspected of having failed to observe any condition imposed in postponing the passing of sentence or in suspending the operation of any sentence under this Act; (o) who is reasonably suspected of having failed to pay any fine or part thereof on the date fixed by order of court under this Act; (p) who fails to surrender himself in order that he may undergo periodical imprisonment when and where he is required to do so under an order of court or any law relating to prisons. (q) who is reasonably suspected of having committed an act of domestic violence as contemplated in section (1) of the Domestic Violence Act, 1998, which constitutes an offence in respect of which violence is an element. (2) If a person may be arrested under any law without warrant and subject to conditions or the existence of circumstances set out in that law, any peace officer may without warrant arrest such person subject to such conditions or circumstances. (a) whom he has power to arrest; (b) who is reasonably suspected of having committed or of having attempted to commit an offence; (c) who, in the opinion of the peace officer, may be able to give evidence in regard to the commission or suspected commission of any offence, to furnish such peace officer with his full name and address, and if such person fails to furnish his full name and address, the peace officer may forthwith and without warrant arrest him, or, if such person furnishes to the peace officer a name or address which the peace officer reasonably suspects to be false, the peace officer may arrest him without warrant and detain him for a period not exceeding twelve hours until such name or address has been verified. (2) Any person who, when called upon under the provisions of subsection (1) to furnish his name and address, fails to do so or furnishes a false or incorrect name and address, shall be guilty of an offence and liable on conviction to a fine not exceeding R300 or to imprisonment for a period not exceeding three months. (a) who commits or attempts to commit in his presence or whom he reasonably suspects of having committed an offence referred to in Schedule 1; (b) whom he reasonably believes to have committed any offence and to be escaping from and to be freshly pursued by a person whom such private person reasonably believes to have authority to arrest that person for that offence; (c) whom he is by any law authorized to arrest without warrant in respect of any offence specified in that law; (d) whom he sees engaged in an affray. (2) Any private person who may without warrant arrest any person under subsection (1)(a) may forthwith pursue that person, and any other private person to whom the purpose of the pursuit has been made known, may join and assist therein. (3) The owner, lawful occupier or person in charge of property on or in respect of which any person is found committing any offence, and any person authorized thereto by such owner, occupier or person in charge, may without warrant arrest the person so found. (1) Any magistrate or justice may issue a warrant for the arrest of any person upon the written application of an attorney-general, a public prosecutor or a commissioned officer of police – (a) which sets out the offence alleged to have been committed; (b) which alleges that such offence was committed within the area of jurisdiction of such magistrate or, in the case of a justice, within the area of jurisdiction of the magistrate within whose district or area application is made to the justice for such warrant, or where such offence was not committed within such area of jurisdiction, which alleges that the person in respect of whom the application is made, is known or is on reasonable grounds suspected to be within such area of jurisdiction; and (c) which states that from information taken upon oath there is a reasonable suspicion that the person in respect of whom the warrant is applied for has committed the alleged offence. (2) A warrant of arrest issued under this section shall direct that the person described in the warrant shall be arrested by a peace officer in respect of the offence set out in the warrant and that he be brought before a lower court in accordance with the provisions of section 50. (3) A warrant of arrest may be issued on any day and shall remain in force until it is cancelled by the person who issued it or, if such person is not available, by any person with like authority, or until it is executed Harvard Law Review: Volume 129, Number 7 - May 2016 http://twotrees.s1.brinkdev.com/ebooks/harvard-law-review-volume-129-number-7-may-2016.

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