Children and Cross-Examination: Time to Change the Rules?

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In other cases the defendant may appear by counsel. 2.27(2) Continued presence not required. Most of the substantive area of the criminal law can be found in the California Penal Code. Commencement of Term .............................. 2900-2905 Article 1.5. L. 101–647, §2205(a)(2), redesignated subsec. (e) as (f). The provisions of section 324 shall mutatis mutandis apply with reference to any conviction and sentence of a lower court that are set aside on appeal or review on any ground referred to in that section. (1) Where a sentence or order imposed or made by a lower court is set aside on appeal or review and the person convicted is not in custody and the court setting aside the sentence or order remits the matter to the lower court in order that a fresh sentence or order may be imposed or made, the presence before that court of the person convicted may be obtained by means of a written notice addressed to that person calling upon him to appear at a stated place and time on a stated date in order that such sentence or order may be imposed or made. (a) In respect of appeals and questions of law reserved in connection with criminal cases heard by a High Court, the court of appeal shall be the Supreme Court of Appeal, except in so far as subsections (2) and (3) otherwise provides. (a) If an application for leave to appeal in a criminal case heard by a single judge of a High Court (irrespective of whether he or she sat with or without assessors) is granted under section 316, the court or judge or judges granting the application shall, if it, he or she or, in the case of the judges referred to in subsections (12) and (13) of that section, they or the majority of them, is or are satisfied that the questions of law and of fact and the other considerations involved in the appeal are of such a nature that the appeal does not require the attention of the Supreme Court of Appeal, direct that the appeal be heard by a full court. (b) Any such direction by the court or a judge of a High Court may be set aside by the Supreme Court of Appeal on application made to it by the accused or the Director of Public Prosecutions or other prosecutor within 21 days, or such longer period as may on application to the Supreme Court of Appeal on good cause shown, be allowed, after the direction was given. (c) Any application to the Supreme Court of Appeal under paragraph (b) shall be submitted by petition addressed to the President of the Supreme Court of Appeal, and the provisions of section 316(8), (9), (10), (11), (12), (13), (14) and (15) shall apply mutatis mutandis in respect thereof. (3) An appeal which is to be hard by a full court in terms of a direction under paragraph (a) of subsection (2) which has not been set aside under paragraph (b) of that subsection, shall be heard – (a) in the case of an appeal in a criminal case heard by a single judge of a provincial division, by the full court of the provincial division concerned; (b) in the case of an appeal in a criminal case heard by a single judge of a local division other than the Witwatersrand Local Division, by the full court of the provincial division which exercises concurrent jurisdiction in the area of jurisdiction of the local division concerned; (i) by the full court of the Transvaal Provincial Division, unless a direction by the judge president of that provincial division under subparagraph (ii) applies to it; or (ii) by the full court of the said local division if the said judge president has so directed in the particular instance. (4) An appeal in terms of this Chapter shall lie only as provided in sections 316 to 319 inclusive, and not as of right. (a) 'court of appeal' means, in relation to an appeal which in terms of subsection (3) is heard or is to be heard by a full court, the full court concerned and, in relation to any other appeal, the Supreme Court of Appeal; (b) 'full court' means the court of a provincial division, or the Witwatersrand Local Division, sitting as a court of appeal and constituted before three judges. (a) Subject to section 84 of the Child Justice Act, 2008, any accused convicted of any offence by a High Court may apply to that court for leave to appeal against such conviction or against any resultant sentence or order. (i) within 14 days after the passing of the sentence or order following on the conviction; or (ii) within such extended period as the court may on application and for good cause shown, allow. (a) An application referred to in subsection (1) must be made to the judge whose conviction, sentence or order is the subject of the prospective appeal (hereafter in this section referred to as the trial judge): Provided that if- (i) the trial judge is not available; or (ii) in the case of a conviction before a circuit court the said court is not in sitting, the application may be made to any other judge of the High Court concerned. (b) If the application is to be heard by a judge, other than the trial judge, the registrar of the court must submit a copy of the judgment of the trial judge, including the reasons for the conviction, sentence or order in respect of which the appeal is sought to be noted to the judge hearing the application. (c) The judge referred to in paragraph (b) may, if he or she deems it necessary in order to decide the application, request the full record of the proceedings before the trial judge. (a) No appeal shall lie against the judgment or order of a full court given on appeal to it in terms of section 315(3), except with the special leave of the Supreme Court of Appeal on application made to it by the accused or, where a full court has for the purposes of such judgment or order given a decision in favour of the accused on a question of law, on application on the grounds of such decision made to that court by the Director of Public Prosecutions or other prosecutor against whom the decision was given. (i) within 21 days after the judgment or order against which appeal is to be made was given; or (ii) within such extended period as may on application and for good cause shown, be allowed. (c) The accused or Director of Public Prosecutions or other prosecutor shall, when submitting in accordance with paragraph (b) the application for special leave to appeal, at the same time give written notice that this has been done to the registrar of the court against whose decision he or she wishes to appeal, and thereupon such registrar shall forward a certified copy of the record prepared in terms of subsection (7) for the purposes of such judgment or order, and of the reasons for such judgment or order, to the registrar of the Supreme Court of Appeal. (d) The provisions of subsections (4), (10), (11), (12), (13), (14) and (15) shall apply mutatis mutandis with reference to any application and petition contemplated in paragraph (b) of this subsection. (e) Upon an appeal under this subsection the provisions of section 322 shall apply mutatis mutandis with reference to the powers of the Supreme Court of Appeal. (a) Every application for leave to appeal must set forth clearly and specifically the grounds upon which the accused desires to appeal. (b) If the accused applies orally for such leave immediately after the passing of the sentence or order, he or she must state such grounds, which must be recorded and form part of the record. (a) An application for leave to appeal under subsection (1) may be accompanied by an application to adduce further evidence (hereafter in this section referred to as an application for further evidence) relating to the prospective appeal. (i) further evidence which would presumably be accepted as true, is available; (ii) if accepted the evidence could reasonably lead to a different verdict or sentence; and (iii) there is a reasonably acceptable explanation for the failure to produce the evidence before the close of the trial. (i) receive that evidence and further evidence rendered necessary thereby, including evidence in rebuttal called by the prosecutor and evidence called by the court; and (ii) record its findings or views with regard to that evidence, including the cogency and the sufficiency of the evidence, and the demeanour and credibility of any witness. (6) Any evidence received under subsection (5) shall for the purposes of an appeal be deemed to be evidence taken or admitted at the trial in question. (a) If an application under subsection (1) for leave to appeal is granted and the appeal is not under section 315(3) to be heard by the full court of the High Court from which the appeal is made, the registrar of the court granting such application shall cause notice to be given accordingly to the registrar of the Supreme Court of Appeal without delay, and shall cause to be transmitted to the said registrar a certified copy of the record, including copies of the evidence, whether oral or documentary, taken or admitted at the trial, and a statement of the grounds of appeal: Provided that, instead of the whole record, with the consent of the accused and the Director of Public Prosecutions, copies (one of which must be certified) may be transmitted of such parts of the record as may be agreed upon by the Director of Public Prosecutions and the accused to be sufficient, in which event the judges of the Supreme Court of Appeal may nevertheless call for the production of the whole record. (b) If an application under subsection (1) for leave to appeal is granted and the appeal is under section 315(3) to be heard by the full court of the High Court from which the appeal is made, the registrar shall without delay prepare a certified copy of the record, including copies of the evidence, whether oral or documentary, taken or admitted at the trial, and a statement of the grounds of appeal: Provided that, instead of the whole record, with the consent of the accused and the Director of Public Prosecutions, copies (one of which must be certified) may be prepared of such parts of the record as may be agreed upon by the Director of Public Prosecutions and the accused to be sufficient, in which event the judges of the full court of the High Court concerned may nevertheless call for the production of the whole record. is refused by a High Court, the accused may by petition apply to the President of the Supreme Court of Appeal to grant any one or more of the applications in question. (i) within 21 days after the application in question was refused; or (ii) within such extended period as may on an application accompanying that petition, for good cause shown, be allowed. (a) If more than one application referred to in subsection (8)(a) relate to the same matter, they should, as far as is possible, be dealt with in the same petition. (b) An accused who submits a petition referred to in subsection (8)(a), must at the same time give written notice thereof to the registrar of the High Court (other than a circuit court) within whose area of jurisdiction the trial took place, and of which the judge who presided at the trial was a member when he or she so presided. (a) application or applications that were refused; (b) the reasons for refusing the application or applications; and (c) the record of the proceedings in the High Court in respect of which the application was refused, if- (i) the accused was not legally represented at the trial; or (ii) the accused is not legally represented for the purposes of the petition; or (iii) the prospective appeal is not against sentence only; or (iv) the judges considering the petition, in the interest of justice, request the record or only a portion of the record. (a) A petition referred to in subsection (8), including an application referred to in subsection (8)(b)(ii), must be considered in chambers by two judges of the Supreme Court of Appeal designated by the President of the Supreme Court of Appeal. (b) If the judges differ in opinion, the petition shall also be considered in chambers by the President of the Supreme Court of Appeal or by any other judge of the Supreme Court of Appeal to whom it has been referred by the President. (c) For the purposes of paragraph (b) any decision of the majority of the judges considering the petition, shall be deemed to be the decision of all three judges. (a) call for any further information from the judge who refused the application in question, or from the judge who presided at the trial to which the application relates, as the case may be; (b) in exceptional circumstances, order that the application or applications in question or any of them be argued before them at a time and place determined by them; or (13) The judges considering a petition may, whether they have acted under subsection (12)(a) or (b) or not- (a) in the case of an application referred to in subsection (8)(b)(ii), grant or refuse the application; and (b) in the case of an application for condonation grant or refuse the application, and if the application is granted- (i) direct that an application for leave to appeal must be made, within the period fixed by them, to the High Court referred to in subsection (8)(a); or (ii) if they deem it expedient, direct that an application for leave to appeal must be submitted under subsection (8) within the period fixed by them as if it had been refused by the High Court referred to in subsection (8)(a); and (c) in the case of an application for leave to appeal, subject to paragraph (d), grant or refuse the application; and (d) in the case of an application for further evidence, grant or refuse the application, and, if the application is granted the judges may, before deciding the application for leave to appeal, remit the matter to the High Court concerned in order that further evidence may be received in accordance with subsection (5)(c); or (e) in exceptional circumstances refer the petition to the Supreme Court of Appeal for consideration, whether upon argument or otherwise, and the Supreme Court of Appeal may thereupon deal with the petition in any manner referred to in this subsection. (a) as far as is possible, simultaneously; and (b) as a matter of urgency, where the accused was sentenced to any form of imprisonment that was not wholly suspended. (15) Notice of the date fixed for the hearing of any application under this section, and of any time and place determined under subsection (12) for any hearing, must be given to the Director of Public Prosecutions concerned and the accused. (1) Subject to subsection (2), the attorney-general may appeal to the Appellate Division against a sentence imposed upon an accused in a criminal case in a superior court. (2) The provisions of section 316 in respect of an application or appeal referred to in that section by an accused, shall apply mutatis mutandis with reference to a case in which the attorney-general appeals in terms of subsection (1) of this section. (3) Upon an appeal in terms of subsection (1) or an application referred to in subsection (2), brought by the attorney-general, the court may order that the State pay the accused concerned the whole or any part of the costs to which the accused may have been put in opposing the appeal or application, taxed according to the scale in civil cases of that court. (1) If an accused is of the view that any of the proceedings in connection with or during his or her trial before a High Court are irregular or not according to law, he or she may, either during his or her trial or within a period of 14 days after his or her conviction or within such extended period as may upon application (in this section referred to as an application for condonation) on good cause be allowed, apply for a special entry to be made on the record (in this section referred to as an application for a special entry) stating in what respect the proceedings are alleged to be irregular or not according to law, and such a special entry shall, upon such application for a special entry, be made unless the court to which or the judge to whom the application for a special entry is made is of the opinion that the application is not made bona fide or that it is frivolous or absurd or that the granting of the application would be an abuse of the process of the court. (2) Save as hereinafter provided, an application for condonation or for a special entry shall be made to the judge who presided at the trial or, if he is not available, or, if in the case of a conviction before a circuit court the said court is not sitting, to any other judge of the provincial or local division of which that judge was a member when he so presided. (4) The terms of a special entry shall be settled by the court which or the judge who grants the application for a special entry. (5) If an application for condonation or for a special entry is refused, the accused may, within a period of 21 days of such refusal or within such extended period as may on good cause shown, be allowed, by petition addressed to the President of the Supreme Court of Appeal, apply to the Supreme Court of Appeal for condonation or for a special entry to be made on the record stating in what respect the proceedings are alleged to be irregular or not according to law, as the case may be, and thereupon the provisions of subsections (11), (12), (13), (14) and (15) of section 316 shall mutatis mutandis apply. (1) If a special entry is made on the record, the person convicted may appeal to the Appellate Division against his conviction on the ground of the irregularity or illegality stated in the special entry if, within a period of twenty-one days after entry is so made or within such extended period as may on good cause be allowed, notice of appeal has been given to the registrar of the Appellate Division and to the registrar of the provincial or local division, other than a circuit court, within whose area of jurisdiction the trial took place, and of which the judge who presided at the trial was a member when he so presided. (2) The registrar of such provincial or local division shall forthwith after receiving such notice give notice thereof to the attorney-general and shall transmit to the registrar of the Appellate Division a certified copy of the record, including copies of the evidence, whether oral or documentary, taken or admitted at the trial and of the special entry: Provided that with the consent of the accused and the attorney-general, the registrar concerned may, instead of transmitting the whole record, transmit copies, one of which shall be certified, of such parts of the record as may be agreed upon by the attorney-general and the accused to be sufficient, in which event the Appellate Division may nevertheless call for the production of the whole record. (1) If any question of law arises on the trial in a superior court of any person for any offence, that court may of its own motion or at the request either of the prosecutor or the accused reserve that question for the consideration of the Appellate Division, and thereupon the first-mentioned court shall state the question reserved and shall direct that it be specially entered in the record and that a copy thereof be transmitted to the registrar of the Appellate Division. (2) The grounds upon which any objection to an indictment is taken shall, for the purposes of this section, be deemed to be questions of law. (3) The provisions of sections 317(2), (4) and (5) and 318(2) shall apply mutatis mutandis with reference to all proceedings under this section.

Pages: 314

Publisher: Hart Publishing (June 1, 2012)

ISBN: 1849463077

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