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Page 1 SELF MCQ QUESTIONS 1. Open justice can be equated with the concept that justice must be “seen to be done”. .( True) 2. Open justice is protected by the right to a fair trial and is an absolute right. ( False) 3. The court cannot exclude any member of the public from the trial of an adult accused. ( False) 4. In cases where a witness for the state is about to abscond, the prosecutor may apply for a warrantof arrest and have the said witness detained pending the trial. ( True) 5. Co-accused are ordered numerically. (True) 6. The prosecution decides the numerical order of co-accused at atrial. (True) 7. The court can of its own accord raise the issue of separation. (True) 8. The principle of legality is constitutionally entrenched. ( True) 9. The principle of equality of arms is founded on equal opportunities being available to both the state and the defence to prove their respective cases. ( True) 10. The merits of a case are the cardinal point of the court’s considerations when determining whether to convict or acquit. ( True) Page 1of 69 Page 2 11. Where required, the entire judgment of the court must be translated into a language that the accused understands. ( True) 12. In cases where the charge pertains to multiple acts or omissions, the court must deliver judgment separately on each individual charge. . ( False) 13. Some sentences do not constitute punishments. ( True) 14. In Rabie 1975 (4) SA 855 (A) 862G, the court summarised the general principles of sentencing. (True) 15. Imprisonment, committal to a treatment centre, a fine and correctional supervision are the only sentences that can be imposed by a court. { False) 16. Periodical imprisonment is a form of short-term imprisonment and is also informally known as “weekend imprisonment”. ( True) 17. The Constitution secures a general right of review. (True) 18. Fairness no longer entails enquiring whether there was a failure of justice, but whether the trial was fair. (True) 19. Review is more appropriate than appeal in cases where the accused is dissatisfied with the procedures during the trial. (True) 20. There is a general right of appeal in South Africa. ( True) 21. The right of appeal is justifiably limited by section 36 of the Constitution. (True) 22. A person can appeal against the sentence imposed or the conviction— not both. ( False) Page 2 of 69 Page 4 35. Cross-examination of a witness by the court is permissible within the bounds of reasonableness. ( False) 36. The principle of equality of arms can be related to the competence of both the prosecutor and the representative for the defence. ( True) 37. An ex tempore judgment does not infringe on the right of the accused to a speedy trial. (True) 38. An improper delay in delivering judgment undermines public confidence in the judicial system. (True) 39. Community service as a condition of a suspended sentence is not considered a punishment. (False) 40. Most statutory offences are enacted with an attendant penalty clause. (True) 41. Tradition seems to indicate that the state and the accused must supply the information required by the court during trial on sentencing. (True) 42. Compensation and restitution are forms of restorative sentences. (True) 43. Review is not solely the domain of the CPA. (True) 44. The Superior Courts Act does not provide for review in criminal proceedings. False 45. Judicial review has a common-law origin. (True) 46. Any conviction, sentence or order of a lower court, and even a discharge after conviction, are subject to leave to appeal. (True) 47. An appeal on the facts relates to the merits of the matter in the trial court. ( True) Page 4 of 69 Page 5 48. If the appellant files a notice of appeal after the prescribed period, he or she can apply for condonation, although the court is not obliged to grant it. ( True) 49. Expungement takes place in one of three ways: automatically, on application or when a certain period has lapsed. ( True) Side note: questions 26-49 can be found in tutorial letter 101/201 2018 S2 for any references 50. The Constitution entrenches the right to a public trial. (True) 51. The right to a public trial can be validly limited where necessary. ( True) 52. In terms of the CJA, open justice is generally limited. ( True) 53. Open justice can be limited when the complainant is under the age of 18 years. . (True) 54. In principle, an accused is entitled to access exculpatory documents in the docket. . ( True) 55. Where an accused is charged with a common law offence, the only requirement is that it be named in order for the charge sheet to be valid. . ( False) 56. Sections 86 and 88 of the CPA make provision for the same action in respect of the correction ofa defect in the charge sheet. ( False) 57. Provided that the accused is not prejudiced, section 86 can be used to replace a charge with another in the same matter. ( False) 58. Circuit courts deviate jurisdictionally from the fixed division or seat of court. ( False) Page 5 of 69 Page 7 72. Refusal to join is not in itself an irregularity. ( True) 73. Section 115 of the CPA allows the accused to plead not guilty but to admit to certain elements of the offence. ( True) 74. Statutory plea bargaining can only take place where the accused is represented. (True) 75. Achild offender cannot enter into a statutory or traditional plea bargain. ( False) 76. Diversion is a form of plea bargaining. ( False) 77. Itis not necessary for the court to question an accused who has pleaded guilty in terms of section 112 of the CPA. ( False) 78. Achild offender can plead guilty at the preliminary-inquiry stage in terms of section 112 of the CUA. ( False) 79. Section 115 of the CPA can be used to alter a plea of guilty to one of not guilty where, during the arraignment phases, the court finds that the accused has a defence. ( False) 80. After pleading, the accused is entitled, without exception, to a verdict. ( False) 81. Sections 77 to 79 of the CPA apply to child offenders. (True) 82. Acourt will, in principle, grant a postponement to allow the accused an opportunity to find workin order to pay for legal representation. (False) 83. There are limitations to the length of time for which a child justice proceeding can be postponed. (True) 84. A fair trial includes the right to a speedy trial. ( True) Page 7 of 69 Page 8 85. Section 336 of the CPA provides that, where an act constitutes an offence under a statutory anda common law provision, the accused can be convicted and sentenced under either the statutory or common law provision. ( True) 86. There is no consensus on the part of South African courts as to whether the conduct of a perpetrator that occurs over a long period of time should form the subject of a single conviction or multiple convictions. ( True) 87. Acourt can order the removal of a trial from one venue to another venue if the court deems it necessary or expedient. ( True) 88. Ina division of the high court, the presiding judge has discretion to sit with or without assessors. (True) Side note: questions 50-88 can be found in tutorial letter 101/201 2017 S1/assignment 1 for any references 89. A court of appeal can only interfere with the sentence of a lower court where that court (the lower court) failed to exercise its discretion judicially ina proper and reasonable manner. (True) 90. An appeal court is ordinarily loath to interfere with the findings of a trial court on questions of fact. (True) 91. If an appellant who has noted and prosecuted his or her appeal fails to appear, the court may summarily dismiss the appeal as a consequence of non-appearance. (True) 92. Acourt of appeal can hold an inspection in loco. (True) 93. For purposes of appeal, it is important to have a reliable record of the proceedings of the trial court. ( True) 94. A division of the high court has jurisdiction over all persons who reside or are present within its area of jurisdiction, and it has the power to hear and determine appeals from all lower courts within its area of jurisdiction and to review the proceedings of all such courts. (True) Page 8 of 69 Page 10 105. In order to reconstruct a lost record, the recalling of witnesses who gave evidence during the trial would be irregular. .( True) 106. When a review judge directs a query to the magistrate who presided over the criminal case under review, the latter may at any time when it suits him/her and in any manner respond to sucha query. .( False) 107. All courts have the power to exclude improperly obtained evidence and this power does not fall exclusively within the jurisdiction of courts of review and appeal. it True) 108. If the magistrate, in a procedurally correct manner, performs his/her functions in a proper and regular way but comes to a wrong conclusion on the merits, no application may be made to the courtof appeal before conviction. ( True) 109. A question of law arises only when the facts upon which the trial court based its judgment could have a legal consequence other than that which the trial court found. Accordingly, whether thetrial court’s factual findings are right or wrong is the only relevant factor in order to determine whether the court erred in law.{ False) 110. A third party who has an interest in a verdict of guilty or in a subsequent order has no locus standin iudicio to appeal. ( True) 111. Leave to appeal is not required where the convicted person was, at the time of the commission of the offence, at least 14 years of age but below the age of 21 years, was not assisted by a legal representative at the time of conviction in a regional court, and was sentenced to any form of imprisonment as contemplated in section 276(1) that was not wholly suspended. ( False) 112. Before any evidence is led, the prosecutor is entitled to address the court for the purpose of explaining the charge and opening the evidence intended to be adduced for the prosecution, but without comment thereon. ( True) 113. Ina criminal trial, an accused may decide to present his/her evidence either viva voce or by means of a written statement. (True) Page 10 of 69 Page 11 Side note: questions 89-113 can be found in tutorial letter 101/201 2017 S1 assignment 3 for any references 114. Where a charge is defective for want of an averment which is an essential ingredient of the relevant offence, the defect can be cured by evidence at the trial proving the matter which should have been averred. ( True) 115. Section 86 makes provision for amendment of the charge and requires that the proposed amendment must differ to such an extent from the original charge that it is in essence another charge. ( False) 116. When the accused is called upon to plead to a charge and it appears uncertain whether he or she is capable of understanding the proceedings at the trial so as to be able to make a proper defence, an enquiry into his or her mental state must be made by the court, with the assistance of a general medical practitioner. ( False) 117. Where an accused at a summary trial pleads not guilty, the presiding officer must inform the accused that he or she is not obliged to answer any questions. (True) 118. An accused, or his or her counsel on behalf of the accused, may admit any fact placed in issue. ( True) 119. Open justice can be limited where a witness is in danger of being exposed as a state informant. (True) 120. The notion of open justice establishes a protective function in respect of the fair-trial rights of the accused. ( True) 121. In general, the accused is entitled to access exculpatory documentation in the docket. ( True) 122. Where the legal adviser replies in writing or orally to any question by the court in terms of section 115(3), the accused must also confirm this, but the court may not require the accused to answer the questions personally. ( True) Page 11 of 69 Page 13 133. Acharge sheet containing the following averments complies with all necessary requirements in terms of section 84(1) of the Criminal Procedure Act 51 of 1977: “That the accused is guilty of unlawfully and intentionally killing Joey Smith, an adult female on the 21st of January 2001 at Groenkloof in the district of Pretoria.” ( True) 134. Where an accused is convicted of both driving under the influence of liquor and reckless driving, and both counts are based on the same facts, this would not constitute an incorrect duplication of convictions. F( False) 135. If assessors abscond during the trial without good reason and the magistrate continues with the trial without them, this amounts to a fatal irregularity which vitiates the proceedings. (True) 136. Generally, where an accused is caught selling dagga, he or she may be convicted only of selling and not also of possession of the rest of the unsold dagga. ( True) 137. The court must enter a plea of nat guilty if the accused refuses to plead or answer directly to the charge. (True) 138. If the totality of the accused’s criminal conduct can be accommodated in one single charge, the accused may not be convicted on multiple charges. ( True) 139, An accused can now be found guilty even though the indictment does not disclose an offence, as long as the evidence proves the offence. ( True) 140. Section 86 of the Criminal Procedure Act makes provision for amendment of the charge and not for its replacement by an altogether new charge. ( True) 141. The rule against the splitting of charges has in fact always been directed at the duplication of convictions and was designed to apply in the field of punishment. ( True) 142. Where an accused is charged with both rape and incest arising from the same act of intercourse, he will be convicted of both. ( False) Page 13 of 69 Page 14 143. If an assault is committed pursuant to or in the course of an attempt to escape, the accused should be convicted of one of these offences only. ( True) 144. The prosecution or the accused may apply for the recusal of an assessor. (True) 145. Threatening a judicial officer will materially affect his or her impartiality, and his or her refusal to recuse himself or herself on this ground is therefore irregular. ( False) 146. An accused may plead truth and public benefit where the charge is one of criminal defamation. (True) 147. Itis regular for a court to put questions directly to an accused who is represented. ( False) 148. The right to silence has been greatly and negatively affected by the introduction of the “plea explanation” procedure at arraignment in terms of section 115 of the CPA. ( False) 149. In the case of traditional plea bargaining, the prosecutor and the defence cannot bind the court to a sentence. However, the prosecutor may agree to suggest a possible lighter sentence to the court. (True) 150. After the accused has brought an application for a separation of trials, a proper refusal to ordera separation of trials will amount to an infringement of the accused’s right to a fair trial. ( False) 151. An accused may be joined with any other accused in the same criminal proceedings at any time before any evidence has been led in respect of the charge in question. (True) 152. The general principle is that the conducting of criminal trials should take place in open court and in the presence of the accused. ( False) Side note: questions 114-152 can be found in tutorial letter 101/201 2017 $2 assignment 1 for any references 153. Acriminal trial commences once an accused has pleaded in a court which has the required jurisdiction to hear evidence. (True) Page 14 of 69 Page 16 164. Tradition dictates that the accused provides the information required by the court during the trial for the purpose of sentencing. ( False) 165. The law is a precise instrument and therefore any consideration of what is deemed cruel, inhumane and degrading conduct is based on the certainty of doctrinal law. False 166. Declaration as a dangerous criminal is a sui generis sentence which negates the traditional jurisdiction of the district court. ( False) 167. A habitual criminal is one considered by society to be potentially harmful. ( False) 168. Periodical imprisonment is a form of imprisonment where the convict serves periods of his or her sentence on an outpatient basis at a psychiatric institute. ( False) 169. An accused who is dissatisfied with the decision of a lower court on fact or law may bring the matter before a division of a higher court by way of appeal or review. ( True) 170. Judicial review is a process which allows a court to set aside a statute or provision on the grounds of unconstitutionality. ( True) 171. Noright, whether entrenched or not, is absolute. (True) 172. Constitutional matters include issues of interpretation, protection or enforcement of the Constitution. ( True } 173. The criteria for an acceptable limitation of rights are prescribed by section 39 of the Constitution. ( False) 174. If an adult accused wishes to appeal the decision of a lower court, no leave to appeal is required. ( False) Page 16 of 69 Page 17 175. When it is alleged in a lower court that a law is constitutionally invalid, the decision as to invalidity rests with the lower court, subject to review by a higher court on the basis of section 171 of the Magistrates’ Courts Act. ( False) 176. Owing to the supreme nature of the Constitution, direct access to the Constitutional Court is permitted regarding any issue relating to a procedural irregularity. ( False) 177. Itis a general rule that there is no appeal before conviction. ( True) Side note: questions 153-177 can be found in tutorial letter 101/201 2017 $2 assignment 3 for any reference $178. Provided that the accused is not prejudiced, section 86 can be used to replace a charge with another in the same matter. ( False) 181. During arraignment of an accused, assessors take an oath to deliver a true judgment based on the merits of the case. ( False) 182. Where the plea of an accused is ambiguous, the court must enter a plea of not guilty and question the accused in terms of section 115 of the CPA. (True) 183. Refusal to join is not in itself an irregularity. (True) 184. Statutory plea bargaining can only take place where the accused is represented. ( True) 185. An appeal court is ordinarily loath to interfere with the findings ofa trial court on questions of fact. (True) 186. A court of appeal can hold an inspection in loco. ( True) 187. For purposes of appeal, it is important to have a reliable record of the proceedings of the trial court. ( True) Page 17 of 69 Page 19 197. An accused may be joined with any other accused in the same criminal proceedings at any time before any evidence has been led in respect of the charge in question . ( True) 198. The general principle is that the conducting of criminal trials should take place in open court and in the presence of the accused . ( True) 199. Generally, where no preparatory examination has been held, the indictment must be accompanied by a summary of the salient facts of the case in order to inform the accused of the allegations against him or her. . ( True) 200. When the accused is called upon to plead to a charge, and it appears uncertain whether he or she is capable of understanding the proceedings at trial so as to be able to put forward a proper defence, an enquiry into his or her mental state should be made. . ( True) 202. The indictment must be served on the accused in accordance with the rules of court. Service is complete the moment that the indictment is posted to the accused and received by him or her. . (False) 203. Where a charge is defective for want of an averment which is an essential ingredient of the relevant offence, the defect can be cured by evidence at the trial proving the matter which should have been averred. . ( True) 204. Section 86 makes provision for amendment of the charge and requires that the proposed amendment must differ to such an extent from the original charge that it is in essence another charge. . ( False) 205. Where an accused at a summary trial pleads not guilty, the presiding officer must inform the accused that he or she is not obliged to answer any questions. . ( True) 206. An accused may plead truth and public benefit where the charge is one of criminal defamation. . (True) 207. The right to a fair trial includes the right to a prosecutor who acts without fear, favour or prejudice. . ( True) Page 19 of 69 Page 20 208. Section 186 of the Criminal Procedure Act empowers the court to recall witnesses who have previously testified at the trial so that they can be examined by the court. ( True) 209. In terms of section 63(4) of the Child Justice Act, the court may not interfere in the cross- examination of a child. . ( True) 210. The court must control and manage the proceedings within the bounds of the law and without sacrificing its impartiality. . ( True) 211. The presiding officer must make sure that the accused understands the language used bya witness. . ( False) 212. The principle of finality demands that the state and the accused have an opportunity to reopen their cases where they previously failed to examine evidence introduced in the main trial. . ( True) 213. Cross-examination partly by the accused and partly by his or her legal representative must be avoided. . ( True) 214. Section 174 (CPA) provides that, if there is no chance that the accused will incriminate himself or herself during his or her defence, he or she must be discharged from prosecution. . (True) 215. The so-called “Shuping test” is the constitutional test for section 174 (CPA).. (True) 216. An accused may not be discharged at the end of the state’s case if there is a possibility that heor she will incriminate himself or herself during his or her defence. . ( False) 217. The constitutional right of the public to justice demands that an application in terms of section 174 (CPA) be denied if there is a reasonable possibility that the accused will discharge the burden of proof in his or her defence. . ( True) 218. In order to definitively prove the innocence of the accused, the defence may proceed with its case even where the court has granted a section 174 (CPA) discharge. . ( True) Page 20 of 69