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CHAPTER TEN THE RIGHT TO PRESENT ONE’S CASE

CHAPTER TEN. THE RIGHT TO PRESENT ONE'S CASE. INTRODUCTION. It is a fundamental principle that the accused should be allowed to PRESENT his case in court in an effective manner. This will enable him to establish the truth about his guilt or The RIGHT to PRESENT one's case applies to all aspects of court proceedings where the court makes a factual finding. This RIGHT is an expression of the audi alteram partem principle and part and parcel of the RIGHT to a fair The notion of a fair and adversarial hearing requires that the accused be given an adequate opportunity not only to challenge and question witnesses against him, but also to PRESENT his own witnesses in order to establish an effective defence.

10 Section 166(1) of the Act provides that the accused may cross-examine any co-accused who testifies at criminal proceedings. This section also provides that after every witness has been

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Transcription of CHAPTER TEN THE RIGHT TO PRESENT ONE’S CASE

1 CHAPTER TEN. THE RIGHT TO PRESENT ONE'S CASE. INTRODUCTION. It is a fundamental principle that the accused should be allowed to PRESENT his case in court in an effective manner. This will enable him to establish the truth about his guilt or The RIGHT to PRESENT one's case applies to all aspects of court proceedings where the court makes a factual finding. This RIGHT is an expression of the audi alteram partem principle and part and parcel of the RIGHT to a fair The notion of a fair and adversarial hearing requires that the accused be given an adequate opportunity not only to challenge and question witnesses against him, but also to PRESENT his own witnesses in order to establish an effective defence.

2 The RIGHT to PRESENT one's case is also subject to the principle of ?equality of arms . The principle of ?equality of arms is the guarantee that both sides will be given the same procedural opportunities to prove their Therefore, the court cannot act in a way which gives the prosecution an advantage over the 1. It is noteworthy that no onus rests on the accused to convince the court of the truth of any explanation he gives. If he gives an explanation, even if the explanation is improbable, the court is not entitled to convict unless it is satisfied, not only that the explanation is improbable, but that beyond any reasonable doubt it is false.

3 As per Watermeyer AJ (as he then was) in Rex v Difford 1937 AD 370 at 373. 2. The ?audi alteram partem principle literally means ?hear the other side . This means that no ruling of any importance, either on the merits or on procedural points, should be made without giving both parties the opportunity of expressing their views. See S v Suliman supra at 385. The rules of natural justice come into play here. The ?audi alteram partem principle is followed in judicial proceedings in a number of countries throughout the world, along with the rights such as legal representation, the RIGHT to argument and cross-examination, and the leading of evidence.

4 3. See art 14(1) of the ICCPR, which provides that all persons shall be equal before the courts and tribunals. Also see s 9(1) of the 1996 Constitution which provides that: ?Everyone is equal before the law and has the RIGHT to equal protection and benefit of the law . The RIGHT of all persons to be equal before the courts, requires that the prosecution and defence be treated equally in a criminal trial. 4. In Robinson v Jamaica supra at 223/1987 at 241, the HRC considered a case where the accused's request for adjournment in a murder trial in order to arrange for legal representation, was denied by the trial court.

5 The Committee found that the refusal raised issues of fairness and violated art 14(1) because of the ?inequality of arms between the parties. Also see Weissbrodt (2001) op cit 130. In order for an accused to PRESENT his case effectively, he must, inter alia, have access to statements of state witnesses so that he can adduce and challenge evidence Thus, this RIGHT is also closely related to the RIGHT to be prepared for one's trial. The RIGHT to PRESENT one's case is also linked to the other rights mentioned in section 35 of the The RIGHT to PRESENT one's case contains a number of sub-rights, which are directly related to the main RIGHT .

6 These sub-rights appear in the trial phase of the criminal process. They comprise the following rights such as, the RIGHT to cross-examine witnesses, the RIGHT to address the court on evidence to be adduced, the RIGHT to give and adduce evidence, the RIGHT to address the court at the conclusion of evidence and the RIGHT to address the court on sentence. The RIGHT to PRESENT one's case effectively is fundamental to an accused's RIGHT to a fair trial. This CHAPTER will first examine the RIGHT to cross-examination. The limitations of this sub- RIGHT , such as face-to-face cross-examination, hearsay evidence and documentary evidence will also be discussed.

7 Thereafter, the other sub-rights will be discussed. Principles extracted from comparative law will be applied where it is relevant. Finally, the conclusion will consider the impact and influence of comparative law on our law, and PRESENT proposals and recommendations. THE RIGHT TO CROSS-EXAMINATION. Cross-examination is a marked characteristic of the common law adversarial trial According to Wigmore, it is ?the greatest legal engine ever invented for the discovery of truth .8 It has strong historical and symbolic Section 166 of the Act provides that the accused has the RIGHT to cross-examine state witnesses and 5.

8 See Shabalala v Attorney-General, Transvaal supra at 1593. 6. To illustrate this, the RIGHT is linked to the following rights such as, the RIGHT to PRESENT one's case via one's legal representative in terms of s 35(3)(f); the RIGHT to remain silent and thus to PRESENT one's case in a passive manner in terms of s 35(3)(h); and the RIGHT to PRESENT one's case in a language that you understand in terms of s 35(3)(k). 7. The adversary system's real genius, the heart of the concept, lies in the use and perfection of cross-examination.

9 The central philosophy is that by testing the statements of one against the questions of an adversary, the fact finder may determine the truth. See Singer ?Forensic misconduct by federal prosecutions S and how it grew (1968) Alabama Law Review 227 at 268. 8. See Wigmore Evidence in trials at common law Boston (1979) s 1367. 9. See Van der Merwe ?Regterlike inkorting van kruisondervraging: n gemeenregterlike, statut re en grondwetlike perspektief (1997) Stellenbosch Law Review 348. Also see Underwood ?The limits of cross-examination (1997) American Journal of Trial Advocacy 113 at 113-118, regarding the history and mythology of cross-examination.

10 Any witness called by the court, before he presents his case for the This gives him the opportunity to elicit favourable evidence from witnesses (known as adducing evidence) and to undermine the value of incriminating evidence (known as challenging evidence). Therefore, the object of cross-examination is firstly, to obtain information that is favourable to the party on whose behalf the cross-examination is conducted and secondly, to cast doubt upon the accuracy of the evidence-in-chief given against such In South Africa, the accused's RIGHT to cross-examine also has constitutional basis, and is derived from section 35(3)(i) of the THE RIGHT TO CROSS-EXAMINE STATE WITNESSES.


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