Criminal Proceedings – Yikes

So you have been arrested? Or someone you know has been arrested? What should you do? Do not panick – we have set out a short primer on the powers/laws/rules and regulations in relation to arrests, police powers, bails, statements etc here below…This is not to be taken legal advice – so call any of our lawyers if in doubt.

Arrest, Search and Bail
Police officers are entitled to make arrests without warrants in certain circumstances. Section 64 of the Criminal Procedure Code lists the circumstances under which such an arrest can be made. For all other matters, a warrant of arrest is required.

Once arrested, the police officer also has the power to search you.

After being arrested, you may be brought to the nearest police station for further questioning and investigation. If you have been arrested without a warrant, the police can only detain for you a reasonable period, and such period cannot exceed 48 hours. If the police wish to detain you for a longer period, you must be brought before a Magistrate to be charged. (Note that the 48 hours excludes the time necessary for the journey from the place of arrest to the Magistrate’s Court).

If the police decide not to charge you after your arrest and if you are accused of committing a bailable offence, the police or the court MUST release you on bail provided you are prepared to furnish bail and adhere to any of the bail conditions that would be set. Further, instead of taking bail from you, the police or the court may release you if you sign a personal bond without sureties.

On the other hand, if you are accused of committing a non-bailable offence, it doesn’t necessarily mean that you will not be released on bail. The difference between a bailable offence and a non-bailable offence is that for the former, you are entitled to bail as of right. On the other hand, if you have been charged with a non-bailable offence, bail is discretionary. Accordingly, the police or the court MAY grant you bail. Some of the factors that determine if bail is to be offered in non-bailable offences, is the likelihood of the accused absconding or the accused tampering with the prosecution’s evidence. The First Schedule of the Criminal Procedure Code states whether an offence is bailable or not.

Investigations
Long Statements
Investigations can be over in a few days or may extend to several months (depending on the complexity of the offence). During investigations, if you are released on bail, the police may call you down to give statements in relation to the offence. This is typically called the ‘long statement’ and the police are empowered to take statements from you pursuant to section 22 of the Criminal Procedure Code 2010 (Act 15 of 2010).

Under section 22, you are bound to state truly what you know about the facts and circumstances of the offence(s) you have been accused of. It is always advisable for you take your time and think through carefully before giving any statements.

It is important to bear in mind that the section also states that you are entitled not to say anything that might expose you to a criminal charge. Once statements have been given, whatever statements you made must be reduced into writing, be read over to you, and if you do not understand English, be interpreted to you and lastly be signed by you. You must also ensure that the statements are exactly what you have stated before signing them. If there are any mistakes in your statements, make sure you insist that they are corrected before signing them. It is always advisable that you cooperate fully with the police officer or the investigation officer when giving your statements.

Cautioned Statements
Once investigations have been completed and if the police do decide to charge you for the offence you have been accused of, you will be asked to give a statement typically called a ‘cautioned statement’. Cautioned Statements are defined under section 23 of the Criminal Procedure Code 2010. Before recording your statement, the investigation officer MUST serve you the following notice:
“You have been charged with [or informed that you may be prosecuted for] —
(set out the charge).

Do you want to say anything about the charge that was just read to you? If you keep quiet now about any fact or matter in your defence and you reveal this fact or matter in your defence only at your trial, the judge may be less likely to believe you. This may have a bad effect on your case in court. Therefore it may be better for you to mention such fact or matter now. If you wish to do so, what you say will be written down, read back to you for any mistakes to be corrected and then signed by you.”

After serving the notice, your statements will be recorded. Your statements must be reduced into writing, be read over to you, and if you do not understand English, be interpreted to you and lastly be signed by you. You must also ensure that the statements are exactly what you have stated before signing them. If there are any mistakes in your statements, make sure you insist that they are corrected before signing them.

The purpose of recording your cautioned statement is to give you the opportunity to state any fact on which you intend to rely on in your defence. Therefore, it is very important that you take your time and make sure your defence, if any, is recorded.

Take note that if you choose to remain silent and not say anything, your refusal to say anything must be recorded.

When charged in Court
When you are being charged in Court (usually in Court 23 or Court 26 of the State Courts), the charge will be read out and explained to you. As mentioned above, you must be charged within 48 hours after you have been arrested or in remand.

If you require an interpreter, you may ask for one, and this will be provided by the Court. Similarly, if you do not understand the charge, you may ask for further explanations. You should pay attention to the details of the charge(s) being read out to you, in particular, the date, time, place as well as the particular details of the alleged offence.

Once the charge(s) is read out, you can choose to either plead guilty or not guilty. If you choose to plead guilty, you must accept the details of the charge and the Statement of Facts entirely. This is why it is absolutely vital that you familiarise yourself with the details of the charge and the Statement of Facts. If you disagree with anything contained in the charge or in the Statement of Facts, you must bring this to the Court’s attention. If you do not do so, you will be convicted based on the details of the charge and the Statement of Facts, and this may have serious implications.

For example, let’s say you have been charged with theft-in-dwelling, for stealing a Mont Blanc pen valued at $1000 from a shopping centre, when in fact, you actually stole a Pilot pen valued at $1. If you do not highlight this error to the court and proceed to plead guilty to the charge, you will be convicted for stealing the Mont Blanc pen valued at $1000, and this may also result in a harsher sentence being imposed.

Claiming Trial
If you choose not to plead guilty, the matter will then be set for trial. The purpose of the trial is for the court to test the evidence against you, to determine whether you are in fact guilty of the offence. In order to do this, the court will first hear the prosecution’s evidence against you. Except in certain limited circumstances, the onus is always on the prosecution to prove the charge against you beyond reasonable doubt. At the end of the prosecution’s case, the Court can dismiss the charges against you if the prosecution’s case is too weak. Otherwise the Court will then call for your defence. During this stage you may call witnesses or tender documents that assist your case. At the end of the defence’s case, the Court may acquit you if you have raised a reasonable doubt in the prosecution’s case. Otherwise, you will be found guilty of the offence and convicted.

Mitigation Plea
After you have been convicted, the Court will hear your mitigation plea before deciding on your sentence. The purpose of a mitigation plea is to highlight any facts that may persuade the Court to impose a lenient sentence on you. These facts may include any personal, medical, or other factors that explain why you might deserve a lesser sentence. Some examples of mitigating factors include:

(a) Being a first time offender
(b) Pleading guilty and not wasting the Court’s time.
(c) Remorse and restitution (i.e giving back what was taken from the victim or compensating the victim for the loss suffered).
(d) Personal/medical circumstances may be relevant in certain circumstances though not always.

Note that a mitigation plea is not an opportunity for you to raise defences or dispute the facts upon which you have been charged and convicted. For example, if you have been convicted of theft-in-dwelling, for stealing a Mont Blanc pen worth $1000, you cannot dispute this fact in your mitigation plea and claim that it was only a Pilot pen worth $1. Neither can you say that you only took the pen because you believed that it was yours, because this should be raised as part of your defence during the trial.

Appeals
If you are unsatisfied with the verdict or the sentence, you may file an appeal to the High Court within 14 days from the date of the conviction or sentence. If you have previously pleaded guilty to the offence, you cannot appeal against the conviction but you may appeal against the sentence imposed.