Criminal Procedure - Law of evidence Accused failing to testify- State establishing – prima facie case through direct evidence Right to remain silent Although accused – – has a constitutional right to remain silent - Where there is direct prima facie evidence implicating him His failure to testify may count against him - Admissibility of – statements Common law rules Statement made by accused to be admitted in – – evidence Should be freely and voluntarily made without being induced by any threat – or promise by a person in authority. S v Windstaan & 1 Other (CC 19/2010) [2016] NAHCMD 375 (30 November 2016). Criminal Procedure Recusal by judicial officer Test for bias two fold whether a – – – reasonable objective and informed person would on the correct facts reasonable apprehend bias If the answer is in the affirmative Need for recusal If not no need – – – for recusal Evidence- single witness Cautionary rule Court may convict on – – – evidence of a single witness if clear and satisfactory in material respects Evidence to be assessed in its totality. Engelbrecht v The State (CA 42/2016) [2016] NAHCMD 386 (9 December 2016). SECTION 174 APPLICATION Criminal law: Section 174 of Act 51 of 1977 can only succeed if there is no prima facie case requiring an answer from the accused at the close of the prosecution case. The complainant was busy closing her business (bar) in what she described as a well illuminated environment when the accused came in, attacked her and took away her cellular phone. Held: At the close of the prosecution case the complainant had testified under oath that it was the accused who attacked and took away her cellular phone. This evidence stood firm and is still intact from the date of the closure of the prosecution case and is waiting for an answer which did not come. A discharge in such circumstances was misplaced. State v Klaas (CR 7/2016) [2016] NAHCMD 27 (15 February 2016). Appeal Trial Discharge at the end of the case Criminal Procedure ─ ─ ─ State’s ─ Section 174 of the Criminal Procedure Act 51 0f 1977 No evidence upon which a ─ reasonable court may convict Theft. The appellant in this matter was charged for theft ─ of a cell phone from a motor vehicle. Only the complainant testified in the case. He testified about the theft but did not know the appellant. The cell phone was not produced
Criminal Procedure - Law of evidence – Accused failing to testify- State establishing prima facie case through direct evidence – Right to remain silent – Although accused has a constitutional right to remain silent - Where there is direct prima facie evidence implicating him – His failure to testify may count against him - Admissibility of statements – Common law rules – Statement made by accused to be admitted in evidence – Should be freely and voluntarily made without being induced by any threat or promise by a person in authority. S v Windstaan & 1 Other (CC 19/2010) [2016] NAHCMD 375 (30 November 2016). Criminal Procedure – Recusal by judicial officer – Test for bias two fold – whether a reasonable objective and informed person would on the correct facts reasonable apprehend bias – If the answer is in the affirmative – Need for recusal – If not no need for recusal – Evidence- single witness – Cautionary rule – Court may convict on evidence of a single witness if clear and satisfactory in material respects Evidence to be assessed in its totality. Engelbrecht v The State (CA 42/2016) [2016] NAHCMD 386 (9 December 2016). SECTION 174 APPLICATION Criminal law: Section 174 of Act 51 of 1977 can only succeed if there is no prima facie case requiring an answer from the accused at the close of the prosecution case. The complainant was busy closing her business (bar) in what she described as a well illuminated environment when the accused came in, attacked her and took away her cellular phone. Held: At the close of the prosecution case the complainant had testified under oath that it was the accused who attacked and took away her cellular phone. This evidence stood firm and is still intact from the date of the closure of the prosecution case and is waiting for an answer which did not come. A discharge in such circumstances was misplaced. State v Klaas (CR 7/2016) [2016] NAHCMD 27 (15 February 2016). Criminal Procedure ─ Appeal ─ Trial ─ Discharge at the end of the State’s case ─ Section 174 of the Criminal Procedure Act 51 0f 1977 ─ No evidence upon which a reasonable court may convict ─ Theft. The appellant in this matter was charged for theft of a cell phone from a motor vehicle. Only the complainant testified in the case. He testified about the theft but did not know the appellant. The cell phone was not produced