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CHAPTER 3 The accusatorial system in South Africa and its effect on child witnesses and child victims within the system
It has been suggested that the early roots of the present accusatorial (adversarial) trial system can be traced to trial by battle:1 physical confrontation gradually developed into verbal confrontation.2
To-day instead of fighting with lethal weapons, we use legal arguments. Where combatants formerly met face to face, they now have surrogates–attorneys who fight for them. The judge acts as referee, theoretically protecting the contenders against foul blows. The jury decides which “side” fought the better fight. But fight it is and the object is to win, not necessarily to reveal the truth.3
INTRODUCTION
Most countries in the world primarily use one of the two criminal justice models of procedure: the accusatorial (or adversarial) model or the inquisitorial model. This classification is based on the history and evolution of particular systems.4 Traditionally the English and American countries, or common law world, are seen as examples of the former whereas the latter can be found on the European continent (e.g. the French or German systems) or in civil law countries. The South
African system belongs to the Anglo-American or accusatorial “family”. It should, however, be emphasised that no civilised country today follows a purely accusatorial or inquisitorial system, but rather a mixed system with a predisposition towards one of the two systems.5 Both systems endeavour to discover the truth and to accomplish this ideal in a fair manner. The way in which this is effected differs, however, one of the main differences being the role the judicial officer plays in the proceedings.6
In an accusatorial system a criminal trial consists of two opposing parties placing evidence before a judge, who plays a much more neutral or passive role than that of his or her inquisitorial counterpart. While the inquisitorial system has been depicted as judge-centred the accusatorial system has been described as party-driven7 or party-centred with each party presenting his or her case to the judge.8 The judge acts as an umpire and, after having heard the examination and cross-examination of the parties to the case, adjudicates upon the matter in the light of the evidence placed before him or her by the parties. Great emphasis is placed on the spoken word and evidence is mainly produced orally.9
The accusatorial system requires the accuser to present persuasive evidence of the accused’s guilt beyond reasonable doubt.10 This is due to the underlying assumption of the accusatorial model, namely the accused’s presumption of innocence. The best way to discover the truth in terms of this model is by allowing the parties themselves to present their evidence in a process which guarantees the use of direct confrontation and cross-examination.11 This explains both the emphasis on “orality” and the reason why the adversarial trial model can to some extent allow the relative inactivity of the adjudicator.12 In sum the foundational assumption of the accusatorial system is the belief that partisan advocacy, coupled with equality of arms, is the best means of placing the neutral adjudicator in a position to determine the truth.13
In contrast, the inquisitorial model is regarded as a quasi-scientific or proactive search for the truth rather than a dispute. The judge is seen as the master of the proceedings and plays a much more active role in collecting and analysing facts.14 The judge decides whether there are sufficient grounds for instituting a prosecution, determines which witnesses to call and elicits the evidence by questioning the witnesses. An open system of evidence is followed that places little emphasis on oral presentation of evidence or cross-examination. Written evidence plays an integral part in the trial and all relevant evidence may be considered by the judge. The process becomes an inquest in which the judge attempts to establish the truth by integrating the arguments and evidence of the prosecution and defence. It has therefore been said that “because of his wide powers, the continental judge searches for the material truth, whereas the judge in the accusatorial systems is merely bound to search for the formal truth, because he merely relies upon the information placed before him by the parties”.15 The fundamental assumption underlying the inquisitorial system, in contrast to the accusatorial system, is the belief that the State is the powerful guarantor of the public interest and is best equipped to establish the truth and at the same time protect the interests of the accused through a judge-dominated system.16
For an accusatorial system to be effective there has to be “equality of arms” between the parties.17 The child’s inability as an equal adversary is most evident/acute in an adversarial truth-finding process and may even lead to the truth simply becoming the view of the most powerful party.18 It is precisely the elements of the accusatorial system such as oral presentation of evidence, confrontation and cross-examination that create particular difficulties for children. The essential elements of the accusatorial system from the perspective of child witnesses will thus be investigated in order to understand and evaluate the effectiveness of the model with a view to making recommendations for an improved system. Comparisons with the inquisitorial model will also be made.
ESSENTIAL ELEMENTS OF THE ACCUSATORIAL SYSTEM
Passive presiding officer
The role of a presiding officer in the accusatorial system is essentially passive or neutral.19 The presiding officer ensures that the rules of evidence are satisfied by listening to the evidence and arguments presented to him or her by the parties and by ruling on the issues of law and fact. Although the role of a presiding officer is essentially a passive or neutral one, the present-day presiding officer is not totally inactive.20 In the matter of Rex v Hepworth Curlewis J remarked as follows:
A criminal trial is not a game where one side is entitled to claim the benefit of any omission or mistake made by the other side, and a judge’s position in a criminal trial is not merely that of an umpire to see that the rules of the game are observed by both sides. A judge is an administrator of justice, he is not merely a figure head, he has not only to direct and control the proceedings according to recognised rules of procedure but has to see that justice is done.21*
CHAPTER 1 Introduction
1 PROBLEM STATEMENT
2 RESEARCH METHOD
3 FRAMEWORK OF THE THESIS
CHAPTER 2 The historical background of the South African criminal justice system and the role of child witnesses and child victims within the system
1 INTRODUCTION
2 OVERVIEW
3 CONCLUSION
CHAPTER 3 The accusatorial system in South Africa and its effect on child witnesses and child victims within the system
1 INTRODUCTION
2 ESSENTIAL ELEMENTS OF THE ACCUSATORIAL SYSTEM
3 CONCLUSION
CHAPTER 4 The protection of child victims and witnesses in terms of the Constitution of the Republic of South Africa, 1996, and international instruments
1 INTRODUCTION
2 CONSTITUTIONAL PROTECTION OF CHILDREN
3 THE PROTECTION OF CHILDREN IN INTERNATIONAL LAW
4 INTERNATIONAL CHILDREN’S RIGHTS INSTRUMENTS
5 REGIONAL CHILD INSTRUMENTS
6 THE RELATIONSHIP BETWEEN INTERNATIONAL AND REGIONAL LEGAL INSTRUMENTS AND SOUTH AFRICAN CHILD LAW
7 CONCLUSION
CHAPTER 5 The intermediary system in South Africa
1 INTRODUCTION
2 HISTORICAL BACKGROUND TO THE INTRODUCTION OF THE PERSONA OR FUNCTION OF AN INTERMEDIARY
3 ANALYSIS OF THE INTERMEDIARY SYSTEM
4 CONCLUSION
CHAPTER 6The intermediary system in Namibia
1 INTRODUCTION
2 THE RIGHT TO PROTECTION OF NAMIBIAN CHILD VICTIMS AND CHILD WITNESSES
3 CONCLUSION
CHAPTER 7The intermediary system in New Zealand
1 INTRODUCTION
2 THE RIGHT TO PROTECTION OF THE NEW ZEALAND CHILD VICTIM AND CHILD WITNESS
3 CONCLUSION
CHAPTER 8 Concluding remarks and recommendations
1 INTRODUCTION
2 CONCLUDING REMARKS
3 RECOMMENDATIONS
4 CONCLUSION
GET THE COMPLETE PROJECT
THE PROTECTION OF CHILD VICTIMS AND WITNESSES IN A POST-CONSTITUTIONAL CRIMINAL JUSTICE SYSTEM WITH SPECIFIC REFERENCE TO THE ROLE OF AN INTERMEDIARY: A COMPARATIVE STUDY
