Date of trial

High Court

When a person is to be tried in the High Court the trial date is determined by the Prosecutor-General or his representatives, though the court, on good cause shown by the accused, may order that the trial should be held on an earlier date.  The court may also postpone the trial.  Hence, the Prosecutor-General’s representatives must be reasonable in fixing a trial date, and should consult the accused’s legal practitioner when doing so.  Note that the trial date fixed by the Prosecutor-General must be within six months from the date of the accused’s committal for trial (excluding any time during which the accused is not available to stand trial);  if it is later, the case against him must be dismissed.

Magistrates court

An accused must be brought up for trial on “the next possible court day”, but his trial may not take place on that date;  it may be postponed.  The actual date of trial is fixed by the public prosecutor, and as with the High Court it is desirable that when fixing a date the prosecutor should consult the accused’s legal practitioner, if any.

Postponement or adjournment of trial

A court has power to postpone and to further postpone any trial pending before it, if the court considers it necessary and expedient, and to impose terms on any such postponement.  In the case of a magistrates court, the trial cannot be postponed for more than 14 days without the accused person’s consent.

Once a trial has started, it may be adjourned whether or not any evidence has been led, but once again a magistrate may not adjourn a trial for more than 14 days at a time without the accused’s consent.

The court’s power of adjournment is of course limited by the constitutional provision guaranteeing accused persons the right to a trial within a reasonable time.

Bringing the accused to trial in the High Court

In terms of section 65 of the Criminal Procedure and Evidence Act, no one may be tried in the High Court at the public instance unless he has been committed for trial there by a magistrate.  So once the Prosecutor-General’s representative has fixed a date for the trial, he must cause the accused person to be committed for trial there.  This is done by sending a notice to the magistrate stating that he has decided to indict the accused for trial in the High Court and informing the magistrate of the charge against the accused.  The magistrate will then have the accused brought before him, commit him for trial in the High Court, order his further detention until the trial, and cause the following papers to be served on him (the papers will have been prepared by the Prosecutor-General’s representative and sent to the magistrate with the notice):

• the notice of trial;
• the indictment;
• a list of witnesses the State intends to call at the trial, together with a summary of the evidence which each witness is expected to give, sufficient to inform the accused of all the material facts on which the State relies;
• a notice requesting the accused to give an outline of his defence, and a list of any witnesses he intends to call, together with a summary of the evidence which each witness is expected to give, sufficient to inform the prosecution of all the material facts on which the accused relies.

If the accused is to be legally represented at his trial (and most accused persons are in the High Court), his legal practitioner must, at least three days before the trial, lodge his defence outline, together with the list of witnesses and the summary of their evidence, with the Registrar of the High Court and must deliver a copy to the Prosecutor-General.  If the accused is not to be legally represented at his trial, the Prosecutor-General can have him brought before a magistrate who must:

• ask the accused if he understands the Prosecutor-General’s documents that were served on him.If the accused doesn’t, the magistrate must explain them to him;
• inform the accused of his right to remain silent and of the consequences of doing so, in particular that if he fails to mention anything which, in the circumstances, he could reasonably be expected to have mentioned, adverse inferences may be drawn from that failure and the failure may be regarded as corroborating the State’s evidence against him;and
• request the accused to give his defence outline, the names of any witnesses he intends to call and a summary of their evidence.

So whether the accused is legally represented or not, he is induced to provide the State with an outline of his defence before the trial starts.

There is no harm in the accused being asked to reveal his defence, so long as he is told that he does not have to do so — and section 66(10)(b) of the Criminal Procedure and Evidence Act requires the magistrate to do this.  What is unconstitutional is the fact that if an accused person fails to give an outline of his defence, or fails to mention a material fact, adverse inferences can be drawn and the failure can be regarded as corroborating the State’s evidence.  The accused is penalised for exercising his constitutional right to silence.