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The Right to Speedy Trial in Namibia and South Africa
Published online by Cambridge University Press: 28 July 2009
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- Copyright © School of Oriental and African Studies 1997
References
1 For a general discussion of the case law see Lafave, W.R. and Israel, J H, Criminal Procedure, 2nd edn.. St Paul, Min. 1992, ch. 18.Google Scholar
2 For a substantial overview of the Canadian experience see Hogg, P., Constitutional Law of Canada, 3rd ed. Ontario, 1992, ch. 49.Google Scholar
3 In New Zealand the right to speedy trial is provided under s. 25(b) of the Bill of Rights Act, 1990: the leading cases on this provision are: Martin v. Taurange District Court [1995] 2 NZLR 419; andGoogle ScholarHughes v. Police [1995] 3 NZLR 443.Google Scholar
4 1996 (7) BCLR 947
5 1996 (2) BCLR 197
6 Moeketsi, , at 970Google Scholar; Heidenreich, , at 203.Google Scholar
7 Moeketsi, , at 269Google Scholar; Heidenreich, , at 203 206.Google Scholar
8 Heidenreich, , at 203.Google Scholar
9 (1972) 407 US 514 at 519–20.
10 1996 (2) BCLR 197, 204
11 Ibid., 205
12 Ibid.
13 Ibid., 206.
14 Ibid., 206.
15 (1972) 407 US 514 at 519–20.
16 (1991) 59 C.C.C. (3d) 449.
17 [1992] 12 CR 1.
18 This is evident in three areas. Wingo established that in order to trigger the speedy trial provision, the accused must show, as a threshold requirement, that the delay of which he complains “was uncommonly long”; Askov repudiates that requirement and establishes that any length of delay is sufficient to bring the speedy trial provision into play: “the length of delay is merely a factor to be balanced along with the others” (at 477). Secondly, Wingo established that the accused must assert his right to speedy trial after the delay and failure to do so weighs “heavily” against him; Askov, by contrast, establishes that there is no such duty on the accused. Thirdly, Wingo establishes that in the context of the operation of the balancing test, the accused cannot succeed unless he can show actual prejudice; Askov, by contrast, establishes that delay will be presumed to have occasioned prejudice to the accused.
19 1996 (7) BCLR 947, 970.
20 On the face of it Friedman J. P., applied an arithmetic approach based on a computation of the total delay in the case and a determination of the extent to which each party was responsible for that delay. However it is clear that much of the delay attributed to the accused by the court was in fact due to and flowed directly from the failure of the State timeously to make available the further particulars initially requested by the accused on 12 August, 1994. It hardly seems fair therefore to say, as Friedman J.P., did, that the accused was “primarily responsible” for the delay.
21 Strunk v. United Stales 1973 US 434, 440; R v. Rahey 1987 1 SCR 588, 614 (Lamer, J.), 620 (Wilson, J.).
22 1995 (1) BCL R 12.
23 Ibid., 35–36.
24 1996 (2) BCLR 197, 205.
25 Amsterdam, , “Speedy criminal trial: rights and remedies“ (1975) 27 Stamford Law Review 528.Google Scholar
26 1996 (7) BCLR 947, 970.
27 Ibid.
28 Ibid., 970.
29 For expressions of this sentiment see. The Hon. Mr Justice David Doherty, “Delay” (paper presented at the National Criminal Law Program, Tactics, Procedure and Practice, Dalhousie University, July 1989). See also R. v. Morin (19 April 1990), (Ont. C.A.) which cites Doherty's paper and concludes at page 12 that only minimal weight should be attached to any prejudice to the accused presumed to arise out of delay, because “many accused persons do not want an early trial. It is often said that in the case of an accused with a weak case, delay usually benefits the defence”, quoted in Trial Within a Reasonable Tone, Working Paper Prepared for the Law Reform Commission of Canada, 1992, 4
30 Hunter v. Southern Inc. [1984] 2 SCR 145 at 169 (per Dickson, C.J.).Google Scholar
31 South Africa, Constitution s.33; Namibia, Constitution art. 21(2).Google Scholar
32 R v. Askov R v. Morin.
33 Martin v. Taurange District Court [1995] 2 NZLR 419Google Scholar; and Hughes v. Police [1995] 3 NZLR 443.Google Scholar
34 R v. Morin 18.
35 The principle of a transition period was initially formulated by Lamer, J., and supported by Wilson, J., in the Supreme Court case of R v. Mills (1986) 26 C.C.C. 3d 29, andGoogle Scholar subsequently reiterated by the former judge in R v. Rehay (1987) 33 C.C.C. 289.Google Scholar However, in R v. Morin the Supreme Court distanced itself from the principle. The majority through SOPKTNKA, J., held that “while a transition may have been appropriate immediately after the Charter came into effect, it is not appropriate any longer” (at 20).
36 R v. Rehay.
37 Doggett v. United States (1992) 120 L Ed 2d 520 esp. 530–32 (SOUTER, J.).
38 [1992] 12CR(4th) 1.
39 R v. Morin, 18–19 (per Sopinka J.).
40 Ibid., at 20.
41 R v. Askov
42 R v. Morin, at 20.
43 This is illustrated by the decision in R v. Askov.
44 R v. Morin, 19.
45 The principle of presumptive prejudice failed to attract unambiguous support from the court in the subsequent case of R v. Morin. However, in R v. CIP [1993] 1 SCR 843 at 861–862Google Scholar, the court through STEVENSON, J., confirmed that the presumption of prejudice still operates in favour of the accused.
46 (1992) 120 L Ed 520.
47 See Searright, T. J., “The sixth amendment right to a speedy trial: applying Barker v. Wingo after United Slates v. Doggett”, 1994, 22 Western State University Law Review 61–67.Google Scholar
48 Moeketsi, 971–72.
49 R v. Askov, 484 (CORY, J.).
50 Doggett v. United States U.S. Law Week 60 LW 4741, 4743 (Souter, J.).
51 In South Africa s. 342A(3) of the Criminal Procedure Act, 1977, enables the court to order the State to pay to the accused “the wasted costs incurred by the accused as a result of unreasonable delay caused by an officer employed by the State”. As regards Namibia art. 25(4) of the Constitution empowers the courts to award “monetary compensation in respect of any damage suffered by the aggrieved persons of such unlawful denial or violation of their fundamental rights and freedoms, where it considers such an award to be appropriate in the circumstances of particular cases”.
52 In Martin v. Tauranga District Court, op. cit., the Court of Appeal of New Zealand in applying the speedy trial provision contained in s. 25(b) of the New Zealand Bill of Rights Act, 1990, unanimously held that while a stay will be the standard remedy in the case of undue delay, it may sometimes be appropriate to refuse a stay and grant some other remedy such as an expedited trial, damages, declaration or bail.
53 This approach has been adopted in the U.S. and Canada. As to the former see the Civil Justice Reform Act of 1990; 104 Stat. 5089 and the Federal Rules of Civil Procedure, esp. Rule 16 thereof. For a general discussion see Tobias, C., “Recalibrating the Civil Justice Reform Act”, (1993) 30 Harvard Journal on Legislative Studies 115Google Scholar; and Windsor, S., “Transforming the procedural landscape: changes to federal civil procedure”, (1994) 57 Texas Bar Journal 471.Google Scholar As to Canada, see Trial Within a Reasonable Time, Working Paper prepared for the Law Reform Commission of Canada (1992).
54 The Simplification of Criminal Procedure, Project 73, August 1995, ch. 1.
55 S. 342A(3) (1)
56 S. 342A(3) Criminal Procedure Act, 1977, as inserted by the Criminal Procedure Amendment Act, 1996.