Thesis (M.A.)--Victoria University of Wellington, 2009. / Includes bibliographical references.

O presente trabalho tem como escopo central a análise da regra do prejuízo relacionada às nulidades no processo penal. Corolário da teoria da instrumentalidade das formas, a regra do prejuízo dispõe que somente será reconhecida a nulidade se do ato viciado resultar algum prejuízo para a acusação ou para a defesa. A despeito de sua importância para a construção de um modelo finalístico, referida categoria do prejuízo vem sendo aplicada de forma caótica pela jurisprudência pátria. Na realidade, o entendimento daquilo que de fato configura o prejuízo para efeitos do artigo 563 do Código de Processo Penal se perdeu em meio a decisões controversas e confusas acerca do tema. A regra, inicialmente adotada no processo civil, foi transportada ao processo penal sem as devidas cautelas e desprovida dos necessários ajustes. Inexiste uma sistematização mínima para aferição do prejuízo, sendo certo que hodiernamente se confere uma discricionariedade absoluta ao magistrado para determinar se no caso concreto há alguma lesão às partes. Nesse cenário, a precípua função da forma, que é assegurar uma proteção ao acusado contra eventuais arbitrariedades do Estado, muitas vezes é deixada de lado. Toda essa problemática tem gerado um ambiente instável para correta aplicação das nulidades, o que acaba por acarretar uma notável insegurança jurídica. O presente estudo tem a pretensão de propor um modelo racional de aferição do prejuízo, com base no qual o magistrado encontrará critérios mais claros para a aplicação das nulidades no processo penal. / This research aims to analyze the harmless error rule, strictly related to the subject of nullities in the criminal procedure. As a deployment of the theory of instrumentality of the procedural forms, the harmless error rule provides that a mistake will only cause the nullity of the procedure if there is evidence to support that the prosecution or the defense were actually harmed by that error. Although extremely important for the incorporation of teleological model of nullity, the mentioned harmless error rule has been wrongfully applied by Brazilian courts. In reality, the understanding of the actual meaning of the word harm, as per article 563 of the Criminal Procedure, has been lost throughout so many different confusing and controversial court decisions. The harmless error rule, initially used in civil cases, was brought to criminal procedure without the needed adjustments. There is no minimum systematization in order to identify a harmful error and, therefore, nowadays the judge has total discretion to determine in each case the severity of the error. Given this reality, the most important function of a procedural form, which is to protect the defendant against eventual arbitrary measures committed by the State, is normally forgotten. All these issues have caused an unstable background regarding the correct application of the nullities, leading to a noticeable legal uncertainty in this subject. This research has the intention to come up with a rational model of application of the harmless error rule, based on which the judges will find the necessary criteria to recognize nullities in criminal procedures.

The general principle in criminal law is that a person is liable when committing a criminal offence. This may include an offence a person has facilitated or procured. Vicarious liability, a principle borrowed from civil law, is an exception to the general rule in that it allows for a person to be held liable for the criminal acts of another. Legal persons have no physical existence and do not have hands and brains like natural persons. A legal person acts through its directors, employees, members or representatives. The corporation, being distinct and separate from its agents, is held liable for the acts or omissions of its representatives. This liability exists even though the corporate body never acted. International recognition of corporate criminal liability can be based on vicarious liability, identification or aggregation. All these forms of liability are derived from the human actus and mens rea. The identification theory provides for the liability of the corporate body, when someone who is identified with it, acted during the course of his employment when committing the offence. Those acts are treated as the acts of the corporate body. The identification theory is normally applied where mens rea is a requirement of the offence. The Aggregation theory provides for criminal liability of the corporation based on the conduct of a group of members of the company taken collectively. This theory is applied effectively where it is difficult to prove that a single person within the company is responsible for the commission of the offence. In South Africa corporate criminal liability developed from vicarious liability. It is regulated by section 332(1) of the Criminal Procedure Act 51 of 1977. This liability is based on the special relationship between the director or servant and the corporate body. Corporations act through its agents. The agent can be a director, servant or a third person instructed by either of them. In terms of section 332(1) it is possible that the corporate body can be held liable even where the agent acted beyond the scope of his employment. The latter can be argued is an extension of vicarious liability. Vicarious liability, can be argued, is too broad, because the intention of the agent is imputed to the corporate body, without the enquiry of fault by the corporate body. This offends the general principles of substantive criminal law. Generally, liability in criminal law accrues to someone who committed the offence with the required state of mind. The constitutionality of section 332(1) Act 51 of 1977 is questioned. The question is asked whether it is desirable to punish a legal person for the behaviour of its representatives or employees. Criminal law purports to control the behaviour of individuals to be in line with the interest and values of society. There is doubt whether the same goal can be achieved with the prosecution of corporate bodies. Prosecution of corporate bodies results in stigma to the corporation, which results in suffering a loss of reputation. Some authors argue that civil remedies can control the activities of corporate bodies more effectively. This argument, however, fails to address the issue that criminal law concerns the harm inflicted by human beings, hence the need to regulate human conduct. Corporate criminal liability attempts to address the harm inflicted by corporate bodies. It regulates pollution, health, safety and business. This liability is firmly established around the world but requires further development and modern refinement in South Africa. / Abstract

No description available.

1 Criminal proceedings against legal persons Abstract On the first of January 2012, criminal liability of legal entities was finally established in the Czech Republic. This happened with effectiveness of the Act No. 418/2011 Coll., on the Criminal Liability of Legal Persons and Proceedings against them. This event significantly influenced Czech Criminal Law and caused a great stir. There has been both praise and criticism of the adoption of this law. Despite the fact that almost ten years have passed since that day and the Act itself has been amended by more than ten amendments, it has undergone extensive development, both in terms of interpretation and application. This thesis is devoted to the issue of criminal proceedings against legal persons, which in the Czech legal system is regulated in general mainly by the Act No. 141/1961 Coll., on Criminal Procedure and further modified by the special Act on Criminal Liability of Legal Persons and Proceedings against them. In a total of six chapters, the author of this thesis discusses in detail not only individual special aspects of proceedings against legal persons, but also addresses the basic issues of this type of proceedings, which are regulated in the general legislation. The author also focuses on the practical aspects of conducting such proceedings and...

Text in Afrikaans / Beskermi ng van fundamente le mense- en konst itus i one le regte het moderne regstelsels tot herbesinning oor tradisionele bewysregreels rakende die toelaatbaarheid van getuienis aangaande verklarings van 'n beskuldigde en die privilegie teen selfinkriminasie gedwing. Om die omvang van die stroming op die kwessie van getuienis oor aanwysings wat op 'n onvrywillige of onbehoorlike wyse bekom is vas te stel, word 'n analise gedoen van artikel 218 van die Strafproseswet, wat fokus op die toelaatbaarheid van getuienis oor aanwysings en getuienis wat as gevolg van aanwysings verkry is. Die Appelhofbeslissing in S v Sheehama oor die toelaatbaarheid van getuienis omtrent gedwonge aanwysings, word gesien as die beliggaming van 'n nuwe filosofie rakende die beskuldigde se privilegie teen selfinkriminasie. Die gevolgtrekking word gemaak dat die bepalings van artikel 218(2) onbillik is, 'n skending van die beskuldigde se privilegie teen selfinkriminasie tot gevolg het en herroep moet word. Voorstelle vir regshervorming word in hierdie verband gemaak. / The protection of fundamenta 1 human and con st itut i ona 1 rights has caused modern legal systems to re-evaluate traditional rules of evidence regarding the admissibility of evidence concerning statements of an accused and the privilege against self-incrimination. To determine the extent of such a re-evaluation on evidence of paintings-out which are involuntarily or improperly obtained, an analysis of section 218 of the Criminal Procedure Act is undertaken. It focuses on the admissibility of evidence of paintings-out and evidence obtained in consequence of pointingsout. The decision of the Appellate Division in S v Sheehama on the admissibility of evidence of pointing-outs, obtained by means of compulsion, is seen as an embodiment of a new philosophy towards an accused's privilege against nondiscrimination. It is concluded that the provisions of section 218(2) are unfair, infringe on an accused's privilege against self-incrimination and should be repealed. Proposals for law reform are made in this regard. / Criminology and Security Science / LL.M.

This thesis dealt with the constitutionality of the provisions of the Criminal Procedure Amendment Act, 2003 (Act 42 of 2003), pertaining to the leave requirement and petition procedures in respect of appeals against conviction, sentence or orders of the lower courts.

The proliferation of drug courts throughout the world over the last two decades presents an opportunity and a challenge. The drug court approach involves a combination of treatment and judicial supervision which is a diversion from incarceration and/or ‘traditional’ criminal justice supervision. Despite widespread study of drug courts, there is much that researchers still do not know and there is still controversy as to how and why drug courts work. This research study is an examination of secondary data from an urban, mid-Atlantic drug court to attempt to correlate factors that contribute to success (as defined by graduation) in drug court. This study examines drug courts using Life Course Theory, Social Capital Theory and Recovery Capital Theory as a theoretical foundation for understanding the influences of drug courts on participants. Findings from the Discriminant Function Analysis employed in this study demonstrate low to moderate ability to predict drug court graduation and program attrition based on a combination of demographic information and drug court program requirements. Among the factors found to contribute to drug court success were participants having children, their employment status, 30-day abstinence, age, and race. Additional implications for social workers practicing in drug courts are discussed as well as suggestions for future research directions in the study of drug courts.

Within mature criminal justice systems there exists a range of procedural mechanisms designed to provide the accused with protection from unlawful and unfair treatment by prosecuting authorities. Whilst some systems insist on judicial involvement in the investigation of crime, others grant the court discretionary powers to reject evidence or stay proceedings. Complex evidentiary rules flourish in common law systems, whereas civil law systems abide by the principle of the free evaluation of evidence. Judicial responses to the reception of irregularly obtained evidence vary, even within systems sharing a common tradition. Given the strong utilitarian tradition of the English and Scottish courts, judges tend to reason pragmatically rather than articulate principles. Theory and principle relevant to the exclusionary discretion are considered in Chapter 2. The extent of the general powers given to the prosecuting authorities in England and Scotland to gather real evidence, and the range of safeguards designed to protect the rights of suspects are examined in detail in Chapter 3. The fourth Chapter considers the admissibility of irregularly obtained evidence in both jurisdictions and questions whether, and to what extent, the procedural rules permit the court to balance effectively countervailing public interest considerations. The rules operating in France and Germany are examined in outline and used as comparative examples. Police investigative powers do not generally extend beyond the jurisdiction of the national court, thus prosecuting authorities requiring access to evidence located abroad seek assistance through operational police co-operation and mutual legal assistance procedures. These mechanisms are examined in Chapter 5, and consideration given to the differing approaches taken by the English and Scottish courts to the admissibility of regularly and irregularly obtained foreign evidence. The assumption is challenged that evidence obtained abroad can be assessed in the same manner as evidence obtained in breach of national rules without disturbing the fairness of the proceedings. Incorporation of the European Convention on Human Rights has potential for changing the court's response to questions of admissibility and is considered in Chapter 6. This thesis concludes with a critical analysis of the problems identified, and questions whether criminal justice systems can achieve a fair balance without understanding the complex interplay between procedural rules. Only by understanding the function of the procedural rule within each system can the risk of reducing the procedural protection to the accused be avoided. I have endeavoured to state the law as it stood at the end of July 2000.

Thesis (B.Psy.Sc.(Hons.)) - University of Queensland, 2006. / Includes bibliography.