DEALING WITH WHITE COLLAR CRIME

INVESTIGATION / PROSECUTION

6. PROSECUTION

6.1 PARTNERS IN THE PROSECUTION PROCESS

1. No one on his own does all the investigation and prosecution. The key word is team work.
   
   
2. The team should consist of the following people:
   1. a senior manager of the firm;
   2. the Enquiry Controller;
   3. the SAPS investigating officer;
   4. the Public Prosecutor.
      
      
3. The following people are not always required but it is highly recommended that they are included in more serious and more technical cases:
   1. private investigator;
   2. forensic accountant
   3. legal practitioner (internal or external).
      
      
4. Who is the senior partner in the Prosecution Process?
   The Public Prosecutor is the person ultimately responsible for getting a conviction in a criminal court. If he is experienced enough he will know exactly what is required for a successful prosecution. Therefore everyone else should treat him as the senior partner and should do their utmost in complying with his requests.

6.2 THE PROSECUTION PROCESS

1. After the initial investigation conducted by the enquiry controller the matter gets handed over to the SAPS.
   
   
2. The SAPS can either arrest the suspect immediately, take him to court and thereafter conduct the investigation, or they can first complete the investigation and thereafter have the suspect charged.
   
   
3. Although the first option may appeal to the firm, it should be avoided as far as possible. The suspect should only be arrested in the initial stages if there is a serious threat of him skipping the country. An early arrest leads to a hasty, often half completed investigation which results in cases being withdrawn at court or the acquittal of the accused.
   
   
4. Ideally, the investigation should be completed first. While the SAPS is conducting their investigation the Enquiry Controller must have regular contact with the detective. He must ensure that the detective does not waste unnecessary time.
   
5. When the investigation is complete the Enquiry Controller should accompany the detective to the Public Prosecutor where he should discuss the seriousness of the case with the prosecutor.
   
   
6. Thereafter the Enquiry Controller should give his full co-operation to the Public Prosecutor. He should contact the Prosecutor regularly enough to ensure that his case receives the necessary attention.
   
   
7. When the prosecutor is satisfied that all the required evidence has been obtained, he will draw up a charge sheet. He will also order that the suspect be charged and brought before court. This can be done by issuing a warrant of arrest or a summons to appear before court.
   
   
8. The detective will then locate the suspect and execute the warrant of arrest or serve the summons. As from this moment the suspect will be referred to as the accused.
   
   
9. If the accused has been arrested he will be brought before a court within a specified period and unless there are reasons to believe that he will not stand trial, he will be released on bail. Normally the onus will be on the State to prove that there are reasonable grounds to believe that he will not stand his trial. If the State decides to oppose a bail application, the Enquiry Controller should assist the detective in gathering evidence to prove that there are reasonable grounds to believe that the accused will not stand his trial.
   
   
10. After the first appearance in court the matter will be remanded to allow the state to finish their investigation. Depending on the nature of the offence the Magistrate will only allow the State one or two remands.
    
    
11. When the State is ready to proceed with the trial the defence is still entitled to remands. For instance the accused will be allowed a remand to consult an attorney or to apply for legal aid or to locate his witnesses. Remands will also be granted if the accused or his attorney is ill.
    
    
12. The first step of the trial is the plea, either guilty or not guilty.
    
    
13. If the accused pleads not guilty then the State will have to call their witnesses. The defence is entitled to cross examine every witness.
    
    
14. If the State fails to prove their case, the accused can be acquitted at the end of the State's case, otherwise he will then give his evidence followed by the testimony of his witnesses. The State is entitled to cross examine the accused and all his witnesses.
    
    
15. When the defence close their case, the Prosecutor and the defence attorney argue their cases. Thereafter the Magistrate gives judgement, either guilty or not guilty.
    
    
16. Thereafter mitigating and aggravating evidence is led where after the Magistrate passes sentence.
    
    
17. When leading evidence for aggravation the Prosecutor can also request the Magistrate in terms of Section 300 of the Criminal Procedure Act to make a compensatory order. There are however limits to the compensation amount that a Magistrate in the Magistrate Court and the Regional Court may order.
    
    
18. The internal investigator should establish what these maximum amounts are and whenever his case is for a smaller amount he should ensure that the Prosecutor applies for such a compensating order.

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