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[2011] ZAGPJHC 255
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S v Mangena and Another (2012 (2) SACR 170 (GSJ)) [2011] ZAGPJHC 255; [2011] ZAGPJHC 8 (28 February 2011)
SOUTH GAUTENG HIGH COURT,
JOHANNESBURG
CASE NO
:
32/2009
DPP REF NO: JPV 2008/0249
DATE: 28/02/2011
In the matter between:
THE STATE
and
MANGENA,
BONGANI LAURENCE
..........................................
Accused
No. 1
LAMBANE,
HANNIES MASHAMBA
..........................................
Accused
No. 2
______________________________________________________________
REASONS FOR
DECISION
:
TRIAL WITHIN A TRIAL AND ADMISSIONS AGAINST A CO-ACCUSED
______________________________________________________________
SPILG, J
:
INTRODUCTION
[1] Accused no. 1 was originally
cited as Lawrence Bongani Mgeni. His correct names are Bongani
Laurence Mangena. He and accused
no. 2 stand charged with the murder
of Raymond Khoza and the attempted murder of David Jack Khoza on
Saturday 9 August 2008. Accused
no. 1 is also charged with the
unlawful possession of an unlicensed firearm and ammunition.
[2] The trial commenced on 11
March 2010 and was remanded on 25 March 2010. When the State resumed
leading its evidence on 2 November
2010 Ms Persad indicated that her
next witness, Captain Nobela would be led in regard to a written
admission allegedly made to
her by accused no. 1. Mr Potwana on
behalf of accused no. 1 objected to the testimony being admitted on
the grounds that the alleged
admission was not freely and voluntarily
made in that the statement was made under duress, and also on the
ground that accused
no 1 had not been informed of his constitutional
rights.
[3] In support of the admission
having been voluntarily made and that the accused was properly
informed of his constitutional rights
the State led the evidence of a
number of witnesses. They were Captain Nobela before whom the
admission was taken on 10 September
2008, Warrant-Officer Rapetsoa
who was the investigating officer and effectively responsible for
accused no. 1 on that day, Constable
Machete who accompanied
Warrant-Officer Rapetsoa and accused no. 1 from Rabie Ridge to
Sandringham Police Station in order for
the statement to be taken
down by Captain Nobela, Constable Morige whom accused no. 1 alleged
had been involved in assaulting him
on 10 September 2008 and
Constable Kabe who had arrested accused no. 1 in the early hours of
10 September 2008.
The State also produced a number
of documents that were admitted into evidence during the trial within
a trial. One of these documents
comprised a confession and admission
taken down before Captain Nobela. It consisted of the standard form
preamble setting out that
the accused was informed of his
constitutional rights and was asked a number of prescribed questions.
This document was signed
by the accused on the last page and
initialled by him on all the preceding pages (Exhibit “J”).
The document tendered
in evidence obviously excluded the actual
statement made by accused no. 1 to Captain Nobela. Also admitted
into evidence was the
relevant occurrence book for the period 9 and
10 September 2008. Extracts were produced and handed up as Exhibits
“K1”
to “K4”. Finally the State produced a
certified copy of the court proceedings of 11 September 2008 when
accused no.
1 was first brought before the Magistrate (Exhibit “L”).
This was admitted without objection under the provisions of
section
235 of the Criminal Procedure Act 51 of 1977 (
the
CPA
).
[4] Accused no. 1 also gave
evidence. The only exhibit handed up during his testimony was a
sketch plan that was relevant to his
arrest (Exhibit “M”).
[5] There appear to be are a
number of key features that ought to be taken into account when
considering the testimony of the State
and of accused no 1. They
relate firstly to the chronology of events which I believe assists in
the objective determination of
the facts. Secondly, they relate to
the veracity of evidence presented with regard to the whereabouts of
accused no. 1 on the
morning of 10 September 2008 before he was taken
to Captain Nobela. It is during this period that accused no. 1
claimed to have
been threatened and assaulted. Finally, there are
the events that were alleged to have occurred when accused no. 1 was
brought
before Captain Nobela at the Sandringham Police Station.
CHRONOLOGY OF EVENTS AND THEIR RELEVANCE
[6] The evidence presented by
the State and supported by the Occurrence Book reflects the
following:
At 09h15 on the morning of 10
September 2008 accused no. 1 was detained at Rabie Ridge Police
Station by Constable Kabe under
Rabie Ridge Case No. 127/08/2008.
The Occurrence Book also reflects the cell register entry in the
SAP14 as 91/09/2008 and records
that the accused was “
free
from injuries
”.
At 09h20 accused no. 1 was
booked out by Warrant Officer Rapetsoa. This entry was signed by
him.
W/O Rapetsoa also requisitioned a
pair of leg irons at 09h22.
At 09h50 Const. Morige booked
out a firearm and magazine with 20 rounds. He personally signed
against this entry.
At 11h15 Rapetsoa returned with
accused no. 1 to Rabie Ridge Police Station.
At 11h25 Rapestoa again booked
out accused no. 1. He also signed this entry and recorded that the
accused was free from injuries.
Rapetsoa also signed the entry
recording that he again requisitioned leg irons at 11h30.
(f) An entry in the Occurrence
Book records that at 18h42 Rapetsoa had booked back the leg irons.
The entry was however made at
18h55.
At 18h56 Rapetsoa booked accused
no. 1 back in at Rabie Ridge. The entry again records that accused
no. 1 was free from injuries.
At 19h43 W/O Rapetsoa charged
accused no. 1 with murder. Once again it is recorded that accused
no. 1 had no injuries.
[7] One other aspect that
appears from the Rabie Ridge occurrence book is that police
reservists were on duty during the day. This
appears from entry no.
9988 recorded at 18h45, although the reservists had been inspected at
18h00 according to the entry.
[8] It became evident during the
course of the State’s evidence that the time recorded in the
appropriate column of the occurrence
book was not necessarily the
time of the actual event but rather the time when it was recorded.
This is evident from two of the
entries to which reference has
already been made. However Rapetsoa’s evidence was that the
times recorded of when he booked
out and booked back accused no. 1
correctly reflect when these events actually occurred.
[9] W/O Rapetsoa also testified
that the purpose of taking accused no. 1 into his custody and booking
him out of the Police Station
at 09h20 was to further his
investigations in an attempt to locate the firearm that the accused
was alleged to have used. Since
accused no. 1 was booked back at
11h15, he effectively was in the custody of W/O Rapetsoa for just
short of two hours.
[10] On the second occasion,
Rapetsoa booked the accused out at 11h25 so that the accused could
make a statement before Captain
Nobela. Rapetsoa said that this had
been pre-arranged with the Captain. Chronologically it means that
accused no. 1 was in Rapetsoa’s
custody for some 7½
hours (bearing in mind that the leg irons used to restrain the
accused were booked out at 11h30 and
were booked back at 18h55).
[11] By contrast the evidence of accused no. 1 was to the effect
that:
He was brought to Rabie Ridge
Police Station by Const Kabe at 04h00 on the morning of 10 September
2008.
It is common cause that the accused was arrested at 02h00 that
morning.
Between 06h00 to 07h00 he spoke
to W/O Rapetsoa for the first time.
This estimate was based on his
observation that during this period there was a change of police
shifts.
Either before or at about 09h00
Rapetsoa took him to Tembisa.
He estimated the time by reference to the sun’s position.
Some 25 minutes later he was
brought back to Rabie Ridge. Accused no1 said that he did not enter
through the charge office but
via
a back door.
He remained there for another 20 to 25 minutes.
At about 10h00 several policemen
(but excluding W/O Rapetsoa) took him to the Mooifontein Cemetery
where he was assaulted. The
policemen were in plain clothes.
Accused no. 1 believes that he
was brought back to Rabie Ridge at some time after 11h00. He made
this assessment because visitors
were still present and visiting time
was at 11h00. He also estimated that some 50 minutes had elapsed
since he had left Rabie
Ridge for the graveyard and until his return.
He then remained at Rabie Ridge
for another 30 minutes or less during which period he was taken to
the Station Captain in order
to make a statement. He refused to make
a statement.
He was then taken out again to
the Mooifontein Cemetery where he was threatened and once more
assaulted. W/O Rapetsoa did not
accompany him on this occasion
either.
Some 40 minutes elapsed from the
time he left Rabie Ridge on this second occasion for the cemetery
until his return to the Police
Station.
He was not taken back into the
police station but remained in a vehicle for another 20 to 25
minutes before Rapetsoa took him
from that vehicle into another
vehicle and departed for Sandringham, a route which was familiar to
the accused.
The journey from Rabie Ridge to
the Sandringham Police Station took about 20 to 25 minutes as,
according to accused no 1, there
was no traffic obstruction and they
did not stop on way.
ACCOUNTING FOR TIME
[12] It is evident that unless
W/O Rapetsoa stopped
en
route
from Rabie Ridge
to the meeting with Capt Nobela at Sandringham a period of some 2¾
hours requires to be accounted for.
Rapetsoa was able to account for
some 30 odd minutes because when he arrived at Sandringham Police
Station he had difficulty locating
Capt Nobela. He claimed that the
missing time was accounted for because they had stopped at a shopping
centre as the policemen
accompanying him wanted to buy something.
[13] Accused no. 1’s
testimony based on his time estimates does account for his movements
and whereabouts from about 10h00
until arriving, according to him at
about 13h40, at the Sandringham Police Station. Based on his
estimates of time;
He was taken from Rabie Ridge to
the graveyard for the first time at about 10h00 and came back at
about 10h55.
He remained at the Police
Station for some 30 minutes or less, which would then take the time
to between 11h10 and 11h30. This
reasonably coincides with the
Occurrence Book entry recording that W/O Rapetsoa booked the accused
out at 11h25 and requisitioned
the leg irons at 11h30. If that time
is correct then one can estimate that some 10 to 15 minutes would
have been taken up with
the other policemen again putting leg irons
on accused no. 1 and placing him in their vehicle.
He would have been brought back
to Rabie Ridge at about 12h20 after being taken to the graveyard on
the second occasion.
He then remained in the vehicle
for some 25 minutes, taking the time to about 12h45. It took another
30 minutes to arrive at Sandringham
Police Station (
versus
W/O Rapetsoa’s evidence that it was some 35 minutes). This
would result in the accused arriving at Sandringham Police
Station
somewhere between 13h15 to 13h20.
[14] By contrast, on W/O
Rapetsoa’s version he had taken the accused into his custody
from 11h25 and could only account for
the 2 hours that it took to
reach Sandringham Police Station by claiming that he had diverted to
buy food for a colleague at a
shopping centre.
[15] Const Machete gave evidence
to the effect that he was the only other police officer accompanying
W/O Rapetsoa with accused
no. 1 from Rabie Ridge to Sandringham
Police Station. He claimed to be unfamiliar with the route, said
that there was some traffic
but denied that they had stopped anywhere
en route
.
Since Const Machete was the only person who could have requested to
stop for food, W/O Rapetsoa’s explanation as to the
unaccounted
2 hours must be rejected.
Furthermore W/O Rapetsoa’s
claim that he had stopped for food is inconsistent with his evidence
that, before he left Rabie
Ridge, his Station Commander had arranged
for Capt Nobela to take down the accused’s statement at
Sandringham Police Station.
It is unlikely that Rapetsoa would have
delayed his arrival at Sandringham by stopping for a considerable
period of time at a
shopping centre. Moreover it is surprising that
Rapetsoa would have allowed an accused, who by his account wanted to
make a statement,
to sit in a motor vehicle outside a shopping centre
for such a considerable period of time. Finally an hour or so appears
to be
excessive simply to purchase food.
[16] Since W/O Rapetsoa’s
explanation can be safely rejected, the remaining question is whether
or not accused 1 made up
the story that he was taken for a second
time to the graveyard. I should have added that the State also
refutes accused no. 1’s
evidence that he had also been taken
earlier that day to the same graveyard.
[17] Accused no. 1’s
responses to questions posed by the prosecutrix strengthened rather
than weakened the accused’s
version. He answered spontaneously
with regard to who was present and the basis for his identification,
including their appearance.
His detail of how he was assaulted on
each of the two occasions remained consistent.
[18] The State was invited to
provide a rational explanation for the conflict between the testimony
of Rapetsoa and Machete. For
reasons already given no rational
innocuous explanation exists. It would not be justified to excuse the
contradictions and improbabilities
on the basis simply of
unreliability. Accordingly the attempt to explain the whereabouts of
accused no. 1, who was at all times
supposedly in the custody of
Rapetsoa, is rejected as untruthful.
[19] The accused’s
evidence that he was assaulted before he was taken to Capt Nobela is
supported, again
prima
facie
, by the fact
that no injuries were observed on him when he was first detained, yet
Capt Nobela recorded in the
pro
forma
questions
contained in the confession and admission form that she observed that
he not only had handcuff marks on the right hand
but also a “
swollen
round mark on the head
”.
During evidence Capt Nobela described this as a 2 cm diameter mark on
the right side of the accused’s forehead. She
said that it was
clearly visible as it was swollen and protruded from his forehead.
[20] None of the police officers
called to testify observed any such injury. Kabe, who was called to
testify on whether the accused
had sustained any injuries at the time
of his arrest, claimed that he had not observed any. According to
Kabe the only injury that
the accused sustained from the time of his
arrest until Kabe brought him to the cells could have been to the
accused’s wrist
as Kabe tugged at the handcuffs restraining the
accused when the accused had tried to remain at his father’s
house.
[21] The accused described not
only being taken to the cemetery at some time after 11h00 but also
being taken to there earlier
in the morning. He claimed that Const
Morige was at the graveyard after he had arrived. Both Rapetsoa and
Morige denied that the
accused had been taken there on either of the
two occasions. Moreover, they denied any knowledge of the two other
persons identified
by the accused, namely a person who was called
Poplap and another who was referred to as Mlahlane. The accused
consistently separated
the two occasions when he was taken to the
graveyard. He was consistent with regard to who took him on each
occasion, how he was
restrained on each occasion (on the first
occasion with leg irons only and on the second, with handcuffs and
leg irons) and the
extent of the assault. He was closely questioned
by Ms Persad and his responses were consistent and spontaneous in
respect of
all the events, save in respect of the extent of the
assaults (as opposed to the nature of the assaults).
[22] No attempt was made by the
State to explain the length of time taken on the first occasion when
Rapetsoa had booked out the
accused. Nor was the accused challenged
with regard to the short period of time he said it took for Rapetsoa
to take him to look
for the firearm and return to the Police Station
via a side entrance.
[23] The glaring failure on the
part of the State to account for the lengthy period of time during
which the accused had been booked
out on both occasions on 10
September is strong evidence supporting the appellant’s
allegations that he was taken for a purpose
other than just to locate
a firearm in Tembisa and to make a statement at Sandringham Police
Station.
[24] The final aspect concerns
the extent of the assaults. It appears to me that the accused has
embellished, particular with
regard to their
sequelae
.
While it is clear that Capt Nobela did observe that his forehead was
swollen on the right-hand side, the accused in addition
claimed that
he had been struck on the top of his head and that later the wound
was opened during the further assault on him with
consequential
bleeding. He said that the blood dripped onto the collar and
spattered onto the front of his T-shirt. He claimed
that he had used
the cloth with which he was blindfolded, when taken to the graveyard
on the first occasion, to wipe the blood.
Capt Nobela only noted the
clothing worn by the accused and did not observe any blood stains.
[25] Even though the accused
exaggerated the extent of his injuries, it does not affect the
general credibility of the key elements
of his testimony, namely that
he was assaulted by the police. The reason is that the fact of an
assault on him is supported not
only by Capt Nobela’s
observation of the forehead injury but also her failure to perform
her duty and ask the accused how
and when the injury occurred and
failed in her duty to write down his responses. I have already
referred to Rapetsoa’s failure
to give an adequate account for
the inordinate lapse of time after booking the accused out on the
second occasion, and which in
any event was materially contradicted
by Machete.
[26] The exaggeration of the
injuries may be accounted for because, as confirmed by Rapetsoa, the
accused had informed Rapetsoa
that he had been assaulted but Rapetsoa
claimed that he could not see any marks. The accused also claimed to
have informed Capt
Nobela that he had been assaulted and that Capt
Nobela’s response was to enquire whether the assaults had been
perpetrated
by those who had brought him to Sandringham. When he
answered in the negative she indicated that it did not matter since
they had
not been the ones he said were responsible. Although Capt
Nobela denied this, her credibility as a witness was compromised by
her
unconvincing replies with regard to her failure to perform the
duty entrusted to her to make enquiries and note responses on the
standard form in relation to the injury which the accused identified
and which she had observed, particularly bearing in mind her
evidence
that she was experienced in taking down written confessions and
admissions.
[27] Accordingly, not only by
reason of the State being obliged to prove beyond a reasonable doubt
that the accused was not assaulted
before making the written
statement but even on a balance of probabilities, this court is
satisfied that accused no 1 was assaulted
shortly prior to being
taken by Rapetsoa from Rabie Ridge Police Station to the Sandringham
Police Station.
CAUSAL LINK BETWEEN ASSAULT AND SATEMENT TO POLICE
[28] The next question is
whether, as a consequence of the assaults the admissions were
voluntarily made as required by section
219A of the Criminal
Procedure Act 51 of 1977 (
the
CPA
).
[29] Although Mr Potwana on
behalf of the accused dealt extensively during evidence in chief, and
when putting his client’s
version to the state witnesses with
regard to the nature and extent of the assaults and where they were
perpetrated he did not
in leading the accused causally link the
assault to the statement being allegedly signed under duress as
foreshadowed when the
admissibility of the statement was challenged
by him on behalf of the accused.
[30] Nonetheless, I am satisfied
that this was an oversight. Mr Potwana is not an experienced criminal
lawyer. It was during cross-examination
that the accused, in reply
to a direct question, stated that after the assaults he was
threatened that if he did not make a statement
he would be assaulted
again. This occurred on the second occasion he was taken to the
cemetery, and after he had declined to make
a statement when he had
been brought back to the Police Station from the cemetery earlier
that morning. The probabilities again
work in the accused’s
favour in respect of providing an explanation as to why he should
have been taken out again to the
cemetery and assaulted before being
driven to Sandringham.
[31] Although section 219A
provides only that the
admission is voluntarily made as opposed to section 217 which, in
relation to confessions, requires that
the statement be freely and
voluntarily made without the person having been unduly influenced to
make it, it is evident that on
reflection the term “
voluntarily
”
has a sufficiently broad meaning to cover the other exigencies. In
any event it would be absurd to suggest that a written
admission is
inadmissible if not voluntarily made, but admissibly if not made
freely, a result that would arise if the word under
consideration was
given a restrictive meaning. The provisions of section 219A in
relation to admissions was introduced in 1979
(section 14 of Act No
56 of 1979). A persistent criticism regarding amendments to the
Criminal Procedure Act is
their lack of consistency and lack of
cohesiveness to the main statutory instrument (e.g.
section 51
of Act
105 of 1997 with regard to so called minimum sentences).
[32] The natural meaning of the
word “
voluntarily
”
(the Concise Oxford English Dictionary sufficing for such elementary
purposes, is “
done,
given, or acting of one’s own free will
”).
Since the provision is also an exception to the common law hearsay
rule and risks impacting on protected constitutional
rights,
particularly under section 35(1)(c), full effect must be given to the
broadness of the concept encompassed by the word.
Moreover section
35(1)(c) of the Constitution provides that a suspect has the right “
…
not to be compelled to make any confession or admission that could be
used in evidence against that person
”.
This provision is complimented and reinforced by section 12(1)(c),
(d) and (2) (personal freedom and security) as well
section 35(1)(a)
and (3)(h) and (j) (arrested and detained persons).
[33] Accordingly I am satisfied
that the State has failed to establish beyond a reasonable doubt that
the written statement of
the accused, taken down before Capt Nobela
and which is alleged to contain admissions as contemplated in section
219A, was voluntarily
made.
[34] The purpose of a trial
within a trial is twofold. In the first place it is intended to
ensure as far as possible that the
statement relied upon by the State
is not introduced until it is first established to have been
voluntarily made, in the extended
sense which covers those specific
illustrations dealing with confessions and extra-curial statements
made to persons other than
police officers or justices of the peace.
Secondly, and perhaps more profoundly, a trial within a trial is
intended, where possible,
to secure the determination of whether or
not the statement is admissible
before
the accused elects whether or not to testify. He is entitled to know
at the close of the State case, in those instances where
this is
possible, what admissible evidence stands against him and to which he
must answer.
[35] It is however clear that
this objective cannot always be achieved. The provisional admission
of extra-curial (extrajudicial)
statements may only be finally
resolved once the totality of evidence has been presented, including
that of the accused. This is
particularly evident where the test for
admissibility in the particular case is based on the circumspection
of the fairness of
the proceedings and whether there has been an
equality of arms.
TRIAL WITHIN A TRIAL – THE CO-ACCUSED’S POSITION
[36] The State contended that
the statement made by accused no. 1 which it sought to admit
constituted an admission under section
219A and not a confession
under section 217.
[37] Mr Davids on behalf of
accused no. 2 indicated that he wished to present argument on behalf
of his client in respect of the
admissibility of the evidence sought
to be introduced by the State against accused no. 1. I indicated my
difficulty in appreciating
the basis upon which I should allow him to
do so.
[38] On the following day Ms
Persad on behalf of the State indicated that she supported Mr Davids’
request. She also indicated
for the first time (which was after all
the evidence in relation to the trial within a trial had been heard)
that, should the statement
be admitted, the State intended to rely on
a portion of it against accused no. 2 on the basis that such evidence
was admissible
against him under the exception to the hearsay rule.
Again I expressed difficulty in appreciating the basis upon which an
extra-curial
statement made by accused 1, after he had been arrested
for the offences with which he has been charged, could be admissible
against
his co-accused in relation to the same offence. I requested
argument supported by authority from both Ms Persad and Mr Davids on
the point.
[39] On the following morning Ms
Persad indicated that she would be relying on both Constitutional
Court and Supreme Court of Appeal
authority, namely the
ratio
that she contended could be extracted from
S
v Molimi
[2008] ZACC 2
;
2008 (2) SACR
76
(CC), the application of a test set out in
S
v Ndhlovu and Others
2002 (2) SACR 325
(SCA), the
ratio
in the court
a quo
per Goldstein J in
S v
Ndhlovu and Others
2001 (1) SACR 85
(W) and the more recent case of
S
v Rodiyana and Others
2009 (1) SACR 104
(CkHC). My research indicates that the most recent
case on the subject is
S
v Libazi and ano
[2010]
JOL 25611
(SCA)
.
[40] In my respectful view the
SCA decision was
obiter
and the Constitutional Court decision has no direct bearing on the
issue. With the greatest respect to the High Court decisions
to
which reference has been made, including the decision of this Court,
I believe that they are clearly wrong. In my respectful
view the
conclusions reached by the High Court decisions are wrong because
the courts were not invited to consider, and therefore
did not
address, what I believe are the
a
priori
questions;
namely, on what basis is the testimony sought to be admitted and
whether properly characterised there is a fundamental
objection to
its reception which precedes an enquiry as to whether or not such
evidence is hearsay, and if so whether it may nonetheless
be admitted
under the statutory exceptions permitted under
section 3
of the
Law
of Evidence Amendment Act 45 of 1988
or any residual common law
exception. It therefore appears advisable to approach the matter by
considering applicable general
principles.
GENERAL PRINCIPLES REGARDING ADMISSIBILITY OF EVIDENCE
[41] The admissibility of an
extrajudicial statement is determined by reference to relevance. If
the principles of relevancy are
not satisfied then the evidence will
be excluded, otherwise not. The rules relating to hearsay evidence
are not concerned with
relevancy but, as stated by
Wigmore
On Evidence
(Chadbourn
Revision 1972) Vol. 4 para 1171, “
…
assume relevancy, and then under special circumstances apply an extra
safeguard designed to meet special dangers. They
may be said to be
artificial as distinguished from natural rules; that is, they do
not, as to the rules of relevancy, simply analyze
the natural process
of inference and belief; but they contrive a specific safeguard to be
applied where experience has shown it
desirable.
”
[42] Perhaps most critically for
the purposes of the analysis: Unlike the admissibility of
extrajudicial statements which is determined
by reference to what is
termed,
principles of
relevancy
(see
Part 1
of Wigmore particularly at
section 12)
, the hearsay rule falls under
the auxiliary rules under which evidence may or may not be admitted.
It is referred to as the
analytic
rule
because it “…
accomplishes the
desired aim by subjecting the offered evidence to a scrutiny or
analysis calculated to discover and expose in detail
its possible
weakness, and thus to enable the Tribunal to estimate it at no more
than its actual value
”.
(Wigmore (3
rd
Edition) Vol 5
section 1360).
[43] Later I will examine
whether or not the
Law of Evidence Amendment Act confined
itself to
auxiliary rules concerned with probative value or whether it extended
them to rules of relevancy. The distinction is
demonstrated by
Wigmore in
section 1171
where an extra-curial statement made by a
testator expressing his intention to execute a will in a particular
manner is always
relevant in regard to determining the terms of the
last will, but the letter itself can only be proved by reference to
the auxiliary
rules allowing evidence that the letter was written by
the person concerned. Accordingly if the letter itself is lost then
circumstantial
evidence of it contents would be excluded by the
auxiliary rule. See also generally Wigmore at para 1171.
[44] Wigmore identifies five main
classes of auxiliary rules, each characterised by the actual
operation of the rule in question.
They are the preferential, the
analytic (or “
scrutinative
”),
prophylactic, “
simplificative”
and quantitative (or synthetic) classes (at para 1172).
[45] Wigmore proceeds to state
the following in para 1171:
“
These
auxiliary rules have nothing to do with relevancy as such, i.e.,
regarded as the minimum requirement for admissibility. They
assume
relevancy
, and then under
special circumstances apply an extra safeguard designed to meet
special dangers. They may be said to be artificial
as distinguished
from natural rules; that is, they do not, as do the rules of
relevancy, simply analyze the natural process of
inference and
belief; but they contrive a specific safeguard to be applied where
experience has shown it desirable.
Moreover, their operation is
on lines distinct from those of relevancy; for the same fact, it is
always relevant to prove the same
proposition, may or may not come
under the ban of one of these auxiliary rules, according to
circumstances having no connection
with relevancy.
...........
These rules of auxiliary
probative policy, then, form a set of rules, over and above and
independent
of the rules of relevancy. They are distinguished from the rules of
relevancy
(Part 1)
in resting not upon an analysis of the process of
inference, but upon artificial expedients designed to avoid special
dangers that
are irrespective of the nature of the inference and
affect in common various kinds of evidence.
”
(emphasis added)
[46] In the following paragraphs
I proceed to set out some general propositions regarding
extrajudicial statements which seek to
highlight the narrow
distinction between a confession and an admission.
[47] Extrajudicial or
extra-curial statements are those made outside a witness box by a
party to court proceedings. Such statements
may be used against him
save where they amount to an admission or confession in a criminal
case.
[48] No statement by an accused
may be used in evidence against him unless it is proved beyond
reasonable doubt that it was freely
and voluntarily made. See
S
v Cele
1965 (1) SA 82
(AD). It is irrelevant whether the extrajudicial statement was
intended to be incriminatory or not. The statement must be freely
and
voluntarily made “
…
in the sense that it has not been induced by any threat or promise
proceeding from a person in authority
”
(see
R v Barlin
1929 AD 459
at 462).
[49] In order for a confession
to be admitted, the statement must be freely and voluntarily made,
and it cannot be made to a peace-officer
save in the case of a
magistrate or justice of the peace.
[50] A confession is “
…
an unequivocal acknowledgement of guilt, the equivalent of a plea of
guilty before a court of law
”.
See
R v Becker
1929 AD 167
at 171.
[51] If the requisite element of
intention (
mens rea
)
is not evident from the statement then it does not amount to a
confession, but rather an admission. See also Schreiner JA in
R
v Debele
1956 (4) SA
570
(AD) at 572C to G who considered that the formula did not take
into account a number of issues. Accordingly anything short of an
unequivocal admission of guilt including both the elements of the act
and of the requisite intent will amount to an admission of
the facts
contained in the statement and may be as damning evidentially as a
confession.
[52] Moreover, under the rules of
relevancy a statement, even if only verbal, made to a person who is
not a police officer can constitute
an admission. This common law
principle finds expression in
section 219A
of the CPA. An admission
of a fact relating to the accused by another person can only be
admitted under the rules of relevancy
if there is an identity of
interest. This arises where there is a privity of obligation., such
as in cases of parties who sue
or are sued in a representative
capacity or in cases of principal and surety. So too where there is
privity in title as in the
case of an insured.
[53] In a case of more than one
accused acting with a common purpose each is a conspirator “
liable
under the criminal law for the acts of every other conspirator
done
in pursuance of the conspiracy
”
(emphasis added). See Wigmore at para 1079. See also
R
v Mayet
1957 (1) SA
492
(AD).
[54] The reception of such
evidence is premised upon a rational and logical deduction that
depends for its efficacy on the statement
being made in furtherance
of the common purpose. Confining the rule in this manner precludes
the reception of an extra-curial
statement made by one conspirator
against the other after his arrest.
A
fortiori
the statement
cannot be in furtherance of the commission of the offence, not even
in the case of an accessory after the fact.
This has been the
position under our common law. See Schreiner JA in
R
v Mayet
at p 494A to H
(
supra
).
[55] It is also a rule that
appears to be of general application in other common law
jurisdictions as evident from the United States
Supreme Court cases.
These cases confirm the exclusion of a statement made by one
conspirator against another at a time when the
objectives of the
conspiracy are no longer pursued or capable of being pursued. See
Krulewitch v United
States
[1949] USSC 33
;
336 US 440
(1949) and
Wong Sun v
United States
[1963] USSC 15
;
371 US
471
at 490 (1963). See also Wigmore Vol 4
supra
para 1079 ftn 1.
[56] In
Fiswick
v United States
[1946] USSC 134
;
329 US
211
(1946) at 217 the Supreme Court stated:
“A c
onfession
or admission by one co-conspirator after he has been apprehended is
not in any sense a furtherance of the criminal enterprise.
It is
rather a frustration of it. If, as the circuit court of appeal
sought, the maintenance of the plot to deceive the government
was the
objective of this conspiracy, the admissions made to the officers
ended it. So far as each conspirator who confessed was
concerned,
the plot was then terminated. He thereupon ceased to act in a role
of a conspirator. His admissions were therefore
not admissible
against his erstwhile fellow-conspirators.
”
[57] It appears useful to
contextualise the reach of the rule of relevancy in relation to
extrajudicial admissions made by an accused
insofar as it concerns
him and also insofar as it concerns his alleged co-conspirator:
An extrajudicial statement in
the form of an admission or confession made by an accused before a
judicial officer other than a
peace officer and provided it was
voluntarily made and satisfies such other requirements of the common
law or statute law (in
this case
sections 217(1)(a)
and
219A
(1) of
the CPA) is admissible against the accused.
An admission, short of a
confession made to a person who is not a peace officer by an
accused, is admissible against him.
Any other statement not
amounting to a confession or admission made by an accused
extra-curially is admissible against him.
A confession by an accused is
not admissible against his co-accused. See
section 219
of the CPA.
A statement made by an accused
which falls short of a confession but amounts to an admission or
other statement by the accused
concerning his co-conspirator is
admissible against the latter provided it was made in furtherance of
the common purpose.
[58] Accordingly it is evident
that a confession made by an accused which refers to his co-accused
is
per se
inadmissible
by reason of
section 219
, and if it falls short of a confession will
only be admissible under common law against his co-accused if uttered
or written in
furtherance of their common purpose but not otherwise.
[59] It is therefore difficult
to appreciate how evidence of an extrajudicial admission concerning a
co-accused made otherwise
than in furtherance of their common purpose
can be allowed in when it can, as many cases illustrate, amount to a
confession of
all the facts or elements necessary to convict save for
one. It certainly is not so under the common law.
[60] The question therefore is
whether the
Law of Evidence Amendment Act allowed
its introduction
and if it did whether it is constitutionally sound. If so, a further
question arises regarding when the admissibility
of such testimony is
to be determined.
[61] Firstly, the
Law of
Evidence Amendment Act did
not in its terms purport to change the
substantive rules of relevance. As demonstrated earlier, this rule
determines the class
of evidence that is inadmissible by reason of
lack of relevance, in contrast to inadmissibility by reason of
probity. While in
many cases there may be a fine line between the
two, Wigmore
(supra)
identifies the historic distinction and draws attention to the
English Civil Evidence Act 64 of 1968 which the author notes makes
“
…
substantial changes in the law of hearsay but leaves the preexisting
law respecting admissions intact
”
(Vol 4 para 1048 ftn 1).
[62] In 1979 section 219A of the
CPA was amended by Act No 56 of that year. It allowed into evidence
admissions provided they were
made voluntarily. Most importantly, at
that time under our common law the admissions of one conspirator
could be used against
the other
provided
it was made in furtherance of their common purpose.
In my view the amendment was
intended to do no more than codify the law regarding informal
admissions whether by conduct or by statement.
The mere fact that it
did not expressly exclude the admissibility of such admission against
a co-accused is of no consequence
for reasons that I proceed to set
out.
[63] At the time of the
amendment, the common law adequately catered for allowing an
admission against a co-conspirator if made
in furtherance of the
common purpose but would exclude it if not made for such purpose, The
legislature at the time would have
known that this had been well
settled in cases such as
R
v Mayet
(
supra
)
and the earlier cases cited in that judgment including
Rex
v Levy & Others
1929 AD 312
at p 327.
Accordingly while section 219 expressly excludes all confessions
made by one accused against the other, section 219A did not
purport
to alter the principles of relevancy in relation to admissions. An
admission of a fact by one conspirator against the other
would be
admissible provided it was uttered in the furtherance of the
conspiracy, but not otherwise.
[64] Since the principle of
relevancy did not include or exclude outright such an admission being
used against the co-conspirator,
there would have been no need to
spell out in legislation the well recognised nuanced position of the
common law. This is because
aids to interpretation would be
understood to have adequately preserved the common law unless altered
expressly or by necessary
implication. A similar situation did not
prevail in the case of confessions, where admissibility was not
dependent on circumstances
delineated by the common law but where
there existed an outright prohibition of it being admissible against
the co-conspirator-
a concept capable of ready and straightforward
translation into legislation as appears from section 219. .
[65] There was also a further
anomaly that would result in absurdity if it was not intended to
preserve the common law. A confession
by an accused which implicates
his co-accused does not necessarily amount to a confession against
his co-accused but only an admission
of certain facts indicating the
co-accused’s involvement. Accordingly to prohibit the
admissibility of evidence contained
in a statement, on the basis that
it amounts to a confession as against its author, does not indicate
that the legislature intended
that those parts of the confession
which amount to an admission by him against his co-conspirator would
be receivable in evidence
against the latter. Yet the State’s
interpretation of section 219A as read with the Law of Evidence Act
would allow it to
argue that the section is wide enough to allow it
to extract and use against a co-accused those parts of the
confession of the
one conspirator which contained admissions (but not
a confession) concerning the involvement of the other.
[66] Furthermore, at the level
of application: It is difficult to pragmatically conduct a single
trial within a trial in relation
to both accused where the
admissibility is challenged and equally so if two separate trials
within a trial were held.
[67] If a single trial within a
trial is postulated then the court would already be appraised that
there is a statement made in
the written admission sought to be
introduced against the one conspirator which associates the other in
the commission of the offence.
This immediately alerts the court to
the contents of the admission before its admissibility is determined
where the author objects
to its introduction. Pragmatically it would
also be difficult for a presiding officer, whether a judge or a
district magistrate,
to disabuse his or her mind from already
associating both accused with the events to which the charge relates.
If there are two
trials within a trial then it is only after the
evidence against the accused author has been admitted that the
co-conspirator will
object to the evidence being admissible against
him. He would then be entitled to remain silent throughout the first
trial within
a trial and then argue for a repetition of the evidence.
[68] Moreover, the potential for
abuse cannot be overlooked. In
Molimi
the SCA accepted that
the statement made by the one conspirator amounted only to an
admission thereby allowing the evidence in,
whereas the
Constitutional Court on an overview of the conspirator’s
statement found that it amounted to a confession thereby
rendering it
inadmissible against the co-accused under the express exclusion
provided for in section 219. Prosecutors may be tempted
to argue
that the statement, albeit a confession, should be admitted as an
admission. Similarly where more than one person is
suspected of
committing an offence, a voluntary statement admitting guilt may be
couched by a police officer who is also a judicial
officer in a way
that amounts to an admission and not a confession so as to use the
statement against a co-accused who insists
on his right to remain
silent.
[69] The extensive utilisation of
confessions and admissions particularly during the State of Emergency
era cautions us, unless
there is an express intention to the contrary
in amending legislation, against eroding those common law principles
that were responsible,
in numerous cases, for securing the rule of
law despite the absence of a Bill of Rights.
[70] The Law of Evidence Act
came into effect in 1988. For more than 15 years no reported case
existed where the State understood
the legislation to allow for the
utilisation of an admission made by one conspirator against the
other. Had the State understood
the legislation in this manner then
one would have expected the point to be argued from inception of the
legislation. There was
no lack of opportunity to do so. In my view
this demonstrates that at the time of the introduction of the Law of
Evidence Act
it was not contemplated that its reach would go to the
principles of relevance, so as to allow admissions against a
co-conspirator
in circumstances other than where the statement was
made during the furtherance of their common purpose.
[71] I mentioned earlier the
interpretational aid that a statute is intended to interfere as
little as possible with existing common
law , unless the intention to
do so is plain (see
Cornelissen
N.O. v Universal Caravan Sales (Pty) Ltd
1971 (3) SA 158
(AD), p 175C to D)
. Moreover where a
right or protection is taken away from an individual, as is contended
in this case, it must be done expressly
or by necessary implication
(See
Dadoo Ltd &
others v Krugersdorp Municipality
1920 AD 530
at 552). The Law of Evidence Act in its terms does not
expressly remove the protection by providing for admissibility in
circumstances
other than those recognised by the common law, nor did
it do so by necessary implication. The latter may be tested by the
length
of time it took for the State to first raise the possibility.
[72] It is now accepted that the
minority judgment by Schreiner JA in
Collins
v Minister of the Interior and Another
1957
(1) SA 552
(AD) at p 575D
correctly
expresses our law that the legislature may not through two separate
pieces of legislation achieve an objective which neither
piece of
legislation contemplated on its own. In much the same way in my view,
it is not possible to bring together s 219A and
the Law of Evidence
Act to achieve what neither set out to do whether by amending
procedural rules or the substantive law .
[73] In my view the historic rule
of relevance that has excluded the admissibility of an admission by
one conspirator against the
other in all cases other than when it is
made in the furtherance of their common purpose remains a sound
principle based on centuries
of judicial experience regarding the
fairness of the adversarial trial system.
[74] The unreliability of a
statement made by one conspirator which contains an admission against
the other at the time of arrest
is fraught with danger. The
conspirator may attempt to exculpate himself or the extent of his
involvement by transferring blame.
The opportunity for inducement by
the authorities is great. Another rule that comes into contention is
the auxiliary rule relating
to the possible inability to
cross-examine for want of “
equality
of arms
” in
establishing precisely what occurred to induce the accused to
implicate his co-accused. These factors effectively destroy
the
reliability of the extra-curial statement. Moreover a court should
not be obliged to undertake an exercise of determining whether
or not
the accused will receive a fair trial where it is likely that such
evidence would be provisionally admitted.
[75] There is the further
consideration that a co-accused may insist on a separation of trials
because of the potential prejudice
of not being able to cross-examine
the other accused nor be able to compel him to enter the witness box
during the trial within
a trial.
[76] In my respectful view
experience in criminal courts reveals the risks that are inherent
where an accused attempts to reduce
his blameworthiness by asserting
that the final and critical act in the chain of events leading to the
commission of the crime
was implemented by someone other than himself
(and thereby reducing his statement to an admission). This is also
aptly demonstrated
when the State leads the evidence of a
co-conspirator in respect of whom it has accepted a plea of guilty
and where in both the
section 112 statement and before the trial of
his accomplices the co-conspirator seeks to untruthfully minimise
the extent of
his own participation.
[77] Turning to case law.
In my respectful view
S
v Robiyana (supra)
is
authority only for the application of the principle that where an
accused elects to introduce the statement made by a witness
then he
is bound by the answers given even if they tend to incriminate him in
the commission of the offence.
In
Ndhlovu
(supra)
the SCA
concerned itself exclusively with the application of the
Law of
Evidence Amendment Act and
found that there was sufficient extraneous
evidence to ensure the reliability of the extra-curial statement.
The court was not
asked to consider whether the Law of Evidence Act
expressly or by necessary implication extended the rule of
reliability which
excluded any admission made by one conspirator
against the other beyond the case where the statement was made in
furtherance of
their common purpose.
In
Molimi
(supra)
the
Constitutional Court held that the statement amounted to a confession
and therefore was to be excluded. It is respectfully
submitted that
the Constitutional Court was not asked to, nor did it consider the
issue regarding the interpretation of the
Law of Evidence Amendment
Act in
regard to its impact on the common law exclusion of
extrajudicial statements made against a co-accused which is not in
furtherance
of heir common purpose. This further appears to be
indicated by the list of annotated cases that do not appear to
include cases
which form the basis of this decision.
ALLOWING CROSS-EXAMINATION BY ACCUSED NO 2 AND PREJUDICE
[78] During the trial within a
trial Mr Davids requested and was permitted to cross-examine all the
witnesses who were called.
At that time the court was not appraised
of any evidence regarding the arrest or detention of his client. When
the trial within
a trial commenced Mr Davids indicated that his
client intended to challenge the contents of a statement his client
had made. Only
much later during the hearing did evidence surface
that accused no. 2 had been arrested a considerable time later.
Moreover, Ms
Persad at no stage during the hearing of evidence in the
trial within a trial indicated that she would also rely on the
admission
(should it be received) of accused no. 1 against accused
no. 2. There was accordingly no reason for Mr Davids to
cross-examine
with any vigour on the issue of whether or not the
alleged admission had been freely and voluntarily made.
[79] The court was taken by
surprise with Ms Persad’s belated revelation that, if admitted,
the admission of accused no.
1 would be used as evidence against
accused no. 2. That being so, Mr Davids could not have been expected
to anticipate this possibility.
[80] In my view the
considerations adopted by the Constitutional Court in
Molimi
apply in the present case. Accused no. 2 was not pre-cognised that if
accused no. 1’s admissions were received that they
would be
used as evidence against his client.
[81] Accordingly, and to adopt a
concept from civil law, there is no
lis
as between the State and accused no. 2 in regard to the trial within
a trial, since from inception the trial within a trial was
predicated
on the State seeking only to introduce admissions against accused no.
1 allegedly made by him and to which objection
was taken on the
grounds that they were made under duress and in breach of his
constitutional rights.
[82] If this Court were to have
held that the statement made by accused no. 1 before Capt Nobela was
admissible against him then
the next step would have been for the
State to produce the statement and indicate that it intended using
such parts as may constitute
an admission by accused no. 1 against
accused no. 2 (see
Molimi
(
supra
))
leaving it then open for accused no. 2 to elect whether or not to
object to such testimony being received against him.
[83] The situation that arose in
this case further indicates the advantage of ensuring that the proper
procedure is adopted when
the State indicates that it is necessary to
hold a trial within a trial.
I indicated that the proper
course was for the State to indicate that it wished to introduce
admissions made by accused no. 1 in
a document and that it was then
for accused no. 1 to indicate not only that he objected to the
admissibility of such evidence but
to set out the grounds for doing
so; i.e. to indicate whether it was limited to the voluntariness of
the statement or whether it
also included a failure to respect the
accused’s constitutional rights. Had the State intended to use
the same statement
also against accused no. 1 then it should have
indicated so at that stage and without elaboration (so as to avoid
revealing prematurely
the contents of the statement sought to be
relied upon).
[84] One of the practical
difficulties a trial court would face, if the extra-curial statement
by one conspirator against the other
is contained in a statement made
to the police after arrest, is that it would be extremely difficult
for the co-accused to cross-examine
(should the accused who made the
statement elect to enter the witness box), on the basis of inducement
or the expectation of a
more lenient sentence by incriminating his
co-accused
without
entering the merits in order to demonstrate such motive.
[85] While it was sufficient to
preclude Mr Davids from presenting argument simply on a ground that
there was no “
lis
”
at that stage in respect of the trial within a trial that was
concerned only with the admissibility of the statement made
before
Capt Nobela against accused no. 1 only, I have as best I as I can now
set out my view as to why the
Law of Evidence Amendment Act expressly
or by necessary implication does not alter the common law in
relation to extra-curial statements made by one conspirator against
the other in circumstances other than where the statement was made in
furtherance of the common purpose.
[86] It is for these reasons that
I refused to admit any extra-curial admission that might have been
made in his statement by accused
no 1
after
his arrest against
accused no 2 since on the facts it could not have been made in
furtherance of their conspiracy.
SPILG J
LEGAL REPRESENTATIVES:
The State: Adv Persad
Accused no 1: Adv Potwana
Accused no 2: Adv Davids