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2011
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[2011] ZAGPJHC 143
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S v Evelio (D1664/2010) [2011] ZAGPJHC 143; 2012 (1) SACR 367 (GSJ) (14 October 2011)
NOT REPORTABLE
SOUTH
GAUTENG HIGH COURT
(JOHANNESBURG)
CASE NO:
D1664/2010
REVIEW NO
166/11
DATE:14/10/2011
In
the matter between
THE
STATE
and
PULGARIN
OSPINA HAROLD EVELIO
..........................................
ACCUSED
Criminal Procedure –
automatic review in terms of s 302 of
Criminal Procedure Act 51 of
1977
– accused convicted of escaping from lawful custody in
contravention of
s 51(1)
of the CPA – onus on State to prove
that the accused was lawfully arrested – failure to call
arresting police official
- no evidence of lawful arrest –
conviction and sentence set aside.
J U D G M E
N T
(REVIEW)
VAN OOSTEN J:
[1] This matter comes before me
by way of automatic review. The accused was convicted in the
Magistrate’s court, Kempton Park,
of escaping from lawful
custody in contravention of s 51(1) of the Criminal Procedure Act, 51
of 1977 (the Act) and sentenced to
18 months imprisonment.
[2] The facts of the matter are
these: the accused after he “had been arrested” was
placed in the care and custody of
a police official at the Oliver
Tambo International Airport when he requested to go to the bathroom.
He was escorted to the bathroom
but unexpectedly started running down
the corridor. He however unsuccessfully attempted to jump through a
window and was then apprehended.
[3] Having read the record of the
proceedings I was not satisfied that there was any evidence to prove
that the accused had been
lawfully arrested. I accordingly addressed
a request for supplementary reasons on this aspect to the magistrate
who has responded
thereto. The matter was thereafter referred to the
NDPP for their opinion. In view of the urgency of the matter Mr
Muhanganei
of the NDPP approached me in chambers, and fairly and properly
conceded that the conviction could not stand in view of the lack
of
evidence concerning the accused’s arrest.
[4] The only evidence concerning
the arrest of the accused was given by Sergeant Ralufwinga, who, on
this aspect, testified as
follows:
‘
He
(the accused) had been arrested being a suspect in a drug case’
From this evidence one must
necessarily infer that the arrest was affected by another person and
not the witness himself. It accordingly
not only constituted hearsay
evidence but was also, in any event, plainly insufficient to prove
that the accused’s arrest
was lawful. The
onus
is on the State to prove a lawful arrest, which is one of the
essential elements of the charge of escaping from lawful custody,
as
envisaged in s 51(1) of the Act (See
Hiemstra’s
Criminal Procedure
:
5-3; 5-6 and 5-34). The fact that the accused in his evidence did not
deny that he was arrested, which the magistrate relied upon
in
convicting the accused, is of no moment: the absence thereof could
not and did not constitute proof of the arrest on which the
State has
failed to lead the necessary evidence. It follows that the accused
was wrongly convicted and that the conviction and
sentence ought to
be set aside.
[5] In the result the conviction
and sentence are set aside.
_________________________
FHD VAN OOSTEN
JUDGE OF THE HIGH COURT
I agree.
________________________
MB MAHALELO
ACTING JUDGE OF THE HIGH COURT