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[2018] ZAGPJHC 31
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S v Porritt and Another (SS40/2006) [2018] ZAGPJHC 31 (16 February 2018)
Links to summary
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: SS 40/2006
REPORTABLE:
NO
OF INTEREST TO
OTHER JUDGES:
YES
DATE:
16 February 2018
THE
STATE
v
PORRITT,
GARY PATRICK
Accused
no. 1
BENNETT,
SUSAN HILARY
Accused
no. 2
RULING OF 12 FEBRUARY
2018
INTERPOSING
WITNESSES IN RE MILNE’S PLEA AND SENTENCE AGREEMENT
ss
167 AND 186 OF CPA
SPILG,
J:
INTRODUCTION
1.
On 12
September 2016 Mr Porritt and Ms Bennett brought an application
directing that subpoenas
duces
tecum
be
issued in terms of s186 and s167 of the Criminal Procedure Act 51 of
1977 (“
the
CPA”
)
for the examination of four witnesses “
or
such other witnesses as the court may determine”.
In
terms of the application the witnesses are to be examined regarding
the whereabouts of the original Plea and Sentence Agreement
under
s105A of the CPA which was signed by Mr John Milne in February 2004
and the charge sheet he faced. Milne is the first State
witness and
his evidence, if it is to be believed, implicates not only him but
also both accused in the alleged fraudulent dealings
involving PSC
Guarantee Growth Ltd (“
PSCGG
”)
2.
The
witnesses the accused specifically wish to subpoena are the clerk of
the Johannesburg regional court, the presiding magistrate
who
accepted the Plea and Sentence Agreement, Milne’s legal
representative in his criminal case and Milne personally. It
is now a
year and a half after the application was launched. Milne is
currently in the witness box and is effectively at the end
of his
evidence in chief. There is therefore no reason he cannot be cross
examined in the ordinary course on these issues.
3.
In terms of
the draft subpoenas each witness is to produce the court file in the
case where Milne was indicted together with its
entire contents and
the Plea and sentence Agreement signed by Milne together with all
annexures.
4.
While the
issuing of a subpoena
duces
tecum
is
an essential feature of our criminal justice system the accused do
not do so under s 179 of the CPA but invoke ss167 and 186.
Moreover
they seek an order that Milne’s evidence be adjourned pending
the outcome of the examinations. As stated earlier,
at this stage
where Milne has all but completed his evidence in chief and his
cross-examination is about to commence, the application
is pointless
insofar as he is concerned
GROUNDS
FOR INVOKING ss 186 and 167
5.
If regard
is had to the founding affidavit the application is brought chiefly
under s186. It reads:
Court
may subpoena witness
The
court may at any stage of criminal proceedings subpoena or cause to
be subpoenaed any person as a witness at such proceedings,
and the
court shall so subpoena a witness or so cause a witness to be
subpoenaed if the evidence of such witness appears to the
court
essential to the just decision of the case.
The
other section relied on is s 167. It provides:
Court
may examine witness or person in attendance
The
court may at any stage of criminal proceedings examine any person,
other than an accused, who has been subpoenaed to attend
such
proceedings or who is in attendance at such proceedings, and may
recall and re-examine any person, including an accused, already
examined at the proceedings, and the court shall examine, or recall
and re-examine, the person concerned if his evidence appears
to the
court essential to the just decision of the case.
6.
The
application seeks to fit itself within the decision of
S
v Masooa
which was reported in SAFLII in February 2016 and in the South
African Criminal Law Reports in August 2016 (
S
v Masooa
2016 (2) SACR 224
(GJ)).
7.
There have
been very few reported cases where these sections have been invoked.
I believe that the leading cases were covered
in
Masooa.
The two
South African cases mentioned by the accused in their founding
papers, which they say had no input from any legal
representative, are identified in
Masooa.
8.
It is
apparent that the accused seek to tease out of the production of two
documents a court directed examination of
witnesses to be
interposed before Milne is cross-examined.
The
facts which have emerged, including a subsequent affidavit filed by
the accused, reveal that the issue before me is straight
forward and
I intend keeping this judgment equally simple. For this reason it is
unnecessary to deal with case law on ss 186 and
167 or go into any
detail in regard to its application.
9.
I say this
alive to the accused’s attempt to emphasise in the founding
affidavit that a decision to apply ss 167 and 186 flows
from the duty
of the judicial officer to ensure that justice is not only done but
is seen to be done. I am also aware that their
papers infer that if
the court does not invoke either of the sections then it will
demonstrate lack of impartiality in that it
would be promoting the
interests of the State above those of the accused.
[1]
10.
I will
first set out the accused’s reason for wanting to issue the
subpoenas.
PURPOSE
OF ISSUEING THE SUBPOENAS
11.
The accused
could themselves have issued subpoenas on each of the mentioned
persons to produce the original documents at court or
explain their
whereabouts.
Section
179 provides for a simple procedure where an accused can compel the
attendance of any person to give evidence or to produce
a document by
taking out a subpoena in the manner prescribed by Uniform Rules 54(5)
and (8)
[2]
. Aside from the
accused’s rights to be provided with the relevant sections of
the docket, the defence itself has also the
right to obtain the
production of relevant documents, even if it is in the possession of
a state witness during cross examination.
See
Cave
v Johannes
1949 (1) SA 72
(T) and
R
v Smale
1948 (3) SA1210 (A)
12.
On 7
September 2016, during the course of leading the evidence of Milne,
the State indicated that Milne had pleaded guilty to fraud
charges in
respect of PSGG, that he had served a custodial sentence which was
completed and that he had since been released. The
general terms of
any plea and sentence agreement that might have been agreed upon with
the State under s105A therefore was relevant,
at least from the
court’s point of view, in relation to how to treat his
evidence.
13.
On 8
September the State provided what it claimed was a copy of Milne’s
plea and sentence agreement and said that Milne had
just located it.
Bennet requested the court to stand down the hearing of further
testimony until the outcome of an inquiry into
the disappearance and
whereabouts of the original plea and sentence agreement. Bennett
indicated that the purpose was not just
a question of Milne’s
creditability but also that the State was party to the production of
a fraudulent plea and sentence
agreement.
Porritt
than sought to have the document introduced as evidence contending
that it was a document which the accused had requested
from the State
and he wished to use it to show that “
it
is a fraud on this court
“
14.
The court
indicated that it would proceed with Milne’s testimony, and
that if the accused wished to raise the issue then they
would have to
bring it by way of a proper written application.
On
11 September 2016 the accused brought the present application. The
founding affidavit recorded that after I had said that the
court
needed to know the terms of the plea and sentence agreement Milne
produced a document which it was claimed he had found and
which he
said was the only plea and sentence agreement that he had.
15.
The accused
state in paragraph 34 of the application that ;
“
If
it is established ,during the examination, that the document in fact
emanated from the State and that the State and the prosecutors
have
been untruthful in regards to the document being missing ,then
,……….,this Honourable court will have
no option
but to remove the prosecutors and to consider whether the trial
can proceed in such circumstances.”
16.
The State
averred that it was the penultimate draft and bore the signatures of
at least Milne, Milne’s counsel Adv M Hodes
and Advocate C
Jordaan SC who was the Special Director and head of the specialised
commercial crime unit. Adv Coetzee pointed out
that page 8 of the
agreement was missing.
17.
Milne than
testified that the document was the copy of the one that had been
placed before the presiding Magistrate, that it had
not been amended
by the Magistrate, that his initials were reflected on each page of
the document and that annexures A to D, which
had been attached to
the document, were missing. Annexure A was the charge sheet.
18.
Milne also
claimed in evidence that this was the only document he had of the
plea and sentence agreement. Furthermore it was stated
from the bar
that according to Adv Ferreira’s recollection the original of
this document had been placed before the Magistrate.
The document was
introduced into evidence as D3.
19.
During
argument Bennett again referred to a number of anomalies; for
instance that only Adv Jordaan’s signature was on the
last page
of the document, that page 8 was missing and that the initials, which
were purportedly placed at the time the plea and
sentence agreement
was handed up, were in fact those of witnesses to the founding
affidavit deposed to by the liquidators of PSCGG
in their application
to hold Milne personally liable for the debts of that company. It was
also contended that page 8 of the agreement
was deliberately withheld
as it alleged that Milne did not personally gain financially from the
PSCGG fraud to which he pleaded
guilty.
20.
Returning
to the founding affidavit Bennet added in para 22:
‘
Furthermore
the
Accused
had previously obtained from elsewhere a draft document with no
annexures
,
but had been unable to obtain anything from the State. I pointed out
that I had attached such incomplete draft document to the
papers in
the permanent stay application. I drew to the attention of the Court
that, with regard to the still missing annexures,
the Accused still
have no knowledge of the charges to which Milne pleaded guilty. We do
not know whether they were the same charges
that we are facing or
different charges. In fact,
the
Accused have no idea what Milne pleaded guilty to
”
(my
emphasis)
21.
The
incomplete draft which Bennett mentioned had been attached to the
permanent stay application features elsewhere in her founding
affidavit in the present papers. It is identified as annexure “SB
4”. At para 28.1 of the founding affidavit in the
present
matter Bennett explains the existence of this document and also
refers to what she had said about it in the permanent stay
application
[3]
. In the permanent
stay application Bennett mentioned that Attorney Cohen had received a
faxed document which “
sets
out extracts from the terms of Milne’s Plea and Sentence
Agreement. It would appear that the agreement had been provided
as a
base for another document and portions of it had been blanked out or
excluded.”
The
document had originally been attached as annexure SB116 to Porritt’s
affidavit of 11 November 2003 which had been filed
in civil
proceedings that had been brought for the winding up of EBN Trading
and the Awethu Trust. Porritt’s affidavit of
November 2003 on
which Bennett relies in the present proceedings states that SB 4
(then SB116) contained the following statement
which Porritt
expressly alleged under oath was made to the magistrate receiving
Milne’s plea and which, according to Porritt,
“
to
the knowledge of the State, were untrue and affected the decision of
the Court in its sentencing”.
Two
paragraphs from the plea and sentence agreement were then cited in
Porritt’s affidavit to substantiate this. The first,
which
Porritt identified as para 7 of the document read:
“
The
State is not in possession of any evidence to indicate that the funds
of the investors were misappropriated for the personal
financial gain
of the accused”
He
also said that para 4 under the heading “
mitigation
of sentence
”
read:
“
The
accused did not make any money out of the PSC Guaranteed Growth
Limited Scheme”
As
is evident from what has been said, these allegations were also
repeated in an affidavit deposed to by Bennett in January 2016
when
applying for a permanent stay.
It
is evident that the draft plea and sentence agreement (SB4) appears
to be a working copy of the plea and sentence agreement that
was to
be submitted on Milne’s behalf. A number of proposed
handwritten amendments appear on it.
In
the present founding affidavit Bennett concludes in relation to the
passages extracted from the draft agreement that:
“
It
is submitted that, on this basis, one can expect that the wording on
page 8 of “SB4” will be the same as that which
was
contained in the missing page 8 of the Milne Agreement.
“
This
the very page that the Accused maintained to this Honourable Court …
evinced a fraud on the Regional Court in the Milne
sentencing, is the
page that is missing from the Milne agreement presented by the State.
It is submitted that this is no coincidence
It
is the view of the Accused … that this is the only reasonable
view that can be taken, that page 8 was not, in fact, missing
from
the document located by Milne on 7 September 2016, and that the State
and Milne have colluded to perpetrate a fraud on this
Court
Furthermore
that the State and Milne have ensured that the annexures to the
document and particular Annexure A being the charge
against Mr Milne,
have been deliberately withheld from Porritt and me and,
particularly, this Honourable Court”
[4]
22.
The
significance of the underlined extract from para 22 of Bennett’s
present founding affidavit (see para 20 above) and the
statements in
the earlier affidavit of Porritt (see the preceding paragraph) is
that:
a.
The
underlined extract contains two significant concessions made by the
accused. The first is that they had an incomplete draft
of what they
accepted reflects the proposed amendments to be inserted in Milne’s
plea and sentence agreement. The second
is that they had no idea of
the contents of Milne’s charge sheet.
b.
By relying
on Porritt’s earlier affidavit the accused contend that the
plea and sentence agreement placed before the magistrate
contained
these numbered paragraphs under the specifically identified headings
and that their contents were untrue in order to
minimise the sentence
that the magistrate would impose on Milne
23.
In her
founding affidavit in the present proceedings Bennett said that she
had studied the plea and sentence agreement on the evening
of 9
September and alleged that it was a fraud on the court by both Milne
and the prosecution. It was for this reason that she
had requested
the court to hold an enquiry and subpoena witnesses so that they can
be examined by the court as to the whereabouts
of the original
documents and its contents. She also wanted the document to be
admitted as evidence.
Aside
from contending that the plea and sentence agreement was drawn in a
way that minimised the benefit Milne gained from the fraud
he
admitted to, it was also urged that the missing charge sheet would,
once found, highlight that Milne had only been charged with
a single
offence whereas the State was persecuting the accused by levelling a
multiplicity of charges against them.
[5]
24.
In the
affidavit Bennett referred to a letter addressed by attorney Frank
Cohen of 4 May 2007 which had requested a copy of the
plea and
sentence agreement but despite being advising on 08 May that the
State would respond to the letter it had not done so.
Bennett pointed
out that reference had been made to the document on several previous
occasions.
I
mention this because it shows that Bennett and Porritt, who supports
her allegations, actually rely on a page of the plea and
sentence
agreement that was contained in the liquidators’ application.
They contend that page 8 was deliberately withheld
since it revealed
that Milne had claimed that he did not benefited from the frauds to
which he pleaded guilty whereas he in fact
had obtained financial
gain
[6]
.
The
accused also said that the charge sheet was deliberately withheld as
it only charges Milne with one offence and this would support
their
contention that the State is using its resources to unfairly
persecute them.
I
will return to the confused and contradictory nature of the arguments
presented by the accused in court on Monday this week and
which
required the court to regularly redirect the accused to the real
issue; namely whether s 186 or s 176 should
be invoked to obtain the
original documents or establish their whereabouts.
25.
Bennett
said that she had inspected the original court file but Milne’s
agreement was missing, that the court digital recording
of the
hearing when the terms of the agreement were placed before it was
also missing and that there was no transcript.
She
also pointed out that the investigating officer at the time deposed
to an affidavit in March 2007 stating that Adv Ferreira
had kept
Milne’s court record in his personal possession prior to the
present case being transferred to the high court. In
argument it was
also submitted that the Parole Board and the magistrate must have had
the record of those proceedings when sometime
later Milne’s
sentence was converted.
26.
In argument
on Monday this week the accused contend that Milne and the
prosecution conspired to perpetrate a fraud on the court
by
untruthfully presenting the document as Milne’s Section105
statement. They point to the State’s allegations regarding
whose initials appear on the document Milne claimed to have found and
which had been handed up. They emphasised that there
had been
no indication as to where the document emanated from and that there
was no explanation as to why the agreement was not
contained in the
docket. They also drew adverse conclusions from the omission to
provide page 8 of the document which Milne claimed
to have found,
contending that it had been deliberately withheld, as were the
annexures to the agreement. They also point out that
Milne’s
initials appear on all but the last page.
27.
In her
affidavit Bennet referred to the statement in the Milne agreement
which reflects:
“
Accused
pleads guilty 1 count of fraud”
The
accused complain that they face almost 3000 main charges as well as
four charges under the Prevention under Organised Crime
Act and a
similar number of alternative counts but Milne who was their co
accused in the alleged commission of the same crimes
only pleaded
guilty to one offence. The accused conclude that the trial magistrate
might have passed a heavier sentence if he had
been fully informed
and been presented with a full charge sheet similar to that faced by
the accused. The effect of the alleged
deception is that Milne did
not face the minimum custodial sentence of 15 years.
28.
The accused
make the following further submissions:
a.
The
production of Milne’s charge sheet would highlight the
discrepancy and inequity between its single charge against Milne
as
compared with the multiplicity of charges against the accused
b.
A
disclosure of the full plea and sentence agreement would substantiate
their allegations that the State has conducted a persecution
against
them and has acted
mala
fides.
c.
The failure
to produce the document and charge sheet that was placed before the
magistrate is deliberate and is intended to
prejudice the
accused in the conduct of their defence
29.
They
conclude that the issue cannot be deferred as it “
goes
to the heart of the right of an accused to be prosecuted by honest
prosecutors who have preserved the integrity of the docket
and have
not colluded with witnesses to deceive the courts”
.
Furthermore,
they submit that if it is established that the doucument handed up by
Milne emanated from the State then “
it
has far-reaching implications on the validity of the prosecution and
the credibility of the prosecutors
”
With
these statements the accused submit that the issue should take
priority over any further leading of Milne’s evidence
and that
“
this Court is duty bound to now confront this issue in the
light of the evident fraud that has just been revealed”
. It
was also contended that such conduct by the prosecutors should not be
condoned and it is incumbent upon this court to take
such steps as
are appropriate to safeguard the accused from what they contend is
prosecutorial abuse.
30.
In a
supplementary affidavit deposed to n 20 October 2016 Bennett then
disclosed that there was another copy of the plea and sentence
agreement of which they had become aware. It was attached to the
founding affidavit of the liquidators of PSSCGG deposed to in
June
2006. Albeit that the document was unsigned it was alleged that the
liquidator was assured that the originals had been signed.
The
document also contains a charge sheet against Milne as an annexure
The
charge sheet relies on a fraud constituted by the alleged untruthful
representations made in PSCGG’s prospectus to 4000
investors
who had relied on the misrepresentations as being true and that the
misrepresentations were made in April; 2000
and perpetuated up
to May 2003. The misrepresentations included:
a.
Milne would
be the managing director of PSCGG and that he would be making
investment decisions as head of the investment team;
b.
PSCGG would
invest in a wide range of securities as defined in the preamble;
c.
An
investment in PSCGG constituted a medium to low risk
investment;
d.
The
published net asset value was at all times both true and correct
31.
It is again
significant that the accused did not change tack when presenting
their supplementary affidavit. On the contrary they
persisted with
their basic contention that Milne and the State withheld page 8 of
the plea and sentence agreement that was given
to the presiding
magistrate because of the untruthful statements contained in it
regarding Milne receiving no financial benefits
from out of PSCGG and
that the charge sheet which was found shows that there was only one
charge laid against Milne. I should add
that the
plea
and sentence agreement together with the charge sheet was ANNEXURE DD
to the accused’s supplementary affidavit.
32.
The
State did not initially file an answering affidavit. Adv Coetzee
sought to take certain procedural points. In view of the fact
that
the accused’ alleged that the State had deliberately withheld
information and had concealed the charge sheet and plea
and sentence
agreement I viewed the failure to file an affidavit in a serious
light.
33.
At the time
I was therefore most concerned about ensuring that officials provide
an explanation. On 17 October 2016 after
hearing the State I;
a.
ruled that
the investigating officer be subpoenaed to appear before me on
Thursday of that week to indicate the whereabouts of the
court file
in respect of Milne’s trial.
b.
nominated
Adv Ferreira of the DPP to undertake an investigation into what
happened to the court file and to also provide an explanation
as to
what happened to the DPP’s file
34.
The State
subsequently filed an answering affidavit disputing the accused’s
allegations and attached affidavits which claimed
to explain the last
known whereabouts of the original plea and sentence agreement as well
as the charge sheet. Included were affidavits
explaining the loss of
the originals and also confirming that the document contained in the
supplementary affidavit which Bennett
had copied from the
liquidators’ files was a true copy of the charge sheet and of
the plea and sentence agreement that had
been placed before the
magistrate save that Milne’s signature was not on it nor those
of anyone other than Jordaan.
35.
The State
also obtained an affidavit from Milne’s Counsel who represented
him at when he pleaded, Adv Max Hodes, who confirmed
these facts.
36.
The accused
did not file a replying affidavit.
37.
Since
the papers were filed Milne has spent the better part of a year and a
half testifying in chief with many hundreds of documents
produced and
identified through testimony.
THE
ISSUES
38.
At
face value the accused want to secure the original plea and sentence
agreement and the charge sheet (which was also attached
as annexure A
to the agreement).
39.
They
elected to do so not by way of s179 but by way of an application
under ss 167 and 186
40.
The
allegations of trying to show the prosecution as acting underhand by
withholding the true documents as a ground to again seek
their
removal is evident.
41.
However the
accused are not entitled to use a provision in the Act which is
entirely procedural for another objective. However the
papers are
dressed up, the issue is whether the accused have received the
documents that constituted the actual plea and sentence
agreement and
charge sheet relating to Milne and whether copies of these documents
can be used in evidence instead of the original.
COPY
OF THE PLEA AND SENTENCE AGREEMENT
MARKED
DD TO BENNETT’S SUPPLEMENTAY AFFIDAVIT OF 20 OCTOBER 2016
42.
It is
evident from the signature of Joubert SC and the affidavit presented
by the liquidators that annexure DD is a true copy of
the original
plea and sentence agreement that was handed up to the magistrate,
save that it does not bear the signature of Milne
and has initials
that were not placed on it at the time but were inserted by the
deponent or commissioner to another affidavit
to which the document
was an annexure.
43.
Milne has
testified that this was the final version of the text of the
agreement to which he appended his signature and which was
accepted
by the magistrate under s 105A when he pleaded to the charges.
44.
There is no
other document which the accused have produced which puts into doubt
that an agreement with different text was given
to the magistrate.
Quite the contrary; as I have demonstrated earlier, affidavits
deposed to by both Porritt and Bennett, confirm
that page 8 of
annexure DD was one of the pages to the plea and sentence agreement
that was actually handed up. Page 8 expressly
includes
allegations that Milne’s testimony would be vital in the
prosecution of other accused and Porritt and Bennett are
expressly
named.
45.
The events
have now overtaken the initial allegations made by Porritt and
Bennett.
I
issued my directive on 17 October 2016. On 20 October 2016 Bennett
filed a supplementary affidavit that effectively confirmed
that she
now had, as did Porritt, a copy of the plea and sentence agreement as
well as a copy of the charge sheet.
46.
Realising
that the tack they had adopted would not assist them, the accused
changed their position when presenting oral argument
on 12 February.
They
now contend that even annexure DD is not the plea and sentence
agreement that was submitted to the magistrate; they say it
was a
very different agreement admitting to much lesser offences, none of
which implicated them.
They
however could not explain why the magistrate then treated the
offences as sufficiently serious so as to impose a sentence of
eight
years, albeit that three were suspended.
[7]
It
also does not explain the extracts from the previous affidavits,
filed by one or other of the accused and to which I have already
referred.
47.
Accordingly
the accused cannot pass first base. If regard is had to annexure DD,
the admitted history regarding its existence, the
earlier document
which bears proposed handwritten amendments some of which
found their way into annexure DD, the magistrate’s
notes as
well as the charge sheet that was attached to annexure DD then it is
evident that annexure DD contains the final text
of the plea and
sentence agreement in terms of s105A which was signed by
Milne and handed up to the presiding magistrate
.
THE
CHARGE SHEET
48.
It is
unfortunate that the charge sheet was not produced sooner. Had it
been placed before me when the application was initially
brought then
the matter would have been resolved when it was first raised on 7
September. Instead this court has been presented
with an application
that, excluding the transcripts of hearings before me, is over 500
pages long.
49.
The
charge sheet sets out the fraud offence clearly. In substance it is
no different to those the accused face in regard to the
PSCGG
prospectus. That it may only have constituted one offence does not
militate against the fact that the Milne charge sheet
relied on a
number of individually specified fraudulent misrepresentations
allegedly made to over 4000 investors which induced
to them to invest
in PSCGG to their detriment.
50.
The
accused are clutching at straws in contending that Milne was charged
with only one offence. The number of investors who were
defrauded is
stated and was no doubt taken into account as an aggravating
factor
[8]
when weighed against
the mitigating factors raised in the plea and sentence agreement.
Accordingly, standing alone the charge sheet
cannot be challenged as
not being the one to which Milne was required to plead. Nor did it
attempt to mask the number of investors
defrauded. What it did not do
was raise the 15 year minimum sentence; but the purpose of the
accused’s s 167 or s186 application
was not directed at that.
It was to obtain documents.
USE
OF COPIES
51.
The court
called for the plea and sentence agreement in order to assess how
Milne’s evidence is to be treated. The documents
before me
suffice for these purposes.
52.
The State
made it plain that it did not intend using the documents. The accused
however contend that they want the originals.
Since
the State does not intend using them the only issue with regard to
not producing the originals is if the accused were to use
them either
when cross examining Milne or in argument or otherwise.
53.
I did not
understand the State to say that it requires the originals should the
accused wish to utilise the documents in question.
Accordingly the
accused are at liberty to do so.
54.
I certainly
do not need the originals if it is evident that the copies are a true
reflection of the text of the original plea and
sentence agreement
that was handed up and the copy of the charge sheet before me which
was annexure A to the agreement.
I
am satisfied that they are and may be used by the accused in the
trial whether for the purposes of cross examining Milne, in argument
or for any other purpose. The plea and sentence agreement and the
charge sheet are Annexure DD
and
will, on request, if not already an exhibit, will be made so.
GENERAL
55.
The
documents came into existence in 2004 and by September 2016 the
accused had enough time to decide on the position they wished
to
adopt and the case they wished to make out in regard to their
content.
56.
They
did so in their founding papers to the present application and it was
responded to. They did not file a replying affidavit
but in argument
sought to make out a different case as to the contents of the
original documents.
57.
It
is necessary to add that I do not need to deal at this stage with
Milne's recollection, as that may be a matter for further
cross-examination.
58.
For the
reasons given I find on the cases referred to in Masooa that there is
no basis on which either the discretionary or obligatory
provisions
of either ss 186 let alone 176 can be invoked.
59.
This is an
application in criminal proceedings. I am aware of a case where the
State had been required to bear the costs in criminal
trials. While
the accused must be given great latitude, if there is an abuse of
proceedings and the court is obliged to expend
unnecessary time
in dealing with there may be grounds on which a court can show
its displeasure by an appropriate costs award
if the application was
entirely frivolous.
[9]
60.
I should
add that unlike most criminal cases this case will essentially be
determined by documents and the proximity of the accused
to them
whether in their creation, consideration or dissemination. The
accused should not lose focus of that when considering the
relevance
of applications such as the present once it was known to them that
they had a charge sheet and a plea and sentence agreement
which
satisfied the questions raised in their founding papers.
This
they clearly knew by 20 October 2016 when Bennett filed her
supplementary affidavit
.
61.
The accused
are on notice that I will seriously consider requiring argument on
costs should they again continue with an application
that has no
merit. The State has not sought costs and accordingly the issue is
moot in the present application.
62.
It is
for these reasons that I dismissed the application.
_____________
SPILG
J
DATE
OF HEARING AND RULING: 14
February 2018
DATE
OF REASONS:
16 February 2018
FOR
THE ACCUSED:
In person
FOR
THE STATE:
Adv EM Coetzee SC
Adv JM Ferreira
Adv PJ Louw
[1]
Paras 4 and 7 of the founding affidavit
[2]
s179 Process for securing attendance of witness
(1) (a) The
prosecutor or an accused may compel the attendance of any person to
give evidence or to produce
any book, paper or document
in criminal proceedings by taking out of the office prescribed by
the rules of court the process
of court for that purpose.
(b) If any police
official has reasonable grounds for believing that the attendance of
any person is or will be necessary to give
evidence or to produce
any book, paper or document in criminal proceedings in a lower
court, and hands to such person a written
notice calling upon him to
attend such criminal proceedings on the date and at the time and
place specified in the notice, to
give evidence or to produce any
book, paper or document, likewise specified, such person shall, for
the purposes of this Act,
be deemed to have been duly subpoenaed so
to attend such criminal proceedings.
(2) Where an
accused desires to have any witness subpoenaed, a sum of money
sufficient to cover the costs of serving the subpoena
shall be
deposited with the prescribed officer of the court.
(3) (a) Where an
accused desires to have any witness subpoenaed and he satisfies the
prescribed officer of the court-
(i)
that he is unable to pay the necessary costs and fees; and
(ii)
that such witness is necessary and material for his defence, such
officer shall subpoena such witness.
(b) In any case
where the prescribed officer of the court is not so satisfied, he
shall, upon the request of the accused, refer
the relevant
application to the judge or judicial officer presiding over the
court, who may grant or refuse the application or
defer his decision
until he has heard other evidence in the case.
[3]
The relevant portion of Bennett’s statements in the permanent
stay application was attached as annexure SB5.
[4]
Bennett’s Founding Affidavit pars 36 to 39
[5]
See Bennett’s Founding Affidavit paras 28.1, 41 and 44
[6]
Bennet Founding Affidavit of
[7]
The magistrate’s original note recording Milne’s
conviction and sentence confirms this.
[8]
In the plea and sentence agreement Milne admitted to the facts set
out in the charge sheet
[9]
In the present case the State has engaged private counsel to head
the prosecution. Accordingly there are legal costs actually
expended by it.