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[2021] ZAGPJHC 382
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S v Porritt and Another (SS 40/2006) [2021] ZAGPJHC 382; 2022 (1) SACR 88 (GJ) (26 March 2021)
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE NO: SS 40/2006
REPORTABLE:
YES
OF INTEREST TO OTHER
JUDGES:
YES
REVISED.
YES
26 March 2021
THE STATE
v
PORRITT,
GARY
PATRICK
Accused no. 1
BENNETT,
SUSAN
HILARY
Accused no. 2
RULING OF 26 MARCH
2021
ADMISSIBILITY OF
DOCUMENTS UNDER SECTION 5 (2)(b) OF THE INTERNATIONAL CO- OPERATION
IN CRIMINAL MATTERS ACT NO. 75 OF 1996
SPILG, J:
INTRODUCTION
1.
Previously I ordered that the State had
lawfully obtain letters of request (“
LoRs
“)
under s 2(2) of the International
Co-operation in Criminal Matters Act, 75 of 1996
(“
the
ICCMA
”). The issue now before the
court concerns the admissibility of the evidence so obtained. I
believe the issue should be split
into three separate enquiries.
2.
Solely for present purposes trade and
business records, which I will refer to loosely as “
documents”,
are distinguished from the affidavits
of the deponents through whom the documents are identified and came
to be provided under the
LoRs.
3.
The first enquiry concerns whether the
documents obtained by the LoRs are admissible by reference to s
5(2)(b) of the ICCMA. In
this regard the State may
refer to the affidavits which introduce
them for purposes of identification and by
reference to the category of documents they
purport to be.
It is common cause that
they purport to be the trade and business records that were in the
deponent’s possession. In their
affidavits the deponents
describe the basis under which the documents came to be in their
custody or control or from which it appears
that they had a duty to
record the information from someone who had personal knowledge.
The documents in issue in
the first enquiry are limited to those introduced by Messrs Gordon,
Lintern-Smith and Mercer.
4.
The second enquiry which has yet to be
undertaken concerns the admissibility of
the contents of the affidavits to the
extent that they add a gloss to the documents
themselves which goes beyond simply
identifying them and classifying their nature.
5.
The third stage will be to deal with both
the documents identified in and the
contents of the two affidavits deposed to
be Mr and Mrs Adamczyk.
DISCUSSION
6.
There appears to be a view that a
consequence of remaining entirely supine when exercising his or her
fair trial right to remain
silent allows an accused to require the
State to laboriously introduce each and every document into evidence
through
vive
voce
evidence. Without writing a
treatise on when and how documentary evidence may be introduced into
evidence suffice it that such reasoning
is fallacious. Where an
accused fails to exercise the other fair trial rights of adducing
evidence to counter a
prima facie
case
then the election to
remain
silent may have serious adverse consequences,
7.
With respect Madala J had stated the
position in
Osman and Another v The
Attorney - General, Transvaal
1998 (4)
SA 1224
(CC) at para 22 with sufficient
clarity for there to be no
misunderstanding. I quote:
“
Our
legal system is an adversarial one. Once the prosecution has produced
evidence sufficient to establish a prima facie case, an
accused who
fails to produce evidence to rebut that case is at risk. The failure
to testify does not relieve the prosecution of
its duty to prove
guilt beyond reasonable doubt. An accused, however, always runs the
risk that, absent any rebuttal, the prosecution's
case may be
sufficient to prove the elements of the offence. The
fact that an accused has to make
such an election is not a breach of the right to silence. If the
right to silence were to be so
interpreted, it would destroy the
fundamental nature of our adversarial system of criminal justice.
”
8.
In reaching this decision the learned
justice had gathered and endorsed at paras 19 to 21 the following
pronouncements from our
courts and those of comparable
jurisdictions:
“
[19]
McCreath J was of the view that the entrenchment of the right to
silence
in
s 25(3)(c) should not detract from the meaning of the right as it has
been understood hitherto. His reasoning stood on two legs.
Firstly,
that “s 36 does
not
. . . per se cast a duty on a person suspected of contravening the
section
to
make any statement at all””. Secondly, that
'(t)he circumstances
of a particular case may of course be such that an explanation will
be required of the person's possession
of the goods in order to avoid
a conviction under the section and that that explanation can only be
given by that person himself
or herself. Such person still has an
election whether to give an explanation or to risk the consequences.
The necessity to give
a satisfactory account to avoid conviction is
in that event not created by s 36 itself but by the circumstances of
the particular
case. Section 36 compels nothing. It is a misfortune
inherent in the case. So also if the account required to be given
involves
an admission or confession to a crime on the part of that
person. The situation is analogous to that which may arise in any
criminal
case at the end of the State case. Sufficient evidence may
have been advanced by the prosecution at that stage to require a
satisfactory
explanation from the accused, which is reasonably
possibly true, if he is to avoid conviction. His right to remain
silent has not
been impinged upon by any statutory provision in
conflict with the Constitution. The circumstances of the case against
him are
such that he exercises his right to silence at his peril….
'
[20]
Similarly, in S v Sidziya and
Others, the Court effectively held that the constitutional right to
silence does not preclude the
presiding officer from considering as
part of the overall assessment of the case the accused's silence in
the face of a prima facie
case established by the prosecution. As
was so aptly put by Naidu AJ in
Sidziya:
'The right entrenched
in s 25(3)(c) means no more than that an accused person has a right
of election whether or not to say anything
during the plea
proceedings or during the stage when he may testify in his defence.
The exercise of this right like the exercise
of any other must
involve the appreciation of the risks which may confront any person
who has to make an election. Inasmuch as
skilful cross- examination
could present obvious dangers to an accused should he elect to
testify, there is no sound basis for
reasoning that, if he elects to
remain silent, no inferences can be drawn against him.'
[21]
This issue was also dealt with by
the Botswana Court of Appeal in Attorney-General v Moagi. The Court
there had to interpret the
meaning of s 10(7) of the Botswana
Constitution, which provides that '(n)o person who is tried for a
criminal offence shall be
compelled to give evidence at the trial'.
Maisels JP, delivering the majority judgment, held that where the
prosecution
had
established a prima facie case, '(u)nless the accused's silence is
reasonably explicable on other grounds, it may point to his
guilt'.”
9.
Shortly after
Osman
,
in the case of
S v Dlamini; S v Dladla;
S v Joubert; S v Schietekat
[1999] ZACC 8
;
1999 (2)
SACR 51
(CC) at paras 93 and 94 the court was called on to resolve
the apparent tension between the right to remain silent and not to
incriminate
oneself as well as the other “
battery
of rights under s 35(1) and (3) of the Constitution
”
on the one hand and the right to make out an effective case on the
other (in relation to obtaining bail where an accused
is charged with
a serious
criminal
offence). The court held that under consideration was not that the
accused had an election, but rather whether the choice
to speak was
made with a
proper
appreciation of what it entailed and whether the choice was forced on
the person concerned. Kriegler J said the following:
[93]
It is true that evidence given at a
bail hearing may ultimately redound to
the prejudice of the accused. It can
therefore not be denied that there is a certain tension between the
right of an arrested accused
to make out an effective case for bail
by adducing all the requisite supporting evidence, and the battery of
rights under s 35(1)
and (3) of the Constitution. But that kind of
tension is by no means unique to applicants for bail. Nor does its
mere existence
sound constitutional alarm bells. Choices often have
to be faced by people living in open and democratic societies.
Indeed, the
right to make one's own choices is an indispensable
quality of freedom. And often such choices are hard.
[94]
Litigation
in general, and defending a criminal charge in particular, can
present
a minefield of hard choices. That is an inevitable consequence of the
high degree of autonomy afforded the prosecution and
the defence in
our largely adversarial system of criminal justice. An accused,
ideally assisted by competent counsel, conducts
the defence
substantially independently and has
to
take many key decisions whether to speak or to keep silent: Does one
volunteer a statement to the police or respond to police
questions?
If one applies for bail, does one adduce oral and/or written evidence
and if so by whom? Does one for the purposes of
obtaining bail
disclose the defence (if any) and in what terms? Later, at the trial,
does one disclose the basis of the defence
under s 115 of the CPA?
Does one adduce evidence, one's own or that of others? Each and every
one of those choices can have decisive
consequences and therefore
poses difficult decisions. As was pointed out in Osman's case ['t] he
choice remains that of the accused.
The important point is that the
choice cannot be forced upon him or her.' It goes without saying that
an election cannot be a choice
unless it is made with proper
appreciation of what it entails. It is particularly important in this
country to remember that an
uninformed
choice is indeed no choice. The responsibility resting upon judicial
officers to ensure the requisite knowledge on the
part or the
unrepresented
accused
need hardly be repeated.
[1]
10.
In the same case at para 78 the court drew
a distinction between instances where an onus was imposed on an
accused which was geared
at arriving at a factual conclusion and
those designed to make informal prognosis in situations where the
facts were peculiarly
within the knowledge of an accused who chose to
remain silent. In the latter situation the
court concluded that the question of an erroneous conviction did not
arise.
11.
It should be recalled that once the trial
has commenced the right to be presumed
innocent, to remain silent and not to
testify under ss 35(3) (h) and (j) are illustrations of the broader
right to a fair trial.
The preamble to s 35(3) says as much:
“
Every
accused person has a right to a fair trial, which
includes
the right…”
(emphasis added)
These are not the only
fair trial rights expressly identified as being enjoyed by an
accused. Under ss 35(3)(i) and (j) an accused
has the right “
to
adduce and challenge evidence”
provided he or she is not
“
compelled to give self-incriminated
evidence”
.
In other words, the accused has an election, and hard choices as to
whether to testify or remain silent do not according to either
Osman
or
Dlamini
amount, without more, to an infringement of
fair trial rights.
12.
At this stage the enquiry is confined only
to the admissibility of documentary evidence which is sought to be
introduced because
ex facie
their
contents they self-evidently appear to be the trade and business
records of the specific entity in
whose
possession they were obtained or that the person who provided them
would ordinarily have possession or custody of them on
behalf of that
entity and was either responsible for the record or had a duty to
record the information from
someone
who had personal knowledge of the matter. The nature of admitting
such documents appears to fall more closely within the
category of
evidence described in
Dlamini
as
not in itself amounting to a factual conclusion determinative of the
trial nor one which could raise concerns about an erroneous
conviction. Briefly the reasons are;
a.
The protection afforded under s 5(2)(b) of
the ICCMA which comprise
well
recognised qualifiers for the admissibility of evidence.
b.
The documents are sought to be introduced
into the pool of evidence which must be considered by the court. At
this stage the prime
considerations are their genuineness and
probative value which themselves must be taken into consideration
against the broader
issue of
prejudice
to the accused by allowing their introduction as an exception to
the hearsay rules.
While prejudice is one
thing, whether or not the evidence sought to be admitted carries any
weight once the totality of all the
evidence is evaluated is quite a
different matter. At this stage the question is whether the documents
should be admitted into
the pool of evidence which a court is obliged
to take into consideration under s 5 of the ICCMA. The fact that they
may eventually
carry little weight or be quite damning depends on the
other evidence produced and such evidence as the accused may
challenge or
themselves elect to adduce. The enquiry at present is
directed at whether there are sufficient safeguards to ensure that
the accused
can meaningfully exercise their fair trial right to
challenge the evidence sought to be admitted or whether they are
prejudiced
in doing so and to what extent such prejudice is likely to
be real rather than apparent.
13.
I turn to a consideration of s 5(2) and the
challenges raised by the accused.
SECTION 5(2) of ICCMA
14.
The provisions of s 5(2)(a) and (b) of the
ICCMA read:
(2)
Evidence obtained by a letter of
request prior to proceedings being
instituted shall be admitted as
evidence at any subsequent proceedings and shall form part of the
record of such proceedings if-
(a)
each party against whom the evidence
is to be adduced agrees
the
admission thereof as evidence at such proceedings; or
(b)
the court, having regard to-
(i)
the nature of the proceedings;
(ii)
the nature of the evidence;
(iii)
the purpose for which the evidence
is tendered;
(iv)
any prejudice to any party which the
admission of such
evidence
might entail; and
(v)
any other factor which in the
opinion of the court should be
taken
into account,
is of the opinion that
such evidence should be admitted in the interests of justice.
15.
Two other provisions impact on a
consideration of s 5(2)(b). They are:
Section 5(1) which reads:
Evidence obtained by a
letter of request shall be deemed to be evidence under oath if it
appears that the witness was in terms of
the law of the requested
State properly warned to tell the truth.
Section 5(3) which
provides:
The provisions of
subsection (2) shall not render admissible any evidence which would
be inadmissible, had such evidence been given
at the subsequent
proceedings by the witness from whom it was obtained.
Nature of Proceedings
16.
Section 5(2)(b)(i) requires a court to have
regard to the nature of the proceedings. This is a reference to the
nature of the current
proceedings. They are criminal proceedings
where the accused are confronted with “
untested
evidence”
. At this stage the
evidence sought to be introduced are the trade and business records
located in Hong Kong of certain entities
ostensibly managed from
there. The method of securing that evidence is sanctioned by the
ICCMA and it is not contended that the
safeguards provided for in
obtaining and despatching the documents pursuant to the provisions of
s 2(2) were not adhered
to.
I have already ruled that the LoRs were lawfully obtained under that
section.
It is also not in dispute
that the requirements of s 5(1) were satisfied.
17.
In
S v Shaik
[2006] ZASCA 105
;
2007 (1) SA 240
(SCA) the court, when
dealing with the similar provision which is contained in
s 3(1)(c)(i)
of the
Law of Evidence Amendment Act 45 of 1988
said at para 171 that
“
sight should not be lost of the
true test for the evidence to be admitted, and that is whether the
interest of justice demands
its
reception”
.
Nature of the Evidence
18.
The evidence sought to be introduced at
this stage is not evidence of what a witness claims to have seen. The
evidence comprises
documents which are alleged to constitute a
continuous, and generally contemporaneous, trade and business record
of each of the
entities. It is relatively easy to discern if that is
the
case or not.
In such a case the more complete the record the more difficult it is
to
contend
otherwise as the risk of selective extraction is reduced, if not all
but eliminated, and the more readily incongruities
and chronological
gaps or anomalies can be picked up. None have been suggested by the
accused.
19.
The State alleges that the hand of the
accused effectively directed the actions of the entities whose trade
and business records
are sought to be admitted; at least
to the extent that such actions form an
integral part of the scheme and its consequences in relation to the
offences with which
the accused have been charged. The State has
described the Hong Kong entities as the
alter
egos
of the
accused, utilised by them either
individually or in the execution of a common purpose or conspiracy
for the purposes of committing
the offences with which they have been
charges, at least in respect of counts 1 to 14.
20.
A court must obviously be conscious of
avoiding a chicken and egg situation. The
difficulty is that the court is not dealing
with a handful of documents. Whatever the number of individual
documents, their sum
total is approximately 9 000 pages. A few of the
documents may have one or other of the accused’s signatures or
initials,
or were despatched or received by them or a person already
identified as their personal assistant or secretary. A few appear to
be copies of documents already admitted into evidence.
21.
At this stage, while Bennett is prepared to
make clear admissions regarding certain documents where duplicates
have already been
tendered in evidence, Porritt is not prepared to
make any unequivocal admission, tempering any admission with a
caveat, the extent
of which is unclear and therefore cannot be
taken into account at this stage as enough
to amount to an agreement to admit
these
few documents in under
s 5(2)(a).
22.
The documents themselves may indicate the
involvement of either or both the accused or they may not. However, I
am not prepared
to go further than accept that if they are admitted
into evidence they have the potential of significantly advancing the
State’s
case against the accused. However, at this stage they
should only be admitted on the basis that they are what they purport
to be
but not
as
to truth of content- leaving that determination to be made either
when the State seeks to have the individual document admitted
as such
or leaving it for argument as to the inferences to be drawn from
their content either individually or
when
considered against the totality of the evidence.
23.
The accused had an opportunity to contend
that they were not the trade and business records obtained from the
specific entities
in question (which are identified in my earlier
judgment). The furthest they went was to challenge the State’s
allegations
that the documents are also to be admitted into evidence
as the trade and business records of the Tigon Group of companies. I
will
consider
later
whether they had been given adequate opportunity to inspect and
consider
all the
documents sought to be admitted into evidence under
s 5(2)(b).
The purpose for which the
evidence is tendered
24.
In the earlier judgment delivered regarding
the lawfulness of proceeding under
s
2(2)
of the ICCMA I dealt with the relevance of the documents sought
to be admitted by reference to the charges under counts 1 to 14
of
the indictment.
25.
Bennett however argued that the Sate
claimed that the evidence sought to be
introduced was not necessary as it had
other evidence on which it could rely.
Even if that were so,
there is no guarantee that such other evidence will necessarily prove
the State case beyond a reasonable doubt.
If regard is had to the
evidence already tendered by Milne and by Prof Wainer it is apparent
that the State is required to demonstrate
a course of dealings by the
accused undertaken by them with a common purpose in furtherance of an
elaborate scheme at a number
of levels. It is not for the accused or
the court to anticipate at this stage the sufficiency of evidence
particularly where the
accused have exercised their right to remain
silent and in doing so have only admitted a handful of documents-
even original documents
which bear Porritt’s signature or
initials were required to be proven through Mr Milne who claimed to
be familiar with Porritt’s
signature and initials. In the end,
Porritt did not put such evidence in issue during his cross-
examination of the witness. No
quarter is being given and the State
as a responsible litigant is entitled to present such evidence as its
considers appropriate
provided it is relevant: These documents appear
to be relevant if regard is had to the indictment and the further
particulars provided
in response to the request made by Bennett.
Prejudice to any party
which the admission of such evidence might entail
26.
Porritt relied on this court indicating the
potentially prejudicial nature of the
documents if they support the allegations
contained in the indictment.
27.
That is not the prejudice to which the
provision relates. The prejudice relates to
the ability of the accused to challenge the
content of documents which are handed up without the ability to
cross-examine the person
who has tendered them as such. See
Shaik
at para177.
28.
At this stage the court is only concerned
with whether it can be satisfied that the documents are what they
purport to be. The accused
claim that they are unable to comment
because they had nothing to do with any of the entities. That does
not constitute prejudice
because the State must still demonstrate
beyond a reasonable doubt through the documents themselves or
evidence
aliunde
and
either directly or by inferential reasoning that the accused had used
the instrumentality of these entities to commit the offences
with
which they have been
charged.
And if the State proves a
prima facie
case then the accused have an election
whether to exercise their right under
s 35(3)(i)
to adduce their own
evidence with the risk that if they do not then it may result, on the
totality of evidence led, in the State
proving its case beyond a
reasonable doubt.
As
Osman
and
Dlamini
demonstrated, the election whether to remain silent
cannot of itself constitute prejudice. In short there is nothing to
suggest
that the accused are unable to contradict the documents if
they wish to do so. Compare
Shaik
at 178
29.
The only attack on the genuineness of the
documents is a technical one relating to the so called chain of
evidence. Bennett contends
that it is necessary for the Investigating
Officer to have made an affidavit regarding the chain of evidence.
That is a convenience
afforded to the State. The State however does
not have to
produce
such evidence if the chain of evidence is satisfactorily demonstrated
by other means.
30.
In the present case the chain of evidence
followed to the letter the requirements of the ICCMA, at least from
the time the documents
were presented to the judicial
officer in Hong Kong by the deponent to the
affidavit under the provisions of
s 2(2)
until the seals were broken
in South Africa. While seals of the outer packaging may have been
broken on arrival, the actual seals
placed on the documents by the
Hong Kong officials were only broken after the accused’s legal
representative at the time, on the advice
of their senior counsel, persistently refused to participate in their
being broken; which
of necessity would have resulted in them
inspecting the documents at the time.
31.
The deponents to the affidavits have
identified that these are indeed the business
records of the entities concerned. I did
not understand the accused to dispute that, only that the State
cannot contend that they
also constitute the business records of the
Tigon Group. At this stage the court is not prepared to have these
documents admitted
into evidence as being anything more than the
trade and business records of the entities who purported to have
produced them (in
the discovery sense) through the deponent in
question.
32.
A further contention by the accused is that
they did not examine or consider the
documents and that they could not be
expected to go through 9000 individual pages of documents.
33.
Prejudice is not concerned with whether the
accused did or did not examine and
consider
the documents and affidavits.
It is only concerned with
whether they were given an opportunity to do so but declined. Once
again the accused made the election:
Certain correspondence to and
from the NPA and the accused’s attorney, the late Frank Cohen,
reveals that as far back as
2006 they were given an opportunity to
examine and consider the documents and affidavits obtained under
s
2(2)
of the ICCMA.
It does not lie in the
accused’s mouth to now say that they accepted the advice of
their lawyers not to cooperate. For whatever
ostensible reason,
ultimately it was their decision whether to accept that advice or
not. They cannot be treated as ordinary lay
litigants. The manner in
which they have handled the case and presented argument without legal
assistance attests to that. They
are highly intelligent and astute
individuals who would have weighed up the advice they were given and
considered the consequences.
34.
Correspondence going back to December 2006
and through to April 2007 reveals
that
the accused were given over the years more than enough opportunity to
go through the documents. Even more recently the court
gave them the
opportunity during the lengthy break at the end of last year to
indicate whether they were prepared to make any admissions
regarding
the documents which the State intended to introduce by way of the
ICCMA. On a previous occasion earlier this year the
accused confirmed
that they were fully aware of the potentially serious ramifications
of these documents if they were admitted.
The indictment, the
formulation by Bennett of the request for further particulars to the
indictment and the response, as well as
the State’s advisory at
a very early stage of the trial regarding the basis on which it would
seek the admission of documents
and the present heads of argument
filed by the prosecution, all demonstrated to each of the accused the
clear intention of the
State to introduce the evidence obtained by
the LoRs in this way.
If they did not go
through the documents then it is not because they were denied a
reasonable opportunity to do so. It is because
they elected not to do
so. That does not amount to prejudice.
35.
Bennett also contended that she expected
the documents to be handed up one by one and each would be considered
individually. The
accused were required to
prepare for trial and for this particular
aspect of the trial. It does not matter, therefore, whether the
documents are handed up
one by one or as a single body of trade and
business records. The accused also would have appreciated, by
reference to the State’s
heads of argument, that it wished to
admit the documents
through
the affidavits obtained under the ICCMA, not through the physical
calling of a witness.
36.
It was argued that other documents were
handed up individually, each one was individually considered and in
some cases only provisionally
admitted into evidence. The reason why
they were only provisionally admitted was that another
witness may have to prove their
authenticity or its contents may be challenged through
cross-examination. Here the documents themselves
fall into categories
which allow their admission into evidence
in this manner.
37.
The final issue is whether the documents
are originals or copies. The short answer is that they are the
business and trade records
of the entities in question.
It does not matter if the entity received
or retained an original or a copy; they nonetheless constitute its
trade and business
records.
38.
There is another reason why it does not
matter at this stage. A court does not
always require an original document, in the
sense of the originating document
produced
by the person concerned.
39.
There are a number of reasons for this. The
most obvious is that we have progressed way beyond a document written
by hand which
is conveyed physically by a person whether on foot or
via some form of transport over land, or
by
ship or aeroplane. Moreover the sender is no longer limited to
creating a physical duplicate by means of copy paper or roneo
machine.
There is enough
legislation which allows for most copies to be received into
evidence, particularly if it is a facsimile transmission
or one sent
over the internet. While legislation may have been introduced during
the infancy of such technology, our common lived
experience since
then is that there are sufficient inherent safeguards in electronic
transmissions as to make little difference
between the authenticity
of the document which is transmitted and the one which is received;
and hence the need to classify one
as the original and the other as a
copy has effectively diminished.
Any prejudice can be
dealt with on an individual
ad hoc
basis with reference to any
specific document whose genuineness is challenged or in respect of
which a witness may be specifically
called on to deal with as to
truth of content (and not just as a trade or business record
purporting to be what it claims).
But in the present case
no such challenge has been raised, as the accused were required to,
if it turns out that the evidence demonstrates
that they were
effectively operating these entities in furtherance of the commission
of the alleged offences with which they have
been charged.
Any other factor which in
the opinion of the court should be taken into account,
40.
One of the factors which appears to be
relevant is the probative value of the evidence. Business and trade
records by their nature
have a high probative value
where it is alleged that a white collar
crime has been committed involving the business or financial entity
in question. If regard
is had to the allegations made in
the indictment as read with the further
particulars supplied it is evident that their probative value either
for or against the
State’s case is likely to be significant
either independently or having regard to the totality of other
evidence presented
41.
It
is also self-evident that the persons who deposed to the affidavits
in relation to
the
nature of the documents cannot attend court here. They are residents
of Hong Kong and due to Covid-19 would not be able to attend
this
court now or for
the
foreseeable future, even if they were amenable to doing so bearing in
mind that they are not susceptible to this court’s
jurisdiction.
[2]
42.
The accused submit that I cannot
objectively determine the issue because I am biased against them and
should have recused myself.
The argument is still born
if an appeal court refuses an appeal
against my decision not to recuse; and until
an appeal process is finalised my decision
not to recuse stands.
Insofar as the overall
interests of justice are concerned the SCA, when dealing with this
topic in relation to delay, stressed in
Zanner v Director of
Public Prosecutions, Johannesburg
[2006] ZASCA 56
;
2006 (2) SACR 45
(SCA) at para
21 that the: “
right of an accused to a fair trial requires
fairness not only to him, but fairness to the public as represented
by the State as
well. It must also instil public confidence in the
criminal justice system, including those close to the accused, as
well as those
distressed by the … the crime’
.
SECTION 221 OF THE CPA
AND SECTION 3 OF THE EVIDENCE ACT
43.
The prosecution argued that the documents
were also admissible under the provisions of
ss 221
and
222
of the
Criminal Procedure Act 51 of 1977
,
s 3
of the
Law of Evidence Amendment Act 45 of 1988
as
well as a number of other statutory provisions relating to the
admissibility of documentary evidence. The documents in issue
comprise the various sets of documents obtained under
s 5
of the
ICCMA and at this stage are sought to be admitted only as evidence of
what they purport to be and not as to truth of content.
For this
limited purpose I believe that it is only necessary to determine
their admissibility by reference to the ICCMA.
44.
Although requested to deal with all the
other grounds of admissibility relied on (in
addition to the ICCMA), the question of
whether other legislation applies may require an individual
consideration of the documents
or may depend on a consideration of
the totality of
vive voce
evidence
already tendered or still to be led by the prosecution and whether it
wishes to go further and tender the contents of any
documentary
evidence obtained under the ICCMA as constituting
truth of content.
45.
, I therefore believe that it would be
premature at this stage to consider any of the
other grounds of admissibility raised. This
will not preclude the State from doing so at any later stage.
46.
It is my intention to engage the parties at
the close of the State case to identify which documents remain only
provisionally admitted,
which are sought to be admitted as being
truth of content and whether it is possible at that stage to finally
determine
the
basis
of their admissibility, but
obviously not their weight. The responsibility lies with both parties
to remind me to do so.
ORDER
47.
In this first stage of the enquiry into the
admissibility of the Honk Kong documents and affidavits obtained
under
s 5
of the ICCMA I find that the accused were given sufficient
opportunity to inspect them but failed to do so and that none
of the other objections to the
admissibility of these documents under
s 5
of the ICCMA can succeed.
48.
The documents will however be admitted into
evidence as being what they
purport
to be without further proof;
a.
subject to the accused’s entitlement
to challenge the admissibility of any
such
document, should the State refer any witness to its contents, on
specific grounds relevant to the genuineness of that document
or the
correctness or otherwise of its contents; and
b.
without prejudice to the State seeking to
rely on the truth of content of any
document by reference to any other law
which has been identified in its various Heads of Argument filed of
record; in which event
the accused’s right to challenge the
admissibility of the content of such document for such purpose is
preserved
49.
I accordingly order that:
1.
The documents obtained by the letter
of request and identified in the affidavits of Messrs Gordon,
Lintern-Smith and Mercer are
admissible under
s 5(2)(b)
of the
International Co-operation in Criminal Matters Act,
75 of 1996 (the ICCMA) as being the
trade and business records of the entities from whom they were
obtained in Hong Kong and only
to the extent that that they;
a.
are the trade and business records
of the entity from whom they
were
obtained;
b.
are what they purport to be without
further proof;
c.
were sent and received by the person
purporting to have done so as appears from the contents of the
document itself on or about
the
date reflected thereon
as the date of either despatch or receipt or approximating such date
by reference to the document and any
other relevant document that can
shed light thereon; or were brought into existence on about the date
reflected thereon
2.
The order in para 1 is;
a.
subject to the accused’s
entitlement to challenge the admissibility of
any such document, should the State
refer any witness to its contents, on specific grounds relevant to
the genuineness of that document
or the correctness or otherwise of
its contents; and
b.
without prejudice to the State;
i.
subsequently relying on any other
law identified in its aforesaid Heads of Argument in regard to the
admissibility of
the
documents on the grounds that they are what the purport
to be;
ii.
seeking to rely on the truth of
content of any document by reference to any other law which has been
identified in its various Heads
of Argument filed of record; in which
event the
accused’s
right to challenge the admissibility of the content of such document
for such purpose is preserved.
SPILG, J
The reasons for the
decision were read out during a virtual court hearing on 26 March
2021 save that para 46 was introduced when
para 47 was revised. The
revised ruling was emailed on 13 April 2021
DATES OF HEARING:
24
March 2021
DATE OF JUDGMENT:
26
March 2021
FOR THE STATE:
Adv. EM Coetzee SC
Adv. JM Ferreira FOR
ACCUSED ONE AND TWO:
In person
[1]
The
reference is to Osman at para 23
[2]
Almost
all airlines and governments will not permit persons to fly to or
return from South Africa.