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[2007] ZASCA 91
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S v Balkwell and Another (315/06) [2007] ZASCA 91; [2007] 3 All SA 465 (SCA) (20 June 2007)
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REPUBLIC
OF SOUTH AFRICA
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Reportable
Case Number :
315 / 06
In the matter
between
STEVEN BALKWELL
.......................
FIRST
APPELLANT
CLINTON ALAN
BARENDSE
.......................
SECOND APPELLANT
and
THE STATE
.......................
RESPONDENT
Coram : CLOETE,
PONNAN et MAYA JJA
Date
of hearing : 14 MAY 2007
Date
of delivery : 20 JUNE 2007
Summary:
Culpable homicide – appellants
assaulting and causing the death of the deceased – appellants
ought reasonably to have
foreseen that death might ensue from their
assault – sentences of seven years imprisonment appropriate in
the circumstances.
Neutral citation:
This judgment may be referred to as :
Balkwell
v
The
State
[2007] SCA 91 (RSA)
______________________________________________________________________________
J U D G M E N T
______________________________________________________________________________
MAYA JA
/
MAYA JA
:
[1] The Appellants and the first appellant’s wife
(Mrs Lindse Balkwell), who subsequently divorced him, were charged
with murder
and kidnapping in the Regional Court, Durban. The
magistrate acquitted them on both counts but convicted the appellants
of culpable
homicide and sentenced them to each undergo seven years
imprisonment. The appellants appealed against the convictions and the
sentences
to the Pietermaritzburg
High Court.
That court (Patel J, Radebe AJ concurring) dismissed the
appeals in a judgment which has since been reported as
S
v Balkwell and another
2006 (1) SACR 60
(N).
This appeal is with the leave of the court below.
[2] Much of the evidence is either common cause or
undisputed. Mr Michael Burke (the deceased) disappeared on the night
of 2 November
1999 after leaving a friend’s flat in the company
of the appellants and Lindse. His body was found in a gorge about a
week
later, pursuant to a pointing out made by the first appellant.
Prior to his death, the deceased, who had a drug dependency, was
employed
by the Balkwells as a sales representative at their
photo-lab in Westville. On 1 November 1999 he misappropriated a sum
of R17 000,
00 from the photo-lab and disappeared with the business
keys. The next day he did not report for work. The first appellant
conducted
a search for him and was that afternoon put in touch by his
au pair
, Kirsty
Henderson, with Mr Lance Mather who allegedly knew the whereabouts of
the deceased. Mather accompanied the first appellant
to Mr Mark
Ashmore’s flat in Paradise Valley. Ashmore denied the
deceased’s presence in the flat. The first appellant
gained the
impression that Ashmore was lying and returned to the flat that
evening with Lindse and the second appellant, a bouncer
at a local
night club. Ashmore once more denied knowledge of the deceased’s
whereabouts. The second appellant demanded entry
into the premises to
search for the deceased and the latter came out and handed over the
keys. The appellants assaulted him and demanded
the missing money.
Consequently, the deceased called his brother-in-law, Mr Claude West,
from Lindse’s cellular phone and asked
him for the money. This
apparently so upset Lindse that she called Kirsty and told her that
the deceased was being assaulted and
was ‘crying like a baby’.
The deceased and West agreed to meet at the residence of the
deceased’s mother shortly
to make arrangements for payment. The
appellants, Lindse and the deceased left the flat and walked to the
parking lot. There, the
appellants once more assaulted the deceased,
who thereafter lost consciousness. The appellants loaded him into
Lindse’s car
with the intention of taking him to hospital. On
the way, the deceased defecated in the car and it appeared that he
had died. His
body was thrown down a gorge in Botha’s Hill,
Camperdown. A post mortem examination conducted on his body could not
establish
the cause of death by reason of the advanced state of
decomposition in which it was found.
[3] The nature and severity of the assault were in
dispute. Several witnesses were called to adduce evidence on behalf
of the State
and Lindse and the appellants testified on their own
behalf. A pathologist, Professor Botha, also testified on the second
appellant’s
behalf in support of the appellants’ defence
that the assault inflicted on the deceased was not of a serious
nature and could
not have caused his death.
[4] Only two of the State witnesses, Ashmore and Mr
Nkqubeko Jinineka, a security guard posted at the entrance of
Ashmore’s
apartment complex on the night of 2 November, claimed
to have witnessed the assault which, as indicated above, occurred in
two stages
– on the veranda of Ashmore’s flat and,
thereafter, in the parking lot. According to Ashmore, the deceased
had arrived
at his flat on 1 November. He complained that he was
having domestic problems and needed time and space to think. As was
their wont,
they indulged in drugs - ecstasy and dagga and the
deceased also consumed cocaine. The deceased slept at the flat and
remained there
until the following day. On Ashmore’s return
from work that afternoon, they shared a dagga cigarette. It was on
the instructions
of the deceased, who seemed scared by the visit,
that he told Mather that the deceased was not present. The deceased
readily cooperated
with the appellants on their arrival and handed
the keys over. They demanded money. The second appellant grabbed the
deceased and
shoved him against a wall at the veranda and told him
that the Balkwells had ‘paid him good money to beat him up and
get their
money’. As Ashmore went into the lounge, he heard a
slap. The deceased cried out in pain. Ashmore returned to the door
and
saw the first appellant kick the deceased above the right hip. He
went to talk to his girlfriend in the bedroom and on his return
to
the doorway he heard a hard, dull noise. Again, the deceased cried
out in pain. He saw him lying against the wall talking on a
cellular
phone which did not belong to him. He had a swollen eye and was
bleeding from his lip. A nearby pot plant was broken and
there were
blood spots on the floor. At his request, the first appellant and his
companions left with the deceased. That was the
last time he saw the
deceased alive.
[5] Jinineka’s version was to the following
effect. He observed two men and a woman (identified in the
proceedings as the appellants
and Lindse) enter the premises, having
left their vehicle outside the entrance, about 20 metres from his
post. In accordance with
the rules of the complex, the first
appellant, as the driver, entered their vehicle’s registration
numbers and appended his
signature in the access control register -
both entries later turned out to be false - to gain access to the
premises. About 20 minutes
later, they reappeared in the company of a
man whom he had seen in the complex from the previous day (the
deceased). Upon reaching
their vehicle, the first appellant punched
the deceased several times whilst the hefty second appellant also
tried to assault the
deceased but was impeded by the first appellant.
The deceased tried to ward off the blows. He fell to the ground and
the second appellant
started kicking him all over his body. The first
appellant also kicked him several times at this stage. During this
assault, the
deceased merely turned over on his side and was kicked
on the back. The appellants raised the deceased to a sitting position
and
he noticed that he was bleeding on his face. The first appellant
approached Jinineka with a bucket and asked for water which the
latter provided. The first appellant washed the deceased’s
face. The appellants loaded the deceased in their vehicle and they
left. Lighting was good in that area and his visibility was not
impaired in any way. He did not intervene because the incident
occurred
outside his premises.
[6] Two inspections
in loco
were
subsequently conducted at the scene, the first one during the day and
the second at night in an attempt to recreate conditions
similar to
those which prevailed on the night in question. The inspections
established, even though one of the lights in the vicinity
no longer
worked and the weather was cloudy, that Jinineka’s view would
not have been impeded from his post. In the altered
conditions,
however, colour perception was not possible and could be
distinguished only in terms of ‘light’ and ‘dark’.
Only arm and leg movements of people could be perceived and nothing
at all could be seen on the left rear end of the vehicle where
he
said the assault started.
[7] Four pathologists, including Prof. Botha, prepared
post mortem reports in the matter although only two of them, Dr
Naidoo and
Dr Aiyer attended the two post mortem examinations which
were conducted on the deceased’s body. Prof. Botha and Dr
Perumal,
who was called by the State, actually testified and both
relied on Dr Naidoo’s report for their opinions. According to
his
report, Dr Naidoo observed the following injuries on the
deceased’s body - subcutaneous and intramuscular bruising at
(a) the
dorso-ventral aspect of posterior left mid-forearm, (b) the
medial aspect of the left upper arm, and (c) the right chest wall
laterally;
and (d) a fractured bony nasal aperture. There was also a
deep red or purple discolouration on the scalp tissue over the vertex
of
the skull, but it could not be conclusively determined if it
‘represented deep bruising of the scalp or deep haemolytic
staining
from decomposition other than that the naked eye examination
is suggestive of bruising’. He further recorded heavy maggot
infestation
with skeletonisation of the face and neck. His conclusion
was that the cause of death could not be ascertained from the autopsy
alone
due to advanced decomposition.
[8] Dr Perumal endorsed Dr Naidoo’s observations
and conclusion but added, similarly to Dr Aiyer, that ‘…however
closed head injury must be strongly considered as the cause of
death’. In his opinion, the bruises indicated blunt force
injury;
the bruises on the arm, by reason of their location, were
consistent with defensive injuries sustained usually in an attempt to
protect
the face and head and the discoloration on the scalp, because
it was focal, was suggestive of a bruise. He conceded that he relied
substantially on the witness statements made available to him (among
which was an affidavit to which the first appellant had deposed
for
purposes of bail in the lower court, to which I will return later in
the judgment) to reach these conclusions.
[9] The appellants’ account of the assault in the
flat did not differ from Ashmore’s version. The first appellant
said
that he punched the deceased only twice in the chest and nudged
him on his knee with his foot at the flat to make him realise the
seriousness of the situation. He denied that the deceased had a
swollen eye or bled at any stage, even when they left the flat, an
aspect which both his co-accused however conceded. On his version, he
fetched the water for the deceased to clean himself up as he
was
perspiring heavily. He threw the water over the deceased’s head
because he made a flippant remark. He disavowed the contents
of his
bail affidavit in which he blamed his co-appellant for the deceased’s
death. He said that he did not see the second
appellant (whom he took
along only as a precaution because that area was ‘notorious’)
assault the deceased in the parking
lot. He merely heard a scuffle as
he was busy talking to Lindse and, on turning, saw the deceased on
his knees. Thereafter, when
he was putting the bucket back in the car
boot, he heard a thud and assumed from the deceased’s
subsequent fall, the guttural
noise he made and his subsequent loss
of consciousness that the second appellant had kicked him on the
head. The second appellant
checked the deceased’s pulse and
said he should be taken to hospital. Along the way, when it appeared
that the deceased may
have died, he and Lindse called the second
appellant. He met them on the roadside and gave them cocaine. He
advised them to wash
it down the deceased’s throat and dump his
body down Kloof Gorge. Thereafter, he established that the deceased
had died by
shining a torch in his eyes and threw the body down a
gorge out of panic.
[10] The second appellant admitted that he grabbed the
deceased by his clothing and, without letting him go, pushed him
against the
wall. He slapped him on the face. He slapped him again
but the deceased anticipated the blow and ducked. The deceased lost
his balance
and fell, hitting the pot plant in the process. At the
parking lot, he slapped the deceased twice and kicked him on the
thigh to
make him rise from his haunches. The deceased instead
flopped back into a sitting position. He ‘shoved’ him on
the shoulder
with his foot. That is when the deceased made the
strange noise and fell on his back. He felt for his pulse and found
that it was
unusually rapid. He told the Balkwells to take him to
hospital and drove home. He assaulted the deceased only because of
his nonchalant
attitude. The Balkwells had not paid him any money. He
denied meeting them after leaving the scene; this despite a version
put to
the first appellant by his attorney that he did meet them but
only suggested that they should dump the deceased at a hospital and
concoct a story for the hospital staff that he was suffering from a
drug overdose.
[11] The last defence witness, Prof. Botha, concluded
that in view of the deceased’s history of drug abuse he died
‘as
a result of the interaction between substances of abuse and
physical and psychological stress, and not as a result of the assault
alone’. Significantly, however, he conceded under
cross-examination that the deceased would not have died had he not
been assaulted.
This portion of the evidence may be given short
shrift. The difficulty it presents, without even delving into its
merits, is that
it was adduced at very short notice, at a late stage
of the proceedings, towards the conclusion of the defence case. It
was not put
to any of the relevant State witnesses, in particular Dr
Perumal. It is apparent on the record that the State prosecutor was
unable
to effectively cross-examine the relevant defence witnesses on
the factual basis of the report because she had not even had an
opportunity
to consult with her witness. The duty to recall such
State witnesses, in order for this late version to be put to them,
clearly rested
on the defence at this stage. This was not done. The
State was thus deprived of an opportunity to properly challenge the
factual
basis of his report.
[12] Trial by ambush is to be frowned upon no less when
it occurs at the instance of the defence. In those circumstances
ordinarily
one very rightly would hesitate to have regard to such
evidence. In this case, however, it is perhaps unnecessary to adopt
such a
stance. This is so because on Prof. Botha’s evidence it
must be accepted that but for the assault, the deceased would not
have
died. Furthermore, his thesis is not supported by the evidence
viz. Ashmore’s undisputed version that the only recreational
drug the deceased had consumed on 2 November was the dagga cigarette
which they shared. It ignores as well the first appellant’s
evidence that the deceased, whom he had previously seen under the
influence of narcotics, appeared sober. The toxicology test which
was
run on samples taken from the deceased’s body registered no
trace of narcotics. Of course, one says this mindful of the
fact that
the purpose of the test is not entirely clear on the record and it is
also uncertain whether it could yield any reliable
results in view of
the state of decomposition.
[13] In convicting the appellants, the magistrate made
adverse credibility findings against the appellants and rejected the
defence
version. She accepted Jinineka’s evidence, despite a
finding that he was not ‘the most satisfactory or reliable of
witnesses’,
on the reasoning that ‘the gist of his
evidence regarding the actual assault did not falter materially and
corroborates to
a large extent what [the first appellant] said in his
bail application about what transpired at the parking lot’. She
found
that the appellants had a prior agreement to assault the
deceased and concluded that they not only caused the deceased’s
death
but ought reasonably to have foreseen that death might ensue
from their assault.
[14] The court below upheld the magistrate’s
findings. It further found that the contents of the bail affidavit,
although not
directly admissible against the second appellant,
provided corroboration for Jinineka’s evidence relating to the
nature and
extent of the assault; that the presence of the nose
fracture corroborated the serious assault to the face and head and
that the
conclusion reached by Drs Aiyer and Perumal regarding the
cause of death and the intense maggot infestation in the head were
facts
consistent with Jinineka’s version and the bail
affidavit.
1
[15] I deal first with the first appellant’s
contentions concerning the bail affidavit. Before us, it was
contended on his behalf
that the trial court and the court below
erred in relying on the contents of the affidavit - which was
tendered into evidence by
his legal representative as an admission in
terms of sec 220 of the Criminal Procedure Act 51 of 1977 (the Act) -
in deciding the
appellants’ guilt. The admission of the
affidavit constituted a misdirection, so the argument went, because
the first appellant
had not been warned either by his counsel or the
magistrate that the affidavit might be used at the subsequent trial
in accordance
with sec 60(11B)(c) of the Act.
2
[16] In the bail affidavit, the first appellant set out
the facts leading to the deceased’s death and the role played
by the
second appellant (who was accused no. 3 in the trial) in the
assault, saying,
inter alia
:
‘
Accused No. 3…assaulted
[the deceased] both at the flat and near the parking area downstairs,
by punching him and kicking him
repeatedly. During that evening I
only punched the deceased twice in the area of his chest…accused
No. 3 kicked the deceased
on the head…I noticed the deceased
perspiring heavily…Accused No. 3 rushed at the deceased and
started kicking him
in a most violent manner on the head. The
deceased then fell backward and made a strange sound. I feared that
the deceased was either
very severely injured or he had died.’
Referring to these allegations in his statement in terms
of sec 220 of the Act, the first appellant said that ‘[w]hile
the events…are
not as such in dispute, the order of the events
and the actual events are in need of some clarification and
explanation which I shall
do during the trial’. As indicated,
he disavowed these allegations in evidence albeit stating in his
cross-examination that
only the chronology of the events was in
dispute.
[17] The voluntary tender of this affidavit into
evidence is most perplexing in view of the disavowal of its contents
by its maker.
The first appellant’s counsel was unable to
satisfactorily explain this step on his part which, in my view, was
wholly unnecessary
and rather imprudent in the circumstances. Once
the affidavit was introduced in terms of sec 220 of the Act, the
State was relieved
of proving the allegations so admitted by the
first appellant and it thus constituted sufficient proof against him
of those facts
subject, of course, to the clarification referred to
by him in his plea explanation. The affidavit was thus properly
admitted into
evidence against the first appellant. Section
60(11B)(c) has no application where the affidavit is tendered, not by
the State, but
by the accused.
[18] Nevertheless, in view of the first appellant’s
stance relating to the affidavit’s contents at the trial
regarding
his co-appellant and the State’s failure to have it
admitted against the second appellant in terms of s 3(1) of the Law
of
Evidence
Amendment Act of 45 of 1988
3
(the 1988 Act) to bring it within one of the recognised
exceptions, it remained hearsay, and is not evidence against the
second appellant.
It must thus be
wholly left out of account in evaluating his guilt.
4
The court below erred in taking it into account against
him by finding that it corroborated Jinineka’s version.
[19] The appellants further challenged their convictions
as follows. It was argued, first, that the magistrate misdirected
herself
in convicting them on the evidence of an unreliable, single
witness, Jinineka, in the absence of any corroboration (particularly
medical evidence supporting the assault he described and establishing
the cause of death) and second, that the appellants could not
have
foreseen the possibility of death from what they described as a
trivial assault.
[20] In addition to finding that the bail affidavit
provided corroboration for Jinineka’s evidence (and the
disavowed affidavit),
the court below said that ‘[t]he opinion
of both Dr Aiyer and Dr Perumal that a head injury was the likely
cause of the death
and, further, that the maggot infestation was
concentrated in the area of the head because of possible open wounds
on the head is
consistent …with the evidence of Jinineka’.
This finding is not supported by the evidence. According to Prof.
Botha,
maggots are ordinarily attracted to moist areas such as the
nostrils, the eyes and the mouth and develop eggs in those areas
within
a few hours of death. As he put it, the brain is ‘their
food store’ so it is not unusual that they were concentrated
in
the deceased’s head, especially in the presence of the bleeding
wounds on his face. Dr Perumal himself conceded that the
bleeding lip
would attract the flies and account for the concentrated infestation
in that area. Accordingly, the court below misdirected
itself in this
regard.
[21] Be that as it may, the court below was, in my view,
correct in upholding the magistrate’s rejection of the
appellants’
version. They were both appalling witnesses and
their entire account of the events was riddled with contradictions.
The second appellant
went so far as to dispute versions put to
witnesses by his own attorney.
[22] It is apparent from the
magistrate’s judgment that she was alive to fact that Jinineka
was a single witness and would thus
have approached his evidence with
the necessary caution. It is
so that
contradictions arose in his evidence on the fine detail of the
events, but he, clearly was not a dishonest witness, as Ms
Hemraj,
the second appellant’s counsel, properly acknowledged.
Importantly, he was not swayed on the essence of his account
of the
assault – that the deceased was punched and kicked by both
appellants. This much he would have been able to distinguish
even
with lighting poorer than that available on the night in question and
regardless of the position of the parties in relation
to the vehicle.
As the inspection
in loco
established, he would, at the very least, have been able
to perceive the vehicle and distinguish between the two appellants
and their
motions in relation to the deceased. It is further well to
bear in mind that no contrary version was put to him on the first
appellants’
behalf in this regard.
[23] Most crucial in this enquiry is the fact that when
the group left the flat the deceased was, save for a split lip and
bruised
eye, in good health and walked to the car unaided. This begs
the question what could have happened to suddenly render him
unconscious
and lead to his death shortly afterwards. The answer to
this question, in my view, emerges from the evidence of Jinineka
corroborated
by the further injuries which must have been inflicted
on the deceased at the parking lot (as counsel properly conceded in
argument)
and which were found at the post mortem, namely the
fractured nose, bruising to the left upper and lower arm and bruising
to the
right side of the chest.
[24] It is beyond question on the evidence that the
assault was the
sine qua non
of
the death. As the magistrate correctly pointed out, this finding is,
above everything else, supported by no less than the concession
made
by the defence’s own pathologist. There is no reason why it
should not also be treated as the legal cause of death. I
am, thus,
unpersuaded that the magistrate erred in this regard.
[25] It remains to consider whether the appellants ought
reasonably to have foreseen the possibility of death resulting from
their
conduct. In addition to the deceased’ sudden collapse at
the parking lot, a number of factors, when viewed cumulatively,
overwhelmingly
support the inference that the assault was anything
but trivial (and unplanned) - Mather’s testimony that a visibly
angry first
appellant had repeatedly threatened to teach the deceased
a lesson and ‘fuck him up’ such that he feared for the
deceased’s
welfare but had no means of contacting him; the
first appellant’s conduct of entering false information in the
complex’s
access control register (clearly to avoid
identification); Ashmore’s version that the second appellant
told the deceased that
the first appellant and Lindse had paid him
good money to beat him up; Ashmore’s evidence about the
deceased’s cries
of pain, viewed with Lindse’ emotional
report to Kirsty; Jinineka’s evidence of an assault of punches
and kicks perpetrated
by two men, bearing in mind the second
appellant’s ‘imposing build’ as he was described by
his co-appellant and
the fact that he was shod in shoes; the fact
that the first appellant was obliged to fetch water which points to a
condition more
serious than the sweating he suggested.
[26] I am of the firm view, in all the circumstances,
that the appellants ought reasonably to have foreseen that the
deceased could
die from the assault. The finding on their guilt
cannot, therefore, be disturbed.
[27] Regarding sentence, no specific misdirection was
relied on. It was contended on behalf of both appellants that the
sentences
imposed by the magistrate are too harsh in view of the
‘fairly minor assault’ inflicted on the deceased as
evidenced
by the injuries observed on his body. As I have said, the
evidence shows that the assault was not trivial. Sentences of
correctional
supervision or other non-custodial options were
suggested in respect of both appellants. I do not agree with these
suggestions. There
are undoubtedly mitigating factors emanating from
the appellants’ personal circumstances which are set out in the
comprehensive
pre-sentence assessment reports tendered in evidence on
their behalf in mitigation of sentence and the magistrate’s
judgment
on sentence. These include the facts that the first
appellant has two minor children and both appellants are first
offenders who
pose no danger to society and are in gainful, steady
employment. As the magistrate correctly pointed out, it is indeed so
that the
deceased, who had previously stolen a large sum of money
from the Balkwells and was forgiven, had set off the chain of
unfortunate
events. The first appellant’s anger and panic at
losing a substantial sum of money is understandable. This, however,
gave the
appellants no right to take the law into their own hands.
[28] Notwithstanding these mitigating circumstances, the
offence of which the appellants were convicted is a serious one and
there
are in my view, particularly aggravating features which must be
taken into account in the determination of appropriate sentences
–
the premeditated and purely gratuitous assault on the deceased who
offered no resistance at all and co-operated fully, readily
handing
over the business keys and arranging promptly to repay the money; the
second appellant’s ruthless suggestion to disguise
the cause of
death by forcing cocaine down his throat and ‘dump’ his
body; the callous disposal of the deceased’s
body; the first
appellant’s unyielding refusal to reveal the deceased’s
whereabouts to the latter’s mother despite
her repeated
entreaties and their brazen lack of candour in court. Having regard
to the totality of the circumstances, sentences
of correctional
supervision or any other non-custodial alternatives would be grossly
lenient. In my view, although the sentences
imposed by the magistrate
are rather robust, it cannot be said that they are so inappropriate
as to justify interference by a higher
court.
[29] In the result, the appeals are dismissed.
_______________________
M.M.L.
MAYA
JUDGE OF
APPEAL
CONCUR:
CLOETE JA
PONNAN JA
:
[30] I have had the benefit of reading the judgment of
Maya JA and feel constrained to comment on an aspect alluded to in
her judgment.
My learned Sister would have the prosecution invoke
s 3
of the
Law of Evidence Amendment Act 45 of 1988
in a matter such as
this. Although offered as no more than a theoretical possibility, it
nonetheless evokes strong feelings of disquiet
in me sufficient to
warrant my expressing myself, albeit briefly, on the issue.
[31] At common law an extra-curial statement of one
accused was inadmissible against a co-accused. (See
S
v Baartman
1960 (3) SA 535
(A).) This rule
applied to both admissions and confessions and was given statutory
force in respect of the latter by
s 219
of the
Criminal Procedure
Act. The
reason for this rule was not solely the hearsay nature of
such an extra-curial statement, although that in itself would
constitute
sound reason. It has always been stated that an admission
made by one person is normally irrelevant when tendered for use
against
another. Against the backdrop of the Constitution it perhaps
can now be argued that the receipt of such evidence may well have
fair
trial implications as well.
[32] My anxiety stems from the seeming absence, in
certain instances, of any legal armoury at the disposal of a person
who is implicated
by an extra-curial statement of which he is not the
maker, to counteract the threat posed by it during the course of a
subsequent
criminal trial. If having made an extra-curial statement
that implicates Y, the maker of the statement (X) disputes its
admissibility,
an admissibility trial would ensue to determine
whether or not the contested statement is indeed admissible. To
discharge the onus
resting upon it, namely to prove the statement
admissible against its maker X, the prosecution would have to meet
the fairly stringent
requirements set respectively by
sections 217
and
219A
of the
Criminal Procedure Act. During
the course of the
admissibility trial, Y would ordinarily be but a passive bystander.
If the statement is ruled admissible but its
contents disavowed by X
when he testifies, how - it must be asked - does Y even begin to
cross-examine X. In those circumstances
it may well prove tactically
foolhardy for Y to put any questions to X, much less to test by
cross-examination the veracity of the
statement. The only reason, it
seems to me, for having fewer safeguards available to a person who is
not the maker of a statement
but who for some reason finds himself
implicated by its contents, is because it has historically been
accepted that such a person
is free of any risk from such a
statement. Where, however, a statement might ultimately weigh equally
in evidence against the maker
who has implicated himself in it, and
against another also implicated by it, to grant greater protection to
the former than to the
latter, would be irrational and indefensible.
And yet, that would be the effect of invoking
s 3
in this way.
[33] If however, X had confirmed the contents of his
statement during his evidence, or not having made an extra-curial
statement,
had implicated Y during his viva voce testimony, then not
only could his version be legitimately tested under cross-examination
by
Y, but the cautionary rules relating to the receipt of such
evidence would be invoked by the trier of fact (see
S
v Hlapezula
1965 (4) SA 439
(A) at 440 D-H).
One would have thought that the cautionary rules relating to the
reception of viva voce evidence of accomplices
should apply even more
stringently to their extra-curial statements. But, no such caution
applies to an extra-curial statement that
implicates a co-accused
even though the inherent dangers of fabrication, or substitution,
downplaying and exaggerating of roles,
are no less real. That, in
those circumstances, an extra-curial statement which has to pass a
lower threshold of scrutiny than viva
voce evidence from the same
source could be as damning as the latter is, to my mind,
incomprehensible.
[34] The approach postulated by my learned Sister is not
without precedent. It has its roots in the judgment of this Court in
S v Ndhlovu
2002 (6)
SA 305
(SCA). In my view,
Ndhlovu
too readily dismissed concerns expressed in
S
v Ramavhale
1996 (1) SACR 639
(A), which
cautioned (at 649
c-d
)
that a court should hesitate long in admitting hearsay evidence that
plays a decisive or even a significant part in convicting an
accused
person.
Ndhlovu
makes
no attempt to reconcile the incongruity between the bar created by
s
219
of the
Criminal Procedure Act and
its application of
s 3
of the
Law of Evidence Amendment Act. Moreover
, in dealing with the
constituent parts of
s 3
,
Ndhlovu
offers
no guidance as to how the receipt of the extra-curial admissions
which it allows under that section, should be approached given
the
rationale at common law for their exclusion or what role, if any, the
various common law safeguards should play. In effect it
is as if a
pen has been struck through those well recognised common law
safeguards and they have been summarily jettisoned.
[35] What is envisaged it seems in the case of an
accused implicated by the extra-curial statement of another, is that
he should go
into legal battle without the sword of cross-examination
or the shield of the cautionary rules of evidence. That can hardly
conduce
to a fair trial, as in my view, it impacts in a direct and
substantial way on the fairness of the process. Moreover, how is an
accused
person to regulate his conduct and to make informed choices
about the conduct of his defence? For, surely now his decision to
apply
for a discharge at the close of the prosecution’s case or
to close his case without testifying or to enter the witness box
in
his defence or to call other evidence in his defence may well have to
be informed not just by the evidence implicating him in
the
commission of the offence charged and the strength or weakness of the
prosecution’s case but also by what is contained
in an
extra-curial statement that has in any event been disavowed by its
maker in evidence.
[36] It may well be a fundamental aspect of a fair trial
and the adversarial nature of the proceedings proclaimed by a
criminal trial,
that
s 3
be interpreted to prevent the extra-curial
statement of one accused from being admissible against his
co-accused. That fortunately
for me does not arise for decision in
this matter. I accordingly content myself with the note of caution
that I have sounded. For
the rest I am in agreement with my learned
Sister.
__________________
V M
PONNAN
JUDGE OF APPEAL
1
S
v Balkwell
2006 (1) SACR 60
(N) at
para 43.
2
Section
60(11B)(c)
provides:
‘
The record of the bail proceedings,
excluding the information in paragraph (a), shall form part of the
record of the trial of the
accused following upon such bail
proceedings: Provided that if the accused elects to testify during
the course of the bail proceedings
the court must inform him or her
of the fact that anything he or she says, may be used against him or
her at his or her trial and
such evidence becomes admissible in any
subsequent proceedings.’
3
Section
3 of the 1988 Act provides:
‘
(1) Subject to the provisions of any other
law, hearsay evidence shall not be admitted as evidence at criminal
or civil proceedings,
unless –
(a) each party against whom the evidence is to be adduced agrees to
the admission thereof as evidence at such proceedings;
(b) the person upon whose credibility the probative value of such
evidence depends, himself testifies at such proceedings; or
(c) 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) the probative value of the evidence;
(v) the reason why the evidence is not given by the person upon
whose credibility the probative value of such
evidence depends;
(vi) any prejudice to a party which the admission of such evidence
might entail; and
(vii) any other factor which should in the opinion of the court be
taken into account, is of the opinion that such
evidence should be admitted in the interests of justice.
…
(4) For the purposes of this section –
“
hearsay evidence” means evidence,
whether oral or in writing, the probative value of which depends
upon the credibility of
any person other than the person giving such
evidence;
“
party” means the accused or party
against whom hearsay evidence is to be adduced, including the
prosecution.’
4
See
Vulcan Rubber Works (Pty) Ltd v South
African Railways and Harbours
1958 (3)
SA 285
(A) at 296F;
S v Ralulukwe
2006
(2) SACR 394
(SCA) at
400a.