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[2007] ZASCA 164
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S v Hammond (320/07) [2007] ZASCA 164; [2007] SCA 164 (RSA); [2008] 2 All SA 226 (SCA); 2008 (1) SACR 476 (SCA) (29 November 2007)
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THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Reportable
CASE NO: 320/07
In the
matter between
NICHOLAS
JAMES HAMMOND
................................
APPELLANT
and
THE
STATE
................................
RESPONDENT
CORAM:
MTHIYANE, LEWIS and JAFTA JJA
HEARD:
16 NOVEMBER 2007
DELIVERED
:
29 NOVEMBER 2007
SUMMARY: Appeal against conviction
and sentence for drug-dealing in terms of
s 5(b)
of the
Drugs and
Drug Trafficking Act 140 of 1992
: whether evidence of a police trap
was admissible in terms of the
Criminal Procedure Act 51 of 1977
.
Appeal against conviction dismissed; sentence reduced from 12 to five
years’ imprisonment, two of which suspended.
Neutral
Citation: This judgment may be referred to as Hammond v State 164
[2007] SCA (RSA)
JUDGMENT
LEWIS JA
[1] In March 2004 the appellant was convicted in a district
magistrate’s court on a charge of dealing in Methcathinone
(Cat)
in contravention of s 5(b) of the Drugs and Drug Trafficking
Act 140 of 1992 (the Drugs Act) and sentenced to 12 years’
imprisonment.
Cat is categorised as an undesirable
dependence-producing drug, listed in Schedule 2, Part 111, of the
Drugs Act. The quantity of
the Cat was established as 3.22kgs. The
High Court, Johannesburg, in April 2006, dismissed an appeal against
both conviction and
sentence. This further appeal is with the leave
of that court. It is regrettable that this court does not have the
judgment of the
high court on appeal, since, because of a technical
error, it could not be transcribed.
[2] I turn first to the appeal against conviction. The appellant was
apprehended on 17 October 2003 with another suspect, the second
accused, by two police officers, Sergeant Tickner and Inspector de
Jager, who had received information that men in a particular Mercedes
Benz car, to be found at a BP Service Station opposite Gold Reef City
in Johannesburg, were in possession of drugs: they were instructed
to
arrest them and duly did so.
[3] The appellant pleaded not guilty to the charge of drug dealing.
The second accused gave a plea explanation in terms of
s 115
of the
Criminal Procedure Act 51 of 1977
, and at the end of the trial was
acquitted. The essential submissions of the appellant before this
court are that his trial was unfair
as the State did not lead all the
evidence available to it, and the appellant had been trapped into
committing the offence by police,
the evidence of the trap being
inadmissible in terms of
s 252A
of the
Criminal Procedure Act.
[4
] The background is briefly the following. The police officers made
statements after the arrest that they had been told by an anonymous
informer that a man in possession of Cat was to be found at a BP
Service Station opposite the Gold Reef City Casino in Johannesburg.
They proceeded to the car where they found the second accused in the
driver’s seat. The appellant approached the car with cooldrinks
in his hands. The police searched the car, finding a sports bag on
the back seat which contained 7 plastic bags of a white powdery
substance, later identified as Cat. The police handcuffed and
arrested the appellant and the second accused.
[5] Before the trial commenced, both police officers provided the
appellant and the court with supplementary statements. These differed
from their original statements in two material respects, which the
appellant argues are significant to the arguments that the evidence
of entrapment by the police should not have been admitted, and that
the conduct of the prosecution and the police was such that he
did
not have a fair trial.
[6] First, the police officers’ statements, which were in
virtually identical terms, save that Tickner’s was in English
and De Jager’s in Afrikaans, referred to an anonymous informer
who had instructed them to proceed to the BP Service Station
and
arrest the appellant and others, whereas in their supplementary
statements they advised that the informer was not anonymous but
in
fact one Captain Kukard, who had died before the trial commenced.
[7] Secondly, both officers made no reference in their original
statements to the presence of an Indian man in the car with the
second
accused and the appellant. They subsequently, in both their
supplementary statements and in evidence, said that the Indian man,
identified
only as Yunus (his name is referred to throughout the
record as ‘Eunice’, but I have assumed that ‘Yunus’
is the correct spelling, although ‘Yunis’ is used in the
appellant’s heads of argument) was in the front passenger
seat
of the car with the second accused. Yunus, they said, was removed
from the scene by one of the officers, Tickner, on the instructions
of Kukard. Both Tickner and De Jager also stated that Yunus (whom
they did not identify further) was a police agent, and that Kukard
had instructed them to release him when the other men were arrested.
Their testimony was also to this effect.
[8] On the day the trial commenced the appellant requested further
particulars to the charge.
It asked:
‘
1
Berus die Staat se saak op lokval getuienis?
2 Was die anonieme beriggewer op
die toneel deel van die polisie optrede, indien nie, wat was die doel
van sy teenwoordigheid op die
toneel?’
The prosecutrix responded:
‘
1
Ad par
1: Die Staat sal nie beweer dat daar van ’n lokval gebruik
gemaak is nie. Indien die getuienis egter sodanige feit bewys,
sal
die Staat ook daarop steun.
b) Ad par 2: Dit is onbekend aan
die Staat.’
[9] The prosecutrix, in her address to the court
before evidence was led, confirmed that the State would not lead
evidence on the
use of a police trap, but that if the defence led
such evidence the State would accept it. She added that the State had
no evidence
that a trap was used – the docket disclosed none
and the police officers who had made statements would testify that
they were
not aware of one.
[10] It transpired during the course of the
appellant’s evidence that there had indeed been a police trap.
The appellant argues
that the police and the State must have been
aware of this, and thus did not come to court ‘with clean
hands’. Before
considering the soundness of this contention,
and whether the evidence of the police trap was admissible in terms
of
s 252A
of the
Criminal Procedure Act, in
that it did not go beyond
affording an opportunity to commit an offence, or that if it did, the
trial court nonetheless had a discretion
to admit it, I shall deal
briefly with the evidence led by the State and that of the appellant.
[11] I have already described the way in which the
appellant and his co-accused were apprehended. Tickner described the
arrest, and
the discovery of the Cat, first. She was cross-examined
on why she had failed to disclose the identity of the informant, and
the
presence of Yunus in the car, in her initial statement. Her
explanation was that the identity of the informer, Kukard, and the
presence
of Yunus, were not revealed initially because both were
involved in investigations into drug dealing that might be
jeopardized if
their identities and status were revealed. Kukard’s
subsequent death enabled the police to reveal his identity and she
had
realized that it had been a mistake to fail to disclose Yunus’s
presence on the scene. She had not known, when apprehending
Yunus,
that he was a police agent, but De Jager had been phoned by Kukard
when at the scene and told to release Yunus who was a police
agent.
Tickner had removed Yunus from the scene.
[12] De Jager confirmed the evidence of Tickner,
and elaborated on the reasons for not disclosing Kukard’s
identity: not only
would it jeopardize investigations into drug
syndicates but it would also endanger his life. He testified that he
had no knowledge
of a police trap or the circumstances leading to his
instruction to apprehend the appellant and the first accused.
[13] As counsel for the appellant argued, the
evidence of the police officers was not entirely satisfactory, and
their initial statements,
which contained false statements and failed
to disclose the presence of Yunus, are to be deprecated. However, the
appellant himself
admitted (despite his plea of not guilty) that he
was involved in a transaction for the sale of Cat, and it is he who
testified as
to a police trap.
[14] His evidence is the basis of the conviction.
Before dealing with the appellant’s involvement in drug
dealing, and the trap,
it should be noted that the second accused’s
plea explanation was confirmed by the appellant. It transpired that
the appellant
had hired him simply as a driver on the day of their
arrest, and that he had no knowledge of the presence of drugs in the
car –
hence his acquittal.
[15] The appellant testified that in 2003 he
shared a house with a friend, Gareth. Gareth was friendly with a Cat
dealer, Tommy Gregory.
The appellant also became a friend of Gregory.
Gareth became involved with a woman known as Roxy, who claimed to be
a prostitute.
Roxy advised them that she knew a brothel owner in
Durban, known as Judy. Judy was interested in acquiring Cat. Judy in
due course
contacted Gareth, and at her instigation Gareth and the
appellant met a man known as Joe. Joe wanted to buy Cat in large
quantities.
Nothing came of this encounter.
[16] Judy then arranged for Yunus to contact
Gareth and the appellant. Gareth at that stage was having emotional
problems and so Judy
preferred to make arrangements with the
appellant. The appellant met Yunus three times near Gold Reef City,
where Yunus was staying.
On each occasion the appellant had been
unable to procure Cat to sell to Yunus. On one occasion, Yunus had
taken him to his hotel
room, and shown the appellant a vast sum of
money to assure him of his serious intention to buy large quantities
of Cat. The appellant’s
failure to produce the drugs
disappointed Yunus, and angered Judy who kept badgering him. On
several occasions she was abusive and
threatening and the appellant
was afraid that he might be harmed by one of Judy’s associates.
[17] The phone calls ceased, however, and when
Judy phoned again and apologized for her behaviour, the appellant
accepted her apology
and was ‘quite happy’. On 17 October
2004 Judy phoned the appellant and said she knew of a source and that
he could collect
the drugs from Fourways, in Johannesburg. He had
previously arranged for the second accused to drive him and they went
to the address
in Fourways given to him by Judy. There was nobody
there. The appellant called Judy and she instructed him to go to Hyde
Park instead.
There he met two men and was given the bag in which the
Cat was found.
[18] The appellant was then instructed to proceed
to Gold Reef City, and then subsequently to the BP Service Station.
There he met
Yunus and his girlfriend and they tested the drugs.
While Yunus’s girlfriend was fetching something from their
hotel room,
the appellant went to buy cooldrinks. On his return he
was arrested by Tickner and De Jager.
[19] The appellant testified that he was not
himself a drug user, but wanted to make money out of the transaction.
He would have received
ten per cent of ‘the deal’ –
some R60 000. In response to a question by the court he frankly said
that he had become
willingly involved in dealing with Judy and Yunus:
had he been able to source the Cat from anywhere else, prior to the
transaction
in issue, he would have done so. He hoped to make easy
money from drug-dealing transactions. He had learned after his arrest
that
both Roxy and Judy were police informers.
[20] The trial court convicted the appellant,
finding that the conduct of the police, as described by the
appellant, did not go beyond
providing an opportunity to commit an
offence, and that the evidence was admissible under
s 252A
of the
Criminal Procedure Act. Section
252A(1) provides:
‘
Any
law enforcement officer, official of the State or any other person
authorised thereto for such purpose
(hereinafter
referred to in this section as an official or his or her agent) may
make use of a trap or engage in an undercover operation
in order to
detect, investigate or uncover the commission of an offence, or to
prevent the commission of any offence, and the evidence
so obtained
shall be admissible
if
that conduct does not go beyond providing an opportunity to commit an
offence
:
Provided that where the conduct goes beyond providing an opportunity
to commit an offence a court may admit evidence so obtained
subject
to subsection (3)’ (my emphasis).
[21] Subsection (2) lists various factors that a
court should have regard to in deciding whether conduct does go
beyond providing
an opportunity to commit an offence.
1
Subsection
(3)(a) provides that where a court finds that the conduct in question
has gone beyond providing an opportunity to commit
an offence ‘the
court may refuse to allow such evidence to be tendered or may refuse
to allow such evidence already tendered,
to stand, if the evidence
was obtained in an improper or unfair manner and that the admission
of such evidence would render the trial
unfair or would otherwise be
detrimental to the administration of justice’.
Subsection 3(b) requires a court, when considering
the admissibility of the evidence, to weigh up the interest of the
public against
the ‘personal interest of the accused’.
The subsection lists numerous factors to be taken into account in the
process
of determining these respective interests.
2
[22]
Section 252A
, introduced into the
Criminal
Procedure Act in
1996, does not create a special defence of
entrapment: it creates an evidentiary rule, and the court is given a
discretion as to
whether to admit evidence of conduct that does go
beyond providing an opportunity to commit an offence. The appellant
argues that
the conduct of the police did indeed go beyond providing
an opportunity to commit the offence, and the State did not come to
court
‘with clean hands’.
[23] In respect of the latter contention the
appellant relies on
S v Hayes
3
where the court found that the conduct of the
police officers involved in the trap, who had collaborated with one
another in making
their statements, was irreconcilable with a fair
trial and amounted to defeating the ends of justice. One of the
considerations to
be taken into account in balancing the interests of
an accused with the public interest under
s 252A(3)(iii)
is the
infringement of any fundamental right, including, of course, the
right to a fair trial under s 35(3) of the Constitution.
[24] The appellant contends that the conduct of
Tickner and De Jager, in making false statements, and of the
prosecution in failing
to adduce the evidence of the police agents or
informers who set up the trap, rendered the trial unfair. But in
Hayes
the
court held that the true enquiry was whether the conduct of the
police had been so fundamentally unfair that the accused’s
right to a fair trial had been frustrated. In my view, the dishonest
conduct of Tickner and De Jager in the making of their initial
statements is to be condemned. But it related only to the arrest of
the appellant, the identity of the informant and the presence
of
Yunus at the scene of the arrest. They had nothing to do with the
trap, and before the trial commenced they placed the facts known
to
them on record. The failure of the State to adduce the evidence of
the police who were involved in the trap does not in itself
render
the trial unfair: there was nothing in the evidence or in argument to
suggest, contrary to the appellant’s submission,
that the State
suppressed vital or even relevant evidence. I do not consider that
there is any merit in the appellant’s contention
that the trial
was unfair.
[25] That leaves the questions whether the police
conduct went beyond providing an opportunity to source and sell the
Cat, and whether
the trial court had a discretion to admit that
evidence if it did. The appellant submits that once it became clear
to Judy and to
Yunus that the appellant could not obtain Cat himself,
and after Judy had threatened him, her conduct and that of Yunus fell
foul
of several of the provisions of s 252A(2): they had provided the
drug to the appellant, they had induced him with a large reward
(R60
000), and Judy’s threats had made him fear for his safety. The
trial court had not considered all of the 13 factors listed
in s
252A(2)
4
nor determined whether they played any role in the
commission of the offence by the appellant.
[26] The submission in this regard has no merit.
The factors are listed simply as those to be considered in
determining whether the
entrapper has gone further than providing an
opportunity. There is no requirement that each be considered.
Moreover, in this matter
the contention that any of these factors
played a role is not consonant with the appellant’s evidence.
As indicated previously,
he testified that he had willingly become
involved with his friends in attempting to obtain and sell Cat. Had
he been able to obtain
it he would have done so before Judy and Yunus
provided him with information about a source. Although testifying
that he had become
afraid after Judy had threatened him, once she had
apologized he felt comfortable and willingly participated in the
transaction.
He was aware of the risks involved.
[27] As I have said, it is the appellant’s
evidence that led to his conviction, and I cannot see any reason why
it should have
been treated as inadmissible by the magistrate. The
evidence showed that the police conduct did not go beyond providing
an opportunity
to commit an offence. Accordingly it is unnecessary to
consider whether the trial court correctly exercised its discretion
in admitting
the evidence under s 252A(3).
[28] This
court raised with counsel the question whether s 252A renders
inadmissible evidence of a trap tendered by an accused rather
than
the State. But the matter was not fully argued before us and it is
not necessary to decide the issue since I find that the evidence
was
in any event admissible. The appeal against conviction must therefore
fail.
[29] That brings me to the appeal against the
sentence. The trial court imposed a sentence of 12 years’
imprisonment, and this
was confirmed by the court below. It induces
in me a sense of shock and this court must interfere. The appellant
was seduced by police
agents to participate in one transaction where
they provided the drugs. While he was a willing party and entered
into the transaction
because of the financial reward it would bring,
this does not warrant such a heavy sentence. There are, moreover,
mitigating factors.
Apart from the fact of entrapment, the appellant
was frank with the court. He did not evade responsibility for the
offence. Moreover,
he has spent 20 months in prison awaiting trial, a
factor that the trial court said it had taken into account.
[30] However, the offence committed by the
appellant is a very serious one. The consequences for society of
dealing in drugs are severe:
vast quantities of dependence-producing
drugs on the market almost invariably have a detrimental and
irreversible impact on those
who do become dependent. And the
appellant admitted freely to having tried to deal, before he was
trapped, in order to make money.
His offence warrants direct
imprisonment.
[31] The appeal against conviction is thus
dismissed. The appeal against sentence is upheld. The sentence
imposed by the trial court
is replaced with the following:
‘
The accused is sentenced to five years’
imprisonment two of which are wholly suspended for a period of five
years on condition
that the accused is not again convicted of any
offence under the
Drugs and Drug Trafficking Act 140 of 1992
.’
_____________
C H Lewis
Judge of
Appeal
Concur:
Mthiyane JA
Jafta JA
1
The
subsection reads:
‘
(2)
In considering the question whether the conduct goes beyond
providing an opportunity to commit an offence, the court shall have
regard to the following factors:
(a) Whether, prior to
the setting of a trap or the use of an undercover operation,
approval, if it was required, was obtained from
the attorney-general
to engage such investigation methods and the extent to which the
instructions or guidelines issued by the
attorney-general were
adhered to;
(b) the nature of the
offence under investigation, including-
(i) whether the
security of the State, the safety of the public, the maintenance of
public order or the national economy is seriously
threatened
thereby;
(ii) the prevalence of
the offence in the area concerned; and
(iii) the seriousness
of such offence;
(c) the availability of
other techniques for the detection, investigation or uncovering of
the commission of the offence or the
prevention thereof in the
particular circumstances of the case and in the area concerned;
(d) whether an average
person who was in the position of the accused, would have been
induced into the commission of an offence
by the kind of conduct
employed by the official or his or her agent concerned;
(e) the degree of
persistence and number of attempts made by the official or his or
her agent before the accused succumbed and committed
the offence;
(f) the type of
inducement used, including the degree of deceit, trickery,
misrepresentation or reward;
(g) the timing of the
conduct, in particular whether the official or his or her agent
instigated the commission of the offence or
became involved in an
existing unlawful activity;
(h) whether the conduct
involved an exploitation of human characteristics such as emotions,
sympathy or friendship or an exploitation
of the accused's personal,
professional or economic circumstances in order to increase the
probability of the commission of the
offence;
(i) whether the
official or his or her agent has exploited a particular
vulnerability of the accused such as a mental handicap or
a
substance addiction;
(j) the proportionality
between the involvement of the official or his or her agent as
compared to that of the accused, including
an assessment of the
extent of the harm caused or risked by the official or his or her
agent as compared to that of the accused,
and the commission of any
illegal acts by the official or his or her agent;
(k) any threats,
implied or expressed, by the official or his or her agent against
the accused;
(l) whether, before the
trap was set or the undercover operation was used, there existed any
suspicion, entertained upon reasonable
grounds, that the accused had
committed an offence similar to that to which the charge relates;
(m) whether the
official or his or her agent acted in good or bad faith; or
(n) any other factor which in the opinion of the court has a bearing
on the question.
2
The
subsection reads:
(i) The nature and
seriousness of the offence, including-
(aa) whether it is of
such a nature and of such an extent that the security of the State,
the safety of the public, the maintenance
of public order or the
national economy is seriously threatened thereby;
(bb) whether, in the
absence of the use of a trap or an undercover operation, it would be
difficult to detect, investigate, uncover
or prevent its commission;
(cc) whether it is so
frequently committed that special measures are required to detect,
investigate or uncover it or to prevent
its commission; or
(dd) whether it is so
indecent or serious that the setting of a trap or the engaging of an
undercover operation was justified;
(ii) the extent of the
effect of the trap or undercover operation upon the interests of the
accused, if regard is had to-
(aa) the deliberate
disregard, if at all, of the accused's rights or any applicable
legal and statutory requirements;
(bb) the facility, or
otherwise, with which such requirements could have been complied
with, having regard to the circumstances
in which the offence was
committed; or
(cc) the prejudice to
the accused resulting from any improper or unfair conduct;
(iii) the nature and
seriousness of any infringement of any fundamental right contained
in the Constitution;
(iv) whether in the
setting of a trap or the engagement of an undercover operation the
means used was proportional to the seriousness
of the offence; and
(v) any other factor
which in the opinion of the court ought to be taken into account.
3
1998
(1) SACR 625
(O). See also
S v Nortjé
1997 (1) SA 90
(C) at102B-C, decided before s
252A was introduced, but where the court considered that the police
procedures were fundamentally
unfair.
4
Footnote
1 above.