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[2007] ZASCA 169
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Director of Public Prosecution, Western Cape v Killian (690/06) [2007] ZASCA 169; [2008] 1 All SA 537 (SCA); 2008 (1) SACR 247 (SCA); 2008 (5) BCLR 496 (SCA) (30 November 2007)
Links to summary
IN THE SUPREME COURT OF
APPEAL
OF SOUTH AFRICA
REPORTABLE
CASE NO 690/06
In the matter between
THE
DIRECTOR OF PUBLIC PROSECUTIONS, WESTERN CAPE
Appellant
And
PAUL
KILLIAN
Respondent
CORAM: HOWIE P,
FARLAM, MTHIYANE, HEHER et PONNAN JJA
Date Heard: 6 November
2007
Delivered: 30 November
2007
Summary: A
criminal trial is not unfair, fundamentally or at all, simply because
the prosecutor also interrogated the accused
at an earlier statutory
inquiry at which the latter was denied the right to silence and the
right against self-incrimination
Neutral Citation: This
judgment may be referred to as DPP, Western Cape v Killian [2007] SCA
169 (RSA)
J U D G M E N T
HOWIE P
HOWIE P
[1] The issue in this
appeal is whether a criminal trial is unfair, to the extent of being
entirely vitiated, because the person
who officiated as prosecutor
also interrogated the accused in an earlier statutory inquiry, the
provisions regulating which denied
the interrogatee the right to
silence and the right against self-incrimination.
[2] The first respondent,
whom, for convenience, I shall call the respondent, was convicted and
sentenced in a regional court in
respect of one count of fraud and 23
counts of theft. Apart from appealing against his convictions and the
various sentences imposed
he also instituted review proceedings.
The appeal has yet to be heard.
[3] The review
application came before Motala and Bozalek JJ in the Cape High Court.
The learned Judges allowed the application
but granted leave for this
appeal. (Also cited as respondents were the trial magistrate and the
Minister of Justice and Constitutional
Development but they did not
participate in the proceedings in either court.)
[4]
The interrogation was conducted in terms of the Investigation of
Serious Economic Offences Act 117 of 1991 (the Act) which was
subsequently repealed.
[1]
Section 5(6) empowered the Director of the Office for Serious
Economic Offences to summon to an inquiry anyone believed to be able
to furnish information on the subject of the inquiry. The provision
denying the right against self-incrimination was contained
in s
5(8)(a) and the right to silence was effectively denied by s 5(10)(b)
and (c) which, on pain of prosecution, compelled the
interrogatee to
be sworn (or to affirm) and ‘to answer fully and to the best of
his ability’ any question lawfully
put. Section 5(8)(b)
provided that no evidence regarding any questions and answers at such
an inquiry was admissible in criminal
proceedings (save, of course,
if the charge were one of statutory perjury or of contravening s
5(10)).
[5] In
the court below and in the respondent’s heads of argument the
constitutionality of those provisions was challenged.
That
challenge was abandoned on appeal. Also advanced in the respondent’s
heads of argument but not pursued in oral argument
on appeal were,
firstly, submissions purporting to assess the impact of the
aforementioned provisions of the Act on the fairness
of the
interrogatee’s subsequent trial and, secondly, submissions
based on a line of American cases beginning with
Kastigar
v United States
[2]
which constitute authority for the proposition that neither direct
nor derivative use may be made of evidence obtained at an inquiry
such as that which was involved here. It is consequently unnecessary
to evaluate those submissions for present purposes. Obviously
the
implications of compulsory testimony at the inquiry are the same even
if the prosecutor is entirely unconnected with the interrogation
and
the Constitutional Court, in
Ferreira
v Levin NO
[3]
,
declined to follow the
Kastigar
line
of authority in so far as derivative use is concerned.
[6] At the inquiry the
respondent was represented by counsel, Mr R Goodman. The person
who conducted the inquiry was Mr T
Estié, a member of the
office for Serious Economic Offences.
[7] Mr Estié
compiled a report concerning the inquiry. It concluded with a
recommendation that the respondent be prosecuted
on a multiplicity of
charges including those on which he was eventually convicted.
The recommendation was accepted.
[8] Pursuant to the
recommendation the respondent was criminally charged. The prosecutor
at the trial, Mr P Snyman, was briefed
with a copy of the report and
a transcript of the inquiry evidence, including that of the
respondent. The respondent was represented
throughout the trial by Mr
R McDougall, SC. During the trial Mr Snyman fell ill. Because a
substitute other than Mr Estié
would have required
considerable time to become sufficiently acquainted with the case,
the prosecuting authority decided, in order
to avoid prejudicial
delay to the respondent, to assign the continuation of the
prosecution to Mr Estié. The latter
completed the State
case and cross-examined the respondent when he testified in his
defence.
[9] In his founding
affidavit in support of the review the respondent claimed that the
trial was unfair for the following reasons:
‘
19.1
I had no right to refuse to answer any question at the interrogation.
If I had refused, the person who had to decide if I must
furnish an
answer to such question was the person asking the question, Advocate
Estié. He was both “the judge and
jury”. No
independent arbitrator was appointed to whom I could have appealed to
stop Advocate Estié eliciting answers
from me unfairly.
19.2
I was the target of the inquiry conducted
by Advocate Estié. I was called upon to answer the questions
of Advocate Estié
after the matter had been fully investigated
by him. As can be seen from the record of such interrogation, the
questions put to
me were not aimed at investigating the facts but
were aimed at eliciting in detail, and did elicit in detail, my
defence to the
charges. Such information extracted from me guided the
prosecution in the presentation of its case and in the
cross-examination
of myself during the criminal trial.
19.3
I had to answer the questions posed to me
without having knowledge or sight of the evidence against me and
without having had legal
advice on such evidence. Numerous
admissions were extracted from me during the interrogation, which
admissions were made
without full knowledge of the facts and which
then carried a criminal sanction if I later wanted to amend or change
such admissions.
19.4
During my cross-examination at the trial,
evidence obtained during Advocate Estié’s inquiry and
not presented during
the State case was put to me by Advocate Estié,
unfairly I submit. I refer in this regard to the cross-examination
relating
to what Mr Hewat is purported to have said to Advocate
Estié.
19.5
When Advocate Estié cross-examined
me during the criminal trial, I understood that he was questioning me
with the full knowledge
of what had transpired during the inquiry and
with the knowledge of the answers he had extracted from me. His
understanding of
my defence case was unique as he knew in advance
what the answer to his question would be. Furthermore, because I had
given answers
at the inquiry without knowing the full ambit of the
evidence, such answers were also not full and complete. I was faced
however
with the dilemma during cross-examination at my trial that if
I changed my evidence at all I would be faced with criminal sanctions
and my credibility would suffer. I believe that the Regional
Magistrate’s findings on my credibility resulted from my
dilemma.
19.6
I submit that my interrogation by Advocate
Estié was geared towards a prosecution and as I was the
pioneer of the scheme
that was the subject of his inquiry I was
therefore more than a suspect; I was the person against whom the
State was building a
case. The search and seizure of all my
documents, the fact I was called in for questioning right at the end
of the investigation
and the type of questions posed to me, prove
this.’
He went on to say in the
next paragraph:
‘
20.
The issue of Advocate Estié becoming a prosecutor in the
matter was never raised or discussed with me during the
trial by my
then counsel or attorney.’
[10] Counsel for the
respondent at the inquiry raised no objection or complaint during the
interrogation that the questions, or
the manner in which they were
put, were unfair.
[11] When Mr Estié
took over the prosecution no objection was raised against his doing
so. Nor was any objection made at
the start, or even at any time
during, the respondent’s cross-examination, either with regard
to Mr Estié’s
role as prosecutor or in relation to
the content or manner of his questioning.
[12] When, during the
trial, Mr Estié sought to cross-examine the respondent on
evidence at the inquiry given by someone
not called as a witness in
the trial, Mr McDougall successfully objected to that line of
questioning. The respondent was accordingly
protected from any
potential unfairness inherent in what was sought to be put.
[13]
The trial magistrate made credibility findings adverse to the
respondent but despite the latter’s assertions in para
19.5 of
his founding affidavit
[4]
it has
not been demonstrated, or alleged (other than the belief referred to
in the last sentence of para 19.5), that any of such
findings were
the product of cross-examination based on the respondent’s
inquiry evidence or attributable to Mr Estié’s
knowledge
of such evidence.
[14]
In observance of the prohibition in s 5(8)(b) of the Act against
direct use of the inquiry evidence in the trial, there was
indeed no
such use. Nor, bearing in mind the
dicta
in
Ferreira
v Levin NO
[5]
concerning derivative use subject to the trial court’s role in
determining the fairness of such use, was there any derivative
use
made, or even sought to be made. That is to say, no evidentiary
derivative use. What the defined issue may well be said to
encompass
(and I shall revert to this) is whether there was what one might call
non-evidentiary derivative use, in so far as Mr
Estié was
able, with knowledge of the inquiry evidence, to shape his
cross-examination as far as possible to attack
the respondent’s
credibility and thereby to defeat his defence.
[15] The court below
found in the respondent’s favour that it was grossly irregular
for the prosecution to have had a transcript
of the respondent’s
inquiry evidence and for Mr Estié to have conducted part of
the prosecution case. In the court’s
view those features
vitiated the trial and the respondent’s failure to object
relevantly during the criminal proceedings
was clearly due to his
ignorance that they were irregularities. The reasoning of the court
a
quo
is illustrated by the following passage in its judgment:
‘
In
my view, those two factors, cumulatively at least constituted
irregularities which rendered the trial unfair. It does not require
much imagination or experience to appreciate the immense advantage
gained by a prosecutor who has in his or her possession the
sworn
statement or testimony of an accused or who has previously
interrogated that person in relation to the same subject matter.
My conclusion is reinforced by the fact that the prosecuting
authority, despite its opposition to this application, appears to
share my view. Annexed to applicant’s replying affidavit is an
affidavit by Mr W Hofmeyer the Deputy Director of Public Prosecutions
in charge of the Asset Forfeiture Unit. In countering a challenge to
the constitutionality of section 26(6) and 27 of the Prevention
of
Organised Crime Act , No 121 of 1998, which Act provides for a
process similar to that created by the impugned provisions of
ISEO
and the NPAA, he said the following:
“
Firstly,
the purpose is not to use information acquired from these affidavits
as evidence against the deponent in a criminal case,
except in cases
of perjury. For this reason, the Unit has a policy in terms of which
disclosures obtain pursuant to chapter 5 proceedings
are
strictly
withheld from the criminal investigation and prosecution teams.
This is demonstrated by the inclusion of paragraph 1.20 in the Order
of 13 July 2001 and generally in all other restraint orders.
I repeat
that undertaking herein.”’ (Underlining by the court
below)
[16]
An accused person has a constitutional right to a fair trial.
[6]
The word ‘includes’ in the first line of s 35(3) of the
Constitution indicates that fairness extends beyond the specific
matters listed in the subsection. Fairness must be substantive, not
just procedural.
[7]
It therefore
entails more than the ‘formalities, rules and principles of
procedure according to which our law requires a
criminal trial to be
initiated or conducted’.
[8]
It was the breach of those formalities, rules and procedures which
the legislature had in mind in enacting the provision in s 309(3)
of
the Criminal Procedure Act 51 of 1977
[9]
(and its precursors) and in referring in the proviso to an
‘irregularity’. Long-established case law based on the
proviso has distinguished between an irregularity which vitiates the
whole trial and one which may yet leave proof of guilt sufficiently
established. In the present case what we are concerned with is not,
strictly, whether there was an irregularity within the meaning
of the
Criminal Procedure Act but
whether there was, constitutionally
speaking, unfairness to the respondent in the fact that Mr Estié
acted as prosecutor
and, if so, whether such unfairness was so
fundamental that the trial verdict cannot be allowed to stand.
This is the issue
I have endeavoured to formulate in para [1] above.
[17] Turning to that
issue, and beginning with the findings and reasons of the Court
below, counsel for the respondent did not rely
in this court on the
prosecution’s possession of the inquiry record, or the
suggested ignorance on the part of the
respondent or on the Asset
Forfeiture Unit’s alleged policy. Counsel’s approach was
understandable.
[18] As to the
prosecution’s possession of the inquiry record, the Act’s
primary objective was the investigation and
prosecution of serious
economic crimes. It would have been illogical and self-defeating, to
say the least, having obtained an inquiry
report recommending
criminal proceedings, to have withheld the report and the inquiry
record from the prosecutor. The latter would
surely have required to
be fully briefed so as to make the optimum permissible use of
available evidence and to determine where
to look for further
evidence. Presentation of the prosecution case was inevitably
(and sufficiently) subject to the bar against
direct use of the
inquiry evidence and, further, subject to the trial court’s
control of the use of derivative evidence in
general and derivative
use of the accused’s inquiry evidence in particular. By those
measures fairness in the ensuing trial
was adequately capable of
achievement. The prosecution’s mere possession of the inquiry
record has not been shown to have
prejudiced the fairness of the
trial in fact.
[19] In so far as the
suggested ignorance of the respondent is concerned regarding the
alleged irregularities which the court below
found to have occurred,
this was not something which the respondent alleged in his founding
or replying affidavits. What he said
was that Mr Estié’s
taking over the prosecution was not raised or discussed with him by
his legal advisors. He did
not say it was a matter which never
occurred to him to raise with them or, more specifically, that it was
a matter the implications
of which he was unaware.
[20] Then, as regards the
alleged policy of the Asset Forfeiture Unit, this was a subject which
was raised for the first time in
the respondent’s replying
affidavit. It was therefore not canvassed as an issue in the review
proceedings. What motivated
the alleged policy one does not know. As
far as one can judge the alleged policy might have been influenced by
the intention to
avoid a prosecutor’s potential direct or
derivative use of an accused’s evidence obtained under
statutory, pre-trial,
measures which could have had the effect of
applying pressures affecting, or possibly affecting, its trial
admissibility. If so,
the considerations influencing the policy
would have been the same as those potentially relevant to
fairness in the instant
case. In that event they add nothing to the
issue. If they were based on other considerations, they cannot
assist.
[21] Of the reasons of
the court below there remains the matter of Mr Estie’s dual
role of initial interrogator and subsequent
prosecutor. As I have
indicated, it is that that has given rise to the issue for decision
in this court.
[22] The court below
referred to the ‘immense advantage’ to the prosecutor of,
inter alia, having personally conducted
the prior interrogation. It
is not clear, on the facts of this case, how Mr Estié
was in a better position (an unfairly
superior position, one has to
say) than Mr Snyman, in having conducted the inquiry. The only
possible advantage one can envisage
is that, although not apparent
from the transcript, Mr Estié would have been aware (if they
existed) of instances when the
respondent appeared plainly
uncomfortable or at a loss when specific issues were canvassed, so
that those could be concentrated
upon in cross-examination. However,
it is not readily conceivable that the respondent would not himself
have remembered such occasions
and therefore have been in a position
to brief counsel to object accordingly. In all other respects Mr
Estié would not have
been able to make any better
non-evidential derivative use of the inquiry proceedings than Mr
Snyman.
[23]
It is true that cases might occur in which the accused is unable to
afford legal representation at either the inquiry
[10]
or the trial but that is no argument in favour of an absolute
ban on a dual role. The case of
Ferreira
v Levin NO
makes it clear that derivative use is not absolutely excluded but is
subject to the trial court’s rulings according to what
is fair.
What applies to evidential derivative use must, in my view, apply
equally to non-evidential derivative use. It follows
that in the case
of the envisaged impecunious accused a trial court would be obliged
to exercise extra vigilance to ensure the
maintenance of the required
fairness.
[24]
Counsel for the respondent called in aid certain passages in the
recent Constitutional Court judgment in the case of
Schabir
Shaik v The State
[11]
more particularly in paras 51 to 68. In my view they do not
assist the respondent. The prosecutor in that case did not
interrogate
the accused at a prior statutory inquiry (under the
National Prosecuting Authority Act). The court was therefore not
called on
to decide whether fulfilment of the particular dual role in
issue here would
per
se
have
involved a trial unfairness to the accused. If anything, the judgment
seems to indicate that the determination of unfairness
would depend
on other, factual, considerations, not simply on the fact of the dual
role.
[25]
As counsel for the respondent developed his argument before us, the
thrust of it appeared to be that Mr Estié’s
earlier role
as interrogator robbed him of the impartiality or lack of bias
required of a prosecutor. That seems to me also to
raise an
ad
hoc
issue of fact and not to compel a universal conclusion of procedural
law. In paras 65 to 68 of the Constitutional Court judgment
in the
Shaik
case
[12]
it is explained that additional knowledge and understanding which a
prosecutor obtains in an investigatory position cannot amount
to bias
or prejudice. Rather, having regard to case law, what one would
look for to establish a prosecutor’s lack of
impartiality would
be, for example, the waging of a personal vendetta, impairing the
conduct of the proceedings and the dignity
of the court, or using the
same office as the trial judge’s assessors.
[26]
Counsel for the respondent also referred us to an unreported High
Court review case
[13]
involving a series of prosecutions under prison regulations, where
the same person gave prosecution evidence in one case and prosecuted
in another. The caveat was understandably expressed in the judgment
that care should be taken to avoid the impression that a prosecutor
is biased towards the accused. One would readily agree. However bias
is not
per
se
to be inferred from Mr Estié’s dual role in this case.
[27] To the extent that
the determination of what is fair or unfair in a particular case may
depend on the accused’s subjective
view of the proceedings or
their surrounding circumstances, one cannot expect a court in the
absence of objection by the accused
to guess what that view is if
there are no facts or circumstances which should reasonably prompt
the court to inquire and investigate.
Of course there is no onus on
an accused in this regard and there can be no waiver of the right to
a fair trial. At the same time
the absence of a defended accused’s
objection to the prosecutor’s involvement or the prosecutor’s
cross-examination
is a factor which can reasonably induce the court
to infer that the accused has no intention to allege prosecutorial
unfairness.
No such intention was evinced in the present case. This
is no doubt why counsel for the respondent was driven to submit that
fulfilment
of the dual role of interrogator and prosecutor was
axiomatically unfair.
[28]
Counsel sought to base that submission on cases such as
S
v Moodie
[14]
and
S
v Mushimba.
[15]
The former involved the deputy sheriff of the court concerned being
secluded with the jury, and the latter involved an illegal
breach of
the accused’s attorney and client privilege. Both cases
constitute very obvious examples of circumstances which
rendered the
respective trials fundamentally unfair procedurally at the times at
which they were decided and which would render
them substantively
unfair now. The question remains whether the prosecutor’s dual
role in this case created a substantive
unfairness
per
se.
Neither precedent nor principle persuades me that it did. Whether
fulfilment of that dual role does involve or bring about substantive
unfairness in an ensuing criminal trial will be a matter to be
decided on the facts of each case by the trial court. Unfairness
does
not flow axiomatically from a prosecutor’s having had that dual
role.
[29] The appeal must
consequently succeed and the order of the court below ought to have
been one dismissing the application.
Counsel for the appellant
asked for costs in both courts. Because the respondent sought to
enforce his constitutional right to
a fair trial, and the issue in
both courts was whether that right had been infringed, I think that
he should not be made to pay
the costs. It seems to me that this
approach is consonant with constitutional litigation and
jurisprudence.
[30] The appeal is
accordingly allowed. The order of the court below is set aside and
substituted by the following:
‘
The
application is dismissed.’
CT HOWIE
PRESIDENT
SUPREME COURT OF APPEAL
CONCUR:
FARLAM
JA
MTHIYANE
JA
HEHER
JA
PONNAN
JA
[1]
The repeal was effected by the
National Prosecuting Authority
Act 32 of 1998
which replaced the Act, enacting similar provisions
to those involved here.
[2]
[1972] USSC 160
;
406 US 441
(1972).
[3]
1996 (1) SA 984
(CC) paras 104, 106-9, 133-140, 141-5 and
146-153.
[4]
See para 9 above.
[5]
1996 (1) SA 984
(CC) para 153.
[6]
Section 35(3) of the Constitution reads:
Every
accused person has a right to a fair trial, which includes the right
-
(a)
to be informed of the charge with sufficient detail to answer it;
(b)
to have adequate time and facilities to prepare a defence;
(c)
to a public trial before an ordinary court;
(d)
to have their trial begin and conclude without unreasonable delay;
(e)
to be present when being tried;
(f)
to choose, and be represented by, a legal practitioner, and to be
informed to this right promptly;
(g)
to have a legal practitioner assigned to the accused person by the
state and at state expense, if substantial injustice would
otherwise
result, and to be informed of this right promptly;
(h)
to be presumed innocent, to remain silent, and not to testify during
the proceedings;
(i)
to adduce and challenge evidence;
(j)
not to be compelled to give self-incriminating evidence;
(k)
to be tried in a language that the accused person understands or, if
that is not practicable, to have the proceedings interpreted
in that
language;
(l)
not to be convicted for an act or omission that was not an offence
under either national or international law at the
time it was
committed or omitted;
(m)
not to be tried for an offence in respect of an act or omission for
which that person has preciously been either acquitted
or convicted;
(n)
to the benefit of the least severe of the prescribed punishments if
the prescribed punishment for the offence has been changed
between
the time that the offence was committed and the time of sentencing;
and
(o)
of appeal to, or review by, a higher court
Subsection
(5) adds:
Evidence
obtained in a manner that violates any right in the Bill of Rights
must be excluded if the admission of that evidence
would render the
trial unfair or otherwise be detrimental to the administration of
justice.
[7]
Schabir
Shaik v The State
(unreported) Constitutional Court case 86/06 para 45; [200] JOL
20751(CC)
[8]
S
v Zuma
[1995] ZACC 1
;
1995 (2) SA 642
(CC) para 16, citing
S
v Rudman
1992 (1) SA 343 (A).
[9]
Section 309(3) reads:
‘
The
provincial or local division concerned shall thereupon have the
powers referred to in section 304(2), and, unless the appeal
is
based solely upon a question of law, the provincial of local
division shall, in addition to such powers, have the power to
increase any sentence imposed upon the appellant or to impose any
other form of sentence in lieu of or in addition to such sentence:
Provided that, notwithstanding that the provincial or local division
is of the opinion that any point raised might be decided
in favour
of the appellant, no conviction or sentence shall be reversed or
altered by reason of any irregularity or defect in
the record or
proceedings, unless it appears to such division that a failure of
justice has in fact resulted from such irregularity
or defect.’
[10]
Now in terms of the National Prosecution Authority Act –
see footnote 1.
[11]
See footnote 7.
[12]
See para 24 above.
[13]
GR
Els v FS Gericke and others
,
Cape Provincial Division, judgement delivered on 23 December 1963.
[14]
1961 (4) SA 752 (A).
[15]
1977 (2) SA 829
(A).