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[2009] ZAGPJHC 34
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S v Msimango and Another (187/2005) [2009] ZAGPJHC 34; [2009] 4 All SA 529 (GSJ) ; 2010 (1) SACR 544 (GSJ) (27 July 2009)
IN THE SOUTH GAUTENG HIGH COURT
(JOHANNESBURG)
CASE NO: 187/2005
DPP REF NO: JPV 2005/187
In the matter between:
THE STATE
and
MSIMANGO, ZWELITHINI NDUMISO
Accused 1
SINDANE, MENDI OTTIS READY PEDY BEL-AIR
Accused 2
J U D G M E N T
MOSHIDI, J
:
INTRODUCTION
[1]
This judgment deals
exclusively with the issue as to what probative value, if any, must
be attached to the evidence of a witness
who was not completely
cross-examined during a criminal trial, for example where a witness
dies during cross-examination.
THE FACTS IN THE PRESENT MATTER
[2] In this matter, the two accused persons were
charged with nine counts of robbery with aggravating circumstances;
one count
of assault with intent to do grievous bodily harm;
kidnapping; the unlawful possession of firearms and the unlawful
possession
of ammunition. I have already convicted and sentenced the
accused in a separate judgment, in spite of their pleas of not guilty
on all the charges. The two accused persons were
represented
by separate counsel in a rather lengthy and delayed trial.
[3] During the trial, the accused alleged,
inter
alia
, that they were assaulted by the
arresting officers; that their constitutional rights were not
explained; and that their complaints
to the police officers in the
cells at Germiston police station, fell on deaf ears. Several police
officers testified. One of
such police officers, based at the
Germiston police cells at the time, was Insp H G Obisi (Obisi). He
testified. However, his
cross-examination on behalf of the second
accused had not been completed when the witness died during such
cross-examination. More
on the facts of the present matter is
contained in paras [20] and [26]
infra
.
[4] It is so that
both
at common law and statutory law an accused person has the right to
cross-examine any witness called by the prosecution or any
other
co-accused who testifies. S 166(1) of the Criminal Procedure Act 51
of 1977 (the CPA) provides:
“
An accused may cross-examine any witness
called on behalf of the prosecution at criminal proceedings or any
co-accused who testifies
at criminal proceedings or any witness
called on behalf of such co-accused at criminal proceedings, and the
prosecutor may cross-examine
any witness, including an accused,
called on behalf of the defence at criminal proceedings, and a
witness called at such proceedings
on behalf of the prosecution may
be re-examined by the prosecutor on any matter raised during the
cross-examination of that witness,
and a witness called on behalf of
the defence at such proceedings may likewise be re-examined by the
accused.
”
In addition, s
35(3)(i)
of the Constitution of the Republic of South Africa, Act 108 of 1996,
provides that an accused person has the right to
adduce and challenge
evidence. A careful reading of s 166(1) of the CPA invests reciprocal
rights in both the accused and the prosecution
to cross-examine
opposing witnesses, and to re-examine their own witnesses.
Similarly, the right to cross-examine a co-accused
or witness called
on behalf of such co-accused is also extended to both an accused and
the prosecution. The “
Concise
Oxford Dictionary
”, 10
th
ed, defines “
cross-examine
”
as, “
question (a witness called by
the other party) in a court of law to check or extend testimony
already given
”. Similarly,
“
Webster’s Third New
International Dictionary (1993)
”
defines “
cross-examine
”
as “
to examine by a series of
questions designed to check the accuracy of answers to previous
questions; examine closely or repeatedly;
to examine (a witness who
has testified for the other side in a legal action) esp. in order to
disprove testimony already given
”.
[5] The right to cross-examine is trite in our
criminal justice system that curtailing it inappropriately or
interfering with it,
may render a trial unfair, vitiating the entire
proceedings. There is also an obligation on a judicial officer in
criminal trials
of unrepresented accused persons, not only to explain
to such accused persons their procedural rights, but specifically,
the right
to cross-examination. For example, in
S
v Mdali
2009 (1) SACR 259
(C), the
court held that the failure on the part of the magistrate to
adequately explain to an unrepresented accused the right
to
cross-examination; how it should be conducted; the purpose and scope
thereof; and the consequences of a failure to cross-examine,
breached
the accused’s fundamental rights to a fair trial. Indeed, the
importance of the right to cross-examine in any disputed
hearing,
particularly in an adversarial trial system, such as ours, can hardly
be over-emphasised. In Wigmore
On
Evidence,
3
rd
ed. Vol. V, para 1367, the learned author states:
“
Not even the abuses, the mishandlings,
and the puerilities which are so often found associated with
cross-examination have availed
to nullify its value. It may be that
in more than one sense it takes the place in our system which torture
occupied in the mediaeval
system of the civilians. Nevertheless, it
is beyond any doubt the greatest legal engine ever invented for the
discovering of truth.
”
In
Carroll v Caroll
1947 (4) SA 37
(W), at p 40, Henochsberg AJ said:
“
The objects sought to be achieved by
cross-examination are to impeach the accuracy, credibility and
general value of the evidence
given in chief; to sift the facts
already stated by the witness, to detect and expose discrepancies or
to elicit suppressed facts
which will support the case of the
cross-examining party.
”
[6] Having sketched the importance and purpose of
cross-examination, it is necessary to deal with the probative value
of the evidence,
if any, to be attached to the evidence of a witness
who dies during cross-examination in a criminal trial. As stated
earlier,
s 166 of the CPA entrenches the right to cross-examination.
It is settled law that evidence of a witness who gives complete
evidence-in-chief
but thereafter dies or becomes unavailable, for
whatever reason, before any cross-examination, clearly remains
untested completely
and its acceptance would defeat the purpose of
cross-examination. In
R v Ndawo and
Others
1961 (1) SA 16
(N), the three
accused persons were charged with housebreaking and theft in the
magistrate’s court. They were convicted
and duly sentenced.
On review, it appeared from the record of proceedings before the
magistrate, that the State called as a witness,
an 8 year old child
of one of the accused. The witness was warned and gave brief formal
evidence. Thereafter the witness burst
into tears and said that the
police had forced him to make a statement. As the magistrate formed
the view that the child witness
was distressed and frightened to
testify, the magistrate suggested to the prosecutor to dispense with
the evidence of the witness.
The magistrate deemed it unnecessary
that the witness be cross-examined by the accused. In finding that
the denial of the right
to cross-examination was irregular, the
reviewing court, at p 17D, said:
“
Now it seems to us that once there is a
denial of a right of cross-examination of witnesses, that immediately
causes prejudice to
an accused person, and since we do not know what
evidence this witness could have given, we cannot say that there has
not been
a failure of justice.
”
Needless to say that the conviction
s
and sentence were set aside. See also
S
v Wellington
1991 (1) SACR 144
(Nm).
The right of an accused to adduce and challenge evidence in terms of
s 35(3)(i) of the Constitution was reinforced in
S
v Manqaba
2005 (2) SACR 489
(W). In
the latter case, the accused was convicted in a regional court on
three counts of rape. The matter was referred to the
High Court for
sentencing in terms of
s 51(1)
of the
Criminal Law Amendment Act 105
of 1997
. During the trial, the magistrate ruled that the
complainant, a child, could not be cross-examined on allegedly
inconsistent statements
made by her to the police prior to the trial.
The magistrate based his ruling on his belief that the complainant
would have been
traumatised at the time she had made the statements,
and that there may have been discrepancies between what she had said
to the
police officer in her home language and what he had written
down in another language. In setting aside the convictions,
Satchwell
J held,
inter alia
,
that criminal procedure and practice in South Africa were premised
upon the right to a fair trial as enshrined in s 35(3) of the
Constitution of the Republic of South Africa, 1996. That one aspect
of such right was the right to adduce and challenge evidence,
which
necessarily included the right to examine witnesses.
[7] Relating to the issue in the present matter,
the only case law I am aware of, dealing with evidence based on
incomplete cross-examination
are the following. The first is
S
v Motlhabane and Others
1995 8 BCLR 951
(B). In this matter, the accused was charged with murder and
robbery. The State called one Jeanette Seoposengwe (Seoposengwe),
as
a witness. She was one of the victims of the robbery. She gave
evidence-in-chief. Thereafter counsel for the accused commenced
to
cross-examine her. However, before cross-examination was completed,
Seoposengwe died. The defence launched an application
for the
discharge of the accused in terms of s 174 of the CPA, at the
conclusion of the State’s case. The issue to be decided
by the
court was whether any part of Seoposengwe’s evidence could be
taken into account in its consideration of the s 174
application.
After considering Wigmore
On
Evidence
(1974) Vol V, 3
rd
ed. para 1390, Khumalo J expressed the view that a judicial officer
in a criminal case has a discretion to exclude the evidence
of a
deceased witness where full cross-examination has not taken place so
as to ensure a fair trial. This discretion must however,
be
exercised subject to the provisions of the Constitution. Khumalo J,
after granting the application for the discharge of the
accused, held
further that:
“
The test should be whether the opposing
party was given a full opportunity to test the evidence of the
witness.
”
Further: “
That
the accused’s right to challenge the evidence of the deceased
witness had been adversely affected. The witness gave
testimony as
to identification of the accused and on this aspect cross-examination
had not proceeded to a satisfactory degree.
Accordingly the
testimony of the deceased witness had to be disregarded.
”
In dealing with the approach in
S
v Motlhabane and Others (supra)
, the
learned authors in “
The Law of
Criminal Procedure and the Bill of Rights
”,
(Issue 7), para 5 B48, state:
“
The approach adopted here seems to
indicate that the violation of section 25(3)(d) does not lie therein
that the witness was not
fully cross-examined. The right is violated
if the
untested evidence is used
against
the accused. The right
is not violated if adequately tested evidence is used against the
accused, even though cross-examination
might not have been completed.
The issue arising from a finding of violation, is: Should that
evidence be excluded?
In Khumalo J’s view the presiding officer
retains a discretion. In this case he ruled that
only
her evidence
on the
identification of the accused (which was not yet tested
)
had to be disregarded when considering the section 174 application.
Only that part of the evidence in relation to which a violation
occurred is excluded. The violation in relation to
one
part of the evidence
and does
not, in the court’s view,
taint
other parts of a witness’ evidence. This case gives some
indication of the possible problems with this approach. It will
always remain unpredictable how the cross-examination would have
progressed. It also does not follow that even if one issue had
been
dealt with, there was no intention to return to that aspect, or that
other evidence might have placed it in a different light.
It is
preferable that, in a case such as this,
violation
of the right
be found not only
to parts, but to all the evidence. By its very nature
cross-examination is unpredictable, may not be chronological
or
theme-by-theme, and may leave room for unexpected questions later
on.
” (Emphasis added.)
With regard to full opportunity to cross-examine
under one of the predecessors of the CPA, namely, the Criminal
Procedure and Evidence
Act 31 of 1917, see
R
v McDonald
1927 AD 110.
[8] Dealing with the principles enunciated in
S
v Motlhabane and Others (supra)
, the
learned authors, Du Toit
et al
,
in “
Commentary on the Criminal
Procedure Act
”, (Service 38,
2007), at pp 22-23, suggest that if there has been complete
cross-examination on certain aspects of the case
then such evidence
should be admissible and only the aspects on which there had been no
or incomplete cross-examination should
be left out of account. As
discussed in para [25]
infra
,
I disagree with this approach.
[9] Wigmore
On
Evidence
,
3
rd
ed. Vol. V, para 1390 said:
“
But, where the death or illness prevents
cross-examination under such circumstances that
no
responsibility
of
any sort can be attributed to either the witness or his party, it
seems harsh measure to strike all that has been obtained on
the
direct examination. Principle requires in strictness nothing less.
But the true solution would be to avoid any inflexible
rule, and to
leave it to the trial judge to admit the direct examination so far as
the loss of cross-examination can be shown to
him to be not in that
instance a material loss. Courts differ in their treatment of this
difficult situation.
” (Emphasis
added.)
[10] The second known Sout
h
African case dealing with evidence based on incomplete
cross-examination, although in civil trials, is
Engles
v Hofmann and Another
1992 (2) SA 650
(C). In this case, the first defendant had commenced testifying in a
civil trial when the matter was postponed. When the trial
was
resumed, medical evidence showed that first defendant was critically
ill and required certain treatment. The long and short,
was that
first defendant could never return to the witness stand. An
application was eventually made on his behalf that he be
excused from
further court attendance, and that the evidence he had given should
be regarded as not having been given, and be ignored
for the purposes
of the court’s determination of the matter. The court, holding
that there was no precedent in South Africa
for the order sought that
this course had been followed in English and American law, granted
the order.
[11] The learned authors, W A Joubert
et
al
, in, “
LAWSA
”,
2 ed. Vol. 5, Part 2, para 306, state:
“
The defence case must be put to the
relevant witnesses. Failure to cross-examine leaves the evidence of
the relevant witness unattacked,
but the court will not for that
reason necessarily accept it. Not too drastic an inference should be
drawn from failure to cross-examine.
It could be due to ignorance or
inexperience. Failure by the prosecutor to cross-examine could,
however, lead to an acquittal.
”
With respect, the above approach is not
sufficiently helpful in resolving the difficult issue pertinent in
the instant matter.
SOME FOREIGN CASE LAW
[12] Before
concluding
on this rather difficult novelty on which there is clearly
insufficient South African case law and authority, it may
be
instructive to have regard to some foreign case law. Indeed, s 39(1)
of the Constitution provides:
“
(1) When interpreting the Bill of
Rights, a court, tribunal or forum –
(a)
must
promote the values that underlie an open and democratic society based
on human dignity, equality and freedom;
(b)
must
consider international law; and
(c)
may
consider foreign law.
”
[13] Writing in the
“
Virginia
Law Register
” Vol XII, No 10,
under the heading, “
Admissibility,
In A Criminal Trial, Of The Former Testimony Of A Witness, Since
Dead
”, and as far back as 1907,
Walter R Staples, said:
“
It is said that in the absence of
constitutional or statutory mandate the rules of evidence are the
same in criminal and civil cases
since they are but the means of
judicially ascertaining facts in issue, and are alike in each case,
“founded upon the charities
of religion – in the
philosophy of nature in the truths of history – and in the
experiences of common life
”, for,
as Lord Erkskine says, “
a fact
must be established by the same evidence whether it be followed by a
criminal or civil consequence … The rules governing
the
testimony of witnesses are neither numerous nor complicated, that
under inquiry being the principal one of its class, to wit,
that
hearsay evidence is not admissible. The reason of the rule being its
life, we find this in the danger which attends the presentation
as
evidence of statements made neither under the sanction of an oath nor
the ordeal of cross-examination, and hence the requirement
that the
person from whose lips the evidentiary facts are taken must speak
them under oath and in the presence (not of the jury
or the tribunal,
under the common law rule), of the party against whose contention
those statements are directed, to the end that
they may be also
subjected to the test of cross-examination – spoken in the
open, not in the dark – to the face and
not behind the back.
”
[14] In
Chambers v
Mississippi
[1973] USSC 32
;
410 U.S. 284
(1973), in
which Powell J delivered the majority judgment, the facts were
briefly as follows: The appellant (petitioner) was charged
with
murder. One McDonald, in the meantime, made a written confession to
the crime, which he later repudiated. On three separate
occasions,
each time to a different friend, McDonald orally admitted the
killing. The appellant (petitioner) was subsequently convicted
of the
murder in a trial that he claimed was lacking in due process because
he was not allowed, firstly, to cross-examine McDonald
whom he called
as a witness when the State had failed to do so, since, under
Mississippi’s common law “
voucher
”
rule, a party may not impeach his own witness. Secondly, the
appellant (petitioner) was not allowed to introduce the testimony
of
the three persons to whom McDonald had confessed, the trial court
having ruled that their testimony was inadmissible as hearsay.
The
Mississippi Supreme Court confirmed the conviction. In upholding the
appeal on the basis that the appellant (petitioner) was
denied a fair
trial, in violation of the Due Process Clause of the Fourteenth
Amendment, the US Supreme Court, found
inter
alia
, that, “
The
application of the “voucher” rule prevented the
petitioner, through cross-examination of McDonald, from exploring
the
circumstances of McDonald’s three prior oral confessions and
challenging his renunciation of the written confession,
and thus
deprived petitioner of the right to contradict testimony that was
clearly “adverse”
”
(my additions). In the course of the judgment Powell J, in which
Burger, C.J.; and Douglas; Brennan; Stewart; White; Marshall;
and
Blackmun, JJ concurred, said:
“
Chambers was denied an opportunity to
subject McDonald’s damning repudiation and alibi to
cross-examination. He was not allowed
to test the witness’
recollection, to probe into the details of his alibi, or to “sift”
his conscious so that
the jury might judge for itself whether
McDonald’s testimony was worthy of belief. Mattox v United
States,
[1895] USSC 34
;
156 U.S. 237
242-243
(1895). The right of cross-examination is more than a desirable rule
of trial procedure. It is implicit in the constitutional
right of
confrontation, and helps assure the “accuracy of the
truth-determining process”. Dutton v Events,
400 U.S. 740
,
400 U.S. 89
(1970); Bruton v United States,
[1968] USSC 88
;
391
U.S. 123
,
391 U.S. 135-137
(1968). It is, indeed, “an essential and fundamental
requirement for the kind of fair trial which is this country’s
constitutional goal”.
Pointer
v Texas,
[1965] USSC 68
;
380 U.S. 400
,
380 U.S.
405
(1965). Of course, the
right to confront and to cross-examine is not absolute, and may, in
appropriate cases, bow to accommodate
other legitimate interests in
the criminal trial process. E.g; Mancusi v Stubbs,
[1972] USSC 164
;
408
U.S. 204
(1972). But its denial or significant
diminution calls into question the ultimate “integrity of the
factfinding process”,
and requires that the competing interest
be closely examined. Berger v California,
[1969] USSC 1
;
393 U.S. 314
,
393 U.S. 315
(1969).
”
[15] The above approach bears some resemblance to the South African
constitutional dispensation. The right of an accused person
to
adduce and challenge evidence in terms of s 35(3)(i) of the
Constitution, although not explicit to the right of
cross-examination,
is also subject to the limitation of rights as
provided in s 36 of the Constitution.
[16] The two English cases of
R v Scott and Another
, and
R
v Barnes and Another
(1989) 2 All ER 305
, although dealing with
the discretion of a trial judge to exclude the admission of sworn
statements in evidence, are possibly the
nearest to the issue in the
present matter. The sworn statements were those of witnesses who
died before the commencement of the
trial. In the
Scott and
Another
case, the two appellants were charged with the murder of
a special constable in a bar. The only evidence of identification
was
that contained in the sworn statement of a witness who deposed
that he had seen the appellants’ faces as they ran from the
bar, and had subsequently pointed out the appellants to the police
before they were arrested. However, the witness died before
the
trial. Both appellants gave evidence at their trial which amounted
to alibis. On the other hand, in the
Barnes and Another
case,
the three appellants were charged with shooting dead the driver of a
van and stealing a factory payroll which he was carrying.
A witness
gave evidence at the preliminary hearing but was murdered before the
trial. In his sworn statement he had stated that
he saw the shooting
and that it had been done by the three appellants, all of whom he
knew. The only other eyewitness was unable
to recognise anyone. All
three appellants raised an alibi defence. In each case, without the
evidence of the sworn statement,
there would have been insufficient
evidence to put any of the appellants on trial. In each case the
trial judge admitted the sworn
statement in evidence. In each case
the appellants were convicted. The Court of Appeal of Jamaica
refused the appellants leave
to appeal against their convictions and
they appealed to the Privy Council. It was held,
“
(1) A judge in a criminal trial had a discretion to
exclude the admission of a sworn disposition of a deceased witness so
as to
ensure a fair trial, notwithstanding that the disposition was
relevant and admissible evidence, but that discretion should be
exercised
with great restraint. Provided that (a) the jury were
warned that they had not had the benefit of hearing the deponent’s
evidence tested in cross-examination, (b) particular features of the
evidence in the deposition which conflicted with other evidence
and
which could have been explored in cross-examination were pointed out
where appropriate, (c) the appropriate warning of the
danger of
identification evidence was given in an identification case and (d)
inadmissible matters such as hearsay or matters which
were
prejudicial rather than probative were excluded from the deposition
before was read to the jury, the deposition should be
admitted in
evidence. Neither the inability to cross-examine nor the fact that
the deposition contained the only evidence against
the accused nor
the fact that it was identification evidence was of itself sufficient
to justify the exclusion of a deposition.
The crucial factor was the
quality of the evidence in the deposition and if the deposition
contained evidence of reasonable quality,
even if it was the only
evidence against the accused, the deposition should be admitted and
the interests of the accused protected
in the summing up. On the
facts, the evidence of identification contained in the depositions
was not of such poor quality that
it would have been unsafe to
convict on it if the jury had received the appropriate guidance in
the summing up. There were, accordingly,
no grounds on which the
trial judges could have exercised their discretion to exclude the
admission of the depositions. (See p
311f, p 312c j and p 313a to g
post); R v Sang
[1979] UKHL 3
;
(1979) 2 All ER 1222
, R v Blithing (1983) 77 Cr App
86 and R v O’Loughlin
(1988) 3 All ER 431
considered.
(2) Where the sole evidence of identification connecting the
defendant to the crime was uncorroborated, the trial judge should
give the jury a clear warning of the danger of a mistaken
identification and only in the most exceptional circumstances should
a conviction based on uncorroborated identification evidence be
upheld in the absence of such a warning. The fact that the defendant
had been picked out at an identification parade did not obviate the
need for such a warning. In the circumstances the failure
of the
trial judge in each case to give the jury the appropriate warning
vitiated the convictions. It followed therefore that
the appeals
would be allowed and the convictions quashed (see p 314g i to p 315a
c d and p 316f, post): R v Turnbull
(1976) 3 All ER 549
applied.
”
[17]
R v Cole
(1990) 2 All ER 108
is another example of a
case in which a statement of an eyewitness who died before the trial
was admitted in evidence. There the
trial judge, in the exercise of
his discretion under s 26 of the Criminal Justice Act 1988, allowed
the statement to be admitted
in evidence on the ground that it had
been prepared for the purpose of the pending trial of the appellant
and ought to be admitted
in the interests of justice since there were
other witnesses, including those for the defence, who could
controvert it. The appellant
was convicted of assault occasioning
bodily harm. On appeal, it was held:
“
In exercising its discretion under s 26 of the 1988 Act to
allow a witness statement made by a witness who had died to be
admitted
in evidence the court was not restricted to considering the
possibility of the statement being controverted by means of
cross-examination
of the prosecution witnesses and was not required
to disregard the possibility of the statement being controverted by
the evidence
of the defendant or witnesses called on his behalf.
However, the court was required to take into account the fact that
the defence
was unable to cross-examine the maker of the statement
and to consider whether the potential unfairness arising from that
fact
could be effectively counterbalanced by a suitable warning and
explanation in the summing up. On the facts, the judge had not erred
in taking into account the possibility of defence witnesses
controverting the witness statement when exercising his discretion
to
allow the statement to be admitted in evidence. The appeal would
accordingly be dismissed.
”
[18] In dealing with this vexed question of the evidence of
incomplete cross-examination of a witness, Halsbury’s Laws of
England, 4
th
ed. (2006 Re-issue), 11(3) para 1440, suggest
the following approach:
“
Where a witness for the prosecution gives evidence in chief
but dies before the completion of his cross-examination or becomes
too
ill or distressed to go on, it may sometimes be necessary for a
trial to be halted, but in other cases any potential unfairness
to
the defendant may be dealt with by a carefully worded direction from
the judge.
”
This, in my view, suggests a discretionary approach to either
discontinue the trial if the absent witness is a single witness to
the incident, or to decide whether or not to disregard the evidence
of such witness. Indeed, the footnote in the above quotation
from
Halsbury’s Laws of England, refers to,
inter alia,
R
v Wyatt
(1990) CR. L.R. 343, CA. This case demonstrates the
discretionary approach. In that case, the appellant was charged with
indecent
assault on a 7 year old girl. In her evidence-in-chief, the
complainant described the incident in detail, and was then
cross-examined
(through video-link) for some 20 minutes. She became
increasingly distressed. The judge adjourned the case briefly. After
the
adjournment the complainant continued to cry and the judge
decided that her evidence should proceed no further. At that stage
counsel
for the defendant had still one important question to ask of
the complainant. There was other corroborative evidence implicating
the appellant. The appellant was convicted. On appeal, it was
argued,
inter alia
, that (1) the judge did not adjourn for
long enough to allow the complainant to compose herself; (2) the
judge should have directed
the jury more clearly as to the effect of
pre-maturely terminating cross-examination. In dismissing the appeal,
the court held:
“
(1) That the judge had a discretion to adjourn the case
for the length of time that he did and did not err in the exercise of
his
discretion;
(2) It had been submitted that a lengthy warning about the effect
of truncated cross-examination should have been given to the jury
as
was done in R v Stretton and McCallion (1988) 86 Cr. App. R. 7.
However in the present case the judge had directed the jury
fairly on
the evidence of the girl and left it to the jury to determine her
credibility.
”
The above case suggests clearly that the trial judge, in the exercise
of the discretion, had regard to the other corroborating
evidence
implicating the appellant in the offence. In my view, the conviction
would have been open to serious attack on appeal
had the complainant
been a single witness regarding the incident in question.
[19] The above foreign case law almost exclusively deal with the
discretion of a trial judge in admitting in evidence statements
of
eyewitnesses who died before the commencement of a trial. These
cases do not deal directly with the more difficult and novel
question
inherent in the present matter. I must refer to a more relevant case
of the
United States v Malsom
779F. 2
d
1228, 1240
(7
th
Circuit 1985). Briefly stated, the defendants,
including McDonald Malsom, were convicted by a jury of attempting to
export, exporting
and conspiring to export implements of war and
other controlled commodities from the United States of America to
Libya without
having the necessary export licenses. The defendants
were also convicted of filing false statements with the federal
government.
Malsom was sentenced to 5 years imprisonment and also
fined. On appeal, Malsom and another defendant, raised a plethora of
issues,
including a ground based on the Sixth Amendment Right of
Confrontation. In this regard, the defendants contended that their
constitutional
right to confront and cross-examine witnesses was
denied when the district court refused to grant a mistrial after one
of the state
witnesses, George Mosher, died during the trial
before
the defendants had the opportunity of cross-examining him
(my
underlining). The court explained to the jury that Mosher was no
longer available as a witness (the court did not in fact
informed the
jury that Mosher had died), and that his testimony was incomplete as
he had not been cross-examined. The court then
instructed the jury
that the court would “
strike all of his testimony and
instruct you to disregard it completely. I don’t want you to
even discuss his testimony among
yourselves because you should wipe
it out of your minds, and give it no credence or any effect
whatsoever …
”. On appeal, the defendants argued,
inter alia
, that anything less than a full cross-examination
of Mosher would deny them their Sixth Amendment Right to confront
witnesses.
It was common cause that Mosher, after testifying in
brief for the State, died of a heart attack in his hotel room after
the matter
was adjourned. The defendants also argued that the
district court abused its discretion in refusing to grant a mistrial
after
Mosher’s death as the jury once having heard the damning
testimony would be unable to dismiss the testimony from their
consideration
of guilt. On the basis that the district court had not
only struck Mosher’s testimony, but also unambiguously
instructed
the jury to disregard the testimony, the court concluded
that the inability of the defendants to cross-examine Mosher because
of
his untimely death did not violate the Sixth Amendment, and that
the district court did not abuse its discretion in refusing to
order
a mistrial. The appeal was dismissed on this and other grounds
advanced by the defendants. It may also be instructive to
have
regard to
United States v Canan
, 48F. 3
d
954, 959
(Sixth Circuit). The facts in
United States v Malsom (supra
)
were less problematic as the evidence based on the incomplete
cross-examination of the deceased witness, Mosher, was not taken
into
account at all in the adjudication of the merits of the case.
[20] The absence of any readily known authority in South African law
exacerbates the search for a clear solution to the instant
matter.
To recall, the state witness, Obisi testified on behalf of the state.
He was cross-examined to completion by counsel for
the first accused.
Thereafter the witness was cross-examined on behalf of the second,
the last accused. However, the witness
died during a postponement
before such cross-examination could be completed. Several of the
other state witnesses testified and
were fully cross-examined on the
same subject as the evidence of the deceased witness. The
subject-matter of the evidence of the
deceased witness, Obisi, was
only part of several aspects of the trial. As a result, both accused
persons were nevertheless convicted
and sentenced, as stated at the
commencement of this judgment.
[21] Apart from
S v Motlhabane and Others
(
supra
),
there is no direct authority in criminal procedure known to me on the
subject, nor have I been referred to any by either counsel
for the
accused. However, counsel for the State kindly referred me to
S v
Mothabane and Others (supra
), and
Engles v Hofmann (supra
).
In South Africa, in
Federation Co. Ltd v Bezuidenhout and
Others
1912 TPD 337
, the issue related to the evidence of a
deceased witness (not a criminal trial) at a previous trial. It had
more to do with the
admission of hearsay evidence than evidence based
on incomplete cross-examination of a witness. On the other hand,
R
v Matyeni
(1958) 2 All SA 443
(E), concerns the question whether
the accused has had a full opportunity of cross-examining a deceased
witness. The facts were,
briefly, that during the preparatory
examination, a witness was called on behalf of the prosecution. At
the conclusion of his
evidence-in-chief, the magistrate recorded,
“
accused reserves cross-examination
”. The witness
died after giving his evidence, that is, before any
cross-examination. At the subsequent trial, the state
prosecutor
wished to put the evidence given by the deceased witness at the
preparatory examination before the court in terms of
s 243 of the
Criminal Procedure Act 56 of 1955. In terms of the latter, the
state, in order to secure the admission of evidence
given by a
witness deceased since the preparatory examination, had to satisfy
the court that the witness has in fact died; that
the evidence
recorded was his evidence; and that the accused had a full
opportunity of cross-examining the witness. The accused
was legally
represented when cross-examination was so reserved. Based on the
principles enunciated in
R v McDonald
(
supra
), at pp
110 and 115, and in holding that the prosecution was entitled to put
in the evidence given by the deceased witness at the
preparatory
examination, the court said:
“
That the accused did have a full opportunity of
cross-examining. He must know, having been represented by an
attorney before the
case began, that his attorney would cross-examine
on his behalf and that he, in the absence of his attorney, would be
entitled
to put questions to the Crown witnesses.
”
It is indeed unquestionable that this finding, at present, would not
pass muster constitutional scrutiny. The case was clearly,
in my
view, wrongly decided. In any event, it was, once more, not about the
acceptance or otherwise of the evidence of a witness
who dies during
cross-examination.
[22] Although not entirely in point to the issue in the present
matter,
Klink v Regional Court Magistrate NO and Others
1996
(3) BCLR 402
(SE), concerns the question whether s 170A of the CPA
violated the right to a fair trial because it deprived an accused of
the
right of cross-examination and the right to a public trial. S
170A of the CPA, which I need not quote fully here, entitles a court
to appoint a competent person as an Intermediary through whom a
witness under the age of 18 years may give evidence. This occurs
when
it appears to the court that for the witness to testify in the usual
manner would cause undue mental stress or suffering.
The applicant
accused was charged, in the regional court, with the rape of a 16
years old complainant. On the application of the
prosecutor, and
before the applicant pleaded, the regional magistrate appointed an
Intermediary as envisaged in s 170A(1) of the
CPA. The applicant
then approached the former Supreme Court for an order,
inter alia
,
that the criminal proceedings against him proceed without the
application of s 170A of the CPA. In holding that s 170A of the
CPA
was not unconstitutional, the court, through Melunsky J, at 409G-H,
observed that:
“
Although the right to cross-examine is not mentioned in
this section (section 25(3) of the Interim Constitution), the right
to challenge
evidence which includes the right to cross-examine, is
listed in section 25(3)(d). But even at common law the right to
cross-examine
is regarded as so fundamental that its denial will
almost invariably lead to prejudice (The South African Law of
Evidence 4
th
Edition by Hoffman &
Zeffertt at 456-457). It may be noted that an accused’s right
to cross-examine any witness called
on behalf of the prosecution is
also enshrined in section 166 of the Act. What has to be determined
is whether cross-examination
by means of an intermediary is
inconsistent with the right to a fair trial because it violates the
right of an accused person to
challenge or cross-examine a child
witness. Section 170A does not, of course, exclude the right to
cross-examine.
” (My insertions.)
S 25(3)(d) of the Interim Constitution, is the predecessor of s
35(3)(i) of the 1996 Constitution referred to earlier in this
judgment. The applicant in
Klink v Regional Court Magistrate NO
and Others
, abandoned his application to refer the matter to the
Constitutional Court as the parties had agreed that the court had
jurisdiction
to determine the question of the constitutionality of s
170A of the CPA. I am also not aware of any subsequent pronunciation
by
the Constitutional Court on the constitutionality of s 170A of the
CPA. However, in
S v Mokoena; S v Phaswane
[2008] ZAGPHC 148
;
2008 (2) SACR 216
(T), Bertelsmann J declared certain parts of s 170A of the CPA to be
unconstitutional and referred such issues to the Constitutional
Court. The possible limitation of an accused’s right to
cross-examine witnesses through an intermediary was however, not
part
of such referral.
[23] This court has already dealt with the purpose of
cross-examination in,
inter alia
,
Caroll v Caroll (supra
).
There may indeed be other more useful guidelines in this regard.
However, any infringement of this purpose may be detrimental
to fair
trial procedure.
[24] As indicated earlier, there is in fact authority for the
proposition that in the South African context, the right of an
accused person to adduce and challenge evidence as enshrined in s
35(3)(i) of the Constitution, also includes the right to
cross-examine.
For example, in “
Constitutional Criminal
Procedure
” (a commentary on the Constitution of the
Republic of South Africa, 1996), 1998, the Hon. author, Nico
Steytler, at p 347,
para 4.1, states:
“
The primary interest of the confrontation clause in the
Sixth Amendment, the US Supreme Court held in Douglas v Alabama, is
the
right of cross-examination. The same is true in South Africa,
the right to challenge evidence includes the right to cross-examine.
A prerequisite for cross-examination is that all evidence is produced
in court and witnesses testify
viva voce
. Where
an accused has been deprived of the opportunity to cross-examine a
witness due, for example, to the latter’s death,
the use of
such untested evidence will result in the infringement of this
constitutional right.
” (My underlining.)
THE VARIOUS APPROACHES
[25] What emerge from the above quoted foreign case law and
authorities suggest at least three approaches to the evidence based
on incomplete and truncated cross-examination, for whatever reason.
The obvious is that where evidence-in-chief was led with no
subsequent cross-examination at all, such evidence ought to be
disregarded entirely. So much is trite. The second approach seems
to
be that where there was partial cross-examination only but with other
corroborative evidence of the absent witness on the disputed
issue,
the trial court has a discretion whether or not to accept the
evidence. The third approach seems to suggest that where
there has
been no cross-examination at all, the trial court still has a
discretion to accept the evidence depending on the nature
of the
evidence and the nature of the case. This discretionary approach is
clearly not without problems as indicated hereunder.
Indeed, the
approach of the learned authors, Du Toit
et al
, in the
“
Commentary on the Criminal Procedure Act
” (
supra
)
is also with respect, not bereft of problems. In my view, such
approach, although hugely attractive at first glance, may be
problematic and may not pass muster constitutional scrutiny. It, for
example, begs the question whether it would be fair to accept
such
evidence in the case of a single witness not fully cross-examined
whilst the accused still had one important question to put
to the
witness (cf
R v Wyatt (supra)
). It will always be difficult
to predict what complete cross-examination could reveal. The
possibility that it would reveal evidence
completely favourable to an
accused person can hardly be excluded. In practice, it may also be
difficult to determine where to
draw the line in accepting certain
parts of incomplete cross-examination evidence and rejecting other
parts, as well as how to
exercise such discretion. There are simply
too numerous imponderables which would only exacerbate an accused
person’s already
heavy burden of facing the might, expertise,
experience, costs, techniques, and resources at the disposal of the
State. Indeed,
in certain instances, the State also relies on certain
presumptions against an accused person, as illustrated in para [27]
infra
.
CONCLUSION ON THE ISSUE AT HAND
[26] For the aforegoing reasons, I have come to the conclusion that
no probative value should be attached to evidence where
cross-examination
of a witness absent, for whatever reason, including
illness or death. It appears to be equally fair and equitable that
such an
approach should not only apply to prosecution witnesses, but
also to defence witnesses, and witnesses called by the court in terms
of s 186 of the CPA or, indeed other witnesses. In the instant
matter, as stated earlier, Obisi testified on issues on which several
other prosecution witnesses testified fully and were fully
cross-examined. He was therefore not a single witness on the issues
in dispute. The acceptance or rejection of his incomplete evidence
in cross-examination, in my view, was academic and immaterial
in the
circumstances of the case. Although there was a rather strong
temptation to accept as credible and corroborative his evidence,
not
only in regard to accused 1 in respect of whom there was complete
cross-examination, but also in respect of accused 2, I decided
against such approach. There was indeed sufficient other
corroborative evidence on the issues in dispute. The fact that the
tenor
of counsel for accused 2 indicated that he was nearing the end
of his cross-examination by putting the version of accused 2 to
Obisi, prior to the adjournment, was immaterial and not conclusive.
It was extremely dangerous to rely on such tone for the suggestion
that the cross-examination was almost completed. The fact of the
matter is that such cross-examination on behalf of accused 2
remained
incomplete. This court decided, in the exercise of its discretion, to
ignore completely the evidence of Obisi in convicting
both the
accused. This approach was in accordance with
S v Motlhabane and
Others
(
supra
).
[27] In the present matter, I am also of the view that the right of
an accused person to adduce and challenge evidence as enshrined
in s
35(3)(i) of the Constitution, undoubtedly includes the right to
cross-examination. As indicated earlier in this judgment,
there was
overwhelming and persuasive authority for this proposition. In my
view, the fact that s 35(3)(i) of the Constitution
does not expressly
or implicitly refer to cross-examination, to exclude such right,
would amount to a too narrow and simplistic
interpretation of the
section. In this regard, it is more than instructive to have
extensive regard to the illustrious remarks
of Kentridge AJ in
S v
Zuma and Others
[1995] ZACC 1
;
1995 (1) SACR 568
(CC). This case concerned the
constitutionality of s 217(1)(b)(ii) of the CPA, in regard to the
provisions of the Republic of
South Africa Constitution Act 2000 of
1993 (the Interim Constitution). This s deals with the admissibility
in evidence of a confession
made by an accused person before trial.
This s provides, in respect of alleged confessions,
inter alia
,
that it shall, “
be presumed, unless the contrary is proved,
to have been freely and voluntarily made by such person in his sound
and sober senses
and without having been unduly influenced thereto.
If it appears from the document in which the confession is contained
that the
confession was made freely and voluntarily by such person in
his sound and sober senses and without having been unduly influenced
thereto
”. Although the s casts an
onus
on the
prosecution to prove beyond reasonable doubt that a confession was
made freely and voluntarily where it has to be accepted,
the accused
on the other hand, has to prove on a balance of probabilities, that
such confession was not so made by him or her.
Prior to declaring
that s 217(1)(b)(ii) of the CPA was invalid, and in interpreting s
25(2) and (3) of the Interim Constitution
(the predecessor of s 35(2)
and (3) of the Constitution, and at para [15] of
S v Zuma and
Others
(
supra
), Kentridge AJ said:
“
Both Lord Wilberforce and Dickson J (in relation to R v Big
M Drugs Mart Ltd (1985) 18 DLR (4
th
) 321 at
395-6 (18) CCC (3
rd
) 385 (my insertions),
emphasised that regard must be paid to the legal history, traditions
and usages of the country concerned,
if the purposes of its
constitution are to be fully understood. This must be right. I may
nonetheless be permitted to refer to
what I said in another Court of
another constitution albeit in a dissenting judgment:
‘
Constitutional rights
conferred without express limitation should not be cut down by
reading implicit restrictions into them, so
as to bring them into
line with the common law.
Attorney-General v
Moagi
1982 (2) Botswana LR 124
at 184’.
”
At para [16] of the judgment, Kentridge AJ went on to say:
“
The
caveat
is of particular importance
in interpreting s 25(3) of the Constitution. The right to a fair
trial conferred by that provision
is broader than the list of
specific rights set out in paras (a) to (j) of the subsection. It
embraces a concept of substantive
fairness which is not to be equated
with what might have passed muster in our criminal courts before the
Constitution came into
force.
” (My underlining.)
In quoting with approval what was said in
S v Rudman and Another;
S v Mthwana
1992 (1) SA 343
(A), at 377, Kentridge AJ went on to
say:
“
That was an authoritative statement of the law before 27
April 1994. Since that date s 25(3) has required criminal trials to
be
conducted in accordance with just those ‘notions of basic
fairness and justice’. It is now for all courts hearing
criminal
trials or criminal appeals to give content to those
notions.
”
At para [17] Kentridge AJ went on to say:
“
I must also refer to where Qozeleni v Minister of Law and
Order and Another
1994 (3) SA 625
(E)
(1994 (1) BCLR 75.
The
judgment of Froneman J contains much of value in its approach to
constitutional interpretation. The learned judge (at 635B-C)
(SA)
and 81 (BCLR) that the previous constitutional system of this country
was the fundamental ‘mischief’ to be remedied
by the new
Constitution. He says at 633H (SA) and at 80 (BCLR) that, because
the Constitution is the supreme law against which
all law is to be
tested, ‘it must be examined with a view to extracting from it
those principles or values against which
such law … can be
measured’.
He adds at 634C (SA) and in BCLR on the same
page (80) that the Constitution must be interpreted so as ‘to
give clear expression
to the values it seeks to nurture for a future
South Africa’. This is undoubtedly true. South African courts
are indeed
enjoined by s 35 of the Constitution to interpret Chapter
3 so as ‘to promote the values which underlie an open and
democratic
society, based on freedom and equality’, and, where
applicable, to have regard to relevant public international law.
That
section also permits our courts to have regard to comparable
foreign case law.
” I fully endorse these persuasive
comments.
[28] For the above reasons, the view that the right to adduce and
challenge evidence also includes the right to cross-examine,
is
pre-eminently justified even in interpreting s 35(3)(i) of the final
Constitution.
_____________________________
D S S MOSHIDI
JUDGE OF THE SOUTH GAUTENG
HIGH COURT
JOHANNESBURG
COUNSEL FOR THE STATE M CHRISTOFOROU
INSTRUCTED BY DIRECTOR OF PUBLIC PROSECUTIONS
COUNSEL FOR ACCUSED 1 C PILLAY
INSTRUCTED BY LEGAL AID BOARD
COUNSEL FOR ACCUSED 2 J L KGOKANE
INSTRUCTED BY LEGAL AID BOARD
DATE
OF HEARING 9 JUNE 2009
DATE OF JUDGMENT 27 JULY 2009