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[2008] ZAFSHC 53
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Motata v Nair No and Another (7023/2008) [2008] ZAFSHC 53 (11 June 2008)
IN
THE HIGH COURT OF SOUTH AFRICA
(
TRANSVAAL
PROVINCIAL DIVISION)
Case
No. :
7023/2008
In
the matter between:-
NKOLA
JOHN MOTATA
Applicant
and
D
NAIR NO
First
Respondent
THE
DIRECTOR OF PUBLIC PROSECUTIONS
Second
Respondent
_____________________________________________________
CORAM:
HANCKE,
J
et
PICKERING,
J
_____________________________________________________
HEARD
ON:
3
JUNE 2008
_____________________________________________________
JUDGMENT
BY:
HANCKE
et
PICKERING,
JJ
_____________________________________________________
DELIVERED
ON:
11
JUNE 2008
_____________________________________________________
[1] This is an
application for the review of a ruling made by the first respondent
herein, the Chief Magistrate of Johannesburg,
on 7 November 2007,
during the course of a criminal trial in which the applicant stands
accused of certain offences. The first
respondent has elected to
abide the decision of this Court whereas the second respondent, the
Director of Public Prosecutions (Witwatersrand
Local Division) has
opposed the relief sought herein.
[2] Applicant, a Judge of
the High Court, was arrested in the early hours of 6 January 2007
consequent upon a collision allegedly
involving the motor vehicle
being driven by him and the boundary wall of a property belonging to
a certain Mr. Richard Baird.
On 26 September 2007 applicant appeared
in the Johannesburg Magistrate’s Court before the first
respondent charged, on count
1, with drunken driving in contravention
of s 65 (1) of Act 93 of 1996, as well as with certain alternatives
thereto and, on count
2, with defeating or obstructing the ends of
justice, alternatively, resisting arrest in contravention of s 67
(1)(a) of Act 68
of 1995.
To all these charges
applicant pleaded not guilty, electing not to provide any plea
explanation.
[3] The first witness
called by the State was the aforesaid Mr. Baird. During the course
of his testimony the State sought to introduce
into evidence five
video clips, allegedly recorded by Mr. Baird with his cellphone on
the night in question. It is common cause
that the video clips
contain no visual images but are aural recordings which, so the State
contends, constitute relevant evidence
of applicant’s condition
and conduct at the scene of the collision.
[4] It appears from Mr.
Baird’s testimony that the data files relating to the video
clips taken by him were stored on a so-called
SD memory card in the
cellphone. Later that same day Mr. Baird downloaded the video clips
to his personal laptop computer thereby
transferring the data from
the SD memory card to the computer. On 20 August 2007, however,
prior to the commencement of the trial,
his cellphone had fallen and
had been irreparably damaged. A digital camera with which Mr. Baird
had allegedly also taken certain
photographs on the night in question
was allegedly stolen sometime early in September 2007. The relevant
SD memory card was missing.
Eventually, after the commencement of
the trial, the five video files were copied from his laptop computer
onto a memory stick
and then onto a compact disc. A transcript of
the contents of the five video clips was also made.
[5]
The
defence objected to the playing of the video clips in Court as well
as to the introduction into evidence of the transcript.
It was
submitted by counsel who represented applicant at the trial that
applicant’s constitutional rights to a fair trial
dictated that
a trial-within-a-trial be first held in order to determine the
admissibility of the video clips.
Having
heard argument the first respondent ruled, on 25 October 2007, that
“
there
should be a trial-within-a-trial after which the Court will give a
ruling on admissibility.
”
[6]
On
7 November 2007 the State proceeded to lead the evidence of Mr. Baird
in a trial-within-a-trial and again sought to introduce
the five
video clips and transcript into evidence. Once again the defence
objected thereto, the gravamen of the objection being
that the
playing of the video clips and the introduction of the transcript,
prior to the Court having ruled on their admissibility,
would
constitute a gross irregularity which would severely prejudice
applicant and would, in effect, defeat the object of the
trial-within-a-trial.
The
first respondent, however, was not persuaded thereby and ruled that
the “
State
may play the recordings and deal with the transcript in the
trial-within-a-trial in order that the Court may determine its
admissibility after the trial-within-a-trial.
”
[7]
At
that stage the defence applied for, and was granted, a postponement
of the trial in order to take the first respondent’s
ruling on
review to the High Court. In due course the present application was
launched in which applicant seeks the following
order:
“
1. That the ruling by the first
respondent on the 7 November 2007 to the effect that the five (5)
video recordings allegedly taken
by Mr. Baird at the scene of the
alleged crime be played in Court during the trial-within-a-trial to
test their admissibility be
reviewed and set aside;
2. That the first respondent be and is
hereby ordered and directed to continue with a trial-within-a-trial
without the video and
audio recordings being played;
3. That pending finalisation of this
review the respondents be and are hereby ordered, restrained and
interdicted from proceeding
with the criminal proceedings against the
applicant in the Magistrate’s Court Johannesburg under case no
63/968/07;
4. That the costs of this application
be paid only by those respondents who oppose it.”
[8]
In
his affidavit in support of the application, applicant contends that
first respondent’s decision to allow the State to
play the
recordings and to adduce the evidence of the transcript thereof
constitutes a gross irregularity which is “
severely
prejudicial
”
to him in the conduct of his defence and which interferes with his
constitutional right to a fair trial. He submits,
inter
alia
,
that the “
practical
effect of watching and listening and observing the recordings in
court by first respondent of contested evidence is to
admit in
advance evidence which may be self-incriminating and as such could be
difficult to erase from the mind of first respondent
even if he may
theoretically rule it inadmissible at the end of a
trial-within-a-trial
.”
Applicant submits accordingly that the intervention of this Court is
warranted at this stage of the proceedings to prevent
a grave
injustice being occasioned to him.
[9]
It
is trite that as a general rule a High Court will not by way of
entertaining an application for review interfere with incompleted
proceedings in a lower court. As stated in
WAHLHAUS
AND OTHERS v ADDITIONAL MAGISTRATE, JOHANNESBURG AND ANOTHER
1959 (3) SA 113
(A) at 119G, the High Court will not ordinarily
interfere whether by way of appeal or review before a conviction has
taken place
in the lower court even if the point decided against the
accused by a magistrate is fundamental to the accused’s guilt.
At 119H-120A Ogilvie Thompson JA (as he then was) stated as follows:
“
It is true
that, by virtue of its inherent power to restrain illegalities in
inferior courts, the Supreme Court may, in a proper
case, grant
relief – by way of review, interdict, or mandamus - against the
decision of a magistrate’s court given
before conviction. (See
Ellis
v Visser and Another
1956 (2) SA 117
(W), and
R
v Marais
1959 (1) SA 98
(T), where most of the decisions are collated). This,
however, is a power which is to be sparingly exercised. It is
impracticable
to attempt any precise definition of the ambit of this
power; for each case must depend upon its own circumstances. The
learned
authors of Gardiner and Lansdown (6
th
Ed., vol. I p.750) state:
‘
While a Superior Court having
jurisdiction in review or appeal will be slower to exercise any
power, whether by mandamus or otherwise,
upon the unterminated course
of proceedings in a court below, it certainly has the power to do so,
and will do so in rare cases
where grave injustice might otherwise
result or where justice might not by other means be attained …
. In general, however,
it will hesitate to intervene, especially
having regard to the effect of such a procedure upon the continuity
of proceedings in
the court below, and to the fact that redress by
means of review or appeal will ordinarily be available.’
In my judgment, that statement
correctly reflects the position in relation to unconcluded criminal
proceedings in the magistrate’s
court.”
At 120D the learned Judge
continued:
“
[T]he
prejudice, inherent in an accused’s being obliged to proceed to
trial, and possible conviction, before he is accorded
an opportunity
of testing in the Supreme Court the correctness of the magistrate’s
decision overruling a preliminary, and
perhaps a fundamental,
contention raised by the accused, does not per se necessarily justify
the Supreme Court in granting relief
before conviction. (See too the
observation of Murray J at pp 123 – 124 of
Ellis
case
supra
.)
As indicated earlier, each case falls to be decided on its own facts
and with due regard to the salutary general rule that appeals
are not
entertained piecemeal.”
[10]
In
ISMAIL
AND OTHERS v ADDITIONAL MAGISTRATE, WYNBERG AND ANOTHER
1963 (1) SA 1
(A) the following was stated at 5H-6A:
“
I should
point out that it is not every failure of justice which would amount
to a gross irregularity justifying interference before
conviction.
As was pointed out in
Wahlhaus
and Others v Additional Magistrate, Johannesburg and Another
1959 (3) SA 113
(AD) at p 119, where the error relied upon is no more
than a wrong decision, the practical effect of allowing an
interlocutory
remedial procedure would be to bring the magistrate’s
decision under appeal at a stage when no appeal lies. Although there
is no sharply defined distinction between illegalities which will be
restrained by review before conviction on the ground of gross
irregularity, on the one hand, and irregularities or errors which are
to be dealt with on appeal after conviction, on the other
hand, the
distinction is a real one and should be maintained. A Superior Court
should be slow to intervene in unterminated proceedings
in the court
below, and should, generally speaking, confine the exercise of its
powers to ‘rare cases where grave injustice
might otherwise
result or where justice might not by other means be attained.’
(Wahlhaus’s case, supra at p120).”
[11]
These
principles have been applied in a number of later cases including
SITA
AND ANOTHER v OLIVIER N.O. AND ANOTHER
1967 (2) SA 442
(A) at 447E-F;
LOMBARD
EN ‘N ANDER v ESTERHUIZEN EN ‘N ANDER
1993 (2) SACR 566
(W) at 569 e-f;
S
v WESTERN AREAS LTD AND OTHERS
2005 (5) SA 214
(SCA) at 224D.
[12]
It
has been stressed that underlying the reluctance of the Courts to
interfere in unterminated proceedings in a lower court is the
undesirability of hearing appeals or reviews piecemeal. See:
S
v THE ATTORNEY-GENERAL OF THE WESTERN CAPE
;
S
v REGIONAL MAGISTRATE WYNBERG AND ANOTHER
1999 (2) SACR 13
(C) at 22 e–f;
NOURSE
v VAN HEERDEN N.O. AND OTHERS
1999 (2) SACR 198
(W) AT 207 D-E; and
S
v WESTERN AREAS LTD AND OTHERS
supra
where, at 226B Howie P stated:
“
Long experience has taught
that in general it is in the interests of justice that an appeal
await the completion of a case whether
civil or criminal. Resort to
a higher Court during proceedings can result in delay, fragmentation
of the process, determination
of issues based on an inadequate record
and the expenditure of time and effort on issues which may not have
arisen had the process
been left to run its ordinary course.”
[13]
The
present case, however, so it was submitted on behalf of applicant,
was indeed a case where this Court should not hesitate to
interfere
in the proceedings in the court a quo as a grave injustice would be
occasioned to applicant should the video clips be
played in court and
the transcript introduced into evidence.
[14]
Mr.
Tokota, who with Mr. Matebese appeared for the applicant, submitted
that it was clear from first respondent’s reasons
in ruling
that a trial-within-a-trial be held that the purpose thereof was “
not
to test the authenticity of the evidence but to determine the
admissibility thereof.
”
The alleged damage to the cellphone and theft of the digital camera
gave rise, so it was submitted, to a reasonable suspicion
that the
recordings might have been manipulated, an issue, it was submitted,
which had nothing to do with authenticity and which
could only be
determined by expert evidence. It was submitted further that in
these circumstances the principles analogous to
the testing of the
admissibility of confessions were applicable. In particular, so it
was submitted, it should be borne in mind
that the purpose of a
trial-within-a-trial is to insulate the enquiry relating to the
admissibility of that evidence as a separate
compartment of the main
trial and distinct from the determination of guilt in the main trial.
See:
S
v DE VRIES
1989 (1) SA 228
(A). It was submitted therefore that the playing of
the video clips would be tantamount to the trial court reading the
contents
of a confession, the inadmissibility of which was contested,
prior to the determination of its admissibility. This, so it was
submitted, with reference to
S
v GABA
1985 (4) SA 734
(A) at 749H-I, would gravely prejudice applicant.
[15]
It
is necessary first to deal with the submission that the authenticity
of the recordings is not an issue to be determined at this
stage of
the proceedings. We have considerable difficulty in grasping the
basis upon which it is suggested that the issue of the
possible
manipulation of the recordings is distinguishable from that of
authenticity. If, after having been downloaded from the
cellphone,
the recordings were manipulated or tampered with they are, to that
extent, no longer authentic copies of the original
video clips. The
issue of the possible manipulation of the recordings goes, in our
view, straight to the heart of the issue of
authenticity and cannot
be divorced therefrom as applicant seeks to do.
[16]
Apart
from this the submission that the purpose of the trial-within-a-trial
was “
not
to test the authenticity of the evidence but to determine the
admissibility thereof
”
flies in the face of the submissions which were addressed to the
first respondent in support of the application for a
trial-within-a-trial
to be held and in the light of the first
respondent’s reasons when ruling in favour thereof.
[17]
In
his submissions the defence counsel made a number of statements in
which he referred to the issue of “
authenticity
”.
Certain of his submissions were as follows, namely:
“
The issue of originality and
authenticity needs to be established up front”;
“
What we contend for is to be
allowed to test the authenticity of the material prior to the Court
ruling on its provisional admissibility”;
“
Let me demonstrate that
authenticity and originality is in issue”;
“
The accused is being deprived
of the opportunity to prevent the provisional admission of the
evidence through his taking issue with
the authenticity and the
originality thereof”;
“
Let’s test the
authenticity and the originality”;
“
It is clear from the
authorities that both the issue of originality and authenticity
impact on the issue of admissibility”;
“
In the light of the aforegoing
it is submitted that the admissibility of the video and/or tape
recordings is to be decided inter
alia with reference to its
originality and authenticity”;
And, finally
“Let’s
first decide the authenticity.”
[18]
In
ruling that a trial-within-a-trial be held the first respondent
restated the defence submissions, with respect correctly, as
follows:
“
The defence has countered by
requesting that the State not be summarily called to lead evidence in
this manner but for the Court
to determine the admissibility of the
evidence only after its authenticity and originality has been
determined in a trial-within-a-trial.”
And
“
[T]he defence has objected to
the admission of such evidence prior to the authenticity of the
evidence and originality thereof being
tested in the court.”
[19]
After
various other references to the defence submissions concerning the
need to test both the authenticity and originality of the
recordings
prior to their admission into evidence the first respondent concluded
by stating:
“
I am of the view that the
objection by the defence for the State to tender evidence in the
manner that it request is to be sustained
and that the request by the
defence for there to be a trial-within-a-trial to determine the issue
of admissibility and also I read
into that request for the court to
answer the question: Is it safe for such evidence to be presented,
determine that. Is it safe,
and once you have determined that you
can deal with the issue of admissibility at that stage. The ruling
of this court is that
there should be a trial-within-a-trial after
which the court will give a ruling on the admissibility.” (sic)
[20]
In
his later judgment in the trial-within-a-trial, in which he held that
the State could play the recordings, he stated that his
intention in
holding a trial-within-a-trial was “
to
safeguard
”
applicant and to enable “
the
defence and the court to test the weight, trustworthiness, caution,
reliability and originality
”
of the recordings. In our view, in the light of what is set out
above, it is clear that the reason for the holding of the
trial-within-a-trial was indeed to test the authenticity and
originality of the video clips prior to their admission into
evidence.
[21]
There
has been considerable judicial debate concerning the prerequisites
for admissibility in evidence of video and tape recordings.
Ranged
against the decisions in the Natal Provincial Division in the cases,
in particular, of
S
v SINGH AND ANOTHER
1975 (1) SA 3
(N), and
S
v RAMGOBIN AND OTHERS
1996 (4) SA 117
(N) are the decisions in the Transvaal Provincial
Division, in particular, in
S
v BALEKA AND OTHERS
(1)
1986 (4) SA 192
(T) and
S
v BALEKA AND OTHERS
(3)
1986 (4) SA 1005
(T), in which latter cases the
SINGH
and
RAMGOBIN
decisions were expressly disapproved of. See too
S
v MPUMLO AND OTHERS
1986 (3) SA 485
(E). In
S
v NIEWOUDT
[1990] ZASCA 74
;
1990 (4) SA 217
(A) Hefer JA pointed out that the difference in
approach between these cases came down to the question of whether
proof of the
authenticity of a recording tendered in evidence was a
prerequisite for admissibility. Whereas in the
SINGH
and
RAMGOBIN
cases it was held that it was indeed a prerequisite, the contrary was
held in the
BALEKA
cases on the grounds that a distinction must be drawn between the
originality of a recording and the authenticity thereof, Van
Dijkhorst J stating that, whereas originality affected admissibility,
authenticity did not.
[22]
In
S
v BALEKA AND OTHERS
(3)
supra
van
Dijkhorst J stated as follows at 1026 C-D:
“
It follows from what I have
said above that I deal with tape recordings as I would deal with any
other type of real evidence tendered
where its admissibility is
disputed. The test is whether it is relevant. It will be relevant
if it has probative value. It will
only have probative value if it
is linked to the issues to be decided. That link will often have to
be supplied by evidence of
identification of voices on the tape,
where the identity of a speaker is in issue. This proof of relevancy
need only be prima
facie proof. Consequently no trial-within-a-trial
should be held on the question of admissibility…”
[23]
In
S
v MPUMLO
supra
Mullins J stated at 490 h-i that a video film like a tape recording,
“
is real evidence as distinct
from documentary evidence, and, provided it is relevant, it may be
produced as admissible evidence,
subject of course to any dispute
that may arise either as to its authenticity or the interpretation
thereof.”
[24]
In
S
v NIEWOUDT
supra
Hefer JA, although expressing at 231D the view that the approach in
the
BALEKA
cases appeared to be more acceptable, left open the question whether
it is necessary, for the admission in evidence of audio-tape
recordings, to prove the authenticity of the tape recording. He
proceeded, however, to deal with certain of the
dicta
in the Natal decisions. The English headnote of the report correctly
reflects what was stated by the learned Judge at 232F-233B
namely:
“
Even if it is accepted that
proof of authenticity is a prerequisite for the admissibility of a
tape recording, the recording cannot
be excluded from the evidence
solely on the ground that interferences appear in it. On the
contrary, when it is borne in mind
that the danger which has to be
guarded against is the admission of a recording in respect of which
there is a reasonable possibility
that it is a distorted version of
the reality, it is obvious that every “interference” has
to be examined in order
to determine whether such a possibility
exists. But not every interference necessarily or even probably
points to the absence
of authenticity: it would be absurd, for
example, to exclude a recording from which part of a conversation had
been accidentally
erased solely because of such defect. Naturally
the evidential value thereof would, depending on the materiality of
the missing
part, be affected but there can be no objection to the
admissibility of the recording where there is no suggestion of any
lack
of authenticity. The same applies to deliberate interferences.”
[25]
In
the present case, despite the fact that the decision in
S
v BALEKA AND OTHERS
(3)
supra
was binding on him, the first respondent, clearly alive to and
motivated by the constitutional imperative of applicant’s
right
to a fair trial, decided in the exercise of his discretion to hold a
trial-within-a-trial. In doing so he has afforded applicant
the
safeguard of having the authenticity of the recordings determined
prior to their admission into evidence. This has rendered
it
unnecessary to decide whether or not proof of authenticity is in fact
a prerequisite for the admissibility of the recordings
and no more
need be said thereanent.
[26]
It
will have been noted that thus far nothing has been said concerning
the issue of originality. It is common cause that the recordings
which the defence wishes to introduce into evidence are not the
originals. In
S
v SINGH AND ANOTHER
supra
Leon J, with whom Hoexter J concurred, held at 333H that before the
Court would admit tape recordings into evidence it had to be
established that they were the original recordings. If sufficient
doubt was raised by the defence to indicate that it was likely
that
they were not the originals and so not the “
primary
and best evidence
”,
the Court had no alternative but to reject them.
[27]
In
S
v RAMGOBIN
,
supra
,
however, Milne JP, although bound by the decision in
S
v SINGH AND ANOTHER
,
supra,
expressed certain reservations at 134E about the correctness of that
decision in this regard. In doing so he referred, at 134J-135B,
to
certain American decisions where copies had been admitted on the
grounds that they were,
inter
alia
,
as faithful as the originals. He stated, however, that in these
cases the original was either produced or its absence was explained
to the satisfaction of the Court, and the faithfulness of the copy
was established by evidence other than the tape recording itself.
[28]
In
S
V BALEKA AND OTHERS
(1)
supra,
van Dijkhorst J observed that the learned Judges in
S
v SINGH AND ANOTHER
,
supra
had not differentiated between originality and authenticity. As
stated by him at 195H:
“
Originality is a requirement
flowing from the so-called best evidence rule and is considered when
admissibility is decided upon.
Authenticity is not a question of
admissibility, but of cogency and weight.”
Van
Dijkhorst J expressly disapproved of the dictum in
S
v SINGH
supra
stating at 199G that in his view such recordings were real evidence
to which the rules of evidence relating to documents were not
applicable. He stated further at 199J–200A that, even were he
to be wrong in that approach, secondary evidence of the contents
of
originals was admissible in circumstances where the originals were on
the probabilities for all practical purposes unobtainable.
Such
secondary evidence could take the form of a copy. Whether it was
trustworthy was for the Court to decide at the end of the
case. In
S
v BALEKA AND OTHERS
(3),
supra
,
van Dijkhorst J reiterated the views expressed by him in the earlier
case stating at 1025B that the requirement the recordings
be the
originals
“
flows from the equation of
tapes with documents and the application of the best evidence rule to
the former. I can find no ground
or authority in our law for this
approach.”
At 1025C the learned
Judge stated further:
“
I can see no objection to the
use of a copy, provided the Court is satisfied that it accurately
reflects what was recorded.”
[29]
The
defence has not objected to the admissibility of the recordings on
the basis that they are copies and not originals nor, in
our view,
would any such objection have succeeded in the light of the decisions
in
S
v BALEKA AND OTHERS
(1)
and (3)
supra
,
decisions emanating from this Division which are binding on first
respondent. Even on an assumption that
S
v BALEKA AND OTHERS
(1) and (3)
supra
were wrongly decided there is much to be said for the approach of the
American Courts referred to by Milne JP in
S
v RAMGOBIN
supra
at 134J, namely, that a copy may be admitted in cases where the
absence of the original is explained to the satisfaction of the
Court
and the faithfulness of the copy is established by evidence other
than the tape recording itself.
[30]
That
then brings us to a consideration of the submission by applicant’s
counsel to the effect that the principles analogous
to the testing of
the admissibility of confessions are applicable to a matter such as
the present with the consequence that the
State is precluded from
playing the video clips prior to the determination of their
admissibility.
[31]
In
our view these submissions cannot be upheld. They are based on a
wrong premise, namely, the equation of the contents of the
recordings
with the contents of a confession. As submitted by Mr. Van Zyl, who
appeared for the State, the principles enunciated
in the cases relied
on by applicant, namely,
S
v DE VRIES
supra
at 233H-I and
S
v MALINGA
1992 (1) SACR 138
(A) at 141i-j have regard to trials within trials
where the admissibility of confessions has been disputed on the basis
that they
were not voluntarily made and did not comply with the
provisions of s 217 of Act 51 of 1977.
[32]
No
such issue arises here. It has not been contended that the contents
of the recordings amount to an inadmissible confession or
admission.
Applicant has, in his affidavit, submitted that the evidence “
may
be self incriminating
”
and that the recordings should therefore not be played prior to a
ruling being made as to their admissibility. The fact
that the
contents of the recordings may incriminate the applicant does not,
however, render them confessions to which the provisions
of s 217 of
Act 51 of 1977 are applicable.
[33]
In
S
v M
2002 (2) SACR 411
(SCA) the following was stated at 432c-d:
“
Real
evidence which is procured by illegal or improper means is generally
more readily admitted than evidence so obtained which
depends upon
the say-so of a witness (see, for example, R v Jacoy
(1988) 38 CRR
290
at 298) the reason being that it usually possesses an objective
reliability. It does not ‘conscript the accused against
himself’ in the manner of a confessional statement (R v Holford
[2001] 1 NZLR 385
(CA) at 390). The letter in this case can be
classified as real evidence of a documentary nature (notwithstanding
the doubts which
the Court a quo expressed). Real evidence is an
object which, upon proper identification, becomes, of itself,
evidence (such as
a knife, photograph, voice recording, letter or
even the appearance of a witness in the witness-box). Schmidt
Bewysreg 4
th
ed at 326, Hoffman & Zeffertt The South African Law of Evidence
4
th
ed at 404, Cross & Tapper on Evidence 8
th
ed at 48.”
[34]
S
v RAMGOBIN AND OTHERS
supra
is instructive in this regard. In that matter a trial-within-a-trial
was held on the issue of the admissibility in evidence of
certain
audio and video tape recordings. Both the State and the defence
adduced evidence of an expert witness and then closed
their
respective cases in the trial-within-a-trial. During the course of
argument counsel for the State sought leave to reopen
his case in the
trial-within-a-trial in order to present evidence as to the accuracy
of certain of the recordings as the defence
had contended that the
failure to lead such evidence resulted in the recordings being
inadmissible in evidence. In this regard
defence counsel relied in
particular on the absence of any authenticating witness in relation
to any of the tape recordings as
well as to the absence of any
evidence of the identity of the speakers. Counsel for the State
indicated that he had not appreciated
that it was necessary or
appropriate for the purposes of the trial-within-a-trial to lead
direct evidence dealing with the accuracy
of the tape recordings and
that the accused were present and spoke at the meetings to which the
tape recordings related and that
what was said was sufficiently
intelligible to be admissible.
Milne JP set out the
views of counsel for the State at 177C:
“
It is certainly clear that the
counsel for the State regarded the ‘contents’ of the tape
recordings as being analogous
to the ‘contents’ of a
confession, and proceeded on the basis that it is only in exceptional
cases (for example, where
it is said that the contents of a
confession were what the police told the accused to say) that the
Court can even have regard
to the contents of a confession when
determining its admissibility.”
These
views, so Milne JP indicated, were erroneous and based,
inter
alia
upon a misapprehension as to the law.
[35]
Furthermore,
the evidence is not tendered at this stage in order to establish the
guilt of the applicant as was submitted by Mr.
Tokota. The only
issue at this stage is the authenticity of the recordings, an issue
which encompasses proof of reliability, veracity,
originality and
accuracy.
[36]
It
was submitted on behalf of applicant that the issue of the possible
manipulation of the recordings can only be dealt with by
way of
expert evidence without reference to the contents of the recordings
themselves. This submission, in our view, cannot be
sustained.
[37]
As
submitted by Mr. Van Zyl examples abound of cases where judicial
officers have deemed it expedient to listen to recordings during
the
course of a trial in order to determine their authenticity. See, for
instance,
R
v KOCH
1952 (3) SA 26
(T) at 29H-30A;
R
v BEHRMAN
1957 (1) SA 433
(T) at 435A;
S
v VEII
1968 (1) PH H49 (A);
S
v HOLSHAUSEN
1982 (2) SA 699
(D) at 700A-B;
S
v SINGH AND ANOTHER
supra;
S
v RAMGOBIN AND OTHERS
supra
and
S
v MPUMLO AND OTHERS
supra
.
[38]
In
S
v NIEWOUDT
supra
Hefer JA stated as follows at 238D:
“
Daarenteen is ek nie bereid om
‘n submissie wat Mnr. De Villiers op een stadium gemaak het
(klaarblyklik sonder dat hyself
veel geloof daarin gehad het) te
aanvaar nie, nl dat daar slegs gelet moet word op wat die deskundige
getuies se waarnemings was.
Om te hoor watter woorde in hierdie
soort opname voorkom, verg geen deskundigheid nie en ‘n
geregshof kan in elk geval nie
sy funksie aan die getuies delegeer
nie. Natuurlik moet ag geslaan word op die getuienis; maar
uiteindelik is dit die Hof se taak
om te bepaal wat die woorde is en
deur wie hulle gebruik is.”
[39]
As
stated by Hefer JA, where the authenticity of a tape recording is in
issue in a case where the State wishes to tender the tape
recording
as evidence, the crucial question is whether the State has excluded
the reasonable possibility of a false recording.
In this regard the
English headnote at 220F correctly reflects what was said by the
learned Judge at 238G-I, namely:
“
That
question has to be answered with reference to the cumulative effect
of all available indications without the State being expected
to
exclude every separate factor which might count in favour of the
accused/appellant. Therefore, where it is alleged that there
is a
strange voice on the recording (which would be an indication of the
recording not being authentic) and the Court is not able
to
determine,
from
its own observations
and with the aid of expert evidence, whether a strange voice does
occur on the recording, the Court’s aforementioned inability
together with all other relevant facts should be considered as part
of the totality of the evidence in order to determine whether
the
reasonable possibility of a false recording has been excluded.”
(Our emphasis)
[40]
In
the result we are satisfied that in order to determine the
authenticity and originality of the recordings and hence their
admissibility,
the first respondent is entitled, and indeed obliged,
to listen to the recordings. The various witnesses, including Mr.
Baird,
will be afforded the opportunity of testifying as to whether
or not the recording accurately portrays the events. The defence
case has not as yet been put to Mr. Baird. If it is the defence case
that the recordings have in some way been manipulated or are
not in
fact an accurate portrayal of the events on the night in question or
that the transcript of the video clips is incorrect
this will no
doubt be raised with the State witnesses during cross-examination and
appropriate evidence will be led in due course.
Compare
S
v RAMGOBIN AND OTHERS
supra
where at 124D Milne JP stated:
“
If witnesses who testify as to
the accuracy of the film or tape recording are not cross-examined,
and/or the accused does not give
any evidence to the effect that the
recording is not accurate, that is clearly an important factor and
may be a crucial one.”
[41]
The
applicant has been afforded the protection of such evidence being led
in the trial-within-a-trial. Should the recordings be
found to be
admissible in evidence the weight to be accorded thereto will still
have to be determined by first respondent at the
end of the case
bearing in mind too that a ruling on admissibility in a
trial-within-a-trial is interlocutory and may be reviewed
at the end
of the trial in the light of later evidence.
S
v MKWANAZI
1966 (1) SA 736
(A).
[42]
Should
they, however, be declared inadmissible then, in the light of what we
have said above, no prejudice will have been occasioned
to applicant.
The applicant complains, however, of the prejudicial effect of first
respondent “
watching
and listening and observing the recordings in Court
”.
Judicial officers are almost daily confronted with similar
situations such as, for instance, where a confession provisionally
held to be admissible is later excluded from evidence or where
hearsay evidence provisionally admitted is later excluded. Their
training equips them to disabuse their minds of such inadmissible
evidence. As van Dijkhorst J put it in
S
v BALEKA AND OTHERS
(1)
supra
at 196F:
“
To sort through contradictory
and often false evidence and sort the wheat from the chaff is the
daily task of the judicial officer.
It is done in the case of viva
voce evidence and can just as easily be done in the case of tape
recordings and videos.”
[43]
In
all the circumstances we are of the view that nothing has been put
before us to show that any grave injustice or failure of justice
is
likely to ensue if the recordings are played in court in the course
of the trial-within-a-trial. That being the case there
are no
grounds upon which this Court may intervene at this stage of the
proceedings in the court below. The application therefore
falls to
be dismissed.
[44]
Applicant
originally sought an order for costs against such of the respondents
as opposed the application. This in turn led Mr.
van Zyl to seek an
order for costs against applicant in the event of the application
being dismissed. Having regard to the fact
that this is a criminal
matter in which an accused is not usually saddled with costs, we are
of the view that it is not appropriate
to make any order as to costs.
Cilliers,
Law
of Costs
(Third
Edition), par. 12.19 – 12.24.
[45]
The
following order is made:
The
application is dismissed.
____________
_
_____________
S.P.B.
HANCKE J.D PICKERING
JUDGE JUDGE
On
behalf of applicant:
Adv.
B.R. Tokota SC
Assisted
by:
Adv.
Z.Z. Matebese
Instructed by:
S. Ngomane Inc.
PRETORIA
On behalf of second
respondent: Adv. Z.J. van Zyl SC
Instructed by:
The State Attorney
PRETORIA