S v Van Staden (30/08) [2008] ZANCHC 20 (22 April 2008)

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[2008] ZANCHC 20
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S v Van Staden (30/08) [2008] ZANCHC 20 (22 April 2008)

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No
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IN
THE HIGH COURT OF SOUTH AFRICA
(Northern Cape
Division)
High
Court Review Case No: 30/08
Magistrate
Case No: 1149/2007
Date
delivered: 2008-04-22
In
the review matter of
:
THE STATE
versus
JENINE
VAN STADEN ACCUSED
Coram
:
MAJIEDT J
et
OLIVIER
J
JUDGEMENT
ON REVIEW
MAJIEDT J:
“
When
the case and the available evidence are considered, I have a
distinct feeling of unease about the proceedings
”.
These
are the remarks of the Regional Magistrate to whom this matter had
been forwarded for sentence in terms of the provisions contained
in
s116(1)(a) of the Criminal Procedure Act, 51 of 1977 (“
the
Criminal Procedure Act”
).
The Regional Magistrate has forwarded this matter for review in
terms of
s116(3)
of the
Criminal Procedure Act to
this Court, since
he harbours grave reservations regarding the correctness of the
conviction herein. I share the Regional Magistrate’s
sense of
unease and also his reservations with regard to the correctness of
the conviction; in fact I am of the view that for the
reasons which
follow, the conviction has not been in accordance with justice and it
ought to be set aside.
The
accused had been convicted in the District Court on a charge of
assault with intent to do grievous bodily harm. The matter
was
referred to the Regional Court for sentence due to the very serious
nature of the injuries sustained by the complainant (he
had lost his
right eye as a consequence of the assault on him).
Upon
perusing the record of the proceedings herein, one is extremely
troubled by the manner in which this matter has been conducted.

Generally speaking, the prosecutor was hopelessly inept, the defence
attorney failed dismally to represent the interests of his
client
and the attempt by the trial Magistrate to elucidate the perplexing
and confusing morass of evidence before him, culminated
in a
travesty of justice against the accused.
The
versions advanced by the State and the Defence (insofar as it is
possible to extract some comprehension from the proceedings
on
record) are mutually destructive. On the State’s version, the
complainant had been drinking with friends at a tavern and
the
accused was also present. According to the complainant, he did not
know the accused at all. The accused had joined their group,
since
she appeared to be known to some of the accused’s companions
present there at the tavern. They later left the tavern and
some of
the people in the complainant’s company went home. The accused
thereafter requested the complainant to accompany her
to her aunt’s
place where she was going to sleep that night. On their way a male
friend of the accused joined them and accompanied
them on the
journey to the accused’s aunt’s house. Upon arrival at their
destination, the accused requested the complainant
to wait outside
while she and the said male friend disappeared around the house.
They returned after about five minutes or so
and the accused said
they should leave there. According to the complainant he was
walking in front when he was suddenly struck
by a bottle on his
shoulder and thereafter stabbed with a broken bottle in the right
eye. This was done by the accused. According
to the complainant,
he was also pelted with stones by the accused’s companion. After
this assault the accused and her companion
fled the scene.
The
accused’s version is diametrically opposite to that of the
complainant. In the explanation of her not guilty plea, her
attorney
merely tendered a bare denial. In her evidence she denied
that she was ever at the tavern with the accused, and she denied
that
she had been in the company of him or his friends during that
evening in question, or that she had ever assaulted him. She
indicated
that she was at home at the time of the incident in
question.
The
manner in which the evidence of both the complainant and the accused
were led by the prosecutor and the defence attorney respectively,
leaves much to be desired. The Magistrate had to intervene on
countless occasions during the complainant’s evidence in chief
to
clarify matters and to direct the prosecutor to lead the evidence
more sensibly and more logically. Furthermore, cross-examination
of
the prosecutor and the defence attorney of respectively the accused
and the complainant, were quite poorly done. In the end,
the
evidence before the Magistrate initially consisted of these two
mutually destructive versions of the complainant and the accused.
After
a number of postponements, the evidence having been concluded and
judgment having been reserved, the State applied at the
continuation
of the proceedings for leave to call a further witness. This
application was granted on the basis that the accused
had apparently
relied on an alibi as defence, which defence was never disclosed
previously. The State then called a witness who
was in the company
of the accused on the night in question. This witness was pathetic,
to say the least. He testified that he
remembered going to a tavern
and that he had become so drunk that he cannot recollect anything
subsequently. The Magistrate quite
correctly held in his judgment
that he could not place any reliance whatsoever on this witness’s
evidence.
After
the prosecutor and the defence attorney had again addressed the
trial court on the merits of the matter, the proceedings were
adjourned and judgment reserved. On the resumption of the matter,
the Magistrate decided to call a witness in terms of
s186
of the
Criminal Procedure Act, namely
the police officer who had arrested
the accused. It is not immediately clear to me why the Magistrate
decided to call specifically
the arresting officer on the issue of
the accused’s alibi. Such a step would normally presuppose some
knowledge on the Magistrate’s
part that the specific witness would
be of some assistance in the matter. On the other hand it may, of
course, be the proverbial
shot in the dark. Be that as it may, it
is a somewhat puzzling aspect.
The arresting officer,
constable Van Wyk testified that she had taken up the investigation
by interviewing the complainant, who
had indicated to her that he
knew the accused by sight and knew where she lived. They then
proceeded to the accused’s aunt’s
house, but did not find her
there. While driving in the township to follow up information on
another docket which constable Van
Wyk was carrying, the complainant
suddenly pointed out at a taxi rank the accused who was seated
there. According to constable
Van Wyk she approached the accused
and confronted her with the complainant’s allegations that the
accused was the person who
had assaulted the complainant by stabbing
him with a broken bottle in the right eye. Constable Van Wyk
testified further that
the accused replied that she knows that she
has been drinking with the complainant, but that she did not assault
the complainant.
At this point the complainant, who was still
present, again insisted that it was in fact the accused who had
assaulted him. Thereupon
the accused was arrested by constable Van
Wyk. At no stage was the accused informed of her constitutional
rights, in particular
of her right to remain silent, prior to her
disseminating the aforementioned information to constable Van Wyk.
The
trial Magistrate convicted the accused largely as a consequence of
the evidence introduced by the
s186
witness, namely constable Van
Wyk. In his judgment the trial Magistrate says the following:
“
I
must admit that if the court only had the version of these two people
(and here the trial Magistrate is referring to the complainant
and
the accused), the court would have had doubts as to whether the
accused was guilty or not. It is so because the accused pleaded
an
alibi and did not have the duty of proving her alibi. Hence the
court decided in order to have a clear picture, called this witness
–
that is an independent witness – the officer who went to arrest the
accused. The accused person, the evidence of this witness
was not
challenged whatsoever. As such, it remained intact. It was never
challenged despite of the serious allegation that has
been said by
the accused. I want to quote again a very important aspect on the
evidence of this witness. I quote,
‘
The accused said
she had drinks with the complainant, but never assaulted the
complainant.’
If you match or
compare this evidence with the evidence of the accused – the
accused who said in her evidence, I know nothing about
this case, I
do not know the complainant – those two version are at the extreme
ends of the universe, but strangely enough the
defence never
challenged the witness who put the accused on the scene.”
It is
correct, as the Magistrate indicates in the preceding extract from
his judgment, that the evidence of constable Van Wyk was
never
challenged at all by the attorney appearing for the accused. This
is extremely puzzling and disconcerting, but is actually
par for the
course as regards the defence attorney’s generally poor handling
of the accused’s defence in this matter.
An
aspect pertinently raised by the Regional Magistrate who had sent
this matter for review, is whether the fact that the accused
had not
been informed at all of her right to remain silent and of the
consequences of not remaining silent, had not rendered the
trial
unfair. In his reply to the request for reasons on this aspect, the
District Magistrate responded that, since the accused
had not
provided self-incriminatory information, this breach of her
fundamental right to remain silent did not in fact render the
trial
unfair.
Section
35(1)(b) of the Constitution, Act 108 of 1996 (“
the
Constitution”
)
enshrines an accused person’s right to be informed promptly of the
right to remain silent and the consequences of not remaining
silent.
Section 35(5) provides as follows:
“
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.”
These
rights to silence are a natural consequence of the fundamental
presumption of innocence contained in the Bill of Rights in
the
Constitution. In this regard Kentridge AJ put it as follows in
S
v Zuma and others 1995(2) SA 642 (CC)
at par. 33:
“…
.that
the common-law rule in regard to the burden of proving that a
confession was voluntary has been not a fortuitous but an integral
and essential part of the right to remain silent after arrest, the
right not to be compelled to make a confession, and the right
not to
be a compellable witness against oneself. These rights, in turn, are
the necessary reinforcement of Viscount Sankey's 'golden
thread' -
that it is for the prosecution to prove the guilt of the accused
beyond reasonable doubt …. Reverse the burden of proof
and all
these rights are seriously compromised and undermined.”
In considering whether a
trial is rendered unfair by unconstitutionally obtained evidence,
the question of prejudice to the accused
is of substantial
relevance. See in this regard
S v
Soci 1998(2) SACR 275 (E)
at
294;
S
v Lottering 1999[12] BCLR 1478 (N).
The
nature and degree of the prejudice will determine whether the
admission of evidence will lead to an unfair trial. See
S
v Nombewu 1996(2) SACR 396 (E)
at 421 – 422.
As a
general rule, self-incriminating evidence derived from an accused
person and obtained in violation of his or her rights under
the Bill
of Rights, would be more likely to result in a finding that its
admission would render the trial unfair than would the
production of
real evidence obtained in violation of the accused person’s
rights. See in this regard the
dictum
of
Heher AJA in
S
v Myeni 2002(3) All SA 599 (A)
at
616 F-G. In the Canadian decision of
R
v Collins 28(1987) CRR 122
at
137 it is stated thus:
“
Real
evidence that was obtained in a manner that violated the Charter will
rarely operate unfairly for that reason alone. The real
evidence
existed irrespective of the violation of the Charter and its use does
not render the trial unfair. However, the situation
is very
different with respect to cases where, after a violation of the
Charter,
the
accused is conscripted against himself through a confession or other
evidence emanating from him
.
The use of such evidence would render the trial unfair, for it did
not exist prior to the violation and it strikes at one of the
fundamental tenets of a fair trial, the right against
self-incrimination.”
(the emphasis is mine)
The
relevant factors to be considered in determining whether the
admission of unconstitutionally obtained evidence will be
detrimental
to the administration of justice, are not circumscribed.
The exclusionary clause contained in s35(5) of our Constitution
corresponds
very closely with the Canadian exclusionary clause, thus
our Courts often rely on Canadian authority in seeking an answer to
the
question as to which factors ought to be considered in deciding
whether the evidence would otherwise be detrimental to the
administration
of justice. From the Canadian case referred to
above, namely
R
v Collins
,
the following factors may be extrapolated:
a) The
nature of the evidence obtained (for example real, already extant
evidence or incriminating evidence derived from the accused
himself/herself);
b) The
importance of the right, derived from the Bill of Rights, that has
been infringed;
c) The
seriousness of the infringement;
d) The
nature of the infringement (i.e. was it deliberate, or unplanned and
in good faith);
e) Did
the infringement take place in circumstances of urgency or necessity?
f) Would it have been
easy to obtain the evidence without infringing the rights of the
accused under the Bill of Rights?
g) The gravity of the
offence;
h) Was
the evidence essential to prove the State’s case?
i) The availability of
other remedies.
In
their work
Law
of Evidence
(loose leaf publication), Schmidt and Rademeyer at 1-24 thereof, in
a discussion on the provisions contained in the Bill of Rights
which
affect the admissibility of evidence, express the view that the most
important provisions in the Bill of Rights for the exclusion
of
constitutionally inadmissible evidence are those that deal with the
accused’s right to remain silent and the requirement that
he/she
must be informed of this right and of the consequences of not
remaining silent. I share this view. As indicated above,
this
particular right lies at the cornerstone of the fundamental
principle of a presumption of innocence which is enshrined in
the
Bill of Rights. An accused person cannot be expected to prove the
State’s case for it. This, essentially, is the rationale
behind
this constitutional principle.
In
the present matter, I have no doubt whatsoever that the accused was
gravely prejudiced by the admission of this unconstitutionally
obtained evidence emanating from constable Van Wyk. While it may
appear at first blush that the information given by the accused
is
not self-incriminating, ultimately and on a conspectus of all the
evidence, it is indeed the case. The Magistrate rejected
the
accused’s version solely by reason of the fact that her version
that she was at home and not present at the tavern in the
accompany
of the complainant and his friends, contrasted sharply with the
version given by her to constable Van Wyk, namely that
she was in
fact drinking with the complainant on the day in question. Put
differently, the Magistrate convicted the accused on
the strength of
evidence that she had in fact, as the complainant had testified,
been in the company of the complainant as corroborated
by the
accused’s response to constable Van Wyk’s confrontation. This
unconstitutionally obtained evidence therefore formed
the only basis
for the accused’s conviction. I have already earlier in this
judgment quoted in full the extract from the trial
Magistrate’s
judgment in which he had indicated (correctly so in my view) that on
the respective versions of the complainant
on the one hand and that
of the accused on the other, he would not have been able to convict
the accused. Understood in the context
of this matter as a whole,
it therefore means that the evidence of constable Van Wyk proved to
be decisive in the end for the conviction
of the accused.
Quite apart from the
aforementioned fundamental problem regarding constable Van Wyk’s
evidence, there are a number of other difficulties
which I have with
her evidence. These are:
Constable Van Wyk’s
testimony that the complainant had informed her that he knew the
accused by sight and knew where she stayed,
is in direct contrast
with the complainant’s own testimony that he did not know the
accused at all and that he had met her
on the day of the incident
for the first time. This evidence was confirmed under
cross-examination. This is obviously a material
contradiction.
The evidence proffered
by constable Van Wyk that the accused said that she remembered
drinking with the complainant contains no
reference whatsoever to
date or place. In other words, there is no indication at all that
this drinking with the complainant
had occurred on the evening in
question at the tavern.
Related
to par. 21.2
supra
,
is the further troubling aspect that the trial Magistrate engaged
in extensive leading questioning of constable Van Wyk and
eventually got her to confirm that the accused had admitted “
having
been with the complainant the previous day or the previous night
”.
This was not the evidence which the constable had given at first.
Furthermore and in any event, the incident could not
have occurred
on the previous day or previous night, given the fact that the
complainant had spent at least one day in hospital
after the
assault during which time his right eye was removed.
The
fact that, as I have said, these aspects,
supra
,
were not canvassed at all under cross-examination by the defence is
most disconcerting.
A
further fundamental omission occurred when the trial Magistrate
failed to grant the State and defence an opportunity to consider
re-opening their respective cases after the evidence of constable
Van Wyk. It is axiomatic that this failure also caused the
accused
substantial prejudice.
In
the premises, therefore, it seems to me that, given the substantial
prejudice suffered by the accused with the reception of the
unconstitutionally obtained evidence, she was prejudiced to the
extent that her trial was rendered unfair. In applying the
guidelines
outlined in the
Collins
matter,
supra
,
taking into account the nature of the evidence obtained
(self-incriminating evidence emanating from the accused), the
importance
of the right to remain silent, the seriousness of the
infringement and the nature thereof, the fact that it was not
necessary for
the infringement to take place due to circumstances of
urgency and necessity and that it would have been easy to obtain
other evidence
without infringement of the accused’s rights, the
admission of such evidence would also be detrimental to the
administration
of justice.
The
question that next arises is what is the effect of the accused’s
attorney’s failure to object to the admission of this potentially
damning evidence. The failure to object to inadmissible evidence
does not make it automatically admissible. In a criminal trial,
such as the present one, an accused person can raise the point on
appeal (or as is the case here it could be considered on review
by
us) despite his/her failure to object during the trial. See in this
regard generally:
S v Bondi 1962(4) SA
671 (A)
S v Dlova 1986(3) SA 248 (NC) at 251 F-H
Consequently, the failure
by the accused’s attorney to object to the introduction of this
unconstitutionally obtained evidence as
regards its inadmissibility,
is not fatal for a decision on review.
In the premises
therefore, for the aforegoing reasons, I am of the view that the
accused has had an unfair trial and that the conviction
should be
set aside accordingly.
I issue the following
order:
The
accused’s conviction of assault with intent to do grievous bodily
harm is hereby set aside.
______________
SA MAJIEDT
JUDGE
I concur.
____________
CJ OLIVIER
JUDGE