S v Orrie and Another (SS 32/2003) [2004] ZAWCHC 25; 2005 (1) SACR 63 (C); [2005] 2 All SA 212 (C) (14 October 2004)

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[2004] ZAWCHC 25
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S v Orrie and Another (SS 32/2003) [2004] ZAWCHC 25; 2005 (1) SACR 63 (C); [2005] 2 All SA 212 (C) (14 October 2004)

IN THE HIGH COURT OF
SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE NO. SS 32/2003
In
the matter between:
THE
STATE
and
MOGAMAT
PHADIEL ORRIE
Accused
No 1
MOGAMAT
SAMIR ORRIE
Accused
No 2
______________________________________________________________
JUDGMENT : 14 OCTOBER 2004
______________________________________________________________
BOZALEK
J:
These are reasons for a ruling made on
2 August 2004 holding inadmissible a statement made by accused number
2 to Captain Clark of
the Serious and Violent Crimes Unit at Bishop
Lavis on 28 December 2000.
The defence contested the
admissibility of the statement, initially on the grounds that the
accused had not been made aware that he
was a suspect and had not
been warned of his right to silence and right to legal
representation. At a later stage it was put by
the defence that the
accused’s attitude was that if he had known that he was a suspect
and ‘had rights’, he would have remained
silent and waited for
his lawyer.
Accordingly
a trial within a trial was held to determine the admissibility of the
statement. During this trial, the evidence of Captain
Clark
(‘
Clark’
)
and
two other police witnesses, as well as that of the accused, was
heard.
In
determining whether the statement is admissible, the following
questions arise:
Was the accused a suspect and, if so,
was he informed of his status as a suspect?
If the accused was a suspect, was he
entitled to the rights of an arrested or detained person?
Was the accused adequately informed
of his constitutional rights?
In light of the answers to the above
questions, is the statement admissible against the accused?
Background
On
26 December 2000 the bodies of two witnesses in a witness protection
programme were discovered at a so-called ‘safe house’
in Gouda, a
small village some 100 kilometres from Cape Town. A person or
persons unknown had made a forced entry into the house
and shot the
couple. A day or so earlier, around the time when the murders were
committed, a police officer patrolling the area
had come across an
unattended pickup-truck (‘
the
vehicle
’)
and had noted the registration number. This information was conveyed
to the investigating team and enquiries revealed that the
registered
owner of the vehicle was accused number two (‘
the
accused
’).
The investigating detectives, including Clark, were aware that the
accused’s brother was himself an accused in a pending
urban terror
case in which the murdered couple were to be State witnesses and as a
result of which they had been placed in the witness
protection
programme. A search warrant was obtained for the accused’s
residence as well as for the vehicle.
On
the morning of 28 December 2000, whilst driving his vehicle in
Athlone, the accused was stopped by police. Clark was contacted
and
proceeded to the scene where he spoke to the accused and asked him to
accompany him to his offices at Bishop Lavis. There the
accused was
questioned and a witness statement was taken from him which, on the
face thereof, was exculpatory. The accused was at
no stage arrested
or detained. At Clark’s request, he left his vehicle behind,
ultimately, for several months. According to him,
Clark wanted to
show the vehicle to someone. The accused’s witness statement was a
sworn one but was not made on the standard
form used when taking a
statement from a suspect.
Such
a form, a so-called SAPS 3M, is entitled ‘
Statement
regarding interview with suspect
’
and contains two pages of instructions directed principally at the
police member taking the statement. In paragraph 2 it provides
for a
suspect to be informed that information exists which indicates that
he/she may have been involved in the commission of an offence/s,
advising the suspect of the nature of the alleged offence/s, and the
relevant time period or date and the place of commission of
the
alleged offence/s. Provision is made for the suspect to be asked
whether he/she understands the aforegoing allegations. Paragraph
3
contain the form of the warnings which must be conveyed by the member
to the suspect and deals with the right to remain silent
and the
right to legal representation. Provision is made for the suspect to
be told that he or she has the right to remain silent
and is not
compelled to make any statement or to answer any question and, of
particular importance in this matter, that any statement
made or
anything said, would be written down and could be used as evidence in
a court of law. Provision is also made for the suspect
to be told
that he/she has the right to consult with a legal practitioner of
choice or, if preferred, to apply to the Legal Aid Board
to be
provided with the services of a legal practitioner at State expense
which legal practitioner may be present during the interview.
The evidence
regarding the accused’s suspect status and the warnings issued to
him
Clark testified that, upon
encountering the accused in Athlone, he informed him that his vehicle
had been seen near the scene of a
crime and that he was seeking an
explanation from him. He suggested that the accused accompany him to
his offices at Bishop Lavis.
He also stated that he warned the
accused, at the roadside, of his right to silence, his right not to
incriminate himself and his
right to legal representation.
According to Clark, the accused was
again informed of his rights in the interrogation room in Bishop
Lavis, on this occasion in greater
detail. This took the form of him
advising the accused that his vehicle had been seen 200 metres from
the crime scene, that it was
considered a suspect vehicle and that,
as it was registered in his name, an explanation was sought from him.
The accused was also
told that he had the right to legal
representation and, if needs be, to a lawyer through the legal aid
system. He was also informed
that he had the right to remain silent,
that he was not obliged to make a statement and that ‘he should not
incriminate himself’.
According
to Clark, notwithstanding these warnings, the accused was
co-operative and elected to give an explanation and to have that
recorded in a written statement. Earlier, when informed of the
sighting of his vehicle at a murder scene, the accused had asked
whether it related to the killing of the couple under the witness
protection programme. Clark’s evidence of the warnings which
he
gave to the accused at Bishop Lavis was confirmed in broad outline by
the evidence of his colleague, Captain Van Dyk, who was
present in
the interrogation room for a period. He testified that the accused
was informed by Clark of his right to remain silent,
his right to
legal representation and that he need not incriminate himself.
According to both witnesses the accused was completely
at ease and
willingly co-operated.
In his testimony, however, the
accused stated that he had at no time been advised of his rights and
that throughout he had never felt
as if he was a suspect. He
conceded that he was told why an explanation was sought from him
regarding the whereabouts of his vehicle
but insisted that he was
merely told that a vehicle similar to his was seen at the scene of
the crime. He stated that he did co-operate
with the police and had
made a statement voluntarily but said that if he had been warned of
his rights he would have taken legal
advice and would not have made a
statement as he would then have appreciated the seriousness of the
case. Against this background
the questions set out above must be
determined.
Was the accused a
suspect and, if so, was he informed of his status as a suspect?
On the State’s own case the accused
was never told in explicit terms that he was a suspect. Captain
Clark only made reference to
the vehicle being a suspect vehicle.
However, in light of the fact that it was seen near the scene of the
crimes shortly before
the murders combined with the linkage between
the accused’s brother and the deceased (a linkage which provided a
possible motive
for the accused’s involvement in the killings), it
is quite clear that he was regarded as a suspect by the investigating
officer.
Section
35 of the Constitution of South Africa, Act 108 of 1996, (‘
the
Constitution’
)
deals
with the rights of arrested, detained and accused persons and it is
here, in my view, that the rights of a suspect must be found.
No
provision is made for a suspect to be specifically informed of this
status, but it stands to reason that a person must be informed
that
he/she is a suspect, or at least be aware thereof, in order that he
or she can properly consider and exercise his or her rights
before
interacting with the police. Paragraph 2 of the suspect interview
form referred to above is instructive. It provides,
inter
alia,
for the suspect to be advised that information exists indicating that
he/she may have been involved in the commission of an offence/s.
In
other words, the person at risk is not told in specific terms that
he/she is a ‘
suspect
’.
It appears to be assumed, correctly so in my view, that a person so
apprised will appreciate that he/she is a ‘
suspect
’.
In the present matter the accused was
told of the details of the crime as regards its time, place and
nature and in fact indicated
to the police that he was already aware
thereof. He was told furthermore that his vehicle was seen near the
scene of the crime at
the relevant time. When the accused gave
evidence, there was no indication that he would not have understood
the situation in which
he found himself. Neither was it suggested by
the defence that, for some reason, the accused would not have
appreciated the necessary
implications of being advised of these
details. It is so that the accused insisted that he never felt like
a suspect and that a
very friendly atmosphere prevailed. However, in
my view, the accused’s claim that he did not realise that he was a
suspect is
disingenuous. Any person of normal intelligence in the
accused’s position would have realised that he was regarded as a
suspect
and that it was for that reason that the police were seeking
an explanation from him. In the result, I consider that the
information
given to the accused by the police adequately conveyed to
him that they regarded him as a suspect.
Was the accused
entitled to the rights of an arrested or detained person?
The relevant sections of the Bill of
Rights in the Constitution read as follows:
‘
Arrested,
detained and accused persons
35(1) Everyone who is arrested for
allegedly committing an offence has the right –
to remain silent;
to be informed promptly
of
the
right to remain silent
;
and
of
the
consequences of not remaining silent
;
(c) not to be compelled to make any
confession or admission that could be used in evidence against that
person;
(2) Everyone who is detained,
including every sentenced prisoner, has the right:
(a) ...
(b) to
choose,
and to consult with a legal practitioner
,
and to be informed of this right
promptly;
to
have
a
legal practitioner assigned to the detained person by the State and
at State expense, if substantial injustice would otherwise
result
and
to be informed of this right promptly;
... ‘ (own emphasis)
At
the material time the accused was neither an arrested, detained nor
an accused person, but merely a suspect. The State conceded,
however, that the accused was entitled to be warned of “his
rights”, a concession which I consider to have been correctly made.
In
S
v Sebejan and Others
1
the
Court considered whether a suspect could lay claim to the rights
enjoyed by arrested, detained and accused persons under section
25 of
the Interim Constitution.
2
Satchwell J expressed the view that although the Constitution was
silent with regard to a suspect’s rights, such a person is indeed
entitled to ‘
fair
pre-trial procedures
’.
She held further that ‘[t]
hese
include the rights which would accrue to an accused when arrested:
the right to remain silent and the right to be informed of
the right
to remain silent; the right to be informed of the consequences of
making any statement; the right to choose and to consult
with a
legal practitioner and to be informed of this right promptly.
’
3
The principle enunciated in
Sebejan
(
supra
)
that a suspect is entitled to fair pre-trial procedures, most notably
the warnings to which an accused is entitled, received qualified
support in
S
v Ndlovu.
4
In
S
v Langa and others
5
the Court declined to follow
Sebejan
(
supra
)
on the grounds that a suspect did not enjoy the rights of an arrested
or detained person. Futhermore, it noted, the views expressed
in
Sebejan
(
supra
)
were
obiter
by
reason of the fact that the accused was held not to be a suspect at
the time of the taking of the statement. Most recently, in
S
v Mthethwa
6
the Court similarly declined to follow
Sebejan
(
supra
),
again on the basis that section 35 of the Constitution does not
afford rights to a suspect. However, the Court, per Pickering
J
(Sangoni J concurring), found that a suspect was entitled to be
cautioned or warned before being questioned by the police. The
Court
reached this conclusion on the basis of Rule 2 of the 1931 Judges
Rules and the finding in
S
v Van Der Merwe
7
that
‘[w]
anneer
'n persoon volgens Regtersreëls gewaarsku word, word daar inderdaad
in my siening uiting gegee aan die bepalings van die Grondwet
want
die aard en omvang van daardie Regtersreëls sal lei tot die
behoorlike beskerming van die gearresteerde en/of beskuldigde se
regte.
’
Notwithstanding a judicial reluctance to extend what can broadly be
described as the right to fair pre-trial procedures already
enjoyed
by arrested, detained and accused persons to suspects, I find the
reasoning in
Sebejan
(
supra
)
persuasive. I respectfully concur with the conclusion reached by
Satchwell, J that, no less than an accused, a suspect is entitled
to
fair pre-trial procedures.
An
interpretation of the relevant provisions of section 35 which extends
them to suspects is, to my mind, in keeping with a purposive
approach
which has regard to the interests which the rights were intended to
protect.
8
Moreover it accords with the views expressed by the Constitutional
Court in
S
v Zuma and others
9
that the ‘right to a fair trial’ 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. It was held further in
Zuma
(supra)
that all courts hearing criminal matters must give content to the
notion of ‘basic fairness and justice.’
This
approach is endorsed by the authors of
South
African Constitutional Law: The Bill of Rights.
10
They observe that unless the Constitution’s pre-trial rights are
extended to suspects as well, investigating authorities could
simply
leave potentially accused persons in the category of ‘
suspect
’,
thus enabling themselves to collect evidential material from the
‘
unwary
,
‘
unsilent’
,
unrepresentative
and unwarned suspect’.
11
Was the accused
informed of his constitutional rights?
The next enquiry is whether the
accused was indeed warned of his pre-trial rights and involves an
evaluation of conflicting evidence
placed before the Court. On the
one hand the accused testified that he was at no stage warned of any
rights which he enjoyed and
on the other hand there is the evidence
of Clark and Van Dyk that the accused was warned of his right to
silence, his right not to
incriminate himself and his right to legal
representation.
Taking
into account that the events in question took place nearly three and
a half years previously, Clark gave his evidence with
clarity and
left a favourable impression as a witness. His evidence was not
materially shaken in cross-examination and was borne
out in important
respects by that of Van Dyk. The accused, however, did not create a
favourable impression as a witness. His recollection
of the events
of the day seemed extremely poor. This was strange given that what
happened to him was not an every day experience,
whereas for the
police officers involved the accused was simply another suspect to be
interviewed, albeit one in an important case.
The accused stated on
numerous occasions that he was not sure of one or other aspect of his
testimony or could not recall any detail
thereof. The only fixed
points in his evidence were his insistence that he never ‘
felt
’
like a suspect and that he received no warning as to his rights. His
certainty on these key issues, contrasted with the vagueness
of the
rest of his evidence, suggested that his denial that he was informed
of his rights was a stock response rather than the truth
of what took
place. One example of the unsatisfactory nature of the accused’s
evidence will suffice. The accused testified that
he did not drive
his vehicle alone to the police offices but was accompanied by a
police passenger. Clark’s earlier evidence,
however, had been that
the accused drove to his office unaccompanied and this was not
challenged in cross-examination. When asked
how he recalled that he
was accompanied, the accused stated that it was because of a
conversation he had with the policeman in question
but, when asked,
he could not recall the topic of the conversation. The accused had
considerable difficulty in answering questions
during
cross-examination and many of his replies were preceded by lengthy
silences.
The probabilities also do not favour
the accused’s version. He concedes that he was told of the
circumstances which gave rise to
the police wanting an explanation
from him as to the whereabouts of his vehicle and himself. As I have
already noted, this would
render it apparent to any person of
ordinary intelligence that he/she was a suspect. The statement which
the accused gave was exculpatory
and it would have availed him to
give the police an explanation which might satisfy them,
notwithstanding his being informed that
he enjoyed the right to
remain silent and to legal representation. Furthermore, the accused
repeated claims that, had he been informed
of his rights, he would
not have made a statement as he would then have realised the
seriousness of the matter, also ring somewhat
hollow. Given the
allegations conveyed to him by the investigating officer, it is most
improbable that he did not realise the seriousness
of the situation.
Another weakness in the accused’s evidence was his insistence that
the police stipulated that a vehicle similar
to his was seen near the
scene of the crime. Not only was this factually inaccurate, since if
that was the case, the police would
not have been able to trace the
accused through the vehicle’s registration number, but it was also
not put to Clark when he testified
that the accused was not told that
his vehicle had been seen near the scene of the crime.
Most
telling, however, was evidence which only came to light during
cross-examination of Van Dyk when defence counsel called for the
investigation diary and requested him to read out various entries.
Unexpectedly, the following entry made on the same day that the
statement was taken from the accused came to the fore: ‘
Op
28-12-2000 vergesel eienaar na (ondersoekbeampte) se kantoor… Hy is
gewillig om (ondersoekbeampte) te vergesel. Hy het geen
klagtes nie.
Hy is mnr M S Orrie…. Hy word verwittig waarom hy by die kantoor
[sic]
.
Hy het geen klagtes nie. Hy word meegedeel dat hy sy
regsverteenwoordiger mag hê en sy grondwetlike regte is aan hom
verduidelik.
Hy word meegedeel dat hy vrywillig ‘n verklaring kan
aflê en een hoef te verstrek nie
[sic].
Hy stem egter vrywillig in om ‘n verklaring te verstrek sonder dat
sy regsverteenwoordiger teenwoordig is. Hy is bewus gemaak
dat hy
homself nie moet inkrimineer nie. Hy verstaan dit. ...’
This diary entry was not even mentioned by Captain Clark in his
evidence and in my view it is cogent corroboration that the accused
was apprised of certain of his rights prior to his making a written
statement. Taking all these circumstances into account, I have
no
hesitation in accepting the evidence of the police officers above
that of the accused.
This
is not the end of the matter, however, since it must now be
determined whether the warning given to the accused adequately
informed
him of his rights under the Constitution. The evidence, not
least the contemporaneous diary entry referred to above, clearly
establishes
that the accused was informed of his right to remain
silent and of his right to choose and consult with a legal
practitioner. What
is less clear is whether the accused was informed
of the consequences of his not remaining silent (section
35(1)(b)(ii)) and whether
he was informed that, in appropriate
circumstances, he was entitled to a legal practitioner assigned by
the State (section 35(2)(c)).
Clark
dealt with the subject matter of his warnings to the accused several
times in his evidence in chief and was consistent in his
description
thereof. The elements of his warning were that the suspect had the
right to remain silent, to be represented by a lawyer
and that he
should not incriminate himself. This last element of the warning
however suggests Clark’s lack of familiarity with
the terms of a
proper warning since it is illogical and self-defeating to warn a
suspect, from whom a statement is sought, that he
must not
incriminate himself. Moreover, it was only under cross-examination,
and then somewhat unconvincingly, that Clark mentioned
telling the
accused that whatever he said could be used against him. Again, only
during cross-examination did Clark testify that
he had informed the
accused of his right to a legal aid practitioner. Clark stated on
several occasions that in warning the accused
he used the ‘
volle
rympie’
,
referring
presumably to a standard warning which he gave to all suspects. But
he was never asked, nor did he explain, what the recitation
comprised. Captain Van Dyk confirmed that Clark had recited the
‘
volle
rympie’
when
he warned the accused, but also did not explain what it contained.
He added, however, that he could not specifically remember
Clark
mentioning the Legal Aid Board, nor warning the accused that whatever
he said could be used against him. He stated moreover
that, although
his recollection was not clear, he doubted whether Clark had warned
the accused that any statement he made could be
used against him
later because by the time Clark had decided to take the statement
from the accused, he was approaching him as a
witness and not as a
suspect.
It
is evident from the SAPS 3M form (Paragraph 3(b)) that the standard
warning entails advising a suspect that any statement that
he/she
makes will be written down and ‘
may
be used in evidence in a court of law’
.
Similarly, paragraph 3(c) makes provision for a suspect to be
advised of his right to the appointment of counsel at State expense.

However, neither police witness claimed that the standard suspect
interview form had been used as a basis for the warnings given
to the
accused and it is common cause that it was not used to record the
accused’s statement.
The accused was asked whether he had a
lawyer at the time to which his answer was no. He stated that he
would have tried to get hold
of one and that he could have afforded
one. This renders his formal reliance on the failure to advise him
of his right to a legal
aid lawyer, problematic and, incidentally,
casts further doubt on one of the mainstays of his evidence, namely,
that if he had been
informed of his rights, he would have called his
lawyer.
As
I have indicated, there can be no doubt that the accused was informed
of his right to remain silent and to choose and consult with
a legal
practitioner. The question of whether he was informed of the
consequences of making any statement and that he was entitled
to a
legal aid lawyer must turn on Clark’s version of events as the
principal figure. The difficulty for the State in this regard
is
that these elements of the warning are neither confirmed by the
contemporaneous written note, nor by any explicit reliance on
a
standard form. They emerged only under cross-examination and in
response to direct questions from counsel as to whether Clark
had
mentioned to the accused the legal aid aspect or the consequences of
making a statement. Even then Clark’s answers were somewhat
tentative, particularly on the latter aspect. In the circumstances I
cannot find that the State has proved beyond any reasonable
doubt
that these components of a warning were communicated to the accused.
Is the statement
admissible against the accused?
Against
the above evaluation the question is whether the statement made by
the accused is admissible against him. Mr
Van
Der Berg
for the accused, relying on the judgment of the Supreme Court of
Canada in
R
v Brydges,
12
concentrated
his fire on the failure to apprise the accused of his potential right
of access to State funded counsel. There the Court
held that police
have a positive duty to inform an accused, as part of a
constitutionally enshrined caution, not only of the right
to counsel,
but of the existence of ‘
duty
counsel
’
and a legal aid plan in order that the accused is in a position to
take full advantage of his/her constitutional rights. The
Court held
further that it was not necessary for there to be a causal link
between the Charter violation and the evidence sought
to be excluded.
As long as a Charter
violation occurred in the course of obtaining the evidence, a
sufficient nexus between the breach and evidence
will exist for the
purposes of exclusion under section 24(2) of the Charter.
Counsel
also relied on a judgment of the new Brunswick Court of Appeal in
R
v Voisine
13
going even further than
Brydges
(
supra
).
There
the appellant was informed of his right to retain a lawyer and his
right to free and immediate advice from duty counsel if the
lawyer of
his choice was not available within a reasonable time or if he could
not afford a lawyer. The Court held that the warning
given to the
arrested person, and notwithstanding that he had the means to afford
a lawyer, improperly suggested that he could only
utilize ‘
duty
counsel
’
in the limited circumstances described above, and thus did not
adequately explain the absolute right to duty counsel (legal aid
representation). A statement made by the accused unassisted after
the improper warning was ruled inadmissible.
However,
as appears from the provisions of section 35(5) of our Constitution,
it favours a more practical, if not a more nuanced,
approach to the
exclusion of evidence obtained in violation of a constitutional
right, one in which the keystone is the right to
a fair trial.
Section 35(5) provides that evidence obtained in a manner violating
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.’
In
Key
v Attorney General, Cape Provincial Division, and Another,
14
decided under the Interim Constitution,
the
Constitutional Court, per Kriegler J, speaking of the tensions
inherent in any democratic criminal justice system stated as follows:
‘
What
the Constitution demands is that the accused be given a fair trial.
Ultimately, ..., fairness is an issue which has to be decided
upon
the facts of each case, and the trial Judge is the person best placed
to take that decision. At times fairness might require
that evidence
unconstitutionally obtained be excluded. But there will also be
times when fairness will require that evidence, albeit
obtained
unconstitutionally, nevertheless be admitted.’
15
The
theme of fairness was taken up in
S
v Marx and Another
16
where,
in dealing with the question of how often an accused should be
informed of his or her right to legal representation or assistance,
Cameron J stated:
‘
It
should be borne in mind always that the matter is one of fundamental
fairness. As Kentridge AJ said in the
Zuma
case, the question is always whether the criminal trial is conducted
in accordance with notions of basic fairness. Basic fairness
does
not require formalistic repetition. Basic fairness likewise does not
require inappropriate or undue formalism. Mere formalism,
... , may
indeed constitute a clog on the proper and efficient performance of
police duties’.
The
discretion afforded to the Court under section 35(5) of the
Constitution was considered recently by the Supreme Court of Appeal
in
S
v M
17
and
Pillay
and others v S.
18
The
judgment of the court
a
quo
in
Pillay’s
case
is reported as
S
v Naidoo and another.
19
In
S
v M
(
supra
)
it was noted that real evidence procured by illegal or improper means
is generally more readily admitted than evidence which depends
on the
say so of a witness since such evidence does not usually possess an
objective reliability and tends to ‘
conscript
the accused against himself.
’
20
In
Pillay’s
case (
supra
)
the evidence sought to be excluded by reason of a breach of the
accused’s constitutional rights was “real” evidence, namely,
money found in the ceiling of the accused’s house. The Court held
that the admission of the evidence would not render the accused’s
trial unfair because it would, in any event, have been found by the
police through other means. In proceeding to deal with the concept
of ‘
bringing
the administration of justice into disrepute’
the
Court found it useful to consider the line of Canadian cases on the
question. It held that a determination of whether the admission
of
evidence would have such an effect required a value judgement
involving a consideration of the interests and views of the public
which themselves may change from time to time. In performing such an
exercise, all relevant circumstances should be considered,
including
the kind of evidence obtained, the nature of the constitutional right
infringed, the seriousness of the breach and whether
the evidence
would have been obtained by other means.
The
initial enquiry in this matter must, however, be whether the
admission of the evidence obtained in violation of an accused’s
constitutional rights, would render the trial unfair. This
requirement was more fully dealt with by the Court in
S
v Naidoo
(
supra
)
which found guidance in recent Canadian cases, keeping in mind the
similarities between section 35(5) of the Constitution and its
Canadian counterpart. The Court quoted with approval from
R
v Jacoy
21
and
R
v Collins
22
to
the effect that where the admission of such evidence would effect the
fairness of the trial, it would tend to bring the administration
of
justice into disrepute and as such would generally be excluded.
23
Thus
the first issue in the present matter must be whether the
shortcomings in the warning or communication to the accused rendered
his trial unfair. In this regard the question of the nature and
extent of the prejudice suffered by the accused becomes relevant.
As
far as the question of state aided legal representation is concerned,
no basis at all was laid in the evidence to suggest that
the accused
would ever have relied on State provided counsel, either then or at
any later stage. Throughout the trial the accused
has made use of
privately funded counsel. In my view, the omission from the warning
given to him of this aspect of the accused’s
rights did not lead to
his suffering any prejudice at all. In the circumstances, to attach
any weight to this omission would be
to elevate form above substance.
I am mindful that in
Brydges
(supra
)
the Canadian Supreme Court laid down that no causal link was required
between the shortcoming in the warning to the accused and
the
evidence sought to be excluded. Whilst there may be good reasons for
adopting such an approach, not least the benefits of standardizing
this and other aspects of the warning to persons during pre-trial
procedures, neither section 35(5) of the Constitution nor the right
to a fair trial inevitably requires the blanket exclusion of evidence
obtained in breach of a suspect’s right to be apprised of
his/her
right to legal aid counsel, notwithstanding the lack of materiality
of such breach. For the reasons which follow it is unnecessary
for
me to consider whether the admission of such evidence would
nevertheless be detrimental to the administration of justice and,
as
such, fall to be excluded for this reason.
It
now remains to consider whether the failure to advise the accused
that his statement could be used against him rendered his trial
unfair. Here, it appears to me, notwithstanding the exculpatory
nature of the statement, the considerations are much clearer. The
right not to be compelled to incriminate oneself in criminal matters
is a hallowed one and a fundamental tenet of a fair trial.
24
Furthermore, although a statement may on the face thereof appear
exculpatory, it may nevertheless have prejudicial consequences
for
the statement maker, for example, where the statement maker has
furnished a false exculpatory explanation. In these circumstances
I
can see no reason why statements of such a nature should not, for the
purposes of deciding on their admissibility following a breach
of the
statement maker’s constitutional rights, be determined on the same
basis as confessional statements. In both cases the
suspect or the
accused is conscripted to give evidence against him or herself. The
keen tussle around the admissibility of the statement
in the present
matter in itself an indication of the weight which it may carry.
Thus in the present instance, although the disputed
statement is
apparently not confessional in nature, I must assume that it
compromises the accused in some way.
In my opinion, the admission of such a
statement obtained without a warning that it may be used against the
maker will inevitably
taint the fairness of any subsequent trial.
The statement in question was obtained from the accused in violation
of the constitutional
duty to inform him that any statement he made
could be used against him in later proceedings. As such I hold it to
be inadmissible
against the accused. Again, the conclusion which I
have reached renders it unnecessary to consider the question of the
effect of
the admission of the statement on the administration of
justice.
For these reasons I ruled that the
written statement made by the accused on 28 December 2000 could not
be admitted in evidence against
him.
…………………………………
BOZALEK,
J
1
1997
(8) BCLR 1086
(T)
2
Act
200
of 1993
3
At
page 1096I-J
4
1997
(12) BCLR 1785 (N)
5
1998
(1) SACR 21
(T)
6
2004
(1) SACR 449
(E)
7
1998
(1) SACR 194
(O) at 200a-b
8
See
Soobramoney
v Minister of Health, Kwazulu-Natal
[1997] ZACC 17
;
1998 (1) SA 765
(CC) at para 17
9
[1995] ZACC 1
;
1995
(2) SA 642
(CC)
10
Cheadle,
Davis & Haysom,
South African Constitutional Law: The Bill of Rights
Butterworths, Durban (2002)
11
At
p 631
12
Canadian
Rights Reporter
46 CRR 236
, judgment delivered on 1 February 1990
13
Canadian
Rights Reporter
20 CRR 258
, judgment delivered on 24 February 1994.
I have unfortunately only had access to an English version of the
headnote of the judgment
as the judgment was handed down and
reported in French.
14
[1996] ZACC 25
;
1996
(4) SA 187
(CC)
15
At
196A-C
16
1996
(2) SACR 140
(W)
17
2002
(2) SACR 411
(SCA)
18
2004
(2) BCLR 158
(SCA)
19
1998
(1) SACR 479
(N)
20
At
432b-d
21
(1988)
38 CRR 290
at 298
22
(1987)
28 CRR 122
at 137 and 140
23
Naidoo
(
supra
)
at 526a-h
24
As
discussed in
Ferreira
v Levin NO and Others; Vryenhoek and Others v Powell NO and Others
1996
(1) SA 984
(CC)
(1996 (1) BCLR 1)
at paras 91-100