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[2001] ZAWCHC 6
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S v Ferreira and Others (SS81/2000;9542/2000) [2001] ZAWCHC 6; [2001] 3 All SA 366 (C) (19 March 2001)
IN THE HIGH COURT OF
SOUTH AFRICA
(CAPE OF GOOD HOPE
PROVINCIAL DIVISION)
CASE NO: SS81/2000
9542/2000
In the matter between:
THE STATE (duly
represented by the Director
of Public
Prosecutions, Western Cape, hereinafter
referred to as "the
Respondent")
Respondent
and
ANDRe MANUAL
FERREIRA
First Accused
CHRISTOPHER WILLIE
WESSO
Second Accused
STEPHEN GEORGE CARSE
VERMEULEN
Third Accused
JUDGMENT GIVEN ON 19
MARCH 2001
H
J ERASMUS AJ
;
The
first accused is charged with the murder of Duminsani Edmund Zwane
("Zwane"). He has in the meantime died and the
charges
against him have been formally withdrawn.The second and third accused
are charged with being accessories to the murder
and, alternatively,
defeating the ends of justice.
The trial was due to
begin on 5 March 2001.
On 29 December 2000 the
second accused gave notice that at the trial an application would be
brought interdicting the Director of
Public Prosecutions from
proceeding with the prosecution. Affidavits were filed by and on
behalf of the second accused as applicant,
and the State (represented
by the Director of Public Prosecutions, Western Cape) as respondent.
On
5 March 2001 the application was argued as a point in limine before
the accused were asked to plead. Mr D Uijs SC appeared for
the second
accused; the respondent was represented by Mr MA Albertus SC and Mr S
Schippers.
The
relief sought
In his Notice of Motion,
the second accused seeks the following relief:
1. Interdicting and
restraining the abovenamed Respondent from proceeding with the
prosecution against the abovenamed Second Accused,
as at the date
aforesaid or on any date thereafter, or with any other prosecution
which is based on the same facts and circumstances;
2. Alternatively to that
which is contained in prayer 1 herinabove, and only in the event of
the above Honourable Court declining
to grant the order contained
therein:
2.1 Interdicting and
restraining the abovenamed Respondent from instructing, permitting or
allowing Advocate Kevin Rossouw and/or
Advocate De Kock and/or any
other member of his staff who
(a) took part in the
interview held on 30 July 1999 with the abovenamed Second Accused, as
a State witness, or any interview held
with him thereafter as such a
witness; and/or
(b) has knowledge of what
was asked of the abovenamed Second Accused and/or was said by him
and/or was pointed out by him during
any such interview from
conducting, taking part in or assisting in any way in the said
prosecution of the abovenamed Second Accused,
or any other
prosecution which is based on the same facts and circumstances;
(c) directing the
abovenamed Respondent to instruct the persons referred to in prayers
2.1(a) and 2.1(b) hereinabove to retain as
secret and confidential
the knowledge which they possess in consequence of their taking part
in the interviews referred to in those
prayers or which they possess
concerning those interviews, which knowledge has been received from
any other source whatsoever;
(d)
directing the abovenamed Respondent to cause all forms of information
and/or evidence obtained from the abovenamed Second Accused
during
the interviews referred to in prayers 2.1(a) and 2.1(b) hereinabove,
including tape recordings and transcripts of such tape
recordings, to
be destroyed,
alternatively
to be stored in a safe place and kept secret from all persons, until
the trial of the abovenamed Second and Third Accused is brought
to
finality.
The background
The background to the
application needs to be sketched in no more than the broadest
outline. The second accused is a sergeant in
the South African Police
Service. During 1999 he was stationed at Hout Bay. On 11 May 1999 he
was on duty with other police officers.
He was a passenger in a
police vehicle driven by inspector Ferreira ("Ferreira")
who later became the first accused.
At about 9h30 they received a
radio message that there had been an armed robbery in Cape Town and
that the suspects were on their
way towards Hout Bay in a beige BMW
motor vehicle. Ferreira and the second accused, accompanied by
sergeants Lesch and Gouws, were
parked at the turn-off to Llandudno
and kept the road from Camps Bay to Hout Bay under observation.
A beige BMW approached
from the direction of Camps Bay. Shortly before the vehicle reached
the turn-off to Llandudno, it swung around
and sped back towards
Camps Bay. The police set off in pursuit and succeeded in forcing the
BMW to a standstill. The occupants
jumped out and one of them ran
away. Warnings to stand still were shouted and warning shots were
fired. Ferreira fired several
shots and one of the occupants was
fatally wounded.
Ferreira
was subsequently arrested and charged with murder, the State case
being that Ferreira fired the fatal shots after the fleeing
suspect
had been wounded and was lying on the ground. The second and third
accused were arrested on a charge of being accessories
to the murder
and, alternatively, defeating the ends of justice.
The consultation with
second accused on 30 July 2000
The second accused's
application arises from an interview or consultation in the offices
of the Director of Public Prosecutions
in Cape Town on 30 July 1999.
There are factual disputes between the parties as to what precisely
had transpired at the interview.
The version of the facts
given by the second accused can be summarised as follows:
He made a statement to
the police on 11 May 1999. On 30 July 1999 he was invited to attend a
consultation with Advocate Kevin Rossouw
("Rossouw"), a
senior member of the staff of the Director of Public Prosecutions.
The interview was also attended by
Advocate De Kock ("De Kock"),
a colleague of Rossouw on the staff of the Director of Public
Prosecutions.
He was under the
impression that he was a state witness in the case against Ferreira
and that the purpose of the interview was to
discuss the evidence he
was to give in that capacity. No word was said about the possibility
that he might be charged along with
Ferreira and he was not warned
that he was a suspect.
After the interview had
been going on for a while, Rossouw asked him whether he would mind if
the interview was taped. The second
accused says that -
"Nie wetende dat hy
alreeds beplan het om my te voeg as 'n beskuldigde in Ferreira se
saak nie, het ek toestemming verleen
tot die opneem van ons onderhoud
op band".
A long, aggressive and
difficult "interrogation" ("'n lang, aggressiewe and
moeilike 'ondervraging'") followed.
On the same day, the
second accused and Rossouw visited the scene of the alleged crime and
the second accused pointed certain things
out to Rossouw. There is no
written record of what he said or pointed out during the visit to the
scene.
The second accused says
that because he was not warned that Rossouw regarded him as a
"suspect" and because Rossouw proceeded
to interrogate him
under the guise of consulting with him as a state witness, his right
to a fair trial has irrevocably and irretrievably
been subverted.
The version of the facts
given by Rossouw differs materially from that of the second accused:
Rossouw, in the first
place, denies that as at 30 July 1999 a decision had already been
taken by the Director of Public Prosecutions
to prosecute Ferreira
and that he, Rossouw, had been appointed to conduct the prosecution
against him. He accordingly denies that
the second respondent could
have conceived of himself as being a state witness in the prosecution
of Ferreira and that he was treated
as such during the consultation.
Rossouw says that at the
commencement of the interview with the second accused on 30 July 1999
it was explained to him:
1. The Director of Public
Prosecutions has not as yet made any decision as to whether or not to
prosecute Ferreira or any other
person in connection with the death
of Zwane
2. The fact that the
Independent Complaints Directorate had arrested Ferreira did not mean
that a prosecution would necessarily
be instituted against him.
3. The version of events
given by sergeant Rhyno Gouws incriminated Ferreira.
4. It was apparent that
the statement made by the second accused on 11 May 1999 was identical
to that of Ferreira.
5. They (ie Rossouw and
De Kock) would like to afford the second accused and others the
opportunity of giving a more detailed account
of the events than what
was contained in their statements.
6. The second accused
could choose to make a statement before the Director of Public
Prosecutions would take a decision as to what
the true facts are and
whether or not those facts constituted and offence.
7.
The second respondent was under no obligation to give a
'
further explanation than what he had already given, but if he
chose not to do so, a decision would have to be
taken without the advantage of his version of the events.
8.
If he wished to make a statement, the
second accused could first obtain legal advice or approach the legal
services of the police,
and his legal adviser could be present when
he gave the statement.
9.
If a decision were later taken to prosecute
him, any statement he made would not be used as part of the case
against him.
Rossouw further says that
it was only at a much later stage, after a decision had been taken to
prosecute Ferreira, and after consultations
had been conducted with
various other witnesses, that the joining of the second and third
accused as co-accused with Ferreira was
first considered.
In his answering
affidavit, Rossouw states that he has no intention of putting the
statement made at the consultation into evidence
during the
presentation of the case for the prosecution ~
"save
under circumstances where parts of the statement were to be elicited
by the defence or Wesso [ie second accused] were
to give evidence in
his own defence and adduce a version contrary to the said statement.
The State will then seek leave to put
the said statement into
evidence in order to impeach the credit of Wesso".
Are the proceedings
interlocutory in nature?
Mr
Albertus submitted that inasmuch as the criminal trial has as yet not
commenced against the accused, the prosecution against
them is
presently in the nature of unterminated proceedings and as such the
present application is interlocutory in nature. He
accordingly relied
strongly upon the well-known, and frequently followed, statement in
Wahlhaus and Others v Additional Magistrate,
Johannesburg and Another
1959 (3) SA 113
(A) at 120A that while a superior court having
jurisdiction in review or appeal will be slow to exercise any power,
whether by
mandamus or otherwise, upon the unterminated course of
criminal 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. Recent cases in which this principle was applied,
include S v Friedman (2)
1996 (1) SACR 196
(W); S v The
Attorney-General of the Western Cape; S v The Regional Magistrate,
Wynberg and Another
1999 (2) SACR 13
(C), and Sapat and Others v The
Director: Directorate of Organised Crime and Public Safety and Others
1999 (2) SACR 435
(C). It was contended that this is not one of those
rare cases where grave injustice might otherwise result if the Court
does not
interfere before criminal proceedings have been finalised.
Mr
Uijs submitted, rightly in my view, that the present application is
not interlocutory in nature and that the principles set out
in
Wahlhaus and Others v Additional Magistrate, Johannesburg and
Another, supra, do not apply to the proceedings. The application
in
this matter is for an interdict barring the continuation of the
prosecution ~ the second accused seeks the final termination
of the
proceedings by way of a permanent stay of the prosecution.
Stay of the
prosecution
In
Sanderson v Attorney-General, Eastern Cape
1998 (2) SA 38
(CC) where
a stay of prosecution was sought on the ground that there had been an
unreasonable delay in the prosecution, it is stated
(at par [38] )
that the relief sought ~
"is radical, both
philosophically and socio-politically. Barring the prosecution before
the trial begins -- and consequently
without any opportunity to
ascertain the real effect of the delay on the outcome of the case ~
is far-reaching. Indeed it prevents
the prosecution from presenting
society's complaint against an alleged transgressor of society's
rules of conduct. That will seldom
be warranted in the absence of
significant prejudice to the accused."
The
principle enunciated by Kriegler J is one of long standing in our
law. In Attorney-General of Natal v Johnstone & Co Ltd
1946 AD
256
at 261 Schreiner JA said:
"Now there is no
doubt that, in general where it is alleged by the Crown that a person
has committed an offence, the proper
way of deciding on his guilt is
to initiate criminal proceedings against him; and where such
proceedings have already, commenced,
even if the stage of indictment
only has been reached, it seems to me that a court which is asked to
exercise its discretion by
entertaining proceedings for an order
expressly or in effect declaring that the accused is innocent would
do well to exercise great
caution before granting such an order. In
most types of cases such an order would be entirely out of place".
Though
the application in this matter does not arise from an alleged delay
in the prosecution, I am satisfied that the considerations
of policy
and the test enunciated by Kriegler J in Sanderson v
Attorney-General, Eastern Cape, supra, apply to the second accused's
application for a stay of the prosecution in this matter.
"Significant
prejudice" which would warrant the stay of a prosecution is
clearly something more than prejudice to an accused
which can be
remedied by another, appropriate remedy. In Sanderson v
Attorney-General, Eastern Cape, supra, where it was sought
to bar a
prosecution on the ground of delay, the following is said in this
regard ( at par [39]):
"Ordinarily, and
particularly where the prejudice alleged is not trial-related, there
is a range of 'appropriate' remedies
less radical than barring the
prosecution. These would include a mandamus requiring the prosecution
to commence the case, a refusal
to grant the prosecution a remand, or
damages after an acquittal arising out of the prejudice suffered by
the accused. A bar is
likely to be available only in a narrow range
of circumstances, for example, where it is established that the
accused has probably
suffered irreparable trial prejudice as a result
of the delay".
In
North Western Dense Concrete CC and Another v Director of Public
Prosecutions (Western Cape)
1999 (2) SACR 669
(C) the Director of
Public Prosecutions reneged on a negotiated plea agreement and
reinstituted the charges against the applicants.
A stay of the
prosecution was granted on the ground, inter alia, that the
applicants had no other remedy:
"Indeed, I can think
of no other way in which the rights of such persons can be adequately
protected."
{North
Western Dense Concrete CC and Another v Director of Public
Prosecutions (Western Cape), supra, at 683j).
The second respondent
says, in essence, that his right to a fair trial has been undermined,
and that he can in fact never have a
fair trial, because his right to
remain silent has been violated, that there has been an invasion of
his legal professional privilege
and that, as a result, the
prosecution knows what his defence is. The second accused further
says that the prosecution continues
to violate those rights and that
they want to use privileged information against him (and, no doubt
ultimately) the third accused.
In
Klein v Attorney-General, Witwatersrand Local Division and Another
1995 (3) SA 848
(W) an application was brought for the stay of the
prosecution on the ground that the prosecution had penetrated
information of
a confidential nature which was privileged and that it
accordingly had knowledge of the defence the accused intended to
raise.
It was contended that it would be impossible for the
prosecution to "unlearn" the information and that it was
therefore
impossible for a fair trial to be held. In this regard Van
Schalkwyk J stressed (at 862D) that there has "never been a
principle
that a violation of any of the specific rights encompassed
by the right to a fair trial would automatically preclude the trial',
and that before a stay of prosecution could be granted, "the
nature and extent of the violation must be properly considered".
Van Schalkwyk J proceeds
to say (at 862E--G) that in evaluating the nature and extent of an
irregularity, regard should be had to
the circumstances under which
it took place:
"A
very serious violation of an accused's legal professional privilege,
for instance, might give rise to the conclusion that
the accused was
per se thereby deprived of the right to a fair trial, and the
circumstances under which the violation took place
might then be of
little or no consequence. Conversely, a relatively trivial violation
might have taken place under circumstances
so fundamentally inimical
to the accused's constitutionally guaranteed rights that the court
will, as a matter of principle, refuse
to uphold a conviction where
the proceedings were so tainted."
A
"very serious violation of an accused's legal professional
privilege" would be that which took place in S v Mushimba
en
Andere
1911 (2) SA 829
(A). In that case a "spy" in the
offices of the attorneys of the accused, throughout the trial
furnished the security
police, without the knowledge of prosecuting
counsel, with privileged information relating to the defence. In
setting aside the
conviction and sentence of each of the appellants,
Rumpff CJ said (at 841H):
"Die volledige
uitskakeling van die privilegie is na my mening nie net 'n
onreelmatigheid nie, maar 'n uiters growwe onreelmatigheid
wat sover
dit privilegie betref beswaarlik oortref kan word. Dit ly ook geen
twyfel dat die skending van die privilegie in die
onderhawige saak
die verrigtinge geraak het nie".
The learned Chief Justice
concludes (at 845F):
"Ek meen dat in die
onderhawige saak weens die aard en omvang van die skending van die
privilegie van die appellante dit bevind
moet word dat die appellante
se beskerming deur privilegie voor en gedurende die verhoor totaal
verdwyn het deur die optrede van
die Veiligheidspolisie, dat daardeur
die verhoor nie voldoen het aan wat geregtigheid in hierdie opsig
vereis nie en dat geregtigheid
dus nie geskied het nie."
In
North Western Dense Concrete CC and Another v Director of Public
Prosecutions (Western Cape), supra, a different kind of violation
of
an accused person's rights was considered sufficiently serious to
warrant a stay of prosecution. A negotiated plea agreement
had been
reached in terms of which the prosecution agreed to withdraw the
charges against the applicants in exchange for one M
pleading guilty
to the charges. When a third party applied for a certificate nolle
prosequi, the Director of Public Prosecutions
instead reinstituted
the charges against the applicants. In granting an application for an
order interdicting the Director of Public
Prosecutions from
proceeding with the prosecution, Uijs AJ said (at 683h—-j):
"In
my view, instances where solemn agreements were concluded between
accused persons and the prosecuting authorities, in terms
whereof
those accused persons gave up certain rights in exchange for an
abandonment of prosecution, are instances where a stay
of prosecution
would be the appropriate remedy, where the State subsequently appears
to renege on what it had offered as a quid
pro quo. My view is
supported by the American authorities to which I have referred."
In
the present matter, the alleged violation of the second accused's
rights consisted of the failure to warn him of his right to
remain
silent and his right to counsel. In regard to the circumstances under
which the violation took place, the second accused
says, in essence,
that he was tricked into making the statement. Rossouw, on the other
hand, says that the second accused was fully
and adequately warned
before he made his statement. There is, therefore, as to the precise
circumstances under which the statement
was made, a dispute of fact
which cannot be resolved on the papers. On the second accused's own
version, he was misled into making
the statement, but there is no
suggestion that he was induced into making a statement, the contents
of which did not emanate from
himself. In fact, he says that he
believed he was being consulted as a state witness and gave an honest
version of the events to
Rossouw. There was no unlawful penetration
of privileged information such as that which occurred in S v Mushimba
en Andere, supra,
or in Klein v Attorney-General, Witwatersrand Local
Division and Another, supra. At best for the second accused, on his
own version,
it may be said that the representatives of the
respondent may not have acted with the professional detachment which
they should
as the prosecuting authority have observed in the
circumstances (see S v Nakedie and Another
1942 OPD 162).
The fact that the
prosecution has knowledge of matters pertaining to an accused's case
does not necessarily constitute "irreparable
trial prejudice"
which would warrant barring the prosecution. In fact, the prosecution
often has knowledge of matter which
forms part of an accused's case
and which may not be admissible in evidence against the accused at
the trial. The accused may have
made an extra-curial confession which
is inadmissible in evidence under the provisions of the
Criminal
Procedure Act 51 of 1977
; or, the prosecution may have come into
possession of documents by way of unlawful search and seizure. The
mere fact that the prosecution
has such knowledge does not amount to
a violation of an accused person's right to a fair trial.
Mr
Uijs posed the question whether, if the activities of the "spy"
in S v Mushimba en Andere, supra, had become known
prior to the
commencement of the trial, an application for an order barring the
continuation of the prosecution would have been
warranted? The
circumstances postulated may well fall within the "narrow range
of circumstances ... where it is established
that the accused has
probably suffered irreparable trial prejudice ..." {Sanderson v
Attorney-General, Eastern Cape, supra,
at par [39] ). The difference
between the circumstances postulated and the present matter, is that
the accused in this matter has
an effective remedy, "less
radical than barring the prosecution", in that the trial judge
may rule that the statement
made by the second accused may not be
used for any purpose at the trial {Sanderson v Attorney-General,
Eastern Cape, supra, at
par [39]). That is also the difference
between this matter and North Western Dense Concrete CC and Another v
Director of Public
Prosecutions (Western Cape), supra, in which it
was explicitly held that no other remedy than a stay of prosecution
was available.
Is the application is
premature?
Mr Albertus submitted
that the application is premature in that the respondent has
indicated that the statement will not be used
as part of the
prosecution's case against the second accused. Should the second
accused at the trial elect to give evidence in
his own defence, the
prosecution would not be able, without more, to use the statement in
the cross-examination of the second accused.
The trial judge may, in
the event of any objection by the defence, rule that the statement is
inadmissible, in which event the
statement may not be used by the
prosecution.
In
this regard reference may be made to Kommissaris van Binnelandse
Inkomste v Van der Heever
1999 (3) SA 1051
(SCA) at 1059E where it is
said:
"Op sy eie weergawe
staan dit dus glad nie vas dat die respondent ooit uitgevra sou word
oor ander aspekte wat hy as vertroulik
en gepriviligeerd beskou nie.
Die kwessie van privilegie kon dus goed moontlik nooit ter sprake
gekom het nie. Tot tyd en wyl hy
oor 'n gepriviligeerde aspek
ondervra sou word, en hy ondanks 'n beroep op privilegie verplig sou
word om te antwoord, was daar
geen rede om die aansoek te loods nie".
It
was submitted, as a general proposition, that a trial judge in
criminal proceedings is the person best placed to determine the
admissibility of evidence. In Klein v Attorney-General, Witwatersrand
Local Division and Another, supra, the applicant sought an
order, in
the alternative to a stay of the prosecusion, that the information in
certain documents should be declared inadmissible
in the trial
action. The response of the learned presiding Judge (at 865H) was
that -
"any such order
would amount to an unwarranted intrusion upon the right of the trial
court to regulate its procedural matters
in accordance with its own
discretion".
In
Key v Attorney-General, Cape Provincial Division and Another
[1996] ZACC 25
;
1996 (4)
SA 187
(CC) it was endeavoured to exclude evidence of material
garnered in the course of a search and seizure at a future criminal
trial.
In paragraph [14] of the judgment it is said ~
"If the evidence to
which the applicant objects is tendered in criminal proceedings
against him, he will be entitled at that
stage to raise objections to
its admissibility. It will then be for the trial Judge to decide
whether the circumstances are such
that fairness requires the
evidence to be excluded. It follows that the applicant is not
entitled to an order from this Court in
these proceedings that the
evidence secured as a result of the searches and seizures will be
inadmissible in criminal proceedings
against him."
In
Sapat and Others v The Director: Directorate of Organised Crime and
Public Safety and Others, supra, the applicants sought an
order to
prevent the production of evidence at a future criminal trial on the
basis of a constitutional challenge to the validity
of the Act of
Parliament in terms of which the evidence was obtained. In dismissing
the application, Davis J said (at 443c):
"I consider that
these questions should be determined by the trial court when
appraised of the full factual context within
which this evidence is
sought to be admitted. In this way a correct balance between the
right to due process and the imperative
of crime control can be
struck."
That
this is the correct approach to be adopted in this matter is also
apparent from S v Mushimba en Andere, supra. It will be recalled
that
in this matter, criminal proceedings were on appeal set aside because
a "spy" in the offices of the attorneys of
the accused had
furnished the security police with privileged information relating to
the defence. At 840C--F Rumpff CJ said the
following:
"Klaarblyklik
het 'n mens nie hier te doen met 'n enkele gepriviligeerde dokument
of verklaring wat tot die kennis van die
verteenwoordigers van die
Staat gekom het nie. Indien dit wel so 'n geval was, skyn dit
duidelik te wees dat die inhoud van so
'n dokument of verklaring
toelaatbaar sou wees en dat daar nie noodwendig van benadeling van
die beskuldigde sprake kan wees nie.
Hoe so 'n dokument of verklaring
verkry is, sou egter wel 'n faktor kon wees by die oorweging of dit
toelaatbaar is of nie. In
hierdie verband kan verwys word na wat deur
die Privy Council gese is in Kuruma Son ofKaniu v Reginam,
[1955] 1
All ER 236
op bl 239:
'No
doubt in a criminal trial the Judge always has a discretion to
disallow evidence if the strict rules of admissibility would
operate
unfairly against an accused. This was emphasised in the case before
this Board of Noor Mohamed v Regem, [1949] 1 All ER
at p.370, and in
the recent case in the House of Lords of Harris v Public Prosecutions
Director, [1952] 1 All ER, at p 1048, per
Viscount Simon. If, for
instance, some admission of some piece of evidence, eg a document had
been obtained from a defendant by
a trick, no doubt the Judge might
properly rule it out.'
Dit is egter onnodig om
in hierdie saak in te gaan op die vraag wanneer so 'n dokument of
verklaring toelaatbaar sou wees. Daar
is verskillende uitsprake in
ons eie reg en in die Engelse reg wat nie op 'n vasomskrewe beginsel
wys nie, en die moontlikheid
van 'n diskresionere bevoegdheid van die
Hof is waarskynlik nie uitgesluit nie."
Whether
or not the prosecution would in our law be allowed to cross-examine
the second accused on the statement he made to Rossouw
and De Kock is
not clear. In S v Sibusiso Makhatini and Others (unreported, Durban
and Coast Local Division, Case number CC73/97,
21 November 1997)
questions aimed at discrediting an accused by putting to him
statements made to the investigating officer were
not allowed on the
ground that there had not been the customary warning in terms of the
Judges' rules and the accused had not been
informed of his rights in
terms of section 35 of the Constitution. In his judgment, Hurt J
referred to the judment of the
American
Supreme Court in the matter of Harris v State of New York
401 US 222
in which the majority held that statements made by an accused to
police officers, without the accused having been properly apprised
of
his rights, while not admissible for the purpose of proving the State
case against him, can properly be put to the accused in
cross-examination to challenge his credibility. The ratio of the
majority of the Supreme Court is that an accused elects of his
own
volition to give evidence and that the Court should not implicitly
encourage an accused to commit perjury by putting up a lying
defence.
It was held that the shield provided by Miranda v Arizona
[1966] USSC 130
;
384 US 436
cannot be perverted into a license to use perjury by way of a defence
free from the risk of confrontation with prior inconsistent
utterances.
The
minority emphasised the rights enshrined under the Constitution, and
by virtue of cases such as Miranda v Arizona
[1966] USSC 130
;
384 US 436
, took the
view that to allow previous contradictory statements, otherwise
inadmissible, to be put to an accused in cross-examination,
would be
allowing inadmissible evidence "through the back door".
A
conclusion similar to that of the minority in Harris v State of New
York, supra, was reached in R v Murray Colder 46 CR (4th)
133, a case
decided under the Canadian Charter of Rights and Freedoms. The
circumstances of the case are similar to the present
matter in that
the accused was a police officer who had made a statement when
interviewed by two officers who did not inform him
of his right to
counsel. The Supreme Court of Canada, however, kept the door open by
holding that in some future case a trial judge
might decide that
there were "special circumstances" warranting reception of
such a statement for the limited purpose
of impeaching credibility.
From
the debate following upon the decisions in Harris v State of New
York, supra, (see John C Filippini
1970-71 (22) Syracuse Law Review
685-714)
and R v Murray Colder, supra, (the uncertainties arising
form this decision are considered by David Rose 46 CR (4th) 151 and
Ian
D Scott 46 CR (4th) 161) this much is at least clear, the
admissibility of such a statement, and the issues of principle and
policy
which arise, are to be determined by the trial judge when
appraised of the full factual context within which the evidence is
sought
to be admitted. This is also in accordance with our law as is
apparent from, for example, Klein v Attorney-General, Wirwatersrand
Local Division and Another, supra; Key v Attorney-General, Cape
Provincial Division and Another, supra, and Sapat and Others v
The
Director: Directorate of Organised Crime and Public Safety and
Others, supra.
In
my view the second accused has not demonstrated an entitlement to an
order barring the prosecution.
The alternative claim
The respondent has given
an undertaking that Rossouw will not conduct the prosecution against
the accused. Another member of the
staff of the Director of Public
Prosecutions has been appointed to undertake the prosecution. The
relief sought in paragraphs 2.1(a)
and (b) of the Notice of Motion
accordingly does not arise for consideration.
The
further claim for an order that knowledge of what had transpired at
the interview on 30 July 1999 be retained as secret and
confidential,
and tape recordings (and transcripts of tape recordings) be destroyed
or kept secret until the trial is brought to
finality, cannot be
granted. The statement taken at the interview, and the tape recording
thereof, constitute evidential material
of which the admissibility,
if the prosecution desires to make use of it at the trial of the
accused, is to be determined by the
trial judge.
The third accused
The
third accused has associated himself with the relief sought by the
second accused on the ground that to allow the respondent
to make use
of the information and evidence obtained from the second accused
under what he terms "circumstances of prosecutorial
impropriety"
may well impact on the fairness of his trial. The third accused has
not demonstrated how the statement, if used
in any way against the
second accused, will impact adversely on his trial. The extra-curial
statement made by the second accused
would not be admissible in
evidence against the third accused (R v Matsitwane and Another 1942
AD .213; S v Banda and Others
1990 (3) SA 466
(BGD) at 502E—504E).
Costs
The parties are agreed
that there should be no order as to costs. In the result, the
application is dismissed.
H
J ERASMUS, A J