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[1989] ZASCA 49
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S v Sampson and Another (342/87) [1989] ZASCA 49; [1989] 4 All SA 699 (AD) (31 March 1989)
/wlb Case No 342/87
SUPREME CUURT OF SOUTH AFRICA APPELLATE DIVISION
In the appeal of:
JOHNNY SAMPSON
First Appellant
and
RAYMOND FARRED
Second
Appellant
versus
THE STATE
Respondent
CORAM
: HOEXTER, BOTHA et MTLNE JJA
DATE OF HEARING
: 21 March 1989
DATE OF JUDGMENT
: 31/3/89
JUDGMENT
MILNE
JA/
-2-
MILNE
JA:
At about 1 .30 p.m. on Friday, 17 June 1983, near the Edenmore Shopping
Centre in Edenvale, a Mr Achamer was robbed of some R28 000
which he had drawn
on behalf of his employers and which was in a black briefcase. The robbers
initially used a Ford Cortina motor
car, registration number BRL 081 T ("the
Cortina") to get away from the scene. They then drove the Cortina to a car park
on Tenth
Avenue in Edenvale. There they hurriedly transferred themselves and
their loot to a blue and white Mercedes motor car ("the blue
Mercedes").
Unbeknown to them, an alert and intelligent member of the public, Mrs Denise
Brown, had observed this transfer and, concluding
that a robbery had taken
place, she made a note of the registration number of the blue Mercedes and gave
it to the police. The police
f ound that it was registered in the name of one
Geyser Mostert and found it in
-3-
his possession later that night. This led to Mostert and a number of others
being charged in the Regional Court with the robbery,
the theft of the Cortina
and another charge which is not relevant to this appeal. A number of the accused
were found guilty of the
robbery and the theft. Amongst them were accused nos 4
and 9. They appealed against their convictions and sentences to the Transvaal
Provincial Division but the appeals were dismissed. With leave of that court
they appealed to this court against their convictions.
During the trial the Regional Magistrate admitted the confessions which the
appellants had made to a magistrate. For the sake of convenience
the two
appellants were referred to as accused nos 4 and 9 during the appeal in the
Transvaal Provincial Division and in this court
and I shall continue to refer to
them in that fashion when it is necessary to deal with them separately. After
the
-4-
confessions had been admitted a "warning statement" made by accused no 9 was
also admitted. It was common cause, both in the Transvaal
Provincial Division
and before us, that: (a) the correctness or otherwise of the convictions
depended on whether the confessions
were rightly admitted by the trial court;
and (b) in terms of s217(1)(b)(ii) of Act 51 of 1977 the
onus
of proving
that the confessions were not made freely and voluntarily and without the maker
having been unduly influenced thereto,
lay upon the appellants.
The relevant factual background is set out in great detail in the judgment of
the Regional Magistrate and accurately summarised in
the judgment of SCHABORT J
(with whom VAN ZYL J concurred). I accordingly do not propose to repeat the
facts save to the extent necessary
to provide the
-5-
setting for a proper consideration of the points argued in the appeal.
At the outset I should mention that it is common cause that, at about the
time when the robbery was being committed, accused nos 4,
5 and 9 were together
in a green Mercedes Benz motor car in Voortrekker Avenue, Edenvale, a few blocks
away from where the robbery
was being committed. They were twice stopped and
questioned by the police but nothing untoward having been discovered, they were
allowed to go free. The significance of these events will appear later.
As already mentioned, Geyser Mostert who later became accused no 10 was found
in possession of the blue Mercedes late on the night
of 17 June. Accused no 10
gave inf ormation to the police and took them to accused no 2. Accused no 2, in
turn, pointed out accused
no 9 to the
-6-
police. This was at about 5 a.m. on Saturday, 18 June. Accused no 9 denied
all knowledge of the robbery. About 30 minutes later he
pointed out accused no 4
to the police. According to the evidence of accused no 4, when he was pointed
out by accused no 9 he, accused
no 4, told the police that accused no 9 had
given money to his lover Elizabeth Julius and accused no 9 did not deny this.
Accused
no 2 thereafter pointed out accused nos 1,3,8 and 7 and one Cyril Brown.
At about 11 a.m. on the day of his arrest accused no 4 made
the so-called
"warning statement". On the evening of Sunday, 19 June, the appellants and other
persons who had been arrested in connection
with the robbery were questioned by
the police and it appears that a substantial part of the Sunday night was taken
up with the police
travelling to various places with the two appellants and
other suspects. At 9.35 a.m. on Monday, 20 June, accused no 9 made his
confession
to a magistrate and some three hours later accused
-7-
no 4 made his confession to a magistrate. On the afternoon of the following
day, that is to say, Tuesday, 21 June, all the accused
were taken to the
district surgeon, Dr Chaplin, for medical examination.
At the trial within a trial, which was held in order to determine the
admissibility of the confessions of the appellants, the Regional
Magistrate
heard the evidence of the two appellants and of those other of the accused who
had made confessions. He also heard the
evidence of a large number of other
witnesses including the evidence of various police officers and the district
surgeon, Dr Chaplin,
as well as that of the magistrate who took the conf essions
of the appellants. Both the appellants testified that they had been told
by the
police what to say in their statements. Furthermore, as it was put by the court
a quo
, "Die appellante het albei 'n lang relaas van mishandeling,
-8-
marteling, onbehoorlike beïnvloeding, intimidering en voorsêery
gegee wat na bewering sou uitgeloop het op die aflegging
van die bekentenisse."
These allegations were denied by the police. Furthermore apart from a "blou merk
net onder linkeroog" in the
case of accused no 9 the magistrate who took the
appellants' confessions, did not see any injuries on the appellants. It appears
from the evidence of Dr Chaplin and from the observations of the Regional
Magistrate during the trial which commenced some months
after the arrest of the
appellants, that the "blou merk" may in fact be a permanent discolouration and
not the result of any injury
or assault. Nor did Dr Chaplin see any injuries on
either of the appellants, although he refers, in his reports, to various minor
injuries in the case of other accused. I shall return to the evidence of Dr
Chaplin in due course.
-9-
The Regional Magistrate carefully considered the evidence of all the
witnesses and after having referred to the merits and demerits
of the witnesses
and weighing up the probabilities, came to the conclusion that the appellants
had not discharged the
onus
of establishing that the confessions were
improperly obtained. The Regional Magistrate's judgment is, on the face of it, a
fair-minded
evaluation of all the relevant factors. For example he (rightly)
criticised Dr Chaplin's conduct in not conducting a proper examination
of the
accused and the Magistrate was fully alive to contradictions in the evidence of
W/0 Sacks and W/O Holmes. What is more he
took into account these factors in
evaluating the evidence of these witnesses. In the case of accused no 4 the
Regional Magistrate
found that he was a poor witness who evaded questions in the
witness box. Accused no 9 on the other hand gave his evidence reasonably
well.
He found,
however, that there were material conflicts between the
-10-
versions of the various accused as to the assaults allegedly perpetrated on
them by the police and that in the case of the appellants
there were material
conflicts between their versions of such assaults and conflicts between their
versions of the assaults perpetrated
on them and assaults perpetrated on
Elizabeth Julius (the lover of accused no 9) and the latter's version of such
assaults. The magistrate
also disbelieved the evidence of Elizabeth Julius with
regard to these assaults and found Cyril Brown, who was called as a witness
by
one of the accused, to be an untruthful witness.
The Transvaal Provincial Division, after a full and detailed analysis of all
the evidence and the probabilities, also came to the
conclusion that taking into
account contradictions, inconsistencies and improbabilities in the evidence of
the appellants and Elizabeth
Julius there were serious doubts about the
credibility of the appellants and
-11-
that they had not discharged the
onus
.
Counsel for the appellants did not seek to persuade us that the Regional
Magistrate or the court
a quo
had erred in their appraisal of the
evidence of the appellants and their witnesses. I am satisfied that he was
correct in adopting
this attitude. He submitted, however, that, in effect, the
Regional Magistrate (and the Transvaal Provincial Division) had given
insufficient weight to the combined effect of the following factors:
(a) The improbability of accused no 9 making a
confession in his "warning
statement" within a few
hours of being arrested notwithstanding that he
had
denied all knowledge of the robbery when arrested
unless, so he submitted, accused no 9 had been
assaulted in the interim;
(b) That the police had
admitted using improper methods
-12-
pf interrogation; and (c) That the manner in which the medical examination by
Dr Chaplin was carried out indicated that the police
had "something to
hide".
Similar submissions were made to the Regional
Magistrate and to the Transvaal Provincial Division but, in
argument
before this court, appellants' counsel laid far
greater emphasis upon the
submission that the confessions had
been obtained by improper methods of
interrogation. Passages
in the evidence of Lt van Zyl and Det Sgt Kage were
referred
to in support of this argument. In cross-examination of
the
former, the following passage occurs:
"Luitenant u het gesê dat julle toetse doen, met ander woorde met die
ondervraging is julle besig om te ondervra dan is daar
h sekere toets om te sien
of hulle die waarheid praat of nie. U vat byvoorbeeld die een se verklaring na
die ander een toe en sê
wat sê jy hiervan?, daardie tipe ding? ---
Ja, dit word miskien in gevalle gedoen, maar
dit
-13-
is die enigste toets. Die verklaring sal nie aan
die beskuldigde gegee word om te lees nie.
Maar uit die verklaring uit kan die beskuldigde
gekonfronteer word? Dit is reg, ja.
Partykeer sê julle goed wat die ander persoon glad nie gesê het nie,
net om hulle te probeer uitlok om
te praat? Dit is korrek.
In hierdie
geval sou dit seker gebeur het want daar
is tien beskuldigdes? Moontlik.
Dit is die rede hoekom die beskuldigdes 'n hele aand ondervra is, met ander
woorde op 'n Sondagaand. Hulle word moeg en praat makliker.
Hulle het nie
die weerstand as normaalweg nie. Nie waar nie?
Dit kan wees."
The following passage occurs in the
evidence of Kage:
"Nou is die idee nie dat julle die beskuldigdes die hele aand en dag laat wakker
bly het nie en die aand laat wakker bly het sodat
julle hulle kan
afbreek nie. Verklarings kry wat julle wil hê?
Edelagbare dit is nie ons wat die
werk beheer nie,
dit is die witmense.
Ek vra nie of dit
julle was nie, is dit die
witmense se idee dan? Ja, dit is hoe hulle
dink."
Before dealing with these passages, it is
relevant to refer also to the evidence of W/0 du Preez, where he said
-14-
the following:
"Die, dan u het gesê u konfronteer die beskuldigdes met getuies. Wat u
doen is u neem 'n verklaring van die een beskuldigde
en gaan na die ander
beskuldigde toe en sê kyk dit is wat die ander een
van jou gesê het? Nee.
Wat bedoel u? Ek bedoel as jy nou 'n klomp
ondervragingstaktiek. As die mense nou daar is soos die Engelsman sê jy
'bluff' hom maar om h man te ondervra.
U 'bluff' hom? Ja, jy lei hom om die bos.
Totdat jy 'n verklaring uit hom uitgekry het, want ek verstaan nie jou getuienis
onder kruisverhoor deur no 3 wat jy sê ek
het gewag tot al die mense daar
was dat ek hulle oor en weer konfronteer met
mekaar se verklarings? As almal nou daar is en
jy kry 'n storie van 'n man. Veronderstel hy ontken dit nou. Dan gaan hy (jy) na
die volgende man toe. Jy kry sy storie. Jy hou so
aan en jy roteer, heeltemal h
roteer basis die hele tyd. Een of ander tyd sê hy erken hy dinge. Dit is
hoe jy jou inligting
inwin brokkie vir brokkie. HOF: Hierdie inligting wat jy
dan so inwin, is vir
u eie inligting? Dit is korrek.
Dit is inligting om op te volg? Dit is
korrek."
The magistrate in dealing with the argument
that there was no apparent reason why various of the accused
-15-
should have made confessions said "Wat betref beskuldigde 3 en 4 is dit
redelik om te aanvaar dat hulle met inligting bekom van beskuldigdes
1, 2, 9 en
10 gekonfronteer was."
Now it is one thing for the police to obtain, as
it
were, pieces of the jigsaw puzzle from various
persons
suspected of having committed an offence and to use those
pieces
to build up a complete picture of the matter being
investigated. It is guite
another to confront suspects with
one another's statements in order to induce
them to make a
confession or to trick them into making a confession. Rule
10 of the Judges' Rules provides that:
"When two or more persons are charged with the same offence, and a voluntary
statement is made by any one of them, the police, if
they consider it desirable,
may furnish each of the persons with a copy of such statement, but nothing
should be said or done by
the police to invite a reply. The police should not
read such a statement furnished to a person unless such person is unable to read
it and desires that it be read over to him. If
a
-16-
person so furnished desires to make a voluntary statement in reply, the usual
caution should be administered."
The fact that these
are administrative directions which do
not have the force of law does not
mean that they are to be
ignored. In
Rex v Mthlongo
1949(2) SA 552 (A)
at 557
SCHREINER JA said:
"By bringing the accused persons together in this way they are in ef f ect
invited by the police to reply to each other and the fact
that they have been
warned, as was the case here, does not prevent the procedure from being
irregular. The chief objection to such
procedure seems to me to be that it may
lead to one or other of the accused persons being tricked into making a
confession or furnishing
admissions against himself. But, even if no such
confession or admission results from the confrontation, evidence might be
brought
into existence of damaging statements made in the presence of one
accused by another and such statements might then be admissible
on the lines
discussed in
Rex v Christie
(1914, A.D. 545)
and
Rex v Jackelson
(1917, A.D. 556).
Indeed in
Rex v Mills and Lemon
(1947, K.B. 297)
the
avoidance of the use in evidence of such statements by the other accused, who
may not themselves testify in court, seems to have
been regarded as the main
reason for the introduction of the Rule."
-17-
As to the obtaining of a confession as the result of a trick
or strategem
compare
S v Zulu
1965(3) SA 802 (N) and S v
Pietersen &
Others
1987(4) SA 98 (C). In my view where it is established that
confrontation of the kind referred to in
Mthlongo
's case has taken place,
that will, in many cases,
materially assist the accused in discharging the
onus
that a confession has been improperly obtained. Here however I am by
no means satisfied that such confrontation did in fact take
place. In the first
place there is no reason not to accept van Zyl's evidence that although he was
present at the time when the appellants
and the other accused were arrested he
did not personally interrogate any of the accused in the ordinary sense of the
word. It does
not follow therefore that he is talking about the method of
interrogation in fact used in this case. Secondly, Sgt Kage's admissions
are in
the vaguest of terms and it is certainly not established that he was responsible
for applying pressure of the kind suggested
-18-
in the guestions which were put to him in cross-examination in the passage
set out above. The remarks of W/O du Preez amount, in my
view, to no more than
an admission that he was using information obtained from one accused to piece
together a composite picture
of the relevant events. Furthermore, it is relevant
that neither of the appellants at any stage said he was tricked or confronted
with the statements of the other accused and thereby induced to make a
confession. It has not therefore been established that confrontation
of the
objectionable kind referred to in Judges' Rule 10 in fact occurred in this case.
The suggestion that the confessions were
made on the Monday because the
appellants were exhausted through lack of sleep on the preceding night is not
one that was advanced
by either of the appellants in evidence. What is more,
accused no 9 had made a (more incriminating) warning statement on the Saturday
morning and had then indicated a willingness to confirm it before a
magistrate.
-19-
Both the Regional Magistrate and SCHABORT J set out what are, in my view,
plausible reasons why accused no 9 having initially denied
any involvement
should shortly thereafter have changed his tune without having been forced or
unduly influenced to do so. In addition,
there is the further factor (referred
to earlier) that both the appellants knew that the police had seen them in the
green Mercedes
near the place where the robbery took place and at about the time
when it took place in circumstances which had aroused the suspicions
of the
police.
While the manner in which Dr Chaplin carried out his examination is certainly
open to criticism, there is no substance in the submission
that the accused were
taken for such examination because they had in fact been assaulted and the
police were trying to cover up that
fact. Counsel for the appellant expressly
disavowed any suggestion that Dr
-20-
Chaplin had colluded with the police and accepted that there had been no
question of bad faith on his part. In these circumstances,
as the Regional
Magistrate points out in his judgment, the police would have been taking an
extraordinary risk in asking Dr Chaplin
to examine the accused for any signs of
assault. There is nothing in the evidence to suggest that they would have known
in advance
that the examination would be a perfunctory one and, accordingly, had
any of the accused in fact been assaulted the examination might
well have
revealed such assaults. That the police, conscious of wrongdoing, would expose
themselves to such a risk is improbable.
I think it also bears mentioning that
not only was the Regional Magistrate fully conscious of the perfunctory nature
of Dr Chaplin's
examination but the fact that it was of such a nature was
established by the Regional Magistrate himself in guestions which he put
to Dr
Chaplin in an entirely proper and disinterested pursuit of the truth.
-21-
In all these circumstances I am wholly unpersuaded that the Regional
Magistrate erred in admitting the confessions. As already mentioned,
it was
common cause that if the confessions were rightly admitted they, together with
the other evidence, established the guilt of
the appellants.
The appeals of both appellants are accordingly
dismissed.
A J MILNE
Judge of Appeal
HOEXTER JA]
] CONCUR
BOTHA JA ]