Brief Summary

Criminal Procedure — Admissibility of evidence — Testimony given during bail application — Respondents charged with armed robbery and murder — Testimony from bail proceedings admitted as evidence in subsequent trial — Court finds no violation of rights to fair trial; respondents voluntarily testified and pleaded guilty to robbery — Evidence admissible under section 235(1) of the Criminal Procedure Act 51 of 1977.

Comprehensive Summary

Summary of Judgment

Introduction

The matter concerned reserved questions of law arising from a criminal trial in which the two respondents, together with four co-accused, were prosecuted on charges of robbery with aggravating circumstances and murder. The proceedings before the appellate court were brought by the State (as appellant) against Tando Nomzaza (first respondent) and Mthuthuzeli Mpande (second respondent).

The respondents stood trial in the South Eastern Cape Local Division before Jansen J and assessors. During the State case, the prosecutor sought to adduce, against the respondents, the record of evidence given by them in earlier bail proceedings. After objection by the defence, the trial court ruled the bail record inadmissible. At the conclusion of the trial, the respondents were acquitted and discharged on both counts.

Following the acquittals, and at the prosecutor’s request, the trial court reserved four questions of law for determination by the appellate court under section 319(1) of the Criminal Procedure Act 51 of 1977. All four questions stemmed from the trial court’s refusal to admit the respondents’ bail-proceedings evidence at trial. The general subject-matter of the dispute was the admissibility and use at trial of incriminating evidence given by an accused in a bail application, and the appropriate remedial consequences where legal questions are answered in the State’s favour after an acquittal.

A further contextual feature was that the appellate court stressed that the four questions had to be answered without regard to Chapter 3 of the Constitution of the Republic of South Africa 200 of 1993, because the trial commenced and was completed before the Constitution came into force on 27 April 1994.

Material Facts

The charges arose from an armed robbery at the Trucker’s Inn roadside café near Port Elizabeth in the early hours of 10 August 1991, during which the complainant on the robbery count was robbed and the deceased on the murder count was shot and killed.

Both respondents were arrested and charged on 10 September 1991. They remained in custody and on 1 October 1991 applied for bail in the magistrates’ court. The State opposed bail and the applications were refused. It was common cause, for purposes of the admissibility ruling, that the bail proceedings were judicial proceedings, that both respondents were legally represented, that each testified under oath, and that each was cross-examined by the prosecutor. By agreement, the transcript/record of the bail proceedings was placed before Jansen J when he decided the admissibility question at trial.

In the bail application, the first respondent testified to his personal circumstances and, under questioning by his attorney, stated that he knew he was charged with robbery and that, on the merits, he would plead guilty to that charge, adding that he had informed the investigating officer accordingly. In cross-examination, the prosecutor questioned him about the murder charge; the respondent indicated that he knew about it and, after being pressed to explain what he knew, answered that it involved “shooting” and ultimately stated that he was the person who shot, and that he would plead guilty to the murder charge as well.

The second respondent, in his bail evidence, likewise stated that he would plead guilty to the robbery. In cross-examination he confirmed that he had made a pointing out and a confession, that he pleaded guilty to participating in the robbery with others, that he knew of the murder charge, and that he was present when the murder was committed.

The appellate judgment recorded that, according to the trial judge, the State conceded that apart from the bail record there was no evidence against the respondents. This factual consideration became relevant at the remedial stage (whether to order further proceedings after answering the reserved questions).

Legal Issues

The central legal questions concerned the admissibility and use at a later criminal trial of evidence given by an accused during a prior bail application, and whether any aspect of the bail proceedings rendered the evidence irrelevant, improperly obtained, or otherwise inadmissible.

More specifically, the appellate court was required to determine questions that involved primarily legal interpretation and application of legal rules to established facts, rather than disputes of credibility. The issues included whether the Criminal Procedure Act created a closed list of prior proceedings whose records could be used at trial; whether the relevant bail evidence and cross-examination were relevant and lawful for purposes of bail; whether a magistrate had a duty to warn accused persons about onus and the privilege against self-incrimination (despite legal representation); and whether the prosecutor’s cross-examination amounted to improper pressure negating admissibility.

A further legal issue (after the reserved questions were answered) was remedial and discretionary: whether, under sections 322(4) and 324 of the Act, the appellate court should make an order enabling the State to re-institute proceedings (effectively permitting a new trial notwithstanding the acquittal), and whether the interests of justice justified such a step on the facts.

Court’s Reasoning

The court approached the first reserved question by clarifying the function of section 235(1) of the Criminal Procedure Act. It held that section 235(1) addresses the method of proving the record of judicial proceedings (by producing a copy) and does not itself determine which evidence is admissible. On that basis, the admissibility inquiry remained governed by ordinary principles: the general rule that relevant evidence is admissible unless excluded by a specific rule of evidence.

The respondents’ contention that the Act contained a numerus clausus of prior proceedings whose records could be proved at a later trial was rejected. The court reasoned that the wording of section 235(1) was wide enough to encompass bail proceedings, and the absence of an express statutory provision authorising use of bail testimony at trial did not imply exclusion. The trial court’s concern that admitting the bail record by mere production would undermine the strict requirements for confessions and admissions under sections 217 and 219A was treated as misconceived because section 235 does not relax substantive admissibility requirements; it only provides a mechanism to prove the existence and content of a judicial record.

In support of admissibility in principle, the court relied on prior appellate authority where bail-application evidence had been admitted at trial. It referred in particular to S v Sithebe 1992 (1) SACR 347 (A), where this court had accepted that bail evidence proved under section 235 could be used at trial, and that any intimidation or improper influence would affect weight and cogency, not necessarily admissibility, on the facts of that case. It also referred to the (then) unreported decision S v Venter (Case No 59/95, 28 March 1996), where it had been held that the accused’s bail testimony was admissible, with the State entitled to test the version by cross-examination, and where arguments about improper compulsion were rejected on the evidentiary record.

The appellate court nonetheless acknowledged, as a general proposition, that there could be cases (particularly in the later constitutional era) where admitting bail-proceedings evidence might deprive an accused of a fair trial. However, it held that the present matter—being pre-Constitution and on the established facts—did not present grounds to depart from the approach in Sithebe and Venter. The respondents had freely chosen to testify at bail; they were legally represented; and their incriminating statements about pleading guilty to robbery were made in evidence-in-chief as part of their own strategy. The cross-examination was directed at clarifying whether the guilty plea extended to one or both charges.

On the second reserved question, the court rejected the trial court’s conclusion that the respondents’ statements (that they would plead guilty on the merits) were irrelevant to the bail application, and that the prosecutor acted unlawfully in cross-examining them on that intention. The court reasoned that the respondents themselves had made the guilty-plea stance relevant by deploying it as part of a strategy to persuade the magistrate that they were “playing open cards” and could be trusted to stand trial. It further held that the prosecutor was entitled to cross-examine to establish what the alleged guilty plea encompassed, including whether it related to robbery only or also to murder.

The third reserved question concerned the absence of a warning by the presiding magistrate, despite legal representation, about the onus and the privilege against self-incrimination. Proceeding on the assumption (without finally deciding) that the privilege applied, the appellate court held that the respondents, by deliberately testifying and stating their intention to plead guilty in order to obtain bail, should be taken to have waived that protection. Given the presence of legal representation and indications that they were aware of the burden and privilege, the magistrate was not obliged to inform them of those rights in the circumstances. The trial court was therefore not correct to exclude the evidence on this basis.

The fourth question focused on whether the prosecutor’s questioning of the first respondent about the murder charge constituted improper pressure rendering the answers unusable at trial. The court examined the excerpt and concluded that the prosecutor asked whether the respondent knew about the murder, then sought an explanation of what he knew, repeating the question several times before receiving an answer. This was characterised as no more than the ordinary pressure inherent in cross-examination. The prosecutor was entitled to put and repeat the question as done, and there was no indication of coercion rising to the level of “improper pressure”.

After answering all four reserved questions in favour of the State, the court turned to the remedial discretion under sections 322(4) and 324. It accepted that, read together, these provisions empowered the appellate court, after answering a reserved question of law favourably to the prosecutor in a case of acquittal, to order steps contemplated in section 324, including that proceedings be re-instituted as if the accused had not previously been tried and acquitted. It emphasised that this is a matter of discretion, and it framed the practical question as whether the interests of justice would be served by ordering a new trial.

In exercising that discretion, the majority judgment attached weight to several considerations. It noted the trial judge’s statement that the State conceded that, without the bail record, there was no evidence against the respondents. It also regarded as significant the uncertainty whether, at a new trial in the post-constitutional era, the bail record would be admissible in light of constitutional fair-trial principles. Additionally, the events were almost five years old, which the court associated with the risk of fading memory. Taken together, these factors led the majority to refuse to set aside the acquittals or order a new trial, and to make no consequential order after answering the reserved questions.

A separate judgment by Van Heerden JA, with whom Zulman AJA concurred, agreed with the reasoning on the reserved questions but differed on the proper consequential order. That judgment emphasised that the statutory scheme meant the court may (not must) permit re-prosecution, and cautioned against an interpretation that would lead to absurd outcomes. On the discretionary factors, it attached relatively less weight to the passage of time and to memory fade (because, on the record, no witnesses had implicated the respondents), and treated the possibility of constitutional exclusion of the bail record as no more than a possibility on which the court could not pronounce. It placed greater emphasis on the interests of justice and public confidence, noting that both respondents had, on the bail record, effectively incriminated themselves: both stated they would plead guilty to robbery; the first respondent additionally indicated he would plead guilty to murder and that he fired the fatal shot; and the second respondent acknowledged being present when the murder was committed. Van Heerden JA also considered it not far-fetched that additional evidence might become available at a new trial (for example, from an accomplice). On this basis, it would have substituted an order expressly directing that further proceedings may be instituted as if the respondents had not previously been tried and acquitted.

Outcome and Relief

The appellate court answered all four reserved questions of law in favour of the State. It held, in substance, that an accused’s bail-application testimony can be admitted against the accused at a later trial (if otherwise admissible), that the evidence and cross-examination were not rendered irrelevant or unlawful for bail purposes, that the absence of a warning by the magistrate did not justify exclusion in the circumstances, and that the cross-examination did not amount to improper pressure.

Despite deciding the reserved questions in the State’s favour, the majority declined to make any consequential order under sections 322(4) and 324, with the result that the respondents’ acquittals were not set aside and no new trial was ordered.

No costs order is reflected in the judgment in relation to these reserved questions proceedings.

A separate judgment agreed with the answers to the legal questions but would have made a consequential order permitting the State to re-institute proceedings as contemplated by section 324.

Cases Cited

S v Mhlungu and Others 1995 (3) SA 867 (CC)

S v Lwane 1966 (2) SA 433 (A)

S v Sithebe 1992 (1) SACR 347 (A)

S v Cele 1985 (4) SA 767 (A)

S v Shabalala 1986 (4) SA 734 (A)

S v Venter (Case No 59/95, Supreme Court of Appeal/Appellate Division, 28 March 1996) (unreported)

S v Botha and Others 1995 (2) SACR 605 (W)

S v Gani and Others 1957 (2) SA 212 (A)

S v Rosenthal 1980 (1) SA 65 (A)

S v Seekoei 1982 (3) SA 97 (A)

Magmoed v Janse Van Rensberg and Others [1992] ZASCA 208; 1993 (1) SA 777 (A)

Legislation Cited

Criminal Procedure Act 51 of 1977, sections 217, 219A, 235(1), 319(1), 322(4), 324

Constitution of the Republic of South Africa 200 of 1993, Chapter 3, section 25(3)

Rules of Court Cited

No rules of court are cited in the judgment.

Held

The court held that evidence given by an accused under oath in a bail application may, if otherwise admissible, be led against that accused at a later criminal trial and may be proved by producing the record in terms of section 235. The Act does not impliedly exclude bail proceedings from the ambit of section 235, and the section does not dispense with or undermine the substantive admissibility requirements applicable to confessions and admissions.

It further held that where an accused elects to testify in bail proceedings and introduces a stance that he or she will plead guilty, the evidence is not to be treated as irrelevant to bail simply because it touches the merits, and the prosecutor is entitled to cross-examine to clarify what the stance entails, including whether it relates to multiple charges.

Assuming the privilege against self-incrimination applied, the court held that the respondents, being legally represented and having deliberately testified as part of their bail strategy, were to be treated as having waived that privilege, and the magistrate was not required in the circumstances to provide further warnings about the onus or privilege.

It also held that the prosecutor’s repeated questioning of the first respondent about the murder charge did not amount to improper pressure beyond ordinary cross-examination.

Although the reserved questions were answered in the State’s favour, the majority exercised its discretion not to set aside the acquittals and not to order a new trial or other consequential steps under sections 322(4) and 324. A concurring separate judgment would have issued an order permitting the State to re-institute proceedings under section 324.

LEGAL PRINCIPLES

The judgment applied the principle that relevant evidence is generally admissible in criminal proceedings unless excluded by a specific rule of evidence, and that statutory provisions dealing with the proof of records (such as section 235) do not themselves determine substantive admissibility.

It affirmed that bail proceedings are judicial proceedings, and that an accused’s sworn testimony in those proceedings can, where otherwise admissible, be used in later criminal proceedings, with section 235 providing a mechanism to prove the record.

It applied the principle that concerns about the admissibility of statements resembling admissions or confessions are not resolved by excluding the record merely because it is tendered as a judicial transcript; rather, admissibility remains subject to the ordinary governing rules, and issues of improper influence may affect weight on the facts (and, depending on circumstances, may in appropriate cases bear on admissibility).

It applied the principle that an accused may waive protections against self-incrimination by voluntarily testifying, particularly where legally represented and where the incriminating material is intentionally advanced as part of a strategy to secure bail, and that the presence of legal representation is a material consideration in assessing whether further judicial warnings are required in the circumstances.

It further applied the principle that ordinary firmness in cross-examination, including repetition of a question to obtain a responsive answer, does not without more constitute improper pressure sufficient to render the answers inadmissible.

Finally, it affirmed that, after reserved questions of law are answered in favour of the State following an acquittal, the appellate court has a discretion under sections 322(4) and 324 whether to order that proceedings be re-instituted as if the accused had not previously been tried and acquitted, and that this discretion is exercised with reference to the interests of justice on the particular facts.

S v Nomzaza (563/95) [1996] ZASCA 57; ; [1996] 3 All SA 57 (A); (29 May 1996)