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[2014] ZAWCHC 10
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S v Titus (C1658/2012) [2014] ZAWCHC 10 (10 February 2014)
THE
HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
High
Court Ref No: 13858
Goodwood
Case No: C1658/2012
DATE:
10 FEBRUARY 2014
In
the matter between:
STATE
And
RAYMOND
TITUS
.............................
ACCUSED
Coram:
BINNS-WARD & ROGERS JJ
Delivered:
10 FEBRUARY 2014
JUDGMENT
ROGERS
J:
[1]
This matter comes before the court by way of automatic review. The
accused was convicted on 20 August 2013 of possession of
42 packets
of tik (methamphetamine) which, according to the laboratory report,
weighed 4,03 grams in total. On 23 August 2013 he
was sentenced to 12
months’ imprisonment.
[2]
The record having been received at the High Court on 6 September
2013, on 11 September 2013 I directed a query to the magistrate
regarding the conviction and the sentence. The query regarding
sentence related to an apparently missing part of the record.
[3]
After repeated contact between this court and the magistrate’s
court, the review record was returned with the magistrate’s
response on 6 February 2014, nearly five months after my query. This
is unacceptable. The procedure for automatic review is aimed
at
protecting unrepresented persons against injustice. The fact that the
reviewing judge has raised queries indicates that the
case is one in
which the accused person’s conviction or sentence may not have
been in accordance with justice, and a prompt
response is thus called
for. In the present case, and by virtue of the delay, the accused has
almost certainly served his minimum
time and been released on parole.
[4]
My queries to the magistrate were expressed as follows:
‘
[1]
In regard to the conviction, the State called only one witness,
Constable Horn. He claims to have seen the accused in the company
of
another person and that the accused threw a plastic packet over the
fence which was subsequently found to contain the tik. The
accused’s
version was that he was walking with three other friends, that he did
not throw any bag over the fence and knew
nothing of the tik.
[2]
The prosecution thus relied on the evidence of a single witness,
which required caution. It ought to have been possible for
the
prosecution to call the colleague with whom Horn was travelling in
the police van, Constable Pietersen. The judgment on conviction
(record 29-32) does not specifically mention the need for caution.
The accused’s failure to call an additional defence witness
he
initially intended to call was mentioned in the judgment but the
prosecution’s failure to call Pietersen was not mentioned.
There also does not appear to be an analysis of why the accused’s
version could not reasonably possibly have been true,
with reference
to demeanour and other matters bearing on credibility. They were at
least theoretically other possibilities (such
as that the packet was
thrown over the fence by one of the other persons in the street or
that the drug evidence was ‘planted’
because the accused
was believed by the police to be a drug dealer [record 8]). Your
comment is invited.
[3]
I notice in passing that the charge sheet states that the offence was
committed on 23 October 2012. The magistrate’s judgment
says 27
October 2012. The correct date appears to have been 23 October 2011
(which is how Constable Horn’s evidence was led
and which ties
in with the laboratory report).
[4]
As to sentence, the portion of the record at page 34 omits the
submissions made on behalf of the accused and the prosecution.
Presumably the accused either gave evidence or made ex parte
statements. Since the proceedings were mechanically recorded it ought
to be possible to supplement the record. Kindly do so.’
[5]
The magistrate’s belated reply was the following:
‘
[1]
The state called only one witness and I was of the view that he
covered all the evidence. The witness categorically stated that
the
accused was wearing an orange jumpsuit and he saw him when he threw
the plastic bag containing tik. According to the witness
the accused
was alone when he threw the plastic bag.
[2]
I did not mention in passing the sentence that the evidence of the
single witness should be treated with caution but that was
considered.
[3]
In respect of the day 27 October 2012 instead of 23 October 2011 that
was an oversight.
[4]
In respect of the mitigation of sentence I failed to invite both of
the state and the defence to address the court. That was
an oversight
on my part. It is my humble submission that the same will not be
repeated.’
[6]
I have re-read the transcript of the evidence. This was a simple case
of directly contradictory versions by Constable Horn on
the one hand
for the prosecution and by the accused on the other hand in his own
defence.
[7]
According to Horn, he was patrolling at night in a van with a
colleague, Constable Pietersen, when he saw two people walking
in the
road. One of these persons was the accused and the other an
unidentified person to whom I shall refer as X. X was walking
more or
less in the middle of the road while the accused was on the pavement.
Horn saw the accused, who was dressed in an orange
jumpsuit, throw a
packet over the fence into an adjoining property. Horn and Pietersen
were about 15 metres away when this took
place. They stopped their
van. Pietersen held the accused while Horn searched and then released
X. Horn went into the adjoining
property with a torch and discovered
a plastic bag containing the tik. The accused was also found in
possession of R210. He could
not provide an explanation for the
money. He was thereupon arrested. Horn said that the plastic bag was
too flimsy to have been
thrown over the fence by a person standing in
the middle of the road.
[8]
The accused said that he was walking home with three friends. They
were all more or less in the middle of the road though he
was on or
close to the pavement. Two police vans came up to them. Horn got out
with a shot gun and told him to stand on the right-hand
side of the
road. Horn searched him and found nothing while his colleagues
searched the other three persons and told them to leave.
The police
initially said he should also go but Horn then said he must wait,
that he had not been properly searched. Horn again
frisked him again
and found cash of R1 000 which the accused had in his possession. He
was asked where this money came from and
he replied that it was from
gaming, and that he was on his way home. Horn told him not to lie,
that he had been at a place where
drug dealing occurred. Horn then
went into the adjoining property and came back with a plastic bag.
The accused denied any knowledge
of it but was told not to lie. He
was then arrested. The accused testified that he was at no stage in
possession of the plastic
bag containing the drugs.
[9]
Although
s 208
of the
Criminal Procedure Act 51 of 1977
provides that
an accused may be convicted of any offence on the single evidence of
any competent witness, it has always been accepted
that the evidence
of a single witness must be viewed with caution. A conviction should
follow only if the evidence is substantially
satisfactory in every
material respect or if there is corroboration. The fact that the
single witness occupies an official position,
such as that of a
police officer or traffic inspector, does not add weight to his
evidence (S v Abrahams
1979 (1) SA 203
(A) at 207B-H). It has also
been said that the statutory authority to convict an accused person
on the evidence of a single witness
ought not to be invoked where the
witness has an interest or bias adverse to the accused (S v Mokoena
1932 OPD 79
at 80). The need for caution may also be increased by
other factors such as the state’s failure to adduce real
evidence which
should have been available (S v Msane
1977 (4) SA 758
(N)).
[10]
The magistrate in this case did not, in her ex tempore judgment on
conviction, mention the need for caution. Although she has
said in
her response to my query that the need for caution was considered,
the judgment does not indicate how it was considered
nor identify the
factors which allowed the caution to be laid to rest. No reference
was made to demeanour. There were no prior
statements with reference
to which the credibility or reliability of either of the witnesses
could be tested. One cannot say that
Horn’s version was
inherently plausible while the accused’ s version was not. One
of them was lying or mistaken. There
are various possibilities. The
accused may indeed have been carrying a bag of drugs and thrown it
over the fence. Or another person
(X or one of the three people that
the accused said were also on the scene) may have done so. Or
possibly none of the persons in
the road had the drugs in in his
possession, and they were ‘planted’ by the police.
[11]
As noted earlier, the fact that Horn was a policeman did not per se
entitle his evidence to greater weight than that of the
accused nor
constitute a basis for laying caution to rest. It is true that the
accused in the present case, if he was guilty, had
a motive to
testify dishonestly, ie to avoid conviction and punishment; but this
is true in virtually every criminal case. Furthermore,
and while one
naturally does not expect a policeman to lie and falsely implicate an
accused person, it is unfortunately not possible
to say that this
never happens. Police officials may have a desire to obtain
convictions, particularly where a suspect is known
to them as a
person who has had previous brushes with the law or is one whom they
suspect for other reasons (not founded in the
evidence before the
court) of having engaged in criminal activity. I do not for a moment
suggest that the majority of policeman
would behave in this way but,
where an accused protests his innocence, one cannot dismiss it out of
hand as being by its very nature
a far-fetched possibility.
[12]
Horn in this very case testified that the accused was well-known in
the area for dealing in drugs, and Horn recognised him
that night
when he saw him on the street. The accused’s version of the
conversation between himself and Horn would be consistent
with a
belief on Horn’s part from prior knowledge that the accused was
a miscreant. The accused, in his cross-examination
of Horn, put to
him that Horn’s colleague Pietersen had said to him (the
accused) that Horn was spiteful towards him.
[13]
Let me make it entirely clear that I am not saying that Horn gave
dishonest evidence. But in order for the accused to have
been
convicted one needs to be satisfied beyond reasonable doubt that the
accused was definitely giving dishonest evidence. The
fact that an
accused is acquitted because the cautionary rule has not been
sufficiently laid to rest does not mean that the single
witness was
not telling the truth; it simply means that one cannot be confident
beyond reasonable doubt as to where the truth lies.
[14]
There was evidence which the state could have adduced so that Horn
was not left in the invidious position of being assessed
as a single
witness. Most importantly, his colleague Pietersen could and should
have been called. (The accused himself, in questioning
Horn, asked
where Pietersen was, and Horn replied that he was the only one who
had been subpoenaed.) Pietersen could not only have
testified
regarding the entire incident but could also have dealt with the
accused’s assertion that Pietersen told him that
Horn was being
spiteful to prosecute him. In regard to whether (as the accused
testified) there were two police vans and a number
of police
officials on the scene, the state could have adduced the police
records regarding the movements of the patrol vans that
evening. In
regard to whether Horn was armed with a shot gun, the state might
have been able to adduce the register showing whether
any such weapon
had been issued to Horn on the day in question. The state could have
produced the plastic bag which had been forensically
examined and
could have attempted to demonstrate that such a bag, containing 42
packets of tik and weighing 4,03 grams, could not
have been thrown
through the air over a distance of more than a metre or so (which is
what Horn claimed).
[15]
My sense is that the state simply assumed that the court would
believe a policeman rather than the accused. That is not the
way a
criminal trial should be conducted. The cautionary rule exists for a
purpose, and those responsible for prosecuting should
take this into
account in the calling of witnesses. Where an accused person denies
the commission of the offence and the sole witnesses
to the crime
were two or more police officials, the state should generally call at
least two of the police officials unless there
is other objective
evidence which corroborates the witness’ testimony or renders
the accused’s denial wholly implausible.
Of course, the calling
of two or more eyewitnesses to the same event poses the tactical risk
for the prosecution that discrepancies
between the versions will
emerge, but that is the time-honoured way in which credibility and
reliability are tested and there is
no reason why the accused should
be deprived of the opportunity of thus testing the witnesses.
Prosecutors and magistrates would
do well to remind themselves of the
following statement by Hoexter J (Hefer J concurring) in Msane supra
at 759C-E:
‘
The
tendency of prosecutors to take short-cuts by not adducing all the
available evidence should be discouraged by magistrates.
The
feckless
1
presentation of the case for the prosecution is subversive of proper
criminal justice. It creates alike the risk of the acquittal
of
guilty persons and the conviction of innocent ones. Either result is
unfortunate. But the possibility of the latter is, of course,
a
particularly disturbing one in the case hinging on a single State
witness, an acceptance of whose testimony must result in the
removal
from society of the accused for a period of not less than five
years.’
[16]
I thus consider that the conviction should be set aside.
[17]
If the conviction had stood, it would have been necessary to address
the magistrate’s failure to invite either the prosecutor
or the
accused to address her in regard to sentence. The magistrate in her
reasons for sentence said that she had taken into consideration
the
submissions both by the state and the accused person but it is now
apparent that no such submissions were received. There was
no
information whatsoever about the accused’s personal
circumstances. The only material placed before the magistrate in
respect of sentencing was the record of his prior convictions.
Clearly the imposition of sentence was procedurally irregular though
it is doubtful, whether after this lapse of time, a remittal of the
matter to the magistrate for re-sentencing would have achieved
any
practical benefit for the accused.
BINNS-WARD
J:
[18] I
concur. The accused’s conviction on 20 August 2013 and the
sentence imposed on him on 23 August 2013 set aside.
BINNS-WARD
J
ROGERS
J
1
The
word ‘feckless’, which is not now in wide use, is
defined in the
New
Oxford Dictionary of English
as
meaning 'lacking in efficiency or vitality'.