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IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NO: SS26-2014

DATE: 25 AUGUST 2014

In the matter between

THE STATE

And

RADOVAN KREJCIR...........................................................Accused 1

DESAI LUPHONDO.............................................................Accused 2

SAMUEL MODISE MARUPING.........................................Accused 3

JEF NTHOROANE GEORGE MACHACHA......................Accused 4

SIBONISO MIYA GQAMARE NDABASINHLE.................Accused 5

LEFU JAN MOFOKENG....................................................Accused 6

J U D G M E N T

LAMONT J:

During the main trial the State tendered a statement made by accused 2 into evidence. Accused 2 claimed that the statement had not been freely and voluntarily made. In consequence I directed that a trial within a trial be held.

The sole purpose of the trial within a trial was to determine whether or not the statement was admissible, i.e had been freely and voluntarily made by accused 2.

The procedure of a trial within a trial is to enable an accused, without fear of what he says, being used against him in the main trial to lead such evidence as is necessary to deal with the limited issue of whether or not the statement has been voluntarily made.

It is the judge who makes the decision of admissibility. At the time when triers of fact included persons other than the judge, the evidence of what had occurred during the trial within a trial, was not available to such extra persons, as they had not been present when the evidence was led.

For at least this reason the evidence which had been led during the trial within a trial, was isolated from the main trial. The need to protect the rights of the accused coupled with the absence of the triers of fact at the hearing, led to the belief that the totality of the evidence given in the trial within a trial was excluded as evidences in the main trial.

In the modern South African law, the judge hears the facts in the main trial, as well as the facts regarding admissibility which were led during the trial within a trial. As a matter of principle, there is no longer any need to exclude the evidence led at the trial within a trial from the main trial, on the basis that the evidence led, had not been led before all the triers of fact.

The only remaining basis to exclude the evidence would be to protect the rights of the accused, to enable him confidently and without fear deal with the complete set of facts relating to the admissibility and to prevent disclosure of the contents of the statement until it is admitted.

This right is a right which vests in the accused. It is after all his interests which govern the admissibility of the evidences. In Cross & Tapper On Evidence 12th Edition at page 180 is cited Rex v Brophy, a House of Lords decision. The extract reads as follows:

“In Rex v Brophy the House of Lords regarded this as fundamental [with reference to admissibility]. “If such evidence being relevant were admissible at the substantive trial, an accused person would not enjoy the complete freedom that he ought to have at the voir dire to contest the admissibility of his previous statements.

It is of the first importance for the administration of justice that an accused person should feel completely free to give evidence at the voir dire of any improper methods by which a confession or admission has been extracted from him, for he can almost never make an effective challenge of its admissibility without giving evidence himself.

He is thus virtually compelled to give evidence at the voir dire and if his evidence were admissible at the substantive trial, the result might be a significant impairment of his so called right to silence at that trial.”

This ban on the use of the statement made on the voir dire applied both to use in chief by the prosecution as an admission or use in cross-examination as a previous inconsistent statement to impeach the accused’s credit whether the trial was by judge alone or judge and jury.”

Courts have accepted that there are exceptions to the blanket isolation principle, assuming for the moment that there is such a principle in certain circumstances. See for example State v Nglengethwa 1996 (1) SA 737 (A) 740:

“Die oorspronk van eenrede vir die hou van binne virlode in strafsake is so deur nikelos van niemende apel regte in State v De Vries 1989 (1) SA 228 (A) op 233(h) – 234 (b) uit eengesit. “It is accordingly essential that the issue of voluntariness should be clearly distinct from the issue of guilt. This is achieved by insulating the enquiry into voluntariness into a compartment separate from the main trial. In England the enquiry into voluntariness is made at “a trial on the voir dire”, or, simply, the voir dire which is held in the absence of the jury. In South Africa it is made at a so called “trial within the trial”. Where therefore the question of admissibility of a confession is raised, an accused person has the right to have that question tried as a separate and distinct issue at the trial the accused can go into the witness box on the issue of voluntariness without being exposed to general cross-examination on the issue of his guilt (see Rex v Dunga 1934 (AD) 223 – 226). The prosecution may not as part of its case on the main issue, lead evidence regarding the testimony giving by the defendant at the trial within a trial. See Wong Kam-Ming’s case supra at 257 – 8. Similarly in a case where the trier of admissibility is also the trier of guilt.....evidence given by an accused person in the trial within the trial must be disregarded when the issue of guilt comes to be considered”.

Nglengethwa’s case allowed the evidence of an interpreter given during the trial within the trial to be regarded as evidence in the main trial, even although the interpreter was not recalled.

This case is a clear example of where evidence given within the trial within the trial was treated as evidence outside the trial within a trial, i.e. in the main trial.

There is a further example of evidence in the main trial being considered in the trial within a trial, i.e. without the clear distinction and isolation of the two sets of evidence. This is the case of State v Muchindu 2000 (2) SACR 313 (W) which allowed evidence given during the main trial to be treated as evidence within the trial within a trial, even although the evidence which was being allowed had not been led in that trial within a trial.

The passage is at 315 where the learned judge after citing Wong Kam-Ming’s case stated as follows:

“Nothing in these statements affords a basis for the rigid ring-fencing of both the trial-within-a-trial and the main trial from each other. It seems to me that the most helpful metaphor is one-way glass. One should be prevented from peering into the trial-within-the-trial from the main trial. There are reasons of policy for that. But there are no reasons of policy that I can espy, and none have been advanced, why one, whilst engaged in the trial-within-the-trial, should not have the main trial fully in prospect. After all, the trial-within-the-trial is but an evidentiary moment, if sometimes a long moment, in a trial. It is concerned with the admissibility of an extra-curial statement. As such it is directed towards a ruling of law, even although disputed issues of fact usually have to be resolved before the question of law can be posed. That this is so is illustrated by the case in which State and defence are agreed on the facts that preceded a statement, and ask the Judge for a ruling on its admissibility in the light of s 217's applicability.

If regard could not be had to the evidence already given or admitted in the main trial, the trial-within-the-trial would hang in the air.

An unsupported abstraction devoid of setting. Unless it were all to be proved all over again, one would not know who the deceased is, who the witnesses are, what they are, where they were and when, and so on. Mr Motata was bound to concede that his argument led to the conclusion that if certain facts had been conceded in the course of a plea statement, and the accused set up an opposed version in his evidence in a trial-within-a-trial, the prosecutor could not put the inconsistency to him. This I regard as reductio ad absurdam. Similarly, if defence counsel were to put a version on behalf of his client in the course of cross-examination in the main trial, and his client were to advance an inconsistent version in evidence in the trial-within-a-trial, the prosecutor and the court would have to sit baulked and silent. The principles that I have set out earlier are designed to give an accused necessary protection of his rights. They are not a licence for him to lie”.

It is apparent from the judgment that the judge considered the looking glass as an appropriate method to consider the issues. The judge was driven to find this reductio ad absurdam as he puts it.

The question to be formulated is whether or not this Alice in Wonderland peering through the looking glass is an appropriate way of a judge dealing with the rule. Generally speaking if rules contain matter which, when applied, result in abnormalities, the rule is wrongly formulated.

The procedure by which evidence is led at a trial is determined by a set of rules which have been created over time and which are accepted as providing the most efficient way of that evidence being led.

Rules are not a matter of substantive law and it is open to a judge hearing a case, if not his duty, to modify and mould rules so that the evidence in the case he is hearing, be led in the most efficient, effective and fair way in his case, having regard to the substantive law.

Before consideration is given by a judge to adapting any procedural rule, he must consider the purpose of the existing rule and the effect of his proposed change upon it. This is so whether the proposition concerns generally restating the law or restating it for the particular case.

The present rule is as set out above a manner of providing a flexible approach to what evidence led in the trial, should be regarded as evidence in the trial within a trial and vice versa. The function of the rule has as its underlying concept as least some of the following criteria:

The evidence which is to be led at any court must be led in good order, be readily identifiable, be led in reasonably close order of witnesses in relation to the issue so that the evidence is reasonably together, both in time and in the record. The evidence in the trial within a trial must be heard by all the persons who are entitled to make decisions relating to it i.e. the judge in the present state of the law.

The contents of the statement must not be disclosed, save in limited circumstances until the decision on admissibility is made.

The accused’s rights must be sufficiently protected so that he feels he may freely disclose all the evidence relevant to admissibility of the statement, and that in disclosing his hand and giving evidence he is not unfairly being required to deal with all other issues, particularly issues concerning the merits. This involves the establishment of a procedure that the accused can recognise by its delimitations as defining what evidence he is dealing with in the trial within a trial and in what context he is dealing with it.

There is a limitation upon what state evidence may be led during the trial within the trial as such evidence may be irrelevant to the issue to be determined in the trial within the trial.

Portions of the accused’s evidence which are, on the merits, at variance with his evidence in the merits on the trial within the trial may be admissible within the main trial in certain circumstances.

The rule is largely designed to protect the rights of the accused.

In the present matter the accused, together with other of the accused, complains that so far from the rule if inflexibly enforced, protecting his rights it infringes upon those very rights. This complaint arises in the following circumstances:

These circumstances are similar in respect of all the accused who made submissions before me i.e. accused 1 – 6 inclusive. Insofar as the submissions are made they are and encapsulated below.

In the main trial, the accused has denied the evidence of the State and has put it that he is the subject of a plot to incriminate him and seek his conviction based on false facts and false evidence.

This plot has been a consistent feature in relation to all of the accused. On the similar fact principle, there being a nexus in time, place and circumstance, the evidence of all is admissible in respect of each of them. The plot has a mastermind behind it, who has engineered it, who has orchestrated it and conducted its execution.

The mastermind is not necessarily a single person but consists of at least either alone or with others, the witness currently giving evidence, namely the Investigating Officer. The Investigating Officer has been called to give evidence in a trial within a trial on a limited issued, namely on the question of the admissibility of the statement of accused 2, and the underlying facts which are in dispute concerning that admissibility.

If the trial within a trial is a proceeding which isolates the evidence given within it from the evidence given in the main trial, and which deals only with the admissibility of accused 2 statement, other issues may not be dealt with at the trial within a trial, as they are not germane and hence are inadmissible.

The Investigating Officer may in fact never be called as a witness in the main trial. Hence the opportunity the accused have to elicit data concerning their defences in the main trial, as well as possibly the defence of admissibility of accused 5’s statement is lost.

The reference to the statement by accused 5 is a reference made to anticipated evidence which may be led, concerning the statement of accused 5. The admissibility of that statement might become an issue before this court if the statement is tendered by the State.

In the normal course there is no bar to the cross-examination of a witness on issues other than those on which he has been called. The fact that the Investigating Officer has been called on a limited issue, would in theory not preclude his cross-examination on other issues concerning the merits.

The purpose of cross-examination is limited not only to attacking the credibility of a witness, but also to obtain facts relevant to a defence the cross-examiner in due course may wish to establish. The fact that the Investigating Officer is asked questions concerning the plot and its execution, would not result in inadmissible questions being asked in respect of issues in the main trial if the Investigating Officer had been called as a witness in the main trial.

If that had happened all the issues the accused presently wish to canvass in evidence with the Investigating Officer could have been asked and the Investigating Officer would have been compelled to deal with them without demur.

The evidence which the accused wish to extract from the Investigating Officer in summary, would have been admissible within the main trial and the questioning which currently is sought to be put to the witness, could properly have been dealt with there, as the Investigating Officer is a competent and compellable witness.

The State suggested that the remedy for the accused was to call the Investigating Officer at the trial or to motivate the judge to call him. The simple answer to these submissions is that the accused, if they call the Investigating Officer, will not be able to cross-examine him and in all probability will have difficulty in declaring him hostile which would be a pre-cursor to being able to cross-examine him.

As to the judge calling the witness, the accused would have to rely on the judge actually calling him in advance of the judge having made such a decision. This similarly is a highly unsatisfactory position. The accused would be forced to rely on a future uncertain event occurring, namely the contingency that I in fact call the witness. If I do not call the witness, then the accused are left without remedy.

In my view the matter must be approached on the basis that the accused have the opportunity to cross-examine this witness on the relevant issues now or never. That being so, if what the witness has to say to this court on the issues is relevant, the accused suffer the prejudice of an opportunity lost in not being afforded now the opportunity of proceeding with the cross-examination they have asked to undertake.

The question remains whether the prejudice suffered by reason of the deviation from the rule outweighs this prejudice. The deviation from the existing rule does not involve a deviation setting a principle of any greater impact, than in respect of the current trial. It also does not necessarily involve the abandonment of the voir dire procedure.

To the extent that there is a deviation proposed at the current hearing, there remains the retention of an existing procedure merely with a different approach to the evidence given during that procedure, i.e. that instead of evidence being deemed isolated unless admitted it will be deemed admitted save to the extent it is directed to be inadmissible.

The rule itself is a flexible matter. The rule is a procedure designed to implement the substantive law and must be flexibly applied to achieve a fair and just result.

In principle there can accordingly be no objection to deviation from a procedural rule which is in any event flexibly accused. The deviation from the rule, if it is allowed, is made at the request of the applied. The rule is primarily designed to protect the accused and to enable the accused to conduct their defence in a manner relating to an issue where they will be compelled to give evidence, out of turn as it were considering the main trial.

A deviation from this rule at the request of the accused would be to apply the rule in such a way that the rule provides the accused with protection, and affords him with the ability to conduct the trial fairly, albeit for different reasons than those customarily considered. Admissibility of the evidence will be determined as and when it is reviewed in the trial.

The safeguards and protection which the rules provide to the accused as well as to the State will be maintained.

There should be an implementation of the sensible, practical approach to the way evidence is led. The evidence which it is proposed to lead currently, if not resulting in a time saving, at least will result in the maintenance of the time frame as the evidence should properly have been led at some stage during the course of the hearing.

There will be a proliferation of the issues dealt with by me during the trial within the trial, if the evidence is allowed. That proliferation of issues will to an extent, result in a separation of the proximity of the evidence which is led on the admissibility of the statement issue.

The question is whether that difficulty should be allowed to stand in the way of achieving a fair result in the trial. There will be, if the evidence is allowed, an invasion of the right of the State to deal with the admissibility issue alone uncontaminated by other issues.

To allow this “contamination by proliferation” will be a lesser prejudice to the State than the failure to allow the evidence to be led will prejudice the accused. The good order of the evidence led at the trial, will result in a dislocation to an extent. However the prejudice caused thereby is insignificant in my view, compared to the prejudice which results to the accused if they are prevented from making use of an opportunity which presents itself to properly canvass issues relevant to their defence.

It was submitted for example that if I ruled while the witness was in the witness box that the evidence to be given was being given no longer at a trial within a trial but in the main trial, that the witness would not be entitled to refuse to answer the questions, would not be entitled to leave the witness box, and would not be entitled to say in particular, that because the character of the trial had changed from a trial within a trial to a main trial, that he refused on that basis to give the evidence which is being sought of him.

This apparent absurdity arises because of the manner in which the rule as currently framed is applied. There is in my view merit in the submission that the absurdity is in fact a reflection on the rule, rather than on the rights which the rule seeks to protect.

This type of absurdity was highlighted by Schutz J in Muchindu supra. In my view the rule relating to evidence given within a trial within a trial, requires not the isolation of one piece of evidence from another at the trial. It requires that the person who assesses the evidence on a particular issue and its admissibility exclude only such evidence as is necessary to enable the accused to feel that he must freely and without fear of it being used against him deal with the admissibility of the statement.

This must be achieved by way of applying the substantive rule to the evidence and declining to admit evidence which infringes the rule as evidence in the main trial.

The rule requires it not that the evidence all be excluded by reason of being given within a trial within a trial. It requires that the judge (in the whole trial main and trial within the trial) deal with the evidence and ensure that the rights of the accused are maintained.

This approach (i.e. all evidence admissible on all issues save for some evidence ruled inadmissible on some issues) would do away with the absurdities which have been noted in other matters. The present matter affords an example of the absurdity if the rule is applied by way of exclusion of evidence rather than by way of inclusion of evidence and exclusion of those portions which should be excluded by reason of the need of the accused to freely give evidence.

In my view the rule simply directs that evidence of witnesses given during trial is admissible save to the extent that there are rules which exclude that evidence.

The trial within a trial is a useful procedure as it sets up a body of rules, on which an accused can rely to achieve the result that he fairly deal with the issue of admissibility of statements or confessions. To this extent that body of rules is a necessary part of our law. It does not mean that the evidence given within that trial is routinely in its totality to be excluded.

There is one other matter which has a bearing upon this issue. That is that when the judge comes to consider the evidence, he is required to consider the evidence as a whole and give consideration to all of it, to consider probabilities and improbabilities in the case.

If portions of the evidence are excluded, the judge is unable to give effect to that very proper principle. See for example Prinsloo v State [2014] ZA (SCA) 96 wherein Mathopo A J A approved that principle.

I have accordingly reached the conclusion that the accused be entitled to cross-examine on the issues.

I accordingly make the following ruling:

I will allow accused 1 – 6 inclusive, to put such questions on the merits, as may be relevant to the merits and will deal with the issue of whether the questions and answers are in fact relevant to the merits as and when those questions are put to the witness.

The witness is to reply to questions put on the merits, notwithstanding that this is a trial within a trial.

C. LAMONT

JUDGE OF THE HIGH COURT

GAUTENG LOCAL DIVISION, JOHANNESBURG

Counsel for The State : Adv. Mashiane

Counsel for Accused 1 and 2 : Adv. A Van Den Heever

Counsel for Accused 3, 4, and 6 : Mr. Grove

Counsel for Accused 5 : Adv. Spannenberg

Date of hearing : 4 August 2014

Date of judgment : 25 August 2014.

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