S v MASHENGOANE 2014 (2) SACR 623 (GP)

Evidence — Confession — Admissibility of — Magistrate taking confession from accused where accused had clearly been assaulted and had told magistrate he had been threatened to make statement — Incumbent on magistrate not to readily take statement where suspect had injuries and complained about threats of further assaults.

Evidence — Confession — Admissibility of — Patently inadmissible statement made to magistrate — Accused having been induced by threats and assault — Duty of prosecutor — To immediately draw judge’s attention to shortcomings in statement.

The appellant was convicted in the circuit court of a number of charges, including murder, and was sentenced to 20 years’ imprisonment. He appealed against his convictions and challenged the admissibility of the statement he had made to a magistrate, the evidence contained therein which was essential to the conviction. When he made the statement to the magistrate (who was not called to testify at the trial-within-a-trial) he told the magistrate that he had been threatened by the police to make this statement and he had showed the magistrate his injuries. The magistrate recorded these wounds on the statement. Counsel for the appellant pointed out to the prosecuting counsel, at the commencement of the trial in the court a quo, the deficiencies in the statement but the latter insisted on proceeding with the trial and making use of the statement. The court admitted the statement, holding that it was an admission, and convicted the  appellant. On appeal,

Held, that the trial judge should have been extremely careful in admitting the statement, particularly when it was clear to him that this was the only evidence incriminating the appellant. It was immaterial whether the judge considered the statement to be a confession or an admission.

Held, further, that it was incumbent upon counsel for the state in the court a quo to immediately draw the judge’s attention to the shortcomings in the statement in question. It was also incumbent on the magistrate not to readily take a statement where the suspect had injuries and complained about threats of further assaults if the statement were not taken.

Held, further, that there was no suggestion that the statement would have been made without the assault and threats of assault and it was irredeemably tainted by the assault, threats of further assaults, injuries and scratch marks on the body of the appellant. It should accordingly not have been admitted as evidence. Convictions and sentence set aside.