INCOMPLETE RECORD, ADMINISTRATION OF OATH, ADMISSIBILITY OF HEARSAY EVIDENCE BY CO-ACCUSED

Machaba and another v S [2015] 2 All SA 552 (SCA)
Criminal procedure – Appeal – Incomplete record – Question of whether defects in a record are so serious that a proper consideration of the appeal is not possible depends, inter alia, on the nature of the defects in the particular record and on the nature of the issues to be decided on appeal.
Criminal procedure – Evidence – Administration of oath – Criminal Procedure Act 51 of 1977 – Section 162 – It is peremptory in terms of section 162 that all witnesses be sworn in by either the presiding judge or the registrar in the case of a superior court.
Evidence – Criminal trial – Admissibility of hearsay evidence by co-accused contained in extra-curial statement – An extra-curial confession or admission of one accused is inadmissible as evidence against another accused.

The appellants were convicted of murder and robbery with aggravating circumstances and sentenced to life imprisonment on the murder charge and 15 years’ imprisonment in respect of the robbery charge. The present appeal was against the convictions and sentences.
The record was incomplete as the recording of the last week of the proceedings had not been fully transcribed. Reconstruction of the record was not possible. The appellants argued that due to the incomplete record, the appeal in respect of the conviction could not properly be adjudicated and therefore the convictions and sentences had to be set aside.
Held – The question of whether defects in a record are so serious that a proper consideration of the appeal is not possible, cannot be answered in the abstract. It depends, inter alia, on the nature of the defects in the particular record and on the nature of the issues to be decided on appeal. The Court held that the adjudication of this appeal on the record as it stood would not prejudice either of the appellants.
On the morning of the appeal, the appellants filed supplementary heads of argument raising alleged non-compliance with section 162 of the Criminal Procedure Act 51 of 1977. That section deals with the administration of the oath. It is peremptory in terms of section 162 that all witnesses be sworn in by either the presiding judge or the registrar in the case of a superior court. The appellants alleged that the record did not reflect that the witnesses for the State were duly sworn in. However, there was no indication that the judge had instructed the interpreter to administer the oath or that the judge, or registrar of the court, did not themselves administer the oath through the interpreter. The objection therefore failed.
In the absence of testimony by any of the appellants, the following facts, as evinced from the testimony of the State witnesses, were accepted. In May 2002, a couple was walking in a street when they were accosted by three men,one of whom was armed with a firearm. One of the men grabbed the woman’s handbag while another pointed the firearm at the couple. The female victim of the robbery fled when she heard the gun go off, and as she ran away, she heard another shot being fired. On returning to the scene, she saw that her boyfriend had been fatally shot. His cell phone was missing and a spent cartridge was found at the scene. More than two years later, the investigating officer traced and found the cell phone. That led to the arrest of the appellants. The second appellant led the police to his home where his firearm was seized, and was ballistically linked to the spent cartridge found at the scene. In examining the State’s case against each of the appellants, the Court looked at the facts linking each of the appellants to the commission of the crime. The first appellant had handed the deceased’s cell phone to a third party to sell and he was present when the sale took place; he placed himself on the scene in his warning statement to the police and, in his bail application, he further admitted that he took the cell phone from the scene. The Court confirmed that he was correctly convicted of murder and robbery with aggravating circumstances. The State’s case against the second appellant was premised mainly on the fact that he was the owner of the firearm that killed the deceased and that he was still in possession of that firearm when he was arrested. Hearsay evidence testified to by the police captain relating to the admissions made by the first appellant and contained in his warning statement, and relating to what a co-accused allegedly had said during the pointing out, was inadmissible. The extra-curial confession or admission of one accused is inadmissible as evidence against another accused. The fact that the second appellant was the owner of the firearm, was however significant. His version that his brother had taken the firearm in 2002 had to be considered against the backdrop that he did not report such loss, and there was no indication when in 2002 he lost his firearm, when his firearm was returned to him and how it came about that he was again in possession thereof in 2004. Furthermore, he contradicted himself on whether or not he had reported the loss. The Court found that the State had sufficiently proved the elements of the crimes against the second appellant. There was a prima facie case against him and his failure to rebut it had the effect that the State proved all the elements of the charges against him beyond reasonable doubt.
Addressing the appeal against sentence, the Court noted that the provisions of section 51 of the Criminal Law Amendment Act 105 of 1997 would ordinarily apply in respect of the offences in this matter. However, the failure to refer to the provisions of section 51 in the indictment, and the failure by the presiding judge to bring the provisions of section 51 to the notice of the appellants before they pleaded to the charges or at any time during the trial before sentencing commenced meant that the sentencing regime of section 51 was not applicable. The appeal against sentence was thus upheld. The Court was constrained, in deciding on an appropriate sentence, by the paucity of facts placed before it. Taking into consideration all the known factors, it decided that a sentence of 20 years’ imprisonment on the charge of murder was appropriate, while a sentence of 10 years’ imprisonment was suitable for the charge of robbery with aggravating circumstances. The two sentences were to run concurrently.

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