DUTIES OF PRESIDING OFFICER AND PROSECUTOR VIZ-VIZ DISCHARGE AND EVIDENCE

S v MALIGA 2015 (2) SACR 202 (SCA)
Trial — Presiding officer — Duties of — Discharge of accused at end of state’s case — State not making out prima facie case — Presiding officer must raise this question mero motu, irrespective of whether accused represented or not.

Prosecuting authority — Prosecutor — Powers and duties of — Paramount duty of prosecutor not to secure conviction but to assist court to ascertain truth and dispense justice — Prosecutor has duty to alert court to possible inadmissibility of evidence that state wished to lead and in appropriate circumstances to request trial-within-a-trial in order to determine admissibility of statements.

The appellant was charged in the Venda Provincial Division in January 2000 with the murder of his wife. The state produced in evidence a statement made by the appellant to the effect that he had shot his wife during an argument. The statement was elicited by the investigating officer, a sergeant in the South African Police Service and another sergeant (who were accordingly not I commissioned officers as envisaged by s 334 of the Criminal Procedure Act 51 of 1977), who did not warn the appellant of his constitutional rights as envisaged in s 35 of the Constitution. The statement was not confirmed or reduced to writing in the presence of a magistrate or justice. Despite this, there was no objection on the part of the appellant’s legal representative to the introduction of what amounted to inadmissible evidence. An application was brought in terms of s 174 for the discharge of the appellant at the end of the state’s case but this was refused. The appellant was convicted and was sentenced to 48 years’ imprisonment. He appealed against his conviction and sentence and the appeal came before the court only in 2014 without any explanation being offered for the delay of 12 years between conviction and appeal.
Held, that the court had a duty to ensure that the accused was properly defended and that his or her constitutional rights were not negatively affected, either by commission or omission. If at the end of the state’s case, the state had not made out a prima facie case, the presiding officer had to raise the question of a discharge mero motu, especially in the absence of an application for discharge. This duty was not dependent on whether the accused was represented or not.
Held, further, that even more important was the role of the prosecutor. A prosecutor stood in a special position in relation to the court. The paramount duty of a prosecutor was not to procure a conviction but to assist the court in ascertaining the truth. In the instant case the prosecutor was duty-bound to alert the presiding officer of the possible dangers which were lurking in admitting the warning statement. The prosecutor, who was the only person likely to know exactly what evidence he was about to place before court, ought to have at least sought a ruling on the admissibility of the warning statement and the statement allegedly made by the policeman who arrested him. The written statement introduced to the court was a confession and could not have been admitted as it did not comply with the legal formalities. If the prosecutor were intent on having the evidence admitted, at the very least he should have requested a trial-within-a-trial in order to determine the admissibility of the statement.
Held, further, that the appellant had clearly been lured into testifying and consequently did not receive a fair trial as envisaged in s 35 of the Constitution. The conviction accordingly had to be set aside.

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