EVIDENCE ON AFFIDAVID COUNT AS EVIDENCE AT BAIL PROCEEDINGS

S v MADLALA 2015 (2) SACR 247 (GJ)

Bail — Evidence adduced at bail proceedings — Admissibility of at subsequent trial — Compliance with provisions of section — Warning by presiding officer evidence might be used against him at subsequent trial equally applicable to evidence on affidavit as oral evidence — Criminal Procedure Act 51 of 1977, s 60(11B)(c).

The appellant appealed against his conviction for robbery with aggravating circumstances in a regional magistrates’ court. He contended inter alia that the magistrate had misdirected himself in admitting his bail affidavit into the record without proof of substantial compliance with s 60(11B)(c)of the CPA, which required that the applicant not only be advised by his attorney that the statements in his bail affidavit could be used against him during his trial and form part of the record, but also that the court itself had to inform him that the statement might be used against him at his trial. His counsel contended that the misdirection had resulted in an unfair trial. Counsel for the state argued that there was no requirement that the presiding officer at E the bail proceedings had to inform the accused of his rights if the accused, as in the instant case, had submitted an affidavit. He argued that s 60(11B)(c) only required the presiding officer to warn the accused if he elected to testify during the course of the bail proceedings, and an affidavit was not testifying.
Held, that both oral evidence and affidavits were evidence that could be used in the subsequent trial. As such, the requisite warning had to be issued by the court to the accused before he elected to testify orally or by way of an affidavit.
Held, further, that, even if the presiding officer did not inform the accused of his rights during the bail proceedings, such misdirection did not warrant a reversal. The admission of inadmissible evidence was material and prejudicial to the accused if it formed the basis for an adverse decision reached. In the present case the failure of the magistrate to exclude the inadmissible evidence was immaterial and non-prejudicial to the accused, as the magistrate did not emphasise the inadmissible evidence in reaching his conclusions as to the factual issues in the case. The magistrate did not hang his hat on internal consistencies between the appellant’s statements made during the bail hearing and his testimony at trial, but rather on the general demeanour of the appellant and his co-accused insofar as they presented evidence that was incredible, unreliable and riddled with external contradictions, as against the complainant who was a credible and reliable witness. Even without factoring in the internally contradictory statement made by the appellant during the bail proceedings and at trial, a finding of guilt was still supported by the magistrate’s credibility findings, based on the externally contradictory evidence of the appellant and his co-accused at trial. The appeal was dismissed.

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