GROSS IRREGULARITY FOR PROSECUTOR TO CONSULT DEFENCE WITNESS

S v MASOKA AND ANOTHER 2015 (2) SACR 268 (ECP)

Evidence — Admissibility — Evidence illegally obtained — Prosecutor instructing investigating officer to obtain witness statement from alibi witness of accused No 2, after alibi witness already having consulted with accused No 2’s attorney — Interference with defence witness in criminal trial compromised integrity of witness and accused’s right to fair trial — Gross irregularity on part of prosecutor.

The second accused had indicated in his plea explanation on a charge of robbery, that he had an alibi and disclosed the name and address of the witness. His attorney consulted with the witness on the following day. The prosecutor instructed the investigating officer to obtain a witness statement from the alibi witness, which was obtained but never mentioned until the statement was produced when the second accused completed his examination-in-chief and the prosecutor started cross-examination. When this occurred the magistrate referred the matter on special review to the High Court.
Held, that no legal representative was allowed to consult or influence or interfere in any way whatever with the opposing party’s witnesses. In criminal matters an accused who interfered with state witnesses could be imprisoned pending trial, and might be refused bail. The rule was as binding on investigating officers and prosecutors who interfered with defence witnesses.
Held, further, that, to interfere with or attempt to influence a defence witness in a criminal trial was to compromise the integrity of that witness. If an accused’s witness was compromised, the accused’s right to a fair trial was equally compromised. If this happened the evidence became worthless and the true facts could not be ascertained. The entire justice system was then undermined and justice could not be done.
Held, further, that the prosecutor was guilty of serious misconduct and had to be duly censured. The proceedings against the accused had to be set aside and the Director of Public Prosecutions had to decide whether or not to commence criminal proceedings against him afresh before another magistrate. If so, the witness statement obtained by the state from the defence witness had to be removed from the police docket and be regarded as pro non scripto, and he had to be disqualified as a state witness.

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