COURT MUST HAVE REGARD TO EXCULPATORY AS WELL AS INCRIMINATING PART OF BAIL PROCEEDINGS

S v MACHABA AND ANOTHER 2016 (1) SACR 1 (SCA)
Evidence — Admissibility — Record of bail proceedings — Admission of exculpatory nature made by accused during application for bail — Record handed up in subsequent trial in terms of s 60(11B)(c) of CPA — Court had to assess whole statement, including exculpatory part — No reason why court should have regard only to incriminating part — Criminal Procedure Act 51 of 1977, s 60(11B)(c).

In an appeal by the two appellants against their convictions and sentences for murder and robbery, the evidence against the second appellant on which the state relied in part was that in his application for bail he admitted that he was the owner of the firearm used in the killing of the deceased, that was later found in his possession, but that at the time he had lost it and that his younger brother had taken it. As regards the admissibility of this evidence obtained by the handing-in of the record of the bail application in terms of s 60(11B)(c) of the Criminal Procedure Act 51 of 1977,

Held, that the handing-in of the bail application was a short cut to achieving the same object as provided for in s 235 of the CPA. The record was prima facie proof that any matter recorded on the record was properly recorded. It was introduced as part of the record of the trial subject to the qualification that it was essential that the accused had to be warned of the consequences of testifying in a bail application prior to its acceptance as part of the record.
Held, further, that the principle that when the state proved that an accused made an admission in such statement the court had to assess the whole statement, including the exculpatory part, could also be applied in a similar manner to that applicable to a plea explanation made in terms of s 115 of the CPA, as well as admissions in a bail application. There was therefore no reason why the court could have regard to the incriminating parts of such a statement whilst ignoring the exculpatory ones. The appeal against the convictions was dismissed and the appeal against sentences was partially successful.

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