FAILURE TO PROPERLY INFORM DETAINEE OF CONSTITUTIONAL RIGHTS

S v MAGWAZA 2016 (1) SACR 53 (SCA)
Evidence — Confession — Admissibility of — Confession made to police officer — Explanation of accused’s rights — Constitutional right not to be regarded as satisfied simply by some incantation which detainee might not understand — Purpose of informing accused of rights was in order to allow him or her to decide whether to exercise them — Could not do that if accused did not understand what rights were — Failure to properly inform detainee of constitutional rights rendered them illusory.
Evidence — Confession — Admissibility of — Confession made to police officer — Explanation of accused’s rights — Not warned of consequence of not remaining silent or of entitlement to services of legal representative at state expense — Deficiencies occasioned by inadequate warning by arresting officer not cured by detailed warning given to accused by police captain before he took confession.

The appellant and a co-accused stood trial in a High Court on charges of murder and robbery with aggravating circumstances arising out of an attack on a pension paypoint during which a security guard was fatally wounded. The appellant was arrested almost two months after the incident due to information supplied by an informer. The arresting officer stated in evidence that he warned the appellant at the time of his arrest of the allegations against him, as well as of his rights under s 35 of the Constitution. From the cross-examination of the arresting officer and the inspector who acted as interpreter during the questioning of the appellant, it appeared, however, that the arresting officer had not warned him of the consequence of not remaining silent or of his entitlement to the services of a legal representative at the state’s expense. Shortly after being arrested the appellant made a confession and a pointing-out to the police. His conviction was based largely on the confession made to a police captain. In an appeal against conviction and sentence it was suggested on behalf of the state that the deficiencies occasioned by the inadequate warning by the arresting officer were cured by the detailed warning given to the appellant by the police captain before he took his confession.

Held, that it was clear that by the time the appellant had been warned by the police captain, he had already confessed to the robbery. It was important to appreciate that a constitutional right was not to be regarded as satisfied simply by some incantation which a detainee might not understand. The purpose of making a suspect aware of his rights was in order for him to make a decision whether to exercise them and, plainly, such detainee could not do that if he did not understand what those rights were. It had to follow that the failure to properly inform a detainee of his constitutional rights rendered them illusory.
Held, further, that if it were accepted — as it had to be — that the appellant was not properly warned of his constitutional rights, then it had to follow that there was a high degree of prejudice to him because of the close causal connection between the violation and the conscriptive evidence, since the infringement of his rights resulted in the creation of evidence which otherwise would not have existed.
Held, further, that the police had not employed any other investigative techniques to link the appellant to the crime: their investigation, which had already been going on for some two months, had not led them to the appellant. Instead it was the accusing finger of an informer that had pointed them in the appellant’s direction. Therefore there was at the time of his arrest no other evidence that linked him to the offences. A few hours after his arrest he had furnished to the police the self-incriminating evidence upon which, without more, he was ultimately convicted. The evidence adduced by the two police officials of what transpired from the time of his arrest until he arrived at a confessing state of mind was unclear and far from satisfactory.
Held, accordingly, that the evidence of the pointing-out and confession ought to have been excluded and in the circumstances the appeal had to succeed.

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