SCOPE OF COURT’S POWER TO RECALL AND SUBPOENA WITNESSES

S v Masooa [2016] 2 All SA 201 (GJ)

Criminal procedure – Evidence – Criminal Procedure Act 51 of 1977 – Recalling of witnesses in terms of section 167 and subpoenaing of witnesses in terms of section 186 – Scope of court’s powers explained – Court emphasised the necessity to maintain impartiality, open mindedness and fairness and not to take over the role of the prosecutor, or lose its impartiality, or the appearance of impartiality.

After the close of the defence case in this matter, the Court raised concerns about the need to invoke the provisions of section 186 of the Criminal Procedure Act 51 of 1977 and the advisability of recalling certain witnesses under section 167.

The concerns related to expert testimony regarding the reliability of forensic tests and analysis despite extraneous facts and interference. If the court accepted that aspect of the evidence which was based purely on the application of scientific analysis and the expert’s knowledge then the only issues would be his credibility and whether the court itself when weighing up the totality of evidence could raise any query regarding the veracity of the scientifically based testimony and thereby cast doubt as to whether the State had proven its case beyond reasonable doubt. Another concern related to the court and the assessors’ levels of knowledge regarding the basic operation of a motorcycle and the basic functioning of a semi-automatic firearm such as the one possessed by the deceased. Such concerns brought into play the possible need for the court to call witnesses in terms of section 186.

Section 167 dealt with the recalling of witnesses.

Held – The need to obtain the views of the parties before calling witnesses in terms of section 186 was the first issue to be considered. In the present case there was potential prejudice to the accused if the section was invoked, as would be the case with applying section 167. Accordingly before remanding the trial, the parties were advised that the court wished to hear argument regarding the possibility of the court calling additional expert witnesses, calling evidence with regard to the controlling of the deceased’s motorcycle and the mechanism of firearms as well as recalling other witnesses who had already testified. In deciding whether to invoke section 186, the court must scrutinise the reason for doing so, in case the real reason is to shore up the State case. The Court emphasised the necessity to maintain impartiality, open mindedness and fairness – and not to take over the role of the prosecutor, or lose its impartiality, or the appearance of impartiality. Bearing those principles in mind, the Court identified the expert witnesses needed in this case, and provided for the subpoenaing of such witnesses.

Section 167 compliments section 186 insofar as the calling or recalling of a witness appears to the court to be essential to the just decision of the case. It is,however, confined to a witness who has already been subpoenaed or who has already testified.

Returning to the issue in respect of which the Court harboured concerns, the Court concluded that it was necessary to recall the expert referred to above. The need to recall that witness was essential to the just decision of the matter. The accused had failed to advance details of his version as to how the incident unfolded, and the witness was qualified to testify as an expert on crime reconstruction and different weapons. Furthermore, the Court saw fit to recall two witnesses in order to inform the Court whether any additional photographs were taken and if so, to produce them.

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