ADMISSIBILITY OF POINTING OUT

S v MABASO 2016 (1) SACR 617 (SCA)

Evidence — Of pointing-out — Admissibility — Pointing-out, as well as certain statements made during pointing-out — Accused not given opportunity to obtain requested legal advice before pointing-out — Interpreted statement not read back — Statements amounting to confession — Right to fair trial requiring exclusion of both pointing-out and statements.

 

The appellant was convicted in the High Court of murder and sentenced to life imprisonment. The conviction was based on a pointing-out made by the appellant that was admitted by the trial court after a trial-within-a-trial. The police officer who conducted the pointing-out kept handwritten notes of said pointing-out in which the appellant first pointed out a tuck shop where he and others drank beer and then another place saying that was where the mayor of Estcourt was shot. The police officer asked him who shot the mayor and the appellant was recorded as answering that he did. This constituted the evidence upon which the appellant was found guilty. It appeared further that when asked whether he wanted legal representation before the pointing-out he responded that he did and wanted to contact his sister-in-law who was a captain at the Estcourt Police Station. He was not given the opportunity to do so. In addition, the notes of the pointing-out, which were conducted in English and required the assistance of a Zulu interpreter, were not read back to him.

Held, that a pointing-out by an accused was regulated by s 218(2) of the CPA which entitled the prosecution to adduce the evidence of a pointing-out notwithstanding that it formed part of an inadmissible confession. The provision did not, however, authorise the production of a confession in the guise of a pointing-out. In the present matter the circumstances giving rise to the pointing-out, as well as the manner in which the police officer questioned and obtained the damning answer from the appellant, constituted a confession elicited from him. This placed the admissibility of the pointing-out itself in question.

Held, further, that in the light of the failure of the police to allow the appellant to obtain legal advice from his sister-in-law before the pointing-out, serious doubt existed whether the pointing-out or the appellant’s utterance was admissible in the light of his right to a fair trial. In the circumstances both probably had to be excluded under s 35(5) of the Constitution.

Held, further, that as the statement had not been read back to the appellant, it followed that the appellant had at no stage confirmed the correctness of the pointing-out notes. The result was that the handwritten notes did not constitute admissible probative material and constituted nothing more than inadmissible hearsay statements. On this basis alone the evidence of the confession ought not to have been admitted. The appeal was upheld and the conviction and sentence set aside.

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