TRAP NOT UNCONSTITUTIONAL IF INVOLVED IN CRIME OF VIOLENCE AGAINST PUBLIC

S v SINGH AND OTHERS 2016 (2) SACR 443 (SCA)

Evidence — Traps — Section 252A of Criminal Procedure Act 51 of 1977 — Undercover agent used to infiltrate organised-crime syndicate involved in armed hijacking of vehicles — Participation by agent in crimes which exposed certain members of public to potential violence not rendering evidence obtained by undercover operation inadmissible in terms of s 35(5) of Constitution.

Members of the South African Police Service (SAPS) during 2007 – 2008 conducted an undercover operation under s 252A of the Criminal Procedure Act 51 of 1977 (CPA). It was targeted at eliminating a syndicate which hijacked large 18-wheeler trucks on the N3 and drove them to quiet side roads where the wheels were removed and delivered to the coordinator of the syndicate for reward.

In motivating their application for the operation, the SAPS highlighted the seriousness of the syndicate’s activities, including the murder of two truck drivers and the rape of a woman. The police pointed out that they were not able to detect the crimes or apprehend the main role players through conventional investigation techniques since the incidents occurred randomly, making it difficult for the police to know in advance where the next crime would be committed. Although some secondary targets such as spotters, guards and robbers were apprehended on a regular basis, it was difficult to secure convictions of the leaders of the syndicate as they were not usually present at the scene of the crimes. This failure meant that the market was not eliminated as the secondary targets were easily replaced when convicted and the syndicate would continue as usual. They therefore wished to use an ‘in place informer’ and a trap agent.

The Director of Public Prosecutions (DPP) approved the application for the operation and issued guidelines under which it was to be conducted. In terms thereof the agent and the informer would become involved in criminal schemes that were already under way. A police agent was appointed and infiltrated the syndicate. He was given a specially equipped truck with video-recording equipment and a Tracker device linked to a police computer. The agent did not initiate any of the criminal activities and his main role was to convey the wheels that had been removed from trucks to a specified address and he would be paid for his efforts. All of the evidence leading to the conviction of the three appellants was gathered during this operation. As a result they were arrested and indicted on 20 counts ranging from racketeering, robbery with aggravating circumstances, corruption, kidnapping, unlawful possession of firearms, attempted murder and money-laundering. The first appellant was convicted on six counts and was sentenced to an effective term of 35 years’ imprisonment and the other two appellants were sentenced to an effective term of 30 years’ imprisonment.

On appeal the appellants relied solely on the contention that the activities of the operation infringed the provisions of s 35(5) of the Constitution, not the basis that the violations affected their rights in any way but rather as they related to the rights of the public at large. It was alleged that the conduct of the state was detrimental to the administration of justice in that it undertook the operation well aware that members of the public had already been exposed to serious violence, and that it continued with the operation whilst aware of a real possibility of further exposure to such violence.

Held, that the use of undercover agents by the police for the prevention and detection of crime was long established and was acceptable in our constitutional democracy. There was no automatic exclusion of unconstitutionally obtained evidence in terms of s 35(5) unless it rendered the trial unfair or was otherwise detrimental to the administration of justice. What had to be balanced in determining whether the administration of justice was impaired, was respect for the Bill of Rights by law-enforcement agencies, and respect for the judicial process, particularly by the man in the street. Held, further, that the appellants’ attack on the operation could be dismissed simply on the basis that it was meant to protect the very public alleged to have been exposed to violence. The information at the disposal of the police showed that the crimes perpetrated were becoming increasingly violent. The actions of the syndicate did not only expose the victims of the hijackings to serious criminal conduct but also had huge implications for the country’s economy caused by delays in the transportation of goods, which affected consumers who were mostly members of the general public. Held, further, that the evidence showed that the police and the DPP were very cautious in performing the operation and it was in no way conducted with flagrant disregard for the constitutional rights of possible victims or other members of the public.

Held, further, that public opinion was one of the relevant factors in considering whether rights violations were detrimental to the administration of justice and it was unacceptable to the public when courts excluded evidence indicating guilt, particularly in the current state of the endemic violent crime throughout the country. Had the agent not infiltrated the syndicate the probabilities were that the criminal activities would have continued. The public would baulk at the idea that the law-enforcement agencies failed to take bona fide measures aimed at effective detection of such an organised-crime syndicate because of the fear that there may be danger to the public. The interests of the administration of justice therefore outweighed the risk to potential victims and the public. The challenge on the rights violations accordingly had to fail and the convictions had to be upheld.

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