PHOTO OF ACCUSED ADMISSIBLE

S v SKHOSANA 2016 (2) SACR 456 (GJ)

Evidence — Admissibility — Photographs — Cellphone photograph of accused taken by security officer — Admissibility not disputed in court a quo — Provisions of s 37(1)(d) of Criminal Procedure Act 51 of 1977, which permitted police officer to take photographic image of any arrested person, not unconstitutional — Photograph admissible.

The appellant was convicted in a magistrates’ court of housebreaking with intent to steal and theft and was sentenced to eight years’ imprisonment. He contended on appeal that the court a quo had erred in finding him guilty in that his rights had not been explained to him in terms of s 35 of the Constitution prior to his photo having been captured on a security officer’s cellphone, thereby resulting in inadmissible evidence being accepted by the court.

Held, that although the photograph was taken by a security officer and not a police officer, it aided the state witnesses in explaining their testimony as to what the appellant and his co-accused were wearing at the time. It substantiated their testimony and had probative value. The admissibility of the photograph was further not disputed in the court a quo and s 37(1)(d) of the Criminal Procedure Act 51 of 1977, which permitted a police officer to take a photographic image of any arrested person, was not unconstitutional. The court a quo had accordingly been correct to admit the evidence. The appeal was accordingly dismissed.

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