CROSS EXAMINATION ON UNSIGNED STATEMENT

S v GAMA 2016 (2) SACR 530 (GJ)

Evidence — Witness — Cross-examination — Of state witness — On statement made to police — Magistrate not permitting cross-examination on unsigned statement of complainant in police docket in situation where complainant had made two statements, but only signed one — Irregularity committed vitiated entire proceedings.

 

The appellant was convicted in a magistrates’ court of robbery with aggravating circumstances and sentenced to 15 years’ imprisonment. Two statements purportedly made by the complainant were made available to the defence before the trial, one of which was signed and the other unsigned. In her evidence under cross-examination the complainant testified that both statements had been read back to her by the police officer, but that she only signed one statement. There was no explanation of how, if at all, the statements differed. When the appellant’s legal representative attempted to cross-examine the complainant on the unsigned version of the statement, the court effectively stopped the cross-examination, stating that the court did not know whose statement it was. It was contended on appeal inter alia that the court’s disallowing of cross-examination of the statement constituted an irregularity.

Held, that whether the statement had been signed by the complainant or not, it was a statement purporting to be her statement and made available to the defence at its request for ‘her original statement’. The statement was a relevant document and ought to have been admitted as evidence and to have been available for the appellant’s legal representatives to cross-examine on.

Held, further, that the failure to allow cross-examination on the unsigned statement, alternatively the failure to make available the original statement of the complainant to the appellant so that she could be cross-examined on that statement, constituted an irregularity in the proceedings. Such failure vitiated the proceedings unless it was clear that no prejudice had been caused to the appellant thereby. As there had been clear prejudice to the appellant, the conviction and sentence had to be set aside.

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