INTERPRETATION OF LEGISLATION; USE OF SECTION 204 WITNESS’ AFFIDAVID IN TRIAL

Miya and others v S [2017] 3 All SA 906 (GJ)

Criminal procedure – Use of section 204 witness’ affidavit used in bail application, in subsequent trial proceedings – Section 60(11B)(c) of the Criminal Procedure Act 51 of 1977 – Whether section 204 witness could claim the protection afforded by section 60(11B)(c) – Section 60(11B)(c)provides that where an accused is charged with an offence referred to, the record of the bail proceedings shall form part of the record of the trial of the accused following upon such bail proceedings provided that if the accused elects to testify during the course of the bail proceedings the court must inform him of the fact that anything he says, may be used against him at his trial and such evidence becomes admissible in any subsequent proceedings – Court must inform the accused of the fact that anything he says may be used against him when his matter is heard by the court – Failure by court to warn accused results in the evidence of the bail proceedings becoming inadmissible against the accused.

The applicants were four of five accused initially charged in this case. The fifth accused (“Grigorov”) became a section 204 witness and the case against him was withdrawn.

The first accused wished to use the affidavit which Grigorov used in his bail application in the case against him (“the Sandton case”). The State, however, objected thereto. In response to the objection, the first accused argued that he was entitled to use the statement in the Sandton case as Grigorov was no longer an accused in this case but a section 204 witness. He argued that his right to a fair trial would be compromised if he was not allowed to adduce and challenge evidence by testing Grigorov’s credibility using the very statement in question.

The State submitted that the defence first had to satisfy the provisions and the requirements of section 60(11B)(c) of the Criminal Procedure Act 51 of 1977 before they could use the statement. The accused on the other hand, disputed that Grigorov, as a witness, could claim the protection afforded by section 60(11B)(c).

Held The resolution of the issue lay in the correct interpretation of section 60(11B)(c). In interpreting legislation courts need to obtain the meaning of the section from the plain language used in the section; establish the purpose of the legislation; and consider the spirit, purport and objects of the Bill of Rights.

Section 60(11B)(c) held the answer to the question of whether Grigorov, as a witness and not as an accused, enjoyed the protection provided by the section. The section provides that where an accused is charged with an offence referred to, the record of the bail proceedings shall form part of the record of the trial of the accused following upon such bail proceedings – provided that if the accused elects to testify during the course of the bail proceedings the court must inform him of the fact that anything he says, may be used against him at his trial and such evidence becomes admissible in any subsequent proceedings. The latter proviso is the second part of the section, as referred to below.

The section had to be analysed and interpreted. The court was given two interpretations. The State argued that the protection that the section afforded should be extended to cover a witness in a case. The defence held the view that such interpretation was wrong and absurd because the section only covered those who stood accused.

The first accused correctly argued that section 60(11B)(c) can be divided into two parts. The first part was not in issue, the second part was more difficult. The record of the bail proceedings is not excluded from the record of the trial of the accused following upon such bail proceedings. The crux of the matter is that the court must inform the accused of the fact that anything he says may be used against him when his matter is heard by the court. The warning has the effect of advising the accused that he must take an informed decision namely to testify or not to in the bail proceedings. The failure by the court to warn the accused results in the evidence of the bail proceedings becoming inadmissible against the accused. The bail record is automatically excluded insofar as it relates to the accused in his trial.

It was conceded that Grigorov was not warned in accordance with the provisions of section 60(11B)(c) in the Sandton matter. The effect of the failure to warn him meant that his bail record in the Sandton matter could not be used against him in that matter. The problem in interpreting the section lay in the following. The second portion of section 60(11B)(c) states that once warned the bail record became admissible against Grigorov at his trial. The same bail record became admissible “in any subsequent proceedings”. The first part of section 60(11B)(c) creates an evidentiary inclusionary rule of the record of the bail proceedings. The words “in any subsequent proceedings” should not be restrictively interpreted. If the Legislature intended to only refer to the accused’s trial proceedings it would have clearly said so. That meant that a wide interpretation was called for in the interpretation of the words. The meaning of the words was that the evidence becomes admissible where the accused has received due warning.

According to the Court, it would be absurd to only protect Grigorov in the Sandton matter and not in this case. Grigorov, by reason of the protection he enjoyed in the Sandton case was equally protected in this case even though he was a witness. He was not warned in the bail proceedings in the Sandton case which was still to be heard and concluded.

The State’s objection was upheld and the use of Grigorov’s affidavit for purposes of cross-examining him was not permitted.

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