USE OF EVIDENCE AT BAIL PROCEEDINGS IN SUBSEQUENT PROCEEDINGS

S v MIYA AND OTHERS 2017 (2) SACR 461 (GJ)

Bail — Evidence adduced at bail proceedings — Admissibility of at subsequent proceedings — Compliance with provisions of section — Warning by presiding officer that evidence might be used against him at subsequent trial — Warning not given — Use of statement in other proceedings for purposes of cross-examining witness — Protection applicable in other proceedings — Criminal Procedure Act 51 of 1977, s 60(11B)(c).

 

The state raised an objection to the proposed use by counsel for accused 1 of an affidavit made by a state witness in his earlier bail application. The witness had previously been a co-accused but was being used in the present proceedings as a witness in terms of s 204 of the Criminal Procedure Act51 of 1977. The bail application in question was in respect of another case (the Sandton case) in which the witness was standing trial, together with accused 2 in the present case. The witness had not been warned in terms of s 60(11B)(c) in that case. Counsel for accused 1 contended that the accused’s right to a fair trial would be compromised if he was not allowed to challenge evidence by testing the witness’s credibility, using the statement in question. The state submitted that there was no reason why accused 2 should be protected in both the Sandton case and in the present case while the witness, according to the defence argument, should only be protected in the Sandton case and not in the present one.

Held, that the question was not whether the witness in question was a witness or an accused, because the protection was drawn from s 60(11B)(c), and s 203 or 204 was not the issue. The correct interpretation of s 60(11B)(c) was that by reason of the protection the witness enjoyed in the Sandton case, he was equally protected in the present case, even though he was a witness. He had not been warned in the bail proceedings in the Sandton case, and the section accordingly applied. (See [30] – [31].)

Held, further, that if the intention of the legislature was that the applicability or admissibility of evidence was restricted to the trial to which the bail recordrelated, it would not have added the words ‘in any subsequent proceedings’ in the section. The objection accordingly had to be sustained.

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