Standard practice for a party to put to each opposing witness so much of his case or defence as it concerns that witness

S v Diya [2018] 2 All SA 488 (ECM)

Criminal law and procedure – Alibi defence – Onus of proof – Effect of failure to call witnesses to corroborate alibi.

Criminal law and procedure – Evidence – Cross-examination – Standard practice for a party to put to each opposing witness so much of his case or defence as it concerns that witness – If a point in dispute is left unchallenged in cross-examination, the party calling the witness is entitled to assume that the unchallenged witness’ testimony is accepted as correct.

Criminal law and procedure – Murder – Assessment of evidence – Confession –Admissibility of confession is provided for in section 217 of the Criminal Procedure Act 51 of 1977, which provides that evidence of any confession made by any person in relation to the commission of any offence shall, if such confession is proved to have been freely and voluntarily made by such person in his sound and sober senses and without having been unduly influenced thereto be admissible in evidence against such person at criminal proceedings relating to such offence.

The accused was charged with the murder of an 86-year-old woman, who was the mother of a relative (“Thembekile”) of the accused. It was alleged by the State that Thembekile had entered into an agreement with the accused, to pay him R10 000 to kill his mother. The accused pleaded not guilty to the charge and elected not to tender a plea explanation.

A key witness for the State was someone who had stayed in the accused’s home while looking for a job in 2016. He testified that during that time, he had seen two text messages on the accused’s phone, both from Thembekile. The messages spoke of the intention for the deceased to be killed by the accused at the request of Thembekile. The witness (“Mr Khowa”) did not disclose his knowledge of the messages to anyone due to his fear of reprisal.

Some time passed without any breakthrough in the case. Eventually the husband of the deceased went to the police to report that the community was threatening to kill the accused and another young man who were staying at the home of the deceased. It was reported that the accused had complained to an informer about not having been paid by Thembekile for the murder of Thembekile’s mother. That caused the police to go to the house in question to speak to the accused. According to the investigating officer, the accused was emotional and made it clear that he wanted to co-operate with the police and to tell all he knew about the death of the deceased.

The State indicated their intention to have the confession admitted as part of the record and requested that there be a trial-within-a-trial to determine its admissibility. However, the accused denied that he made the statement voluntarily and said that he was told what to say by the investigating officer who took the statement. He also alleged that the statement was induced by sustained torture by the police.

Held – Mr Khowa’s evidence-in-chief, under cross-examination and when compared to what he said to the police when his statement was taken did not change. His evidence was consistent throughout in most material respects and there were no contradictions even under cross-examination. His evidence was credible.

The version of the accused regarding the conduct of the police in taking his statement was not supported by the evidence. The testimony to the contrary by the investigating officer was corroborated by numerous other police officials, and it became clear to the Court that the accused was putting together a clumsy combination of lies, half-truths and fabrications.

The admissibility of confessions is provided for in section 217 of the Criminal Procedure Act 51 of 1977, which provides that evidence of any confession made by any person in relation to the commission of any offence shall, if such confession is proved to have been freely and voluntarily made by such person in his sound and sober senses and without having been unduly influenced thereto be admissible in evidence against such person at criminal proceedings relating to such offence. Section 35(5) of the Constitution provides that evidence obtained in a manner that violates any rights in the Bill of Rights must be excluded if the admission of the evidence would render the trial unfair or otherwise be detrimental to the administration of justice. On the facts of this case, the Court found not even the slightest objective evidence of anything having been done by the police that would have resulted in the accused making the statement in any way other than as provided for in section 217. It was thus concluded that the confession was made freely and voluntarily by the accused in his sound and sober senses and without being unduly influenced.

In the wake of that ruling, the statement of the accused was read into evidence. The accused, in his court testimony however, raised an alibi defence, alleging that he was in another location, at his home at the time of the murder. That allegation was contradicted by two witnesses who placed him at the deceased’s homestead on the day of the murder. The accused attempted to cast doubt on the facts alleged by those witnesses, but in numerous instances his version was not put to the State witnesses. That led the Court to explain the law in that regard. It is standard practice for a party to put to each opposing witness so much of his case or defence as it concerns that witness. If a point in dispute is left unchallenged in cross-examination, the party calling the witness is entitled to assume that the unchallenged witness’ testimony is accepted as correct.

Another unsatisfactory feature of the defence case was its case was closed without calling any witnesses to corroborate the alibi defence.

The Court found that the accused’s evidence was riddled with outright lies and inconsistencies and was so full of inherent improbabilities as to be false.

Section 209 of the Criminal Procedure Act provides that an accused may be convicted of any offence on the single evidence of a confession by such accused that he committed the offence in question, if such confession is confirmed in a material respect or, where the confession is not so confirmed, if the offence is proved by evidence other than such confession, to have been actually committed. The Court concluded that the guilt of the accused had been proved beyond reasonable doubt and the accused was accordingly found guilty of murder as charged.

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