S v Christie

• Jurisdiction: South Africa
• Judgment Date: 06 November 1981
• Citation: 1982 (1) SA 464 (A)

S v Christie
1982 (1) SA 464 (A)

1982 (1) SA p464

Citation	1982 (1) SA 464 (A)
Court	Appellate Division
Judge	Rabie JA, Diemont JA and Cillié JA
Heard	September 17, 1981
Judgment	November 6, 1981

Flynote : Sleutelwoorde

Criminal procedure — Evidence — Confession — Admissibility of — Accused B detained under s 22 of General Law Amendment Act 62 of 1966 — Factors Court will have regard to in determining whether confession inadmissible by reason of alleged duress or undue influence — Detainee under that section under no duty to speak — Difference between detention thereunder and detention under s 6 of Terrorism Act 83 of 1967.

C Criminal procedure — Evidence — Confession — Admissibility of — Accused arrested in Cape Town — Statement taken by security police — Accused chosing to make statement before peace officer rather than magistrate — Statement taken before police major in a different branch — Accused thereafter transferred to Johannesburg and statement D taken by security police there after accused informed he is being detained under s 22 of Act 62 of 1966 and not under Terrorism Act 83 of 1967 — Difference explained to him — Such statement again recorded at his choice by a peace officer, a major of police not in security branch and not connected with case — Statement made voluntarily and carefully E by accused in his own words, paragraphing and punctuation, though recorded in handwriting by peace officer — Accused convicted on five counts under Terrorism Act — State relying solely on such statement as a confession — Defence in circumstances failing to establish that Johannesburg statement part and parcel of Cape Town statement and F failing to establish that Johannesburg statement made under duress or undue influence, whatever harassment accused may have been under when he made Cape Town statement — State discharging onus on it of establishing Johannesburg statement freely and voluntarily made.

G Criminal procedure — Trial — Trial within a trial as to admissibility of a confession — Police witnesses for State not questioned by defence as to undue influence or duress — Defence then leading evidence thereof — Such introducing fresh matter — Prosecution allowed to lead evidence in rebuttal thereafter in exercise of Court's discretion.

H Criminal procedure — Indictment — Splitting of charges — No inflexible tests can be laid down — Circumstances of each case to be examined.

Headnote : Kopnota

Section 6 of the Terrorism Act 83 of 1967 permits indefinite confinement with a considerable degree of isolation until the detainee has replied satisfactorily to all questions; these factors, it has been said, could create conditions calculated to put the detainee under pressure to make statements regardless of their truth or falsity. Section 22 of the General Law Amendment Act 62 of 1966 provides for only limited detention and does not create an obligation to speak. Section 6 is obviously the more drastic section and the likelihood of the detainee being influenced by the

1982 (1) SA p465

circumstances of his detention is far greater when he is arrested and detained under the provisions of the Terrorism Act.

The Court will not automatically assume that because the person A concerned is being held under s 22 of the General Law Amendment Act 62 of 1966 any statement he makes is not freely and voluntarily given. But at the same time the Court will recognise that there may be an element of inducement in the sense that the detainee may think that by speaking he may secure his early release. Accordingly whether he has been induced to speak and, if so, why, is a question of fact to be looked at in each case.

In the interest of finality a party who has closed his case cannot B afterwards claim the right to lead any further evidence. That rule applies, no doubt, also to a trial within a trial. But there are exceptions to the general rule and further evidence in rebuttal may be led with the leave of the Court. In the exercise of his discretion the Judge will ask himself whether the evidence could not by the exercise of due diligence have been led at the proper time. Where, during the course of the defence evidence, new matter is introduced which the prosecution C could not have been expected to foresee, the prosecution, at the close of the defence evidence, may be permitted to present rebutting evidence in respect of such matter.

It is virtually impossible in our law to lay down a general inflexible test as to when there is a splitting of charges of a duplication of convictions. The circumstances of each particular case must be examined.

D Appellant, a South African student and doctor of philosophy, had been convicted in a Provincial Division on five counts under the Terrorism Act 83 of 1967. In an appeal against his conviction, it appeared that he had been arrested in Cape Town, his flat had been searched, and he had then been taken to the security police offices there where he had been interrogated throughout the night. On the following morning he had written out a statement which, after it had been read by a colonel of E the security branch, he had supplemented. He had then been given the choice between repeating the statement to a magistrate or a police officer who was a justice of the peace. He had chosen the latter and had then been taken to a major in the fraud branch unconnected with the matter. The statement had then been handed to the major and signed by the appellant. Next day he was taken by air to Johannesburg where a new F investigating officer took over. The following morning he was interviewed by another major of the security branch, told that he was being detained under s 22 (1) of the General Law Amendment Act 62 of 1966 and not under s 6 (1) of the Terrorism Act, the difference being explained to him. He was then given the same choice as before, made the same choice, and thereafter made a careful statement, in his own words, paragraphing and even punctuation, to a Major L in the commercial branch G and likewise not connected with the investigation. This statement had been recorded in Major L's handwriting and not finally completed before 6.45 that evening. At the trial the prosecution had relied solely on the Johannesburg statement. In a trial within a trial on the question of its admissibility, the defence had sought first of all to know whether the prosecution intended to put in the Cape Town statement. The prosecution, H however, had reserved its position and requested a ruling as to the Johannesburg statement. The trial Judge ruled that the Court was concerned only with the Johannesburg statement and that there was no obligation on the State to decide whether it would tender the other one in evidence. The trial within a trial proceeded and the appellant had given evidence as to the circumstances under which he had been arrested and interrogated in Cape Town. The prosecution then applied to lead rebutting evidence in regard to appellant's alleged treatment in Cape Town and as to the effect which such treatment was alleged to have had on the making of the Johannesburg statement. This application was opposed on the ground that

1982 (1) SA p466

evidence relating to the Cape Town statement should have been anticipated by the State. The trial Judge allowed the State to lead this evidence. The defence had called no further evidence and the State A closed its case after leading such rebutting evidence. In the appeal it was contended on appellant's behalf, inter alia, (1) that the admission of the rebutting evidence after the appellant had testified had constituted a gross irregularity which caused a failure of justice and vitiated the proceedings in the Court a quo; (2) that it had not been shown beyond reasonable doubt that the statement had been made freely and voluntarily without undue influence; and (3) that that the trial B Judge had erred in holding that the fact that appellant had been detained in terms of s 22 of Act 62 of 1966, at the time of the making of the Johannesburg statement, had not constituted undue influence on appellant.

Held, that no fault could be found with the trial Judge's ruling that he had been asked to decide only on the admissibility of the Johannesburg C statement and that he could not compel the State to lead evidence in support of a statement it had not tendered in evidence.

Held, as to (1), that in the circumstances the appellant had given evidence of fresh matter (alleged duress) which the prosecution could not have foreseen, as this had not been put to the police witnesses: it could not, therefore, be said that the trial Judge had exercised his discretion unjudicially when he had granted the State leave to lead D evidence in rebuttal, no injustice having been done.

Held, as to (2), that the contention on behalf of the appellant that the Cape Town statement and the Johannesburg statement were part and parcel of each other failed on the evidence: assuming in appellant's favour that the appellant had been unfairly treated in Cape Town, the evidence clearly established that any harassment to which appellant might have E been subjected in Cape Town had ceased to operate in Johannesburg and the confession in Johannesburg had been freely made without undue pressure and had not been invalidated by the earlier inducement to speak.

Held, as to (3), that there was no evidence on record which led the Court to infer that the mere fact of detention under s 22 of Act 62 of 1966 had induced the appellant to make a confession or exercised any undue influence over him.

F Held, further, though the conviction and sentence on one of the conts should be set aside, that there had been no splitting of charges in respect of the other four counts on which he had rightly been convicted.

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