S v Colt and Others

JurisdictionSouth Africa
Citation1992 (2) SACR 120 (E)

S v Colt and Others
1992 (2) SACR 120 (E)

1992 (2) SACR p120


Citation

1992 (2) SACR 120 (E)

Court

Eastern Cape Division

Judge

Kroon J

Heard

March 16, 1992

Judgment

April 8, 1992

Counsel

N Henning for the State
G G Goosen for the accused at the request of the Court

Flynote : Sleutelwoorde B

Evidence — Confession — Admissibility of — Rule 10 of Judges' Rules — Breach of — Effect of — Investigating officer confronting accused with co-accused's statement during questioning after arrest, questioning him thereon and requiring him to respond thereto without administering usual caution to him — Accused being brought as a result to confessing state of C mind and resiling from his previous denial — Accused thereafter making statement constituting confession to senior police officer — Investigating officer's conduct a material non-observance of rule 10 of Judges' Rules and a practice repugnant to the principles upon which our criminal law based, and in law constituting undue influence — That undue influence still operative when statement made to senior police officer — D State therefore not discharging onus of establishing that statement in question made by accused without his having been unduly influenced thereto — Statement accordingly not receivable in evidence — Principle enunciated in earlier case with reference to deponent who has been brought to magistrate for purpose of making a confession and who states that he had previously made a statement to the police, should be extended to E enjoin a magistrate or police officer, who has been requested to minute a statement, in all cases to properly investigate, by appropriate questioning of deponent, events and circumstances which led deponent to appear before him, and to record results of such investigation — Semble: Depending on whole factual picture, persuasive argument could be made out that where State seeks to invoke s 217(1)(b) of Criminal Procedure Act 51 F of 1977 in order to saddle accused with onus of disproving admissibility of statement, failure on part of magistrate properly to investigate events preceding deponent's appearance before him should result in finding that, ex facie the document, not appearing that statement was made freely and voluntarily and without undue influence.

Headnote : Kopnota

G The principle enunciated in S v Jika and Others 1991 (2) SACR 489 (E) with reference to the position where a deponent, who has been brought to a magistrate for the purpose of making a confession, states that he has previously made a statement to the police, should be extended to enjoin a magistrate or police officer, who has been requested to minute a statement, in all cases to properly investigate, by appropriate H questioning of the deponent, the events and circumstances which led to the deponent appearing before him and to record the results of such investigation. Such a procedure would go a step further in assisting the Court which may later be called upon to adjudicate on the admissibility of the statement and would work against injustice to an accused. It would, for example, probably obviate the situation where a deponent, for whatever I reason, wrongly states that he has not made a previous statement and that answer is accepted at face value.

Semble: It seems, depending on the whole factual picture, that a persuasive argument could be made out that in a case where the State seeks to invoke the terms of s 217(1)(b) of the Criminal Procedure Act 51 of 1977 in order to saddle an accused person with the onus of disproving the admissibility of a statement, a failure on the part of the magistrate J properly to investigate

1992 (2) SACR p121

A the events which preceded the deponent's appearance before him should result in a finding that, ex facie the document, it does not appear that the statement was made freely and voluntarily and without the deponent having been unduly influenced thereto.

In the instant case the accused (accused No 3) had been arrested in the afternoon and, after having been identified by certain of the State B witnesses as the correct suspect, had been formally charged and warned in terms of the Judges' Rules. He had then been taken to the office of B (the investigating officer) where B had questioned him with the assistance of an interpreter, N. Accused No 3 was thereafter left in a cell while B and N went to arrest a co-accused (accused No 1). B conceded that accused No 1's name might have been mentioned by accused No 3 when he was being C questioned. After accused No 1 had been arrested and questioned, B resumed the questioning of accused No 3. At this second questioning session accused No 3 was confronted with what accused No 1 had told B, a version which differed from that which accused No 3 had earlier given B, and accused No 3 was required to respond to what accused No 1 had said. The upshot was that accused No 3 resiled in certain respects from his earlier D version and his new version conformed substantially to that of accused No 1. Thereafter the questioning ceased. The second questioning of accused No 3 was not prefaced by a repeat of a warning in terms of the Judges' Rules. The following morning B enquired of accused No 3 whether he would be prepared to make a statement to a magistrate or a police officer and, when accused No 3 agreed, B unsuccessfully endeavoured to enlist the services E of a magistrate to minute such statement, whereupon he contacted Captain V H, an officer in the South African Police, who minuted the statement before lunch on that day. Captain V H testified that prior to minuting the statement he duly warned the accused and asked him a number of prefatory questions, the answers to which all indicated that the accused was willing to make a statement and had not been induced or influenced to do so. B F denied that either he or any other policeman had assaulted the accused or in any other way induced or influenced him to make the statement. He did not consider that he had acted irregularly in confronting the accused with accused No 1's version in questioning him thereon and in requiring his response thereto, a mode of investigation which, he said, was his wont.

G At the subsequent trial of accused No 3 and his three co-accused on a charge of murder, the State tendered, as part of its case against accused No 3, evidence of the statement made by him to Captain V H, the provisions of s 217 of the Criminal Procedure Act 51 of 1977 being of application and the statement therefore constituting a confession either to the charge of murder or to another crime, a conviction of which would have been a H competent verdict on the charge of murder. Counsel for the defence sought to resist the admission of the statement on the grounds that it had not been made freely and voluntarily and that B's modus operandi in questioning the accused had been in breach of the Judges' Rules, and specifically rule 10, the result of which was that accused No 3 had been subjected to undue influence, causing him to make the statement to Captain I V H. Counsel were agreed that the onus rested on the State to disprove the contentions advanced by the defence beyond a reasonable doubt.

After holding that the statement to Captain V H had been made freely and voluntarily, in the sense that it had not been tainted by any preceding assaults or other coercion, the Court embarked upon a comprehensive review of the principles, as enunciated in the relevant authorities, relating to J the meaning of the expression 'without having been unduly influenced

1992 (2) SACR p122

A thereto' and the extent to which a breach of the Judges' Rules, and specifically of rule 10, was capable of founding a finding that undue influence was brought to bear on the mind of an accused who was the victim thereof.

Applying those principles to the facts of the instant case, the Court went on to hold that the confrontation by B of accused No 3 with the version of B accused No 1 had resulted in a confession being elicited from accused No 3, the confrontation having therefore brought accused No 3 to a confessing state of mind. It was, in other words, a case of cause and effect. Accused No 3 was an unsophisticated and unintelligent man with limited education, whose make-up was not that of a man with a strong personality. It was quite acceptable that in the circumstances prevailing, inherent in which C were powerful pressures brought to bear on him, he was a ready candidate for succumbing thereto by making a statement which he would not otherwise have made. On the evidence no other reason why he decided to speak presented itself. And it was important to emphasise that he was brought to that state of mind by the trickery or strategem constituted by B's infraction of rule 10 of the Judges' Rules. The conduct of B in D deliberately confronting the accused with the version of accused No 1, questioning him thereon, requiring his response thereto and, in effect, playing off accused No 1 against accused No 3, all this without administering the usual caution to him, and which no doubt was designed to elicit a statement from him, was a material non-observance of the Judges' E Rules and a practice repugnant to the principles upon which our criminal law is based, and in law constituted undue influence.

With regard to the final question as to whether the undue influence which caused accused No 3 to make the statement to B on the afternoon in question was still operative, in the sense of being the cause or one of the causes why he made a statement to Captain V H the following morning, F or, more accurately, whether the State had succeeded beyond a reasonable doubt in excluding that it was the cause or one of the causes, the Court held that, as far as concerned the fact that the accused himself had not sought to voice this complaint...

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8 practice notes
  • Director of Public Prosecutions, Transvaal v Viljoen
    • South Africa
    • Invalid date
    ...535 (C) S v Basson 2004 (1) SACR 285 (CC) (2005 (1) SA 171; 2004 (6) BCLR 620) D S v Chauke 1998 (1) SACR 354 (V) S v Colt and Others 1992 (2) SACR 120 (E) S v Desai 1997 (1) SACR 38 (W) S v Dlamini; S v Dladla and Others; S v Joubert; S v Schietekat 1999 (2) SACR 51 (CC) (1999 (4) SA 623; ......
  • S v Mshumpa and Another
    • South Africa
    • Invalid date
    ...SACR 219 (CC) (2002 (5) SA 243; 2002 (10) BCLR F 1078): referred to S v Burger 1975 (2) SA 601 (C): referred to S v Colt and Others 1992 (2) SACR 120 (E): S v Daniels 1963 (4) SA 623 (E): referred to S v Hlapezula and Others 1965 (4) SA 439 (A): referred to S v Lubaxa 2001 (2) SACR 703 (SCA......
  • S v Melani and Others
    • South Africa
    • Invalid date
    ...that a confession had been brought about as a result of undue influence and was thus not voluntarily made (S v Colt and Others 1992 (2) SACR 120 (E) at 130d-e; S v Mafuya and Others (1) 1992 (2) SACR 370 (W) at 380g-h). In the case of accused No 1 the State evidence affords no factual basis......
  • The admissibility of secondary confessions
    • South Africa
    • Sabinet Southern African Public Law No. 26-2, January 2011
    • 1 January 2011
    ...facts in R v Gumede 1942 AD 398; R v Jacobs 1954 2 SA 320 (A); S v Jika 1991 2 SACR 4892(E); S v Mjikwa 1993 1 SACR 507 (A); S v Colt 1992 2 SACR 120 (E). In R v Gumede 408, TindallJA explains the situation: ‘It is clear in my judgment that the confessions to the magistrate must beregarded ......
  • Request a trial to view additional results
7 cases
  • Director of Public Prosecutions, Transvaal v Viljoen
    • South Africa
    • Invalid date
    ...535 (C) S v Basson 2004 (1) SACR 285 (CC) (2005 (1) SA 171; 2004 (6) BCLR 620) D S v Chauke 1998 (1) SACR 354 (V) S v Colt and Others 1992 (2) SACR 120 (E) S v Desai 1997 (1) SACR 38 (W) S v Dlamini; S v Dladla and Others; S v Joubert; S v Schietekat 1999 (2) SACR 51 (CC) (1999 (4) SA 623; ......
  • S v Mshumpa and Another
    • South Africa
    • Invalid date
    ...SACR 219 (CC) (2002 (5) SA 243; 2002 (10) BCLR F 1078): referred to S v Burger 1975 (2) SA 601 (C): referred to S v Colt and Others 1992 (2) SACR 120 (E): S v Daniels 1963 (4) SA 623 (E): referred to S v Hlapezula and Others 1965 (4) SA 439 (A): referred to S v Lubaxa 2001 (2) SACR 703 (SCA......
  • S v Melani and Others
    • South Africa
    • Invalid date
    ...that a confession had been brought about as a result of undue influence and was thus not voluntarily made (S v Colt and Others 1992 (2) SACR 120 (E) at 130d-e; S v Mafuya and Others (1) 1992 (2) SACR 370 (W) at 380g-h). In the case of accused No 1 the State evidence affords no factual basis......
  • S v Melani and Others
    • South Africa
    • Eastern Cape Division
    • 1 January 1996
    ...that a confession had been brought about as a result of undue influence and was thus not voluntarily made (S v Colt and Others 1992 (2) SACR 120 (E) at 130d-e; S v Mafuya and Others (1) 1992 (2) SACR 370 (W) at 380g-h). In the case of accused No 1 the State evidence affords no factual basis......
  • Request a trial to view additional results
1 books & journal articles
  • The admissibility of secondary confessions
    • South Africa
    • Sabinet Southern African Public Law No. 26-2, January 2011
    • 1 January 2011
    ...facts in R v Gumede 1942 AD 398; R v Jacobs 1954 2 SA 320 (A); S v Jika 1991 2 SACR 4892(E); S v Mjikwa 1993 1 SACR 507 (A); S v Colt 1992 2 SACR 120 (E). In R v Gumede 408, TindallJA explains the situation: ‘It is clear in my judgment that the confessions to the magistrate must beregarded ......

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