S v M

• Jurisdiction: South Africa
• Citation: 2002 (2) SACR 411 (SCA)

S v M
2002 (2) SACR 411 (SCA)

2002 (2) SACR p411

Citation	2002 (2) SACR 411 (SCA)
Case No	397/01
Court	Supreme Court of Appeal
Judge	Harms JA, Brand JA and Heher AJA
Heard	May 22, 2002
Judgment	May 31, 2002
Counsel	M J Madondo for the appellant.; R B Mdutyana for the respondent.

Flynote : Sleutelwoorde

Evidence — Admissibility — Evidence as to sexual experience of any female complainant in offence of sexual B nature — Section 227(2) of Criminal Procedure Act 51 of 1977 aimed at protecting complainants from questions which go merely to credit and no more — If proposed questions merely seek to establish that complainant has had sexual experience with other men to whom she was not married presiding officer will exclude evidence — Questions going simply to C credit will seldom be allowed — If questions are relevant to issue in trial they are likely to be admitted.

Evidence — Admissibility — Evidence as to sexual experience of any female complainant in offence of sexual nature — Even in absence of specific statutory prescriptions, it is proper of court to consider following in judging admissibility of evidence under s 227(2) of D Criminal Procedure Act 51 of 1977: (a) interests of justice; (b) society's interest in encouraging reporting of sexual assault offences; (c) whether there is reasonable prospect that evidence will assist in arriving at just determination; (d) need to remove from fact-finding process any discriminatory belief or bias; (e) risk that evidence E may unduly arouse sentiments of prejudice, sympathy or hostility; (f) potential prejudice to complainant's personal dignity and right of privacy; (g) right of complainant and of every individual to personal security and to full protection and benefit of law; (h) any other factor that presiding officer considers relevant — Court should grant application to adduce evidence about previous sexual experience or conduct of complainant if it is satisfied F that such evidence or questioning: (a) relates to specific instance of sexual activity relevant to fact in issue; (b) is likely to rebut evidence previously adduced by prosecution; (c) is likely to explain presence of semen or source of pregnancy or disease or any injury to complainant where it is relevant to fact in issue; (d) is not substantially G

2002 (2) SACR p412

outweighed by potential prejudice to complainant's personal dignity and right to A privacy; or (e) is fundamental to accused's defence.

Evidence — Admissibility — Evidence illegally obtained — Court has discretion to exclude evidence improperly obtained — Evidence obtained in manner that violates any right in Bill of Rights must be excluded if admission of evidence would render trial unfair or otherwise be detrimental to administration of justice — Real evidence which is procured by illegal or improper means is generally more B readily admitted than evidence so obtained which depends upon say-so of witness — Reason is that it usually possesses objective reliability — Real evidence is object which, upon proper identification, becomes, of itself, evidence (such as knife, photograph, voice recording, letter or even appearance of witness in witness-box). C

Appeal — Application for remittal to trial court for hearing of further evidence — Section 316 of Criminal Procedure Act 51 of 1977 doesn't authorise application for remittal from Provincial Division to magistrate's court — Section relates to applications for leave to appeal by accused who has been convicted of offence before Superior Court — Appropriate legislation is either s 22(a) of Supreme D Court Act 59 of 1959 or s 304(2)(b) read with s 309(3) of Criminal Procedure Act — Although s 316(3) contains codification, unamended, of common law requirements for adducing evidence on appeal or on remittal, law applicable to application is common law.

Fundamental rights — Right to a fair trial — Right to call witnesses — Police interfering with defence witness — Investigating E officer taking statement from witness to be called by accused in re-opened case and attempting to get witness to withdraw or alter statement made in application for remittal to hear new evidence — Overall conduct of investigating officer towards witness representing gross and reprehensible departure from standards of F fairness which common law recognises and Constitution of the Republic of South Africa Act 108 of 1996 guarantees to accused person — Freedom of witnesses from interference, whatever side they take, is keystone in temple of justice — Police, above all, have to preserve its integrity as their own function will become frustrated by its violation.

Headnote : Kopnota

It is clear that s 227(2) of the Criminal Procedure Act 51 of 1977 was aimed primarily at protecting complainants from cross-examination G as to credit, from questions which go merely to credit and no more. The result is that generally speaking, if the proposed questions merely seek to establish that the complainant has had sexual experience with other men to whom she was not married, so as to suggest that for that reason she ought not to be believed under oath, the presiding officer H will exclude the evidence. Questions of this sort going simply to credit will seldom be allowed. On the other hand, if the questions are relevant to an issue in the trial in the light of the way the case is being run, for instance relevant to the issue of consent, as opposed merely to credit, they are likely to be admitted, because to exclude a I relevant question on an issue in the trial, as the trial is being run, will usually mean that the court is prevented from hearing something which, if it did hear it, might cause it to change its mind about the evidence given by the complainant. But, this is very far from laying down any hard and fast rule. Inevitably in this situation, as in so many similar situations in the law, there is a grey area which exists between the two types of relevance, namely relevance to credit and relevance to an issue in the case. On one hand J

2002 (2) SACR p413

evidence of sexual promiscuity may be so strong or so closely contemporaneous in time to A the event in issue as to come near to, or indeed to reach the border between mere credit and an issue in the case. Conversely, the relevance of the evidence to an issue in the case may be so slight as to lead the Court to the conclusion that it is far from satisfied that the exclusion of the evidence would be unfair to the accused. (Paragraph [17] at 423f - 424d.)

Even in the absence of specific statutory prescriptions, it would be proper of a court to consider the following in judging the B admissibility of evidence under s 227(2): (a) the interests of justice, including the right of the accused to make a full answer and defence; (b) society's interest in encouraging the reporting of sexual assault offences; (c) whether there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case; (d) the need to remove from the fact-finding process any discriminatory belief or bias; (e) C the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility; (f) the potential prejudice to the complainant's personal dignity and right of privacy; (g) the right of the complainant and of every individual to personal security and to the full protection and benefit of the law; (h) any other factor that the presiding officer considers relevant. A court should grant an application to adduce evidence of or D put questions about previous sexual experience or conduct of a complainant if it is satisfied that such evidence or questioning: (a) relates to a specific instance of sexual activity relevant to a fact in issue; (b) is likely to rebut evidence previously adduced by the prosecution; (c) is likely to explain the presence of semen or the source of pregnancy or disease or any injury to the complainant where it is relevant to a fact in issue; E (d) is not substantially outweighed by its potential prejudice to the complainant's personal dignity and right to privacy; or (e) is fundamental to the accused's defence. (Paragraph [17] at 424g - 425b and 425e - h.)

A court has a discretion to exclude evidence improperly obtained. In the words of s 35(3) of the Constitution of the Republic of South Africa Act 108 of 1996, evidence obtained in a manner that violates any right in the Bill of Rights must be excluded if the admission of that F evidence would render the trial unfair or otherwise be detrimental to the administration of justice. Real evidence which is procured by illegal or improper means is generally more readily admitted than evidence so obtained which depends upon the say-so of a witness, the reason being that it usually possesses an objective reliability. It does not 'conscript the accused against himself' in the manner of a G confessional statement. Real evidence is an object which, upon proper identification, becomes, of itself, evidence (such as a knife, photograph, voice recording, letter or even the appearance of a witness in the witness-box). (Paragraphs [30] and [31] at 431g - 432d.)

The appellant had been charged in a regional court with raping his six-year-old daughter during 1989. He was convicted and appealed against that conviction to a Provincial Division. At the appeal he also H applied to lead further evidence, being two further witnesses. One witness, N, would testify that he had had a sexual relationship with the complainant and the other, K, that the complainant had admitted to being influenced by her mother and grandmother to incriminate the accused. The Court ordered that the matter be referred back to the magistrate to hear the further evidence, having merely noted that it I had read the application and was satisfied that it complied with s 316(3) of...