S v Nnasolu and Another

• Jurisdiction: South Africa

S v Nnasolu and Another
2010 (1) SACR 561 (KZP)

2010 (1) SACR p561

Citation	2010 (1) SACR 561 (KZP)
Case No	AR 437/2009 and AR 438/2009
Court	KwaZulu-Natal High Court, Pietermaritzburg
Judge	Sishi J and Stewart AJ
Heard	November 24, 2009
Judgment	December 1, 2009
Counsel	WH Fraser for the appellants.; V Mcanyana for the State.

Flynote : Sleutelwoorde

Evidence — Witnesses — Calling, examination and refutation of — Cross-examination H — Disallowance of — Magistrate eliciting evidence from witness as to identification of accused's voice during telephone calls — Magistrate disallowing cross-examination thereon — Such constituting irregularity — Evidence of voice identification accordingly to be excluded — On facts, however, refusal to allow cross-examination not resulting in failure of justice — Remaining evidence establishing guilt beyond reasonable doubt. I

Trial — Presiding officer — Conduct of — Questioning of accused by presiding officer — Contention that it amounted to cross-examination — On facts, while such questioning might have overstepped line, questions and answers thereto having no particular influence on trial and its outcome — Case one falling short of those cases where court interfering on appeal because presiding officer in trial court had entered the arena'. J

2010 (1) SACR p562

A Trap — Evidence of — Admissibility — Charge of dealing in cocaine — Trap going beyond providing opportunity to commit offence — Section 252A(3)(b) of Criminal Procedure Act 51 of 1977 then applicable — Evidence of trap not addressing issue on which accused's version depended, namely that he thought he was carrying jewellery and not drugs, and that he accordingly had no mens rea — Admission of evidence of trap causing no unfairness to B appellant — Evidence rightly admitted.

Drug offences — Cocaine — Dealing in in contravention of s 5(b) of Drugs and Drug Trafficking Act 140 of 1992 — Sentence — Accused, 31 years old, having previous conviction of abuse of dependence-producing substance — His child, mother of child and her two sisters dependent on C him — Accused in custody for year prior to sentence — Sentence of 25 years' imprisonment evoking feeling of shock or outrage, and sentence grossly excessive — Sentence of 10 years' imprisonment of which half conditionally suspended for five years substituted.

Headnote : Kopnota

The appellants had been convicted in a magistrates' court of dealing in 4,83 g of D cocaine in contravention of s 5(b), read with various other sections, of the Drugs and Drug Trafficking Act 140 of 1992. In an appeal to the High Court against the convictions and sentences, it appeared that the police had received information to the effect that one Peter' with a particular cellphone number dealt in drugs. The police decided to set a trap in order to catch the said Peter'. A police officer, S, telephoned Peter' at the E cellphone number and arranged with him to purchase a quantity of cocaine for an agreed price and that they would meet to complete the transaction at an agreed rendezvous. S and two other police officers travelled to the agreed rendezvous where S again called the same cellphone number and the person who answered said he was on his way. A while later S telephoned the same number again and the person said he was there'. A vehicle then drew up F with two men inside it, who were later identified as the two appellants. S approached the vehicle and the passenger, subsequently identified as the first appellant, after confirming that he had the stuff' with him, handed a small parcel to S after the latter had given the money to the first appellant. The appellants then drove off, but were arrested a short while later. The first appellant was convicted partly on the basis that S had given evidence that the person that he spoke to on each occasion on the telephone was the same G person and that he judged that because he recognised the voice on each occasion to have been the same. That evidence was elicited by questions from the magistrate at the end of S's evidence-in-chief. When the first appellant's counsel endeavoured to cross-examine S on that evidence the magistrate disallowed the questioning. On appeal, it was clear that the second appellant had no mens rea in regard to the offence and his appeal H against the conviction was allowed. In regard to the first appellant's appeal it was contended that the magistrate's refusal to allow cross-examination of S on the voice identification was an irregularity that resulted in a failure of justice as contemplated in s 309(3) of the Criminal Procedure Act 51 of 1977 or that it rendered the trial unfair. It was further contended that certain questioning of the first appellant by the magistrate amounted to cross-examination with the result that he had entered into the arena of the I dispute between the State and the appellants. It was also contended that there was an irregularity in the trial in that the magistrate had failed to make a ruling on whether the evidence obtained in the police trap was admissible or not. It was argued that the magistrate's ruling on the point would have impacted on the decision whether or not the appellants gave evidence.

Held, that there was no doubt that the restriction placed by the magistrate on J counsel's cross-examination constituted an irregularity and the evidence

2010 (1) SACR p563

elicited by the magistrate with regard to the voice identification A had consequently to be excluded. (Paragraphs [16] and [18] at 567g - h and 568c - d.)

Held, further, however, that, on the facts, there was no realistic prospect that the cross-examination on the voice identification could have had the result that S would have conceded not only that the person to whom he spoke during the first call may not have been the same person as the person to whom he B spoke in the subsequent calls, but that it positively was a different person. The possibility that it was not the first appellant who answered the first call could be achieved by disregarding the voice identification evidence altogether. (Paragraph [36] at 572f - h.)

Held, accordingly, that the magistrate's refusal to allow cross-examination on the voice identification evidence did not result in a failure of justice. Although C unfair, it did not result in an unfair trial such as to vitiate the trial. There was sufficient evidence to establish the guilt of the first appellant beyond a reasonable doubt. (Paragraph [36] at 572h - i.)

Held, further, as to the magistrate's questioning of the first appellant, that the magistrate might have overstepped the line in putting to the first appellant that he was talking nonsense' and playing games'. But the questions in D which those statements were made, and the responses that they elicited, had had no particular influence on the trial and its outcome. This case is one which falls far short of those cases where the court has interfered on appeal because in the trial court the judicial officer entered the arena'. (Paragraph [39] at 574b - c.)

Held, further, as to the evidence relating to the police trap, assuming in the first E appellant's favour that the trap went beyond providing the opportunity to commit an offence, that s 252A(3)(b) was applicable. The evidence obtained in the trap did not address the essential issue on which the first appellant's version depended, namely that the first appellant had no mens rea because he thought that he was carrying jewellery and not cocaine. In that context, the admission of the evidence obtained in the trap rendered no F unfairness on the appellant and the evidence was rightly admitted. (Paragraphs [44] and [45] at 575b - c and 575f - g.) Appeal against the conviction dismissed.

Held, further, as to the appeal against the sentence of 25 years' imprisonment imposed upon the first appellant, that the State had correctly conceded that the sentence was totally out of proportion to the gravity or magnitude of the G offence, that it evoked a feeling of shock or outrage, that it was grossly excessive and that it was in the interests of justice to alter it. (Paragraph [49] at 575i - 576a.)

Held, further, that, weighing up the appellant's personal circumstances, namely that he was 31 years old, was single but had a 2-year-old son, was earning R1500 per month prior to his arrest, that the mother of his child and her H two sisters were dependent upon the appellant, that he had a previous conviction in May 2001 for abusing dependence-producing substances, and that he been in custody for a year, that a sentence of ten years' imprisonment of which half was conditionally suspended for five years would be appropriate. (Paragraphs [50] - [52] at 576b - g.) Appeal against the sentence allowed and the sentence altered accordingly. I

Annotations:

Cases cited

Reported cases

President of the Republic of South Africa and Others v South African Rugby Football Union and Others 2000 (1) SA 1 (CC) (1999 (10) BCLR 1059): dictum in paras [61] - [63] applied J

2010 (1) SACR p564

R v Chitate 1966 (2) SA 690 (RA): applied A

S v Boesak 2000 (1) SACR 633 (SCA) (2000 (3) SA 381): dictum at 647e - 648h applied

S v Boesak 2001 (1) SACR 1 (CC) (2001 (1) SA 912; 2001 (1) BCLR 36): applied

S v Kotzè 2010 (1) SACR 100 (SCA): compared and applied

S v Mafu and Others 2008 (2) SACR 653 (W) ([2008] 2 All SA 657): dictum at 659a - f applied B

S v Mgudu 2008 (1) SACR 71 (N): dictum in para [24] applied

S v Moodie 1961 (4) SA 752 (A): dictum at 756C - 758G applied

S v Mseleku and Others 2006 (2) SACR 237 (N): applied

S v Msithing 2006 (1) SACR 266 (N): dictum in para [10] applied

S v P 1974 (1) SA 581 (RA): dictum at 582E - G applied C

S v Rabie 1975 (4) SA 855 (A): dictum at 857D - F applied

S v Rall 1982 (1) SA 828 (A): applied

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