S v Orrie and Another

• Jurisdiction: South Africa
• Judge: Bozalek J
• Judgment Date: 14 October 2004
• Citation: 2005 (1) SACR 63 (C)
• Docket Number: SS 32/2003
• Counsel: I Cameron for the State. J van der Berg for the accused.
• Court: Cape Provincial Division

Bozalek J:

These are reasons for a E ruling made on 2 August 2004 holding inadmissible a statement made by accused 2 to Captain Clark of the Serious and Violent Crimes Unit at Bishop Lavis on 28 December 2000.

The defence contested the admissibility of the statement, initially on the grounds that the accused had not been made aware that he was a F suspect and had not been warned of his right to silence and right to legal representation. At a later stage it was put by the defence that the accused's attitude was that if he had known that he was a suspect and 'had rights', he would have remained silent and waited for his lawyer.

Accordingly, a trial-within-a-trial was held to determine the G admissibility of the statement. During this trial, the evidence of Captain Clark (Clark) and two other police witnesses, as well as that of the accused, was heard.

In determining whether the statement is admissible, the following questions arise:

(i)

Was the accused a suspect and, if so, was he informed of his status as a suspect? H

(ii)

If the accused was a suspect, was he entitled to the rights of an arrested or detained person?

(iii)

Was the accused adequately informed of his constitutional rights?

(iv)

In light of the answers to the above questions, is the I statement admissible against the accused?

Background

On 26 December 2000 the bodies of two witnesses in a witness protection programme were discovered at a so-called 'safe house' in J

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Gouda, a small village some 100 km from Cape Town. A person or persons A unknown had made a forced entry into the house and shot the couple. A day or so earlier, around the time when the murders were committed, a police officer patrolling the area had come across an unattended pickup-truck (the vehicle) and had noted the registration number. This information was conveyed to the investigating team and enquiries B revealed that the registered owner of the vehicle was accused two (the accused). The investigating detectives, including Clark, were aware that the accused's brother was himself an accused in a pending urban terror case in which the murdered couple were to be State witnesses and as a result of which they had been placed in the witness protection programme. A search warrant was obtained for the accused's residence, C as well as for the vehicle.

On the morning of 28 December 2000, whilst driving his vehicle in Athlone, the accused was stopped by police. Clark was contacted and proceeded to the scene, where he spoke to the accused and asked him to accompany him to his offices at Bishop Lavis. There the accused was D questioned and a witness statement was taken from him which, on the face thereof, was exculpatory. The accused was at no stage arrested or detained. At Clark's request, he left his vehicle behind, ultimately, for several months. According to him, Clark wanted to show the vehicle to someone. The accused's witness statement was a sworn one but was E not made on the standard form used when taking a statement from a suspect.

Such a form, a so-called SAPS 3M, is entitled 'Statement regarding interview with suspect' and contains two pages of instructions, directed principally at the police member taking the statement. In para 2 it provides for a suspect to be informed that information exists F which indicates that he or she may have been involved in the commission of an offence(s), advising the suspect of the nature of the alleged offence(s), and the relevant time period or date and the place of commission of the alleged offence(s). Provision is made for the suspect to be asked whether he or she understands the aforegoing allegations. Paragraph 3 contains the form of the warnings which must be conveyed by the member to the suspect and deals with the right to remain silent and G the right to legal representation. Provision is made for the suspect to be told that he or she has the right to remain silent and is not compelled to make any statement or to answer any question and, of particular importance in this matter, that any statement made or anything said, would be written down and could be used as evidence in a court of law. Provision is also made for the suspect to be told that he H or she has the right to consult with a legal practitioner of choice or, if preferred, to apply to the Legal Aid Board to be provided with the services of a legal practitioner at State expense, which legal practitioner may be present during the interview. I

The evidence regarding the accused's suspect status and the warnings issued to him

Clark testified that, upon encountering the accused in Athlone, he informed him that his vehicle had been seen near the scene of a crime and that he was seeking an explanation from him. He suggested that the J

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accused accompany him to his offices at Bishop Lavis. He also stated A that he warned the accused, at the roadside, of his right to silence, his right not to incriminate himself and his right to legal representation.

According to Clark, the accused was again informed of his rights in the interrogation room in Bishop Lavis, on this occasion in greater detail. This took the form of him advising the accused that his vehicle B had been seen 200 m from the crime scene, that it was considered a suspect vehicle and that, as it was registered in his name, an explanation was sought from him. The accused was also told that he had the right to legal representation and, if needs be, to a lawyer through the legal aid system. He was also informed that he had the right to remain silent, that he was not obliged to make a statement and that C 'he should not incriminate himself'.

According to Clark, notwithstanding these warnings, the accused was co-operative and elected to give an explanation and to have that recorded in a written statement. Earlier, when informed of the sighting of his vehicle at a murder scene, the accused had asked whether it related to the killing of the couple under the witness protection D programme. Clark's evidence of the warnings which he gave to the accused at Bishop Lavis was confirmed in broad outline by the evidence of his colleague, Captain Van Dyk, who was present in the interrogation room for a period. He testified that the accused was informed by Clark of his right to remain silent, his right to legal representation and that he need not incriminate himself. According to both witnesses the E accused was completely at ease and willingly co-operated.

In his testimony, however, the accused stated that he had at no time been advised of his rights and that throughout he had never felt as if he was a suspect. He conceded that he was told why an explanation was F sought from him regarding the whereabouts of his vehicle but insisted that he was merely told that a vehicle similar to his was seen at the scene of the crime. He stated that he did co-operate with the police and had made a statement voluntarily but said that if he had been warned of his rights he would have taken legal advice and would not have made a statement as he would then have appreciated the seriousness of the case. Against this background the questions set out above must G be determined.

Was the accused a suspect and, if so, was he informed of his status as a suspect?

On H the State's own case the accused was never told in explicit terms that he was a suspect. Captain Clark only made reference to the vehicle being a suspect vehicle. However, in light of the fact that it was seen near the scene of the crimes shortly before the murders combined with the linkage between the accused's brother and the deceased (a linkage I which provided a possible motive for the accused's involvement in the killings), it is quite clear that he was regarded as a suspect by the investigating officer.

Section 35 of the Constitution of the Republic of South Africa Act 108 of 1996, (the Constitution) deals with the rights of arrested, detained J

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and accused persons and it is here, in my view, that A the rights of a suspect must be found. No provision is made for a suspect to be specifically informed of this status, but it stands to reason that a person must be informed that he or she is a suspect, or at least be aware thereof, in order that he or she can properly consider and exercise his or her rights before interacting with the police. Paragraph 2 of the suspect interview form referred to above is B instructive. It provides, inter alia, for the suspect to be advised that information exists indicating that he or she may have been involved in the commission of an offence(s). In other words, the person at risk is not told in specific terms that he or she is a 'suspect'. It appears to be assumed, correctly so in my view, that a person so apprised will appreciate that he or she is a 'suspect'. C

In the present matter the accused was told of the details of the crime as regards its time, place and nature and in fact indicated to the police that he was already aware thereof. He was told, furthermore, that his vehicle was seen near the scene of the crime at the relevant time. When the accused gave evidence, there was no indication that he would not have understood the situation in which he found himself. D Neither was it suggested by the defence that, for some reason, the accused would not have appreciated the necessary implications of being advised of these details. It is so that the accused insisted that he never felt like a suspect and that a very friendly atmosphere prevailed. However, in my view, the accused's claim that he did not E ...