S v Pietersen

• Jurisdiction: South Africa

S v Pietersen
2002 (1) SACR 330 (C)

2002 (1) SACR p330

Citation	2002 (1) SACR 330 (C)
Court	Cape Provincial Division
Judge	H J Erasmus AJ
Heard	October 10, 2001
Judgment	October 10, 2001
Counsel	P J Snyman for accused No 1.; Van Tonder for accused No 2.; M Pothier for accused No 3.; T Bluff for accused No 4.; H Booysen for the State.

Flynote : Sleutelwoorde

Evidence — Witnesses — Cross-examination — Of previous convictions — When permissible under s 197(b) of Criminal Procedure B Act 51 of 1977 — When 'shield' against cross-examination to credit lifted in terms of s 197(b) accused still has ordinary witness' immunity against being asked questions which were not relevant to his credibility or the issue.

Headnote : Kopnota

During the course of a criminal trial on charges of murder, robbery with aggravating circumstances and the unlawful possession of arms and C ammunition and after the State had closed its case, counsel for accused No 3, whilst cross-examining accused No 1, indicated that he intended cross-examining accused No 1 to credit under the provisions of s 197(b) of the Criminal Procedure Act 51 of 1977. During the course of such cross-examination counsel sought to go beyond the D fact of accused No 1's conviction for two counts of murder, attempted murder and offences under the Arms and Ammunition Act 75 of 1969 and for which he was sentenced in respect of the counts of murder to two life sentences, and attempted to elicit from accused No 1 the facts underlying and the details of the crimes of which he had been found guilty, where and how the offences were committed, the evidence accused E No 1 gave at his trial and, in particular whether he had falsely sought to incriminate others at his trial. Counsel for accused No 1 objected to this line of cross-examination and contended that it would be highly prejudicial to his client and infringed his client's constitutional right to a fair trial.

Held, that when the 'shield' against cross-examination to credit was lifted in terms of s 197(b), the accused still F had the ordinary witness' immunity against being asked questions which were not relevant to his credibility or the issue.

Held, further, that the court had a discretion to restrain and control the ambit of the cross-examination under s 197(b). The discretion had to be exercised in the light of the principles governing relevance. The cross-examination had to be G relevant to the issue of credibility and it could not prejudice the accused being cross-examined in the conduct of his defence to the extent that his right to a fair trial was undermined.

Held, further, that in the circumstances of the case where the record of the accused (that he was serving two life terms for murder); that these offences were committed shortly after the events which gave rise to the charges in the present case; the similar facts H which were sought to be elicited related to those offences and would be inadmissible as evidence-in-chief to prove the accused's guilt; the allegation that accused No 1 had in his previous trial falsely sought to incriminate others was of limited probative value and might require the court to explore collateral issues; and the evidence of accused No I 1 which implicated accused No 3 was to be weighed within the totality of the evidence adduced by the prosecution and the defence, cross-examination of the details of accused No 1's conviction should not be permitted.

Case Information

Adjudication of a question of the permissibility of cross-examination of a co-accused. J

2002 (1) SACR p331

P J Snyman for accused No 1. A

Van Tonder for accused No 2.

M Pothier for accused No 3.

T Bluff for accused No 4.

H Booysen for the State.

Judgment

H J Erasmus AJ:

The four accused are standing trial on four counts: (i) murder; (ii) robbery with B aggravating circumstances, and (iii) and (iv) unlawful possession of arms and ammunition in contravention of the provisions of the Arms and Ammunition Act 75 of 1969.

After the State had closed its case, Mr Snyman, who appears on behalf of accused No 1, called his client to give evidence in his own defence. Mr Pothier, who appears for accused No C 3, while cross-examining accused No 1, indicated that he intended cross-examining accused No 1 to credit under the provisions of s 197(b) of the Criminal Procedure Act 51 of 1977 ('the Act'). The section reads as follows:

'An accused who gives evidence at criminal proceedings shall not be asked or required to answer any question tending to show that he has D committed or has been convicted of or has been charged with any offence other than the offence with which he is charged, or that he is of bad character, unless -

(a)

. . .

(b)

he gives evidence against any other person charged with the same offence or an offence in respect of the same facts;. . . ' E

In R v Bagas 1952 (1) SA 437 (A) at 440H - 441A Van den Heever JA said the following about the purpose of the similarly worded s 295(b) of the Criminal Procedure Act 31 of 1917:

'Paragraph (b) excepts from the general protection accorded to accused persons by the section every one ''who has given evidence against any person charged with the same offence''. This F provision is obviously not conceived as a procedural penalty, but in the interests of the other person charged with the same offence, who would otherwise have been precluded from exercising the normal rights of an accused person to discredit in cross-examination any witness who testified against him.'

In Murdoch v Taylor [1965] 1 All ER 406 (HL) at 415b it was held that the object of the similarly worded G s 1(f)(iii) of the Criminal Evidence Act, 1898, was 'clearly to confer a benefit on a co-accused' who may show, by reference to another accused's previous offences, that the latter's 'testimony is not worthy of belief'.

Accused No 1 and accused No 3 are 'charged with the same offence' H and they have been joined in the same trial (R v Manana 1926 OPD 1). In giving evidence in his own defence, accused No 1 gave evidence 'against' accused No 3 in that he supported the prosecution's case against...