|
|
[Home]
[Databases]
[WorldLII]
[Search]
[Feedback]
South African Law Commission |
[Database Search] [Name Search] [Previous] [Next] [Download] [Help]
5.1 With regard to the central truth-finding objective of the criminal trial, it has been argued that the adversarial system routinely produces unfair results. Undefended accused are usually not competent adversaries and may as a result be wrongly convicted. The same applies to accused defended by incompetent counsel. Unskilled prosecutors may cause unjustified acquittals. Where there is an equality of arms in terms of competent adversaries, truth-finding may also be distorted by unilateral prosecution disclosure. In this section it will be argued that one way of ameliorating these problems is to articulate with greater precision judicial officers' inquisitorial powers and to require reciprocal defence disclosure.
5.2 Judicial officers have well-recognised inquisitorial powers of questioning and calling witnesses. The question is, then, whether these powers can, and should, be elaborated to ensure better truth-finding.
5.3 The approach to the power and duty to question and call witnesses for the "just decision" in a case[151] has for the past 70 years been expressed in the oft-quoted dictum of Curlewis JA in R v Hepworth:[152]
By the words 0just decision in the case' I understand the legislature to mean to do justice as between the prosecution and the accused. A criminal trial is not a game where one side is entitled to claim the benefit of any omission or mistake made by the other side, and the Judge's position in a criminal trial is not merely that of an umpire to see that the rules of the game are applied to both sides. A Judge is an administrator of justice, not merely a figure head, he has not only to direct and control the proceedings according to recognized rules of procedure but to see that justice is done ... The intention of section 247 [s 186 CPA 1977] seems to me to give a Judge in a criminal trial a wide discretion in the conduct of the proceedings, so that an innocent person be not convicted or a guilty person get free by reason, inter alia, of some omission, mistake or technicality.[153]
5.4 This approach was more recently confirmed by the Supreme Court of Appeal in S v Gerbers.[154]
5.5 The use of these inquisitorial powers to the benefit of accused has never been questioned. Indeed, in the case of the undefended accused it has been widely accepted that the judicial officer must be more interventionist, questioning state witnesses in order to establish the truth. In S v Mosoinyane[155] the court quoted with approval the following passage:[156]
Participating in the testing of the State evidence does not per se compromise the court's impartiality. To the contrary, by remaining aloof where the accused is unable to test the State evidence, the judicial officer would actually be siding with the prosecution by letting the latter draw an unfair advantage from the accused's inept cross-examination.
The same principle applies with regard to calling witnesses who may be of assistance to the defence.[157]
5.6 The more difficult question is whether a judicial officer may intervene where it may be to the prejudice of the defence. In the case of S v Manicum,[158] the magistrate was confronted with a prosecutor unwilling or unable to cross-examine the accused on his conflicting statements. The court of appeal recognised that this situation placed the presiding magistrate in a "difficult position":
He was well aware of the legal duties imposed on a judicial officer. He knew he could not enter the arena and cross-examine the appellant. He knew he could not assume the role of prosecutor and endeavour to establish that the appellant's version fell to be rejected. He did ask a few questions. These were not leading questions and they were not designed to discredit the accused.[159]
5.7 The pertinent question is whether the court should have been so restricted in its intervention, which allowed a possibly guilty person to walk free. There are two issues involved - the one is conceptual, the other is one of perception.
* A court may not assume the role of the prosecution
5.8 Is it conceptually in order that judicial intervention may be to the prejudice of the defence? If the court intervenes with this effect, is it performing a prosecutorial function in conflict with its judicial role? In principle, judicial intervention to the prejudice of the defence is not per se irregular. In S v Gerbers[160] the Supreme Court of Appeal approved the following dictum from R v Hepworth:[161]
The discretion and power under s 247 [of 1917 Criminal Code similar to s 186 CPA 1977] can be exercised by a Judge, whether the effect thereof be in favour of the Crown or the accused person. I see no reason to distinguish between the exercise of that power on behalf of the accused or of the Crown, provided the power is exercised for the purpose of doing justice as between the prosecution and the accused.
5.9 Questioning an accused is to be judged in the same way. While "judicial harassment" of an accused is unacceptable, it
does not mean that a court may not ask an accused questions which he may find it difficult to answer without doing damage to his case. Nor is the perception of partiality justified merely because a court's questions have the result that answers damaging to the accused emerge.[162]
5.10 Questions that show that a witness was false or unconvincing do not indicate that the questions were unfair or partisan.[163]
5.11 There is, however, clear authority that the judicial officer may not assume the role of the prosecution.[164] How is the court's legitimate truth-finding role to be distinguished from performing an unacceptable prosecutorial role? This question is pertinently raised in the context of the court's duty of ensuring an undefended accused a fair trial by discharging him or her mero motu if there is no evidence at the end of the state case.[165] How can a presiding officer be allowed to fill in the gap in a prosecution case, yet at the same time be under a duty to discharge an accused where there is no case to meet because there are gaps in the prosecution case?
5.12 The case law gives some indications as to how an appropriate distinction can be drawn. In S v Jada[166] Eksteen AJP held that the purpose of section 186 is not to place the presiding officer in the position of the prosecutor by calling witnesses from the outset in order to prove the allegations contained in the charge sheet. In S v Kwinika[167] the court drew a similar distinction. Where no evidence whatsoever is advanced by the prosecution the court was not at liberty to call a witness in terms of section 186, but had to discharge the accused mero motu. By contrast, the court may call evidence which has been omitted by mistake or is necessary in order to rectify some technical deficiency.[168]
5.13 Where there is no evidence against the accused a judicial officer, by intervening, would be playing the role of the prosecutor. Where it is apparent that there is no case for the accused to meet, the court must order a discharge. Where a reasonable suspicion has been established, but falling short of a prima facie case, it should be acceptable for the court to call a witness whose evidence may easily fill in the missing link in a prosecution case. The court thus performs a supplementary or complementary role to that of the prosecution in the interest of justice. Where there is nothing to supplement, intervention would be wrong.
5.14 The recent decision in S v Matthys[169] provides a good example of the difficulties in drawing these distinctions. The accused was charged with murder in the regional court. The first state witness testified that the accused struck the deceased with a knobkierie on the chest whereupon the latter died on the spot. The post-mortem report (presumably handed in as evidence) indicated a fracture of the skull. When the prosecutor indicated that there were no further witnesses, the court suggested to him that he call the district surgeon to testify whether the head wound was old or could have been caused by the accused falling as result of a blow to the chest. The court on appeal responded as follows to this judicial intervention:
Suggesting to the prosecutor in the manner in which he did, was, with respect, grossly irregular inasmuch as he was telling the prosecutor what the 0missing link' was, or put differently, the regional magistrate provided the prosecution with an opportunity of strengthening a link which he knew to be weak.[170]
5.15 If a more inquisitorial role is to be formulated for judicial officers, then this type of intervention should not necessarily be labelled as grossly irregular. There was a reasonable suspicion that the accused was linked to the death of the deceased and an independent expert may have provided support for either the accused's or the prosecution's case. It would appear that the regional magistrate intervened because the prosecutor too readily abandoned the prosecution in the face of incriminating evidence and the availability of a crucial witness. It was a clear case for judicial truth-finding.[171]
5.16 In the instant case the court did not call the district-surgeon but suggested that the prosecutor should do so. Does the irregularity lie in the fact that by telling the prosecutor how to conduct the prosecution, the magistrate created the perception of bias?[172] This brings us to the second obstacle in the way of a more inquisitorial role for judicial officers - the problem of perceiving intervention as an indicator of judicial bias or partiality.
* The court may create the impression of partiality
5.17 It is established law that the conduct of a presiding officer must not create the impression that he or she is biased in favour of the prosecution. Commenting on the lengthy cross-examination of the accused in S v Matthys,[173] Hlophe ADJP said the following:
The conduct of the learned regional magistrate was, with respect, shocking. His conduct was clearly in conflict with the wholesome English principle which is part of our law that justice should not only be done but should manifestly be seen to be done, and confidence is destroyed when right-minded people go away thinking: 0The judge was biased0.[174]
The critical question is when does intervention lead to a legitimate perception of bias.
5.18 As searching for the truth should not per se be equated with bias; the usual references to English cases as to proper judicial behaviour are inappropriate on two scores. Jackson and Doran[175] have pointed out that the requirement of judicial passivity was developed in the context of jury trials. Should the presiding judicial officer (who in the true sense presides over the proceedings, not being the trier of fact) intervene to the detriment of the defence, it could easily have influenced the jury.[176] Furthermore, many of the leading cases on the proper judicial role (for example Jones v National Coal Board[177]) stem from civil litigation where the role as umpire is most appropriate.[178] Even in England the notion of a passive judicial officer is under scrutiny and a more interventionist role was recommended by the Runciman Commission.[179]
5.19 Where the judicial officer calls a witness to the prejudice of the accused, that act by itself should not be construed as bias. The issue of bias is more real when it comes to the judicial questioning of witnesses because the nature of such intervention lends itself more readily to charges of bias. Again, the mere fact that the consequences of a court's questions are prejudicial to the accused does not constitute bias.[180] Furthermore, the length of questioning alone is a relatively neutral factor.[181] What is decisive is the manner in which the questioning takes place.[182] In the words of Marais JA:
It goes without saying that objectively legitimate questions may be put so belligerently or intimidatingly or so repetitively or confusingly as to amount to judicial harassment and therefore an irregularity.[183]
5.20 These may very well be some of the characteristics of cross-examination – questioning from a partisan perspective.[184] It is well-established that judicial questioning may not amount to cross-examination.[185] In contradistinction with the partisan nature of cross-examination, judicial questioning must exhibit "open-mindedness".[186] A dismissive attitude towards a witness, portrayed by adverse comments on his or her evidence, may be legitimate cross-examination but not proper judicial questioning.[187]
5.21 The tension between truth-finding and perceptions of bias will always be there, but that should not preclude the court from performing its truth-finding duty. As Marais JA pointed out in S v Gerbers:
There is obviously potential tension between the need to fulfil the role of a judicial officer as described in Hepworth's case supra and the need to avoid conduct of the kind which led to the characterising of the judicial officer's behaviour in cases such as S v Rall 1982 (1) SA 828 (A) as irregular and resulting in a failure of justice. Nonetheless, it remains incumbent upon all judicial officers to constantly bear in mind that their bona fide efforts to do justice may be construed by one or other of the parties as undue partisanship and that difficult as it may sometimes be to find the right balance between undue judicial passivism and undue judicial intervention, they must ever strive to do so.[188]
5.22 While Hepworth established the principle that the role of the judicial officer is to ensure "substantial justice" between the accused and the prosecution, the practice may vary considerably. The proposal is to build on the Hepworth principle by nudging judicial conduct in the direction of a more truth-finding role where the effort and skill of the litigants fail to do so adequately. There should be a clear duty that would have obliged the magistrate in S v Manicum[189] to have examined the accused on his conflicting statements. This duty should also have safeguarded convictions where the judicial officer "filled the missing link" in the prosecution case.
5.23 A greater inquisitorial judicial approach would affect undefended accused both favourably and adversely; favourably where the court tests the reliability of state witnesses, adversely where the accused and defence witnesses are examined.
5.24 If it is accepted that presiding officers should perform a greater truth-finding role, the issue becomes how such a role can be implemented and structured. Although the courts have wide inquisitorial powers in terms of sections 167 and 186 of the Criminal Procedure Act, their application in practice varies considerably. Implementing a more extensive greater truth-finding role within the present legislative framework may encounter two difficulties. The first is that judicial officers steeped in an adversarial culture may not easily change habits.[190] In Northern Ireland, for example, the introduction of bench trial did not significantly alter the passive approach required of judges in jury trials.[191] The second difficulty is that unguided judicial intervention may result in legitimate complaints of partisan behaviour.
5.25 By establishing a more inquisitorial role, the danger exists that presiding officers may subsume the role of the prosecution, giving rise to legitimate claims of bias. How can the correct balance be struck? The answer to this question does not lie in the law, but in judicial appointment and training. Drawing magistrates from a broader pool than the ranks of prosecutors may be a partial solution. Judicial training in the proper execution of the truth-finding function would be necessary for both current and new judicial officers. The focus of the training would be to ensure judicial intervention which does not compromise a court's well- established duty to be open-minded, impartial and fair.[192] This is a balance that the continental system has achieved. We need not share the Anglo-American scepticism that any State intervention is partisan by nature and should therefore be avoided.
5.26 The prosecutorial duty to disclose the content of the police docket has advanced the truth finding process in the case of defended cases. Defence counsel can test the reliability of state witnesses with reference to their police statements, and unused materials may indicate evidence favourable to the defence. While the prosecutor's duties to disclose deviations in state witnesses' testimony and exculpating evidence to the defence was firmly entrenched prior to 1994, their enforceability depended ultimately on prosecutorial discretion. With access to the police docket now a constitutional right, the major defect in the system has been cured by placing the docket in the hands of the defence.
5.27 Generally speaking, placing the police docket in the hands of the court would enable it to play a more effective truth-finding role. In the case of the undefended accused, the court would at least be able to test the reliability of state witnesses or call exculpating evidence where the accused manifestly neglects to do so. Where the prosecution fails to call a key state witness, the court will also be aware of it.
5.28 Disclosing the police docket to the court would resemble the key position the dossier assumes in inquisitorial systems. Introducing this inquisitorial element in a mainly adversarial system may give rise to major conceptual difficulties in our law. At present any material in the police docket disclosed to the defence becomes part of the court record only on being properly admitted in terms of the usual admissibility criteria of the law of evidence.[193] When a state witness's testimony differs from his or her police statement, the defence may seek to hand in the statement as an exhibit for the purposes of cross-examination. Conversely, a statement of a person who does not testify may not be admitted.
5.29 With the principle of oral evidence and a limited admissibility of evidence being central to the adversarial system, the police docket cannot be equated to the dossier. The two documents are by their very nature fundamentally different. The dossier is the product of a judicial inquiry, the docket the product of a (possibly) partisan police investigation.[194] It is thus submitted that the docket in the present system has a limited role to play in the court's truth-finding activities.
5.30 Prosecution disclosure may hamper truth-finding. With the full prosecution case disclosed, the defence, by withholding its line of defence, may seek to exploit investigative weaknesses in the prosecution case and trim the sails of its defence as the prosecution case unfolds. Defence disclosure in response to prosecution disclosure would meet this negative consequence.
5.31 Four years ago the Commission disapproved of a proposal emanating from this Project Committee that defence disclosure should be obligatory.[195] The argument was based on the view that such a duty was in violation of an accused's right to be presumed innocent and the right to remain silent. As the law then stood, that view was no doubt correct. However, since the right to prosecution disclosure has been firmly established, defence disclosure during trial proceedings would be justifiable where full prosecution disclosure has taken place. As Mr Justice van Dijkhorst[196] has recently observed:
I fail to see how the full disclosure of the versions of both state and defence at the outset and the elimination of evidence on that which is common ground can be regarded as unfair. We are, after all, attempting to arrive at the truth, not to obfuscate it.
5.32 With the weight of opinion that the English legislation on defence disclosure will not fall foul of the European Convention on Human Rights, a similar South African provision is also likely to pass constitutional muster. On the other hand, Van Dijkhorst J's more extensive proposal of judicial questioning on arrest, similar to the Scottish procedure, is most likely in conflict with the Bill of Rights.
5.33 It was therefore suggested that the issue of defence disclosure in response to prosecution disclosure be reopened and that appropriate proposals in this regard be formulated.
[151] S 167 and 186 Criminal Procedure Act.
[152] 1928 AD 265 at 277.
[153] See also R v Omar 1935 AD 230 at 323 where Wessels CJ said when interpreting s 247 of the CPA of 1917 that the task of the judicial officer "to see that substantial justice is done, to see that an innocent person is not punished and that a guilty person does not escape punishment." (emphasis added).
[154] 1997 2 SACR 601 (SCA) 606b.
[155] 1998 1 SACR 583 (T) 595a-d.
[156] Steytler 1988, 150.
[157] Steytler 1988, 175-7.
[158] 1998 2 SACR 400 (N).
[159] At 404b-c.
[160] Supra 606e.
[161] At 278.
[162] At 608h-j.
[163] S v Van Dyk 1998 2 SACR 363 (W) 379a.
[164] S v Manicum supra 404c.
[165] S v Becket 1987 4 SA 8 (C); S v Mathebula 1997 1 SACR 10 (W); S v Jama 1998 2 SACR 237 (N) 242j; S v Ndlangamandla 1999 1 SACR 391 (W). See also Steytler 1988, 154.
[166] 1985 2 SA 182 (EC) 184G.
[167] 1989 1 SA 896 (W).
[168] R v Hepworth supra 277.
[169] 1999 1 SACR 117 (C).
[170] At 119f.
[171] This case also highlight the dilemma judicial officers face when they are confronted with the prospect of having to acquit a patently guilty person because the prosecution or court a quo has not done its job properly. While the court on appeal strongly disapproved of the regional magistrate's conduct (which was patently motivated by the prospect of the accused getting away with murder), it appears to have fallen in the same trap. The correct outcome of the successful appeal should have been that the proceedings were set aside; the gross irregularity of the magistrate repeatedly entering the arena, constitutes a failure of justice and the conviction should be reversed without reference to the evidence. The court proceeded, however, to convict the accused, on the basis of his own evidence, of assault with the intention to do grievous bodily harm. Rather than seeing the accused walk free of a self-confessed offence, the court responded to meet out punishment on an unprincipled basis.
[172] Cf S v Mosoinyane 1998 1 SACR 583 (T) 594h.
[173] Supra 120i.
[174] At 120c.
[175] 1995, 109.
[176] In their study of the Diplock courts in Northern Ireland, Jackson and Doran (1995, 75) they point out that the absence of the jury, "trial judges may take on a more directorial, or inquisitorial, role in the trial, even though in theory they still be performing a merely umpireal role." With reference to the United States, Damaska (1997, 135) notes that, with the marginalisation of jury trial, there is a greater involvement of the court fact-finding activities.
[177] [1957] 2 QB 55, 64 per Lord Denning.
[178] Jackson & Doran 1995, 99.
[179] Recommendation 185.
[180] S v Gerbers supra 608i.
[181] S v Gerbers supra 608h.
[182] S v Gerbers supra 608h.
[183] S v Gerbers supra 608h.
[184] See S v Sallem 1987 4 SA 772 (A) 795A; Steytler 1988, 150.
[185] S v Matthys supra 120h.
[186] S v Rall 1982 1 SA 828 (A) 832H.
[187] S v Aspeling 1998 1 SACR 561 (C) 569.
[188] At 607b-c.
[189] 1998 2 SACR 400 (N).
[190] Cf South African Law Commission 1998, § 6.36. Although presiding officers always had the power to control cross-examination, the Commission was of the opinion that this power should be specifically expressed by statute. One of the reasons advanced was that since "our lower courts especially are hesitant to exercise this power [to curtail cross-examination], the Commission feels that it would be useful to embody it in legislation which will, at the same time, lay down basic requirements for its application." (§ 6.36). See also Jackson (1997, 334) on changing judicial behaviour.
[191] Jackson & Doran 1995. See also Doran, Jackson & Seigel 1995.
[192] S v Rall 1982 1 SA 828 (A) 832H; S v Gerbers 1997 2 SACR 601 (SCA); S v Aspeling 1992 1 SACR 561 (C) 571c.
[193] S v Tsabalala 1999 1 SACR 163 (T).
[194] Cf Jorg, Field & Brants 1995, 48.
[195] South African Law Commission 1995, § 8.43.
[196] Van Dijkhorst 1998, 138.
SAFLII:
|
|
Terms of Use
|
Feedback
URL: http://www.saflii.org/za/other/zalc/dp/96/96-CHAPTER-5.html