S v Murphy and others

[2023] JOL 60340 (WCC)

In September 2015, Ms Wenn and Ms Fortuin were caught in the act of packing a large stash of the drug known as “tik”. Both were arrested and charged with drug dealing. While they were still accused persons facing charges, both gave detailed written statements to the prosecution with a view to becoming state witnesses in terms of section 204 of the Criminal Procedure Act 51 of 1977. The charges against them were later withdrawn as the prosecution decided to use them as State witnesses against the other accused. During testimony in court, both departed materially from the contents of their statements. The prosecution successfully applied to have Wenn declared hostile, and she was thoroughly discredited in cross-examination. At the close of its case, the State applied for a ruling in terms of section 3(1)(c) of the Law of Evidence Amendment Act 45 of 1988 for Wenn’s section 204 statement to be admitted as evidence as proof of the contents thereof. The court ruled that the statement was admissible in terms of section 3(1)(c). At the close of the defence case, counsel applied for a reconsideration of the hearsay ruling as well as the ruling on the admissibility of the evidence of the drugs seized pursuant to the warrantless search conducted by the police. In support of the reconsideration application, the defence relied for the first time on the legal point that Wenn’s section 204 statement was inadmissible in terms of section 219 of the Criminal Procedure Act as it amounted to a confession.

Held that the question to be determined was whether the contents of a written statement made by an accused person, who elected to testify as a State witness in terms of section 204 of the Criminal Procedure Act but recanted the contents of the statement at trial, can be admitted as hearsay in terms of section 3(1)(c) of the Law of Evidence Amendment Act – or whether section 219 of the Criminal Procedure Act precluded the admission of the statement if it was a confession.

Extra-curial statements are only admissible as evidence against the maker. Section 3(2) of the Law of Evidence Amendment Act provides that section 3(1) cannot render admissible hearsay statements which are inadmissible on other grounds. The use of an extra-curial confession is also precluded under section 3(1)(c) of the Law of Evidence Amendment Act on account of the express prohibition in section 219 of the Criminal Procedure Act against the use of a confession against any other person. The prohibition also operates in circumstances where the confession or admission was made by an accomplice who was never charged and became a State witness in terms of section 204.

The court therefore set aside its earlier ruling admitting Wenn’s section 204 statement as evidence in terms of section 3(1)(c) of the Law of Evidence Amendment Act.