Abstract
Recently several criminal court trials focused attention on inconsistencies regarding witness statements before trial and testimonies during said trial. This focus is specifically relevant when regarding previous inconsistent statements as evidential material, rather than just viewing it as a way to discredit the relevant witness. The most recent case affected by this is the Coligny-sunflower case, Doorewaard v State 2020-11-27 case no. 908/2019 (SCA). In the latter instance the accused were found guilty of murder based on the evidence of a single witness. The guilty finding was overturned in the Supreme Court of Appeal. Gross inconsistencies were found when comparing the witness’s depositions before the trial and his testimony later in court. It is argued that the manner in which the extracurial statements were taken down in this case greatly influenced the evidential value of these statements. In this article the author analyses recent court decisions as they highlighted the content value of previous inconsistent statements and especially how the courts evaluated these inconsistencies as either material, or immaterial. In this submission, the lack of formal rules and regulations for the process of taking down a witness’s statement is explored; as well as the formal rules for the presentation and evaluation of previous inconsistent statements in court; and the evidential value of previous inconsistent statements in the evaluation of evidence in a criminal trial. The author analyses these concepts with specific reference to the Doorewaard case.
The South African criminal justice system should be improved by an objective standard and regulations pertaining to the taking of witness statements. It is the responsibility of the state to ensure that the process of taking down a witness’s statement is systematic and standardised in order to avoid unnecessary contention in court and to diminish incongruent witness testimony, as this negatively affects procedural justice. It is submitted that a normative and procedurally sound framework would improve the process of deposition, and also help with the accurate evaluation of incongruent testimony in court. This will include the honing of investigative practices and techniques for the taking down of witness statements.
The rules for the evaluation of the weight and evidential value of previous inconsistent statements in criminal trials have developed through the application in and interpretation of case law. However, to date, the initial process of taking down a witness statement remains to a large extent unregulated with no legislative guidelines on what processes should be followed and what steps the SAPS should practically apply. It is argued that without a clear and consistently applied regulatory framework for the taking down of a witness statement, the situation, as in the Doorewaard case, will persist.
In this case, the court had to draw a credibility finding on the evidence of the single witness by evaluating the testimony of the witness in court through comparing his evidence with the version of events as contained in the extracurial statements made prior to his evidence in court. Since the state relied mainly on the evidence of this witness to prove the case against the accused, the court had to reach a conclusion on the guilt of the accused based on interpreting the discrepancies in the different versions of the witness as either material, or not. This ultimately led to the guilty finding of the accused in the court a quo, after the trial judge found the discrepancies were immaterial. The Supreme Court of Appeal, however, viewed these discrepancies as material and both the accuseds’ guilty findings were set aside. The court will normally not interfere with the factual findings of the court a quo, but in this instance the discrepancies between the version of events as contained in the statements made by the witness and the witness’s evidence in court justified interference by the court on appeal. It is argued that the notable difference between the judgment of the court a quo and the Supreme Court of Appeal regarding the materiality of the discrepancies between the witness’s evidence in court and the version contained in his earlier statements necessitates the need to have standardized practices for the taking down of a witness statement to avoid procedural pitfalls during the trial.
Cultural and language differences between the deponent and the police officer who takes down the statement often hinder the accurate noting down of the recollection of events as experienced by the deponent. There are no practical measures to account for these differences before the matter is heard and inconsistencies are only highlighted during the hearing of the matter in court. There appears to be no guarantee that what was experienced by the deponent will always be correctly recalled in the statement, especially where the statement is a written synopsis by another, other than the person who made the statement. The inconsistencies between the extracurial statement of a witness and the witness’s evidence in court have a direct bearing on the finding regarding the credibility and reliability of the witness. The totality of the evidence presented can be affected by a faulty initial process.
A systematic approach can assist the police in accurately taking down the original recall of events, to safeguard the evidential value of the statement in court, as opposed to the situation in the Doorewaard case where it was rejected in its entirety.
In this submission, reference is made to the inability of the accusatorial trial procedure to secure the ascertainment of the material truth of a matter and the over-reliance on the technical presentation of evidence. The accusatorial trial procedure does not allow for the trier of fact to investigate the matter further than that which is presented by the parties. In criminal proceedings it is the duty of the state to furnish admissible evidence to enable the court to reach a just decision based on the holistic evaluation of the evidence presented. Courts rely on what is presented and if the process of presentation of evidence is flawed, the courts need to draw value judgements on what is essentially an inaccurate account of events. This does not serve society’s need for reassurance that justice will prevail, since the proven facts of the case do not necessarily equate to the actual occurrence of events. In order for the trier of fact to make an objective value judgement regarding the facts of a case, the presentation of evidence should be supported with trustworthy evidential material. The lack of an objective standard in terms of which the discrepancies between two versions of the events can be measured necessitates a value judgement on the weight of the discrepancies based on the subjective experience of the trier of fact. There is no normative component for whether discrepancies can be viewed as material or not. Human error in the process of evidence gathering should be limited as far as reasonably possible to guard against value judgements that are solely reliant on the individual understanding of the presiding officer.
Keywords: criminal trials; deposition; Doorewaard; evidential value; inconsistencies; testimony