WHAT IS A TRIAL-WITHIN-A-TRIAL?

A TRIAL-WITHIN-A-TRIAL is a kind of mini proceedings in a criminal case trial, mini proceedings which are intended to determine the admissibility of a confession or a pointing-out alleged to have been made by the accused.

It so often happens that when a suspect is arrested by the police, he or she makes a confession or points out a scene where a crime was committed — doing so either of their own volition, or due to the unbearable assault or even torture by the police.  If the suspect makes a confession or points out something related to the crime being investigated, the evidence of such a confession or pointing-out is inadmissible, in other words it cannot be accepted by a court, unless that confession or pointing-out meets certain requirements required by section 217 of the Criminal Procedure Act 51 of 1977.  These requirements are:

•  the confession or pointing-out must have been made freely and voluntarily;

•  while the accused was in his/her sound and sober senses; and

•  without undue influence.

It is also a requirement of section 217(1)(a) that the purported confession should have been taken down in writing by a justice of the peace, also called a commissioned police officer; alternatively, it should have been reduced to writing by or in the presence of a magistrate.  In South Africa, a justice of the peace or commissioned police officer is a police officer who is at the rank of a captain, superintendent or higher rank.  A police officer who is below the rank of captain (such as a warrant officer [previously known as inspector], sergeant or constable), may not take a confession from a suspect.  If a confession is taken by a non-commissioned officer such as a constable, sergeant or warrant officer, that confession is invalid ab initio, that is, from the beginning, unless such a non-commissioned officer writes the confession in the presence of a magistrate. 

It is a requirement of section 217(1)(b)(i) that if the suspect is not English speaking, there must be an interpreter.  The interpreter must then attach his or her certificate to the confession to the effect that he or she interpreted “truly and correctly and to the best of his ability with regard to the contents of the confession and any question put to such a person by the magistrate”.

The trial-within-a-trial is conducted in the same manner as the criminal trial.  Why is it called the trial-within-a-trial?  Because it is a mini proceeding separated from the criminal trial — which criminal trial now becomes the main trial.  With regard to procedure, usually the witnesses for the prosecution are the first to be called to testify.  The witnesses for the prosecution in a trial-within-a-trial are the arresting officer, the policer officers who were present and witnessed the arrest.  Other witnesses are officers who were not necessarily present at the time of arrest, but who were in one way or another involved in the chain of activities leading up to and including the locking-up of the suspect in the police cells.  These may include the officer or officers who entered the suspect’s details in the so-called “OB” book (Occurrence Book) at the police station, and who examined the suspect for any visible injuries, and if there were any, who took the suspect to a district surgeon (a medical doctor who renders his services to the state in connection with persons who are taken through the process of criminal justice). The district surgeon himself may also be called by the state prosecutor to testify if his observation of and dealings with the suspect may contribute in determining whether the accused sustained injuries in the process of eliciting a confession or pointing-out from him.

Each police officer called by the state as a witness is cross examined by the

A TRIAL-WITHIN-A-TRIAL is a kind of mini proceedings in a criminal case trial, which are intended to determine the admissibility of a confession or a pointing-out alleged to have been made by the accused.

It so often happens that when a suspect is arrested by the police, he or she makes a confession or points out a scene where a crime was committed — doing so either of their own volition, or due to the unbearable assault or even torture by the police.  If the suspect makes a confession or points out something related to the crime being investigated, the evidence of such a confession or pointing-out is inadmissible, in other words it cannot be accepted by a court, unless that confession or pointing-out meets certain requirements required by section 217 of the Criminal Procedure Act 51 of 1977.  These requirements are:

•  the confession or pointing-out must have been made freely and voluntarily;

•  while the accused was in his/her sound and sober senses;   and

•  without undue influence.

It is also a requirement of section 217(1)(a) that the purported confession should have been taken down in writing by a justice of the peace, also called a commissioned police officer; alternatively, it should have been reduced to writing by or in the presence of a magistrate.  In South Africa, a justice of the peace or commissioned police officer is a police officer who is at the rank of a captain, superintendent or higher rank.  A police officer who is below the rank of captain (such as a warrant officer [previously known as inspector], sergeant or constable), may not take a confession from a suspect.  If a confession is taken by a non-commissioned officer such as a constable, sergeant or warrant officer, that confession is invalid ab initio, that is, from the beginning, unless such a non-commissioned officer writes the confession in the presence of a magistrate. 

It is a requirement of section 217(1)(b)(i) that if the suspect is not English speaking, there must be an interpreter.  The interpreter must then attach his/her certificate to the confession to the effect that he/she interpreted “truly and correctly and to the best of his ability with regard to the contents of the confession and any question put to such a person by the magistrate”.

The trial-within-a-trial is conducted in the same manner as the criminal trial.  Why is it called the trial-within-a-trial?  Because it is a mini proceeding separated from the criminal trial — which criminal trial now becomes the main trial.  With regard to procedure, usually the witnesses for the prosecution are the first to be called to testify.  The witnesses for the prosecution in a trial-within-a-trial are the arresting officer, the policer officers who were present and witnessed the arrest.  Other witnesses are officers who were not necessarily present at the time of arrest, but who were in one way or another involved in the chain of activities leading up to and including the locking-up of the suspect in the police cells.  These may include the officer or officers who entered the suspect’s details in the so-called “OB” book (Occurrence Book) at the police station, and who examined the suspect for any visible injuries, and if there were any, who took the suspect to a district surgeon (a medical doctor who renders his services to the state in connection with persons who are taken through the process of criminal justice). The district surgeon himself may also be called by the state prosecutor to testify if his observation of and dealings with the suspect may contribute in determining whether the accused sustained injuries in the process of eliciting a confession or pointing-out from him.

Each police officer called by the state as a witness is cross examined by the defence attorney or defence Counsel representing the accused. Once the prosecution has no more witnesses to call for this purpose, the prosecution closes its case, that is, informs the court that it has no further witnesses to call.  Then it is the turn of the accused to take the witness stand and testify.  The accused is also cross examined by the prosecutor.

The accused has the right to call a witness or witnesses in connection with the confession or pointing-out. If no witness is called by the defence, or the defence has called all its witnesses, the defence also closes its case.  Then comes the time for argument — the prosecution argues that the confession or pointing-out should be ruled admissible by the court, in other words, be accepted by the court as evidence against the accused; the defence argues that the confession or pointing-out should be excluded as evidence against the accused.

Contrary to what happens at the end of the main trial, the magistrate or judge does not give judgment at the end of the trial-within-a-trial.  In other words, the presiding officer does not give reasons for his or her decision at the end of arguments.  The presiding officer simply makes a ruling — that the confession or pointing-out is admitted as evidence or is  not admitted as evidence.

The reasons for the ruling are given at the end of the main trial when the court gives judgment for the main trial, then the court will also incorporate reasons for admitting or not admitting the confession or pointing-out as evidence.

The reason for not giving reasons at the end of the trial-within-a-trial is that in doing so the presiding officer would inevitably make remarks about the quality of evidence given by the accused and about the demeanour of the accused as a witness, and that would prejudice the accused in the main trial.  For example, the prosecution would prosecute the accused with an already prejudging mindset because of the adverse judgment that was pronounced on the accused at the end of the trial-within-a-trial.  The accused and his or her legal representative would also be affected adversely psychologically in conducting their defence, knowing that the accused now stands a little chance, if any at all, to succeed in their defence.  Thus, the pronouncements which were supposed to have been made at the end of a trial-within-a-trial, are made at the end of the entire case and incorporated into the main judgment.

The trial-within-a-trial proceeding was intended to discourage investigating officers from investigating a case by investigating the suspect instead of obtaining evidence from witnesses. No person should be an accused and a witness against himself! This protection is contained in section 35(1)(c) of the Constitution.

There are a few different scenarios in the making of a confession:  Sometimes, the suspect did not want to make a confession at all, but the police, by resorting to assault and torture, coerce the suspect to make a confession or pointing-out.  At other times, the suspect does make a confession without being forced with assault or torture, but simply because the suspect is ignorant of his or her rights in a situation of this nature — he or she does not know that he or she does not have to confess or point anything out to the police. At other times still, the suspect makes a confession or points out something, but simply because the police explained to the suspect his or her rights only after the confession or pointing-out was made.  And at other times yet still, the suspect is influenced by the police to make a confession or a pointing-out, not by assaults or torture, but by trying to be “nice” to the suspect — such as by promising the suspect to be a state witness against fellow suspects if he or she makes a confession.  That is what is meant by the phrase “unduly influenced”.

When the suspect meets with his or her legal representative, he or she realises that he or she made a mistake, and that had he or she known better, he or she would not have made a confession.

Prepared and written by practising defence Counsel, Adv O.S. DZINGWA