AS IT HAPPENED: Panayiotou case adjourned for the day

2016-11-10 09:13

The case has been adjourned for the day. Judge Chetty has earlier ruled that no trial within a trial will be held after Stander argued that the admissibility of Section 204 witness is something that should not be dealt with in a trial within a trial.

The accused in the Panayiotou case

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Last Updated at 19:53
10 Nov 14:28

Chetty: Addresses Price and Daubermann - Any objections?

No objections.

Chetty: I trust your client will be ready to give evidence tomorrow.

Chetty: Court is adjourned until 09.30.

10 Nov 14:27

Chetty: Mr Stander

MS: I must indicate I was not privy to any consultation with the witness after this morning and only heard about the issue shortly after number one

MS: I heard that Mr Ngeza has indicated that he will be consulting with the attorney for accused number one.

MS: I will be in court until at least 16:15pm.

MS: All the documentation is available in electronic format.

MS: As soon as I am furnished with a device such as a memory stick I can make the documents available within a few minutes.

10 Nov 14:25

In the morning we were supposed to deal with the trial within a trial, and we know what happened.

I would not be fulfilling my duties should I allow the matter to resume without that documentation.

I will do my best to finalise the matter so that we can resume tomorrow.

10 Nov 14:24

MS: My lord....

TP interjects is chatting to Daubermann.

MS: I am now ready to call Luthando Siyoni, but there is a request from one of my colleagues.

Siyoni's attorney, Zolile Ngqeza, stands up.

There is certain documentation that I need in relation with the section 204 witness so that I can advise him accordingly.

10 Nov 14:20
The court room is filled, possibly the most full since the start of the Panayiotou case.

10 Nov 10:48
Court is adjourned to 14:15.

10 Nov 10:29

MS: May I ask for a short adjournment, there are certain issues I need to discuss with the attorney for section 204.

Chetty: Court is adjourned.

10 Nov 10:28

Chetty: It is my ruling that the evidence will be led in the main trial. No trial within a trial.

MS: Thank you my lord.

10 Nov 10:27

Chetty: Do you have anything to add Mr Stander?

MS: Refers to case law.

10 Nov 10:27

TP: We are saying that he should be treated as an accused person as his statements were made during the time when he was still accused number one.

TP: We are arguing that the evidence was tainted while he was still an accused.

TP: At this point in time, and given that I've been ambushed again, so I have no arguments to present.

TP: My argument is simply that the tainted evidence was obtained during the time he was still an accused.

10 Nov 10:26

Chetty: But that is a separate issue and you could ask for a trial within a trial relating to those details.

Chetty: There is no case law.

TP: I expected a trial within a trial and I get hit by this.

TP: This is what has been happening the whole time since this trial began.

Chetty: So your argument is that Siyoni was an accused, not a section 204 witness?

TP: The Charges against Siyoni were only withdrawn against him in August 2015. Up until then he was treated as accused number one.

10 Nov 10:24

Chetty: But I will make a decision on the admissibility.

TP: You are going to hear it my lord.

TP: We don't know what he is going to say, but he is going to say things like the conversation within the car.

10 Nov 10:23

TP: You are being asked to deal with him in section 204, when in fact he is still an accused.

TP: You are sitting in a situation that should a police officer beat up an accuses, they can simply  turn him into section 204 and bring the evidence before the court.

TP: You are going to be subjected to poisonous evidence.

TP: I am not saying you don't have the ability to see through that.

Chetty: The distinction you are drawing, you are saying that Siyoni is not a Section 204, you are saying he is an accused.

TP: It would be different if he had turned immediately.

TP: He had the seven bells of hell beaten out of him.

TP: From there he is taken to Kabega Park and Fort Beaufort.

TP: If Stander is going to stand up and say that confession is inadmissible, that's different.

TP: If they say second statement is admissible as it was given under other circumstances, that is a different case.

10 Nov 10:22

Chetty: In your plea explanation you raised the issue of a trial within a trial.

Chetty: Addressing Price.

Chetty: There is no provision made for a trial within a trial on the admission of state's evidence.

Chetty: Have you got any case law that shows the grounds of a trial within a trial?

TP: I want to put you on the map my lord.

TP: We know what the section 204 witness is going to say. He is going to say that he was assaulted.

Chetty: But the I will have to sit down with the evidence and determine the weight of the matter.

10 Nov 10:11

MS: Those are my submissions.

TP: I would like to request that we proceed with the interpreter.

10 Nov 10:10
MS: It is therefore my submission that the court does not order the holding of a trial within a trial.

10 Nov 10:10

MS: This court is sitting without assessors.

MS: There is no possibility that there can be any harm in hearing the evidence or this court making a decision on admitting the evidence or excluding the evidence.

MS: There is a reason why there is no case law on this aspect.

MS: The reason is simple. The admissibility of a section 204 witness is simply something that should not be dealt with in a trial within a trial.

MS: There is nothing that prevents an accused person, after hearing all the evidence, bringing an application to have the evidence excluded.

10 Nov 10:08

MS: That witness has the right to be heard by this court in order to be granted indemnity.

MS: By ordering a trial within a trial, that witness will be ordered to testify in a trial within a trial.

MS: Which could result in his evidence being excluded, before he is given the opportunity to testify on the merits.

MS: Which will result that there is a possibility that this 204 witness may climb into the witness box and yet not be given the opportunity to testify to the merits of the case and answer all questions put to him honestly and truthfully.

MS: He could therefore be robbed of that opportunity.

10 Nov 10:06

MS: When the state calls a section 204 witness to the stand, there is some pre-trial agreement between the state and that witness.

MS: That is an intricate agreement, because part and parcel of that agreement can only be delivered by the trial judge.

MS: It is only this court that can grant the witness, in this case Luthando Siyoni, indemnity or not.

10 Nov 10:04

MS: When you are dealing with a 204 witness, it is not just the state and the accused, there is another person that has to be considered, and that is the section 204 witness.

MS: Which complicates the issue.

MS: I want to refer the court to the case of Cyler and others.

MS: it was this year, 2016, handed down 23 May 2016.

MS: This judgement is not 100% on the point, but there is a principle that I want to bring to the courts attention.

10 Nov 10:02

MS: This case, like Vilakazi, warns against the practice of going into a trial within a trial without reason.

MS: Once again this case deals with the aspect of an accused person.

MS: Even when dealing with an accused person, the judge says we have to guard against rushing into a trial within a trial.

MS: Refers to judgement -it makes it very clear that the court making an order on a trial within a trial is a discretionary function of the court.

10 Nov 10:02

MS: This case, like Vilakazi, warns against the practice of going into a trial within a trial without reason.

MS: Once again this case deals with the aspect of an accused person.

MS: Even when dealing with an accused person, the judge says we have to guard against rushing into a trial within a trial.

MS: Refers to judgement -it makes it very clear that the court making an order on a trial within a trial is a discretionary function of the court.

10 Nov 10:00

MS: In all the reported case law in dealing with a section of a 204 witness of having to deal with being assaulted, having being coerced into saying anything has been dealt with in the main trial...

MS: The only judgement that comes remotely close to what this case is asking is the Mthembu judgement.

Chetty: There was no trial within a trial in the Mthembu case.

MS: There was no judgement made that a trial within a trial must be held to deal with this.

MS: I have read that judgement on a number of occasions last night.

MS: I am not saying it is incorrect.

MS: What I am saying is that there is no particular indication that a trial within a trial must be held.

MS: I want to take the court to another matter, the state vs Makoena.

10 Nov 09:53
MS: Reading through more of the case law.

10 Nov 09:51

MS: I want to make the same distinction that Grobelaar R is making in this instance.

MS: That the evidence of a section 204 witness is not the same as evidence led by an accused person.

10 Nov 09:49

MS: I now take the court to state versus Vilikazi.

10 Nov 09:47

MS: I further want to refer the court to the Park Ross judgement.

MS: The state versus Thandwa.

MS: Reads from both cases.

10 Nov 09:44
The case law deals with fairness and the interest of justice.

10 Nov 09:42

MS: Section 218, sub section 2 says that even if there has been an infringement, the evidence is still admissible.

Chetty: What about 35.5 f the constitution?

MS: That is the only time, My lord, where it comes under.

MS: Reads from case law from the constitutional court.

10 Nov 09:41

MS: When one deals with the accused person, in essence, most trials within a trial, will deal with section 217 and 219 of the criminal procedures act.

MS: That indicates specifically that if there has been an infringement, non compliance with section 217 or 219, the evidence needs to be excluded.

MS: The position of a section 204 witness, the only place this can fall is in section 218, sub section 2.

10 Nov 09:39

MS: Here it is the evidence of a 204 witness.

MS: It is evidence that subject to an alleged infringement, was created by a 204 witness.

MS: So the link is to the 204 witness, not to an accused.

MS: My lord, the case law is quite clear that how the law operates under the new constitution is legislation first, constitution later.

MS: So you first need to deal with the legislation, and then deal with the constitution.

10 Nov 09:37

MS: That is why if one looks at the case law, whenever there was an infringement of a right pertaining from a confession, a pointing out or the like of an accused person, the court ordered a trial within a trial.

MS: So in essence the court was protecting the accused from creating evidence that could be used against himself later.

MS: The case law is quite clear.

10 Nov 09:36

Chetty: and without being exposed to general cross examination on the merits of the matter?

MS: Indeed so.

MS: That was the whole reason for a trial within a trial being created.

10 Nov 09:35

MS: A trial within a trial was initially to exclude assessors from hearing certain evidence.

MS: And more specifically when an accused person alleges an infringement and the argument is forwarded that certain evidence emanating from an infringement of a right should be excluded.

MS: The first distinction that I want to draw is that Siyoni is not an accused before court.

MS: The whole rationale about holding a trial within a trial is in order to allow the accused person to come and testify about the infringement of his right.

10 Nov 09:33

MS: My lord yesterday I indicated that my first witness would be Luthando Siyoni.

MS: It was also indicated that we would be starting with the trial within a trial.

MS: Since yesterday afternoon to this morning, I have studied the case law.

MS: It is my opinion that the evidence that the state wishes to place before the court should not be part of a trial within a trial.

MS: This evidence should be dealt with in the main body of the trial and all evidence and or exclusionary evidence should be dealt with

10 Nov 09:18

There is a huge contingent of people outside of court today wanting to be in court.

The back row is filled up already. 

10 Nov 09:16

ICYMI: Alleged middleman Luthando Siyoni was due to appear before the court yesterday, delays resulted in the case being adjourned to continue today.

10 Nov 09:13

No action in Panayiotou case

After a day of delays court has been adjourned to proceed at 09:30 in the Panayiotou case. Siyoni has been warned to be at court at 09:00 by Judge Chetty.

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