S v Evelio (D1664/2010) [2011] ZAGPJHC 143; 2012 (1) SACR 367 (GSJ) (14 October 2011)

S v Evelio (D1664/2010) [2011] ZAGPJHC 143; 2012 (1) SACR 367 (GSJ) (14 October 2011)

The conviction and sentence for escaping from lawful custody were set aside because the State failed to prove that the accused was lawfully arrested. The only evidence presented was hearsay from a police officer who did not effect the arrest, and no direct evidence was led by the arresting officer. The accused's failure to deny arrest did not relieve the State of its burden to prove lawful arrest, which is a necessary element of the offence. Without such proof, the conviction cannot stand.

Citation
[2011] ZAGPJHC 143
Parties
Applicant: The State; Respondent: Pulgarin Ospina Harold Evelio
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
14 October 2011
Case Number
D1664/2010
Procedural Posture
Criminal Review / Automatic Review Under S 302 of the Criminal Procedure Act
Outcome
Conviction and sentence set aside.
Judges
FHD Van Oosten, MB Mahalelo
Legal Topics
Escape From Lawful Custody, Lawful Arrest, Criminal Procedure Act, Onus of Proof
Criminal Law Escape From Lawful Custody Lawful Arrest Criminal Procedure Act Onus of Proof

Case Brief

Summary, issues, holding and outcome

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Parties

The State

Applicant

Pulgarin Ospina Harold Evelio

Respondent

Procedural Posture

Criminal Review / Automatic Review Under S 302 of the Criminal Procedure Act

Legal Issues

  1. 1 Whether the State proved that the accused was lawfully arrested as required for a conviction of escaping from lawful custody.
  2. 2 Whether hearsay evidence regarding the arrest suffices to establish lawful arrest.
  3. 3 Whether the conviction and sentence should be set aside due to lack of evidence of lawful arrest.

Ratio Decidendi

The conviction and sentence for escaping from lawful custody were set aside because the State failed to prove that the accused was lawfully arrested. The only evidence presented was hearsay from a police officer who did not effect the arrest, and no direct evidence was led by the arresting officer. The accused's failure to deny arrest did not relieve the State of its burden to prove lawful arrest, which is a necessary element of the offence. Without such proof, the conviction cannot stand.

Court Disposition

Conviction and sentence set aside.

Orders

  • The conviction and sentence are set aside.