Interlocutory Appeal of SD v Dragoncrxst 2025 SDCR 22
This matter has been repealed, voided, or is otherwise out of date
Overturned by In re Dragoncrxst new evidence [2025] SDSC 42
Interlocutory Appeal of SD v Dragoncrxst [2025] SDCR 22
| Date of judgment | 17th November 2025 |
| Judges |
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| Held | The evidence admitted by the prosecution is admitted, and the new evidence the defence seeks to admit is inadmissible. |
| Ruling | 3-0 |
| Applicable precedent |
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MAJORITY OPINION by Judge ppatpat
(with Judges Confused and Terak agreeing)
Introduction
[1] The appellant seeks review of a decision by the inferior court regarding the using of contextual evidence during cross examination when such was not submitted during pre-trial.
Statutory Framework
[2] Article 13 of the Courtroom Procedures Act 2025 (CPA) governs the admission of evidence. Particular attention is given to the following portions thereof:
§2. Evidence shall be inadmissible on the following grounds… §2.4. Incomplete; Evidence that lacks context, or is presented incompletely in order to mislead or deceive shall be inadmissible… §3. During any time when the evidence is presented; either party to the legal proceeding may raise an objection regarding a violation of procedures or rules of evidence.
[3] Article 3 of the Evidence Act 2025 details context necessary for evidence to be complete:
§1. When a party intends to use a message or screenshot of a message as evidence, so much of the surrounding context must be saved and admitted along with the message or screenshot of a message as may be necessary to ascertain the purpose or lack thereof of the message.
[4] CPA 7§5 dictates that evidence must be admitted before the close of pre-trial, and CPA 8§3 describes the exceptions:
§3. Should a party find new evidence during the trial which is vital to their case, they shall have the opportunity to enter a motion for recess on the grounds of new information, and apply to have such evidence admitted.
Considerations
[5] The statute entertains objections whenever evidence is “presented”. This squarely aligns with the text regarding trial procedure, where the parties present their evidence. The window for objections is therefore pegged to the moments when evidence is actually being presented— in the evidentiary phase of the trial itself, not pre-trial.
[6] The prosecution’s exhibits in this case were in the record and then presented at trial in accordance with Article 8 §1.3, which contemplates that “The prosecution shall present their evidence, allowing the defense to cross-examine each article.” At that point, the defence knew exactly what the exhibits were, and it knew the inferences the prosecution was seeking to draw from them.
[7] Yet when the evidence was presented at trial, the defence did not object on the ground that the exhibits were “incomplete” or lacked context. It did not invoke Article 13 §2.4. It did not ask the trial judge to exclude the exhibits as misleading. It let the evidence in, without challenge, at the very moment the statute designates as the time to object.
[8] Article 13 §3 is explicit. Objections may be raised “During any time when the evidence is presented.” The defence asks us to read that phrase as if it also covered any later stage of the trial, long after the evidentiary presentation has concluded and the case has moved on. The text does not bear that reading. There is a time “when the evidence is presented,” and there is a time when it is not. Here, the defence slept through the first time and now wants a second.
[9] By failing to object at trial when the evidence was presented, the defence waived any Article 13 §2.4 incompleteness objection to the prosecution’s exhibits. Once the evidentiary phase in which those exhibits were presented had ended, the statutory window closed, particularly in an adversarial system such as SimDem’s where the court is dependent on the parties’ own motions to police the record. As the respondent succinctly put it: “the trial has now moved on from the time specifically designated for the defense to object to the prosecution’s evidence. As such, the prosecution’s evidence has been admitted and may not be objected to anymore.”
[10] The defence also seeks to introduce its own “context” evidence. It is common ground that this material was not submitted at pre-trial. Article 7 §5 is clear: “Any evidence either party wishes to use during the trial must be submitted to the courts at the conclusion of the pre-trial.” That is a mandatory rule, not a suggestion.
[11] The defence attempts to escape Article 7 §5 by invoking the “new evidence” provision of Article 8 §3, which allows a recess “[s]hould a party find new evidence during the trial which is vital to their case.” But there is nothing “new” about the contextual messages it now seeks to tender. They formed part of the same conversation from which the prosecution’s screenshots were drawn. They were always in the defence’s possession or readily accessible to it before trial.
[12] Finding new importance in old material is not the same thing as finding “new evidence during the trial.” The statute does not say “should a party realise, during the trial, that previously available evidence would have been useful.” It says “find new evidence during the trial.” That language presupposes that the evidence itself did not exist in the record, or was not known, before the trial was underway.
- [12.1] The court upholds the precedent from SD v notcommunist366, Creative, & Acool [2025] Crim 103, that for evidence to be “new” the defense must not have seen, or have been reasonably expected to see, it before or during the period where it's allowed to be entered.
[13] The defence argues that it could not have anticipated the prosecution’s allegedly “bizarre and unpredictable” interpretation of the screenshots, and therefore could not reasonably have submitted the contextual material earlier. But what the statute demands is diligence in evidence submission, not clairvoyance about every possible argument. The defence knew the exhibits, it knew the surrounding messages, it knew that context might matter. If context was important, the time to put it in the record was pre-trial, not after the State has already built its case on the admitted evidence.
[14] The Right to a Fair Hearing in Article 21 of the Constitution guarantees a defendant “adequate time for the preparation of their defense” and safeguards “the rights of a person in front of a competent court.” It does not guarantee that every strategic choice by counsel will prove wise, nor does it constitutionalise a right to restart the evidentiary phase whenever one party misjudges the other’s strategy.
Verdict
[15] For the reasons above, the court now holds that the evidence presented by the appellant during cross-examination is inadmissible and struck from the record.
[16] For the reasons above, the court now holds that the evidence presented by the respondent has already been admitted, and cannot be objected to at this stage of trial.