Compelled evidence and the privilege against self-incrimination

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CHAPTER 3 THE EXCLUSION OF UNCONSTITUTIONALLY OBTAINED REAL EVIDENCE IN SOUTH AFRICA

INTRODUCTION

The common law approach, prior to the enactment of section 35(5) of the Constitution, to the issue of illegally obtained evidence, was that relevant evidence was admissible in both criminal and civil cases and that the court should not concern itself with how it was obtained.1 This approach in criminal proceedings was however substantially changed with the introduction of section 35(5).2 Section 35(5) envisages the exclusion of evidence obtained in an unconstitutional manner.3
The Constitutional Court have to date not had the opportunity to interpret section 35(5). On the other hand legal scholars, the Supreme Court of Appeal and the high courts have made meaningful contributions towards its interpretation.4 Common principles emerged that guide the courts in determining which factors may play a role in determining whether evidence should be received or excluded.
Section 35(5) reads as follows:
“Evidence obtained in a manner that violates any right in the Bill of Rights must be excluded if the admission of that evidence would render the trial unfair or otherwise be detrimental to the administration of justice.”
An analysis of the wording contains a constitutional directive to exclude unconstitutionally obtained evidence only where admission of the evidence would render the trial unfair, or would otherwise be detrimental to the administration of justice. Clearly, therefore, section 35(5) provides for two exclusionary legs, which are couched in broad language and requires a value judgment to be made.5 The two-stage admissibility analysis consists of, what Ally has described as, a substantive phase (whether the disputed evidence should either be received or excluded) and a threshold phase (jurisdictional facts).6
In this chapter, I first, consider the procedural aspects associated with an application under section 35(5). In this regard procedural matters such as the location of the threshold burden and the appropriateness of the trial-within-a-trial procedure for purposes of an admissibility assessment are considered.
Second, I explore the threshold requirements under section 35(5). They are the following:
The beneficiaries of the exclusionary remedy; (b) the meaning of the phrase “obtained in a manner,” or the so-called causal connection requirement; (c) whether “standing” is a threshold requirement under section 35(5); and (d) the violation of a constitutional right. A court must be satisfied that all threshold requirements have been satisfied before it proceeds to consider the substantive phase of section 35(5).
Third, I explore the substantive phase of the exclusionary rule. The substantive phase introduces a so-called two-legged test:7 firstly, a determination of whether the admission would render the trial unfair or, secondly, whether it would otherwise be detrimental to the administration of justice. I follow an approach which keeps the two legs of the test separate. It is trite law that in determining whether admission would have one of the two identified consequences, a court is required to make a value judgment by considering all the circumstances.8 For now, though, I consider some of the more important factors in so far as they apply to the more specific question of admissibility of unconstitutionally obtained real evidence.
Finally, I examine how the courts apply the principles, identified in both the procedural and substantive phase, to real evidence and in the process consider the procedures set out in the provisions of section 37 of the Criminal Procedure Act, 1977

PROCEDURAL MATTERS

Threshold burden

The Constitution does not expressly mention where the onus is located in section 35(5) challenges. The Constitutional Court has yet to decide on the incidence and nature of the onus, if any, in section 35(5) applications. The views expressed in case law and the opinions of legal scholars cannot be reconciled. Two dominant views exist. The one view advocates that the accused should bear the burden of showing that the impugned evidence had been obtained through a violation of rights and the other view suggests that the prosecution should bear the burden of proving that the disputed evidence has been obtained in a constitutional manner, once the accused alleges that it has been unconstitutionally obtained.
In Viljoen9 the Supreme Court of Appeal stated that an accused bears the burden of showing that the police violated his constitutional rights in the process of procuring the evidence.10 In casu the accused was charged with the murder of his wife. The accused challenged the admissibility of the evidence on the basis that the police failed to inform him of his right to remain silent when taking his confession. This breach, the accused argued, constituted a violation of his rights which rendered the information disclosed during these proceedings inadmissible. The Supreme Court of Appeal held that an accused should be informed of the right to remain silent because failure to inform an uninformed accused might result in an unfair trial. Unfairness, the Court reasoned, in the trial process will only result where the accused proved that he did not have knowledge of the right to remain silent and therefore had to be informed thereof. In casu the accused failed to place any such evidence before the court and the Court accordingly ruled that the court a quo erred in holding that the right to remain silent had been violated.
Mgcina11 is an example of the view that the prosecution bears the burden, which arises only when the accused first raises the issue of admissibility of unconstitutionally obtained evidence. In casu the accused lodged an appeal against his conviction on two charges of murder and five counts of attempted murder. The convictions were secured by the prosecution by tendering a confession obtained from the accused while participating in a pointing out. The accused on appeal challenged the admissibility of the confession on two grounds. Relevant to this discussion is the argument that the confession should be excluded because the evidence had been obtained in breach of his right to legal representation. The accused argued that the prosecution bears the burden of proving beyond reasonable doubt that the appellant was properly informed of the right to legal representation.12 The Court noted the conflicting approaches in previous judgments delivered on this point, but favoured the approach in Brown.13 The Court reasoned that for the same reasons that the onus at common law rested on the state to prove that a confession was freely and voluntarily made, so was it on the prosecution to prove beyond reasonable doubt that the constitutional rights of the accused were not infringed during the evidence gathering phase.14 The Court concluded that the prosecution bears the burden of proof that the evidence had been obtained in a constitutional manner.15 In other words, once the accused asserts that the evidence had been unconstitutionally obtained and challenged the admissibility thereof, the prosecution bears the burden of proving that the evidence had been obtained in a constitutional manner.16 The Court added that the prosecution need not disprove the violation of each and every conceivable fundamental right. It is only in cases when the accused alleges that the evidence was obtained in a manner that infringed one or more of those rights, that the prosecution must prove the converse beyond a reasonable doubt. This decision appears to have substantial support amongst legal commentators.
I prefer the approach of Schwikkard and Van der Merwe, which to a limited extent accommodates the Mgcina ruling. The authors propose the following approach: First the accused should allege but need not prove that his constitutional rights have been infringed and that it should be excluded. Secondly, the court should, during the trial-within-a-trial, bear in mind the distinction between facts pertaining to admissibility as opposed to matters of judgment and value (weight of evidence). Failure by the prosecution to prove beyond reasonable doubt any factual matter will result in the accused receiving the benefit of the doubt. Thirdly, when the factual findings have been made and the court is satisfied that the evidence has been obtained in violation of the accused constitutional rights, it is required to exercise its discretion and make a value judgment on whether admission would result in one of the consequences identified in section 35(5).18 Based on this approach there can be no question of an onus in respect of this decision. Viljoen should be rejected because (a) the language of section 35(5) does not saddle an accused with the onus and, (b) the accused’s right to remain silent, the privilege against self-incrimination and the presumption of innocence could be violated if the accused should bear the onus to prove that his rights have been violated.19
A review of the case law reveals that the nature of the evidence, more importantly whether it is real evidence or not, does not affect the issue of onus.2

Trial-within-a-trial

It is trite law that aspects of admissibility and criminal liability are separated by our courts. A trial-within-a-trial should be held when considering section 35(5) applications.21 The trial-within-a-trial procedure ensures that: (a) an accused can testify freely about admissibility and not expose himself to cross-examination concerning his guilt and (b) the accused is entitled to a decision whether evidence is included before testifying in the main trial.22 In certain cases the failure to hold the trial-within-a-trial to determine admissibility of evidence can amount to a failure of justice, which renders the trial unfair.23 However there are situations where the admissibility of evidence can be determined without holding a trial-within-a-trial. For example, in Hena24 the parties agreed that the issue will be dealt with in argument because the facts upon which the issue was to be decided were common cause.25
ruling on admissibility in a trial-within-a-trial is interlocutory and could be reviewed at the end of the trial in light of all the evidence.26
Our courts have on several occasions been requested to determine questions of admissibility by means of pre-trial motion on the grounds that a warrant authorising the search and seizure of evidence be declared invalid27 or that legislation authorising a search be declared unconstitutional.28 The Constitutional Court has however discouraged the use of the pre-trial remedy if it circumvents the application of section 35(5) or if it delays finalisation of criminal proceedings.2

THRESHOLD REQUIREMENTS

The jurisdictional facts (threshold requirements) in section 35(5) must be satisfied before the exclusionary remedy becomes operative.30 In addition the threshold requirements serve the purpose of separating irrelevant claims from those that have merit. Failure to establish the threshold requirements will result in the court refusing to consider the actual test for the exclusion of unconstitutionally obtained evidence, which is to consider whether admission of the evidence would render the trial unfair or otherwise be detrimental to the administration of justice.31 In other words a court must be satisfied that all threshold requirements have been satisfied before it proceeds to consider the substantive phase of section 35(5).
The threshold requirements explored below are:
The beneficiaries of the exclusionary remedy, more specifically the rights of a suspect who is neither arrested nor detained;
The meaning of the phrase “obtained in a manner,” also referred to as the “causal connection requirement.” In this regard the nature of the link between the impugned evidence and the initial constitutional infringement is discussed;
The so-called standing aspect. Under the concept standing I examine the important question whether an accused should demonstrate that his rights have been infringed before he may challenge the admissibility of the impugned evidence. Moreover, I consider the issue whether an accused can rely on the exclusionary remedy in the event that the rights of an innocent third party and not the rights of the accused, during the evidence gathering process, have been infringed.
The violation of a constitutional right. Police conduct authorised by statute or common law can limit an accused fundamental rights. In this regard section 36(1) of
the Constitution can assist in determining the constitutional validity of the impugned statute or common law.32

Beneficiary of exclusionary remedy

Section 35 mentions only the accused, detained or arrested persons.33 Therefore, in terms of a literal interpretation, these are the only persons protected by its provisions.34 The position of a person suspected of having committed a crime, but who is neither arrested nor detained, has been a source of conflicting judgments.

The “suspect” and section 35 rights

Our case law and legal authorities is conflicted on whether the rights in section 35 should be interpreted to also include protection for a suspect,35 or whether suspects are sufficiently protected by other legal principles36 or whether a “detained suspect” is entitled to be informed about certain rights.37
Sebejan38 is an example of a case where the court stated that section 35 should be interpreted to also include protection for a suspect. In casu the accused challenged the admissibility of a statement made when she was a suspect. The question the Court had to determine was whether constitutional rights operated to the benefit of the accused at the time she made the statement to the police and whether such rights were breached.39 The Court found that the police considered the accused to be a suspect, but failed to inform her of her rights when interacting with her. The Court stated that the conduct to deceive a suspect into believing that she is a witness when in actual fact evidence is being sought to strengthen the State’s case is “inimical to a fair pre-trial procedure.” In these circumstances the Court found that suspects are entitled to fair pre-trial procedures (fair trial rights).40 The fair pre-trial procedures must be similar to the rights which would accrue to an accused when arrested,41 including the rights to remain silent and to be informed of the right to remain silent; the right to be informed of the consequences of making any statement; the right to choose and to consult with a legal practitioner and to be informed of this right promptly.42 The judgment is authority that a suspect should be afforded general trial rights.43 The police should inform a suspect of his constitutional rights, if there was a clear indication of criminal involvement, at a stage before the police first interacted with a suspect.44 The rights information (manner in which the protective cautions are extended to a suspect, as well as the nature and extent of the protective cautions) should be similar to the position of an accused when detained or arrested.45
Khan46 is an example of a case where the court found that section 35 is not applicable to suspects.47 In essence the Court argued that suspects are sufficiently protected by other legal principles. The Court declined to follow Sebejan after it embarked on an extensive review of authority on the question of whether a person was entitled to be informed of his or her rights prior to the point of arrest.48 The Court concluded that the rights of “suspects” are adequately catered for by the application of the well-established provisions of the Judges’ Rules.49 The Court agreed with the opinion in Van der Merwe50 that when a person is warned in terms of the Judges’ Rules, expression is given to the provisions of the Constitution.51 The Court reasoned that forcing the police to warn the accused both in terms of the Judge’s Rules and his constitutional rights would result in an imbalance between the need to protect the rights of the person and the importance of not impeding the police in evidence gathering.52 On the facts of the case the Court held that the police possessed a reasonable apprehension that the appellant was a suspect and were accordingly obliged to caution the appellant in terms of the Judges’ Rules, before the appellant proceeded to produce the drugs in question. Evidence obtained without informing the accused of his rights in terms of the Judges’ Rules could be excluded on the grounds of fairness and public policy. The court may also exclude, in terms of its common law discretion, improperly and illegally obtained evidence.53
In certain situations an indication of criminal involvement only arises after the police have started to interact with someone who felt obliged to respond to questioning. In these instances, it has been argued, a suspect, like in the case of a detainee, is entitled to be warned of his rights, even though he was strictly speaking not detained at the time of questioning.54 In other words, the argument goes, a suspect that can be seen as a detained person, will be entitled to the relevant rights.55 Detention is then determinative of the moment when a person should be warned. This approach requires a broad interpretation of “detention.” The central question is how one determines whether a suspect has been detained or not. Generally detention refers to physical constraint but it can be argued that a person is in lawful custody if there has been a deprivation of freedom.56 The Supreme Court in Canada held that the concept detained includes “psychological detention” of a person which consists of three elements: first, police must have directed a demand to a person; then, there should be compliance with the demand which results to a deprivation of liberty and finally, the person must believe that he has no other choice but to comply.57 Ally agrees that “informational duties” arise from the moment the police embark on an adversarial relationship with suspects.58 In South Africa an adversarial relationship will not necessarily emerge when an individual becomes a suspect but arises when an individual is required to establish or disprove the existence of evidence linking them to the crime.59 The test is objective. A relevant factor would be the subjective belief of the person suspected of wrongdoing at the time of his interaction with the police.60

Definition of the word “suspect”

Most of the authorities support the notion that although section 35 does not refer to suspects, some suspects should also have the section 35-rights.61 The question arises who is a suspect and who is not.
A number of definitions have been formulated to describe what a suspect is or could be.62 Generally a person is a suspect if investigators, in the absence of certain proof, believe that he is guilty of a crime or a person suspected of a crime or offence.63 The High Court in Sebejan stated that the belief can be “some apprehension” that a person might have committed an offence, and that person’s version of events is mistrusted.64 On the other hand the courts in Khan65 and Ndlovu66 held that the phrase “some apprehension” sets the standard too low and suggested the adoption of an objective element such as a “reasonable apprehension.”67 In other words a mere suspicion does not mean that the police have enough suspicion.68 It is submitted that the phrase “reasonable apprehension” introduces an element of objectivity to the enquiry as to whether the person is in fact a suspect at the relevant time.69 A subjective and objective analysis should be employed to ascertain whether the person is a suspect.70 The subjective belief of the police should be taken into account when determining whether the accused is a suspect

TABLE OF CONTENTS
CHAPTER 1
1. INTRODUCTION
2. RESEARCH QUESTIONS
3. A BRIEF HISTORICAL BACKGROUND
3.1 Compelled evidence and the privilege against self-incrimination
3.2 Self-incrimination and pointing-out
3.3 Section 37: Self-incrimination distinguished from evidence of bodily features
4. RESEARCH METHODS AND SOURCES
4.1 Literature study
4.2 Comparative legal study
5. THE NATURE OF REAL EVIDENCE: ATTEMPTING A DEFINITION
5.1 Non-bodily evidence
5.2 Bodily evidence
5.3 Derivative evidence
6. LIMITATIONS TO THIS STUDY
7. SUMMARY
CHAPTER 2: THE RATIONALE FOR THE EXCLUSIONARY RULE
1. INTRODUCTION
2. RATIONALES FOR THE EXCLUSIONARY RULE
2.2 Remedial imperative
2.3 Judicial integrity
3. CONCLUSION
CHAPTER 3: THE EXCLUSION OF UNCONSTITUTIONALLY OBTAINED REAL EVIDENCE IN SOUTH AFRICA
1. INTRODUCTION
2. PROCEDURAL MATTERS
2.1 Threshold burden
2.2 Trial-within-a-trial
3. THRESHOLD REQUIREMENTS
3.1 Beneficiary of exclusionary remedy
3.2 Connection requirement
3.3 So-called standing requirement
3.4 Violation of the right
4. SUBSTANTIVE PHASE
4.1 The first leg of the test in section 35(5): trial fairness
4.2 Second leg of test in section 35(5): detriment to the administration of justice
5. PRINCIPLES DETERMINING THE ADMISSIBILITY OF REAL EVIDENCE
5.1 Conscription analysis
5.2 Discoverability analysis
5.3 Real evidence obtained through compulsion
6. SUMMARY
CHAPTER 4: THE EXCLUSION OF UNCONSTITUTIONALLY OBTAINED EVIDENCE UNDER SECTION 24(2) OF THE CANADIAN CHARTER
1. INTRODUCTION
2. PROCEDURAL MATTERS
2.1 Pre-trail motion
2.2 Threshold burden
3. THRESHOLD REQUIREMENTS
3.1 Beneficiary of the exclusionary remedy
3.2 Standing requirement
3.3 Evidence “obtained in a manner”
4. ADMISSON OF THE EVIDENCE BRINGS THE ADMINISTRATION OF JUSTICE INTO DISREPUTE
4.1 Seriousness of the breach
5. IMPACT ON THE CHARTER PROTECTED INTEREST OF THE ACCUSED
5.1 Nature of the evidence
5.2 Discoverability analysis
5.3 Nature of the right
6. SOCIETY’S INTEREST IN ADJUDICATION OF THE CASE ON ITS MERITS
6.1 Reliability
6.2 Importance to prosecution
6.3 The seriousness of the offence
7. SUMMARY
CHAPTER 5: THE EXCLUSION OF UNCONSTITUTIONALLY OBTAINED EVIDENCE UNDER THE FOURTH AMENDMENT OF THE UNITED STATES OF AMERICA CONSTITUTION
1. INTRODUCTION
2. PROCEDURAL MATTERS
2.1 Motion to suppress
2.2 Onus
3. EXCEPTIONS TO THE EXCLUSIONARY RULE
3.1 Standing doctrine
3.2 The Objective Justification Doctrine
3.3 Attenuated taint doctrine
3.4 The Inevitable Discovery doctrine
3.5 The Independent Source Doctrine
3.6 The Good Faith doctrine
4. REAL EVIDENCE OBTAINED THROUGH COMPULSION
4.1 So-called reasonable balancing test
4.2 Physical penetration of the body
5. CONCLUSION
CHAPTER 6: THE EXCLUSIONARY RULE IN NAMIBIA
1. INTRODUCTION
2. PROCEDURAL MATTERS
2.1 Trial-within-a-trial procedure
2.2 Onus
3. STANDING REQUIREMENT
3.1 Aggrieved Person
3.2 Interested Person
3.3 Suspects
4. UNCONSTITUTIONALLY OBTAINED EVIDENCE
4.1 Nature of Exclusionary Rule
4.2 Exclusionary Test
5. REAL EVIDENCE OBTAINED THROUGH COMPULSION
5.1 Establishing meaning in the wording
5.2 Values-test
5.3 Requirements of Article 22
6. CONCLUSION
CHAPTER 7: CONCLUSIONS AND RECOMMENDATIONS
1. INTRODUCTION
2. CONCLUSIONS
2.1 Rationale of the exclusionary rule
2.2 Procedural matters
2.3 Threshold requirement
2.4 Substantive phase
3. RECOMMENDATIONS
3.1 How should the court interpret section 35(5)
3.2 Proposed amendments to section 37 of the Criminal Procedure Act, 1977
BIBLIOGRAPHY
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