BWR Semester Test 2 Notes (PDF)

1 Pass and Prosper BWR SEMESTER TEST 2 NOTES Unit 4 – Confessions in Criminal Trials What is a Overview Confession? ❖ A statement will constitute a confession when the maker of the statement admits, o...

1 Pass and Prosper BWR SEMESTER TEST 2 NOTES Unit 4 – Confessions in Criminal Trials What is a Overview Confession? ❖ A statement will constitute a confession when the maker of the statement admits, out of court, to all elements of the crime with which they are charged. Confessions ❖ Definition A statement will constitute a confession when the maker of the statement admits, out of court, to all elements of the crime with which they are charged. ❖ Rex v Becker The court held that a confession is an unequivocal acknowledgement of guilt, the equivalent of a plea of guilty for the offence and/or lesser offence before a court of law. ❖ Entirety The court is restricted to considering those circumstances which put the statement in its proper setting and which help to ascertain the true meaning of the words used. ❖ S209 CPA The accused may be convicted of an offence on the basis of their confession if: ▪ The confession is confirmed in a material respect; or ▪ If the offence is proved by the evidence other than the confession to have been actually committed. ❖ S219 CPA A confession is admissible only against the person who made the confession and may not be admitted either directly or indirectly against any other person (such as a co-accused for example). This rule is also applicable to admissions and to evidence arising out of pointing-out that constitutes an admission. Admission ❖ Definition A statement made by a party, in criminal or civil proceedings, which is adverse to that party’s case. ❖ Informal Admissions Informal admissions are usually made out of court. Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, they may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction.  2 Pass and Prosper ❖ Formal Admissions Formal admissions are made in the pleadings or in a court and binding on their maker and generally made to reduce the number of issues before the court. ❖ Criminal Cases In criminal cases an admission must be proved to have been made voluntarily before it can be admitted into evidence. ❖ Civil Cases In civil cases an admission must be proved to be relevant. ❖ Admissibility The admissibility requirements for an admission are different to the admissibility requirements for a confession. Admissibility of an Involuntary Confession ❖ S v January; Prokureur-Generaal, Natal v Khumalo The primary reason for excluding evidence of involuntary confessions and admissions was one of policy because in a civilized society it is vital that persons in custody or charged with offences should be subjected to ill treatment or improper pressure in order to extract confessions. ❖ Section 35(1)(c) of the Constitution An arrested person shall have the right not to be compelled to make a confession or admission that could be used in evidence against him. ❖ Section 35(1)(j) of the Constitution Makes the privilege against self-incrimination an essential component of a fair trial. ❖ Object Test There is an objective test regarding incriminating statements intended to be Exculpatory (which means to clear someone of fault or blame). The test is not whether the accused intends to admit that he is guilty, but whether he intends to admit facts which make him guilty, whether he realizes it or not. Admissibility Requirements of a Confession ❖ Section 217(1) CPA The General Rule ▪ The prosecution must establish that the confession was made: 1) Freely and voluntarily by the accused Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, they may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction.  3 Pass and Prosper 2) While in sound and sober senses; and 3)Without being unduly influenced thereto be admissible in evidence against such person in criminal proceedings relating to such offence. ▪ The Prosecution bears the burden of proof that the statement was made freely and voluntarily in sound and sober senses and without undue influence. Freely and Voluntarily ▪ Common law defines a free and voluntary statement as being a statement which is not induced by a threat or promise emanating from a person in authority. ▪ The third requirement supersedes the first, meaning that more weight is given to undue influence in the analysis. ▪ This is the case because even if a statement is found to have been made voluntarily, it will be excluded if it was induced by undue influence. Sound and Sober Senses ▪ Before a confession will be admitted into evidence it must be proved that the accused understood / appreciated what they were saying. ▪ In practice, if the accused was intoxicated, extremely angry or in great pain this not itself lead to the conclusion that the requirement has not been met, unless it is established that the accused did not understand / appreciate what they were saying. ❖ Rex v Kuzwayo Undue influence will be present where some external factor operates so as to extinguish the accused’s freedom of will. The undue influence need not emanate from a person in authority as stated in point No. 5. Example: Violence or threat of assault and a promise of some benefit. A self-induced expectation of some benefit is not undue influence. Test for Undue Influence ❖ The Subjective Inquiry It requires the undue influence to have been operative on the accused’s mind when he made the statement. ❖ S v Yawa The accused had pointed-out certain places and had made exculpatory statements accompanying the Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, they may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction.  4 Pass and Prosper pointing-out. The court held that section 217(1) of the CPA had to be met before the pointing-out could be admitted into evidence. Once it was accepted that the accused’s decision to participate in the pointing-out was affected by his lack of appreciation that he was entitled to legal representation, it follows that such lack of appreciation had an influence on the decision of the accused regarding the pointing- out. ❖ The Objective Test The court took care to stress that the failure to advise the accused of his right to legal representation (at the time of arrest or any time before pointing-out) amounts to undue influence when considered together with all the circumstances of the case. Thus, the test is simply whether or not the accused was advised of their right to legal representation in accordance with their Section 35 rights and it is an objective test of fact. ❖ The Subjective Test Whether the absence of legal representation amounts to undue influence is a subjective test. ❖ Considering Juveniles SvM ▪ In S v M the court held that the failure to afford a young person the assistance of a parent or guardian where this is reasonably possible before taking a confession from such a young person, could lead to the conclusion that the confession was not made freely and voluntarily, or without undue influence. S v Kondile ▪ In S v Kondile en Andere the court held that confessions made by two juveniles were inadmissible. Although the accused had been advised of their right to legal representation and their right to remain silent, they were NOT given the opportunity of being assisted by their parents or guardians. ▪ Thus, it was highly probable that the absence of their parents influenced the accused in their decision to make confessions and pointing-out. The Trial Within a Overview Trial ❖ General The admissibility of a confession in terms of section 217(1) CPA is determined at a trial within a trial where an Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, they may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction.  5 Pass and Prosper accused may not be cross-examined as to whether the confession is true or not but rather to test the accused’s credibility. ❖ Exception The accused may be cross-examined where the accused alleges the confession is false and the true authors are the police. Read with section 1 of the CPA with regard to the definition officer which includes a police official ▪ Peace Officers Definition (exhaustive) Any magistrate, justice, political official, correctional official as defined in section 1 of the Correctional Services Act, and, in relation to any area, offence, class of offence or power referred to in a notice issued under sections 334(1) any person who is a peace officer under that section. n ❖ The Rationale (Why) The rationale is rooted in a rule of policy that self- incriminating statements should not be coerced (section 35 of the Constitution) and that the accused persons be in a position to challenge the voluntariness of their statements without running the risk of further incriminating themselves. The court will not consider the contents of a confession before determining its admissibility in terms of section 217(1) of the CPA. ❖ Overruling the Decision If during the course of the trial evidence comes to light which causes the court to question its ruling regarding admissibility, in the trial within a trial, it is entitled to overrule its decision. The court cannot provisionally admit a confession on the basis that evidence may emerge later justify the admission. Inadmissible Overview Confessions ❖ General Rule becoming Where it does not meet the requirements a confession is Subsequently inadmissible. Admissible ❖ Section 217(1) of the CPA A confession excluded by section 217(1) is unconditionally inadmissible and cannot become admissible by: ▪ Waiver; or Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, they may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction.  6 Pass and Prosper ▪ Consent by accused. ❖ Exceptions Confessions which are inadmissible in evidence against the person who made it (as per your application in section 217(1)), shall become admissible against him if: ▪ Section 217(3)(a) He adduces in the relevant proceedings any evidence, either directly or in cross-examining any witness, of any oral or written statement made by him either as part of or in connection with such confession. ▪ Section 217(3)(b) If such evidence is, in the opinion of the judge or judicial officer presiding such proceedings, favorable to such person. ▪ S v Nieuwoudt Held that the words ‘in connection with’ indicated that the provision is not limited to cases where the accused elicits the favorable part of the confession. It was further qualified by this court in stating that everything said during the same conversation is not necessarily ‘in connection with’ the confession in question. ▪ R v Mzhimsha If the defense elicits a portion of the verbal conversation or transaction which is favorable to the accused person it does so at the risk of the unfavorable portion also becoming admissible, but either the favorable statements must be a natural part of the confession tendered or the two matters, the favorable statement and the confession, must be parts of substantially the same transaction. It would be competent to admit the evidence if the alleged confession took place at a later stage of the same conversation or transaction in which the favorable statement was made. Although then not a part of the confession there is an intimate connection in point of time in that both from part of the same transaction Facts Discovered as a Direct Result of Inadmissible Confessions or Admissions ❖ Section 218(2) of the CPA Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, they may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction.  7 Pass and Prosper Evidence may be admitted at criminal proceedings, and includes anything that was pointed-out by an accused appearing at such proceedings or that any fact or thing was discovered in consequence of information given by such accused even thought such pointing-out or information forms part of a confession or statement which by law is not admissible [in terms of section 217(1)] in evidence against such accused at such proceedings. ❖ S v Nkwanyana A pointing-out is defined as “an overt act whereby the accused indicates physically to the inquisitor the presence or location of something or some place actually visible to the inquisitor.” S v Tsotsobe ▪ Evidence of pointing-out is defined as an “overt act whereby it is admitted on the basis that it shows that the accused has knowledge of the place or thing pointed out, or of some fact connected with it, from which knowledge it may be possible, depending on the facts of the case concerned, to draw an inference pointing to an accused’s guilt. ❖ Admissibility Evidence of a pointing-out will be admissible even if no concrete facts are discovered as a result of the pointing- out. It is only necessary to show that the accused knew of a fact relevant to his guilt. ❖ S v Witbooi The court noted that the police knew the details of the crime prior to making the pointing-out and did not require the pointing out to be made for investigative purposes. Here, section 218 CPA pointing-out procedures had been improperly used as the sole purpose had been to incriminate the accused and not to obtain evidence of something pointed out by the accused OR discovered as a consequence of information given by the accused. Factors that Guide the Court (Admissibility) ❖ General Rule There are factors that will guide the court in determining the admissibility of evidence obtained as a consequence of a pointing-out. Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, they may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction.  8 Pass and Prosper A confession will not be admitted in the guise of pointing- out. ❖ Undesirable Practices There are undesirable practices regarding pointing-out that will not necessarily render the evidence of pointing- out inadmissible. These include: ▪ A member of the investigating unit being involved in the pointing-out. ▪ The involvement of any person in conducting the pointing out who has prior knowledge of the relevant places and objects; and ▪ Using an interpreter during the course of the pointing- out who is attached to the investigating unit. ❖ Freely and Voluntarily The court will determine whether the accused acted freely and voluntarily in pointing-out with or without an undesirable practice present during pointing-out. The State must prove that it was made freely and voluntarily, in sound and sober senses and without undue influence. S v Yawa ▪ Held that the admissibility requirements in terms of section 217(1) of the CPA is a prerequisite for admission of the pointing-out in evidence. S v Zimmerie ▪ The court held that an explanation and demonstration by the accused of how they had broken ❖ Separability of Pointing-Out and Confession The court held that an explanation and demonstration by the accused of how they had broken open a window and entered into a premises was not a pointing-out but an inadmissible confession. i.e. the confession did not meet the requirements set out in section 217(1) of the CPA. ❖ Section 218(1) of the CPA Evidence of facts will be admissible notwithstanding that: ▪ The witness discovered or obtained knowledge of the fact in consequence of an inadmissible confession. It also specifically provides that such fact will be admissible even though it came to the knowledge of the witness. ▪ Against the wish or will of the accused. Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, they may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction.  9 Pass and Prosper This section applies ONLY where the confession is found to be inadmissible on the grounds other than that it was made involuntarily or subject to undue influence which accords with Section 35 of the Constitution that persons should not be compelled to make a confession read with the privilege against self-incrimination. S v Ismail ▪ A confession may be made to a policeman that the accused had stolen a large sum of money but the accused may well decline to say where he had hidden it because he wished to lay his hands upon it after undergoing his punishment for stealing it. ▪ But if the policeman to whom he has made the confession, as a result of information contained in it, finds the sum of money, evidence that it was so found is admissible notwithstanding that the discovery was made against his wish or will. ▪ Here, the confession itself, even though made voluntarily, would be inadmissible because it was made to a policeman, unless it was reduced to writing before a Magistrate. Confessions Made Overview to Peace Officers ❖ General Rule (NB) The circumstances in which a confession was reduced to writing will remain a factor to be taken into consideration in determining whether a confession is admissible in that it was made freely and voluntarily, in sound and sober senses and without undue influence. ❖ Section 1 of the CPA The definition is exhaustive and the onus rests on the accused to show that the person to whom he made the confession is a peace officer. ❖ Requirements The confession must be addressed to the peace officer; and It will not be said to have been made to a peace officer if the confession is merely made in the presence of the peace officer; or If the peace officer is used solely as an interpreter. ❖ Role of Magistrate/Justice To ensure that the person who wishes to make the statement is in sound and sober senses and is making the statement voluntarily and without undue influence. This should not be an interrogation. Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, they may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction.  10 Pass and Prosper It is admissible on mere production. ❖ Confirmation and Reduced To Writing Once a confession made to a peace officer is confirmed and reduced to writing in the presence of a magistrate or justice of the peace, it is treated as if it were a new confession. Exception: ▪ Confessions made to peace officers who are also Magistrates/Justices need not be reduced to writing and will be admissible if they are made freely and voluntarily, in sound and sober senses, and without undue influence. Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, they may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction.  11 Pass and Prosper THEME 5 – Unconstitutionally obtained Evidence When is Evidence Overview Obtained ❖ Section 35(5) of the Constitution (NB!) Unconstitutionally 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 trail unfair; or Otherwise be detrimental to the administration of justice. Courts have the duty to exclude if the admission would have one of the consequences identified in this section. ❖ Discretion of the Courts In determining whether the admission would have on of the two identified consequences, a court is required to make a value judgement taking into consideration: ▪ All the facts of the case. ▪ Fair trial principles; and ▪ Considerations of Public Policy. ❖ Exclusion of Such Evidence The evidence is excluded despite it being: ▪ Relevant; and ▪ Otherwise admissible ❖ Due Process ▪ The primary function of the criminal justice system is not merely to secure the conviction of an accused but to ensure that a conviction takes place in terms of a procedure which duly and properly acknowledges the rights of an accused at every critical stage during the pre-trail, trial and post-trial proceedings. ❖ Fairness of a Trial An unfair trial is always detrimental to the administration of justice. The reverse is not always true. ▪ Just because a trial is detrimental to administration of justice does not make it unfair. ❖ S v Lenting General ▪ State seeks to utilize testimony of two accused at bail hearing against them in trial. ▪ The Accused contended that the bail court failed to warn them before they could testify that such evidence could become admissible in any subsequent proceedings (the right against self- incrimination at trial was implicated). Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, they may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction.  12 Pass and Prosper Para 13 ▪ Section 35(3)(j) of the Constitution provides that ‘every accused person has a right to a fair trial, which includes the right not to be compelled to give self- incriminating evidence. ▪ The right of the accused persona against self- incrimination is intrinsic and fundamental in our criminal justice system. Para 14 ▪ The Constitutional Court place a high premium on this right. In Ferreira v Levin NO; Vryenhoek v Powel NO 1996 at para 159, the Court adopted the view that the right against self-incrimination applies only to accused persons. ▪ Writing for the majority, Chaskalson P observed that the rule against self-incrimination is not a mere rule of evidence but a constitutional right which is inextricably linked to the right of an accused person to a fair trial, and it existed to protect the right to a fair trial. ▪ In my view, abrogating this right in a criminal trial must only be countenanced if it will not render the trial unfair. Para 16 – The legal effect ▪ Section 60(11B)(c) of the CPA authorizes the use of such evidence by the trial court to determine the guilt of the accused. Para 23 ▪ The judge said, “In my view, even in instance where the bail court timeously warned an accused person that his evidence could be used against him at a subsequent trial, such evidence is not automatically admissible against the accused during the subsequent trial proceedings. ▪ S v Basson A trial court may exclude otherwise admissible evidence on the basis that it may render the trial unfair in order to protect an accused person’s right to a fair trial. Para 24 ▪ The critical question is whether the intended evidence that the State intends to adduce against an accused person passes the constitutional test in section 35(5) of the Constitution. Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, they may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction.  13 Pass and Prosper ▪ Namely, that 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 Be otherwise detrimental to the administration of justice. ▪ A court has the power, indeed a duty, to exclude evidence if the admission of the evidence would otherwise be detrimental to the administration of justice. Is the Evidence Admissible? ❖ The Doctrine of Legal Guilt A person is not to be guilty of a crime merely only showing that in all probability, based upon reliable evidence, he did factually what he is said to have done. Instead the accused is to be held guilty if and only if these factual determinations are made in a procedurally regular fashion and by authorities acting within competencies duly allocated to them. ❖ The Deterrent Function Elkins v US ▪ To compel respect for constitutional guaranty is the only effective way by removing the incentive to discard it. ▪ South African courts have endorsed the deterrent function of the courts in a number of cases. ❖ Judicial Integrity Central to the role of the Judiciary is the protection of the integrity of the criminal justice system and the promotion of proper and acceptable police investigation techniques. ❖ Self-Correction The exclusionary rule is not primarily aimed at discouraging unconstitutional official conduct. Its true purpose is to serve as an effective internal tool for maintaining and protecting the value system as a whole. ❖ Primary and Secondary Rules It can also be argued that the exclusionary rule merely reinforces existing rules regulating police powers. Van Rooyen points this out as follows: ▪ The exclusionary rule is often criticized because it leads to a situation where not all the relevant and credible evidence is admitted at the accused’s trial. Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, they may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction.  14 Pass and Prosper ▪ The primary rules are those rules that at the pre-trial phase govern the powers of the police to obtain evidence. ▪ The secondary rules would therefore be the policy decision to excluded evidence that is obtained unconstitutionally. ▪ The police can either follow the primary rule, which is a calculated risk to ensure they don’t abuse their power but which may lead to them losing out on certain evidence, or they can ignore the primary rules and then the secondary rule will exclude the evidence that they obtained, punishing them for the abuse of their power. ▪ S v Naidoo and Another Is an example where the primary rules were not followed and this lead to the exclusion of evidence. The Right to a Fair Trial ❖ General The admissibility of a confession elicited by cross- examination was determined by reference to the right to a fair trail in S v Xaba. ❖ S v Xaba 1997 (1) SACR 194 (W) Fair Trial ▪ The prosecution in consultation with a state witness, on Sergeant Khanye, became aware that the accused made a confession. The confession was not reflected in Sergeant Khanye’s written statement. ▪ It was disclosed to defense counsel that such confession had been made. Defense counsel unwittingly elicited the contents of the confession in cross-examination of Sergeant Khanye. ▪ Here, the court was referred to the right to a fair trial, the right to access to information and the right to adduce and challenge evidence. Judgement by Labe J ▪ Albeit in good faith, the prosecution had erred in not informing defense counsel about the confession. ▪ If this had been done, he would have had the benefit of further consultation with his client as well as Sergeant Khanye and he may well have not asked the fatal question. Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, they may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction.  15 Pass and Prosper Consequently, the right to a fair trail demanded that ▪ the question and answer revealing the confession be struck from the record. ❖ Shabalala v Attorney General Judgment Para 2 ▪ An accused person has a right to consult a State witness without prior permission of the prosecuting authority in circumstances where his or her right to a fair trial would be impaired, if, on the special facts of a particular case, the accused cannot properly obtain a fair trail without such consultation. Para 3 ▪ The accused or his or her legal representative should in such circumstances approach the Attorney- General or an official authorized by the Attorney- General for consent to hold such consultation. If such consent is granted the Attorney-General or such official shall be entitled to be present at such consultation and to record what transpires during the consultation. If the consent of the Attorney-General is refused the accused shall be entitled to approach the Court for such permission to consult the relevant witness. Para 4 ▪ The right referred to in paragraph 2 does not entitle an accused person to compel such consultation with a State witness: (a) If such State witness declines to be so consulted; or (b) If it is established on behalf of the State that it has reasonable grounds to believe such consultation might lead to intimidation of the witness or a tampering with his or her evidence or that it might lead to the disclosure of state secrets or the identity of informers or that it might otherwise prejudice the proper ends of justice. Para 5 ▪ Even in the circumstances referred to in paragraph 4(b), the Court may, in the circumstances of a particular case, exercise a discretion to permit such consultation in the interest of justice subject to suitable safeguards. Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, they may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction.  16 Pass and Prosper Section 35 of the Constitution and Admissibility ❖ General Section 35(5) of the Constitution is not applicable to civil proceedings. ❖ Threshold Test for Section 35(5) of the Constitution Is the objection to the admission of evidence based upon the violation of a constitutional right or a non- constitutional right? ▪ If it is in violation of a constitutional right then the threshold is met. ❖ Fair Trial The question is whether admission would infringe the accused’s constitutional right to a fair trial. Fairness is determined on an ad hoc basis and the trial court is best placed to decide the admissibility of the evidence. Fairness may require admission/exclusion of unconstitutionally obtained evidence. Note that unfairness to prosecution cannot justify admission of the evidence in this scenario. ❖ S v Dzukuda and Others; S v Tshilo The right to a fair trial is a comprehensive and integrated right, the content of which will be established on an ad hoc basis as our constitutional jurisprudence on section 35(5) develops. ❖ The Two Pillars of the Exclusionary Rule The exclusionary rule set out in s35(5) of the Constitution is based on two pillars, being the trial fairness inquiry and the administration of justice. If the admission of unconstitutionally obtained evidence will NOT have an impact on the fairness of the trial (1st pillar), the evidence must nonetheless be excluded if the court is satisfied that the admission therefore would bring the administration of justice (2nd pillar) into disrepute. It is therefore important to determine whether it shall be in the interest of justice to admit such evidence in the light of the public opinion and interest. This is achieved by taking the following factors into account: ▪ The presence or absence of good faith and reasonable police conduct during investigations. ▪ Urgency and public safety. ▪ The need for discipline. ❖ S v Tandwa & Others Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, they may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction.  17 Pass and Prosper In terms of trial fairness this case consolidates relevant factors for purposes of determining trial fairness as follows: ▪ The severity of the rights violation. ▪ The degree of prejudice weighed against public policy. The case finds that rights violations are not severe, and the resulting trial is not unfair, if the police conduct was objectively reasonable and neither deliberate nor flagrant. There is a high degree of prejudice when there is a close causal connection between rights violation and subsequent self-incriminating acts of the accused. Self Assessment Question (NB To Study) ❖ Question The fairness of trial proceeding is founded on several principles. Explain, with reference to case law, whether admissions made by the accused (i) will render the trail unfair; and (ii) which factors should be taken into account to determine trial fairness. ❖ Admissions by the Accused S v Dzukuda and Others; S v Tshilo ▪ The right to a fair trial is a comprehensive and integrated right, the content of which will be established on an ad hoc basis as our constitutional jurisprudence on section 35(5) develops. ▪ There is no exhaustive list of factors that the court can or should take into account. ▪ Elements of this right are specified in paragraphs a-o of subsection 35(3) of the Constitution. ❖ Relevant Factors for Determining Fairness S v Tandwa & Others The severity of the rights violation. The degree of prejudice weighed against public policy. ▪ Rights violations are severe if police conduct was deliberate in nature. ▪ The case finds that rights violations are not severe, and the resulting trial is not unfair, if the police conduct was objectively reasonable and neither deliberate nor flagrant. Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, they may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction.  18 Pass and Prosper ▪ There is a high degree of prejudice when there is a close causal connection between rights violation and subsequent self-incriminating acts of the accused. Interpretation of 35(5) ❖ S v Dzukuda and Others; S v Tshilo The right to a fair trial is a comprehensive and integrated right, the content of which will be established on an ad hoc basis as our constitutional jurisprudence on section 35(5) develops. ❖ Factors regarding Fair Trial Nature & extent of the constitutional breach. The presence or absence of prejudice to the accused. The need to ensure that exclusion of evidence does not tilt ‘the balance too far in favour of due process against crime control.’ The interests of society and public policy. This is not an exhaustive list. ❖ S v Tandwa & Others The relevant factors for purpose of determining trial fairness include: ▪ The severity of the rights violation. ▪ The degree of prejudice weighed against public policy. Rights violations are severe if police conduct was deliberate in nature. The case finds that rights violations are not severe, and the resulting trial is not unfair, if the police conduct was objectively reasonable and neither deliberate nor flagrant. There is a high degree of prejudice when there is a close causal connection between rights violation and subsequent self-incriminating acts of the accused. ❖ S v Maphala Principle ▪ A right can only validly be waived if the person who abandons the right knows and understands what they are abandoning. Facts ▪ Both accused were upon their arrest properly informed of their constitutional rights. An attorney retained by a third party telephoned the investigating officer at 10h30. The attorney requested the investigating officer to make no arrangements for Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, they may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction.  19 Pass and Prosper either accused to make statements or to do a pointing-out until such time as he had the opportunity to consult with both of them. ▪ The investigating offer informed the attorney that both accused wanted to make statements and that this would be arranged to take place at 14h00. However, by the time the attorney arrived, both the accused had already made statements somewhere between 12h00 and 12h45. Finding of the Court ▪ Here, there was no informed consent by the two accused and therefore no valid waiver of their pre-trial constitutional rights. ▪ The investigating officer should have informed both accused that an attorney, who had been retained to represent that, was on his way and wanted them to refrain from making statements prior to his having had the opportunity to consult with them. Identification Parades ▪ Suspects who may lawfully be required to participate in an identification parade are NOT required to make testimonial communications like a ‘statement or pointing’ out where the advice of the legal representative on the advisability of taking such a step may well be of crucial importance to an uninformed accused. ▪ The court admitted the evidence on the assumption that the accused had not expressly waived their right to the presence of an attorney at the parade and that the evidence was, in consequence, procured in breach of a constitutional right to have an attorney present. ▪ Admission of the identification evidence would not have resulted in one or both of the consequences identified in Section 35(5) as: (1) The police conduct in holding the parade in the absence of the accused’s legal representatives was not of such a nature that the accused’s disciplinary function had to be relied upon in excluding the impugned evidence; and (2) The presence of the legal representatives would not have made any difference to the outcome of the parade. Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, they may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction.  20 Pass and Prosper ▪ The police may not deliberately ignore the right of the accused to have his legal representative at the parade. The accused should be given a reasonable opportunity to arrange such presence and, where necessary, the police should at the request of the accused inform the legal representative of the proposed identification parade. Section 37(1)(b) ▪ An accused has no right to legal representation at a so-called ‘photo identification parade.’ The Administration of Justice ▪ If admission of the unconstitutionally obtained evidence would not render the trial unfair, such evidence must nevertheless still be excluded if the court is satisfied that admission would be detrimental to the administration of justice. ▪ So far as the administration of justice is concerned in this case, there must be a balance between, on the one hand, respect (particularly by law enforcement agencies) for the Bill of Rights and on the other hand, respect (particularly by the man on the street) for the judicial process. ▪ Overemphasis on the former would lead to acquittals on what would be perceived by the public as technicalities, whilst overemphasis on the latter would lead at best to a dilution of the Bill of Rights and at worst to its provisions being negated. ❖ Factors the Court Should Consider on Excluding Evidence Whether evidence is detrimental to the administration of justice will be decided with regard to the following factors: ▪ Prescence or absence of good faith (and reasonable) police conduct ▪ Public safety and urgency ▪ Nature and seriousness of the violation ▪ The availability of lawful means or methods of securing the evidence ▪ Real evidence ▪ Inevitable discovery or discovery on the basis of an independent source Extension of Analysis of S v Lenting Case ❖ Para 32 Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, they may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction.  21 Pass and Prosper I am not satisfied with how the bail court ADMONISHED [read with textbook p403 & S v. B judgment] the child offender (Accused 14). ▪ SvB In this case it was found that it was not necessary for there to be a formal, express inquiry into whether the child witness understsands the nature and purport of the oath/affirmation before admonishing the child. The presiding officer can make this finding simply by virtue of the youth of the child. A child of 9 can be assumed to not understand the oath. A child of 11 would require an investigation in order to determine whether they understand. A child of 14 could be assumed to understand. From the record, it is dubious whether the child offender was properly admonished as envisaged in section 162 read with section 164 of the CPA. At the hearing of this matter, the State advocate argued in the context of this matter that the rules in bail proceedings are relaxed and that sections 162 to 164 do not find application as the proceedings were not intended to prove the guilt of the child offender. Counsel further argued that the Court a quo was satisfied that the child offender understood the difference between the truth and falsehood and correctly admonished the child. Mr Klopper, on the other hand, submitted that the Court a quo did not properly comply with the competency test [s164 requirements & child must demonstrate to PO that they understand the difference between truth & lie] nor correctly admonished the child. Instead, it confused a criminal capacity test and the competency test. ❖ Para 33 Where a child witness in bail proceedings elects to give viva voce evidence and does not understand the nature and import of the oath/affirmation (a child may given evidence without taking the oath/affirmation provided that they are admonished to tell the truth) and the court is satisfied that the witness understands the difference between telling the truth and falsehood, the Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, they may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction.  22 Pass and Prosper child witness must be admonished properly in terms of section 164 of the CPA. ❖ Para 34 ▪ In conclusion, I am of the opinion that the bail court did not accord accused 14 with the fundamental protection envisaged in the Constitution and the Child Justice Act. The admission of the purported evidence he tendered during the bail proceedings, in my view, would render his trail unfair. ❖ Para 36 The State’s application for the admission of accused 14’s bail proceedings record is hereby dismissed. The Trial within the Trial (Procedural Requirements) ❖ Generally Must understand the procedural requirements when there is a dispute about the admissibility of evidence on the basis that it was unconstitutionally solicited. ❖ The Process Held that where the defence objects to the admissibility of evidence on the basis of Section 35(5) of the Constitution, this ensures that the accused can testify on the issue concerning the admissibility of the impugned evidence without exposing himself to cross- examination on guilt; and An accused is, for purposes of exercising his right to testify or not at the end of the State’s case in the main trial, entitled to know what evidence has been admitted as part of the State’s case against him. The court must decide in each case whether the challenge is directed at the weight or admissibility of evidence. Intermediaries in The Children’s Act and the CPA Criminal Cases ❖ Section 61(2) – Children’s Act Section 61(2) of the Children’s Act 38 of 2005 provides that a child witness or party in a case in the Children’s Court must be questioned through an intermediary in accordance with the provisions of Section 170A CPA if the court deems it to be in the best interests of the child. ❖ Section 170A(5) – CPA This section provides that no oath, affirmation or admonishment administered by an intermediary in terms of section 165 of the CPA shall be invalid and no evidence which has been presented through an Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, they may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction.  23 Pass and Prosper intermediary shall be inadmissible solely on the basis of the intermediary’s incompetence. I.e. The intermediary was not competent to be appointed in said position at the time when the oath, affirmation or admonishment was administered or evidence presented. ❖ Good Faith Where it is a good faith appointment, but at the time the intermediary was not qualified to be appointed as an intermediary, the court must make a finding on the validity of their administration and/or admissibility in terms of section 170(5)A CPA: ▪ Reasons why the intermediary was not qualified to be appointed as an intermediary; and ▪ Likelihood that the reason will affect the reliability of the evidence presented through that intermediary negatively; and ▪ The mental stress or suffering which the witness, in respect of whom that intermediary was appointed, will be exposed to if that evidence has to be presented again; and ‘ ▪ Whether real & substantial justice will be compromised if that evidence is admitted. The Constitutionality of Section 170A of the CPA ❖ Generally Deals with: ▪ The right to a public trial ▪ The right to challenge evidence as part of the right to a fair trial ❖ K v Regional Court Magistrate NO & Others The court held that the right to a public trial is not violated merely because the complainant gives evidence in a separate room. The court further found that there was no constitutionally guaranteed right to face-to-face cross-examination of the witness. ❖ The Redemption Test If the court finds that Section 170A of the CPA does infringe the right to cross-examine, the court must test if the offending legislation (being section 170A of the CPA) is redeemed through the limitations clause, namely section 36 of the Constitution. ❖ Threshold Test – Section 15 Section 15(a) Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, they may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction.  24 Pass and Prosper ▪ Whether the limitation of rights is in terms of a law of general application. ▪ Section 170A passes this threshold test – it is a law which applies to all those cases where it applies to all those cases where it appears to the court that a vulnerable witness might be subjected to undue psychological, mental or emotional stress, trauma or suffering if they are required to testify without an intermediary. Section 15(b) ▪ Additionally, the limitation will be permissible only to the extent that it is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. ❖ Section 170(7) of the CPA Original Provision ▪ The court shall provide reasons for refusing any application or request by the public prosecutor for the appointment of an intermediary in respect of child complainants below the age of 14 years, immediately upon refusal and such reasons shall be entered into the record of the proceedings. 2022 Amendment ▪ The court will be obliged to give reasons for refusal of an application for an intermediary, immediately upon such refusal, regardless of the age of the child, and the test for when an intermediary may be appointed has been expanded. ❖ S v Stefaans Facts ▪ The complainant was a 16-and-a-half year old at the time of the trial. The accused was charged with rape and the court had granted the State’s application to invoke section 170A of the CPA. Held ▪ The court held that the use of an intermediary might prejudice the right of the accused to a fair trial which means that: 18(a) – Cross-examination through an intermediary may be less effective than direct cross-examination of a witness. 18(b) – An accused prima facie has the right to confront his accuser and be confronted by them. Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, they may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction.  25 Pass and Prosper 18(c) – Human experience shows that it is easier to lie about someone behind is back then to do so to his face. Guidelines to avoid an unfair trial ▪ Where cases involve physical or mental trauma or insult to the witness, the provisions of the section are more likely to find application. ▪ Where the stress of testifying is undue, that is to say more than normal, the court will be more likely to accept testifying through an intermediary. ▪ The court may consider how well the accused and the complainant know each other. If they know each other well, the court will be less likely to allow testifying via an intermediary because their familiarity will reduce the stress. Whereas if they are unfamiliar with one another, the court may rule differently. ▪ If the application for an intermediary is unopposed it is more likely to be granted. ▪ An unrepresented accused should have their right to oppose this application explained to them properly. ▪ If the application is opposed then the judicial officer must request the necessary evidence to decide whether an intermediary is actually needed. ▪ If the section is invoked the judicial should be aware of the possible negative effects to cross-examination that it poses. Standard and What is Standard and Burden of Proof Burden of Proof ❖ Rex v Bloom There is a constitutional and Criminal Law presumption of innocence and the principle that the burden of proof rests on a party seeking to change the status quo cast on the State the burden of proving criminal liability. Thus the State will need to prove: ▪ The accused as the perpetrator ▪ The accused’s mens rea ▪ The commission of the act charged; and ▪ Its unlawfulness The State is further required to prove the absence of any defence raised by the accused. The State bears the onus of proving, where an alibi is raised, that it was the accused who committed the offence. ❖ Policy Considerations of ‘Beyond a Reasonable Doubt’ Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, they may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction.  26 Pass and Prosper The disunity of convicting an innocent person far exceeds the disunity of finding a guilty person to be not guilty. Better ten guilty persons go free than one innocent person be convicted. Onus and Burden of Proof ❖ Generally It refers to the obligation of a party to persuade the trier of facts by the end of the case of the truth of certain propositions. ❖ Evidentiary Burden An evidentiary burden refers to a party’s duty to adduce sufficient evidence for a presiding officer to call on the other party to respond and it also encompasses the duty to call upon a litigant to adduce evidence in order to combat a prima facie case made by his opponent. Entire Criminal Trial ❖ Burden of Proof It rests on the prosecution to prove the accused’s guilt beyond a reasonable doubt. ❖ Evidentiary Burden At the start of the trial, the prosecution must establish a prima facie case against the accused. Once the prosecution has established a prima facie case, the evidentiary burden will shift to the accused to adduce evidence in order to escape conviction. It depends because it is possible that even if the accused does not adduce evidence, they will not be convicted if the court is satisfied that the prosecution had not proved the guilt of the accused beyond a reasonable doubt. ❖ S v Alex Carriers Conviction beyond a reasonable doubt is what the State must achieve before it succeeds in making the wall of guilt fall on the accused. It is unnecessary for the accused to push any part of the wall over onto the side of the State. The accused has to do nothing more than to cause the court, when reaching its decision, to have a reasonable doubt concerning the guilt of the accused. Burden of Proof with Unconstitutionally Obtained Evidence ❖ Step 1 Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, they may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction.  27 Pass and Prosper Defence must allege – but not prove – that there has been an infringement of a constitutional right of the accused and that s35(5) calls for an exclusion. ❖ Step 2 In the course of the trial within a trial, the distinction between ‘purely factual matters [as opposed to] matters of judgment and value must be borne in mind. The accused must get the benefit of the doubt on factual matters which the State fails to prove beyond a reasonable doubt. ❖ Step 3 Once the necessary factual findings have been made and it is concluded that the evidence was indeed obtained in breach of constitutional rights, the court is required to exercise its discretion and make a value judgment on the question whether admission of the evidence would result in one of the consequences identified in s35(5). There can be no question of onus in respect of this decision nor should there be as a presumption in favour of or against the admission of the evidence. ❖ Application of the Shift Once the prosecution has established a prima facie case, the evidentiary burden will shift to the accused to adduce evidence in order to escape conviction. Entrapment ❖ Section 21(a) A TRAP is ‘a person who, with the view to securing the conviction of another, proposes certain criminal conduct to him, and himself [allegedly] takes part therein, thereby he creates the occasion for someone else to commit the offence. There is a risk that an otherwise innocent person might have been induced to commit the crime on account of the persuasive conduct of, or methods employed by, the trap. ❖ Section 21(b) Entrapment is a ‘proactive investigative technique’. At Common Law entrapment is no defence & rules of exclusion in respect of entrapment evidence do not apply. It may serve as a mitigating factor in imposing a sentence. ❖ Section 21(c) – It is excluded if… Section 252A of the CPA regulates the setting of traps and undercover operations. Section 252A(3)(a) Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, they may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction.  28 Pass and Prosper ▪ If a court in criminal proceedings finds that in the setting of a trap or the engaging in an undercover operation the conduct goes beyond providing an opportunity to commit an offence, the court may refuse to allow such evidence already rendered, to stand, if the evidence was obtained in an improper or unfair manner and the admission of such evidence would render the trial unfair or would otherwise be detrimental to the administration of justice. Section 252A(3)(b) ▪ The court when considering the admissibility of the offence shall weigh up the public interest against the personal interest of the accused. ❖ Section 21(d) – Exclusion s252A(6) states that the burden of proof to show, on a balance of probabilities, that the evidence is admissible, shall rest on the prosecution provided that the accused shall furnish the grounds on which the admissibility of the evidence is challenged. Provided further that if the accused is not represented the court shall raise the question of the admissibility of the evidence. The Trial within a Trial ▪ On application of the accused or prosecution, or by order of the court, the question whether evidence should be EXCLUDED in terms of s252A(3)(a) may be adjudicated as a separate issue in dispute by having a trial within a trial. ❖ Section 21© Section 35(5) of the Constitution must prevail where the entrapment evidence was unconstitutionally obtained. The court must excluded evidence if it is satisfied that admission would result in one of the consequences identified in Section 35(5). ❖ Section 21(f) There is a non-exhaustive list of factors that may be taken into account in determining whether the admission of evidence will be detrimental to the administration of justice. S v Singh and Others ▪ These factors include: The bona fides of the investigation. The nature and seriousness of the violation of the accused’s rights. Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, they may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction.  29 Pass and Prosper Considerations of urgency and public safety. The availability of alternative lawful means of obtaining the evidence in question. The deterrent function of the courts in excluding improperly obtained evidence. The nature of the evidence. The fact that the evidence would inevitably have been discovered even if improper means had not been employed. A Case Law Analysis (NB for Understanding and to Study) ❖ Andrew Barney August v The State Facts ▪ More than 17 years ago, on 20 September 2006, Andrew Barney August (the appellant) was convicted in the Magistrates’ Court, Kimberley, on a charge of dealing in drugs... On 4 October 2006, he was sentenced to a term of four years’ imprisonment. ▪ The conviction was founded entirely on incriminating evidence obtained by the police through entrapment. ▪ Trap, the appellant sold the drugs in question to an undercover agent. At this far removed in time from the dates mentioned, and notwithstanding that he has long since completed serving his term of imprisonment, the appellant is seeking leave to appeal against his conviction. ▪ His intended appeal in the principal case is premised on the contention that the evidence against him obtained by the trap should have been excluded. The Law ▪ Entrapment is regulated in terms of Section 252A of the CPA. ▪ The import of s 252A of the CPA was considered in depth by this Court in S v Kotzè. ▪ Our law does not recognise a defence of entrapment but, through the mechanisms of s 252A, it seeks to address the well-documented concerns about the unfairness that can arise from the misuse of trapping by law enforcement officers. Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, they may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction.  30 Pass and Prosper ▪ The provision does this by way of what Wallis AJA termed ‘an exclusionary rule of evidence’ S v Kotze ▪ The position that obtains in terms of Section 252A of the CPA is succinctly summarised in this case as explained below. ▪ Para 23 The section lays down two approaches to the admissibility of evidence obtained as a