Exclusion of relevant evidence: private privilege

Question 1

POD: Why can admissable evidence be excluded?

Answer 1

Because it is privileged

Question 2

Definition of privilege

Answer 2

Privilege exists when witness not obliged to answer question or supply info relevant to the issue or dispute before the court. Privilege is when the witness still has to enter the witness box but can claim privilege which includes:

1) The right to withold relevant info from court of law
2) Right to prevent someone from presenting relevant info befor a court of law

Question 3

Why is competence different from privilege?

Answer 3

incompetent witness does not have capacity to testify in court and cannot be forced to testify, privilege wont arise for that person

Question 4

What does non compellability imply?

Answer 4

It is a right to refuse to testify at all: an accused is a non compellable witness

Question 5

What is state privilege and is it the same as private privilege?

Answer 5

SP is information excluded because it is detrimental to the interest of the state and PP only protects individual interest

Question 6

Effect of non disclosure agreement?

Answer 6

Doesnt create a privilege, this is to protect info from the public not the court

Question 7

Privilege not protected by SA law

Answer 7

Doctors, psychologists, journalists and religious leaders

Question 8

Privilege against self incrimination and right to remain silent foundation

Answer 8

Recognised in s35(5) of the final constitution (prohibits person to be compelled to give evidence which would incriminate himself, this is also protected by the common law

Question 9

What is the rationale behind privilege against self incrimination and right to remain silent?

Answer 9

1) Presumption of innocence: Privilege against self incrimination is a natural consequence of presumption of innocence. Public revulsion that person be compelled to give evidence which might incriminate them, it encourages people to freely testify
2) Burden of proof upon the prosecution: role of the state to investigate, bring evidence and prosecute individuals
3) Adversarial process: ensures there is a full and independant investigation before being charged

Question 10

Privilege against self incrimination has 3 distinctions:

Answer 10

1) witnesses in criminal proceedings
2) rights of the accused afforded in CL and FC
3) Witnesses in civil proceedings

Question 11

What is the POD for witnesses in criminal cases?

Answer 11

s203 CPA: no witness in criminal proc shall be compelled to answer any question by reason that the answer might expose him to a criminal charge. Not applicable to civil cases.

Question 12

What is the position regarding privilege for juristic persons or corporations?

Answer 12

s8(4) of FC: extends application of BOR to juristic person not all the rights depends on nature of juristic person.
Lord Denning of the opinion that this privilege is not available to a corporation because it has no body to be kicked on and no soul to be damned

Question 13

Briefly describe s204 and its process

Answer 13

S204 CPA: encourages accomplices to testify as state witnesses against co offenders in exchange for an avenue of indemnity.
Indemnity Procedure :Co-accused is called as a witness, if he testifies that he took part in the crime and that he is willing to provide frank and honest answers to questions regarding those who participated in the crime, he may receive indemnity from the State i.e: If he accepts this indemnity  he has turned ‘state witness’

Question 14

Is s204 constitutional?

Answer 14

: S 204 is NOT unconstitutional. Is an important mechanism for the facilitation of justice, the state should be entitled to WD a charge against this witness – this person can become a crucial role player in the court in the capacity of a state witness . Also – should the state find that he or she did not fulfil his obligation and his answers were not frank and honest, state is entitled to refuse this offer of indemnity UNLESS – there is a charge of perjury. These provisions will still apply, where witness also accused.

Question 15

Warning function of s204

Answer 15

Witness must be warned about his right to remain silent, self incrimination and informed of right to consult with legal practitioner. Presiding officer must warn the witness, failure to do so will render the incriminating evidence inadmissable in prosecution against witness.
Logic is that you cannot exercise your right if you are not aware of it.

Question 16

Importance of S v Lwane

Answer 16

, in accordance with the established rule of practice in our courts, the duty of the presiding judicial official to inform a witness of his right to decline to answer an incriminating question. The effect of non-observance of that rule upon the admissibility in subsequent proceedings of an incriminating statement made by an unaware witness falls to be determined upon the particular facts of the case.
Important factors: The nature of the incriminating statement; The ascertained, or presumed, knowledge of his rights by the deponent. General rule of practice in terms of which a judicial officer has a duty to warn a witness in criminal proceedings that he is not obliged to give evidence which might have a tendency to expose him to a criminal charge. The duty arises whenever it appears that the witness might well be about to give such evidence, whether or not a specific question has been directed thereto. Non-observance of the aforesaid duty is an irregularity which ordinarily will render the incriminating evidence inadmissible in a prosecution against the witness.
Judgement: The court held that: the fact that appellant at the preparatory examination was not informed of his right against self-incrimination rendered his testimony at the earlier hearing inadmissible. He was not aware of this right and it was the duty of the State to inform him of his right to Privilege against self-incrimination

Question 17

Before the privilege against self incrimination will be upheld the court must be satisfied that…

Answer 17

Owing to the circumstances and nature of evidence, there is a reasonable belief that the witness will incriminate himself

Question 18

Accused privilege against self incrimination in criminal trials, what is the legal foundation for this?

Answer 18

Common law: accused’s privilege against self incrimination is regulated ito the common law & legislation applying to all witnesses, and it is contained in the constitution.
Section 35(3)(h) Constitution – every accused person has a right to a fair trial, which includes the right to be presumed innocent and the right to remain silent and be informed of the consequences of not remaining silent.
Section 35(3)(j) Constitution - …right not to be compelled to give self-incriminating evidence.
These two rights mutually enforce each other and work in tandem. These sections only apply to a right to a fair trial.
S35(5): right to fair trail including right to privilege against self-incrimination is also applicable before trial: arrest, bail proceedings and plea proceedings

Question 19

Pre trial proceedings: Must you advise a person of their s35 rights at every pre-trial stage?

Answer 19

S v Mathebula: The rationale for the requirement that an accused shall be entitled to legal representation at every important pre-trial stage is as follows: An accused is presumed innocent until proven guilty; there is no duty on the accused to assist the state in its task; An accused has the right to remain silent and need not contribute in any way to the process of supplying evidence which tends to prove his guilt in the form of self-incriminatory oral or written communication; Pre-trial he is entitled to increased protection against any self-incrimination induced by force
The presence of an accused’s legal representative at such pre-trial procedure constitutes a “checking mechanism”. An accused may not know under what circumstances the evidence under the pre-trial will constitute admissions or confessions. Legal representative will assist in advising the accused of the consequence of his co-operation in any pre-trial investigatory procedures

Question 20

Position of USA case Miranda v Arizona

Answer 20

: Must inform person that you have a right to remain silent and consequences if do not do so. These are safeguards enforced on the police in order to protect a person against self-incrimination. “You have the right to remain silent, anything you say may be held against you in a court of law…” Automatically excluded if not informed of rights. What if they are not informed of these rights and are questioned by police and present self-incriminating evidence – not admissible because the safeguards were not adhered to

Question 21

Legal representation in essence

Answer 21

The privilege against self incrimination requires a detained and accused person to be afforded legal rep at expense of state if substantial injustice would result.
Legal rep is necessary to uphold the privilege against self incrimination and protection of this right is necessary to ensure a fair trial

Question 22

Ascertainment of bodily features legal foundation

Answer 22

Section 37(1) of CPA: Fingerprint, palm prints, footprints…mark, characteristic or distinguishing feature. Body prints other than finger prints: Genitalia, butt, breasts, ear prints
Ito this section, the police are authorised to take these prints of any person who has been arrested or charged and can take steps to ascertain whether the body of the arrested person has any mark or distinguishing feature. 
Blood samples: police officers not empowered to take blood samples, only medical officers of a prison, district surgeon, if requested by police a registered medical practitioner and a nurse

Question 23

Is s37 in conflict with s35(1)(c) (no one shall be compelled to make an admission which can be used as evidence against him)?

Answer 23

S v Huma and Another: Taking of fingerprints did not violate this right because it was not a communicative act to take fingerprints. Fingerprints does not constitute testimonial evidence. The court relied on the US Supreme Court decision Schmerber v California: The majority held that privilege against self-incrimination relates only to testimonial or communicative acts & does not apply to non-communicative acts e.g. blood samples
S v Levack v Regional Magistrate: court followed Huma approach, compelling accused to submit voice sample did not violate right to remain silent or privilege against self incrimination.
MSS and Another v Gaqa: Confirmed that a respondent could be compelled to admit himself for bullet removal. The court held that sec 27 & sec 37 of the CPA sanctioned the violence necessary to remove the bullet. Although these procedures constituted a serious infringement of dignity & bodily integrity, they met the requirements of the limitation clause. Bullet being evidence&raquo_space; will not be an infringement to the right against self-incrimination
MSS and Another v Xaba: The former court was wrong and persons are free or should be free from all forms of bodily violence and should have control over their bodies. Rights ito sec 12 (freedom from violence in all forms) cannot be limited ito sec 36

Question 24

What is the approach for trial proceedings?

Answer 24

s35(f & g): right to be promptly informed of right to be legally represented at trial. Failing of presiding officer to advise unrepresented accused of right to legal representation will lead to infringement of fair trial rights and exclusion of evidence.
Sec 35(h): Right to a fair trial includes to be presumed innocent, to remain silent & not to testify during proceedings. Accused should not be penalized for exercising his right to remain silent at the trial. Court should not draw adverse inference from an accused decision not to testify

Question 25

Explanation of plea proceedings

Answer 25

Section 112 CPA – judge can question an accused that pleads guilty. In this instance it is said that the accused if being questioned by the judge may give certain evidence that may be considered self-incriminating. However it is submitted that if an accused presents self-incriminating info when being questioned by the judge, then that would be a justifiable limitation on the privilege against self-incrimination, because by pleading guilty the accused has waived the right of being presumed innocent. Should judge discover accused actually has defence, changes plea to not guilty, any subsequent self incriminatory statements made dear plea wont be admissible in trial.

Section 115(1) CPA – if accused pleads not guilty a judge may ask accused what the basis is of his defence, and if the accused then answers that he bases defence on the following, the judge may pose question to explain the defence, but in that case the accused must be informed of his right to remain silent.
(2) (a) Where the accused does not make a statement under subsection (1) or does so and it is not clear from the statement to what extent he denies or admits the issues raised by the plea, the court may question the accused in order to establish which allegations in the charge are in dispute

Question 26

What it the only professional privilege recognised in SA and its authority?

Answer 26

Legal Professional Privilege. S201 CPA: – No legal practitioner qualified to practice in any court is competent to give evidence in criminal proceedings against any person by whom he is employed. This legal professional privilege came to SA law on 30 May 1961

Question 27

Rationale for legal professional privilege

Answer 27

1) Legal cases and issues are complex therefore laypersons cannot represent themselves, they need trained professionals to assist them in solving their disputes.
2) Assists in the proper functioning of the legal system
3) Person approaching legal advisor must be comfortable to convey entire story to lawyer, so that the best advice can be given.

Question 28

Does breach of legal privilege right render the trial automatically unfair?

Answer 28

Bennet v MSS: Documents seized which fell under attorney-client privilege. Police who seized the documents were aware of the privilege. The warrant did not authorize them to seize the documents thus such a warrant would be unlawful. There was no evidence that any police officer read any of the privilege documents. No evidence that that the trial proceedings were irrevocably tainted
S v Safatsa: Counsel for the accused wished to cross-examine a state witness on an earlier statement made by that state witness to an attorney in the course of obtaining professional legal advice. It was common cause that the statement was covered by legal professional privilege. The state witness in question refused to waive the privilege. The accused argued that such cross-examination would assist their defence. Court decided legal professional privilege is a fundamental right derived from the requirements of procedural justice and not just an evidentiary rule

Question 29

What is the requirements for a client to successfully rely in this privilege?

Answer 29

1) Legal advisor must have acted in professional capacity
2) Communication made between client and attorney must be made in confidence
3) Communication made in confidence for the purpose of obtaining legal advice
4) Client must claim the privilege
5) Advice must not facilitate the commission of crime or fraud

Question 30

What is the scope of the privilege and position regarding 3rd parties?

Answer 30

S v Mushimba: legal professional privilege is extended to interpreters, articled clerks, secretaries and other employees in a law firm.
Privilege can only be claimed with regard to 3rd parties when: Communication was made for the purpose of being submitted to a legal adviser; Communication was made after litigation was contemplated.

Question 31

What is judicial peek?

Answer 31

Can be used if the court is uncertain whether certain documents are privileged or not. Go to the chambers and analyse the document to determine its status

Question 32

When should judicial peek be used?

Answer 32

President of RSA and Others v SA Rugby Football Union and Others (SARFU): Judicial peek should be used only when necessary, desirable, when there is doubt as to the claim of legal professional privilege. Should not be used as matter of cause, every time there is a claim
President of RSA v M & G Media: Held that courts should be cautious in exercising this peek because they adopt their business in open. Judicial peek done in private and they don’t have to give reasons. Could harm public trust. Court should ∴ be hesitant to become parties to secrecy

Question 33

How to avoid judicial peek?

Answer 33

A party claiming privilege should provide sufficient contextual justification for their claim to legal privilege. Court could also remove privileged part from a document while retaining the rest of the document. Conceptual separation because the court will still see the privileged part but it will not form part of the evidence. Problematic because now you must act like you did not see it : should be clear from the judgment that the judge did not use what he saw

Question 34

Legal professional privilege and access to information:

Answer 34

Jeeva and Others v Receiver of Revenue, Port Elizabeth, and Others: An application was brought ito a similar provision in the IC for an order that the receiver of revenue give the applicant access to certain information in its possession. Court ordered that all the requested information be disclosed except the information which was covered by legal professional privilege. Court held that legal professional privilege was a reasonable & justifiable limitation on the accused FC right of access to information

Question 35

Relaxation of privilege, what factors should be taken into account?

Answer 35

S v Safatsa, the court said the following should be taken into account:

(1) How the statement came to be in the possession of the defence? Because if it was obtained unlawfully or unconstitutionally it could be inadmissible on that basis.
(2) Nexus: Whether the legal advice sought related to the trial itself and if so, in what way?
(3) Content of statement” ‘judicial peep’ - can peep into the statement to see if defence relates to the accused.
(4) And ‘most importantly’: in what manner and with what prospect of success the cross-examination could avail the accused in countering the charges against them. The accused has a right to a fair trial which includes rights to adduce and present evidence, and sometimes the privilege could infringe on this right. Requires a balancing exercise due to policy reasons for having the privilege & accused’s right to fair trial. Court must attempt to strike a balance.

Question 36

Briefly explain refreshing memory in witness box

Answer 36

Privilege with regard to a witness statement falls away when refreshing memory of the witness in the witness-box o Does not fall way during adjournment or out of the witness box. If the court of opinion that the witness has no recollection of previous statement, a document must be produced. The privilege could fall away. Out of court does not have requirement of publication, because when refreshed in open court it is in the open domain and no longer privilege. One basis for distinguishing between refreshing memory in and out of the witness box is that waiver of the privilege cannot be implied unless there is some element of publication

Question 37

Relevance and applicability of s19 of the Legal Aid of SA Act (LASA)

Answer 37

manages legal representation to persons at the state’s expense. Where someone has made use of a private practitioner through legal aid, the practitioner when required by LASA, must grant access to statements and documents for quality insurance of the work done by the practitioner. Client may not refuse this. May not use this for anything except quality control purposes.

Sec 19(2) states that the documents remain privileged, against any other party as information falling within legal professional privilege having been made available to LASA

Question 38

Other professional privileges, what is the two recognised interests?

Answer 38

1) Society in preserving and promoting certain relationships

2) Administration of justice to prevail

Question 39

Previously recognised professional privileges and current position?

Answer 39

Bankers ( don’t have to produce records unless court order; Doctors (can be compelled by court to testify against patient, if you confess during mental examination those confessions not admissible. Only give recommendations to persons triability or mental state)
Priests: Smit v Van Niekerk: Accused murdered husband and disclosed this to her priest. He was compelled to testify in the court even after he refused

Rethea Bierman v State (CC): Murder case. CC dismissed that there was a privilege wrt to priests mostly based on procedural grounds. Referred to Smit v Van Niekerk and HC judgement where the court also dismissed this privilege&raquo_space; it’s not violation to right to fair trial rights and not in the interest of justice to exclude such evidence. If not for evidence of priests she would not have been convicted which was not true because there were other who testified against her

Journalists: Can be compelled to disclose the source of their information. If they can show a “just cause” for not testifying, can be protected in some form

Bosasa Operations v Basson: the court emphasized the important role of freedom of the press. Held that there was “no duty to disclose the names of sources where their identity was not relevant to the plaintiff’s case”

Question 40

Right to privacy s14 and marital privilege

Answer 40

Privilege between spouses, exclude statements made during the course of the marriage, would be unacceptable for spouses to testify against each other because it could destroy their marriage. Society deems this relationship as important ∴ recognized even though not a professional relationship MUST be made during the marriage

Question 41

What happens with marital privilege in case of divorce?

Answer 41

Should the couple divorce any statements made during the existence of the marriage is excluded then marital privilege applies and the husband can refuse to disclose the information or statements made by the wife

Question 42

Legal authority for marital privilege

Answer 42

Sec 199 CPA: States that a spouse is entitled to refuse any question which the other spouse could not have been compelled to answer. Should the spouse who received the communication, choose to disclose. There’s nothing the other spouse can do to prevent it, since marital privilege can only be claimed by the spouse to whom the communication is made
If someone overhears you committing to a murder to your spouse. You cannot compel a third party to disclose this because he is not a party to the marriage. Could invoke some right to privacy but that would not be a strong argument to exclude the evidence

Question 43

Position of parent child privilege

Answer 43

S192 CPA: Parents can be forced to testify against children, and children can be forced to testify against parent and guardians.
There is some conflict with this and other legislation: A child is entitled to parental assistance when charged, in terms of legislation. The parent might be privy to information that if devolved would negatively impact the parent child relationship and this could not be to the best interest of the child.
sec 73(3) CPA: does allow the parent to assist the child in the criminal trial; This role is similar to what a legal professional would be doing. Child has the right and is entitled to have a parent present when a child is criminally charged. Such a parent would go through the whole process with the child and certain information will be shared with the parent, the parent may be present when the child talks to the attorney. Yet no privilege attaches. Is this in the best interest of the child?
S v M: Court held that sec 73(1) & sec 73(2) of the CPA read together, conferred a right upon a child to be assisted by a parent/guardian as from the time of arrest, in the same way as an adult would be entitled to the assistance of a legal adviser. It was ∴ argued that parents should be afforded the same right of privilege as communications made between a legal adviser & client