Unit 5 - Unconstitutionally obtained evidence

Question 1

Discuss section 35(5) of the Constitution.

Answer 1

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.

Question 2

Discuss the discretion of the court.

Answer 2

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.

Question 3

How do you determine trial fairness ?

Answer 3

According to the Tandwa case, the relevant factors for purpose of determining trial
fairness include the severity of the rights violation;
and the degree of prejudice weighed against public policy.

Question 4

Discuss the Andrew Barney August case.

Answer 4

• 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 section 252A, it seeks to address the well-documented concerns about the unfairness that can arise from the misuse of trapping by law enforcement officers.
• The provision does this by way of what Wallis AJA termed ‘an exclusionary rule of evidence’.

Question 5

Define ‘entrapment’.

Answer 5

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.

Question 6

Discuss section 252A(3)(a) of the Criminal Procedure Act.

Answer 6

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.

Question 7

Discuss section 252A(3)(b) of the Criminal Procedure Act.

Answer 7

The court when considering the admissibility of the
offence shall weigh up the public interest against
the personal interest of the accused.

Question 8

What is the 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 ?

Answer 8

• The bona fides of the investigation.
• The nature and seriousness of the violation of the accused’s rights.
• Considerations of urgency and public safety.
• The availability of alternative lawful means of
  obtaining the evidence in question.

Question 9

Discuss public policy.

Answer 9

• Public policy, in this context, is concerned not only to ensure that the guilty are held accountable.
• It is also concerned with the propriety of the
  conduct of investigating and prosecutorial agencies in securing evidence against criminal suspects.
• It involves considering the nature of the violation and the impact that evidence obtained as a result thereof will have, not only on a particular case, but also on the integrity of the administration of justice in the long term.
• Public policy therefore sets itself firmly against admitting evidence obtained in deliberate or flagrant violation of the Constitution.