Unit 5 - Unlawfully obtained evidence

Question 1

Discuss section 35(5) of the Constitution.

Answer 1

This section requires the exclusion of evidence obtained unconstitutionally if admitting it would either render the trial unfair or be detrimental to the administration of justice.

Question 2

Discuss the discretion of the court.

Answer 2

• The court has the discretion to exclude evidence if it violates the accused’s constitutional rights.
• In making this decision, the court must balance: the facts of the case; fair trial principles; and public policy considerations.

Question 3

What are the factors for determining trial fairness ?

Answer 3

• The severity of the rights violation.
• The degree of prejudice.
• Public policy considerations.

Tandwa case.

Question 4

What is the purpose of the exclusionary rule regarding unconstitutionally obtained evidence ?

Answer 4

• The exclusionary rule is designed to protect the integrity of the criminal justice system by excluding evidence obtained through unconstitutional methods.
• Not just to deter police misconduct but also to uphold the judicial integrity of the legal system.

Question 5

Discuss the right against self-incrimination.

Answer 5

• Section 35(3)(j) of the South African Constitution guarantees that every accused person has the right not to be compelled to give self-incriminating evidence.
• The right against self-incrimination is not limited to the trial itself but also extends to pre-trial stages (e.g., bail hearings).
• The failure to properly warn the accused at the time of providing testimony that it could later be used against them violates their constitutional right to a fair trial.

Lenting case.

Question 6

Discuss the doctrine of legal guilt.

Answer 6

Legal guilt is not solely based on factual guilt (what the accused did), but on how the authorities have followed legal procedures to ensure that the accused is not prejudiced and that their rights are respected throughout the process.

Question 7

Which factors need to be considered for exluding
evidence ?

Answer 7

• Good faith and reasonable police conduct.
• Public safety and urgency.
• Availability of lawful means.
• Inevitable discovery.

Question 8

Discuss children’s rights in criminal trials.

Answer 8

Section 170A of the Criminal Procedure Act allows a court to use an intermediary for vulnerable witnesses (e.g., children) to avoid trauma or stress caused by direct confrontation in court.

Question 9

What are the section 170A guidelines ?

Answer 9

• The court must consider whether the emotional or mental strain of testifying without an intermediary would be undue.
• If the child is emotionally distressed, the court may allow the use of an intermediary.
• The court must ensure that the accused’s right to a fair trial is not infringed by the use of an intermediary, especially concerning cross-examination.

Question 10

Discuss intermediary competence.

Answer 10

• Section 170A(5) of the Criminal Procedure Act outlines that an intermediary’s incompetence does not automatically invalidate the evidence presented through them, provided the appointment was made in good faith.
• However, the court must assess whether the lack of competence affects the reliability of the evidence and whether re-examining the evidence would cause undue stress to the witness.

Question 11

Can the accused be cross-examined about the substance of the case ?

Answer 11

Under Section 35(5), the accused can testify about the circumstances of how evidence was obtained without being cross-examined on the substance of the criminal case.

Question 12

Discuss the burden of proof.

Answer 12

• There is a fundamental constitutional and common law presumption that an accused person is innocent until proven guilty.
• The State bears the burden of proof.

Question 13

What does the State need to prove ?

Answer 13

• Identify the accused as the perpetrator of the offense.
• The accused state of mind at the time of the offense.
• The act and its wrongfulness.
• Absence of defences raised by the accused.

Rex case.

Question 14

What are the policy considerations in terms of the standard of proof ?

Answer 14

• It is better for ten guilty people to go free than for one innocent person to be convicted.
• The principle prioritizes the risk of convicting the innocent over the potential harm of letting a guilty person go free.

Question 15

Discuss the evidentiary burden.

Answer 15

• Evidentiary burden refers to the obligation of a party to introduce enough evidence to make a case.
• Initially, the prosecution must present a prima facie case (a case sufficient to convict without rebuttal), at which point the evidentiary burden may shift to the accused to present evidence (e.g., an alibi) to escape conviction.

Question 16

Discuss entrapment.

Answer 16

• This is when law enforcement actively involves a person in criminal conduct that they would not otherwise have committed.
• Section 252A of the Criminal Procedure Act states that if the undercover agent’s conduct goes beyond just providing an opportunity for the accused to commit the crime, the court must consider whether the evidence obtained should be excluded based on fairness and justice.

Kotze case.

Question 17

Which factors will the court consider when determining whether to admit evidence obtained through entrapment ?

Answer 17

• The seriousness of the violation of rights.
• The public interest in law enforcement.
• The potential deterrent effect of excluding evidence obtained unlawfully.
• Whether the evidence would inevitably have been discovered by lawful means.

Singh case.

Question 18

Discuss the Murphy case regarding unlawful search and seizure.

Answer 18

• Four search and seizure operations took place, each involving different circumstances.
• The case revolves around whether the searches were lawful under the Criminal Procedure Act and whether the evidence gathered during these operations should be admissible in court.
• In the first and third search drugs and money were seized. Both were found to be lawful, and the evidence obtained was admissible in court.
• In the second search money was seized.
  This search was deemed unlawful, and the evidence was excluded because the police had failed to obtain a search warrant.
• In the fourth search drugs were seized.
  The search was initially found to be unlawful as it was conducted outside the scope of the warrant, however, the court ruled that the evidence obtained was admissible due to the “inevitable discovery rule”.

Question 19

What is the significance of the Murphy case ?

Answer 19

• Section 14 of the Constitution protects the right to privacy, including the protection of one’s person, home, property, and possessions from unlawful search and seizure.
• Section 36 of the Constitution allows for the limitation of rights, such as the right to privacy, under certain circumstances that are justified in a democratic society.
• Section 20-22 of the Criminal Procedure Act confers powers on the police to conduct searches and seizures, provided they comply with the prescribed procedures.
• Section 22 of the Criminal Procedure Act allows for warrantless searches in cases where there are reasonable grounds to believe a crime has been or will be committed, or when a delay in obtaining a warrant would frustrate the purpose of the search.

Question 20

Discuss the administration of justice and public policy.

Answer 20

• Public policy involves ensuring that the guilty are held accountable while maintaining the integrity of the justice system.
• Murphy considered several factors to determine if the admission of evidence would harm the administration of justice, including: the nature of the evidence; the severity of the constitutional violation; whether the evidence would have been obtained anyway; the availability of other investigatory techniques.