CHP 16- UNCONSTITUTIONALLY OBTAINED EVIDENCE

 Court has a discretion to exclude relevant evidence, where

 Evidence obtained unfairly, illegally, unlawfully violates a right in the Constitution, thereby
rendering the evidence unconstitutionally obtained evidence

Criminal cases: the admissibility of unconstitutionally obtained evidence determined by s 35(5)

Constitution:
Evidence obtained in a manner that violates any right in the Bill of Rights must be excluded if
the admission of that evidence:
• (LEG 1) would render the trial unfair or
• (LEG 2) otherwise be detrimental to the administration of justice.

In civil cases: the admissibility of unconstitutionally obtained evidence is governed by the reliance
on the general obligation on courts to promote the spirit, objects and purport of the Bill of Rights

Also look at:

Canadian Charter of Rights and Freedoms, Part I of the Constitution, Act 1982.
 Classes of evidence to which illegally obtained evidence applies

(1) Where the accused is not informed of Constitutional rights before making a
self-incriminating statement:
 Right not to be compelled to make a confession/admission s 35(1)(c)
 To silence s35(1)(a); & (3)(h)
 To consult with legal practitioner s 35(2)(b)
 Right to be presumed innocent s 35(3)(h)
 Not to give self-incriminatory evidence s 35(3)(j)

 Evidence obtained by undue influence or torture always inadmissible

(2) Evidence obtained by illegal monitoring or interception of communications

 Right to self-incrimination likely to be infringed

 Statutory provisions infringed
 Problem with entrapment – effects right to privacy
(3) Evidence obtained as a result of an illegal search

• Concerned with real physical evidence

• Infringement of the right to privacy
• Usually does not involve a serious infringement of the right to a fair trial
• Nothing the accused could have done to prevent the discovery of this evidence - was the search
to be conducted legally
• The infringement to privacy must be substantial - would result in a fundamental infringement of
constitution or disrespect for the legal system

(4) Body sample evidence obtained from accused (exception)

• Admissible even where objected to by accused

• Blood, DNA, marks, scars, complexion, physical appearance, fingerprints, voice samples etc
may be forcibly taken from accused
 (5) Evidence obtained in violation of someone other than the accused’s rights

• Can an accused argue for exclusion where another person’s rights were violated in the obtaining of
the evidence?

S v Mthembu, 2008 (2) SACR 407 (SCA) - evidence against an accused had been illegally obtained,
through torture of a third party and had been used against the accused - at no point were the
accused’s rights directly violated.
 SCA - policy require the exclusion of improperly obtained evidence from any person, not only from
a particular accused.
 evidence unconstitutionally obtained from a third party may be excluded where the
circumstances of a particular case warrant it:
 Overview of the s 35(5) - exclusion of evidence

 a court makes a value judgment on the facts of a specific case.

 This includes fair trial principles and considerations of public policy.
 Usually requires a balancing of various factors

S v Mthembu, explains precisely what is meant by the term public policy in this context:

• Public policy is concerned with holding the guilty accountable;

• concerned with the reasonable conduct of investigating and prosecutorial agencies in
securing evidence against criminal suspects.
• considering the nature of any violation of this conduct
• the impact that evidence obtained by violating legal ethical due process not only on a particular
case, but also on the integrity of the administration of justice in the long term.
 First leg of the test in section 35(5): whether admission would
render a trial unfair
Degree of prejudice to accused weighed against the public policy interest in bringing
criminals to book

In determining whether admission of evidence deprives the accused of a constitutional right

to a fair trial the court has a discretion to take into account:
• nature and extent of the constitutional breach,
• presence or absence of prejudice to accused,
• interest of society,
• public policy.
 S v Tandwa and Others 2008 (1) SACR 613 (SCA):
The relevant factors for purposes of determining trial fairness would include:

• The severity of the right’s violation

• The degree of prejudice, weighed against the public policy interest in convicting criminals.

 Rights violations are severe when they stem from the deliberate illegal conduct of the police
There is a high degree of prejudice when there is close causal connection between the rights
violation and the subsequent self-incriminating acts of the accused

 Rights violations are not severe, and the resulting trial not unfair - where the police conduct
was objectively reasonable.

 S v Zuma and Others 1995 (1) SACR 568 (CC)

• right to a fair trial ‘embraces a concept of substantive fairness’
• up to the criminal courts ‘to give content’ to the basic fairness and justice that underlie a fair
trial.
 S v Van Deventer and Another 2012 (2) SACR 263 (WCC)

• In determining whether the trial is rendered unfair, courts must take into account competing social
interests.
• The court’s discretion must be exercised by weighing:
 concern of society to ensure proper & effective law enforcement - the guilty are brought to book
(against)
 the protection of entrenched human rights – protecting the procedural rights of accused.

• Although admitting evidence that renders the trial unfair will always be detrimental to the
administration of justice, there may be cases when the trial will not be rendered unfair, but admitting
the impugned evidence will nevertheless damage the administration of justice.
• Central in this enquiry is the public interest
 S v Soci 1998 (2) SACR 275 (E)
a court may examine the type of evidence unconstitutionally obtained when considering whether
a trial is rendered unfair:
• may draw a distinction between admissions & confessions - and real evidence.

 If real evidence is obtained in a manner that unjustifiably violated a constitutional right, it does
not mean that the evidence will be automatically excluded on the basis that it renders the trial
unfair.
 The court would still have to consider whether its admission would create unfairness in the trial
or not.
• The admission of an unconstitutionally obtained admission or confession will
automatically render a trial unfair
 S v Dzukuda and Others; S v Thilo (Con Crt) 2000 (2) SACR 443 (CC).
• the right to a fair trial is a comprehensive and integrated right
• the content thereof will be established on a case-by-case basis.
• An important aim of the right to a fair criminal trial is to ensure that innocent people are not
wrongly convicted, because of the adverse effects which a wrong conviction has on the
liberty, and dignity of the accused.

Other elements of the right to a fair trial:

• the presumption of innocence,
• the right to state sponsored legal representation in given circumstances
• a trial in public which is not unreasonably delayed,
R v Collins (1987) 1 SCR 265 (Canadian Crt)
Gives an overview of the factors that are relevant when considering the seriousness of a
particular violation:
• The relative seriousness of the constitutional violation has been assessed in the light of whether
 it was committed in good faith;
 or of a merely technical nature,
 or whether it was deliberate, willful or flagrant.
• whether the action which constituted the constitutional violation was motivated by urgency or
necessity to prevent the loss or destruction of the evidence
• the availability of other investigatory techniques
• A failure of the authorities to proceed properly when that option was open to them tends to
indicate a blatant disregard for the rights of an accused, which is a factor supporting the
exclusion of the evidence
 Key v Attorney-General, Cape Provincial Division and Another 1996 (2) SACR 113 (CC)
In any democratic criminal justice system there is a tension between:
• the public interest in bringing criminals to book and,
• the public interest in ensuring that justice is legitimately done
• What the Constitution demands is that the accused be given a fair trial.

 Ferreira v Levin:
• fairness is an issue which has to be decided upon the facts of each case, and the trial judge is the
person best placed to take that decision
• At times fairness might require that evidence unconstitutionally obtained be excluded.
• But there will also be times when fairness will require that evidence, albeit obtained
unconstitutionally, nevertheless be admitted.
 Second leg of the test in section 35(5): whether
admission would be detrimental to the administration
of justice

Where the admission of evidence would not render the trial unfair, it must nevertheless be excluded
if the court is satisfied that admission would be detrimental to the administration of justice.
 S v Mphala and Another 1998 (1) SACR 654 (W):

So far as the administration of justice is concerned, there must be a balance between:

 respect (particularly by law enforcement agencies) for the Bill of Rights and,
 respect (particularly by the man on the street) for the judicial process.
• Overemphasis of the former would lead to acquittals on what would be perceived by the public as
technicalities, whilst overemphasis of the latter would lead to a dilution of the Bill of Rights

A delicate balancing exercise is undertaken between:

 respect for individuals’ constitutional rights, by law enforcement officers and agencies,
 and the respect the man in the street holds for the judicial process.
• The essence of this test is to take into account public opinion.
 FACTORS TO BE CONSIDERED IN THE SECOND LEG

 Public policy:
 Good faith or bad faith by police:
 Considerations of urgency and public safety:
 The seriousness of the offence and public opinion as a factor favouring inclusion of
evidence
 The nature and seriousness of the violation:
 Considerations of urgency and public safety:
 Considerations of urgency and public safety:
 The deterrence factor;
 What will shock the public more’.
Public policy:
S v Makwanyane and Another, 1995 (3) SA 391 (CC):
• weighed up the constitutionally protected right to life against public opinion, which favoured the
death penalty.
• Stated that the courts must not follow public opinion blindly or rigidly.

S v Nombewu 1996 (2) SACR 396 (E):

• some value must be given to public opinion.

Good faith or bad faith by police:

S v Naidoo and Another 1998 (1) SACR 479 (N):
• evidence obtained by the police as a result of a deliberate and conscious bad faith violation of
constitutional rights of an accused person should be excluded save where there are extraordinary
excusing circumstances.
Considerations of urgency and public safety:
S v Gumede and Others 1998 (5) BCLR 530 (D).
• the test must not consider whether the manner of the procurement of the evidence is
detrimental to the administration of justice but rather whether the admission of the
unconstitutionally obtained evidence will be detrimental to the administration of justice.

R v Grant (2009) SCC 32 The Canadian Court have suggested various factors that should be
considered when deciding this issue.
• The main question is whether the ‘truth-seeking function of the criminal trial process would be
better served by admission of the evidence, or by its exclusion’.
• The court should consider the negative impact on the administration of justice if the evidence is
admitted as well as the impact of failing to admit the evidence.
The seriousness of the offence and public opinion as a factor favouring inclusion:
• the question of whether public opinion should have any influence on a court’s decision in this
regard & whether the high crime rate in South Africa should have any influence on a court’s
decision.
• Some South African courts have taken public opinion into account, while others have cautioned
against it .

S v Ngcobo 1998 JDR 0747 (N):

• particularly in the current state of endemic violent crime in all parts of our country it is unacceptable to
the public that such evidence be excluded.
• Indeed the reaction is one of shock, fury and outrage when a criminal is freed because of the
exclusion of such evidence.

But

S v Makwanyane and another

• in considering the constitutional validity of the death penalty, public opinion is ‘no substitute for the
duty vested in the Courts to interpret the Constitution and to uphold its provisions without fear or
favour’.
 S v Tandwa and Others
• In this country’s struggle to maintain law and order against the ferocious onslaught of violent crime
and corruption, what differentiates those committed to the administration of justice from those who
would subvert it is the commitment of the former to moral ends and moral means.
• We can win the struggle for a just order only through means that have moral authority.
• We forfeit that authority if we condone coercion & violence and other corrupt means in sustaining
order.
• S 35(5) is designed to protect individuals from police methods that offend basic principles of
human rights.
The nature and seriousness of the violation:
• Whether the infringement was an innocent mistakes or merely technical in nature
• Or a deliberate policy & abandonment of state responsibility in favour of vigilante action
• The use of torture or assault or psychological coercion
• Was the abuse of procedure by police flagrant or deliberate?
• What degree of prejudice caused to the accused

Considerations of urgency and public safety:

• Police must often make quick and urgent decisions to capture criminals
• When overstepping the mark there may be good reason to do so and have acted in good faith
• A belief that the urgent action was reasonable in the circumstance

Considerations of urgency and public safety:

• It is a blatant disregard of the constitution where police simple act in bad faith and disregard the
permissible legal procedures in acquiring evidence always excluded
The deterrence factor:
• The deterrence rule is meant to deter unconstitutional police conduct by promoting professionalism
within the ranks,
• by creating an incentive for police departments to hire individuals sensitive to human rights,
• to better train officers in the proper use of force,
• to keep officers updated on constitutional law,
• to develop internal guidelines that reduce the likelihood of unreasonable arrests and searches.
 What will shock the public more? R v Campbell [1999] 1 SCR 565

In deciding whether to admit or exclude unconstitutionally obtained evidence, the Canadian

courts ask the question:
‘what will shock the public more’:
 admitting unconstitutionally obtained evidence and by doing so condoning the
unconstitutional conduct in obtaining the evidence, or
 excluding the evidence and by doing so possibly allowing an alleged criminal to go free?

Would this test work as a test for determining whether admitting unconstitutionally obtained
evidence is detrimental to the administration of justice for the purposes of section 35(5) of the
Constitution?
 Section 35(5): onus of proof

The question that then arises is who bears the onus of proving that the reception of unconstitutionally
obtained evidence will render the trial unfair or be detrimental to the administration of justice?
• South African courts have taken contradictory approaches when determining where the onus of
proof lies.

 In S v Gumede and Others, the Court held that the onus of proof rests with the party wishing to
exclude the evidence on constitutional grounds,
 while in S v Mfene and Another, the Court held that once an accused is able to prove the
evidence was unconstitutionally obtained, the onus is then on the State to prove that this does not
render the evidence inadmissible.