PAGE
UPDATED NOTES ( not edited )
1. CONSTITUTIONALITY AND INADMISSIBILITY OF EVIDENCE
Case law , its application and Practice - criminal Courts
2. ALIBI
Rules of Evidence and Case study
3. CRIMINAL LAW APPROACH TO CONCEPTS
+ APPLICATION THEREOF
4. EVALUATION OF EVIDENCE
Case Law and Approach
5. JOINT POSSESSION
Practice - CRIMINAL Courts
6. APPLICATION FOR DISCHARGE
SETCTION 174 - WORDING AND APPROACH
GUIDE LINES AND CASE LAW
Prepared by Dr Mchunu
10 Jan 2013
[1] SECTION 35(5) of the Constitution of South Africa provides :
“ 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 otherwise detrimental to the admin of justice . “
Discussion of “detrimental to the admin of Justice “ appears on Para 13 below . It refers to S v MTHEMBU 2008 [2] Sa 407 – Cachalia JA .
Van Heerden J A refers to “impugned evidence “ , see Para17 below
[2] S v Mark 2011 (1) 572 dealt with the ruling on the exlusion of illegally obtained evidence . The enquiry is whether :
1. the admission would render the trial unfair I t o sect 35 (5) , if yes, then the relevant evidence is excluded ;
2. whether the the admission of evidence would be detrimental to the interest of justice
A trial within a trial will be held , witnesses called to establish the facts leading to such illegality .
The procedure will be for the Defence counsel to lay basis for the trial ( e g that accused was assaulted) Then the PP will call such witnesses, lead evidence , after which the defence will XXD on the allegations .E.g detainees or doctor may be called. Usually it is the Police witnesses that are involved. After that the defence will also lead evidence, then the address and finding by court . The standard of proof is on a balance of probabilities. These are separate proceedings- ‘ insulated’ and are apart from the main trial. They focus on the ‘ ‘violations’ and brutalities . If so found such evidence is ruled inadmissible . The test is ‘ fairness of the trial’
Cf Zeffertt n Paizes 2nd ed 560, S v Sithebe 1992 1 SA 347 A, Mlomo 1993 2 SA 123 A
S v Mkhize 1999(2) SA 632 W
[3]
McCall J in S V NAIDOO 1998(1) 479 (N) reasoned that evidence obtained as result of deliberate or conscious violation be excluded unless there were extra ordinary circumstances to accept it . S v Mkhize 1999(2) SA 632 (W) said that it was undesirable to fetter the discretion of court in terms of sect 35 (5) - refer to analysis Para 10 – 12 beelow
The test is on the violation resulting in the Inadmissibility of evidence
[4] The Onus of proof is on the state that the rights of accd were not infringed
S v MGCINA 2007 (1) SA 82 T @ 95 H- I
INADMISSIBLE EVIDENCE
Scenario A
[5] The state led inadmissible evidence of N (wife of Mr N), when Accused –‘X ‘ responded to her questions that he (accused ‘X ‘) had been part of the killing and that he was with accused 1. This in essence forms part of the incriminating evidence, accused’ x’ was at the time in custody under police guard - MATLOU a Others vs THE STATE ,case 479/09 heard 31 03 2010 SCA – Para 23
Vide R V de WAAL 1958 (2) SA GW at 111A-112 F
Scenario B
[6] The responses by accd- x clearly negate the volition to refuse to answer questions from N. Also that accused ‘ X’ was not advised of the right to remain silent, or not to make incriminating statement, and consequences thereof . So is the list as analysed hereunder
[7] Refer to -Sec (35)[1] (a); (b); (c), of the constitution – and Para 20 of Matlou judgment [supra ] in which these are discussed .
At the end of Para 20 of Matlou judgment , Bosielo JA reasoned as ff :
“ Why would police assault him if he had incriminated himself by pointing-out highly incriminating evidence. .To my mind , it makes perfect sense and accords with logic that the first appellant could only have been assaulted by the police before the pointings-out in order to coerce him to do so. Undoubtedly such evidence would have been obtained in contravention of the appellants rights ensconced in sect 35 [1] [a] [b ][c] of the constitution ,Act 108 of 1996 which provides
“ [a] every one who is arrested for allegedly committing an offence has a right- [a] to remain silent [b] to be informed of :
[i] right to remain silent and
[ii] consequences of not remaining silent
[c] not to be compelled to make any confession or admission that could be used in evidence against that person “
[8] Section 35(3) (j) of the Constitution reads:
“ Every accused person has a right ….
“ not to be compelled to self incriminating evidence “
[9] Bosielo J A discussed in MATLOU judgment, the admissibility of evidence under Sect 218[2] of the CPA in contrast with Sect 35[5] above - bill of Right
[10] Section 218 [2] provides :
“ Evidence may be admitted at criminal proceedings that anything was pointed out by an accused appearing a such proceedings , or that any fact or thing was discovered in consequence of information given , nothwithstanding that such pointing out or information forms part of a confession or statement which by law is not admissible in evidence against such accused at such proceedings”
[11] In this case Accused x uttered these words in the presence of the police and thus inadmissible , see similar reasoning upheld in – S v January 1994 (2) SA 801. Thus answers from Accd X were improperly elicited in police presence – S v KHUMALO 1992(2) SA N p 420 – per Thirion J that such practices be curbed. Real evidence is looked at separately from the words or utterances of the accused - see the reasoning below - Cachalia JA
[12] In MATLOU VS The STATE 2010 zasca 52 31-03 2010 at Para 26 Bosielo JA quotes Cachalia JA - in S V MTHEMBU 2008 [2] SACR 407 SCA as ff :
, “ [31] In the pre-constitutional era, applying the law of evidence, as applied by the English Courts, the courts generally admitted all evidence, irrespective of how obtained, if relevant. The only qualification was that “the judge always (had) discretion to disallow evidence if the strict rules of admissibility would operate unfairly against an accused.“ And where an accused was compelled to incriminate him or herself through a confession or otherwise the evidence was excluded. However, real evidence which was more readily admitted (and also because its admission was governed by statute). The reason was that such evidence usually bore the hallmark of objective reality compared with narrative testimony that depends on the say-so of a witness. Real evidence is an object which, upon proper identification, becomes, or itself, evidence (such as a knife, firearm, document or photograph – or the metal box …). Thus, where such evidence was discovered as a result of an involuntary admission by an accused it would be allowed because of the circumstantial guarantee of its reliability and relevance to guilt – the principle purpose of a criminal trial. As a rule, evidence relating to the “fruit of the poisonous tree” was not excluded.
[13] I have no doubt that admitting such evidence would not only render the trial unfair but would also , as Cachalia JA quoting Lord Hoffman’s remarks I Mthembu’s case remarked at para 36 :
“… it is tantamount to involving the judicial process in “moral defilement.”” This ‘would compromise the integrity of the judicial process (and) dishonor the administration of justice. I harbor no doubt that the evidence should not have been admitted. See S v Potwana & others 1994 (1) SACR 159 (A) at p 164a-b; S v Tandwa & Others 2008 (1) SACR 613 (SCA) PARA [89].
See also similar reasoning in S v SHEEHAM 1991 (2) SA 860
[14] In short such evidence falls to be ruled out as inadmissible & unconstitutional in terms of sect 35[5] of the constitution
Real Evidence becomes proof after being identified in court – Paizes n Skeen ‘ S A Law of Evidence ‘ p703 . Example , knife, bullet ( tangibles ) etc
[15] Part Vl of the Civil Proceedings Evidence Act 25 0f 1965 defines “document “ to include a photograph . Real evidence is what the court itself can examine, smell , listen , taste or feel-Paizes and Skeen ‘SA Law of Ev’ P 703
[16] Bosielo JA in the MATLOU decision , dealt with the analysis and reasoning of the incriminating discussion between the wife of deceased and appellant no 1. Bosielo JA relied on the S v SAMHANDO 1943 AD 608 and S V SHEEHAMA 1991[2] SA 860 A and states at Para 23 - MATLOU vs THE STATE :
“ negates any volition which he might have had to refuse to answer .. discussion which appellant allegedly had with the deceased’s spouse during which , at the suggestion by the police , she asked him where the deceased missing head was and to which he replied that when he threw the deceased’s body in the bush , it had its head intact …. The learned judge ( trial ) erred in this respect. It is clear that the first appellant was under arrest and in the presence of more than one police at this critical stage of the investigation. It is the police that instigated or prompted the deceased’ s spouse to ask the ist appellant this question which elicited such an incriminating response . The possibility that the first appellant was under the undue influence of the police at the time cannot be excluded. To my mind, this “ - Vide R v de Waal 1958[2] supra Page 111 A -112 F
[17] Van Heerden JA dealt with such impugned evidence , applicability of sect 35 [1] and [5] and their impact on the admissibility , in S v JANUARY ; PROKUREUR–GENERAL , NATAL V KHUMALO 1994[2] SACR 801
[18] The onus of proof remains entirely on the state to prove its case beyond reasonable doubt. If any doubt exists or that of the accused version is improbable (if he testifies) than he must be acquitted. Also where both the state and defence version are on par or are of equal force the accd must be acquitted. Cf S vs Shusha 2011 case 609/2011 dated 29/09/2011:SCA
[ Avoid long quotes in ur Judgment - summarise reasoning ,cultivate use of simple words,avoid repetition ]
Develop own narrative style in factual analysis - story telling . Indicate to the reader what your about to do.
[ May be this is a seperate topic ]
A L I B I [ Research only ]
[1] The defence version of an alibi has been dealt with in S v HLONGWANE 1959 (3) SA 337 SCA as a starting practical point
[2] Holmes JA in Hlongwane judgment makes a prelude analysis and test in regard to the Alibi , its sufficiency and how it should be approached by trial court - p 337 Para E (also P 340 H) :
“ In Applying the test to an Alibi , namely that there is no Onus on the accused to establish it and if it might reasonably be true , he (accd) must be acquitted , the alibi does not have to be considered in isolation. The correct approach is to consider the alibi in the light of the totality of evidence...”
[3] The Hlongwane judgment re stated the judgment of Greenberg JA in S v Biya 1952(4) ,that the test is not to consider an Alibi in isolation but in the light of all the evidence . The Alibi will then be weighed against the evidence presented, evaluate cogency, including the court’s impressions of the witnesses –Hlongwane case supra, P341 - A .
[4] In evaluating the ALIBI, Homles JA (Hlongwane case supra )at page 339 C-D ,where the accused denied complicicity :
“ At the conclusion of the whole case the issues were :
(a) Whether the alibi might reasonably be true
(b) Whether denial of complicity might reasonably be true
(c) An affirmative answer to either (a) or (b) would mean that the Crown has failed to prove beyond reasonable doubt that the accd was one of the robbers “ The phrase “might reasonably be true “ is clear that refers to both denial of complicity and alibi .
[5] The word “Might” the past tense of “may”, is defined In ‘ Concise Oxford Dictionary’ 9thEd , as “ expressing possibility ( it may be true )”
The word “ possible” is defined (Oxford p 1067) as
“ capable of existing or happening ; or likely to happen “
[6] The alibi version need not be factually true , albeit possible , i.e likely to happen .[ cf Phipson , Zeffert n Paizes , etc on detailed discussion ]
An alibi and its merits are further discussed in S v MHLONGO 1991[2] SA 207 AD , S v Felix 1980(4) A550 @ 604
[7] In Biya’s case 1952[4] below, Greenberg JA stated @ p 521
“ ….if on all the evidence, there is a reasonable possibility that this ‘alibi evidence’ is true, it means that there is the same possibility that the accused has not committed the crime “ I.e contrasting evaluation of evidence
In MALEFO and O 1998(1) SA 128 OFS 157J – 158 A-D the following is kept in mind: 1 – 5 below
[8] Hlongwane 1959 (3)SA 337 A Judgment discusses the details & requirements for approach to an ALIBI
That there is no ONUS on the accused to prove the alibi – Mhlongo 1991(2) 207 (A) at 210D
Biya 1952(4)SA514(AD) at 521D
1. If the accused version is POSSIBLY probable the accd must be acquitted . To convict accused, the accused version/alibi must be false beyond doubt . There must be a clearly subjected scrutiny of judicial assessment and evaluation –S v Shusha ,Case 609/2010 SCA handed down -29 Sept 2011 p 29
2. Each alibi is weighed against the totality of evidence
[43] In S v COMBRINK 2012 [1] SCA 93 Para [15] Shongwe JA stated p 98 Para 15 :