January 19, 2017

Admissible in Court? II: Fruits of Poisonous Trees


Yesterday’s blog explored when evidence is considered admissible in court, which is covered by Section 218(1) and Section 218(2) of the Criminal Procedures Act.

Section 218(2) of the criminal Procedure Act provides an exception to the rules regarding admissibility of evidence of admissions and confessions which has been unlawfully and/or improperly procured.

In the case S v Matlou, the accused, charged with commission of murder (and robbery with aggravating circumstances) was coerced and forced to make admissions and confessions – as well as pointing out of the deceased’s body and a firearm –  by the police through means not excluding assault. The court rejected the admission relating to the body and the weapon. The evidence was found to have been gathered unlawfully and was therefore inadmissible.

Both counsel agreed that, since the evidence was ruled inadmissible, the counts of murder, robbery with aggravating circumstances and unlawful possession of a firearm would have to fall away due to lack of evidence. The result was only conviction on a count of theft, as the accused was found in possession of the deceased’s property, namely a Mazda car, a grinder and a welding machine.

This precedent was upheld in another case, S v Samhando. However, in S v Duetsimi, perhaps regrettably, the court deemed similar evidence admissible, enacting 218(2) of the Criminal Procedure Act, which states that “Evidence may be admitted at criminal proceedings that anything was pointed out by an accused appearing at such proceedings or that any fact or thing was discovered in consequence of information given by such accused, notwithstanding 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.”

If the accused is assaulted and coerced into making a confession or pointing out evidence, the evidence obtained against him violates his rights s set out in the Constitution. Sections a, b and c of Section 35(1) provide that:

  • Everyone who is arrested for allegedly committing an offence has the right
    • To remain silent
    • To be informed promptly – 
      • Of the right to remain silent; and
      • Of the consequences of not remaining silent;
    • Not to be compelled to make any confession or admission that could be used in evidence against that person.

Section 35(5) of the Constitution further provides guidance, stating that:

“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 be detrimental to the administration of justice”

Nevertheless, there continues to be varied decisions regarding interpreting section 218(2) of the Criminal Procedure Act. I hope that the Constitutional Court will finally provide an unassailable decision on the matter.

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