Die toelaatbaarheid van ongrondwetlik-verkree getuienis

[摘要] ENGLISH ABSTRACT:Section 35(5) of the Constitution of the Republic of South Africa Act 108of1996 provides thatevidence obtained in a manner that violates any right in the Bill of Rights must be excluded if theadmission of that evidence would render the trial unfair or otherwise be detrimental to theinterests of justice. The exclusion of unconstitutionally obtained evidence promotes legality,protects fundamental rights and preserves the integrity of the administration of justice. Section35(5) can be described as a qualified exclusionary rule. It differs markedly from the earlycommon law inclusionary approach as formulated in England in 1861: It matters not how youget it; if you steal it even, it would be admissible.Various broad issues concerning the application of section 35(5) are identified in Chapter 1.Given our constitutional dispensation, the enforcement of legality is of the utmost importance.However, any evidential rule which promotes the acquittal of factually guilty accused, must becritically examined and assessed. It is an indisputable fact that there is a pressing and validdemand - especially at present in South Africa - that the rules of substantive criminal law shouldbe enforced. It is necessary to strike a balance between due process and crime control. The rights,values and interests protected by section 35(5) should also be weighed against the rights, valuesand interests which are (or may be) affected by the exclusion of unconstitutionally obtainedevidence.The evolution and principles of the English common law inclusionary approach are examined inChapter 2. This inclusionary approach was later curbed by an extremely limited discretionary rule. In 1984 the English courts received a statutory discretion to exclude evidence if theadmission of that evidence would have such an adverse effect on the fairness of the proceedingsthat the courts ought not to admit it. The country from which the inclusionary rule originated,therefore also took a different tack. But the English courts exercise their statutory discretionrather haphazardly - and it is therefore difficult to identify principles.Chapter 3 deals with the exclusionary rule which developed in the USA on account of varioushistorical incidents, political considerations and constitutional provisions. The AmericanConstitution does not contain an exclusionary rule. In 1886 a limited and tentative exclusionaryrule was created by the Supreme Court of the USA. This rule was linked to constitutionalprovisions. The exclusionary rule was progressively developed until 1961. In 1961 the SupremeCourt created a wide and rigid exclusionary rule. However, over the past three decades variousexceptions to the rule have been created, for example the bona fide exception. The Americanexperience indicates that the rigid exclusion of all unconstitutionally obtained evidence isunrealistic and detrimental to the administration of justice. South Africa should take cognisanceof this.The comparative perspective is continued.in Chapter 4. Most of the countries which belong tothe Anglo-American law of evidence family, initially relied heavily on the English inclusionaryapproach. However, through case law - and in some instances legislation - they all accepted adiscretion to exclude evidence procured unlawfully or unconstitutionally. A similar developmenttook place in continental systems. Even in an inquisitorial procedure and free system of evidence,a court cannot have untrammelled access to evidence obtained in breach of fundamental rights.The American exclusionary rule not only had an international impact, but also a supra-nationalimpact. The rules of ad hoc international criminal tribunals provide for the exclusion of evidenceobtained in breach of fundamental rights.The Canadian position is dealt with in Chapter 5. The English law of evidence serves as thecommon law of Canada. But in Canada - as in South Africa - the admissibility ofunconstitutionally obtained evidence is governed by a qualified exclusionary rule contained ina justiciable Bill of Rights. Section 24(2) of the Canadian Charter of Rights and Freedoms of1982 determines, inter alia, that unconstitutionally obtained evidence must be excluded if it isestablished that, having regard to all the circumstances, the admission of it in the proceedingswould bring the administration of justice into disrepute. The Canadian courts essentially relyon three criteria in interpreting section 24(2). Would admission of the evidence affect the fairnessof the trial? How serious was the violation of the constitutional right? What impact wouldexclusion have on the repute of the administration of justice? The last two criteria would beuseful in interpreting the requirement detrimental to the administration of justice as set insection 35(5).Chapter 6 covers the South African position prior to and since constitutionalization. In the preconstitutionalperiod the common law discretion to exclude evidence, was applied in an erraticand inconsistent manner. The interim Constitution (the Constitution of the Republic of SouthAfrica Act 200of1993) did not contain an exclusionary provision in respect of unconstitutionallyobtained evidence. The courts developed their own exclusionary rule. Conflicting and confusingresults were achieved. Section 35(5) of the present Constitution is to a large extent an attempt to provide clarity.In the final chapter it is recommended, inter a/ia, that considerations of public policy ought toplay a role in the interpretation of section 35(5); that a trial is unfair where the prosecution relieson selfincriminating unconstitutionally obtained evidence in order to prove its case; that - incontradistinction to the position in the USA and Canada - the infringement of a third party'sconstitutional right may in some instances, also activate consideration of the exclusionary rule;that the courts should be conservative in excluding unconstitutionally obtained evidence; that thegood faith and reasonable conduct of the police should play a role; and, further, that a statutoryform of compensation should be available to victims of crime in those instances where an accusedis acquitted on account of the exclusion of unconstitutionally obtained evidence.

[发布机构] Stellenbosch University