Abstract
Section 35(5) of the Constitution of the Republic of South Africa , 1996 governs the exclusion of unconstitutionally obtained evidence in criminal trials. Three groups of factors must be considered to assess whether unconstitutionally obtained evidence should either be excluded or admitted. This contribution is focussed on the third group of factors (also known as the of exclusion, or the social costs of exclusion) which consists of the seriousness of the faced by the accused, and the importance of the evidence to secure a conviction. This group of factors is concerned with the interest in crime control. Some scholars argue that the public mood should be a weighty factor when our courts consider this group of factors. Against this background this article considers three issues: First, whether considerable weight should be attached to the current mood of society when our courts weigh and balance this group of factors against other relevant factors; secondly, whether a consideration of the seriousness of the charge and the importance of the evidence for a successful prosecution could possibly encroach upon the presumption of innocence; and, thirdly, whether factual guilt should be allowed to tip the scales in favour of the admission of unconstitutionally obtained evidence when the evidence is crucial for a conviction on a serious charge. KEYWORDS: Admissibility of evidence; unconstitutionally obtained evidence; exclusion of unconstitutionally obtained evidence; section 35(5); exclusionary rule; effect of exclusion; presumption of innocence
Highlights
The exclusion of unconstitutionally obtained evidence in criminal trials is a subject that frequently evokes a conflict between two important societal views
Stuart[95] highlighted the danger of this approach in heads of argument filed in the appeal of R v Grant.[96]. Such an approach flies in the face of the constitutional value of equal protection before the law and equal benefit of the law.[97]. It would offend the integrity of the justice system, and should primarily for this reason not be followed by the South African courts when this group of factors is considered
The high rate of serious crime in South Africa should not be considered as a factor that unduly tilts the scales in favour of the admission of the disputed evidence
Summary
The exclusion of unconstitutionally obtained evidence in criminal trials is a subject that frequently evokes a conflict between two important societal views. Put, the remedy contained in section 35(5) would be rendered superfluous if the accused faces a serious charge.[94] Stuart[95] highlighted the danger of this approach in heads of argument filed in the appeal of R v Grant.[96] In addition, such an approach flies in the face of the constitutional value of equal protection before the law and equal benefit of the law.[97] More to the point, it would offend the integrity of the justice system, and should primarily for this reason not be followed by the South African courts when this group of factors is considered. Essential to a conviction was excluded should not be allowed to disturb the long-term constitutional goal of enhancing the integrity of the criminal justice system.[105]
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