RESTRICTION ON DISCLOSURE

DU TOIT v THE MAGISTRATE AND OTHERS 2016 (2) SACR 112 (SCA)

Sexual offences — Child pornography — Possession of — Disclosure of images to accused prior to trial — Restriction on disclosure, by not permitting copying of images, permissible in light of privacy interests of children depicted in images — Not infringing accused’s fair-trial rights where refusal subject to review by court.

 

The appellant was facing trial in a regional magistrates’ court on charges of possessing child pornography. Before the commencement of the trial he sought an order from the presiding magistrate that the prosecution be directed to supply him with copies of the images which were alleged to constitute child pornography. He had refused to take up an offer by the prosecutor to view the items privately, together with his legal representatives and any expert he wished to call. The prosecutor objected to reproducing the images and furnishing copies to him. In doing so the prosecution relied on its standard prosecution policy directives (sexual offences: B7) which provided that prosecutors need only provide the defence access to dockets containing visual images of child pornography and did not need to provide copies thereof, unless ordered by the court. The magistrate held that the arrangements proposed by the prosecution were adequate in the circumstances, and dismissed the application. The appellant then appealed against that decision to the High Court which reviewed and set aside the decision on the grounds that the appellant’s rights stemming from s 35 of the Constitution should not be subjected to limitation. The appellant abandoned his appeal against certain other aspects of the judgment of the High Court but the DPP appealed against this specific order relating to the provision of copies of the items constituting the charges. The DPP contended that the prosecution needed to retain a degree of discretion in matters of the present kind and that the proposed arrangements were sufficient to protect the appellant’s fair-trial rights.

Held, that in the present case there were reasonable privacy interests of the children who were depicted in the images and there was a significant public interest in ensuring that no duplication or distribution occurred in the disclosure process. Those interests ought not to be further compromised by the copying, viewing, circulation or distribution of the images beyond what was reasonably necessary to give effect to the appellant’s constitutional rights.

Held, further, that the prosecution had to be allowed to exercise a discretion in order to protect the privacy interests of members of the public or the public interest by preventing the commission of further criminal acts, which could occur if it were ordered to disclose information without putting adequate safeguards in place. The process for disclosure, as provided for in the policy directive, had a built-in protection for the accused to ensure that the prosecution exercised its discretion in a fair and just manner by providing for review by the court. Given the pernicious and lasting damage caused to children by the distribution of child pornography, there was much to recommend the directive.

Held, further, that on the approach of the DPP, the desired result and necessary balance had been achieved and the order of the High Court was set aside and replaced by an order dismissing the application in that case.

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