EVIDENCE OBTAINED AS RESULT OF UNLAWFUL SEARCH AND OF POINTING OUT AFTER FAILURE TO EXPLAIN CONSEQUENCES OF NOT REMAINING SILENT AND COERCION

Gumede v S [2016] 4 All SA 708 (SCA)

Evidence – Criminal proceedings – Evidence obtained as a result of an unlawful search in violation of right to privacy, and evidence of pointing-out obtained after failure to explain consequences of not remaining silent and coercion – Whether trial court was correct in ruling that evidence of both the search and seizure operation and pointing-out and confession, was admissible – Section 35(5) of the Constitution of the Republic of South Africa, 1996 requires the court to exclude evidence obtained in a manner that violates any right in the Bill of Rights if either the admission of that evidence will render the trial unfair or otherwise be detrimental to the administration of justice.

The appellant was charged with murder, robbery with aggravating circumstances, and unlawful possession of a firearm and ammunition.

Two sets of evidence formed the basis of the State’s case against the appellant. The first was a firearm with ammunition allegedly discovered by the police during search and seizure operation at the appellant’s house and the second was verbal statements that he had allegedly made at a pointing-out. Pleading not guilty, the appellant challenged the admissibility of the said evidence. He alleged that the search, pursuant to which a firearm was allegedly discovered, was unlawful and that he was assaulted by police officials resulting in him making a pointing-out which was done under duress.

In a trial-within-a-trial, the trial court ruled both sets of evidence admissible, and at the conclusion of the main trial, the appellant was convicted on all charges. He was sentenced to life imprisonment for murder; 15 years’ imprisonment for robbery with aggravating circumstances; and 3 years’ imprisonment for possession of an unlicensed firearm and ammunition. His appeal to the Full Court was dismissed, leading to the appeal to the present Court.

In relation to the search and seizure operation conducted at the appellant’s house without a search warrant, the trial court was prepared to assume that despite the urgency, a search warrant could have been obtained and that the illegal entry was unnecessary. Although the trial court was of the view that in certain circumstances the evidence concerned would be inadmissible, it nevertheless regarded it to be admissible because of the provisions of section 35(5) of the Constitution. The court reasoned that the exclusion of the impugned evidence would, on the facts of the case, have brought the administration of justice into disrepute. The court found further that the pointing out by the appellant had been done freely and voluntarily, that the appellant had full knowledge of his rights, and that he had waived them.

The findings of the trial court were confirmed by the Full Court which dismissed the appellant’s appeal. The current appeal was with the special leave of the present Court.

It was argued before the present Court that the evidence concerning the discovery of the firearm ought to have been declared inadmissible on the grounds that the search and seizure operation was patently unlawful and fell to be excluded in terms of section 35(5) of the Constitution. It was argued that the search in the appellant’s home was illegal and irregular because it was conducted without a search warrant and after entry into the house had been illegally obtained. In relation to the pointing-out and confession, it was submitted that the State failed to prove that the appellant’s constitutional rights were explained to him prior to and during the pointing-out and confession. It was further submitted by the appellant that the State failed to prove that the pointing out and confession were freely and voluntarily made.

Held – The issue in the present appeal was whether the trial court was correct in ruling that the evidence of both the search and seizure operation and the pointing-out and confession, was admissible.

Section 35(5) of the Constitution requires the court to exclude evidence obtained in a manner that violates any right in the Bill of Rights if either the admission of that evidence will render the trial unfair or otherwise be detrimental to the administration of justice. Section 35(5) does not provide for automatic exclusion of unconstitutionally obtained evidence. Evidence must be excluded only if it renders the trial unfair or is otherwise detrimental to the administration of justice.

The first question (and the first leg of an enquiry under section 35(5)) was whether the admission of the impugned evidence rendered the trial unfair. The evidence relating to the discovery of a firearm and one emanating from the pointing-out was the only evidence on which the State relied to prove its case against the appellant. The evidence of a firearm came to light as a result of a search the police conducted at the appellant’s home. That search was unlawful as it occurred without a search warrant. The explanation by the relevant police official for not having obtained a search warrant prior to going to the appellant’s home was rejected by the court as not reasonably possibly true. The police were not faced with circumstances of urgency or emergency, and a search warrant ought to have been sought and obtained and there was sufficient time for it to be obtained. The firearm was obtained by means of the search which because of its illegality violated the appellant’s right to privacy. However, the Court held that the fact that the evidence of a firearm was obtained in that manner did not affect the fairness of the trial because the firearm was real evidence that the police probably would have found if they had entered the premises lawfully in terms of a search warrant and without breaching the appellant’s right to privacy. The existence of the firearm would have been revealed independently of the infringement of the appellant’s right to privacy. Accordingly, the admission of the evidence of the discovery of the firearm did not render the appellant’s trial unfair.

The second question (and the second leg of an enquiry under section 35(5)) was whether the firearm evidence should in any event have been excluded on the ground that its admission was detrimental to the administration of justice. This inquiry involved public policy. In this case, there was an inextricable link between the firearm evidence and the pointing-out evidence, which was obtained by some degree of coercion. The appellant’s right to privacy and the right against self-incrimination were flagrantly violated by the police during the investigation. The degree of coercion which the Court found to have occurred rendered the appellant’s conduct neither free nor voluntary.

In all the circumstances of this case, the admission of the evidence of the discovery of the firearm and the pointing-out evidence was detrimental to the administration of justice under section 35(5) and it ought to have been excluded.

Upholding the appeal, the Court set aside the convictions and sentence.

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