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6.1 From the research outlined in the chapters above the Commission has identified a number of issues warranting further consideration. These issues are set out more fully in the chapters hereafter under the following main headings:
1. Questioning of the suspect/accused by the police, its legitimacy, effectiveness and the right to silence and its consequences.
2. Defence disclosure before and during trial.
3. A greater role in the criminal justice process by judicial officers, with particular reference to access to the police docket.
4. Enhancing judicial management of trials and case management.
6.2 The topics raised under the first two headings are closely interrelated, in that similar issues of principle arise irrespective of the stage at which defence disclosure might be required. The question of defence disclosure is accordingly discussed with reference to questioning of the suspect in relation to the three separate stages at which the issue might arise: First, from the time that suspicion first falls upon the accused until the time he or she is indicted. Second, from the time the accused is indicted until the time he or she is required to plead. Third, during the course of the trial. Furthermore, there can be no meaningful discussion of defence disclosure without at the same time accounting for the grounds upon which admissions or confessions made by the accused should be admissible in evidence.
6.3 This chapter deals with the question of police questioning and defence disclosure at all three stages in relation to each of those stages. Chapter 7 deals with the remaining issues referred to in paragraph, 6.1, namely a greater role in the criminal justice process by judicial officers, with particular reference to access to the police docket and enhancing judicial management of trials and case management. For easy reference the proposals for reform contained in the draft Bill in Annexure A are divided into three parts following the order of discussion in chapters 6 and 7. Part A deals with police questioning and defence disclosure, part B with a greater role for judicial officers and part C with judicial management of trials and case management.
6.4 In the light of different views on the constitutional permissibility of drawing an adverse inference from the failure of a suspect to disclose information during the course of the police investigation, the Commission proposes that alternative options be considered for purposes of this discussion paper.
OPTION 1 - DRAWING AN ADVERSE INFERENCE
6.5 It is important to bear in mind, when considering the question of defence disclosure, that there are material distinctions between the Anglo-American systems of criminal justice and those of European countries. In Anglo-American systems the investigation phase, ie the phase from the time that suspicion first falls upon the accused until the time that he or she is indicted, is under the control of the police (although the prosecuting authority might play some role). In some European systems the judiciary plays a role in that investigative phase. One must thus be careful to guard against assuming that procedures which take place before a judicial officer in some European countries are capable of being transposed to courts in this country, simply on the basis that a judicial officer is involved. One must look at the object which is sought to be achieved by the particular process rather than merely to its form.
6.6 It is important to bear in mind that the object which is served by defence disclosure varies according to the stage at which it is required to be made. Defence disclosure during the investigative phase serves to curtail the investigation, produce evidence that might contribute to a conviction and exclude possible defences (such as an alibi). Defence disclosure after indictment really serves only to curtail the length of the trial, rather than to elicit relevant evidential material. Accordingly, when considering whether there should be defence disclosure, it is as important to ask at what stage such disclosure should be required, for at each stage it will serve a different purpose.
6.7 Questioning by the police of persons suspected to have committed crime and of innocent members of the public who might be in possession of material information is integral to the modern investigation of crime. Most jurisdictions recognise the legitimacy of such questioning and attempt to regulate the manner in which it is done so as to avoid oppressive practices rather than to prohibit it altogether. It has been argued that to place excessive barriers in the way of police questioning of suspects might serve to divert attention from where the real problem lies and thereby serves to encourage unacceptable police practices.[197]
6.8 It is inherent in the process of criminal investigation that personal privacy will be invaded. It is well recognised that to invade personal privacy is justified where it serves the interests of the proper administration of justice. Thus, an ordinary member of the public who is in possession of information concerning the commission of crime is, in general, obliged to disclose it in the absence of a “just excuse”[198] and it will be a just excuse if the information required to be disclosed is self-incriminatory.[199]
6.9 The position of a person who is suspected to have committed a crime is different only insofar as anything that he or she might say has the potential to be self-incriminatory. Two conclusions follow from this: First, a suspect cannot be compelled by threat of punishment to make disclosures of any kind, for such disclosures will always be potentially self-incriminatory and there can be no doubt that threatening punishment for the failure to make disclosures which might be self-incriminating will be unconstitutional.[200] Second, to object to defence disclosure merely on the grounds that it constitutes an invasion of privacy would afford greater protection to a person suspected to have committed a crime than to an innocent member of the public, something for which there is no rational justification.
6.10 The reaction of a suspect when confronted with apparently incriminating evidence might be relevant to issues which will arise at the subsequent trial, and would ordinarily be admissible in evidence. An explanation that is proffered by the suspect might constitute an admission of one or more of the relevant facts and thus contribute to a conviction, or it might constitute a confession which is sufficient by itself to found a conviction. Even an exculpatory explanation will be relevant if it is in conflict with a defence that is subsequently advanced at the trial insofar as it might cast doubt upon the truthfulness of that defence.
6.11 Similarly, the failure to give an explanation for apparently incriminating evidence might also be relevant if the accused gives evidence at a subsequent trial, for it might warrant an inference that what is advanced in evidence at the trial is the product of recent fabrication. Naturally, if the accused does not give evidence at the trial the fact that he also did not offer an explanation to the police has no material significance for silence, by itself, will never suffice to discharge the onus that rests upon the State.
6.12 It is apparent, then, that positive statements made to the police and silence when questioned by the police will ordinarily be relevant when deciding the question of guilt. There is thus a value to police questioning of suspects irrespective of whether the suspect replies, for the failure to reply might itself constitute relevant evidential material.
6.13 Apart from the evidence that might result from police questioning (whether by positive assertions or by silence) there are other sound reasons for placing a suspect under a duty to reply to police questioning (albeit that such a duty can never be enforced by the threat of punishment). In summary, the failure to disclose an innocent explanation during the course of the investigation results in the inefficient use of police resources, for the police cannot know when they have exhausted all avenues of investigation. Furthermore, the police might terminate an investigation prematurely, believing, quite genuinely, that the culprit has been discovered, and thus creating the risk that the true culprit might avoid detection. Apart from those considerations the suspect is otherwise placed in the position that he or she is able to tailor the explanation that is in due course advanced at the trial in order to meet the prosecution evidence.[201]
6.14 It is not intended in this report to deal at any length with the manner in which the efficient administration of criminal justice is inhibited if an innocent explanation is withheld from the police but is instead reserved for the trial, for they ought to be self-evident. The more pertinent question is whether the recognition of a duty upon suspects to make disclosure of innocent explanations during the police investigation is objectionable, either in law or in the interests of other considerations of justice. Before turning to that question, however, an explanation should be given of why the problem arises.
6.15 There is no prohibition upon police questioning of suspects. If the suspect chooses to make disclosures, after an appropriate warning, they will in general be admissible in evidence.[202] However there is no reason why even an innocent suspect should make any disclosures to the police, because while the law remains as it is, the failure to do so cannot be to his or her detriment. Indeed, a suspect who is properly advised will almost invariably decline to say anything to the police.
6.16 The reason that the silence of a suspect is not capable of acting to his or her detriment is the following: The inference which might be drawn from the silence of a suspect when confronted with apparently incriminating evidence is that at that stage he has no innocent explanation (the relevance of which will be that an explanation subsequently tendered at his trial must be false). What is perhaps more important is that if the suspect is aware that there are consequences to remaining silent he or she is less likely to do so.
6.17 However, a court can only draw an inference if it is the only reasonable inference that the circumstances permit.[203] Yet if a suspect has been brought under the impression, at the time he or she refrained from making disclosures, that he or she was not called upon to provide explanations to the police and might reserve any such explanations for the trial, then purely as a matter of logic it will not be possible to draw the inference that the cause of the silence was the lack of an innocent explanation. It is reasonably possible, in those circumstances, that the suspect merely chose to reserve the explanation for the trial because the suspect was brought under the impression that he or she was entitled to do so. That is what is implicit in the warnings that are customarily given to suspects in this country, and in the United States and, until recently in England, and prevents an adverse inference from being drawn.[204]
6.18 Although initially the courts in England grounded their reasons for not drawing such an inference upon the terms in which the warning was framed (as have the courts in this country), more recently it has been said by the Privy Council that “the caution merely serves to remind the accused of a right that he already possesses at common law.”[205]
6.19 Although not expressly so stated in our case law, it must follow that a warning given to suspects ought to do no more, nor less, than to convey to suspects what their true rights are in any event. Accordingly, if the warning given to suspects conveys to them, in effect, that the law does not call upon them to provide explanations to the police, then it must be assumed that they were in any event not called upon to do so, irrespective of whether a warning had been given.
6.20 There is a suggestion in some of the decided cases that, in the absence of a warning, a court would be justified in drawing the appropriate inference from silence.[206] One view is that there can be no middle path, which is what those cases might suggest, and that was recognised in the decision of the Privy Council which has been referred to.[207] Either the law does recognise that a suspect is called upon to provide an explanation to the police (in which case the terms in which the warning is currently being given are inaccurate) or the law does not call upon the suspect to provide an explanation to the police (in which case it ought not to matter whether the suspect was given a warning).[208]
6.21 However it need not be debated whether it is the common law or the terms of the warning that give rise to the inherent ambiguity that precludes the drawing of an inference,[209] for in either event the question will remain the same for present purposes, which is whether a suspect ought to be under a duty to furnish to the police an innocent explanation (if the suspect has one) even though that duty will not be capable of being enforced by the threat of punishment if the suspect fails to do so.[210] It has already been suggested that there are obvious advantages for the efficient administration of justice that such a duty be recognised. The more pertinent question is whether it is objectionable to do so.
6.22 The question which naturally arises when considering whether to introduce similar provisions in this country is whether it will be contrary to section 35(1) of the Constitution, which guarantees to every person who is arrested for allegedly committing an offence the “right to remain silent ... and not to be compelled to make any confession or admission that could be used in evidence against that person.”
6.23 Whether it would be unconstitutional to draw such an inference depends upon the content of the rights that are guaranteed by that section. At this early stage of our constitutional jurisprudence it is often difficult to determine what is or is not prohibited. One view is that the Commission cannot afford to be unduly timid in the proposals that it makes, for almost any development in our law can be argued to be in conflict with one or other of the protections afforded by the Bill of Rights. It must also be borne in mind that even in countries in which inferences may not be drawn from silence, the issue has not been uncontroversial, and courts have invariably been divided on the issue. If need be, there are mechanisms in the Constitution to allow for the testing of proposed legislation before it is brought into effect.
6.24 The argument that is presented in favour of the view that to draw an adverse inference against an accused from silence is in conflict with the protection against self-incrimination most often does little more than to build upon and repeat in various forms a process of a priori reasoning, without critical analysis of the underlying rationale for such protection. One central consideration is that the rationale for the protection against self-incrimination is to safeguard the innocent from the potential that they might be induced to make false confessions.[211] The inevitable consequence is that in many cases the guilty will benefit equally from that protection, but that is merely the inevitable price that has to be paid in order to safeguard the innocent. It follows from that premise that the principle has no application in circumstances in which there is no potential that innocent persons might be induced to falsely incriminate themselves.
6.25 To draw an inference from the silence of the accused does not give rise to that potential. Drawing an inference from silence is no more than a process of inferential reasoning which, by definition, cannot have the effect of inducing innocent persons to incriminate themselves. Precluding a court from using that tool of inferential reasoning has the sole effect of shielding the guilty from the consequences of the knowledge of their guilt. It is therefore argued that there is no rational reason for recognising a principle which only has that effect, and it is submitted that it is doubtful that the Constitutional Court will do so.
6.26 The Constitutional Court recently considered the right to silence and the presumption of innocence and the constitutionality of limitations of these rights. In S v Manamela[212] the accused had been convicted of contravening section 37 of the General Law Amendment Act, 62 of 1955. Section 37 provides that any person who in any manner acquires or receives into his possession stolen goods, otherwise than at a public sale, without having reasonable cause, proof of which shall be on such person, for believing at the time of such acquisition that such goods are the property of the person from whom he received them, is guilty of an offence. The trial court declared the reverse onus provision contained in the section invalid and the Constitutional Court was requested to confirm the order of the trial court on the constitutionality of the reverse onus. The crux of the issue was whether the provision was consistent with the constitutionally entrenched right to a fair trial, and in particular section 35(3)(h) of the Constitution, which guarantees the right to be presumed innocent, to remain silent and not to testify during the proceedings.
6.27 The provision requires the prosecution to establish three elements of the offence beyond a reasonable doubt: that the accused was found in possession of goods, other than stock or produce, that the goods were acquired otherwise than at a public sale and that the goods were stolen. Once the prosecution has established these elements the accused is liable to conviction unless he establishes that he believed, at the time of acquiring the goods, the person from whom he received them was indeed the owner thereof or was duly authorised by the owner to dispose thereof and secondly that his believe was reasonable. The accused must discharge this onus on a balance of probabilities. It was argued that the provision therefore imposes a burden on the accused to adduce evidence establishing the reasonableness of his subjective belief and in doing so effectively introduces statutory liability for the negligent, albeit innocent, acquisition of stolen goods. It was argued on behalf of the appellants that the imposition of a full burden of proof upon the accused infringes the right to be presumed innocent, since it creates the risk and indeed the inevitability of a conviction despite the existence of a reasonable doubt as to the guilt of the accused.
6.28 The Constitutional Court confirmed that the right to silence, like the presumption of innocence, was firmly rooted in both our common law and statute and it was inextricably linked to the right against self-incrimination and the principle of non-compellability of an accused person as a witness at his trial. The Court, however pointed out that pitted against this time-honoured right was the consideration that dealing in stolen goods is a scourge in our society. It is a practice involving massive corruption and immorality that can permeate and perversely normalise itself in every area of society. With reference to S v Dlamini: S v Dladla and Others; S v Joubert: Sv Schietekat[213] the court warned that one must ensure that the alarming level of crime is not used to justify extensive and inappropriate invasions of individual rights. The court pointed out that it is well established that the Constitution requires a court to counterpoise the purpose, effects and importance of the infringing legislation on the one hand against the nature and importance of the right limited on the other. The prevalence of serious crime is therefore not a blank cheque for the legislature to erase all procedural safeguards.
6.29 It was argued on behalf of the State that in the vast majority of cases the State has no information or evidence concerning the circumstances in which the persons from whom the accused acquired the goods in question. In almost all cases the information relevant to the determination of reasonable cause is peculiarly within the knowledge of the accused person, which makes it extremely difficult for the State to demonstrate the absence of reasonable cause unless there is evidence emanating from the accused.
6.30 The court concluded that there is nothing unreasonable, oppressive or unduly intrusive in asking an accused who has already been shown to be in possession of stolen goods, acquired otherwise than at a public sale, to produce the requisite evidence, namely that he had reasonable cause for believing that the goods were acquired from the owner or from some other person who had the authority to dispose of them. For these reasons the court found that the limitation on the right to silence contained in the challenged provision was justified. The court, however, proceeded to consider and evaluate the standard by which that evidence must be established.
6.31 In terms of the provision the reverse onus required the accused to establish on a balance of probabilities reasonable cause for the requisite belief. This means that the court is obliged to convict even if it entertains a reasonable doubt as to the guilt of the accused and even if the version of the accused is likely to be true. The court held that the presumption of innocence protects the fundamental liberty and human dignity of every person accused of criminal conduct and it ensures that an accused cannot be convicted until the State proves his or her guilt beyond a reasonable doubt. The right is vital to an open and democratic society committed to fairness and social justice, and where a presumption of guilt is substituted for a presumption of innocence the limitation of the right is extensive and the justification for doing so must be established clearly and convincingly. The court was of the view that if the reverse onus had been wrought in a more focussed or nuanced way to eliminate the concern that an accused could be convicted even if his version was reasonably possible, it might have passed constitutional muster.
6.32 However, the court held that the risk of people being erroneously convicted and unjustly sent to jail was too high, and this disturbed the proportional balance between the limitation and its purpose. The court found that the imposition of an evidential burden on the accused would equally serve to furnish the prosecution with details of the transaction at the time of the acquisition, and that it was a less invasive means of achieving the legislative purpose of the provision. At the same time it served to a significant degree to reconcile the conflicting interests present in the case. The court accordingly held that the problem facing the prosecution would be met by requiring the accused to furnish evidence as to the reasonableness of his or her belief. The court struck down the reverse onus clause in the Act and substituted it with the following provision:
In the absence of evidence to the contrary which raises a reasonable doubt, proof of such possession shall be sufficient evidence of the absence of reasonable cause.
6.33 It may be argued that the premise upon which this conclusion is based (i.e. that the principle exists to protect the innocent) is unsound. It is submitted that there is no alternative principle of justice which might be served by the protection against self-incrimination. The alternative argument is that there are three facets of the modern rationale for the principle in terms of which an adverse inference cannot be drawn, that is: (a) concern for reliability (by deterring improper investigation); (b) protection of privacy and dignity and (c) the right to remain silent is necessary to give effect to the privilege against self-incrimination and the presumption of innocence.[214] The first will be dealt with more fully below. As to the second, a suspected criminal has no greater claim to privacy and dignity than an innocent member of the public, who is obliged to furnish information. Concerning the third facet, it is argued that it is no more than circular reasoning.
6.34 To return to the first facet referred to above, it really incorporates two separate arguments. As to the first (concern for reliability), it has already been suggested that merely to apply a process of inferential reasoning has no potential to act as an inducement to an innocent person to make a false confession or admission. As to the potential that the wrong inference might be drawn, the danger is no greater than it is when inferential reasoning is applied to other relevant aspects of fact-finding. (See later.) As to the second (deterring improper investigation), undoubtedly there is merit in the inherent resistance to exposing suspects to police questioning, founded upon abuses that have accompanied such questioning in the past in all countries. Nor is there reason to believe that such abuses that have taken place in the past and still do take place will not continue. It is those abuses that were sought to be avoided by the rules that were laid down in Miranda v Arizona.
However, as pointed out by Zuckerman,[215] the creation of obstructions to legitimate police questioning tends only to drive the abuses underground for questioning is an integral part of modern police investigation. The remedy is rather to ensure that it is adequately controlled in order to avoid abuses. It provides no reason, however, for excluding that evidence when it has not been accompanied by police abuse. Furthermore, what must always be borne in mind is that there is, by definition, no prospect of suspects being induced to incriminate themselves falsely, which, it is submitted, is the rationale for the prohibition upon compulsory self-incrimination.
Nevertheless, because of the inherent possibility that suspects in police custody might be subjected to oppression, aimed at eliciting positive self-incrimination (oppression can never produce self-incrimination by silence) and that the fear of an adverse inference being drawn might contribute to succumbing to that oppression, it is submitted that a duty to respond to police questioning (in other words, permitting an inference to be drawn from silence) should only be recognised if, at the same time, adequate provision is made for control to be exercised over the process of police questioning. This topic is dealt with more fully in paragraphs 6.59 - 6.68 of this discussion paper.
6.35 The question now under consideration has been the subject of considerable debate in other countries which in an adversarial system of criminal justice recognise the right of a suspect to remain silent. The arguments against recognising such a duty were fully explored by the Royal Commission on Criminal Justice,[216] and were reiterated in the report of an enquiry conducted by a Committee of the Parliament of Victoria.[217] The arguments all come down to a fear that the inference which will be drawn might not be the correct one, rather than to any principled objection to the admissibility of a correctly drawn inference. In other words, the argument which is advanced is that a jury might draw an inference in circumstances in which the inference is not warranted (which takes us back to the first facet of the ”modern rationale” referred to above). It was pointed out in the reports of those enquiries that there might be cases in which the suspect is distrustful of the police, lacks the sophistication to appreciate the significance of his or her failure to reply to a question, does not make the relevant disclosure for fear that some other, unrelated, consequence might eventuate or does not make the disclosure for any one or other of a number of reasons that are unrelated to whether he or she has an innocent explanation.[218] Quite obviously if those were to be the true facts, then the requisite facts from which to draw the inference would be absent and the inference ought not to be drawn. However, that provides no explanation for why the inference ought not to be drawn if it is the correct one. It merely reminds one that there are inherent dangers in inferential reasoning.
6.36 The arguments which have been advanced in those countries should serve as a salutary reminder of the danger of slavishly adopting the views that have been expressed in countries that utilise procedures which differ materially from our own.[219] Mr Justice G.L. Davies of the Queensland Court of Appeal has recently expressed the opinion that:
... the unstated reason for the existence of (the immunity against adverse inferences from silence) and the reluctance of judges and practising lawyers to contemplate its abolition is a distrust of the capacity of juries to draw sensible unprejudiced inferences.[220]
6.37 There are several reasons why it is submitted that those objections ought not to be accorded undue weight:
* In countries in which the fact-finding function is placed in the hands of a jury, which is not required to disclose the process of its reasoning, there may well be justification for avoiding a risk that the jury will fall into an error of deductive reasoning, but the experience of those countries is not relevant, in that respect, in this country. The process of fact-finding in this country is generally in the hands of a judicial officer. Even where the participation of assessors might be decisive, the reasons for reaching any conclusion of fact are required to be articulated and are thus open to scrutiny by an appeal court.
* The problem is in any event more apparent than real. When debating this issue one should avoid talking in general terms of an “adverse inference” being drawn, without at the same time identifying just what that inferential fact might be. There can be no suggestion that a finding of guilt might be made merely upon the production of evidence that the suspect failed to reply to questions, for evidence of silence in the face of police questioning, without anything more, adds nothing to a complete absence of evidence. There is no possibility of a finding of guilt merely upon evidence that the accused failed to reply to police questions. The only inference that arises from the silence of the suspect, is that he or she did not have an innocent explanation at that time.[221] By itself, that cannot support a finding of guilt. It is only where incriminating evidence is advanced in court, and the accused provides a different explanation for that evidence, that the inferential fact becomes relevant. Accordingly, an accused person against whom an inference might be sought to be drawn for failing to make disclosures to the police will always be in a position to provide an explanation for why he or she chose to remain silent, which a court might accept or reject, precisely because the inference is only relevant if he or she testifies. If the accused does fail to make disclosures to the police for any one or other of the reasons which have been referred to, his or her remedy is simply to say so at the time he or she gives evidence at the trial. If a court accepts the explanation it will not draw an inference against the accused. If it rejects the explanation it might draw an inference against the accused. These are the normal incidents of fact-finding. The danger that an incorrect factual finding will be made is no different in this case to the danger that presents itself in relation to inferential reasoning in general, yet it has never been suggested that inferential reasoning should be prohibited because it might result in errors. It has been suggested that the objections which were advanced by the Royal Commission, and the Victoria enquiry, do not withstand critical scrutiny.
6.38 It has been suggested that none of the arguments which has been advanced in this report (paragraphs 6.42 - 6.66), or in the reports of the Commissions which have been referred to, provides any grounds for believing that the innocent might be at risk if a duty of disclosure were to be recognised. The only risk is that an inference might be drawn when the facts do not warrant it. As mentioned, that is an inherent risk of inferential reasoning, but it has never been suggested that inferential reasoning should for that reason be prohibited. The problem is not unique when applied in this context.
6.39 Notwithstanding the recommendations of the Royal Commission to the contrary,[222] the English law was amended by the Criminal Justice and Public Order Act 1994 to allow inferences to be drawn from silence in specified circumstances. The relevant provisions are contained in sections 34 to 37 of the Act. For present purposes it is not necessary to consider the provisions of the Act insofar as they relate to inferences from the failure to testify, nor is it appropriate to attempt any analysis of the sections. In broad terms the Act expressly allows the jury to draw an appropriate inference from the failure of the accused to disclose to the police a fact that is relied upon for the defence (section 34), or fails to account, at the time of arrest, for any object or substance or mark that is found upon his person or clothing or in his possession or at the place of the arrest (section 36), or fails to account for his presence at the place of arrest (section 37).
6.40 If it were considered to be desirable to allow for an appropriate inference to be drawn from the silence of a suspect, it would seem to be desirable that there should be common grounds for the admissibility of all evidence emanating from such questioning. That issue is dealt with more fully in paragraphs 6.69 - 6.74 below.
6.41 It is recommended that the Criminal Procedure Act be amended expressly to permit a court to draw an appropriate inference from the pre-trial silence of a suspect in the circumstances contemplated by sections 34, 36 and 37 of the Criminal Justice and Public Order Act 1994 (England). The Commission submits the following amendment to the Criminal Procedure Act for comment:
1. (a) The following chapter is hereby inserted:
CHAPTER 23A
INFERENCES FROM ACCUSED’S SILENCE
Effect of accused’s failure to mention facts when questioned or charged
207A. (1) Where in criminal proceedings evidence is given that the accused–
(a) at any time before he or she was charged with an offence, on being questioned under warning and on being informed of the provisions of subsection(2) by a police officer in an attempt to determine whether or by whom the offence had been committed, failed to mention any fact relied on in his or her defence in such criminal proceedings; or
(2) Whenever in criminal proceedings the court has to decide whether–
(a) the accused may be discharged at the close of the case for the prosecution in terms of section 174;
(b) the accused is guilty of the offence charged; or
(c) the accused is guilty of another offence which constitutes a competent verdict on the offence charged,
the court may draw such inference from the accused’s failure contemplated in subsection(1), as may be reasonable and justifiable in the circumstances.
(4) This section also applies to questioning by persons, other than police officers, who are charged with the duty of investigating alleged offences, conducting inquiries in respect of the commission or attempted commission of suspected offences or the charging of offenders.
(5) This section does not–
(a) prejudice the admissibility in evidence of the silence or other reaction of the accused in the face of anything said in his or her presence relating to the conduct of which he or she is charged, in so far as evidence thereof would be admissible apart from this section; or
(b) preclude the drawing of any inference from any such silence or other reaction of the accused which could properly be drawn apart from this section.
Effect of accused’s silence at trial
207B. (1) This section applies in criminal proceedings in respect of any accused who has attained the age of 14 years, but does not apply–
(2) Where the court has asked the accused whether he himself or she herself intends to give evidence contemplated in section 151(1)(b), and–
(a) if the accused answers in the negative but decides, after evidence has been given on behalf of the defence, to give evidence himself or herself; or
the court may draw such inference from the accused’s conduct as may be reasonable and justifiable in the circumstances.
(4) This section does not render the accused compellable to give evidence on his or her own behalf, and he or she shall accordingly not be guilty of contempt of court by reason of his or her failure to do so.
(5) For the purposes of this section an accused who, having taken the oath or made an affirmation, refuses to answer any question shall be taken to do so without good cause unless–
(a) he or she is entitled to refuse to answer the question on the ground of privilege; or
(b) the court in the exercise of its general discretion, excuses the accused from answering it.
Effect of accused’s failure or refusal to account for objects, substances or marks
207C. (1) (a) Where a person is arrested by a police officer, and there is–
(i) on his or her person;
(ii) in or on his or her clothing or footwear;
(iii) otherwise in his or her possession;
(iv) in any place in which he or she is at the time of the arrest,
any object, substance or mark, or there is any mark on such object, and that police officer reasonably believes that the presence of the object, substance or mark may be attributable to the person arrested in the commission of an offence specified by the police officer, the police officer may inform the arrested person that he or she so believes and requests that person to account for the object, substance or mark.
the court may draw such inference from the accused’s failure or refusal contemplated in subsection(1), as may be reasonable and justifiable in the circumstances.
(3) Subsections(1) and (2) do not apply unless the accused was informed in ordinary language by the police officer when making the request referred to in subsection(1)(a), what the effect of this section would be if he or she failed or refused to comply with the request.
Effect of accused’s failure or refusal to account for presence at a particular place
207D. (1) Where–
(a) a person arrested by a police officer was found by him or her at a place at or about the time the offence for which the person was arrested is alleged to have been committed; and
(d) the person fails or refuses to do so,
then, if in any criminal proceedings against that person, evidence of those matters is given, the provisions of subsection(2) shall apply.
(2) Whenever in criminal proceedings the court has to decide whether–
(a) the accused may be discharged at the close of the case for the prosecution in terms of section 174;
the court may draw such inference from the accused’s failure or refusal contemplated in subsection(1), as may be reasonable and justifiable in the circumstances.
(4) This section also applies to questioning by persons, other than police officers, who are charged with the duty of investigating alleged offences, conducting inquiries in respect of the commission or attempted commission of suspected offences or the charging of offenders.
(5) This section does not preclude the drawing of any inference from any such failure or refusal of the accused to account for his or her presence at a place which could properly be drawn apart from this section..
(b) Section 151 of the principal Act is hereby amended by the substitution for paragraph (b) of subsection(1) of the following paragraph:
(b) The court shall also ask the accused whether he himself or she herself intends giving evidence on behalf of the defence, and[-
(i)] if the accused answers in the affirmative, he or she shall, except where the court on good cause shown allows otherwise, be called as a witness before any other witness for the defence[; or
(ii) if the accused answers in the negative but decides, after other evidence has been given on behalf of the defence, to give evidence himself, the court may draw such inference from the accused's conduct as may be reasonable in the circumstances].
(c) ALTERNATIVE PROPOSAL TO SECTION 151 - Amendment of section 151 of Act 51 of 1977
Section 151 of the principal Act is hereby amended by the deletion of paragraph (b) of subsection(1).
6.42 At common law suspects and accused persons may be questioned by the police but need not reply[223] and no adverse inference from the exercise of the right to remain silent will be drawn. This common-law right to remain silent has been reinforced by sections 35(1)(a) and 35(3)(h) of the Constitution.[224] Although the Judges’ Rules would appear to discourage custodial interrogation there is no formal prohibition of custodial interrogation, and the inquiry in each case should be whether the accused’s constitutional rights to remain silent and not to incriminate him/herself have been upheld.
6.43 The right to remain silent can be described as the absence of a legal obligation to speak.[225] The scope of this legal immunity is contentious. Fourteen members of the European Court of Human Rights in Murray v United Kingdom[226] held that in certain circumstances drawing an adverse inference from silence during interrogation would not violate the right to remain silent. In this case the court considered whether provisions in the Criminal Evidence (Northern Ireland) Order 1988 permitting adverse inference from silence during interrogation to be drawn infringed Article 6(1) and (2) of the European Convention of Human Rights, which implicitly protects the right to remain silent. The court found that there were safeguards built into the Order and that there was no compulsion to give evidence in that the Order did not impose a criminal sanction for silence, nor did it require that guilt be automatically assumed from silence. Nevertheless, the court found that in the circumstances Articles 6(1) and 3(C ) had been infringed on another basis: the denial of legal representation to Murray for the first 48 hours of his detention being unfair. Although the court recognised that the right to legal representation could be restricted on good cause shown, the Order by permitting adverse inferences from silence placed Murray in a situation where he would be severely prejudiced without legal representation.
6.44 Five members of the court were unable to agree with a narrow definition of the right to remain silent that merely guaranteed immunity from criminal prosecution. Mr E Busuttil[227] held:
In my view, the attachment of adverse inferences to the exercise of the right to silence in the pre-trial stage is a means of compulsion, in that it can constitute a form of direct pressure exercised by the police to obtain evidence from a suspect. The co-operation of the detainee can be obtained during interrogation with the threat of adverse inferences being drawn against him for remaining silent. Thus the suspect is faced with Hobson’s choice - he either testifies or, if he chooses to remain silent, he has to risk the consequences, thereby automatically losing his protection against self-incrimination.
6.45 At common law it is clear that the right to remain silent prohibited the courts from drawing adverse inferences from silence at the investigative stage of the proceedings. In terms of the common law the only time at which an adverse inference from silence was permissible was after the prosecution had established a prima facie case.[228] This prohibited the drawing of adverse inferences from silence at the plea stage. The question that then arises is whether it would be constitutionally permissible to read down the common law right to remain silent to accord with the definition in Murray.
6.46 The High Court in S v Brown[229] held that whilst the right to remain silent was recognized at common law, its constitutional status required a change in emphasis as regards its application. (The most obvious change is that any infringement of the right to remain silent is required to be justified with reference to the limitations clause).[230] Buys J, finding that the use of silence as an item of evidence amounted to an indirect compulsion to testify and the drawing of an adverse inference from silence diminished and possibly nullified the right to remain silent, held that it would be unconstitutional for the court to draw an adverse inference where accused persons elect to exercise their constitutional right to remain silent.[231] However, the court held that this does not mean that certain adverse consequences will not arise should an accused exercise the right to remain silent.[232] Where the State has established a prima facie case against the accused and the accused fails to testify or adduce any other evidence, the court is required to base its decision on the uncontradicted evidence of the State. In this situation it is possible, indeed common, that the prima facie case will be sufficient to sustain a conviction. In other words, although the accused’s silence may not be treated as an item of evidence he will incur the risk of conviction on the basis of the State’s uncontradicted prima facie case. But any inference drawn must be drawn from the uncontroverted evidence and not from silence.[233]
6.47 Reaching the opposite conclusion (and without reference to Brown), the court in S v Lavehengwa[234] fully endorsed the view of Trengove[235] that an adverse inference could be permitted in the appropriate circumstances, based on the following reasons:
It accords, first, with common sense. The inference is permissible only when the accused fails to give evidence despite the fact that the prosecution evidence strongly indicate guilt, an innocent accused would have refuted evidence against him, and there is no other explanation of his failure to do so. In these circumstances common sense demands that an inference be drawn and human nature is such that one would be all but inevitable. It has indeed been suggested that ‘no rule of law can effectively legislate against the drawing of an inference from a failure to testify’. Secondly, it is not mere sophistry to reason, ... that an accused’s right to remain silent is not denied or eroded by an inference drawn from his choice to exercise that right in circumstances where an innocent person would not have chosen to do so. It is suggested thirdly that, even if the rule permitting an adverse inference impinged upon the right of the accused to remain silent, it is any event probably a justifiable limitation.[236]
6.48 Whilst these two court judgments diverge as to the constitutional permissibility of drawing adverse inferences from silence at trial, both accept that no question of an inference being drawn will arise until the prosecution has established a prima facie case.[237]
6.49 In R v Noble[238] the Canadian Supreme Court was required to consider under what circumstances (if any) a trier of fact may draw an adverse inference from the failure of an accused to give evidence. Sopinka J (L’Heureux-Dube, Cory, Iacobucci and Major JJ concurring), in reaching the conclusion that the accused’s silence could not be used as inculpatory evidence, relied not only on the right to remain silent but also on the right to be presumed innocent. He held that if silence is treated as evidence, then the right to silence is violated as the accused has no choice but to furnish evidence, whether or not he elects to testify. Furthermore, the burden on the prosecution to prove guilt beyond a reasonable doubt prohibits the accused’s silence from being used as evidence so as to meet the required standard of proof. Sopinka J reasoned as follows:
If silence may be used against the accused in establishing guilt, part of the burden of proof has shifted to the accused. In a situation where the accused exercises his or her right to silence at trial, the Crown need only prove the case to some point short of beyond a reasonable doubt and the failure to testify takes it over the threshold. The presumption of innocence, however, indicates that it is not incumbent on the accused to present any evidence at all, rather it is for the Crown to prove him or her guilty. Thus, in order for the burden of proof to remain with the Crown, as required by the Charter, the silence of the accused should not be used against him or her in building the case for guilt.[239]
6.50 However, as noted by Lamer CJC (dissenting), the drawing of an adverse inference only becomes a possibility once the prosecution has discharged its evidentiary burden of establishing a prima facie case; silence cannot be used to establish a prima facie case. Healy,[240] defending Sopinka J’s conclusion, argues that treating silence as an item of evidence places an obligation on the accused to adduce evidence. He states that this infringes the presumption of innocence, ‘which protects the accused not only in disallowing the imposition of a legal burden on any exculpatory claim but by shielding him from the obligation to produce affirmative defence evidence’.
6.51 Although a consequence of the presumption of innocence is that the accused need not prove her innocence, logically the presumption of innocence cannot protect the accused from the risk of losing if she does not adduce sufficient evidence to raise a reasonable doubt in the face of a prima facie case. However, if an inference of guilt were an automatic consequence of silence, ie mandatory, the unreliability of such an inference would infringe the presumption of innocence as it would allow the possibility of conviction despite the existence of a reasonable doubt. Lamer CJC held that the accused’s silence would not be a basis for drawing an inference whenever a prima facie case was established, and would only be permissible where the accused is enveloped in a cogent network of inculpatory facts.[241]
6.52 In the South African context this might be equated with only allowing the drawing of an adverse inference from circumstantial evidence where the inference to be drawn is consistent with all the proven facts and the proven facts are such that they exclude every reasonable inference save the one sought to be drawn.[242] It is submitted that if the ‘circumstantial evidence test’ is applied, an inference from silence will not infringe the presumption of innocence. But this does not necessarily mean that the right to remain silent or the privilege against self-incrimination will not be infringed.
6.53 However, it can be argued that the rationale for the right to remain silent falls away once the prosecution has established a prima face case. Lamer CJC expressed the rationale for the right to silence in the following terms:
[I]t is up to the state with its greater resources, to investigate and prove its own case, and that the individual should not be conscripted into helping the state fulfil this task. Once, however, the Crown discharges its obligation to present a prima facie case, such that it cannot be non-suited by a motion for a direct verdict of acquittal, the accused can legitimately be expected to respond, whether by testifying him- or herself or calling other evidence, and failure to do so may serve as the basis for drawing adverse inferences.[243]
6.54 This approach may be criticised on the basis that the right to remain silent has an independent rationale other than a necessary reinforcement for the presumption of innocence. Although much has been written about the historical rationale for the right to remain silent and the privilege against self-incrimination[244] the modern rationale would appear to have three facets: (1) concern for reliability (by deterring improper investigation) which relates directly to the truth-seeking function of the court; (2) a belief that individuals have a right to privacy and dignity which, whilst not absolute, may not be lightly eroded; (3) the right to remain silent is necessary to give effect to the privilege against self-incrimination and the presumption of innocence.[245]
6.55 It is difficult to predict whether the South African Constitutional Court would favour the approach of Lamer CJC or Sopinka J. However, it can be assumed that if a negative inference has any chance of passing constitutional muster the prosecution must have discharged its burden of proving a prima facie case and, furthermore, that a negative inference cannot be an automatic consequence of silence.
6.56 The argument in favour of an adverse inference being drawn from pre-trial silence would be that the requirement of a prima facie case is met, as the adverse inference cannot be drawn until the prosecution has established a prima facie case. The contrary argument is that drawing an adverse inference from silence at the investigation stage compels the accused to speak before a prima facie case has been established.
6.57 Easton notes:
In the context of interrogation there is the possibility of suspects being pressured to make incriminating statements and a well documented danger of unreliable statements being produced, when the individual is subject to pressure and the risk that fundamental values of the criminal law may be infringed, including respect for privacy, human autonomy and dignity, the presumption of innocence and the principles of natural justice.[246]
6.58 The right to remain silent is described by Dennis as a feature of the criminal justice system which is required as a functional necessity in certain contexts.[247] (Dennis does not consider it appropriate to justify the these rights as human rights). According to Dennis, the privilege against self-incrimination together with the right to remain silent are functionally necessary during custodial interrogation:
The vulnerability consists of a risk either that the investigative powers may be used to obtain evidence which is factually unreliable or that they may be misused to compel the production of incrimination evidence by means inconsistent with the fundamental values of the common law. If either of these risks materialises the legitimacy of the criminal verdict may be compromised.[248]
6.59 Compelling the accused to speak before a prima facie case has been established severely compromises the function of the right to remain silent as a necessary corollary of the privilege against self-incrimination.
6.60 To date the Constitutional Court has favoured a purposive and generous approach to interpretation.[249] Given the common-law recognition that no inference could be drawn from pre-trial silence, a generous approach to interpretation militates against a definition of the right to remain silent, which means no more than immunity from criminal liability for silence. A generous interpretation would also best promote the purpose of the right in deterring improper investigative procedures and consequently protecting against the unreliability of coerced statements and upholding the rights to dignity and privacy.
6.61 The next step is to consider whether drawing an adverse inference from silence at the investigative stage meets the requirements of the limitations clause. Presumably the purpose of the limitation would be to ensure the accused’s pre-trial co-operation and to enhance the truth-seeking function of the court and general efficiency of the criminal justice system.
6.62 Whether or not the limitation will result in greater co-operation from the accused is debatable. Studies in England show that prior to the amendment of the common law (ie when no adverse inference could be drawn from pre-trial silence) a significant proportion of suspects did co-operate. The percentage of suspects exercising their right to remain silent ranged from 2.4% to 9 %,[250] the variation in degree of co-operation appearing to be area specific. Legislation in England permitting an adverse inference from silence to be drawn seems to have made little difference to the number of suspects that co-operate and those that don’t, and has had no apparent impact on the conviction rate.[251] In Argentina, despite an express prohibition on the drawing of adverse inference from silence[252] “experience shows that defendants rarely choose to stand mute at this stage”.[253] Similar findings were made by the New South Wales Law Reform Commission.[254] Empirical research in South Africa would probably produce similar results.
6.63 The utility of drawing such an inference must also be determined according to the reliability of such an inference. There are many possible reasons for the absence of a recorded statement; such as police illiteracy and ineffectiveness rather than from any act or omission on the part of the accused. The Scrutiny of Acts and Regulation Committee of the Parliament of Victoria[255] identified the following explanations for silence other than guilt:
- a desire to conceal embarrassing but non-criminal facts, or to conceal offences not under investigation;
- a desire to protect others;
- a negative or distrustful attitude towards the police, including the fear that the police may distort anything the suspect says or may be unwilling to accept the suspect’s explanation;
- a belief that allegations are so absurd or offensive that they should not be dignified with a response;
- the fact that the suspect may be shocked or confused by the allegations;
- the fact that the suspect may lack confidence in the use of the English language;
- the fact that the suspect may be tired, intoxicated, under the influence of drugs, suffering from psychiatric illness or intellectual disability, or otherwise in an unfit state to do justice to themselves;
- the fact that the allegations may be vague or unclear;
- the view that the police may be unwilling to disclose to the suspect and/or his or her legal adviser enough of the evidence against the suspect for the suspect to be in a proper position to evaluate and/or answer the case against him or her;
- the fact that the events which have given rise to the allegation may be so factually complex or the issues upon which guilt will turn so fine, that the suspect may take the view that it would be unwise to answer any questions until they have had the opportunity to review their situation with the aid of a lawyer; and
- the fact that the suspect may have been advised by his or her solicitor to refuse to answer questions, such advice being justified by any of the reasons referred to above.[256]
6.64 The utility of drawing an adverse inference from silence must also be measured in terms of costs. In England the relevant legislative reforms have led to an increase in the number of people exercising their right to legal aid.[257] Permitting such an inference will also no doubt lead to challenges regarding the appropriateness of drawing such an inference in the circumstances. Consequently it cannot be concluded that drawing adverse inference from silences will save time or money.[258]
6.65 Drawing an adverse inference from silence during custodial interrogation will infringe the constitutional right to remain silent as well as the privilege against self-incrimination, and has insufficient utility to constitute a justifiable limitation.
6.66 It is recommended that no change be made to the common-law position concerning the drawing of inferences from silence.
6.67 Our law has tended to leave the issue of the legitimacy of police questioning a little ambiguous. It has relied for control upon the “threshold” rules for the admissibility of admissions and confessions, supplemented by a discretion to exclude objectionable evidence, and more recently, a prohibition upon the admissibility of evidence which renders the trial “unfair” or is “detrimental to the administration of justice.”[259]
6.68 Quite clearly, it is undesirable for suspects to be exposed to police questioning which is controllable only by the subsequent exclusion of evidence and, moreover, upon grounds that neither the suspect nor the police officer concerned can necessarily be expected to know in advance.
6.69 From the time of the formulation in England of the “Judges’ Rules” early in the 20th century, there has been a consistent practice in that country of laying down guidelines for the interaction between the police and suspects which, from about the 1960's, moved steadily in favour of recognising the legitimacy of police questioning.[260] In this country, although similar “Judges’ Rules” were adopted, they largely fell out of use in any meaningful sense.[261]
6.70 In England, section 66 of the Police and Criminal Evidence Act 1984 (“PACE”) authorises the Secretary of State to issue codes of practice in connection with, inter alia, the detention, treatment, questioning and identification of persons by police officers. The failure to adhere to any such code will not render the police officer criminally or civilly liable, but evidence secured in breach thereof may be rendered inadmissible.[262] It is not intended in this paper to analyse those codes in any detail.[263] It is sufficient to say that the relevant code currently in use (Code C) requires the suspect to be cautioned before being required to answer questions; the suspect is entitled to take legal advice; an accurate record must be kept of the interview;[264] and the interview must not be “oppressive”.[265]
6.71 The introduction of similar Codes of practice in this country will go a long way towards regulating the interaction between suspects and the police and reducing the objection to police questioning of suspects. The South African Police Services, in response to the constitutional entrenchment of the right not to be tortured and the signing of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment 1984 have compiled a Policy on the Prevention of Torture and The Treatment of Persons in Custody of the South African Police Service.
6.72 The Policy is in the form of instructions which will eventually be incorporated into National Orders and Instructions issued by the Commissioner in terms of s.25 of the SA Police Services Act. In the interim the Policy document states that ‘[u]ntil this is done, it is the responsibility of every station commissioner and other commander to ensure that members under their command at all times adhere thereto’. These instructions constitute a detailed code of conduct and once fully disseminated, should resolve uncertainties regarding the scope of police questioning.
6.73 The instructions clearly permit custodial interrogation and if followed should ensure constitutional compliance.[266] By providing a clear and comprehensive set of rules of procedure applicable to police questioning, the instruction should assist in reducing delays and costs in the criminal justice system by reducing the time spent considering challenges to the admissibility of prosecution evidence.
6.74 The question then arises whether it is sufficient that these instructions should constitute National Orders and Instructions, which are subject to amendment by the Commissioner, or whether it is desirable that they have a more formal status. It is submitted that it would be desirable if the Instructions were incorporated in regulations made by the Minister of Safety and Security in terms of section 24 of the South African Police Services Act 68 of 1995, which would allow for broader participation in their formulation and amendment.
6.75 If the Instructions are to be given regulatory status, the contents should be the subject of further investigation and consultation to ensure acceptance by all participants in the administration of justice. The terms in which the Instructions have been framed at this stage might also need to be revisited if the recommendation made under option 1 above is adopted.
6.76 It is recommended that a police code of conduct for the treatment of persons in custody be incorporated in regulations published in terms of the Police Act, and that the Police Services take responsibility to develop such regulations.
6.77 Our law draws a distinction between admissions (whether by words or by conduct) and confessions in determining the “threshold” requirements for admissibility. The significance of the distinction is that the requirements for admissibility are more onerous for confessions than for admissions.
6.78 For an admission to be admitted into evidence it must be established that it was made “voluntarily”,[267] and that term has been restrictively interpreted. An admission is not voluntary if it has been induced by a promise or threat proceeding from a person in authority.[268] A confession may be admitted into evidence only if it was “freely and voluntarily” made by the accused in his “sound and sober senses and without undue influence”. If the confession was made to a peace officer other than a magistrate or justice, the confession must be reduced to writing and confirmed in the presence of a magistrate or justice.[269]
6.79 The distinction that has been made between admissions and confessions owes its origin to early judicial reaction to the exclusion of “confessions” made to police officers.[270] There is no rational reason for different treatment to be given to various self-incriminatory statements (or conduct), irrespective of whether they are made to the police. In each case the evidence is only relevant because it is incriminatory, and should be admissible on common grounds.
6.80 The reduction of a confession to writing in the presence of magistrate does not appear to have had any significant advantages for the accused.[271] The real protection afforded by s 217 is the requirement that the prosecution must establish that the confession was made freely and voluntarily and without undue influence.[272]
6.81 The distinction may also hamper effective police investigations in that a genuine failure to recognise a statement as a confession may lead to exclusion from evidence if it is not reduced to writing in the presence of a magistrate. The distinction would also appear to inhibit investigating officers from recording confessions themselves.
6.82 A further aspect which should be considered is the trial-within-a-trial procedure to determine the admissibility of confessions. The function of the trial-within-a-trial procedure (known as voire dire in England) was aptly expressed by the House of Lords in R v Brophy[273]
If such evidence, being relevant, were admissible at the substantive trial, an accused person would not enjoy the complete freedom that he ought to have at the voire dire to contest the admissibility of his previous statements. It is of the first importance for the administration of justice that an accused person should feel completely free to give evidence at the voire dire of any improper methods by which a confession or admission has been extracted from him, for he can almost never make an effective challenge of its admissibility without giving evidence himself. He is thus virtually compelled to give evidence at the voire dire, and if his evidence were admissible at the substantive trial, the result might be a significant impairment of his so-called right to silence at the trial.
6.83 In South Africa the procedure has been considered in a number of cases. In S v Sithebe[274] Nienaber JA considered the procedure and expressed its function in similar terms:
The principle which it exemplifies is that an accused must be at liberty to challenge the admissibility of an incriminating document at a trial within the trial without fear of inhibiting his election at the end of the day - irrespective of whether the document is admitted or not - of not testifying on the issue of his alleged guilt.
and in S v K[275] the court concluded that:
The trial-within-a-trial procedure is, of course, one designed to cater for the accused's right to a fair trial in order to ensure that questions of admissibility and of guilt are distinguished from each other and decided separately. At the end of the State case an accused is entitled to know exactly what evidence will be put into the scale against him, albeit that he is not entitled to know the weight the Court would attach to the evidence. An accused needs to have the freedom to decide whether he wants to testify on the merits in the main trial and the only mechanism which affords an accused the opportunity to limit his evidence as to questions of admissibility is a trial-within-a-trial (see S v Mhlakaza en Andere 1996 (2) SACR 187 (C)).
6.84 In S v De Vries[276] the court held that an accused’s evidence during a trial within a trial could not be held against him in determining his guilt. This is achieved by insulating the inquiry into the voluntariness of a confession in a compartment separate from the main trial and by determining the admissibility of the confession through a trial within a trial. At such a trial the accused can go into the witness-box and testify on the question of voluntariness of the confession without being exposed to general cross-examination on the issue of his guilt. The prosecution may not, as part of its case on the main issue (the guilt of the accused), lead evidence regarding the testimony of the accused during the trial within the trial. However, during a trial within a trial the accused may dispute that he was the author of the confession in that he may allege that he was instructed by police officers as to the contents of the confession. In other words he may allege that the confession originated from the persons questioning him. In such a case the need arises to cross-examine the accused on the contents of the statement which inevitably may relate to the issue of his guilt. It may therefore necessitate the State to lead evidence in the main trial regarding his testimony in the trial within the trial since it may be relevant to the issue of his credibility. In such cases it becomes necessary for an exception to the rule which excludes evidence from the trial within the trial from the main trial.
6.85 In S v Nglengethwa[277] the Supreme Court of Appeal considered a case where an interpreter gave evidence in the trial within a trial as to the words which the accused used during a pointing out. The State neglected to repeat his evidence during the proper trial. The Supreme Court of Appeal held that the evidence in the trial within the trial could be used in determining the accused’s guilt. The court added that although the judgment deviated from existing practice, the accused was not prejudiced thereby. His advocate throughout the trial accepted that the full pointing out was before the trial court and the appellant also testified during the trial as to the pointing out. The court stated that the decision in S v De Vries does not mean that those parts of the State’s evidence relevant in respect of the accused’s guilt and which have been presented before the full court, cannot also be taken into account. If a trial is conducted by either a judge alone or a magistrate, it is nonsensical and a waste of costs, time and energy to repeat evidence which was presented during the trial within the trial at the end of such trial within a trial. The same principle applies for trials before a judge and assessors where the assessors participate in the trial within a trial. The court emphasised that the purpose of a trial within a trial is twofold: provisionally to withhold the contents of a prejudicial statement from the court, and to give the accused the opportunity to testify before the closing of the State’s case without fear that his evidence will later be used against him.
6.86 It is recommended that the Criminal Procedure Act be amended to provide common requirements for the admissibility of all statements or conduct of the accused which might be self-incriminatory and which:
(a) will not distinguish between police officers and others;
(b) will not require any such statement to be reduced to writing;
(c) will expressly confer a discretion upon a court to exclude any such statement or conduct which is elicited in substantial breach of the regulations relating to the treatment of persons in custody referred to above.
The Commission also proposes that the Criminal Procedure Act be amended to allow an accused to be cross-examined during the main trial on any previous inconsistent statements made during the trial-within-the-trial, and thereby allowing for the admissibility of evidence given during the trial within a trial also in the main trial.
6.87 The following amendments are submitted for comment:
(a) The following section is hereby substituted for section 217 of the principal Act:
Admissibility of confession or admission by accused
(1) Evidence of any confession or admission made orally, in writing or by conduct by any person in relation to the commission of any offence shall, if such confession or admission is proved to have been freely and voluntarily made by such person in his or her sound and sober senses and without having been unduly influenced thereto, be admissible in evidence against such person at criminal proceedings relating to such offence[: Provided-
(a) that a confession made to a peace officer, other than a magistrate or justice, or, in the case of a peace officer referred to in section 334, a confession made to such peace officer which relates to an offence with reference to which such peace officer is authorized to exercise any power conferred upon him under that section, shall not be admissible in evidence unless confirmed and reduced to writing in the presence of a magistrate or justice; and
(b) that where the confession is made to a magistrate and reduced to writing by him, or is confirmed and reduced to writing in the presence of a magistrate, the confession shall, upon the mere production thereof at the proceedings in question-
(i) be admissible in evidence against such person if it appears from the document in which the confession is contained that the confession was made by a person whose name corresponds to that of such person and, in the case of a confession made to a magistrate or confirmed in the presence of a magistrate through an interpreter, if a certificate by the interpreter appears on such documents to the effect that he interpreted truly and correctly and to the best of his ability with regard to the contents of the confession and any question put to such person by the magistrate; and
(ii) be presumed, unless the contrary is proved, to have been freely and voluntarily made by such person in his sound and sober senses and without having been unduly influenced thereto, if it appears from the document in which the confession is contained that the confession was made freely and voluntarily by such person in his sound and sober senses and without having been unduly influenced thereto.
(3)] (2) Any confession or admission which is under subsection (1) inadmissible in evidence against the person who made it, shall become admissible against him or her
(a) if he or she adduces in the relevant proceedings any evidence, either directly or in cross-examining any witness, of any [oral or written] statement made by him or her either as part of or in connection with such confession or admission; and
(b) if such evidence is, in the opinion of the judge or the judicial officer presiding at such proceedings, favourable to such person.
(3) Should an accused give evidence or call a witness in his or her defence, the evidence of the accused or any admission made by or on behalf of the accused, and the evidence of any such witness during a trial within the trial relating to the admissibility of evidence against the accused, shall be admissible against the accused or the said witness, as the case may be.
(b) Section 218 of the principal Act is hereby amended by the deletion of subsection(2).
(c) Sections 219 and 219A of the principal Act are hereby deleted.
6.88 There have been suggestions that the defence should be required to make disclosure of its defence at some time after the indictment has been presented, and at least at the time of the plea.
6.89 As pointed out earlier in this discussion paper, the purpose which is served by requiring defence disclosure will largely be dependent upon the stage at which such disclosure is required. By the time the accused has been indicted it must be assumed that the investigation is complete, and accordingly the only real purpose that is served by requiring defence disclosure at that stage is to curtail the trial.
6.90 A summary of the approach to defence disclosure in a variety of jurisdictions has been discussed in chapter 4. It suffices to say that in a number of domestic and international tribunals, including England and the United States, there are fairly extensive duties of disclosure resting upon the defence; but there are also a number of countries that do not require defence disclosure[278].
6.91 Following the decision in Shabalala v Attorney-General, Transvaal,[279] there is a duty upon the prosecution to make extensive disclosure to the defence. However there is no similar general duty upon the accused, although there are certain specific circumstances in which the accused is, in reality, called upon to do so, as for example in the following cases:
6.92 There are several arguments in favour of a general duty of disclosure:
(a) if the purpose of a criminal trial is a search for the truth there is no reason to reject defence disclosure;[287]
(b) the elimination of surprise would enable the State properly and timeously to investigate defence allegations;[288]
(c) now that prosecution disclosure is required, defence disclosure is necessary to maintain balance in the criminal justice system;
(e) defence disclosure would make the criminal justice system more efficient and effective. Defence disclosure would encourage realistic pre-trial discussion of the merits of the charge and this in turn would lead to the early disposal of the case, either by a plea of guilty being entered or a withdrawal of the charges.
(f) defence disclosure allows counsel to prepare more effectively;
(g) it saves time, costs and inconvenience by narrowing the issues;
(h) it prevents the subsequent fabrication of false defences;
(i) defence disclosure is a modern characteristic of a number of jurisdictions that are essentially adversarial in nature, for example, England, Wales, Scotland, United States; and
(j) defence disclosure does not necessarily infringe the privilege against self-incrimination. In England the Royal Commission on Criminal Justice commented as follows:[289]
We do not, as we have said, believe that a requirement on the defence to disclose the substance of their case sooner rather than later infringes the right of defendants not to incriminate themselves. Where defendants advance a defence at trial it does not amount to an infringement of their privilege not to incriminate themselves if advance warning of the substance of such defence has to be given. The matter is simply one of timing. We emphasize that under our proposal defendants may, if they choose, still stay silent throughout the trial.[290]
6.93 The following are some of the arguments (not all are relevant to the South African situation) that have been advanced against a general duty of disclosure:[291]
(a) the arguments requiring prosecution to disclosure do not apply to defence disclosure;
(b) prosecution disclosure is necessary to enable the accused properly to prepare a defence. This right is essential in ensuring that the innocent are not convicted;
(c) the roles of the defence and prosecution are conceptually different. The defence is placed in a purely adversarial role and has no duty to assist the prosecution. The prosecution duty is directed towards ensuring that justice is done, and not towards winning or losing;[292]
(d) the Bill of Rights confers rights upon the accused. These rights are not conditional upon the imposition of duties on the accused;
(e) because it is very difficult to ascertain the truth in any circumstances, the rules underlying our criminal justice system are directed at ensuring that the innocent are acquitted, even if this requires the acquittal of persons who are guilty. It is the price we pay to ensure that the rights of the innocent are not eroded;
(f) defence disclosure will not necessarily lead to an increase in efficiency. In this regard Leng notes:
[D]efence lawyers are unlikely to go out of their way to disclose every last detail. If that is the case, disputes may arise not only about whether disclosure has been made but also about its sufficiency. Where multiple defences are notified, their consistency or otherwise may be disputed and for all cases the nature of the permissible inferences must be decided. If the judge decides many of these issues against defendants, a spate of appeals may be expected. It also seems very improbable that by multiplying the issues to be determined at pre-trial hearings, one can reduce the time spent in court.[293]
(g) there is little evidence in other jurisdictions as to the existence of ambush defences and the prosecution in the vast majority of cases is able to predict which defences will be raised.[294] The Law Reform Commission of Canada noted:
[I]n terms of the ability to investigate and prepare for trial prosecutors are seldom disadvantaged by the lack of discovery of the accused, nor should they be. The human and physical resources of police investigation, the power to search and seize, to question, and access to scientific laboratories, far outmatch the resources available to the defence... In our survey of the profession the great majority of prosecutors acknowledged that they are generally able to prepare to meet the case for the defence by the material contained the prosecution file.[295]
(h) the imbalance between defence and prosecution resources militates against compelling defence disclosure;[296]
(i) it is wrong in principle: ‘The defendant should be required to respond to the case the prosecution makes, not to the case it says it is going to make ... it is not the job of the defendant to be helpful either to the prosecution or to the system.’[297]
(j) the unrepresented accused will be disadvantaged by compulsory defence disclosure owing to insufficient skill and knowledge regarding the most advantageous method for compliance or simply not knowing whether to comply at all;
(k) the prosecution may tailor evidence to meet the defence case;[298]
(l) compulsory defence disclosure leads to an increase in the number of people exercising their right to legal aid;
(m) defence disclosure has no significant impact on conviction or ‘clear-up rates’;[299]
(n) the assumption that silence only favours the guilty is fallacious;
(o) defence disclosure may infringe the right to remain silent and the privilege against self-incrimination;
(p) defence disclosure may infringe the presumption of innocence;
(q) increasing pressure on the accused to speak undermines the right to privacy and dignity. Consequently, if inroads are to be made on such fundamental rights the utilitarian benefits need to be substantial and tangible and they are not;
(r) there is no appropriate means of compelling defence disclosure; and
(s) an adverse inference from the failure to disclose a defence has no rational basis.
6.94 It has been pointed out above that the grounds in relation to the unconstitutionality of drawing an adverse inference from silence for non-disclosure at the pre-indictment stage are no doubt diminished at the post-indictment stage, on the premise that the question of defence disclosure does not arise until there has been prosecution disclosure. Nevertheless, it has been suggested that the arguments retain validity, as there is a clear distinction between the establishment of a prima facie case and pre-trial disclosure by the prosecution. Consequently, in line with the argument raised in this regard, it has been said that compelled post-indictment disclosure will also infringe the right to remain silent, the privilege against self-incrimination and probably the presumption of innocence. It is not necessary to revisit these arguments as the view has been expressed that the right to a fair trial would nevertheless be infringed on the basis that drawing such an inference lacks internal rationality.
6.95 The principal objection to requiring defence disclosure at this stage of the process is that it will not be capable of being enforced in any meaningful way. To expose the accused to any threat of punishment for failing to disclose his or her defence will clearly be in conflict with section 35(3) of the Constitution.
6.96 It has been suggested at times that there would be an incentive to disclose the basis of the defence if the accused were to face the peril that an “adverse inference” might be drawn should he or she fail to do so. In the Commission’s view it is unhelpful to discuss such a proposal in abstract terms. The question that needs to be asked is what inference a court might draw. Quite clearly a court may not convict the accused (i.e. it may not draw an inference that he or she is guilty) simply because of a failure to disclose the defence, and that proposition requires no elaboration. Nor, in the Commission’s view, is there any scope for drawing any other meaningful inference.
6.97 It must be borne in mind that once the accused has been indicted, and certainly by the time of the plea, the accused will most often be aware of every material aspect of the prosecution case. To the extent that the accused intends trimming his or her sails to meet the prosecution case, this will have been done by the time of the plea. Without a critical analysis of the nature of the inference that might be sought to be drawn for failing to disclose the defence at the time of the plea, is in the Commission’s view somewhat meaningless, and to expect this to provide an inducement to make disclosure is unrealistic.
6.98 The problems that occur for the prosecution after the accused has been indicted are twofold: First, the accused might have a defence that has not been anticipated by the prosecution. No doubt it would be desirable for that to be disclosed in advance but there is no means of forcing such a disclosure, nor does the failure to disclose it give rise to any relevant inference that will not in any event be capable of being drawn once the defence is advanced.[300] Furthermore, it is open to the prosecution to re-open its case in the event of evidence emerging that it could not anticipate; and the court itself has a discretion to call for evidence that might be required in the interests of the administration of justice. Secondly, the prosecution might be put to the trouble of calling evidence that might be unnecessary in that it is not seriously challenged. That might be a matter to take into account in determining the appropriate sentence[301] but to do so raises questions of principle similar to those which arise in relation to plea agreements, and it is suggested that this possibility should best be examined in that context. There is, of course, the inherent possibility that pre-trial procedures might result in some defence disclosure being made, but that will follow naturally from the recommendation made in relation to that topic below.
6.99 Section 115 of the Act facilitates defence disclosure if the defence chooses to make such disclosure. Generally disclosures are made by unrepresented accused but not by represented accused, who recognise that there is little advantage to the defence in doing so. We have already expressed the view that no realistic mechanism exists for compelling an accused to make disclosures.
RECOMMENDATION
OPTION 1
6.100 The Commission’s provisional view is that no legislative intervention is necessary at this stage in relation to defence disclosure after the accused has been indicted and until the time he or she is called upon to plead. The matter should be considered in conjunction with proposals that are being considered in relation to plea bargaining.
OPTION 2
6.101 However, the Commission has received alternative proposals in this regard from the National Director of Public Prosecutions, and these proposals for reform are discussed hereafter.
6.102 The National Director of Public Prosecutions is of the view that we have reached the time in our criminal justice system where we should no longer cling to procedures steeped in the traditions of the past. Those traditions create delays, waste money and lengthen trials unnecessarily . He is of the view that with regard to defence disclosure we should seriously consider and adopt the legislative initiatives of certain foreign jurisdictions. The problem of overloading court rolls, unnecessary delays and lengthy trials is a global problem. It is significant that there are various countries grappling with exactly the same problems and they are at present also considering changes. In this regard reference is made to the following developments:
AUSTRALIA
6.103 In R v Ling[302] Doyle CJ remarked as follows:
It may be that the time has come for some limits to be placed upon the right of silence and for some obligation to be imposed upon the defence to join in the identification of and limiting of issues in criminal proceedings to an extent inconsistent with the maintenance of the right of silence. It is well known that criminal courts in Australia and in other countries are struggling to cope with the volume of work coming before them. It is equally well known that the length of trials is tending to increase. These matters are a cause for real concern. It is equally well known that the effectiveness of current methods of case flow management is limited because, among other things, under rules such as those that exist in South Australia, the court has no power to require the defence to disclose the nature and extent of the defence case.
The appropriate balance between the responsibility of the court for the efficient conduct of cases before it, and so the width of its powers of case management on the one hand, and the operation of the right of silence on the other hand, is an important issue. ( Emphasis added)
6.104 At a Conference on Reform of Court Rules and Procedure in Brisbane in July 1998, the Commonwealth Director of Public Prosecutions, Brian Martin, QC, observed that the financial cost to the community of administering the criminal justice system is substantial. He furthermore pointed out that the public has an interest not only in ensuring that the proceedings are fair to an accused but also that the proceedings are efficient. He specifically referred to modification at the investigative stage, and in this regard he remarked as follows:
We should learn from the UK experience over a reasonable period. There are obvious difficulties associated with imposing the obligation at the investigative stage and, if imposed, effective protective mechanisms would be required. In this context it is important to bear in mind that adverse comments can already be made if an accused gives a version in evidence inconsistent with a version given to investigators. It is only if an accused declines to answer questions that adverse comment is not permitted.
6.105 He continued by expressing the opinion that, subject to exceptional cases and the ability to cater for an unrepresented and genuinely disadvantaged accused, the appropriate time for the imposition of the obligation to disclose defence is “in the pre-trial process under the control of the trial court”.
6.106 In October 1998 the Australian Law Council published Draft Principles relating to the Reform of the Pre-Trial Criminal Procedure. Apart from certain proposals in respect of prosecution disclosure, defence inquiry and legal assistance, the Law Council makes the following remarks in respect of defence disclosure:
The public interest in improving the efficiency of criminal proceedings justifies consideration of some degree of pre-trial defence disclosure, whether in the form of answers to questions, responses to notices to admit, disclosure of any defence to the accusation or disclosure of defence evidence to be adduced at trial.
However, an important component of the accusatorial process is the accused person’s right to silence. If the state must prove guilt without the assistance of the accused, the accused should not be compelled to answer questions, make admissions, disclose a defence or disclose evidence. Equally, the accused should not be penalised for exercising the right. Consequently:
These conclusions do not prevent the development of procedures designed to facilitate, and encourage, pre-trial defence disclosure. Incentives to encourage pre-trial defence disclosure might include:
By the conclusion of the pre-trial process, the defence should be in a position to outline the nature of the defence case. If there is a trial, the defence should be required to provide that outline immediately after the prosecution opening address. (Emphasis added)
6.107 In respect of its proposals above, the Law Council also provides the following additional explanatory notes:
6.108 The New South Wales Law Commission has published a discussion paper in May 1998 dealing with the Right to Silence. The NSW Commission was directed to consider, inter alia -
In a comprehensive Discussion Paper the NSW Commission discusses the history of the right to silence, the right to silence when questioned by the police, pre-trial disclosure and the right to silence at trial. The NSW Commission also points out that the right to silence is currently under review in Victoria, Western Australia and the Northern Territory.
6.109 Without going into detail regarding the NSW Commission's discussions and conclusions, the Commission makes and reaches, amongst others, the following recommendations and conclusions:
The Right to Silence when Questioned by Police
This right is a necessary protection for suspects, and its modification would undermine fundamental principles. It would tend to substitute trial in the police station for trial by a court of law. A fundamental requirement of fairness in any obligation imposed to reveal a defence when questioned by police is that legal advice is available to suspects at this stage to ensure that they understand the significance of the caution and the consequences of silence. That requirement is incapable of being satisfied within presently available legal aid funding, and significant increases seem extremely unlikely.
Pre-trial Disclosure
The position regarding pre-trial disclosure in Australia is as follows:
New South Wales
There is no general common-law right to discovery by either party. The common law is modified by statutory disclosure requirements in relation to alibi defence in trials for indictable offences. The defence must give written notice of particulars of intended alibi evidence. If the prescribed procedure is not fulfilled, the proposed alibi evidence cannot be introduced without the leave of the court. In murder trials, the defence is required to give notice of the defendants’ intention to raise the defence that he or she is not guilty because of substantial impairment by abnormality of mind. Furthermore, disclosure by the prosecution is regulated by Barristers’ and Solicitors’ Rules, Prosecution Guidelines issued by the Director of Public Prosecutions and the Supreme Court Standard Directions.
Victoria
Since 1993 a legislative pre-trial disclosure procedure has been introduced in the County Court and Supreme Court. Mutual compulsory disclosure requirements are prescribed. A higher standard of disclosure is required of the prosecution and the defence is required to respond to the presentment by indicating which elements of the offence are admitted. Thereafter, the timetable for disclosure is set by the court at a pre-trial hearing. The prosecution must file in court and serve on the defence a case statement. This includes a summary of the facts and inferences the prosecution will seek to prove at trial, copies of witness statements, including expert witnesses, and a list of exhibits the prosecution intends to produce, etc. The defence is required to file and serve a defence response replying to the matters raised in the prosecution case statement, providing copies of expert witness statements and including statements of law the defence intends to rely on. The defence is not required to disclose the identity of its witnesses, other than expert witnesses. The defence is also required to disclose intended alibi evidence similar to the procedure required in NSW.
Northern Territory, South Australia, Tasmania, Australian Capital Territory
Defence disclosure requirements are similar to those prescribed in NSW in respect of alibi evidence.
Western Australia
Since 1993 a disclosure regime has been introduced by Criminal Practice Rules. The prosecution is required to provide the defence with a statement of facts and propositions of law on which it intends to rely and copies of prosecution witness statements. The defence, on the other hand, is required to provide disclosure by way of a statement indicating which facts alleged by the prosecution will be admitted and which facts will be disputed, the legal grounds of any defence which will be relied on and copies of statements of any expert witnesses whom the defence proposes to call. In criminal trials for indictable offences the defence is also required by legislation to disclose intended alibi evidence to the prosecution.
Queensland
In criminal trials for indictable offences the defence is required to disclose intended alibi evidence to the prosecution. The particulars are similar to those required in NSW.
6.110 After a detailed discussion and weighing up the arguments for and against compulsory prosecution pre-trial disclosure and defence pre-trial disclosure, the NSW Commission holds the view that the arguments in favour of pre-trial disclosure justify the introduction of compulsory disclosure in criminal trials in the lower and higher court. In respect of compulsory prosecution pre-trial disclosure the NSW Commission recommends specific material to be disclosed by the prosecution; when the prosecution would be required to provide pre-trial disclosure; the position relating to unrepresented accused; protective measures regarding the disclosure of specific material; the confidentiality regarding the material that has been disclosed by the prosecution; and the consequences of non-compliance.
6.111 In respect of compulsory defence pre-trial disclosure, the NSW Commission remarks as follows:
The main emphasis of the right to silence lies in a suspected person’s right to refuse to answer questions during the investigative stage, without adverse inference being drawn against the suspect from the exercise of that right, the need for which the Commission fully accepts at this stage notwithstanding the inroads which have been made in relation to that right overseas. The importance of the right to silence after the defendant has been committed for trial does not, however, rest upon the same basis as that which exists before the event. As Lord Mustill said in R v Director of Serious Fraud Office; Ex p Smith, few will dispute that the curtailment of the right to silence is indispensable to the stability of society; the issue is one as to where the line should be drawn, and the resolution of that issue must take into account the fact that the reasons for the right to silence at different stages are themselves different. The privilege against compulsory pre-trial disclosure of the nature of the defence case is of quite recent origin. (Emphasis added)
6.112 The NSW Commission consequently suggested the following three options:
Option 1: Disclosure of expert evidence
Under this option the defence would be compelled to disclose the names and addresses of proposed expert witnesses, and copies of expert reports upon which the defence proposed to rely at trial.
Option 2: Disclosure of expert evidence and the intention to raise certain “defences”
Under this option, the defence would be required to provide notice of the defence’s intention to raise intoxication, provocation, duress or self-defence, in addition to the existing notice requirements in relation to alibi and substantial impairment by abnormality of mind defences. The defence would also be required to disclose the expert evidence upon which it intended to rely at trial.
Option 3: Disclosure of the issues which will be litigated at trial and expert evidence.
This option would require the defence to disclose the general nature of the issues to be raised at trial - whether by denial of the elements of the charge or by way of exculpation. For example, the defence would be required to disclose whether the defendant disputes that he or she did the physical act alleged by the prosecution as an ingredient of the offence charged, whether the defence intends to challenge the admissibility of admissions alleged by the prosecution to have been made, the general nature of the objection to be taken, and whether issues such as intoxication, duress, self-defence or provocation are to be raised.
The principal justification for this option is the argument that the community (on whose behalf the Crown prosecutes) can no longer afford the luxury of defendants simply putting the Crown to proof of its case (where there is no real reason to dispute much of it) and having the right to raise issues for the first time during the trial itself when the Crown will have either no opportunity or only an inadequate opportunity to investigate those issues. According to the Commission this is far less an incursion upon the right to silence than that which Parliament has permitted by questioning under compulsory powers by various special investigative bodies. The Commission does not at this stage support any extension of those powers generally in the investigative stage.
If compulsory pre-trial disclosure of the general nature of the defence is required, the defendant will not be personally interrogated. The whole of the prosecution case will already have been disclosed to the defendant at the time when such disclosure is required, even the statements of its witnesses. The defendant will have had adequate time for reflection, with the benefit of legal advice, upon the material disclosed by the prosecution before having to nominate the issues to be litigated at the trial. The position of the defendant at this stage could not be more removed from that which he or she is in when being interrogated by the police. There is no legitimate prejudice suffered by the defendant in requiring disclosure of the defence at this later stage. The only advantage that will be lost is that of surprise.
The defence would also be required to disclose the expert evidence upon which it intended to rely at trial, as in option 1.
The consequences of non-compliance with the disclosure obligations raised in this option would be the same as the consequences of non-compliance set out in option 1.
Unrepresented defendants are a special case. Where the defendant is unrepresented, the obligation of disclosure should be imposed upon him or her only by order of the court in the particular case, when the court will be in a position to investigate with the unrepresented defendant whether modified disclosure would be appropriate. The fact that the absence of representation results from the defendant’s own choice would be relevant to determining the extent of disclosure which would be appropriate.
6.113 The New South Wales Law Reform Commission finalised its final report in July 2000 and made the following recommendations for implementation:[303]
RECOMMENDATION I (page 72)
The Commission recommends that s 89 of the Evidence Act 1995 (NSW)[304] be retained in its current form. Legislation based on s 34, 36 and 37 of the Criminal Justice and Public Order Act 1994 (Eng) should not be introduced in New South Wales.
RECOMMENDATION 2 (page 115)
The Commission recommends that the prosecution must be required to disclose the following material and information, in addition to the existing prosecution pre-trial disclosure requirements:
(a) All reports of prosecution expert witnesses proposed to be called at trial. In accordance with the general rule, such reports must clearly identify the material relied on to prepare them.
(b) Where the defence discloses its expert evidence, whether issue is taken with any part and, if so, in what respects.
(c) Whether defence expert witnesses are required for cross-examination. In this event, notice within a reasonable time must be given.
(d) In respect of any proposed defence exhibits of which notice has been given, whether there is any issue as to provenance, authenticity or continuity.
(e) Where notice is given that charts, diagrams or schedules are to be tendered by the defence, whether there is any issue about either admissibility or accuracy.
(f) Any substantial issues of admissibility of any aspect of proposed defence evidence of which notice has been given.
RECOMMENDATION 3 (page 116)
(a) Where no issue is taken by the defence as to the provenance, authenticity, accuracy, admissibility or continuity of prosecution exhibits, charts, diagrams or Evidence Act schedules, the evidence will be prima facie admissible and ion based on may be tendered without formal proof.
(b) Where no issue is taken by the defence as to the admissibility of expert reports disclosed by the prosecution, this evidence will be prima facie admissible and may be tendered without formal proof.
RECOMMENDATION 4 (page 130)
The Commission recommends that notice of alibi evidence should be required at least 35 days before trial in all indictable matters tried in the Supreme and District Courts.
RECOMMENDATION 5 (page 134)
The defendant shall be required to disclose the following material and information, in writing, unless the Court otherwise orders:
(a) In addition to the existing notice requirements for alibi evidence and substantial impairment by abnormality of mind, whether the defence, in respect of any element of the charge, proposes to raise issues in answer to the charge, eg accident, automatism, duress, insanity, intoxication, provocation, self-defence; in sexual assault cases, consent, a reasonable belief that the complainant was consenting, or the defendant did not commit the act constituting the sexual assault alleged; in deemed supply cases, whether the illicit drug was possessed other than for the purpose of supply; in cases involving an intent to defraud, claim of right.
.
(b) In any particular case, whether falling within Recommendation 5(a) or not, the tr