Evidence: Use of Admissions / Confessions if unlawfully obtained


The dilemma that has been bothering me is how can we level (if ever) the requirements of an accused’s right to a fair trial and justice? See the example I have found which could potentially be a step forward.
In South Africa, & perhaps in the UK as well, the general rules for the admissibility of Admissions/Confessions is that it has to be:
  1. Given freely & voluntarily
  2. With no threat/act of violence
  3. And no undue influence
In additional, the evidence has to have been obtained in a constitutional manner, meaning:

  1. It was obtained in a way that didn’t infringe your rights; or
  2. If it is admitted, it would not render the trial unfair or be detrimental to the administration of justice
What I really want to discuss is the state of our law in relation to facts discovered in consequence of information given by the accused whether it be lawful or unlawful. The most common form of obtaining this evidence is through pointing out.

The case of R v Samhando 1943, the following is a summary of the case: the accused charged with murder & was induced by threats & in an incriminating statement (admission). He pointed out some clothing and an axe that belong to the deceased, hidden in a tree. The evidence was admitted in the court a quo (first court) & it was challenged in the Supreme Court of Appeal (then the Appellate Division). The AD confirmed that the evidence was correctly admitted because of their reliance on the principle of reliability - if the accused, after being beaten, points something out & leads to new evidence found, then both pointing out and the evidence are reliable thus admissible. The Criminal Procedure Act then codified this principle.

Later, in the case of S v Sheehama 1991, the court held that pointing out is a form of admission by conduct and thus should be regulated by the rules of admission, which includes being freely & voluntarily made. Thus, if the pointing out was not made voluntarily, any evidence obtained as a result of that pointing out is inadmissible. But the court didn’t stop there. If, after an inadmissible admission/confession, the accused voluntarily makes a pointing out which leads to new evidence, that new evidence is admissible.
What do you think? Could this be an implicit attempt to balance the requirements of justice and the rights of the accused? Justice requires the truth & the accused requires no infringement of his rights.

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