TOPIC FOUR: DISCLOSURE BY PROSECUTION
Pre-Constitutional Position
The pre-constitutional position is adequately summarised in R v Steyn
R v Steyn
This case dealt with an application for leave to appeal against a judgment of the High Court of Southern
Rhodesia, dismissing an appeal from a decision by a magistrate, in which he convicted the applicant of
the crime of theft as defined by the Stock and Produce Theft Repression Act
The court held that the basic rule is that the police docket and contents thereof are privileged and the
defence is not entitled to access to it
Therefore, when statements are procured from witnesses for the purpose that what they say shall be
given in evidence in a lawsuit that is contemplated, these statements are protected against disclosure
until at least the conclusion of the proceedings, which would include any appeal or similar step after the
decision in the court of first instance
This protection against disclosure applies in both civil and criminal trials
There is, however, an ethical rule which obliges the prosecutor to disclose if a witness deviates from
his/her original statement
Thus where there is a serious discrepancy between the proof of a Crown witness and what he says on
oath at the trial, the prosecutor must direct attention to that fact and, unless there is special and
m
cogent reason to the contrary, make the statement available for cross-examination.
er as
co
Note: this approach has been described as “trial by ambush”
eH w
o.
Canadian Position
rs e
ou urc
South Africa’s approach to disclosure by the prosecution was flawed prior to the
Constitution, thus assistance was derived from Canada
The position was thereafter clarified in R v Stinchcombe which became a very influential
Phato v Attorney-General, Eastern Cape & Another; Commissioner of the South African Police
precedent in cases decided shortly after the commencement of the Interim Constitution
Services v Attorney-General, Eastern Cape & Others
o
In two applications, which were combined for the purposes of the judgment, the issue was the right of
aC s
an accused to access to the police docketRrelating v Stinchcombe
to the accused's impending trial in a magistrate's
vi y re
S wason
court a lawyer
a charge charged
under with breach of trust,
the Witchcraft theft and
Suppression Actfraud
3 of 1957
A former
In the firstsecretary
application,of his
thewas a Crown
applicant waswitness at the preliminary
the accused who contended inquiry,
thatwherehe was she gave evidence
entitled to this
apparently favourable
information by virtue oftothe theprovisions
defence of s23 and s25(3) of the Constitution
The
In Crown
the second wasapplication,
of the opinion the that the secretary
applicant was covering for
was the Commissioner of S in her
SAPS who statement,
wished for thus they wanted
an order
to ignore the
declaring thatstatement
the privilege which they
which thought
existed in to be unreliable
respect of the contents of police dockets immediately prior
ed d
S was
to the informed
commencement of the existence of the statement,
of the Constitution was not but not the
repealed orcontent
amended and byhiss23requests
but thatfor thedisclosure
accused
wereentitled
was refusedbefore trial only to copies of all medical, hospital and autopsy reports; summaries of other
ar stu
During evidence
expert the trial, theto besecretary
tendered wasby not
the called
State; asand a Crown
copies witness and the Crown
of all documents relatingdidtonot disclose the
identification
statement to the defence
parades
court noted that
The Commissioner production
argued andState
that the discovery
was onlywererequired
foreign to tothe adversary
furnish an accusedprocess of adjudication
with in its
such information
earlier
as history when
he required, in thethe element
narrow of surprise
sense, was one
to exercise of thetoaccepted
his right a fair trial,weapons in the
i.e. a trial in arsenal of the
an adversarial
is
adversaries,
system
The court butthat
of held thatthe
litigation theCrown
which position
recognised
hashas now changed
various
a legal dutyprivileges
to disclose from
all having
relevanttoinformation
disclose certain to theinformation
defence asto the
the
fruits of the investigation which are in its possession are not the property of the Crown for use inof
other side as being paramount to its proper operation. This included the docket privilege our lawa
securing
Th
The Court held
conviction but thethat the practices
property of the to
of the public past
be whereby the State
used to ensure thatretained
justice istight
donecontrol of almost all
available
The court information
held furtherrelevant
that it isto toabecriminal
guidedprosecution
by the general wasprinciple
inconsistent with modern
that information values
should notofbe
opennessif and
withheld thereaccountability
is a reasonable in possibility
a democratically
that thisoriented
will impairadministration
the right of the accused to make full answer
Thusdefence.
and the courtThe held that s23
absolute gave an accused
withholding the right
of information to access
which is relevantto the
to information
the defence contained
can only be injustified
the
police
on the docket
basis offorthethe exerciseofand
existence protection
a legal privilege ofwhich
his right to a fair
excludes thecriminal
information trial from disclosure
sh
The Commissioner
Furthermore, argued
the court heldthatthatthe
thejudgment
Crown was in not
R v justified
Stinchcombe permitted
in refusing non-disclosure
disclosure on the ground of witness
that the
statements
witness was on notgrounds
worthy of of credit:
privilege, and that
whether the this privilege
witness included
is credible is forour
thedocket privilege
trial judge to determine after
The court
hearing theheld that whereas in Canada, the state had a discretion to withhold information which would
evidence
ordinarily
Since be disclosed,
the information our Constitution’s
withheld inclusionthe
might have affected of s23 means
outcome of there is athe
the trial, protected
failure to right to impaired
disclose
information
the right to make full answer and defence
The Court
Thus thus ordered
the conviction wasthat the respondents
set aside, and a new furnishtrial wasthe applicant with witness statements, and all
ordered
exhibits, plans and diagrams in the police docket, if any, and to give the applicant access to the
remaining information in the docket
This study source was downloaded by 100000826075669 from CourseHero.com on 05-23-2021 04:34:44 GMT -05:00 1
https://www.coursehero.com/file/80213668/4-Disclosure-by-Prosecutiondoc/
Pre-Constitutional Position
The pre-constitutional position is adequately summarised in R v Steyn
R v Steyn
This case dealt with an application for leave to appeal against a judgment of the High Court of Southern
Rhodesia, dismissing an appeal from a decision by a magistrate, in which he convicted the applicant of
the crime of theft as defined by the Stock and Produce Theft Repression Act
The court held that the basic rule is that the police docket and contents thereof are privileged and the
defence is not entitled to access to it
Therefore, when statements are procured from witnesses for the purpose that what they say shall be
given in evidence in a lawsuit that is contemplated, these statements are protected against disclosure
until at least the conclusion of the proceedings, which would include any appeal or similar step after the
decision in the court of first instance
This protection against disclosure applies in both civil and criminal trials
There is, however, an ethical rule which obliges the prosecutor to disclose if a witness deviates from
his/her original statement
Thus where there is a serious discrepancy between the proof of a Crown witness and what he says on
oath at the trial, the prosecutor must direct attention to that fact and, unless there is special and
m
cogent reason to the contrary, make the statement available for cross-examination.
er as
co
Note: this approach has been described as “trial by ambush”
eH w
o.
Canadian Position
rs e
ou urc
South Africa’s approach to disclosure by the prosecution was flawed prior to the
Constitution, thus assistance was derived from Canada
The position was thereafter clarified in R v Stinchcombe which became a very influential
Phato v Attorney-General, Eastern Cape & Another; Commissioner of the South African Police
precedent in cases decided shortly after the commencement of the Interim Constitution
Services v Attorney-General, Eastern Cape & Others
o
In two applications, which were combined for the purposes of the judgment, the issue was the right of
aC s
an accused to access to the police docketRrelating v Stinchcombe
to the accused's impending trial in a magistrate's
vi y re
S wason
court a lawyer
a charge charged
under with breach of trust,
the Witchcraft theft and
Suppression Actfraud
3 of 1957
A former
In the firstsecretary
application,of his
thewas a Crown
applicant waswitness at the preliminary
the accused who contended inquiry,
thatwherehe was she gave evidence
entitled to this
apparently favourable
information by virtue oftothe theprovisions
defence of s23 and s25(3) of the Constitution
The
In Crown
the second wasapplication,
of the opinion the that the secretary
applicant was covering for
was the Commissioner of S in her
SAPS who statement,
wished for thus they wanted
an order
to ignore the
declaring thatstatement
the privilege which they
which thought
existed in to be unreliable
respect of the contents of police dockets immediately prior
ed d
S was
to the informed
commencement of the existence of the statement,
of the Constitution was not but not the
repealed orcontent
amended and byhiss23requests
but thatfor thedisclosure
accused
wereentitled
was refusedbefore trial only to copies of all medical, hospital and autopsy reports; summaries of other
ar stu
During evidence
expert the trial, theto besecretary
tendered wasby not
the called
State; asand a Crown
copies witness and the Crown
of all documents relatingdidtonot disclose the
identification
statement to the defence
parades
court noted that
The Commissioner production
argued andState
that the discovery
was onlywererequired
foreign to tothe adversary
furnish an accusedprocess of adjudication
with in its
such information
earlier
as history when
he required, in thethe element
narrow of surprise
sense, was one
to exercise of thetoaccepted
his right a fair trial,weapons in the
i.e. a trial in arsenal of the
an adversarial
is
adversaries,
system
The court butthat
of held thatthe
litigation theCrown
which position
recognised
hashas now changed
various
a legal dutyprivileges
to disclose from
all having
relevanttoinformation
disclose certain to theinformation
defence asto the
the
fruits of the investigation which are in its possession are not the property of the Crown for use inof
other side as being paramount to its proper operation. This included the docket privilege our lawa
securing
Th
The Court held
conviction but thethat the practices
property of the to
of the public past
be whereby the State
used to ensure thatretained
justice istight
donecontrol of almost all
available
The court information
held furtherrelevant
that it isto toabecriminal
guidedprosecution
by the general wasprinciple
inconsistent with modern
that information values
should notofbe
opennessif and
withheld thereaccountability
is a reasonable in possibility
a democratically
that thisoriented
will impairadministration
the right of the accused to make full answer
Thusdefence.
and the courtThe held that s23
absolute gave an accused
withholding the right
of information to access
which is relevantto the
to information
the defence contained
can only be injustified
the
police
on the docket
basis offorthethe exerciseofand
existence protection
a legal privilege ofwhich
his right to a fair
excludes thecriminal
information trial from disclosure
sh
The Commissioner
Furthermore, argued
the court heldthatthatthe
thejudgment
Crown was in not
R v justified
Stinchcombe permitted
in refusing non-disclosure
disclosure on the ground of witness
that the
statements
witness was on notgrounds
worthy of of credit:
privilege, and that
whether the this privilege
witness included
is credible is forour
thedocket privilege
trial judge to determine after
The court
hearing theheld that whereas in Canada, the state had a discretion to withhold information which would
evidence
ordinarily
Since be disclosed,
the information our Constitution’s
withheld inclusionthe
might have affected of s23 means
outcome of there is athe
the trial, protected
failure to right to impaired
disclose
information
the right to make full answer and defence
The Court
Thus thus ordered
the conviction wasthat the respondents
set aside, and a new furnishtrial wasthe applicant with witness statements, and all
ordered
exhibits, plans and diagrams in the police docket, if any, and to give the applicant access to the
remaining information in the docket
This study source was downloaded by 100000826075669 from CourseHero.com on 05-23-2021 04:34:44 GMT -05:00 1
https://www.coursehero.com/file/80213668/4-Disclosure-by-Prosecutiondoc/
