Self-Incriminating Evidence: A Critique of Re Mothejoa Metsing

1.0 INTRODUCTION

One of the legal issues in the Constitutional Court of Lesotho case of Mothejoa Metsing v Director General and Others was that of the right against self-incrimination. In this regard, this essay seeks to give a discussion on whether or not self-incriminating evidence can be obtained by investigations. The essay will begin by giving the position of the law as regards self-incrimination before moving on to show how this rule was applied with reference to the case of Mothejoa Metsing. The discourse will then close with a succinct summary of all the main points alluded to.

2.0 THE LAW ON SELF-INCRIMINATION

Evidence is material, items or assertions of fact that may be submitted to a competent tribunal as a means of ascertaining the truth of any alleged matter of fact under investigation before it.[1] As a general rule, evidence which is relevant, has probative value and is of sufficient weight to issues in legal proceedings, should be admitted.  However, there are exceptions to this rule particularly expressed in the law of privilege against self-incrimination which deals with situations in which a person, or body of persons can refuse to disclose information or documents pertaining to a particular case[2]. 

The privilege against self-incrimination is derived from common law and entitles a person to refuse to answer any question, or produce any document, if the answer or production would tend to incriminate that person. This was stated in the case of Pyneboard Pty Ltd v Trade Practices Commission.[3] This privilege has equally been adopted by Zambian law under the Constitution, where it provides that no person who is tried for a criminal offence shall be compelled to give evidence at trial.[4]

3.0 INADMISSIBILITY OF SELF-INCRIMINATION

Generally speaking, self-incriminating evidence cannot be obtained from the accused, particularly in situations where the reliability of the evidence in question (or its evidential value) are in doubt, or where allowing the evidence may be contrary to an aspect of public policy.[5] In the case of Thomas Mumba v The People[6], section 53 (1) of the Corrupt Practices Act was declared null and void owing to the fact that it violated the then Article 20(7) of the Constitution, which protected the accused against giving evidence which may incriminate them. This shows how the courts have adopted the privilege against self-incrimination in as far as protecting the accused is concerned.

Further, in the case of Muwowo v The People[7], it was stated that:

“An incriminating statement made by an accused person to a person in authority is not admissible in evidence unless it is proved beyond reasonable doubt to have been made by him voluntarily. In that context the words 'made voluntarily' do not mean 'volunteered' but 'made in the exercise of a free choice to speak or to be silent.’ A statement is not made in the exercise of such a choice if it is made as a result of the accused's will to remain silent having been overborne by a person in authority inducing him to break silence…”

Additionally, Weeks v the United States[8], it was stated that evidence that was obtained through involuntary testimony or confessions should not be admissible in the sense that they may be untrue and not fit into a pattern of logical evidence. However, if the defendant chooses to testify, he must answer all the questions and will not be able to rely on this privilege as it is waived by virtue of taking the witness stand.

4.0 CAN SELF-INCRIMINATING EVIDENCE BE RECEIVED BY INVESTIGATORS?

There are instances, however, where evidence despite being self-incriminating, can be obtained by investigations to be used by the court. The rationale of this was articulated in the case of Mothejoa Metsing v Director General and Others[9], where the court stated that the privilege against self-incrimination endeavoured to strike a balance between the right against self-incrimination and the State’s interest in investigating certain crimes. Therefore, the court’s interpretation of this privilege will be aimed at striking this balance. Self-incriminating evidence could therefore be obtained by investigations for a number of reasons, discussed below.

4.1 RELEVANCE

The general principle that has been promulgated is that logically relevant evidence should be obtained unless there is a powerful policy reason to the contrary. This illustrates the fact that self-incriminating evidence may be obtained by investigations as long as it is shown that the evidence thus gathered is relevant. This is especially the case with real evidence as opposed to communicative evidence as real evidence is not in itself self-incriminatory.[10]

 In the case of Liswaniso v The People[11], Justice Silungwe, stated inter alia, that:

“Legality in the method of obtaining evidence did not affect its admissibility at common law. It is our considered view that evidence illegally obtained,… if relevant, is admissible on the ground that such evidence is a fact (i.e. true) regardless of whether or not it violates a provision of the Constitution (or some other law).”

This position of law is affirmed by section 53 of the Anti-Corruption Act which provides that the Director General may call on an individual who is being investigated or any other person who is related to the case to answer questions or supply information which is relevant to the case. This section, however applies without prejudice to the rights relating to privilege.[12]

4.2 PUBLIC INTEREST

If the evidence in question is a matter of public interest, it should be received by investigators. What determines whether the matter is of public interest is usually guided by the nature of the offence committed. For example, the offence of corruption is one that affects the economic status of a country. Musi, CJ rightly stated in Re Metsing that:

“The question is therefore whether sections 7(1) (c) and 7(2) represents a proportionate legislative response to the problem of corruption and serious economic crime.  Is the imbalance between societal interests or the interest of the community and the interest of the individual who is compelled to give information of such a nature that the individual’s right to a fair trial would be prejudiced?”

Hence, in order to answer the question of admissibility, there is need to strike a balance between the accused’s privilege as well as the interests of the society as a whole.[13]

4.3THE UTILITY OF THE EVIDENCE

The courts have sought to distinguish whether the incriminating nature of the evidence must be evaluated in the context in which it was given or at the time it is utilized[14]. Hence, the procedure used in obtaining the evidence which may prima facie seem to destroy the privilege against self-incrimination, must be one that fits within the confines of the law. In Allan v The United Kingdom[15] it was said that:

“In examining whether a procedure has extinguished the very essence of the privilege against self-incrimination, the court will examine… the use to which any material so obtained is put.”

Therefore, if the evidence obtained by investigation is aimed at proving the existence of an offence and not to be used in subsequent proceedings, it may be admissible. The reverse is equally the case. It was this position that was affirmed in the Metsing case where it was stated that:

“In my view sections 7 (1) (c) and 7 (2) are investigative sections geared at gathering information in cases where there is an allegation that a crime has been committed or a suspicion that one has been committed.  The investigation is conducted in order to ascertain whether an offence has been committed. Clearly this is only an information gathering procedure...”

5.0 TYPES OF EVIDENCE DEEMED SELF-INCRIMINATORY

The privilege against self-incriminating evidence is only extended to communicative evidence.[16]

Thus, real and documentary evidence are admissible. In R v Kopano[17], the court stated that:

“The real evidence existed irrespective of the violation of the any statute and its use did not render the trial unfair…, thus real evidence procured by illegal or improper means did not mean it was self-incriminatory.”

In the above case, it was further submitted that the information obtained via investigation was not going to be used in subsequent proceeding, hence there was no breach against the privilege. It therefore appears that in determining whether self-incriminating evidence can be obtained by investigations, the court will have to look at the nature of the offence, the method used in obtaining the purported self-incriminating evidence, the purpose of the investigation as well as the intent of the legislature by framing a statute that appears to be striking down the privilege against self-incrimination. Hence, the Constitutional Court of Lesotho did not err in their decision that Section 7(1c) and 2 were not ultra vires the constitution. Self-incriminating evidence can be obtained by investigations provided it serves a fair purpose in the trial of the accused.

6.0 CONCLUSION

The privilege against self-incrimination is derived from common law and entitles a person to refuse to answer any question, or produce any document, if the answer or production would tend to incriminate that person. However, self-incriminating evidence can be obtained by investigations if the evidence thus obtained is related to matters of public interest. This was the view rightly held in Mothejoa Metsing v Director General. It is thus seen that that the privilege against self-incrimination is not an absolute privilege.

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[1] Lilly, G, Introduction to Evidence Law. (London: Prentice Hall. 1987) p. 342.

[2] Heuff v Mbewe (1965) ZR 111

[3] (1983) 152 CLR 328, 335

[4] Article 18(7) of the Constitution of Zambia, Chapter 1 of the Laws of Zambia.

[5] Stein, A, Foundations of Evidence Law. (Oxford: Oxford University Press. 2005) p.39.

[6] (1984) ZR 38

[7] (1965) ZR 91 CA

[8] [1914] 232 IS 383

[9] Constitutional Case No. 11 of 2014

[10] Mothejoa Metsing v Director General, Constitutional Case No. 11 of 2014

[11] (1976) ZR 277 SC

[12] Anti-Corruption Act, Act No. 3 of 2012, Section 53(1)(2)

[13] Lord Parker, C. J in Callis  Gunn (1963) 3 ALL E.R. 677

[14] R v Noels [2002] 3 SCR 433

[15] (2002) 13 BHRC 652

[16] Jervis, J, Sir, Archbold’s Pleading, Evidence and Practice in Criminal Cases, 26th ed. (London: Sweet and Maxwell, 1922) p. 467.

[17] (2011) LSCA 19 (CA) at para 22