Defining the Limits of the Common-Law, South African and European Privilege against Self-Incrimination

JurisdictionSouth Africa
Date16 August 2019
Published date16 August 2019
Pages160-186
AuthorC Theophilopoulos
160
deFining the limits oF the common-laW,
south aFrican and european privilege
against selF-incrimination
C Theophilopoulos
BSc LLB LLM LLD
Associate Professor, School of Law, University of the Witwatersrand
1 Introduction
The common-law privilege is an evide ntiary procedu ral rule whereby,1
“during a crim inal or a civil proceed ing an individual may ref use to answer
any question or to produce any document, if the a nswer or the production
has the tendency to expose t he individual, dir ectly or indirectly to t he risk
of a criminal convict ion, the imposition of a penalty or the forfeit ure of an
es ta te ”.2 T he privilege is sometimes des cribed as an obsta cle in the search
for legal truth and someti mes as an inducement to enc ourage freedom of
testimony. The privilege shields the individu al from being forced to choose
between (i) lying in the wit ness box and thereby risking a perjur y charge, (ii)
refusing to a nswer questions and thereby riski ng a contempt of court charge,
or (iii) answering incriminating questions and thereby risking exposure to
a possible criminal cha rge. The privilege therefore ensu res that the witness
gives reliable and truthf ul testimony in the face of questioning at tr ial.3
As an abstract ju risprudential principle the pr ivilege denes the l imits of a
witness’ ability to refus e to cooperate with the st ate. The privilege provides
the witness with a shield agai nst the compulsion of relevant and admissible
self-incriminat ory evidence. However, in practice the privi lege has been
narrowly constr ued to apply only to commun icative or testimonial oral self-
incrimi natory evidence. Non-testimonial inc riminating evidence and a ll other
procedures for collecting t his type of evidence fal l outside the privilege’s
narrow protection. T he privilege may be invoked whenever an individual
in civil or criminal proceedi ngs is requ ired to answer self-incrim inatory
questions under a legal compulsion or in t erms of due process.4
The English common-law privi lege in civil proceedings ha s been partial ly
codi ed by section 14 of the Civil Ev idence Act 1968 as “the righ t of a person
1 C Cross Cross an d Tapper on Evidence 12 ed (2010) 41-434; I Dennis The Law of Evidence 4 ed (2010)
152-169; P Murphy Murphy on Evidence 11 ed (2009) 482-494; DT Z effertt & A P Paizes So uth African
Law of Evidence (2009); A Ligertwood Australian Evidence (1993) para 5 68; SB McNicol Law of
Privilege (199 2) 140
2 The semina l restatement of the com mon-law rule is to be fou nd in Blunt v Park Lane Hotel Lt d [1942] 2
KB 235 257, per Goddard LJ S ee also Redfern v Redfern (1981) P 139 147; Lamb v Munster [1882] 10 QB
100 111 and Spokes v Grosven or Hotel Co [1897] 2 QB 124
3 S v Lwane 1966 2 SA 433 (A) 438G, per Ogilvie Thomso n JA
4 South Africa: S v Botha (2) 1995 2 SACR 605 (W) 6 09c England: Rio Tinto Zinc Cor p v Westinghouse
Electric Corp [1978] AC 636; (1978) 1 ALL ER 434 464, per Diplock LJ Canada: R v P (M B) [1994] 1
SCR 555 579; R v Jones [1994] 2 SCR 229 269, privilege prote cts against sta te coercion
(2014) 25 Stell LR 160
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in any legal proceeding, ot her than a crim inal proceeding to refuse to answer
any question or produce any document or thing, if to do so would tend to expose
that person to proceed ings for an offence or for the recovery of a penalty”. The
South A frican codicat ion in section 42 of the Civil P roceedings Evidence
Act 25 of 1965,5 the Austral ian in section 128 of the Evidence Act 1995
(Cth), and the New Zealand in section 60 of the Evidence Act 2006 are similar
in meaning and i ntent.
During much of its jur isprudential his tory the privilege has b een regarded
as one among many procedur al and evidentiary rules necessa ry in ensuring a
fair adversarial b alance at trial. However, in parallel with the twentiet h century
elevation of the accused’s right to silence into a fundame ntal human right, the
privilege, particu larly in criminal proceed ings, has also been re-inter preted as
a fundament al procedural protection for the w itness during cross -examination,
and as an import ant element of the panoply of constitutional protections of the
witness’ freedom, dig nity, and privacy du ring trial proceedings.6
The privilege has been con stitutionally entrenched in the Fifth A mendment
of the United States Constit ution (1789); in section 7 read with sections 11(c)
and 13 of the Canadian Char ter of Rights and Freedoms7 (Par t 1 of the
Constitution Act, 1982) (“Charter” or “Canad ian Charter”), in section 35(3)(j)
of the Constitution of the Republic of South Afr ica, 1996 (“the Constit ution”)
and by recent adoption in ar ticle 6(1) of the European Convention on Human
Rights (1950)8 (“Convention” or “European Convention”). There is a
signicant trend in New Zealand, in terms of sections 25(d) and 27(1) of the Bill
of Rights Act 1990,9 and in Australia,10 to interpret the privilege as a rst-
class fundament al right. The English privilege is somewhat ambiguous and i n
civil proceedings has been const rued as an “archaic and unjustiable survival
from the past”,11 but this inter pretation may well be declared redundant when
tested before the European Court of Human Rights as a consequence of the
incorporation of the Eu ropean Convention on Human Right s into domestic
English law by the Human Rights Act 1998.
The principal ju stications for the procedural a nd evidentiary existence of
a general privilege of this ki nd are directed at sh ielding a witness against
state coercion or compulsion and ensu ring a fair adver sarial balance at t rial.
Theoretically, the privilege should apply to all compulsor y state processes
5 See also s 203 of the Sout h African Cri minal Procedu re Act 51 of 1977 (“CPA”)
6 C Theophilop oulos “The Hi storical Ant ecedents of th e Right to Silenc e and the Evolution of the
Adversaria l Trail System” (2003) 14 Stell LR 161-186 See also Pyneboard Pty Lt d v Trade Practices
Commission (1983) 57 ALJR 236 243, per Murphy J
7 Solonsky v R [1980] 1 SCR 821 836; The Qu een v Amway Corpora tion [1989] 1 SCR 21 (SCC)
8 European Co nvention on Human Rig hts (1950) ETS 5; 213 UNTS 221
9 R v P [1990-92] 1 NZBORR 311; R v Mallison [1993] 1 NZLR 528; Apple and Pear Mark eting Board v
Masters and So ns Ltd [1986] 1 NZLR 191
10 Sorby v Commo nwealth (1983) 152 CLR 281; EPA v Caltex Refining C o (1993) 178 CLR 477 514, per
Brennan J, 508 pe r Mason CJ and Toohey J; Accident In surance Mutua l Holdings Ltd v McFadden (19 93)
31 NAWLR 412 420, per Kirby J
11 AT and T Istel Ltd v Tully [1993] AC 45 53, per Lord Templeman Australia : Spedley Secu rities Ltd (in liq)
v Bond Brewing In vestments Pty Ltd (1991) 9 ACLC 522 535-536, per Cole J (“[T]he priv ilege is a mere
procedura l rule from a time when defend ants were less able to protect t hemselves”); Spratt v Hermes
(1965) 114 CLR 226 244-245, per Barwick CJ
THE PRIVILEGE AGAINST SELF-INCRIMINATION 161
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