Efecto del nivel de consolidación de los grupos

The most pressing problem encountered in the legal procedure of line-ups is that of counsel. The two cases Mhlakaza and Mphala supra are conflicting when it comes to legal representation of the suspect at the identification parade. The cases create operational problems for police officials. Both cases were decided by the High Court and the problem will only be solved once the Supreme Court of Appeal or the Constitutional Court makes a decision in this regard. To avoid this problem, the researcher would suggest that the rules of identification contained in the Police National Instruction be incorporated as part of section 37 (1) (b) of the Criminal Procedure Act317.

316

Act 6 of 2010.

317

Act 51 of 1977.

In Canada a suspect has a right to legal representation at the identification parade. In the USA, the suspect has a right to legal representation at the identification parade. In England the suspect must be informed of his right to have a solicitor or friend at the parade. This means that the suspect in those jurisdictions may have a representative at the parade. The consequences of not having legal counsel at an identification parade or being denied legal representation at the line-up (identification parade) are the infringement of the constitutional rights of a suspect.

2.4.3 Voice identification

From the case of Regina v Ng [1996] 38 CRR (2d) 340, discussed in paragraph 2.2.5.4.2, it may be concluded that if the police during the process of investigation should obtain voice samples from the accused with the purpose of doing voice comparison (voice identification), and the accused are not warned of their right to counsel, the evidence of voice identification obtained by the police for comparison purposes may be inadmissible in court. This case is in line with section 35 of the South African Constitution.

Regina v Ng (supra) may be applied by the South African courts because these courts may consider foreign law according to section 39 (c) of the South African Constitution Act 1996. From the case of Levack and Others v Regional Magistrate, Wynberg and Another318, it may be concluded that the police could be allowed to obtain voice samples for voice comparison in terms of section 37 (1)(c) and section 37 (3) (a). These two sections cover the area where the person is already an accused but does not address the area where the person is still a suspect. Unfortunately, it still does not address the problem of a situation where police are still investigating the matter. The said two sections do not empower the police sufficiently to do crime detection during the process of pre-trial criminal procedure. The sections cover the ascertainment of the bodily features of a person who is already in detention, but do not cover the person who is still under investigation as a suspect and has not been arrested yet.

It would be helpful if “voice samples” and other body samples could be included in section 36C of the Criminal Procedure Act 51 of 1977 so that the police can be specifically empowered to deal with crime detection. The section should read as follows: “Fingerprints, body-prints and voice samples for investigation purposes prior to arrest, holding and release of suspect.”

318

(2002) ZASCA 146: [2003] 1 All SA 22 (SCA).

It would also be of much help for more effective crime detection to amend section 252A 319 in such a way that the trap includes obtaining voice samples of suspects for comparison purposes for crime detection purposes. Although this might infringe the right to privacy, the right may be limited by section 36 of the Constitution. Section 252A should be amended to allow the Director of Public Prosecutions to authorise the police to obtain a voice sample of a suspect on tape in circumstances where the suspect is not aware of the recording, if the suspect has been warned and has refused to give consent that his or her voice be recorded for investigation purposes. The witnesses should then be requested to identify the voice of the suspect from the tape recording. In that way there is no risk of the suspect changing his or her voice. This can even be limited to a specific schedule of cases only in order to avoid misuse.

2.4.4 Photo identification (photograph identification)

2.4.4.1 From the above discussion, it can be concluded that in South Africa, a photographic identification parade is not unconstitutional.320 The situation is similar to the situation in Canada where photographic identification is also regarded as constitutional.

2.4.4.2 It can be concluded that the UK, the USA and Canada also recognise the process of ascertaining bodily features through photo identification parades.

2.4.4.3 The researcher concludes that the case of Mdlongwa supra indicates that the law in relation to ‘the ascertainment of bodily features of the accused’ is developing, especially the ascertainment of bodily features by means of photographs and video footage. What was done by Inspector Naude is similar to photographic identification because the original photo of the accused was compared with the video footage and points of similarity were found and on the basis of that evidence the accused was convicted. The position in South Africa is that photographic identification and facial comparison are admissible as a method of ascertaining bodily features. It is also admissible as evidence in court.

319

Criminal Procedure Act 51 of 1977.

320

S v Hlalikaya 1997(1) SACR 613 (SE) at 613d-f and S v Zwayi 1977 (2) SACR 772 (Ck) 772- 773.

2.4.4.4 The major development in the Law of Criminal Procedure and Evidence in this regard is that an expert witness can now identify an accused from video footage, using the photo of the accused to do facial comparison, as long as the video footage is original.

PART II

INVASIVE INVESTIGATIVE METHODS IN ASCERTAINING BODILY

FEATURES OF THE ACCUSED PERSON

“There can be no doubt that blood tests entail an invasion of a person’s right to privacy ... I do not require much persuasion to accept that a blood test entails some invasion to a person’s bodily integrity and security, although such an invasion is slight indeed - S v R and others 2000(1)SACR 33 (WLD) 39h-i and 40a”.