Levack and Others v Regional Magistrate, Wynberg and Another (403/2000) [2002] ZASCA 146 (28 November 2002)

THE SUPREME COURT OF APPEAL

OF SOUTH AFRICA

1. Case no: 403/2000

2. REPORTABLE

In the matter between:

LEVACK, Hamilton Caesar First appellant

LEBOLA, Lincoln Second appellant

HENDRICKS, Mervyn Third appellant

LE ROUX, Frederick William Fourth appellant

and

REGIONAL MAGISTRATE,

WYNBERG First respondent

DIRECTOR, PUBLIC PROSECUTIONS,

WESTERN CAPE Second Respondent

Before: Harms JA, Scott JA, Farlam JA, Cameron JA, and Jones AJA

Heard: Friday 1 November 2002

Judgment: Thursday 28 November 2002

Criminal Procedure Act 51 of 1977 s 37 – Order that accused or arrested persons supply voice samples is competent

JUDGMENT

_______________________________________________________

CAMERON JA:

1. The Criminal Procedure Act 51 of 1977 gives wide powers to police, doctors and courts to ascertain the bodily features of arrested or accused persons. At issue in the appeal is s 37. This empowers police and other officials, and courts before which criminal proceedings are pending, to take steps, or to order that steps be taken ‘to ascertain whether the body’ of an arrested or accused person ‘has any mark, characteristic or distinguishing feature or shows any condition or appearance’.¹ The main question is whether this provision covers the human voice.

2. In November 1997 five accused were charged with dagga-related offences in the Wynberg (Cape) Regional Court. They were not asked – and have still not been asked – to plead. This is because at the end of March 1998 the Magistrate granted an order under s 37(3) that the accused in the presence of their legal representatives give the State voice samples as specified by a named ‘voice expert’. The object was to compare the samples with tape recordings of telephone conversations in the State’s possession, for possible later use during the trial. The five then challenged the order in the Cape High Court. Davis J (Hlophe DJP concurring) dismissed their review application in June 1999,² and later refused leave to appeal. This Court granted the necessary leave in October 1999.

3. One of the accused died in July 2000. Two of the others (Messrs Levack and Sebola) are no longer traceable at their home addresses and have dropped out of the proceedings. Their appeals must be dismissed for want of prosecution. The two remaining, Messrs Hendricks and le Roux, persist in the appeal, in which the presiding Magistrate is the first respondent. He did not oppose the proceedings and abides the Court’s decision. The second respondent, the Western Cape Director of Public Prosecutions, opposed the application and resists the appeal.

Condonation

4. The first issue is the appalling delay that has occurred. The Magistrate granted the order four and a half years ago. This Court granted leave to appeal more than three years ago. The record was lodged in the Cape High Court in April 2000 – more than two and a half years ago. Thereafter both the notice of appeal and the appeal record were filed late in this Court. Later also the appellants’ heads of argument were filed late. The appellants seek to have these lapses condoned. Delays of this kind reflect poorly on everyone involved, and bring discredit to the criminal justice system. The lapses here, which cumulated, are egregious. What is more, the explanation tendered – that the attorney was ignorant of the rules for civil appeals because he ‘specialises in and deals almost exclusively with criminal matters’ – is by the avowal of the appellants’ own counsel completely unacceptable.

5. Whether condonation should be granted is therefore open to serious question, and the fate of the application must in these circumstances depend on the merits of the appeal itself. These it is desirable for us to address because, we were told, uncertainty in the lower courts pre-dated the decision in the Court below, and regional magistrates took conflicting approaches to whether such orders can be granted. The appeal therefore requires disposal on the main point in issue.

6. Before I turn to this, there is a further troubling point. The appellants’ neglect persisted without intervention from the office of either the Registrar in the Cape High Court or the Western Cape Director of Public Prosecutions (DPP). In S v Joshua³ this Court recently had occasion to deplore a similar (though much longer) lapse where an appeal, also from the Cape High Court, lay in limbo for years with the appellant out on bail. Appellants in such circumstances may have little incentive to bring appeals to finalisation. Close monitoring is therefore essential, and responsibility for it must rest on the DPP. In this case, we await a report the DPP’s representative promised on steps to ensure that future appeals will not disappear from view in this way.

Grounds of Review

7. The grounds of review the appellants relied on in their founding papers were that –

1. the voice samples the State required did not fall within s 37;

2. an order that voice samples be provided under compulsion would effectively breach the appellants’ privilege against self-incrimination and result in an unfair trial; and

3. the Magistrate had no power to grant the order under s 37(1)(c), nor had the State laid a basis for bringing the application within s 37(3)(a).

I consider these grounds in turn.

1. Is the Voice a ‘Characteristic or Distinguishing Feature’ of the Body?

8. Basic definition is always a good starting point in the search for statutory meaning. In the present case it provides a conclusive solution. The Concise Oxford Dictionary defines ‘voice’ as ‘1. Sound formed in larynx etc and uttered by mouth, especially human utterance in speaking, shouting, singing, etc. 2. Use of voice, utterance. 3. (Phonetic) Sound uttered with resonance of vocal chords, not with mere breath.’ The voice is thus a sound formed in the larynx and uttered by the mouth. It emanates from and is formed by the body. There can therefore be no doubt that it is a ‘characteristic’ (in the sense of a distinctive trait or quality) of the human body.

9. That each human voice is distinctive (although by no means always capable of assured discernment)⁴ is also clear. The voice is therefore also a ‘distinguishing feature’ of the body. The conclusion that the voice falls within the scope of s 37 must follow.

10. Davis J thus rightly held that a voice ‘represents a defining characteristic of a human being’.⁵ As he also pointed out, this conclusion accords with both South African and United States authority. In S v M⁶ Bresler J thought it ‘perfectly plain’ that a voice ‘cannot fail but to be included within this category of “a mark, characteristic or distinguishing feature”’. The Supreme Court of the United States has for decades regarded the voice of an accused as ‘an identifying physical characteristic’.⁷ The contrary view, Davis J rightly observed, is clearly untenable.⁸

11. However Davis J considered that this result could be achieved only by applying a purposive approach to s 37. By this he meant that the provision’s wording is ambiguous, and that to reach the conclusion that ‘voice’ is covered, it is necessary to go beyond its perceived verbal signification. I disagree. In my view the literal meaning of ‘characteristic or distinguishing feature’ amply covers the human voice.

12. The decision of this Court in Ex parte Minister of Justice: in re R v Matemba,⁹ which Davis J considered an early example of purposive statutory interpretation, was I think more modest in its purport. The question was whether a palm print was a ‘mark, characteristic or distinguishing feature’. Because the then applicable provision¹⁰ expressly mentioned finger and footprints, it was argued that palm prints were excluded. Watermeyer JA (De Wet CJ, Tindall JA, Centlivres JA and Feetham JA concurring), affirming the majority decision (to which he was himself party) in R v Brown,¹¹ held that the general words obviously encompassed palm prints. He said:

‘It is quite possible that the Legislature did not have the markings on a palm particularly in mind when they used the words “mark, characteristic or distinguishing feature” possibly because it may not have been generally known at the time the Act was passed that the marks on the palm of a hand are distinguishing features. But in my judgment it was for the very reason that there may exist innumerable kinds of marks, characteristics and distinguishing features which cannot be set out in detail that generic words were used wide enough to embrace all. In a similar way no attempt was made to specify in detail the exact acts which the police may perform in order to ascertain whether or not the body of an accused person bears a mark, characteristic or distinguishing feature, because an incomplete enumeration of such acts might handicap the police in the performance of their duty. Inspection of the body may reveal distinguishing marks of one kind, but other distinguishing marks may require for their revelation one or other of the resources of science such as microscopic or chemical examination, photography, X-ray photography, prints, etc.’¹²

13. Exactly the same applies here. The section does not expressly mention the voice. But this is because it is one of ‘innumerable’ bodily features that the wording expressly contemplates. It is true that the voice, unlike palm or other prints, is not itself part of the body. It is a sound. But the sound is a bodily emanation. And the body from which it emanates determines its timbre, volume and distinctive modulations. Nothing in the provision suggests that the ‘distinguishing features’ it envisages should be limited to those capable of apprehension through the senses of touch and sight (or even taste or smell).

14. Hearing is as much a mode of physical apprehension as feeling or seeing. For the sight-impaired it is indeed the most important means of distinguishing between people. It would therefore be counter-literal to interpret the section as though the ways of ‘ascertaining’ bodily features it contemplates extend only to what is visible or tangible.

2. Self-Incrimination and the Appellants’ Fair Trial Rights

15. Appellants’ counsel contended that s 37 deviated from the common law principle, now enshrined in the Constitution,¹³ that an accused was entitled to be ‘passive’ in criminal proceedings. He developed this argument (as the second ground of review portends) by contending that the order granted violated the ‘notions of basic fairness and justice’¹⁴ the Constitution now requires of our criminal proceedings and that it would thus inevitably result in an unfair trial.

16. The argument involves a muddle with two fallacies. But in one form or another it has proved tenacious. Hence it is necessary first to point out the muddle and then to repel the fallacies. This Court has previously dealt authoritatively with the muddle. In Matemba,¹⁵ Watermeyer JA drew attention to a trial judge’s misformulation of issues arising from the non-voluntary taking of an accused’s palm print. He said:

‘That statement appears to lay down two separate and distinct propositions –

1. that in the absence of statutory provision an accused person cannot be compelled to furnish evidence against himself;

2. that evidence obtained under compulsion cannot be used against an accused person.

The terms in which those propositions are stated tend to obscure the real issues which are involved, and I do not think that either of them can be accepted as accurate expositions of the law. The legality of the methods used to obtain the palm print is one matter; the use of the palm print as evidence is another, and these two questions must be kept separate and not combined with one another, as is done when it is said that an accused person cannot be compelled to furnish evidence against himself.’¹⁶ (Emphasis added.)

17. Applying the same approach to the present argument, the first fallacy is that evidence derived from an accused’s physique violates the right against self-incrimination. Differently put, it is wrong to suppose that requiring the appellants to submit voice samples infringes their right either to remain silent in the court proceedings against them or not to give self-incriminating evidence. In R v Camane and others,¹⁷ Innes CJ analysed and exposed the same fallacy a decade and a half before Matemba:

‘Now it is an established principle of our law that no one can be compelled to give evidence incriminating himself. He cannot be forced to do that either before the trial, or during the trial. The principle comes to us through the English law, and its roots go far back in history. Wigmore, in his book on Evidence (vol IV, section 2250)¹⁸ traces very accurately the genesis, and indicates the limits of the privilege. And he shows that, however important the doctrine may be, it is necessary to confine it within its proper limits. What the rule forbids is compelling a man to give evidence which incriminates himself. “It is not merely compulsion” says Wigmore (section 2263)¹⁹ “that is the kernel of the privilege, but testimonial compulsion.” It is important to bear this in mind, because a man may be compelled, when in Court, to do what he would rather not. His features may be of importance, and he may be made to show them; his complexion, his stature, mutilations, or marks on his body, may be relevant points, and he may be compelled to show them to the Court. That is what Wigmore calls autoptic evidence (vol II, section 1150)²⁰ which is perceived by the Court itself, and which it has a right to see. In such cases the man is really passive. But he cannot be forced to go further and to give evidence against himself.’²¹

18. Despite the clarity of Innes CJ’s pronouncement, the fallacy has endured. Fifteen years later, Watermeyer JA had to rebut it again, at length, in Matemba.²² He concluded:

‘Now, where a palm print is being taken from an accused person he is, as pointed out by Innes CJ in Rex v Camane (1925 AD at p 575), entirely passive. He is not being compelled to give evidence or to confess, any more than he is being compelled to give evidence or confess when his photograph is being taken or when he is put upon an identification parade or when he is made to show a scar in Court. In my judgment, therefore, neither the maxim nemo tenetur se ipsum prodere nor the confession rule make inadmissible palm prints compulsorily taken.’

19. Notwithstanding the authority of these expositions, the task of explaining that ‘autoptic evidence’ – evidence derived from the accused’s own bodily features – does not infringe the right to silence nor the right not to be compelled to give evidence has continued to fall upon judges.²³ The explanations given in these cases apply in all details to the human voice.²⁴ It falls within the same category as complexion, stature, mutilations, marks and prints.

20. It is of course true that to take a palm- or fingerprint, or to draw blood from an accused, or to require him to supply a voice sample, goes further than merely observing his features or complexion when he appears in court. Our legal system recognises the distinction. It is for this reason that Ackermann J held in S v Binta²⁵ that a person who refuses a request to submit to the taking of a blood sample under s 37 cannot, by the mere refusal, be guilty of obstructing the course of justice or of attempting to defeat the ends of justice. The additional means of compulsion that the provision licenses may have to be employed. In the present case, it was no doubt awareness of Binta that induced the DPP to seek the order. Eventual defiance of it would found a charge of contempt of court.

21. Despite this added feature, there is no difference in principle between the visibly discernible physical traits and features of an accused and those that under law can be extracted from him through syringe and vial or through the compelled provision of a voice sample. In neither case is the accused required to provide evidence of a testimonial or communicative nature,²⁶ and in neither case is any constitutional right violated.

22. The second fallacy in the argument is this. It is wrong to suggest that the order intrinsically violates the appellants’ fair trial rights. At present the only question before us is whether an order requiring an accused to supply in the presence of defence lawyers voice samples indicated by a State-designated ‘expert’ is competent. Those samples have not yet been procured. The ‘expert’s’ report has not yet been prepared. Its value and the weight that should properly be accorded it have not arisen for determination.

23. All these are issues for determination at the trial, which has not even begun. Once the appellants have pleaded, the trial court will be vigilant to ensure observance of their rights. This will demand scrutiny not only of the methods and procedures applied in procuring the voice samples, but of the quality, reliability and value of the expert evidence about them. The argument that an incipient and inevitable breach of fair trial rights has occurred is therefore untenable.

3. The Inter-Relation Between s 37(1) and s 37(3)

24. The review grounds suggested also that the Magistrate had no power to grant the order under s 37(1)(c), and that the State had laid no basis for bringing the application within s 37(3)(a). This attack, too, is misconceived. The Magistrate in fact omitted to specify under what sub-section he granted the order. But that he had the power to make an order requiring the appellants to supply voice samples cannot be doubted.

25. It has rightly been held that police powers to act under s 37(1) come to an end only when an accused has been convicted, and that, by corollary, so long as the police retain their s 37(1) powers, a court before which criminal proceedings are pending has no power to make the orders contemplated under s 37(3).²⁷ This does not however mean that such a court cannot do so under s 37(1). In the present case, the police retained the power under s 37(1)(c) to take steps as they might deem necessary to ascertain the characteristic or distinguishing features of the appellants’ voices. This included the power to request the appellants to supply voice samples. This power, in turn, could properly be supplemented by a court order requiring the appellants to do so.

26. The regional court’s order that the appellants supply the voice samples in question thus reinforced and underscored the powers of the police, by making refusal to cooperate subject to sanction for contempt of court. In short, sub-sections (1), (2) and (3) thus do not operate exclusively of one another. A court has the power to issue an order requiring an arrested person (or any other person contemplated in ss (1) and (2)) to comply with a request from any of the officials named to supply the autoptic evidence sought. In the present case, therefore, the police retained the power to request the appellants to supply the voice samples, and the regional court had the power to order that they do so. The precise source of the court’s power is therefore best located as deriving from s 37(1)(c).²⁸

Review of Unconcluded Proceedings

27. As is well established, the Supreme Court Act 59 of 1959 permits intervention by superior courts in the unconcluded proceedings of inferior courts only on limited grounds.²⁹ I agree with Davis J in the Court below that no case at all was made out that this is one of the rare cases where intervention was warranted.³⁰ Appellants’ counsel sought to argue that the order requiring the provision of voice samples was of such a radical nature, comparable to the imposition of corporal punishment, that it was final in effect. The argument is not persuasive. As explained above, the provision of voice samples is no different in principle from the provision of a blood sample or a fingerprint. The order granting it cannot, at this stage of the proceedings constitute the sort of gross irregularity that would justify intervention.

Order

1. The appeal of appellants 1 and 2 is dismissed for want of prosecution.

2. The application for condonation of appellants 3 and 4 is dismissed.

E CAMERON

JUDGE OF APPEAL

HARMS JA )

SCOTT JA ) CONCUR

FARLAM JA )

JONES AJA )