effect whereof has been summarised in paragraph 7 (i), (vii) and (viii) respectively above) all relate to actions by means of which evidence could have been obtained and used against an accused who might have been convicted of sodomy. It must be emphasised that giving such an order qualified retrospective effect does not mean that evidence obtained by means of the above provisions was necessarily inadmissible in any such trials or will necessarily be inadmissible in future. That is an issue to be decided by the court seized of any matter pursuant to the above order and will be decided by such court having regard, where applicable, to the provisions of section 35(5) of the Constitution, which provides:
“Evidence obtained in a manner that violates any right in the Bill of Rights must be excluded if the admission of that evidence would render the trial unfair or otherwise be detrimental to the administration of justice.”
[102]The effect of sections 40(1)(b), 42(1)(a), 49(2), 60(4)(a), 60(5)(e), 60(5)(g), and 185A(1) of the CPA has been summarised in paragraph 7 (ii), (iii), (iv), (v) and (vi) above. These provisions of the CPA, with the exception of those applying to bail,[1] all relate to actions which are completed before the accused is brought to trial, or, as in the case of section 185A, stand quite outside the trial. These provisions can have no effect on the fairness of the ensuing trial itself, and to give the order retrospective effect in respect of them could conceivably open the door for civil claims against those who have
- ↑ Namely section 60(4)(a), 60(5)(e) and 60(5)(g) of the CPA.
