LEV3701 EXAM PACK latest exam pack ()

LEV3701 EXAM PACKWITNESSES DEFINITIONS: Competence: Whether a particular person has the mental capacity to testify. SECTIONS: Sec 192 of the CPA: Every person not expressly excluded by the Act from giving evidence is competent & compellable, subject to Sec 206. Sec 206: The law, which was in force in respect of criminal proceedings on The 30th of May 1961 with respect to competence & compellability, is applicable in cases not provided for in the Criminal Procedure Act. Sec 8 of the Civil Proceedings Act: Everyone is competent & compellable unless otherwise provided. Sec 194: No person afflicted with mental illness due to intoxication or drugs or the like & who is there by deprived of the proper use of his reason shall be competent while so afflicted. Sec 195: Clearly states that a spouse is competent to give evidence on behalf of the prosecution, but that he can be compelled to testify only in certain circumstances. Sec 196: States that the spouse of an accused is a competent as well as a compellable witness in defence of that accused, whether such accused is jointly charged with somebody else or not. Sec 157(2) of the CPA: Ito this sec, upon separation of trials, the co-accused may the give evidence against 1 another, but it is advisable that the accused, which the state intends, calling on to give evidence, should 1st be sentenced.QUESTIONS: Question 1: Fully comment on the following statement “A co-accused isn’t a competent witness for the state, whether to prove the case against him or against the accused” (5) Co-Accused: Were accused persons are tried together, they are referred to as co-accused. Co-Accused as prosecution witness: Co-accused is not a competent witness for the state, whether to prove the case against himself or against the co-accused, because he is also an accused. There may be circumstances where the state may call someone, who had previously been a co-accused, to testify. This happens when this person is no longer a co-accused in that case. It can happen in the following cases: (EXCEPTIONS) 1. Withdrawing the charge against the co-accused. 2. By finding the co-accused not guilty. 3. By co-accused entering a plea of guilty. 4. If trial of the accused & his co-accused are separated for some valid reason. Sec 157(2) of the CPA: Ito this sec, upon separation of trials, the co-accused may the give evidence against 1 another, but it is advisable that the accused, which the state intends, calling on to give evidence, should 1st be sentenced. Question 2: On the 19th April 2006, Peter celebrates receiving his LLB degree at a well-known restaurant. His wife & daughter of 6 are there to celebrate with him. A family member who is a freelance photographer takes pictures during the course of the evening. Unfortunately, Peter who has a drinking problem drives home while under the influence. A policeman notices him swerving his car across the road just before crashing into a parked car. Luckily, no 1 is injured, but Peter is arrested & charged with driving under the influence. Answer the following: (a): Discuss the competence of Peter’s daughter to testify on behalf of the state (5) Competence: Whether a particular person has the mental capacity to testify. GR: All people are competent & those who are competent must be compelledto testify. Exceptions to the GR where a person is not competent to testify: Children: No statutory provision barring children under a certain age from testifying & also no particular age above which a child is competent to testify. Children are therefore subject to the same GR as presumed competency as all other persons. Provided that they: 1. Understand what it means to tell the truth. 2. Have sufficient intelligence & 3. Can communicate effectively. Thus, Peter’s daughter is not competent to testify on behalf of the state, due to the above facts. Question 2 (b): Discuss the competence & compellability of Peter’s now ex wife to testify on behalf of the state (7) Compellability: GR: Those who are competent may be compelled to testify. Witnesses who are competent but cant be compelled to testify: Spouses: GR at common law was that the spouse of an accused could not testify for or against such accused. This rule doesn’t apply to civil proceedings. With respect to criminal proceedings, specific rules are in force, depending upon whether the spouse is a state witness, a defence witness or a witness for the co-accused. The facts of the Q fall with spouse as state witness because… Spouse as state witness: (Against your husband) 1. Sec 195: Clearly states that a spouse is competent to give evidence on behalf of the prosecution, but that he can be compelled to testify only in certain circumstances. 2. This exception only applies to matters dealing with the well being of, & relationship between, the married couple, as well as the well being of the children of the relationship or any child that is in the care of either of the spouses, incest or the sexual exploitation of children or mentally disabled persons. 3. This sec also applies to people who were married when the relevant crime was committed, even though the marriage was dissolved in the meantime. Generally Peter’s wife would not have been compellable to testify against him, but since they are divorced & it’s in the well being of their daughter, she is competent & compellable to testify against him. Question 3: Mr G is president of Africa Holdings, a CO listed on the JSE. S is his vice president. They are charged with fraud amounting to R4million in respect of the CO’s funds relating to insider trading of the CO’s shares: Both accused have talked to their wives on numerous occasions regarding their insider trading & tax evasion. Discuss the competence &compellability of their wife’s to give evidence against them (10) Competence: Whether a particular person has the mental capacity to testify. GR: All people are competent & those who are competent must be compelled to testify. Compellability: GR: Those who are competent may be compelled to testify. Witnesses who are competent but cant be compelled to testify: Spouses: GR at common law was that the spouse of an accused could not testify for or against such accused. This rule doesn’t apply to civil proceedings. With respect to criminal proceedings, specific rules are in force, depending upon whether the spouse is a state witness, a defence witness or a witness for the co-accused. (1) Spouse as state witness: (Against your husband) 1. Sec 195: Clearly states that a spouse is competent to give evidence on behalf of the prosecution, but that he can be compelled to testify only in certain circumstances. 2. This exception only applies to matters dealing with the well being of, & relationship between, the married couple, as well as the well being of the children of the relationship or any child that is in the care of either of the spouses, incest or the sexual exploitation of children or mentally disabled persons. 3. This sec also applies to people who were married when the relevant crime was committed, even though the marriage was dissolved in the meantime. (2) The Spouse as defence witness: (Evidence for your husband) 1. Sec 196: States that the spouse of an accused is a competent as well as a compellable witness in defence of that accused, whether such accused is jointly charged with somebody else or not. 2. If accused is jointly charged with another, spouse of such accused will be competent to give evidence on behalf of that co-accused, but cannot be compelled to do so. Thus, Mr.G & Mr.S’s wives are competent to give evidence on behalf of their husbands, but can’t be compelled to do so.