LEV3701 EXAM QUESTIONS

October / November 2001 Section 2 Question 2.1 Define the following: 2.1.1 Documentary evidence (4) “Evidence by way of a document”. According to Seccombe v Attorney-General a document is “everything that contains the written or pictorial proof of something.” Various other definitions exist, e.g. Concise Oxford Dictionary: “thing, esp. title-deed, writing, or inscription, that furnishes evidence (esp. in law and commerce).” Documentary evidence has two main characteristics: 1. it is writing or a drawing, 2. it provides proof of something 2.1.2 A presumption (2) A legal rule prescribing the acceptance of a particular fact, based on the existence of another fact. 2.1.3 Judicial notice (2) The judicial officer presiding in the case accepts the truth of a certain fact even though no evidence has been led about such fact. 2.1.4 Cautionary rule (4) A rule of practice, bearing the mandatory character of legal rules, which prescribes a specific approach to be adopted by the court, in order to assist in the evaluation of certain types of evidence. Question 2.2: Write brief notes on the cautionary rule with regard to evidence by a single witness. (8) An accused may be convicted on the single evidence of any competent witness (s 208 of the CPA). Similar legislation applies in civil matters (s 16 of the Civil Proceedings Evidence Act). Thus, if evidence is satisfactory, the court may make a finding. According to S v Webber the single witness must be credible and the evidence should be approached with caution. Consideration should be given to factors that affirm as well as factors that are detrimental to the credibility of the witness. A single witness is any witness who is the only witness on a particular point in issue. Evidence should not necessarily be rejected because the single witness has an interest or bias to the accused. The intensity of the bias should be assessed in terms of its importance in the light of the evidence as a whole. The court also found that the statement in R v Mokoena that the evidence of a single witness can be relied upon when it is clear and satisfactory in every material respect, should not be elevated to an absolute rule of law. This was confirmed in R v T. Evidence of a single witness may be satisfactory even though susceptible to criticism. Section 3 Question 3.1 W testifies that A is the person who killed D with a knife. He saw A do this, even though it happened at quite a distance and after the sun had set. Discuss the steps by means of which the admissibility and weight of evidence should be determined and judged, both during the presentation of evidence and afterwards. (15) This evidence deals with evidence of identification, which must be approached with caution, care and scepticism. Experience has shown that, for various reasons, it is very easy for the identifying witness to be mistaken. It is not enough for the identifying witness to be honest; the reliability of his observation must also be tested (S v Mthetwa). This depends on various factors such as among other things lighting and the proximity of the witness. Significant factors in the present case are the proximity of the witness W to A, in that the incident happened at “quite a distance”, and the lighting as it occurred “after the sun had set.” Evidence has to be weighed as a whole and a court should not decide a case based on inferences from selected facts considered in isolation. A piecemeal process of reasoning should be avoided. Inferences and probabilities have to be distinguished from conjecture and speculation. The former should always be considered in the light of, or drawn from, positive, objective and proven facts. The onus of proof is on the state. It has to prove its case beyond a reasonable doubt During cross-examination the credibility of the witness is attacked. The witness's body language amounts to real evidence, which the court can take into consideration as part of the whole body of evidence. The knife is also real evidence and is admissible by itself. It could provide corroboration for the eyewitness testimony, for example, if fingerprints are found on the knife. Because the cautionary rule applies, corroboration is a very important factor determining the weight of the eyewitness testimony. The requirement for corroboratory evidence is that it must be evidential material which independently confirms the (untrustworthy) evidential matter, and which is admissible by itself. Question 3.2 Is the question of the incidence of the onus of proof one of substantive or formal law? Refer to any relevant case law on this point. (