LEV3701 exam--exam-pack.

Nov 2015 SECTION 1 1. 3 2. 4 3. 2 4. 2 5. 4 6. 1 7. 4 8. 4 9. 2 10. 4 SECTION 2 2.1 Briefly explain the content of the first leg of the test for the exclusion of unconstitutionally obtained evidence (5) The first leg is entrenched in section 35(5) of the Constitution, specifically refers to the fairness of a trial as a criterion in the test for the exclusion of unconstitutionally obtained evidence. In this regard the court must consider factors such as 1. Privilege against self-incrimination: in S35 (3) – includes right to remain silent, be presumed innocent and not testify. 2. Real evidence emanating from the suspect: unconstitutionally obtained bodily samples, does not affect the privilege against self-incrimination since it not only pre-existed the Bill of Rights violation but also existed irrespective of the violation but the blood sample taken from the suspect in violation of his constitutional right could be excluded as evidence based on the right to a fair trial. 3. Fairness of a trial and derivative evidence: Although unconstitutionally obtained testimonial communication would be inadmissible, it is submitted that this should not lead to the automatic exclusion of the derivative real evidence such as the knife which, quite independently of the inadmissible communication, connects the accused to the crime. Such evidence should not therefore be treated as self-incriminatory. The court must view this evidence separately and exercise its discretion in terms of section 35(5). Downloaded by Neo Lemao () lOMoARcPSD| 3 2.2 List five examples of instances where a court may allow for the evidence of a lay person. (5)  the approximate age of a person.  the state of sobriety of a person.  the general condition of something.  the approximate speed at which a vehicle was travelling.  a summary of factual data as perceived by him, for example, a witness may be permitted to say that the complainant was “angry”.  the identity of handwriting. 2.3 List the requirements for the admissibility of an otherwise inadmissible confession. The requirements for the admission of an otherwise inadmissible confession are:  Evidence is adduced by the accused,  which, in the opinion of the judicial officer, is favourable to the accused,  of a statement made by him,  as part of, or  in connection with, such an inadmissible confession. 2.4 Briefly explain the main principles relating to the police docket privilege which are evident from Shabalala and others v Attorney-General of the Transvaal 1996 (1) SA 725 (CC). (5) The main limitation to police docket privilege is the constitutional right of an accused to a fair trial, as framed in section 25(3) of the interim Constitution – section 35(3) of the final Constitution. The police docket privilege which applied in terms of R v Steyn 1954 (1) SA 324 (A) cannot be reconciled with this. Normally, this right would ensure access by the accused to exculpatory documents (documents which tend to show that the accused is not guilty) in the docket, as well as to witness’s statements which he may need in order to exercise his right to a fair trial. The State may oppose such requests on the ground that such access is unnecessary in order to exercise that right; that it may lead to the identification of a police informant; that it may lead to intimidation of witnesses or in some other fashion subvert the ends of justice. The court has to exercise a judicial discretion in determining whether access should be allowed. SECTION 3 3.1 Write a note on the requirements for the operation of legal professional privilege between a client and his legal advisor. (10)