LEV3701 - Law Of Evidence Exam_Question AND ANSWERS

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. (5) In Tregea v Godart the testator left half his estate to his nurse in a new will made two hours before he died. The family members who contested the will on the grounds that the testator did not have sufficient mental capacity to make a will, would have inherited the whole estate in a former will. Roman-Dutch, the common law of our substantive law, has a presumption in favour of the validity of a will, which would have placed the onus of proving lack of validity of the new will on the family. English law, the common law of our formal law, however, states that the person alleging that a will is valid must prove this. The court did not know which way to decide the issue, which meant that the party bearing the onus of proof had to lose its case. It found that the question is governed by substantive law, burdening the family with the onus of proof, and they lost the case. This finding has subsequently been confirmed by the Appellate Division in cases like Neethling v Du Preez; Neethling v The Weekly Mail and Eskom v First National Bank of Southern Africa Section 4 A former captain of the South African cricket team, Chancy, is charged in the regional court with fraud. The charge sheet alleges that he unlawfully and intentionally made a misrepresentation to a Mr Ho, an Australian, to the effect that one of the key bowlers of the South African team (one Aldon) was severely injured, which caused Mr Ho to suffer damage to the amount of AU$ 500 000. In further particulars to the charge sheet it is explained that the alleged misrepresentation caused Mr Ho to bet the AU$ 500 000 on New Zealand beating the South African team. However, it transpired that Aldon did in fact bowl, took 10 wickets in the match, and played a major role in South Africa's victory by 212 runs. You represent Chancy as his lawyer. On the trial date, the prosecutor is informed that Mr Ho refuses to come to South Africa to testify in the trial. She will therefore have to prove the case against Chancy without the evidence of Mr Ho. She attempts to do this by means of a videotape from a video camera that had been concealed in the hotel room where Chancy had allegedly made the misrepresentation Question 4.1 You object to this evidence being led. Explain the exact nature of the evidence and discuss any relevant case law on this point. The distinction between real and documentary evidence has become fuzzy especially with regard to new technological media such as videotapes and computers. This type of evidence is uncertain in its classification. Schmidt and Schwikkard make an argument for the unique classification of such evidence, but this view has not yet been accepted by the courts. It is submitted that the videotapes should be treated as documentary evidence, as argued by Hoffman and Zeffertt Further support for this contention can be found in S v Singh and S v Ramgobin. I urge the court not to follow the more liberal approach that was allowed in S v Mpumlo and S v Baleka, where the courts viewed this evidence as real evidence. Such an approach clearly subjects my client to major disadvantages, since the evidence may be highly prejudicial and highly suspect, but difficult to refute. The videotapes, therefore, have to comply with the requirements for the admissibility of documentary evidence, which are as follows: 1. The court has to be satisfied with the authenticity of the document. 2. The document has to be proven by the handing in of the original. 3. The evidence should also not amount to inadmissible hearsay. Since there is no compliance with these requirements by the prosecution, the videotape should not be admitted. Question 4.2 The judge makes a finding (rightly or wrongly) that the evidence was documentary evidence. Develop an argument against admissibility on the basis that the prosecutor could only present a video-cassette which was a copy of the original tape on which the events were first recorded. (10) Where the contents of a document (in this case the videotape) have to be proven, only primary evidence, that is usually the original document, will suffice. (The “best evidence” rule refers to the tendering of the original document.) Even though the best evidence rule has been revoked, the rule with regard to primary evidence still continues, unless a failure to produce the primary evidence is excused. In such a case secondary evidence, usually a copy, will be received. The exceptions to the requirement of an original document are the following: 1. A copy is only permitted if the original is destroyed or cannot be located after a diligent search 2. if production of the original would be illegal 3. if production of the original is impossible 4. if the original is in the possession of the opposing or a third party who refuses to produce it and cannot be compelled to produce it. In this case none of these exceptions apply and the prosecutor should not be permitted to tender the copy into evidence. Question 4.3 The prosecutor manages to prove that the storage and presentation of the digital video has been done by means of an SABS standard 9211. She confidently quotes from the recent South African ECommerce Act which states as follows: “If in the prosecution of any person, it is proven that the evidence has been stored and presented in terms of SABS standard 9211, it shall be presumed, until the contrary be proved, that such evidence is admissible against the accused.” Find a counter argument, referring to any relevant case law or legislation. (10) It is clear that the statute contains a presumption. It is important, when answering this question, to determine the nature of this presumption. If it were a presumption of law, which reverses the onus of proof from the state to the accused, and which would allow a conviction even in the presence of reasonable doubt whether the accused is actually guilty, such a presumption would more than likely be unconstitutional, since it would breach the rights to be presumed innocent, to remain silent and not to testify during the trial. This has been decided in a number of cases, including S v Zuma. However, the presumption simply states that certain evidence is to be presumed admissible. This merely places an evidentiary burden on the accused. Evidence that the accused committed the offence, and dealing with every point in issue, still has to be provided by the prosecution. In this instance, although it appears that the video tape will be admissible against my client, the state still has to prove all the elements of the offence. In its absence my client cannot be expected to have to testify. October / November 2002 Section 2 Question 2.1 Once all the evidence by both parties has been adduced, but before the court evaluates all the evidence and comes to a decision, both parties will be given the opportunity to do something. Discuss the nature of this process.(6) Both parties will be given an opportunity to "address the court in argument". The parties will give the court their assessment of the evidence; and will also argue the law that may be applicable, in the process referring the court to various sources of the law, including case law, statute and textbooks. They will refer to the strong points in their own case and the weak points in the case of their opponents, and in this manner attempt to finally persuade the court to find in their favour