2022 OCTOBER EXAM - LAW OF EVIDENCE (LEV3701)

Question 1 What must the court in a civil case do if a legal question about the cross-examination of a witness arises and there is no express provision in any South African legislation on the specific issue? Fully explain with reference to a definition. [5] Question 2 Lucky is on trial for the murder of his wife. The prosecution claims that Lucky committed the murder by poisoning his wife with arsenic. Lucky’s defence is that his wife committed suicide. Innocent, an attorney, is called by the prosecution to testify that the accused approached him in his professional capacity for legal advice and, during their discussions, admitted to having killed his wife. Innocent subsequently declined to represent Lucky. The prosecution states that this evidence will be admissible because Lucky had told Innocent of a crime that had already been completed. Do you agree? Fully discuss with reference to the requirements for the admissibility of this type of evidence. [10] 3 B and D belong to rival gangs. One night a fight breaks out between the gangs and a passing motorist, C, is shot and injured. C lays a charge of attempted murder, and during the investigation, C gives a description of his assailants to the police. An identification parade is held, and B and D are picked from the line-up. B and D are thereafter charged. Answer the following questions with reference to the trial: 3.1 Two bullets are extracted from C at the hospital and, when B and D are arrested, the investigating officer finds a weapon in the possession of both B and D. What type of evidence is at issue here? Discuss with reference to the general rules applicable to this kind of evidence. (10) 3.2 Assume that C is the only witness that can identify B and D as his attackers. Fully discuss the evidential rules that the court will have to apply when evaluating C’s evidence at the end of the case. (10) [20] Question 4 A and W (a former advocate) rob a bank. During the robbery, W shoots and kills a security guard and A injures a bank official. Later an argument over the loot ensues between A and W, and A shoots W in the stomach. A is charged with attempted murder and W is the state witness in this case. Obviously, the bank robbery comes up in this case and during cross-examination W makes several statements in which he implicates himself in the murder of the security guard. At no time does the presiding magistrate warn W of his right in terms of section 203 of the Criminal Procedure Act 51 of 1977. Some months later, W is charged with the murder of the security guard. Can the state in this murder case use the statements that were made by W during his testimony in the other case as evidential material against W? Fully explain your answer. [10] Question 5 A final year law student is charged with the alleged rape of a fellow student. At his arrest, it is explained to him that he has the right to remain silent and that anything he says, might later be used as evidence against him (section 35(1)(b) of the Constitution). He refuses to say anything and is detained in the police cells. A day later he calls the investigating officer (an inspector) and says that he wants to make a confession. The investigating officer takes him to a colleague (a captain), who takes down the confession after also warning the accused in terms of section 35(1)(b) of the Constitution. 5.1 Discuss the basic characteristics of the process that is used to solve any dispute about the admissibility of a confession. Do not discuss the requirements for the admissibility of confessions in your answer. (5) 5.2 Accept that you are the magistrate. Fully explain how you will handle the accused’s argument that the confession is inadmissible evidence. (10) During the trial, the girl testifies that the rape took place one night after a function on a deserted part of the campus. She explains that she was involved in a serious battle with her assailant and identifies the accused as her assailant. During cross-examination, it is put to the complainant that she is lying and that she could not have observed the assailant’s identity properly, since there was no moon on the night in question and that that section of the campus has no lights. The accused also cross-examines her about her sexual relations with various other men. The prosecutor responds by calling the complainant’s flat mate who testifies that the complainant described the events in question to her that very same night. She also testifies about what the complainant said about the identity of her assailant. 5.3 Accept that you are the magistrate. Fully discuss whether you would allow the questions that were put to the complainant during cross-examination. (5) 5.4 Give a motivated judgement, as a magistrate, on the question of whether you would allow the flat mate’s evidence. (10) [30] Question 6 It is the evening of 12 October 2022 and Peter is at a well-known restaurant celebrating receiving his LLB degree earlier that night. Almost his whole family, including his wife and six-year-old daughter, are there to celebrate with him. During the evening, a family member who is a freelance photographer takes several pictures with a non-digital camera. Afterwards Peter, who has a drinking problem, drives home while under the influence of alcohol. A policeman notices his car swerving across the road and crashing into a parked vehicle. Fortunately, no one is injured but Peter is arrested on the spot and charged with driving under the influence of alcohol. Shortly after this incident, Peter’s wife divorces him because of his drinking problem. Answer the following questions in detail: 6.1 Discuss the competence of Peter’s daughter to testify on behalf of the state. (5) 6.2 Discuss the competence and compellability of Peter’s ex-wife to testify on behalf of the state and on behalf of the defence. (10) 6.3 Some of the pictures taken by the freelance photographer clearly show that Peter had consumed a variety of drinks that evening. Briefly discuss the admissibility of the photographs as evidence for the state. (5) [20] Question 7 X is arrested and charged with the murder of a woman whom he had recently married. The victim was found dead in her bath. The investigating officer, a captain in the SAPS, tells X that the police are also investigating other murder cases against him and that he would possibly not be charged with the other murders if he confesses to the current charge against him. X goes ahead and confesses to the murder and proceeds to point out a pair of gloves hidden away in his garage. This pair of gloves was allegedly used in the process of drowning the victim and has some of her hair attached to them. During the trial, however, the accused, who stands to benefit financially from the woman’s death, alleges that the confession was not voluntarily made and that the woman’s death resulted from an epileptic fit. Discuss the admissibility of X’s pointing out of the gloves as evidence in terms of the Criminal Procedure Act 51 of 1977. [5]