CHAPTER 1 INTRODUCTION

Importance of facts, definitions and classification of the law of evidence

The law of evidence is part of adjectival law (the law of procedure in its widest sense) that regulates the proof of facts in court. The function of the law of evidence is to determine the admissibility and weight (by evaluation) of the facts in issue. The law of evidence also determines in what manner evidence should or may be adduced; or lawfully withheld; want rules should be taken into account in assessing weight or cogency; and what standard of proof should in a given situation be satisfied before a party bearing the burden of proof can be successful.

Why do we have this branch of law? Because a factual basis is necessary to determine the rights, duties and liabilities which exist in terms of substantive law.

The basic concepts

Most of the law of evidence deals with admissibility - what facts/evidence can be submitted in the first place and what facts/evidence is inadmissible (about 3/4ths of this area of law fall within here). The rest involves evaluating evidence, where the question must be asked: what weight must the court now give to the evidence that was admitted? By applying this area of law, it can be decided which facts are admissible, what type of facts you can adduce, and when you can examine or cross-examine oral evidence that stems from a witness.

Distinction between admissibility and evaluation

Wouter has said that students find this confusing, but that we must remember how important the distinction is. There are several related issues in the law of evidence, such as the compellability of witnesses, onus of proof etc, but the distinction between admissibility and evaluation of evidence is an important one to keep in mind.

Scope and functions of the law of evidence

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The private law sphere has two branches substantive (e.g. contract) and adjectival (e.g. civil procedure and evidence). The other sphere is public law which also has 2 branches substantive (e.g. criminal law) and adjectival (e.g. criminal procedure and evidence).

Procedural law gives practical meaning and effect to the substantive law by using mechanisms to enforce it. The law of evidence deals with, among other things, the following: Determination of facts that are legally receivable (admissible) Determination of manner evidence should or may be adduced Determination of evidence that may be lawfully withheld from court (privilege) Determination of rules that should be taken into account in assessing weight or cogency of evidence Determination of standard of proof a party should satisfy before being successful

History

Because of the historical events of the Cape in the late 18th and early 19th century, our law of evidence was born mainly from the English common law. Due to the legal reform that occurred in the Cape at this time, the procedural landscape was reformed according to the English courts and new structures and procedures were fashioned after English law. The jury system in particular had a lasting effect on our legal system.It is thus important that we look at the history of this area of law. 2 Evolution of the English law of evidence

Before coming to South Africa, the English law of evidence went through three phases, each of which manifests a predominant school of thought and prevailing conceptions availing at the time. Rather than each phase emerging separately, there was a gradual development from one phase to another.

Religious (Primitive) Phase

This stage occurred prior to the Norman invasion of England (9th/10th century). Religion governed all aspects of life and the church played a dominant role in society. Thus it was God who decided who was guilty and not guilty and therefore, dispute resolution was not based on any rational grounds.

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In 1066 the Norman invasion was led by William the conqueror (a French guy actually). The Normans (Frenchies) introduced a practice called trial by ordeal and later, began a practice called trial by battle (which was essentially a duel).

Trial by ordeal involved an appeal to God to decide the factual dispute. This was based on the idea that one man cannot sit in judgment on another, but God could judge them. Here, it seems, were the early seeds of the accusatorial/adversarial system of trial we use today, where physical confrontation has evolved into verbal confrontation.

An example of a trial by ordeal was where the accused was required to swallow a piece of dry bread, accompanied by a prayer staying that if he were guilty he would choke and die (a practice known as corsnaed). Paton andDerham maintain there may be logic in this seemingly illogical practice: the fear from guilt causes a dry mouth and renders it more difficult to swallow. If you are guilty there is a certain amount of fear you will face of being found out. This could be earliest form of rule that the demeanour of a witness be taken into account in assessing their credibility. All in all it was a pretty rough time to live.

Formal Phase

The 12th century saw an increase in the role that reason played in adjudicating disputes. There was thus a decrease in the reliance on God as an adjudicator as people began to turn their backs on the previous irrational methods.

Nonetheless, the church remained a dominant force in society, and it was only a prohibition by the Pope that disallowed trial by ordeal. The church and aristocracy maintained a rigid class structure that ensured that everyone had a place in society. In doing this, God, as the fact finder was replaced by people.In order to decide who was guilty, officials would consider the quantity of people supporting a side (this was the evidence) rather than the quality thereof of weight of evidence itself. These oath helpers were called in to swear that the accuseds oath is the truth, a practice similar to our modern day character witnesses.

Over time, and under the lengthy, approximately 50 year rule of King Henri II (another Frenchman who ruled from 1154), a certain measure of peace and order was restored after years of civil war and social turmoil in England. Henri had a very important influence on the development of the jury. Many people had been murdered and others dispossessed of their land and, to restore stability, he needed information as to who dispossessed this person of land, who killed x, and so on. To obtain this information, his officials would enter towns to call up honest men who would answer questions that were posed to them under oath (a procedure Page 3 of 152

known as a Frankinsh Inquest). Over time, the people that were called on were no longer allowed to have personal information around the event and essentially became adjudicators, thus beginning the jury system.

This is somewhat different to oath-helpers, who swear on someone elses oath they were the credibility towards the truth. Jurors are there to answer questions posed to them and to find out the truth. Oath helpers and oath-makers existed at the same time.Wouter doubts that this was actually the birth of the jury, but whatever.

Rational Phase (and development of the Jury)

This stage took place from the late 17th century onwards.

The oath-helpers (called compurgators) were called upon not only to express a belief in the veracity of a partys oath but also to act as adjudicators because of their knowledge (see above). It was realised that these compurgators could make a meaningful contribution towards justice as adjudicators and not as people who just ruled on the truthfulness of oaths. This was how the jury was developed.

During the 17th century, the jury developed in England (with its Church influence)but not in Continental Europe. A witness would swear as to what he knows and the jury would swear as to what can be inferred/concluded from the witness testimony. This distinction led to important conclusion: jurors enter the box with tabula rasa and that the facts are to be given to them through a medium of oral testimony of witnesses. This led to the principle of orality, while personal knowledge of event disqualified a juror. Thus the notion of an impartial adjudicator was accepted.

The influence of the French Revolution (late 18th C) led to the breakdown of class structure as human rights and reason came to the fore, playing a role in the process of adjudication and influenced the method of trial:

(1) Continuous process the process starts and continues until it is finished: the reason being is that you cant bring a jury back after long postponements

(2) Oral Evidence is NB cannot burden lay-people with bundles of documents, and require them to make a decision based on this

(3) Evidence is delivered directly there is no intermediary that collates the evidence and presents it in written form to the court (i.e. in France) Page 4 of 152

Thus, orality was the predominant method of communication, mainly because the people were laymen who could not be burdened with paperwork. As judges thought that jurors, being lay people, could be easily influenced, misled or distracted by certain categories of evidence (attaching too much weight to that evidence and allowing it when it shouldnt be allowed), they (the judges) considered the admissibility of evidence a matter of law. Thus was developed a system or set of rules that would determine what evidence was and was not admissible.

At the same time, exclusionary rules were developed by judges, which included the character rule and the hearsay rule. This was based on the legal principle of stare decisis. Cautionary rules were also developed by judges, for example that certain evidence must be treated with circumspection i.e. cautionary rules in a rape case.

During the 19th and 20th centuries, statutory reforms occurred in England and South Africa. These were aimed at relaxing the strict evidential rules which owed existence to trial by jury. SA abolished jury trial for civil (1927) and criminal (1969) cases, however much of evidentiary system designed for such trials can only be appreciated when regard is had to this context (i.e. exclusionary rules). Thus the jury + adversarial method + principle of orality + oath + precedent + best evidence rule all contributed to the present intricate system.

It could be said that the decline of the jury trial potentially opened the door to a more liberal approach. However, courts have since been obliged to follow a stricter system of evidence with an emphasis on admissibility, with developments occurring by means of legislative action. 3 Comparative view

Accusatorial (adversarial) Systems

The Anglo-American (accusatorial) system is a strict common law system, as used in England. It is party controlled (the legal representatives control the whole process); orality and cross-examination dominate and there are rules of admissibility and evaluation (assessment). Both pre-trial and trial evidence and questioning is controlled by the legal representativesand the judge merely plays the neutral role of umpire.The accusatorial system is based on premise that a greater approximation of truth is possible if litigants present their own evidence in a process that guarantees cross-examination of all testifying for this reason, there is an emphasis on orality. Cross examination is critical because the system technically allows presentation of only

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favourable evidence. The prevalence of cross-examination also explains the relative inactivity of the adjudicator.

The South African system belongs to the Anglo-American family.

Inquisitorial Systems

The Continental (inquisitorial/free, civil law) system, on the other hand, is judicially controlled where thewritten word dominates (no cross- examination). There are few rules of admissibility. The judge has an active role in the investigation, investigating at the same time as the police. He is allowed to question the accused (in a neutral manner). They are generally more flexible with regard to admissibility of evidence. Because of no jury, the necessity for exclusionary evidence has never existed. Everything is generally gathered on paper but witnesses can come in to testify but this is subordinate. The continental system is predominant in France and Germany.

Criticisms

While the Accusatorial system leaves it to the parties to bring evidence, a practice that is not conducive to the discovery of evidence, there is a presumption of equality between the parties. However due to the common inequality that exists between the accused and the machinery at the states disposal the truth often becomes the view of the powerful.Secondly, the outcomes often turn on the ability, wit and energy of the crossexaminer, which generate an unnecessary amount of conflict which is ultimately not conducive to the resolution of a dispute.

Finally, the partial manner in which parties can present their own evidence, and the limited circumstances where an adjudicator can call witnesses leads to a situation where formal or procedural truth is often promoted at the expense of the material or real truth.Essentially it is a trial by strength.

One could argue that it is much easier to obtain the material truth under the inquisitorial system where a judge plays an active role in gathering and presenting evidence. The importance here shifts from crossexamination to fact-finding and the presentation of evidence on paper. Essentially this is a trial by inquiry.

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CHAPTER 2 BASIC CONCEPTS AND DISTINCTIONS

Facts in issue (factaprobanda) and the facts relevant to the facts in issue (factaprobantia)

The facts in issue are generally determined by substantive law whereas the rules of procedure (particularly the law of evidence) are used to determine the facts relevant to the facts in issue.

FactaProbanda

These are the essential facts that a party must prove in order to succeed in his case. For example, in a criminal trial, the State has to prove certain elements of a crime as fact [e.g. murder is where a person is unlawfully killed by another etc]. If the accused pleads not guilty and does not make any formal submissions then all elements of the crime as fact must be proven and those are the facts in issue.

FactaProbantia

These are the facts that can be used in order to prove the facts in issue. The State does not have to prove these, but they remain relevant. For example, where the State calls a witness who says he saw accused with weapon running away from scene of crime these are not essential facts but are important, as court can infer that the accused did in fact commit crime.

Evidence and Argument

Argument in a trial is merely persuasive comment made by the parties or their legal representative with regard to questions of fact or law. These are usually made at the beginning and end of the trial. This is not evidence. However, parties have the right to object to and deliver argument with regard to the admissibility of certain evidence. The court is then required to make a ruling on the issue of admissibility.

Evidence and Probative Material

It is important to note that there is a distinction between evidence and probative material as evidence is not the only means of furnishing proof. Our courts often muddle the two, which is why the distinction is not so clear cut. Page 7 of 152

Evidence

Evidence is made up of all oral statements received under oath in court; documentary evidence; real evidence (these are objects presented in court, such as fingerprints, hair samples and dental records, these objects simply exist) and written statements made under oath (called affidavits).

Probative Material

The term probative material refers to more than evidence, it includes formal admissions, judicial notice, presumptions and statements made in terms of s 155 of the CPA (i.e. informal admissions). One way to understand the distinction is that formal admissions do not require any evidence to prove facts in issue and therefore cannot be classified as evidence. The word probative (which comes up a lot in this course) can be defined as to what extent the evidence is sufficiently useful to prove something important in a trial. The probative value of evidence is thus what the evidence will reliably prove if admitted.

Evidence and Proof

Proof of fact is understood that the court has received probative material with regard to such fact AND has accepted such fact as being the truth for purposes of the specific case. Evidence of a fact is not yet proof thereof but a court must still decide whether such fact is proved. This involves a process of evaluation and will have to meet certain standards of proof, for criminal cases it is beyond reasonable doubt and for civil cases it is on the balance of probabilities.

Conclusive proof and Prima Facie proof

Conclusive proof:Final proof has been established and that rebuttal is no longer possible.

Prima facieproof:Proof is provisional, and that proof to the contrary is still possible (i.e. there is still possibility of rebuttal of the proof by the accused, even though he doesnt carry the onus).

Dont confuse prima facie proof with prima facie evidence. Page 8 of 152

Admissibility and weight of evidence

DO NOT CONFUSE THESE TWO CONCEPTS There are no degrees of admissibility. It is either admissible or inadmissible. However, there may be a rule excluding it, e.g. character evidence.

Admissibility of evidence is generally determined with reference to its relevance which must necessarily have regard to potential weight of evidence. But this accessing of weight is merely preliminary in ascertaining whether evidence, once admitted, would be of assistance. Weight is therefore not a necessary factor in establishing admissibility of evidence.

Once admissible, it can carry more or less weight, depending on the particular circumstances of the case.

Thus only after the evidence has been admitted is its weight evaluated properly.At this stage is when the standard of proof is considered. Evidence may also be admitted on condition that some basic defect which renders it inadmissible is cured during the course of the trial.

Circumstantial evidence and direct evidence

Direct evidence provides direct proof of a fact in issue. For example, an eyewitness who saw the stabbing of a victim by the accused would provide direct evidence.

Circumstantial evidence provides indirect proof of the facts in issue, from which the court must make logical inferences(like the example above- the accused was seen running away with the knife and not witnessed actually stabbing the victim). From this the court can make inferences and if it is enough then a guilty finding may be made.

Primary and Secondary evidence

This is used in the context of documentary evidence. Primary evidence relates to the situation where the document does not by its nature indicate that there is better evidence i.e. original document. Secondary evidence does by its nature indicate that there may be better evidence i.e. copy of a document Page 9 of 152

Burden (onus) of proof

There is a duty cast upon a party to persuade the court of his version of what happened. In criminal cases, it almost always rests on the State (there are exceptions, which well come to later), but its not always clear in civil cases the burden may be on the defendant at times.

Incidence of the burden of proof asks on which party does the onus fall? take note of the incidence of the burden of proof there are often rules dictating who must prove what. For example in civil cases, the burden falls mainly on the plaintiff, in criminal trials, it falls on the State.

Evidential burden relates to the burden or duty that arises once the opposing party has established a prima facie case a duty to present evidence in rebuttal

Standards of proof

This asks how much proof is required? This is the standard taken into account to decide whether the party who carries the burden has discharged it.

For example, in criminal case, the State must prove its case beyond a reasonable doubt. However, if the accused can show that his version is reasonably possibly true then this would negate the States case.

In a civil case it is a balance of probabilities.

Other relevant concepts

The following are other relevant concepts which will be touched on in more detail later on, for now these brief definitions will suffice.

Hearsay S 3(4) Law of Evidence Amendment Act defines hearsay evidence as: evidence, whether oral or writing, the probative value of which depends on credibility of any person other than person giving such evidence

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Privilege This refers to the right or duty of a witness to lawfully withhold evidence from court. Both private and state privilege exist. This is distinguished from the competence and compellability of witnesses.

Confessions A comprehensive out-of-court informal admission by accused of all elements of alleged crime is considered an unequivocal acknowledgement of guilt.

If in court, this would be a plea of guilty.

Judicial Notice The court may accept certain facts as proved, even though no evidence was led to prove such facts. For example, facts of either general or local knowledge.

Presumptions There are presumptions of fact which are merely inferences drawn from evidence. There are also irrebuttable presumptions of law which cannot be proved, such as an infant being doliincapax, meaning a 6 year old could never be proved to have the mental ability to understand the consequences of murder and act in appreciation of those consequences. And lastly, there are also rebuttable presumptions of law.

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CHAPTER 3 - SOURCES OF SOUTH AFRICAN LAW OF EVIDENCE AND THE IMPACT OF CONSTITUTIONAL PROVISIONS

Historical Overview

Our law of evidence is not based on Roman-Dutch authority. Its rules are found in local statutes and, where these are silent, the English law of evidence which was in force in South Africa on 30th May 1961. This is what serves as our common law.

The CPA and CPEA contain provisions which directly relate to this effect. We have a full body of case law on evidence and thus rarely turn to English law as we rely on our own precedents. In addition, English cases decided after 30 May 1961 act as persuasive authority and would not be binding.

The constitution is supreme law and all rules of evidence must comply with constitutional provisions. Thus, not only does the constitution govern the validity of rules but is also an important source of law for evidence.

The Roman-Dutch Era 1652 1806

Before the arrival of the British, we had a system based on the continental procedural system (see above). This was mainly before the French Revolution and thus the hard characteristics of systems used before this time were commonplace in South Africa (for example, torture and punishment)

The British (English) Era 1806 1910 (this is the pre-union period)

When the British arrived, they held a Commission of Inquiry with regard to the previous procedural system. It was found to be unsatisfactory and they therefore introduced procedural reform according to the English model. Included in this reform were the Charters of Justice 1827, the Evidence Ordinance of 1930 and other colonial statutes.

The Charter of Justice totally reformed the court structure of the High Court in the Cape. A Supreme Court was established on the basis of the English model, and later the lower courts were altered too.

The Evidence Ordinance laid the foundation for future legal development in SA law by incorporating English Law of evidence into SA law. This was literally copied word for word. To cover the whole field (which was rather difficult) the SA courts inserted a rule to look at the English rules: the law of evidence as applied in Page 12 of 152

England will be enforced. Other Colonies followed example of the Cape which in turn had incorporated English Law.

After the Union Era 1910 1961

The Criminal Procedure Act 56 of 1955 and the Evidence Act of 1917 were incorporated. The Evidence Act excluded English law where any matter relating to evidence was expressly dealt with in South African legislation. There were also residuary clauses which invoked English Law with regard to issues not expressly covered by SA Legislation.

South Africa becomes a Republic 1961 1994

In 1961, South Africa became a republic. Up until then, the courts referred to the law of evidence in England. The authorities at this stage were not keen to keep the statute books and references on England and so they removed all the references to English law.

They replaced the Supreme Court of Judicature withthelaw in force on 30 May 1961.

After this came the CPA of 1977 replacing the old 1955 CPA and also the Civil Proceedings Evidence Act 1965. This consolidated the different provinces and their difference proceedings with regard to the law of evidence.

Constitutional Era 1994

A number of rights were entrenched in s35 (rights of detained and accused). These rights have as such impacted upon procedure and evidence.

Method of incorporating English law and the meaning of the 30 May 1961 Provisions

Method

The 30 May 1961 provisions forced a South African court or lawyer to go back in time and look at the law as it stood on that date. They would then discover that the law in force on that day was the law which was in force Page 13 of 152

in the Supreme Court of Judicature in England, and would only not apply that law if local legislation had superseded it. This was a somewhat cumbersome process. Thus, if our law did not have a particular ruling on a matter it would turn to law in England at the 30 May 1961.

Meaning

Up until 30 May 1961, English law is to be applied unless there is local legislation dealing with that issue. The effect of this was to freeze SA law.

At this date, the law incorporated both statute (e.g. the Evidence Ordinance 1830) and case law. If there is a gap in our law then the court has to go look at English law cases up until that date. Even today, the court is bound by this principle.

English cases considered to be incorrect

There are a few exceptions as to English cases before this date. Three main instances where an SA court would be justified in not following English law are:

(1) If its against considerations of public interest: i.e. S v Lwane

(2) if English law is contrary to Constitution

(3) If an SA court considers that an English decision applied the English law incorrectly: i.e. Van Der Linde v Calitz

English cases after 30 May 1961 are not binding but ratherpersuasive.

S v Lwane 1966 (2) SA 433 (A)

L and H were charged with the murder of X. Thereafter, L and H were involved in an argument and H shot L in the stomach. L reported this to the police. There was a preparatory examination (trial before the main trial to see if there is evidence against the accused, a practice that doesnt apply anymore but anyway...). At the examination, L was called as a witness (not as the accused) to testify.He proceeded to give his evidence, but did not confine himself to the shooting incident. Instead, he told the whole story of the murder, which Page 14 of 152

amounted to an admission of the crime. The Magistrate did not warn him about what he was doing. Subsequently, he was charged and convicted of murder. Both L and H were sentenced to death at the later murder trial where this deposition of him being a witness in the other trial was used as evidence against them.

They appealed.

This issue arose on appeal: during preparatory examination, theprosecution and magistrate did not warn him that he had the privilege against self-incrimination was this an irregularity and how does it affect the evidence that was admitted against him?

The Court held that it the matter is to be determined by English Law and hence referred to the English law position In English law, the court would frequently warn the witness, but it had not crystallized into a binding rule and therefore it remained the courts discretion.

However, in South Africa the position is different. Many people are ignorant of their rights. The court referred to South African casesand found that it had become practice that the court warned the witnessand that this practice had developed into a binding rule. Thus,there was an obligation on the court to warn the witness, and failure to do so amounts to an irregularity. In this kind of circumstance, L had the right to remain silent and, under this right, had privilege against self- incrimination. The witness does not have the right to silence but they can claim privilege against self-incrimination.

Thus, the court held that the accused was severely prejudiced because he was not warned. Due to this irregularity, it was decided that the evidence was inadmissible and so he was acquitted. This was an example of where it was against the public interest to follow English law, despite its precedent.

Van der Linde vCalitz 1967 2 SA 239

The employee of a provincial administration instituted a claim for damages against his superior after a report written about him contained allegedly defamatory statements.The Head of the Department refused to disclose the report, claiming that it would be against the public interest he relied on state privilege.

The issue was this claim for privilege justified and did the court have authority to examine whether this claim to privilege was justified? Up to this point, this issue had been regulated by English law (30 May 61 etc)

However, when the court looked at the English law, it was confronted with two contradictory judgments: Page 15 of 152

Privy Council (highest court for Commonwealth, outside of England) in the Robinson case regarding the marketing and sale of corn in Australia noted the following: court has got the power to examine and to investigate claim by the state of privilege and if it is not justified, the court can reject it.

House of Lords (now called the Supreme Court, its the highest court in England): Duncancase which dealt with specifications of submarine that sank in WW2: court decided that if the state raised an objection that disclosure is against the public interest, the court must accept this

Up until 1950, the PC was highest appeal court for SA. The court in Calitzpreferred this judgment (citing that it had great persuasive value) and thought that the House of Lords decision did not reflect English law correctly.

Calitz is the authority for the SCA may deviate from an English decision if it concludes that the English decision does not correctly apply the English Law.

This decision has been criticized. Our courts are obliged to apply English law by virtue of SA legislation. If there are conflicting decisions in the English courts, we must ask which court is higher in terms of the hierarchy of the courts in England. The court could also have distinguished the cases, because Robinson is a far cry from the details of the House of Lords decision. Wouter thinks this criticism is correct.

Sources of SA Law of Evidence

1. SA Legislation and case law is made up of the Criminal Procedure Act, Criminal Procedure and Evidence Act, and the Law of Evidence Amendment Act 2. English common law (30th May 1961) - if SA law does not provide otherwise, use this

3. The Constitution

Any law conflicting with constitution must be declared unconstitutional unless it is able to be declared permissible under s 36(1). The law of evidence must constantly be scrutinized in light of the Constitution. In addition, some common law, procedural and evidentiary rights of the criminally accused are now constitutional rights (see s35). Similarly, the right to a fair trial has been entrenched therein, which affects the application of rules of evidence, while the right to silence affects admissibility of confessions.Constitutional Page 16 of 152

provisions have been invoked to declare certain statutory presumptions and reverse onus clauses unconstitutional, and also impact on state privilege.

Perhaps the most far-reaching effect of the Constitution concerns the admissibility of unconstitutionally obtained evidence (s 35(5)). Evidence obtained in a manner that violates any right in the Bill of Rights must be excluded if the admission of that evidence would render a trial unfair or otherwise be detrimental to the administration of justice (this is further discussed under chapter 12, so hold your horses).

Canadian andUS cases are useful in interpreting the impact of Constitution on law of evidence, because they too have a situation where a constitution was superimposed on an English system of law. Well come to this later.

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CHAPTER 4 THE LAW OF EVIDENCE AND SUBSTANTIVE LAW

Substantive and Procedural Law

There is a distinction between substantive and procedural law. Substantive law provides for rights and duties, while adjectival (procedural) law provides the procedural mechanisms whereby those rights and duties are enforced.

In some instances, adjectival law also creates rights and duties. For example, the right of a party to crossexamine, and the rules of court in civil matters such as the discovery of documents and calling of expert witnesses.

Importantly, it is the English law of evidence which was incorporated into our law in procedural matters, but NOT in our substantive law (which is still largely common law derived from the Roman Dutch). For this reason, it is important to distinguish between substantive and procedural law. But this is actually pretty difficult to do sometimes, as its simply not always clear what makes up the law of evidence and what is substantive law.

This is mainly confusing at times when rules of substantive law are couched in evidential terms (stated as rulesof evidence when they are not). Some examples will be dealt with below:

Irrebuttable Presumptions

These are not presumptions in the true sense of the word, nor are they rules of evidence. They are rules ofsubstantive law and RDL, directing a court to accept a situation as conclusively proved once certain basic facts have been shown.

Example: A girl below the age of 12 is irrebuttably presumed to be incapable of consenting to sex. This actually means that sex with a girl below 12 amounts to rape, even if the girl had in fact consented. So once sex with a girl under 12 is proved, the court is obliged to conclude that there was no consent. This presumption is now correctly stated as a rule of substantive law under the Criminal Law Amendment Act. The new rule is also wider and gender neutral.

Example: an infans(a child below the age of 7) is criminally and delictually non-responsible. So the substantive rule is that an infanscan never be held liable in crime or delict. Once you prove that a child is, for arguments Page 18 of 152

sake 6 years old, he falls into the category of an infans. Thus evidence to the contrary will not be received in court with no exceptions to this rule. So if the kid is charged with fraud the prosecution cant lead with evidence that proves he/she is a genius and did have the mental capacity to understand his actions.

Estoppel has been said to be an irrebuttable presumption as it is a judgment that is presumed to be correct.

Note: a rebuttablepresumption allows for the prosecution to present evidence to prove beyond a reasonable doubt that an accused does contain certain factors i.e. have capacity (i.e. if above the age of 7 but below 14).

Estoppel

Estoppel is derived from English law (from the word stop). It can be used to preclude (or estop) a party from denying or asserting a particular fact in court.

The doctrine was introduced in SA from English law on the basis that it was analogous to principle of Roman and RDL law. There is estoppel by record, by silence, by deed, by conduct, issue estoppel, equitable estoppel and estoppel by negligence. In SA we have estoppel by representation and estoppel by judgment.

Some have said that estoppel is a rule of the law of evidence. Its possible to say it is a rule that excludes the law of evidence: the representor many not adduce evidence at variance with his representation or evidence may not be led in contradiction of a judgment.

However, it is today viewed correctly as a rule of substantive law. These presumptions cause the evidence to be inadmissible not because estoppel as a rule of evidence prohibits such evidence but rather because estoppel as a rule of substantive law, causes the evidence to be irrelevant.

Estoppel by representation

This occurs where a person makes representation to another, who, believing in the truth thereof, acts thereon to his prejudice. The representor is then precluded or estopped from denying, at a later stage, trust in this representation.

Estoppel by judgment (a plea of res judicata) Page 19 of 152

This occurs when a matter has been finally adjudicated on by a competent court. The matter cannot be raised again if the action is between the same parties, for the same relief, upon the same cause and provided further that the judgment was a final one on the merits of the matter. In a criminal case it would be a plea of autrefois convict or aquit (A has already been convicted or acquitted of the offence).A judgment is presumed to be correct and you cannot express it otherwise in order to help your case.

Parol Evidence

The parol evidence rule provides that where a jural act is incorporated in a document, it is not generally permissible to adduce extrinsic evidence of the terms in that document. This essentially means that when two parties enter into some sort agreement and put the conditions or terms of that agreement into a document, that document becomes the sole memorial between the parties. Now, once this has been done the parol evidence rules stops one of the parties from bringing other documents forward that show, contradicting terms or varying conditions, the parties are governed by the single memorial only. This is often also called the integration rule, which notes that: where a jural act is incorporated in a document, it is not generally permissible to adduce extrinsic evidence (evidence other than the document itself) of its terms

Essentially it is mechanism for excluding other documents, as the parties have to stick to the sole memorial.

On the face of it, it seems to be a part of substantive law, but it is actually part of the law of evidence and has been received in South African law on the assumption that it forms part of the English law of evidence. However whether it forms part of the law of evidence or substantive law is still up for debate, in any case it forms part of our law.

Exceptions to the Parol Evidence Rule

The rule does not apply to a document which contains a mere narration of an event, and which does not constitute a jural act; nor does the rule exclude evidence which throws light on the true nature of a transaction referred to in a written document, or to identify an illegible signature or to determine the capactity of a signatory, even where the law requires the agreement to be in writing.

Extrinsic evidence is also admissible to determine the validity of a transaction. One could adduce evidence to show that a certain contract is void for fraud, or mistake, or illegality, or lack of consensus. BUT where writing is required by law, evidence cannot be produced of oral terms not included in the written document in order

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to invalidate the transaction through non-compliance with the requirement of writing (rather apply for rectification of the written agreement).

Rectification

In order to affect the rectification of the written document, extrinsic evidence is admissible to show that the document does not correctly reflect the consensus between the parties.

InStandard Bank of SA v Cohen,the plaintiff sued the defendant on two written suretyship agreements. The defendant bound himself as surety and co-principle debtor. He wished to adduce evidence of two terms orally agreed to prior to the execution of the written agreements. The oral terms provided that the plaintiff would not extend credit to the company beyond a certain limit and that no money would be advanced until the defendant had arranged a cession of the book debts of the company to himself (the defendant). The deeds of suretyship were by law required to be in writing and the contract had a term which said that the plaintiff is only bound by the terms mentioned therein.

The court held that the defendant could NOT rely on the oral terms since evidence thereof would be contrary to the parol evidence rule and they were no in writing as required by law. BUT in a second judgment the court found on the evidence that the two oral terms alleges had in fact been agreed upon. And so the plea of rectification succeeded.

The parol evidence rule does not exclude evidence of a prior oral agreement or of a common continuing intention, where a party claims rectification.

Trega v Godart1939 AD 16

This is the leading authority on the burden of proof debate: The essential question that is covered in this case is whether the burden of proof falls under substantive or adjectival law?

A man died having changed his will shortly before his death. He left half his estate to a nurse who looked after him and the other half to his family. The family was not pleased so they claimed that he did not have mental capacity. Who has the onus of proving such incapacity? Who did the burden of proof fall on? It was difficult to ascertain this as, according to English law (adjectival law), the onus is on the defendant to show that the will was valid (Tregea) but, according to RDL (substantive law), the onus is on the plaintiff to show that the will was invalid (different result) Page 21 of 152

In this case the AD held that substantive law lays down what has to be proved and by whom. The manner of proving is a question of evidence. It was also held that the burden of proof and rebuttable presumptions of law are matters of substantive law.In view of this, the court held that it is RDL that must be applied and thus the onus is on the plaintiff. The plaintiff did not succeed in the case. Tregea ran off into the sunset with her moolah.

Criticism of Tregea: Schmidt andRademeyer say that substantive law defines the rights and duties of persons and thus determines the factaprobanda (the essential facts that must be proved).

The burden of proof and the rebuttable presumptions do nothing of the kind; they relate to the manner in which facts are proved and thus belong to the law of evidence, not substantive law.

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CHAPTER 5 RELEVANCE AND ADMISSIBILITY

Introduction

Relevance is the most important rule of the law of evidence, it is important that evidence has to be relevant before it is admitted in court. Irrelevant evidence is not admissible. Irrelevant evidence would not assist the court in reaching the decision that it is meant to base on the facts that are before it. Waste of time and money Clouds the court from dealing with the real issues

S 210 of the CPA provides that no evidence as to any fact, matter or thing shall be admissible if irrelevant or immaterial and if it cannot conduce to prove or disprove any point or fact at issue in criminal proceedings.

S 2 of the Civil Proceedings Evidence Act (CPEA) is statutory confirmation of the common law. It states in its negative form that irrelevant evidence is excluded, this is different to the courts positive statement of the rule which is that all facts relevant to the issue in legal proceedings may be proved.

The next 4 chapters are all directly concerned with the application of this rule that irrelevant evidence is inadmissible.

Note, however, that relevance is not the sole test of admissibility of evidence. Not all relevant evidence is necessarily admissible and can be excluded by other rules of evidence such as exclusionary rules (see later on).

General Rule

Relevance: The need for there to be a connection between the facts sought to be admitted into evidence and the legal issue before the court.

Evidence must be relevant in order to be admissible OR irrelevant evidence is inadmissible.

Characteristics of irrelevant evidence

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The following four kinds of evidence are generally inadmissible, however, these are not absolute rules.

1) Character evidence 2) Opinion evidence 3) Previous consistent statements 4) Similar facts

There are many instances where evidence, although as a general rule regarded as inadmissible, can become relevant and thus admissible.

Evidence which is relevant is admissible unless there is some other rule of evidence which excludes it (for example, privilege). Relevant evidence obtained in breach of constitutional rights may also be excluded. It is thus important to note that relevance is thus not the sole test for admissibility.

If there is dispute regarding inadmissibility, the court followsa trial within a trialprocedure to determine whether evidence is relevant or not, with the sole issue being whether the evidence is admissible. At this trial, each party can bring evidence and is allowed to cross-examine.The court leaves the merits out, focusing only on the admissibility issue. Either evidence is admissible or it is inadmissible.

Can precedent dictate if a certain type of evidence is relevant? Judicial precedent can determine the relevance (and thus admissibility), but not the final weight, of certain types of evidence. In S v Shabalala1986 (4) SA 734 (A), accused was charged with housebreaking with the intention to rob, murder (stabbed Mrs Alan), attempted murder (stabbed Mr Allan who did not die). The accused was convicted and sentenced to death. The main issue was the identity of the accused. There were several items of evidence that pointed to the identity of the accused, the one of focus is the canvas shoe found on the scene.

How had the shoe been identified as belonging to the accused? There was an identity parade where Tilly, a bloodhound of impeccable credentials sniffed the shoe found outside the house and then identified Shabalala in the line by putting her paws on his shoulders and barking. The line up was shifted two more times after that and Tilly did the same thing. The court went to some length in identifying the ratio in the Trupedocase: If the dog was the real witness, then the evidence of its handler would be hearsay evidence. 1 The dramatic nature of the testimony might cause juries to attach a dangerously exaggerated importance to the evidence.
1

Handler interprets it.

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The court held that the above did not carry much weight. They held that a third point in Trupedo, which they gave weight to was as follows: The probative value of the evidence was too tenuous and consequently not relevant, i.e. it did not sustain a reasonable inference as to the accuseds identity. There was insufficient evidence to show how dogs are supposed to follow the scent of say, one specific human being. The court, however, found the accused guilty on other evidence, not the one related to the dog. The judge came to the conclusion that the judgment in R v Trupedo1920 AD 58 did not rest solely on a factual finding concerning the reliability or otherwise of the particular dog whose activities and abilities were in issue, but was essentially rooted in the principle that evidence of the conduct of dogs in identifying an accused by scenting is inadmissible due to its unreliability. But the judge in Shabalalaheld that if the untrustworthiness of such evidence could be sufficiently reduced then the actions of the dog would become relevant and evidence thereof admissible. See below for the full cases in this regard.

Relevancy Requirement

Definition

Relevance is a matter of degree. It is somewhat easier to identify in practice. Relevant means that any two facts are so related to each other that according to the common course of events one is either taken by itself or in connection with the other, which,proves or renders probable the past, present or future existence or non-existence of the other. Logical relevance is a sine qua non of admissibility, but on its own, is far from sufficient. It is necessary to look to precise factors and considerations.

Thus, evidence is relevant if it has the potential either on its own or with other evidence to make a fact in issue directly or indirectly more or less probable.

An example of directly would be where the evidence is that of an eye-witness who saw a murder taking place. An example of indirectly would be where the evidence is circumstantial, such as evidence that the accused was seen running from the scene. More or less probable means that the evidence must be able to make a contribution to proving the facts in issue.

The court must look at the total picture by considering the evidence against the back drop of other evidence. One piece of evidence might seem to be tenuous or unimportant, but, seen in the bigger picture, it may become very important. For example, the accused pointing out the scene of the crime means nothing on its own. However, if you use that in conjunction with other evidence it may become relevant, for example that of Page 25 of 152

an eye witness who says he saw the accused stab the witness at that place. This is evidence needed to directly prove the case. On the other hand, if there was a witness who saw the accused run from the scene with a knife, this is not direct evidence but it can help the court make an inference that the murder took place there.

Rationale

Irrelevant evidence cannot assist the court and may in certain cases prejudice the court against a party while having no probative value. The purpose of evidence is to establish the probability of the facts upon which the success of a partys case depends in law. In addition, the court will not accept it due to considerations of time, the cost and inconvenience, the limitation of the human mind, the undesirability of a court adjudicating on matters irrelevant to litigation, the risk that the real issues might become clouded and the obvious consideration that a party against whom irrelevant evidence is adduced may find himself in a position where it could be difficult to defend himself (his right to a fair trial would be at stake).

Relevance (and therefore admissibility) cannot be decided in a vacuum. In S v Zuma2006 (2) SACR 411 (SCA) the court held that the question of relevancy can never be divorced from the facts of a particular case before the court. Thus, the nature and extent of the factual and legal dispute must always be considered. The relevancy of evidence is applicable to both factaprobandaandfactaprobantia.

Reasonable or Proper Inference

Facts are relevant if from their existence inferences may properly be drawn from as to the existence of a fact in dispute. In order to determine whether a reasonable or proper inference might eventually be possible, the court must make a provisional or tentative assessment of the potential weight of the evidence sought to be adduced. This is the potential probative weight.

This is the admissibility inquiry and later, once admitted, the weight of the evidence is determined.

The following cases are important to understand reasonable or proper inference. They deal with evidence by persons as regards the identification of a suspect by conduct of a police dog:

R v Trupedo1920 AD 58

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Three young school girls were staying in a hostel. When one of them woke at midnight she found the accused standing by her bed. The man then ran away. He was accused of house-breaking.

There was a smudge on the bed and there were footprints outside. Two police dogs were called to the scene. One dog was placed on the scent, after which it was leashed by the dog-master to the door of a room in the yard of the hostel. Inside were eight natives sleeping therein. The dog then smelled the accused and then everyone else. He then returned to the accused and barked. The police also matched the footprints outside to the accused. He was unrepresented and denied everything.

In the court a quo, the Crown Prosecutor mentioned the R v Kotcho case which decided that evidence of the action of police dogs was irrelevant and inadmissible and that no presumption of guilt on the part of an accused person could be deduced from the behaviour of such dogs. However, he suggested making a special entry so as to get the point before the AD. This was allowed and the accused was found guilty of housebreaking.

The question before the court was whether the behaviour of a police dog could be taken into account as evidence (of the dog-master, not the dog!) against the accused?

There was no English authority on the matter. In America this kind of evidence was allowed but with certain safeguards. The general rule is that all facts relevant to the issue in legal proceedings may be proved. However, there are many exceptions to the rule (like hearsay or remoteness). But where the rules operation is not so excluded it must remain as the fundamental test of admissibility. An evidential fact is relevant when inference can be properly drawn from it as to the existence of a fact in issue.

The court held that there are three reasons for excluding such evidence-

1) If the dog is regarded as the real witness, hearsay evidence is inevitably involved (the dog is not a person who can testify first-hand, and it cannot be cross examined etc.)

2) The dramatic nature of the testimony might cause juries to attach a dangerously exaggerated importance to it

But the main reason to exclude the evidence is

3) That its probative value is too tenuous and as such not relevant Page 27 of 152

We have no scientific or accurate knowledge as to the faculty by which dogs of certain breeds are said to be able to follow the scent of one human being, rejecting the scent of all others. If a dogs bark is allowed as evidence it would be similar to the court violating the hearsay rule. There is just too much uncertainty to justify a court drawing inference from it in the course of legal proceedings.

The evidence is not admissible as its extremely untrustworthy. In a nutshell, this dog was trained to instinctively bark. The conviction and sentence were accordingly set aside.

S v Moya1968 PHH 148 (not prescribed)

This case asked whetherTrupedo laid down a precedent or factual finding. The court held that the decision created a binding rule. Such evidence is thus inadmissible.

S v Shabala1986 (4) SA 734 (A)

This important case deals with the status of the Trupedo decision.

An intruder had entered her house and stabbed a woman three times and attempted to murder the husband. She died in hospital. The accused was charged with her murder and assault of her husband.When the husband was pursuing the intruder, the intruder fled through the bathroom window, leaving a canvas shoe there, and another one outside the house on the property. There was an admission of guilt at the magistrates court and pointing out of the crime scene by the accused.

But at the trial court the accused denied everything, despite there having been blood on his overall and hair. In addition, the police had found the shoe at the scene of the crime, sealed it and soon after bought a police dog to sniff it. The dog, a thoroughbred English hound, was named Tilly (a hugely important fact in this case).

This dog sniffed the shoe and was then brought to identify the shoes match at an identification parade. The dog had jumped up at the accused and pawed him twice in a row... the paw of suspicion fell on A. At the trial, evidence was given that the dog in question identified the accused as the owner of the canvas shoe that was found outside. According to the trainer who testified, dogs have a high level of nose power, and that this specific dog had not made a mistake in 18 months. He also testified to the training that she had received (both A and B certificates were attained). The trial court found him guilty and sentenced him to death. He appealed. Page 28 of 152

Again, the question before the court was whether the evidence was admissible or not?

The court followed a novel approach. They held that if there is a sound factual basisupon which the evidence is based then the evidence can be admitted. By this they meant that if there issufficient evidence to say that this evidence was accurate (training, certificates, practical experience and training of the dog etc) it would be allowed.

On appeal, the AD referred to Trupedo and asked if Trupedo had laid down a binding rule regarding admissibility? In the US, this kind of evidence is admissible provided there is a sound factual basis for it (this is also what the trial court had held in this matter). However, the AD came to the conclusion that in Trupedosuch a binding rule had been established.Evidence given by a police dog was not inadmissible.

The ratio (as per Trupedo) underlying this decision is that such evidence is by its nature untrustworthy because people dont know and cant explain the faculty by means of which these dogs prefer the scent of one person and reject the scent of another. Nestadt JA: if the weight of evidence is so inconsequential and the relevance accordingly so problematic, there can be little point in receiving this evidence.

The court did qualify this by saying that it does not mean to say that this is the final word on the issue. If there is evidence in the future that can explain this faculty of dogs (explain why the dog would identify one persons scent and not the scent of another), then the issue could be revisited. Thus Trupedo does not exclude evidence absolutely. But there was still too much uncertainty involved and untrustworthiness and lack of scientific proof that the sniffing was accurate. As such the evidence was not admissible.

There was an alternative argument by the court: it looked at the evidence that was supposed to be used as a basis in this case. The court held that even if one were to take the US approach, the factual basis was not sound enough. The court referred to several considerations i.e. if had used another dog, the evidence might have been strengthened. Thus, as the law stands, such evidence is inadmissible.

The accused was nevertheless found guilty despite the inadmissibility of this evidence because remaining circumstantial evidence was sufficient to convict him.

Avoiding a proliferation or Multiplicity of Collateral Issues

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When determining the relevance of evidence the court should also consider if the admission of the evidence would lead to a protracted investigation into many collateral or side issues which would be of little probative value in respect of the true issues.I.e. a waste of time and money without being much assistance to the court.

The proliferation of side-issues can occur when a court decides to admit evidence of the results of, for example, a polygraph (lie detector) test. The court may have to deal with the following: What the polygraphist competent? Did he use a novel technique? What questions were asked? Were they appropriate? Did the machine function properly?

All these questions would need to be discussed and they are not worth it as it wastes the courts time for something that would turn out to be unsubstantial. There is a risk that the drawn out and time consuming investigation of collateral issues would not justify the end result.

The following case deals with the avoidance of a multiplicity of collateral issues:

S v Nel1990 2 SACR 136 (C)

The accused was charged with the selling of dagga to a police trap. The trap came back with the police and she was arrested. She contested the sequence of events that the police trap said, i.e. when identification was made, whether the sale was actually on the yard, etc. At the trial, she testified. Thereafter, the defense called her mother seeking corroborating evidence, who contradicted what the accused had said in her testimony. Normally, ones own witness will support ones case. The law provides for mechanisms that can be used in the case that this happens, such as classification of hostile witness and cross-examination. But here, the defence was trying to discredit its own witness in trying to achieve what the law does not provide for.

The trial was then postponed for some reason. When the trial resumed the defense wanted to call a psychiatrist to testify that the mother was retarded and not able to fully respond to questions and was unable to accurately relay things. General Rule: You cannot discredit your witness this is what the defendant was trying to do in bringing the psychiatrist to discredit her. So the issue turned to whether the psychiatrist could be allowed. The Magistrate did not allow this and the matter went on appeal.

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The question before the court was whether the trial courts refusal to allow an accused to lead psychiatric evidence was rightly disallowed.

P 142I: Marais JA agreed with trial courts refusal to allow an accused to lead psychiatric evidence, the purpose of which was to show that the mother was mildly retarded. Intellectual and psychological factors that affect personality are capable of being assessed reasonably well while the witness gives evidence.

It is a judicial officers job to assess the credibility of a witness and perceive on the above factors above. And it is common knowledge that not everyone is of the same level of intelligence. If this psychiatric evidence is allowed then where is the boundary? It would be a slippery slope if the court is called upon to open an evidential Pandoras BoxThe cost of such evidence would exceed its benefit it would lead to collateral issues.

Disallowing this evidence does not affect fact that that evidence may be lead to show that witness is insaneand therefore incompetent to testify. Furthermore, there is no analogy with physical affliction, i.e. short-sightedness and psychological disabilities.Intellectual and psychological disabilities affecting personality, powers of exposition and articulation, ability to recall etc are capable of being assessed while the witness is engaged in giving evidence (new evidence does not need to be brought).

The trial courts decision to disallow the psychiatric evidence was thus upheld.

The Risk of Manufactured Evidence

S v Scott-Crosley notes that the previous consistent statement of witness has no probative value on this account that it is irrelevant (this is an SCA case and is binding). One of the reasons for the exclusion of such a statement is that the admission thereof would make it a very straightforward matter for the unscrupulous to manufacture evidence. There are exceptions to this rule, dealt with below.

Prejudicial Effect

Procedural Prejudice: Evidence which is logically probative may be excluded because of prejudicial effect on the party concerned. That party may be procedurally disadvantaged or otherwise exposed to lengthy trial involving issues which, although logically relevant are legally too remote to assist in ultimate determination on

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merits. Evidence is relevant if probative value outweighs prejudicial effect for example, proof of motive (generally relevant to intention and identity). Examples: Undue delay Waste of time Unnecessary expense

R v KumaloandNkosi

This case was criticized in the way it decided in the way it dealt with evidence. This case concerns whether evidence of an accuseds motive to commit a particular crime is generally relevant for purposes of proving intention or identity.

The general rule before this case was the probable existence of motive must be deduced from external circumstances and such circumstances may (as a general rule), be proved if they are relevant, if they are circumstances from which presence of motive may be reasonably inferred. In this case the AD extended this to show that evidence of motive for crime is admissible even though its tendency is to show that all members of certain category would have had an inducement to commit the crime in question.

The case dealt with practice of Zulu witch-doctors to kill and mutilate young persons and use portions of their body as charm against ill luck, particularly fat portions. A child had been found dead and mutilated with fatty portion of hear removed. K and his accomplice were in fact not witch-doctors, but native doctors.

Innes CJ found that the expert evidence on this Zulu custom was nonetheless generally relevant and admissible as against K (although not against accomplice as it was not proved that he was Zulu).In deciding whether inference as to motive can be drawn from expert evidence, one must have regard to portions dealing with customs of Zulus generally. Existence of a motive for a crime like the present might be reasonably deduced from this general custom described if the accused were members of the tribes referred to.Generally circumstances related to motive stands in direct connection with person charged, here it is a tribal custom there is nothing unreasonable or unfair in inferring a motive from this.

Solomon JA andMaasdorp JA came to a similar conclusion, but, on slightly different reasons.

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(Schwikkard notes that evidence was far too tenuous. There was no link between custom and K except that he was a Zulu; no evidence of ill-luck etc.)

Solomon attempted to circumvent the argument by saying that all Zulu would be motivated to obtain object of such high value whether or not witch-doctors.

(Schwikkard explains that this was circumstantial evidence that was irrelevant on account of its extremely limited potential probative value and likely prejudice to the accused.)

R v Masebe

In this case the accused was charged with murder of deceased by strangulation. The Court admitted evidence that the accused had previously attempted to assault the deceased with an axe admissible to show that the accused had the desire to kill the deceased which is clearly relevant to the main issue of the case which is identity.

R v Christiaans

The court in this case held that the fact that the accused had means of committing the offence with which she was charged was found admissible.

R v Dhlamini

This is a case where the potential probative value of evidence outweighed possible prejudice to the accused. The defence raised was of an alibi and the evidence established that accused was in area of murder at the right time and had the weapon. The defence argued that admission would be prejudicial because it related to criminal conduct not in issue. Court held that it was admissible because a material issue was the accuseds alibi and evidence was vitally relevant thereto. Further, the probative value of the evidence outweighed the prejudice that was waged against Dlamini, thus the evidence was admissible on this ground too.

(This case is not prescribed,Wouter did mention it was used in a previous exam, so take note of it)

The Doctrine of Precedent Page 33 of 152

Precedent can determine relevance and admissibility, but not the final weight of certain types of evidence i.e. Shabalala held that Trupedo was not a decision peculiar to its facts. Neither case can be interpreted as authority for a blanket ban regarding the tracking ability of dogs.The cases established the principle that at the time the cases were decided, there was insufficient scientific knowledge about evidence of that nature (scenting abilities of dogs) to enable the court to draw reasonable inference and thus rendering it inadmissible. However, if the untrustworthiness or such knowledge became available, it could be reduced then may become relevant and admissible in the future. A court will not exclude harmless/irrelevant evidence if it allows the witness to give a coherent account. But one must be cautious because facts can differ and precedent can at most be a guideline.

Principle of Completeness

The court should not exclude harmless irrelevant evidence. The witness should, within limits, be permitted to tell their coherent story and provide the court with general background to the disputed event.

Constitutional Imperatives and the Position of the Accused

It has been argued that the defense (the accused) should have more liberal rights than the prosecution to adduce evidence which may not be of especially high probative value.

This argument has some weight in a constitutional system like ours, where there is a right to a fair trial. This right (as per s35 of the Constitution) includes the right to adduce and challenge evidence.

However, the rule that irrelevant evidence is inadmissible (s210 of the CPA) is in terms of s36 of the Constitution is a constitutionally permissible (and thus justified) limitation of the right to adduce and challenge evidence. There cannot be an unqualified right to adduce irrelevant evidence to challenge admissible evidence with irrelevant evidence.

But where the extremely limited probative value of evidence would normally have justified a finding of inadmissibility on account of irrelevance, the court should lean in favor of admissibility (to protect an accuseds constitutional right to a fair trial).

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Rock v Arkansas

In the US case of Rock v Arkansas, the accused was charged with manslaughter for the death of her husband. She could not recall the details of the event. Her lawyer suggested pre-trial hypnosis at a neurophysiologist to refresh her memory. After the hypnosis she could recall everything.

The trial court ruled that she could only testify to matters she remembered prior to the hypnosis. As a result, she was convicted. The Supreme Court of Arkansas confirmed the conviction. They held that whilst the accused had the fundamental right to testify in her own defense, such a right was not limitless and could validly be restricted by the rules of evidence. They also held that the dangers of admitting evidence based on what emerged as a result of the pre-trial hypnosis, outweigh whatever probative value it may have.

The case went to the Supreme Court of the USA, where the SC of Arkansas was rejected by a 5 to 4 majority. The majority held that the court a quo had failed to perform the constitutional analysis that is necessary when an accuseds constitutional right to testify is at stake. Although the court held that there were serious risks attached to the admission of hypnotically refreshed testimony, they still made it clear that constitutional due process demanded its admission in this case, and that a per se rule of exclusion in respect of hypnotically enhanced testimony was arbitrary.

Note: The decision does not extend to prosecution witnesses, only those of the defence.

10

Proposal of the SA Law Reform Commission

South African Law Commission: Has suggested that s 210 of the CPA be reformed since it does not define relevance. There has been a move towards the need to define it, however, the interpretation of the word has not caused any issues. A definition would be definition even though the lack of has not caused any problems in the past. However, due to its nature, it is argued that there should not be a definition, by some. Relevance comes down to somewhat subjective facts determined on the facts of each case.

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CHAPTER 6 CHARACTER EVIDENCE

This chapter as well as the next chapter deal with the subject of what evidence, pertaining to character and disposition, may be adduced. This section was lectured by her Deanship Prof Schwikkard.

Introduction

In talking about character evidence,were talking about reputation and their standing in community. In theory, there is a distinction between someones conduct (persons disposition to think/act in certain way) and their reputation (what others think of a person). English law preferred reputation, but our modern law does not reflect this preference and even accepts that this preference may be indirect and weak.Thus the distinction above does not actually have a great deal of weight today.

Thus, character reallymeans the disposition of the person. The rule is that, in those cases where character evidence is admissible, it is only evidence as to the general reputation of the person that is admissible. This is however only a general rule and there are many exceptions thereto.

General Rule

The general rule with regard to character evidence, good character is admissible, but the prosecution is prohibited in leading character evidence if its purpose is to show bad character. It is seen by our courts as irrelevant, holding insufficient probative weight in addition to its prejudicial effect. We deal with this further below.

Admission of good character evidence

However, our courtsallow accused people to adduce evidence of their own good character. Notably, the prosecution cannot do the same. They are prohibited from leading character evidence bar in a few exceptional cases.

Good Character: Helps with credibility and in showing that someone is unlikely to do a bad thing.

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The courts allow evidence of credibility believing that, if an accused has a good reputation, its more likely that he will not commit a crime in future. Even so, it is somewhat contested as to how someone gets a good reputation. Is it because of their previous conduct that shows that they are good natured?

Another reason for admitting evidence of good character is to be found in the case of R v Rowton. In this case, it was held that evidence as to the good character of the accused is regarded as relevant and admissible because it renders it less probable that what the prosecution has averred is true (thus favouring the accused, who is presumed innocent until proven guilty).

This is qualified, however, by the limitation that the evidence must at least be relevant to the issues before the court.

The accused can give evidence of good character themselves, or by calling witnesses to testify on their behalf, or by cross-examining the prosecutions witnesses. But, once the accused has (either themselves or by calling a witness) adduced evidence as to her good character, the prosecution can respond by introducing evidence of her bad character. The accused can also render herself liable to cross-examination as to bad character in terms of s197 of the CPA (see below). Section 197: There are certain exceptions to the rule: Giving of good character or by leading or cross-examining evidence If the accused attacks the character of a prosecution witness, then their own character may come under scrutiny. When an accused gives evidence against a co-accused

What happens is that co-accuseds blame each other and can work against each other well as they know what went down. They have a very real interest in blaming the other person and the courts are suspicious when the co-accuseds turn on each other./ When the charges relates to receiving stolen property

The most obvious defence to the above charge is that I did not know it was stolen, which is a difficult thing to refute. Therefore, once raised, if the prosecution can lead evidence that this person has been convicted of receiving stolen property before, it goes to their credibility. His previous convictions relate to proof of the present charge

When someone is charged with the offence of escaping from prison, if someone was not lawfully in prison, this could form the basis of showing that they were in prison before, you cant prove the charge without telling the facts as they are.

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There is a close link between character evidence, similar fact evidence and the cross-examination of witness, especially the accused. Keep this connection in mind when reading chapter 7.

Exclusion of bad character evidence

Evidence of an accuseds bad character is not admissible because the inference drawn from character evidence is not reliable. Just because someone did something in the past does not necessarily mean that they have done it in the present (there are some exceptions to this rule, as will be seen)

The other reason we dont allow bad character evidence is a historic one: The jury system did not allow it, believing that the jury would unreasonably influence and the accused would be unfairly prejudiced.

In R v Davis, it was held that evidence of bad character is irrelevant because the prejudicial effect of such evidence outweighs the probative weight thereof.The minute you present character evidence you open your client up to cross-examination, while leading this kind of evidence is not going to advance your case in any major way. You do not want cross-examination! This is what happened to complainant in the Zuma rape case, after which her good-character was compromised (see below).

But the strongest rationale is that inference isnt reliable. NB: The minute an accused leads evidence of their good character, one of the exceptions kicks is and the prosecution can adduce bad character. So unless you really know your accused is quite saintly, do not go leading good character evidence. R v Davies

In this case the accused was found guilty of act of gross indecency with a male person. On appeal, it was argued that the trial court admitted inadmissible evidence: that a month after the accused was arrested, a police officer found grossly indecent photographs in possession of the accused. The issue thus concerned the admissibility of this evidence.

Innes explains that evidence that merely goes to show that the accused is by reason of character, disposition or propensity a man likely to have committed the offence is inadmissible. This is due to policy and to avoid the possibility of undue prejudice to the accused.

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The court qualified this general rule by saying that if such character evidence is relevant (close enough link between evidence and issues before the court) then it does become admissible (Thompson v R in this case, there was such a link between similar facts and facts in issue).

The court then held that in this case, there was no such link the only thing that the photos showed was that the accused was perhaps likely to have committed such an offence. This was not sufficient and does not carry sufficient weight. Thus the evidence was excluded.

Character in Criminal Cases

s227 (1) of the CPA states that the admissibility of character evidence of the accused is determined by the rules in force on 30 May 1961 (English Law). Thus, as in other areas of the law of evidence, the common law rules need to be read together with the relevant statutory provisions.

Evidence of the Accuseds Bad Character

As mentioned above, once the accused has adduced evidence with regard to her good character the prosecution may respond in three different ways:

1. Adducing evidence of the bad reputation of the accused 2. Cross-examining character witnesses and 3. Cross-examining the accused.

If the accused attacks the character of the prosecution witnesses but does not adduce evidence as to her good character, the prosecution may not adduce evidence of the accuseds bad character.

The prosecution is then limited to cross-examining the accused as to character in terms of s197 of the CPA (see below).

S 197 of the CPA - The Exception As Regards Cross-Examining on Character Evidence

S 197 of the CPA reads as follows:

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An accused who gives evidence at criminal proceedings shall not be asked or required to answer any question tending to show that he has committed or has been convicted of or has been charged with any offence other than the offence with which he is charged, or that he is bad character unless

(a) He or his legal representative asks any question of any witness with a view of establishing his own good character or he himself gives evidence of his own good character , or the nature or conduct of the defence is such to involve imputation of the character of the complainant or any other witness for the prosecution

(b) He gives evidence against any other person charged with the same offence or an offence in respect of the same facts;

(c) The proceedings against him are such as are described in s 240 or s241 and the notice under those sections has been given to him or;

(d) The proof that he has commited or has been convicted of such other offence is admissible evidence to show that he is guilty of the ofence with which he is charged.

It is important to note that s 197 does not permit evidence of bad character to be adduced by the prosecution, it simply makes provision for cross-examination of the accused.

We are reminded that as soon as the accused gives evidence of his or her good character or there are witnesses called to do so, then open sesame.The other thing that will expose your client to cross-examination of character evidence is when you lead character evidence of a prosecuting witness.

With stealing property, it helps the prosecution in establishing that this person has stolen on several times. The previous conviction relates to proof of the present charge and the best example is if someone is charged with escaping from prison then the previous conviction becomes relevant in the present case.

S197 does NOT permit evidence of bad character to be adduced by the prosecution. It ONLY makes provision for cross-examination of the accused.

S 197(a)

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S 197(a) protects the accused against cross-examination that is directed at showing bad character or his previous criminal record. The accused will lose this protection by doing the following:

1. Adducing evidence as to his own good character; or 2. Attacking the character of a prosecution witness; or 3. By testifying against another person charged with the same offence or an offence in respect of the same fact.

Once an accused has put his character in issue his whole character will be subject to cross-examination (authority comes from Stirland v DPP)

S 197(b)

S 197(b) makes the accused liable to cross-examination as to character if she gives evidence against another person charged with the same offence or an offence in respect of the same facts. But a person who has been charged with the same offence and convicted and sentenced prior to testifying will not be considered as an accused. The accuseds intention in giving such evidence, whether in examination in chief or crossexamination, is not relevant. However if one accused merely denies that he took part in a joint venture, which does not constitute giving evidence against a co-accused unless it implies that his co-accused did participate in it.

In Murdoch v Taylor the House of Lords held that evidence against is equivalent to evidence which supports the prosecutions case or undermine the defendants defence in a material aspect, or which undermines the defence of the co-accused.Intention of accused is not relevant. The mere denial of participation in a joint venture does not constitute giving evidence against co-accused, unless it implicates him.

There is conflicting authority in regards to whether the presiding officer has discretion. In S v Mazibuko the court held obiterwith regard to the effect that this section conferred no discretion on courts to restrict crossexamination on grounds of irrelevancy. The dean thinks that if it is relevant evidence, then discretion should not matter because the rules of evidence allow it.

However in S v Pietersen Erasmus expressed view that court has discretion to control ambit of crossexamination; must be exercised in light of principles governing relevance.

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S 197(c)

This section provides that if the charge is one of receiving stolen property, the accused may be questioned in respect to her previous convictions and bad character.

S 197(d)

This section provides that the accused may be cross examined as to previous offences if the purpose of such evidence is to show that he is guilty of the offence with which he is charged. The courts have held that s 197 does not prohibit the accused being asked questions relevant to an issue before the court even if such questions tend to show bad character or to reveal the accuseds previous convictions.

This section is a confirmation of the similar fact rule (which will be dealt with in more detail in chapter 7).

S 211 of the CPA - Previous Convictions

Section 211 of the CPA provides: Except where otherwise expressly provided by this act or except where the fact of a previous conviction is an element of any offence with which an accused is charged, evidence shall not be admissible at criminal proceedings in respect of any offence to prove that an accused at such proceedings had previously been convicted of any offence, whether in the Republic or elsewhere and no accused, if called as a witness shall be asked whether he has been so convicted. This section prohibits the prosecution from raising in previous convictions s211 does not prevent the accused from testifying as to her own previous convictions. This might be done, for example, to support a defence based on an alibi, however when an accused does this she runs the risk of having her character attacked by the prosecution in cross-examination.

In Mthembu the AD held that this cross-examination will be limited to the extent that any further details sought are relevant to an issue in the trial.

In S v Hath the court noted that an anomaly will arise when bail is applied for during the course of a trial and the accuseds previous convictions are also admissible after conviction in order to assist the court in determining an appropriate sentence.

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Witnesses Other than the Accused

The party who calls the witness is prohibited from adducing evidence as to the witnesss good character (except where their credit has been impeached by evidence that they have a bad reputation). For example, if it transpires that the witness had lied before (inside or outside the court), this has an impact on her credibility and it can be used against the witnesss party. This is because it is a collateral matter. In S v Damalis the court held that another courts assessment of a witness credibility may be put to witness in cross-examination.

Character of the Complainant

In all criminal cases where the complainant testifies, they may be cross-examined and the cross-examiner may ask questions that are pertinent to exposing the witnesss credibility or lack thereof. BUT the point of departure is that the character of the complainant (ie character evidence) is NOTrelevant to credibility. Thus evidence which is solely directed at establishing that the complainant has a bad character is prohibited. Of importance are sexual offenses. However, in this exceptional case, the complainants character is viewed as relevant:

Rape or Indecent Assault

There is a common law rule stating that, in these cases, the accused may adduce evidence as to the complainants bad reputation for lack of chastity. What a chauvinist rule but anyway.

Before 1989, s227 of the CPA stated that the common law regulates this issue in sexual offence cases. Thus the admissibility of evidence as to character of any woman was determined by application of the common law up to this point. The common law held that the defence may question the complainants to her previous sexual relations with the accused. But the accused is prohibited from leading evidence of the complainants sexual relations with OTHER men. However, the complainant may still be questioned on this aspect of her private life (her doing of other men) in cross-examination as it is considered relevant to credibility. The logic to this was because of the consent aspect in the crime and her past sexual history would be of influence. The critique of the common law standing: a. It traumatises& humiliates the victim, the evidence it elicits is irrelevant and at most establishes general propensity to have sexual intercourse

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b. Evidence of this nature is held to be inadmissible in other cases and there are no grounds for admitting it where the case is of a sexual nature c. Possibility that such cross-examination is a deterrent for the complainant to come forward with the complaint d. Lack of logic in saying that the number of people shes slept with before matters.

The SA Law commission in 1988noted the criticisms and recognized that s 227 resulted in few restrictions on admissibility. It thus amended s 227 so as to require application to be made to court for leave to adduce evidence of prior sexual history or to question the complainant on her prior sexual history. This would be granted if court satisfied as to relevance.

This amendment was criticised again because it gave a judge far too much discretion (the purpose for which they were enacted was thus defeated) and the courts always thought it was relevant. As such, not much of a restriction was in place as the same judicial officers who in the past failed to exercise their discretion to exclude irrelevant previous sexual history evidence were now being asked to exercise the same discretion! The SCA noted the the members of this court are not aware of any instance where s 227(2) has been applied in this country. It is likely that it is more honoured in the breach than in the observance. The legislature then AGAIN amended it. . Exercising same discretion as in past, although now there was application made in camera before. This is a compromise provision aimed at some protection of the accused rights. In 2007 we had a whole revision of the Sexual Offences Act.

SvM

This was a rape case with a long history. The accused was charged with rape of his own daughter. He was convicted thereof. On appeal, he asked for one witness to be called (N), who would argue that he had had sex with the young girl subsequently. Evidence was heard but he was nonetheless convicted again.

In the SCA, it was held that the magistrate and the HC ignored the provisions of s 227 because there was never application made for leave to present this kind of evidence. Furthermore, the court found that this evidence was completely irrelevant.

S 227

Schedule to the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007.

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"Evidence of character and previous sexual experience 227. (1) Evidence as to the character of an accused or as to the character of any person against or in connection with whom a sexual offence as contemplated in the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, is alleged to have been committed, shall, subject to the provisions of subsection (2), be admissible or inadmissible if such evidence would have been admissible or inadmissible on the 30th day of May, 1961.

(2) No evidence as to any previous sexual experience or conduct of any person against or in connection with whom a sexual offence is alleged to have been committed, other than evidence relating to sexual experience or conduct in respect of the offence which is being tried, shall be adduced, and no evidence or question in cross examination regarding such sexual experience or conduct, shall be put to such person, the accused or any other witness at the proceedings pending before the court unless

(a) the court has, on application by any party to the proceedings, granted leave to adduce such evidence or to put such question; or (b) such evidence has been introduced by the prosecution.

(3) Before an application for leave contemplated in subsection (2)(a) is heard, the court may direct that any person, including the complainant, whose presence is not necessary may not be present at the proceedings.

(4) The court shall, subject to subsection (6), grant the application referred to in subsection (2)(a) only if satisfied that such evidence or questioning is relevant to the proceedings pending before the court.

(5) In determining whether evidence or questioning as contemplated in this section is relevant to the proceedings pending before the court, the court shall take into account whether such evidence or questioning

(a) is in the interests of justice, with due regard to the accused's right to a fair trial; (b) is in the interests of society in encouraging the reporting of sexual1 offences;

relates to a specific instance of sexual activity relevant to a fact in issue; is likely to rebut evidence previouslyadduced by the prosecution; is fundamental to the accused's defence; is not substantially outweighed by itspotential prejudice to the complainant's personal dignity and right to privacy; or (s) is likely to explain the presence of semen or the source of pregnancy or disease or any injury to the complainant, where it isrelevant to a fact in issue;

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(6) The court shall not grant an application referred to in subsection (2)(a) if, in its opinion, such evidence or questioning is sought to be adduced to support an inference that by reason of the sexual nature of the complainant's experience or conduct, the complainant

(a) is more likely to have consented to the offence being tried; or (b) is less worthy of belief.

(7) The court shall provide reasons for granting or refusing an application in terms of subsection (2Ya), which reasons shall be entered in the record of the proceedings.

Summary of the above: s227(1) of the CPA retains the common law but is now gender neutral and subject to subsection (2) which says that prior sexual history evidence other than evidence relating to sexual experience or conduct in respect of the offence which is being tried may not be led or raised in cross-examination except with the leave of the court or unless prior sexual history evidence has been introduced by the prosecution.

This approach was followed in S v Zuma (discussed below) where the exception was applied,but has the potential to admit irrelevant and damaging evidence. It has been suggested that the legislation should have specified that this exception applied only to prior sexual history adduced by the accused in so far as it was relevant to contradicting the evidence introduced by the prosecution.

s227(2) makes it clear that as far as an offence which is being tried is concerned, no application is necessary. But the relevance threshold is still there. The Court must ensure that questioning on the offence which is being tried does not extend beyond matters that are relevant exclusion of irrelevancies cannot jeopardize the right to a fair trial and the court has a duty to protect the dignity of complainant.

Another big, quite radical, change in the second amendment is subsection (5) which specifies the factors that the court must take into account when deciding whether to grant leave to lead evidence of previous sexual history.

Subsection (4) states that the leave to lead prior sexual history evidence will only be granted if the court is satisfied that such evidence is relevant. But this still leaves the court with a significant degree of discretion in determining relative prejudice and relevance to the case. This may mean that old practices continue.

However, subsections (6) and (7) should provide an effective barrier to the assumption of old habits.

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Subsection (6) directs the court to refuse leave if the purpose of adducing the evidence or questioning the complainant is to support an inference that the complainant is more likely to have consented or is untruthful.

Subsection (7) requires a court to provide reasons for refusing or allowing an application to lead prior sexual history evidence.

Example of how this section is applied: X is charged with rape (y is complainant). X (accused) wishes to lead evidence that he had sex with Y on two previous occasions and that Y had sex with three other men previously. Are there any steps he needs to take before he can lead evidence that he had sex with Y on two previous occasions?

It might not be relevant so if the defence wants to raise it, they have to apply for leave from the court. They must establish why it is relevant and how it will contribute to his defence. The court then takes certain factors into account.

What if he wanted to lead evidence about prior sexual conduct on that night that the alleged rape took place? This is the one situation in s227: the only time that the defence can lead previous sexual encounters is when it is actually relating it to the case itself (i.e. hes speaking about that specific incident). In all other instances the accused has to apply for leave from the court and establish relevance.

S v Zuma 2006 (2) SACR 191 (W)

MrZuma had a family friend. She was 31 and HIV positive. He had her stay over one night. They got down and dirty. He came into her room and asked if she was sleeping and whether he could massage her. She said she was sleeping but he proceeded. While he was massaging her shoulders, she realised he was naked. Eventually, he started getting extra jiggy with her and even asked her if he could ejaculate inside of her. At no point did she scream or fight him, but the next morning she felt bad about it and told some of her peeps. There was then a long discussion with her about this hurting the ANC. Seriously. This case illustrates the issues raised above very well.

The major issue in this trial was the complainant herself. The prosecution was the first to ask leave to lead prior sexual history (usually it is the defence who does this). They called the complainant as a witness (a warning light should be going off in your head. The prosecution must be idiots as the witness is then subject to cross-examination and the defence can also now lead evidence of prior sexual history). The prosecution, it Page 47 of 152

appears, did not know the history of their client especially that she had apparently brought a shit-load of previous rape charges that were not held to be true!

They asked her how long it has been, before the incident in question, since she last had sex (this was to show that, because she hadnt boned anyone in a few years, she wasnt inclined to have consented. Some would say that it might show that shes MORE likely to consent. But everyone in this case seemed to be born with one brain cell). This, according to Schwikkard was the prosecutions BIG MISTAKE!

The defence then made an application in terms of the existing s227, to both cross-examine and lead evidence on her previous sexual history. This was granted on grounds of relevance: the court held that this was NOT to show the complainant as a slut whore who sleeps around, but rather that she has cried wolf many times before (i.e. it would show her misconduct). This made it relevant to the issues of motive, credibility and consent. The witness (the complainant) was then attacked by the defence and her entire prior sexual history surfaced. This was the downfall of the prosecutions case.

Zuma was acquitted of the charge of rape and is today known as Mr President.

Crimen iniuria

In order to obtain a conviction on a charge of crimen iniuria the prosecution must prove insult to the complainants dignity. Evidence that goes to establishing that the complainant was not the type of person who would have been insulted in the circumstances, will be regarded as relevant.

Character in Civil Cases

The character of the parties in a civil case is generally considered to be irrelevant.

However, in certain cases evidence pertaining to the character of a party will be regarded as relevant either in respect of an issue or in quantifying damages.

For example, an essential element in an action of seduction is the plaintiffs virginity. Evidence which shows that the plaintiff has a permissive disposition will be regarded as relevant.

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Another example could occur in a defamation action, where a party who fails in her defence may adduce evidence as to the plaintiffs general bad reputation in mitigation of damages. BUT the defence may not refer to specific acts of misconduct and is restricted to leading evidence of general reputation.

Parties as witnesses may be cross-examined in relevance to their credibility. Evidence of character may also be admitted in terms of the similar fact rule (discussed next).

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CHAPTER 7 SIMILAR FACT EVIDENCE

Introduction

Similar fact evidence (SFE) refers to facts directed at showing that a party to proceedings or a witness has behaved on other occasions in the same way as he is alleged to have behaved in the circumstances being considered by the court.There need not have been a conviction in the previous circumstance.

In the case of S v M the court held thatSFE is evidence which refers to the peculiar or immoral or illegal conduct of a party on occasions other than incident in contention, but which is also of such a character that it is pertinent to or in essentials similar to the conduct on the occasion which forms the issue or subject-matter of the dispute

These facts similar to the facts in issue usually relate to previous criminal/unlawful conduct similar to the crime that the accused is charged with.

Rule and Rationale for the exclusion of similar fact evidence

As a general rule, SFE is regarded as inadmissible because it is considered irrelevant. In addition, the prejudicial effect of the evidence is considered to outweigh its probative weight. It is only admissible when it is both logically and legally relevant (see above for note on logic and legal evidence).

The types of prejudice resulting from admission of similar fact evidence is varied: -

There is prejudice to the accused (e.g. the jury decides he deserves punishment without assessing this trial or because they make assessments regarding his character) Accused has to defend himself in respect of offence charged as well as past charges of misconduct Procedural inconvenience: investigation into collateral issues arising out of introduction of similar fact evidence extends the length of trial, making it more costly and placing additional demands on judicial resources

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However, in S v M the court held that where... similar fact evidence does not go to show guilt on the part of the accused, prejudice is a far less sensitive issue. Indeed, the court should be wary of putting obstacles in the way of the accused who wished to adduce evidence in support of his or her legitimate defence.

In addition, the application of rule has been questioned in light of abolition of trial by jury.

Despite this, if SFE is admitted too readily, there is potential to undermine the proper administration of justice:

Police may focus only on previous offenders, leading to sloppy investigation It would discourage persons trying to rehabilitate themselves It would make it easier for police to put pressure on previous offenders. In a sense this would be like an involuntary confession

It seems that our constitutional right to a fair trial must control the admissibility of similar fact evidence as ones fair trial is jeopardized where irrelevant similar fact evidence is admitted.

Formulation of the Rule for determining the admissibility of similar fact evidence

When will similar fact evidence be admissible?

When it is relevant.

The test for relevancy in this instance is whether the similar facts give rise to a reasonable inference as to the facts in issue. If there a nexus (a link) between the similar facts and the facts in issue it may be allowed. While it perhaps sounds simple, this is fairly difficult to apply.

When reading the cases below, one should take special note of the defence taken by the accused and also the facts in issue and must note whether there was a link between the similar facts and the facts in issue.

Warning: these cases are pretty morbid.

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Formulating the rule for determining the admissibility of similar fact evidence The many prejudicial factors associated with similar fact evidence have made formulation of a workable general rule for determining admissibility incredibly difficult.

Makin v Attorney General for New South Wales 1894 AC 57 (PC) (English case)

Probably the most influential formulation is to be found in Lord Herschels dictum in Makin:

It is undoubtedly not competent for the prosecution to adduce evidence tending to show that the accused has been guilty of criminal acts other that those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offencefor which he is being tried.

On the other hand, the mere fact that the evidence adduced tends to show the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused.

Two accused (a couple) were charged with the murder of a baby.They had (informally) adopted the baby after which it disappeared. Later, it was found buried in their back garden. The facts were consistent with the allegation that the child was murdered for the purpose of gaining maintenance money. The defence counterargued that the child had died from natural causes accompanied by an irregular burial. They also claimed (somewhat bizarrely) that they had adopted the child but then gave the child back to its birth mother.

The crown, in trying to prove that this baby did not die of natural causes, was in possession of other evidence indicating that no less than 12 other baby corpses had been found: 3 on the same premises, 7 more at the previous house where this couple lived and 2 at another house they lived in. There was also evidence of four other mothers saying they gave their babies up for adoption to the couple and never got them back.

On appeal, it was asked whether the evidence of the other bodies that were found (which was similar fact evidence) should have been admitted to show that the act was designed (necessary intent was there) or to rebut a defence of the accused (unlikelihood of coincidence).

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The court held thatsuch evidence, if merely showing a likelihood that the accused committed the offence (a mere propensity) is not admissible. As per the above, the court held that if the evidence shows a certain design (an intent) on the part of the accused or if it can refute or rebut a defence open to the accused then it can be admitted. In this particular case, the crown used this evidence to show the extreme unlikelihood or coincidence that all these babies had died of natural causes.

The Privy Council held that the evidence had been correctly admitted to negate the possibility that childs death resulted from natural causes and not to show that accused had propensity to kill babies (in other words, to rebut their defence).

Under this dictum therefore -Admissibility of similar fact evidence:

(1) Is excluded if court is asked to conclude that accused is guilty because he has a propensity to act in a certain way. (2) Is admitted if there is some relevant probative purpose for it other than for the prohibited form of reasoning

This case is the locus classicus stating that a mere propensity is not enough. However, as will be seen, it is not easy to reconcile with the other cases.

Inadequacies of the Makin formulation: It fails to explain several cases. Propensity itself is so highly relevant to the issue in a particular case, that evidence of propensity itself may be admitted. An example is R v Straffendealt with below.

R v Straffen1952 2 QB 911

The accused was charged with the murder, by strangulation, of two young girls in 1951. He was found to be unfit to stand trial due to insanity. He was then referred to an institute from which he escaped for a few hours. He was free from midday to evening when he was apprehended again.Early the next morning they found the body of a young girl whom had been strangled. The accused admitted to being in vicinity but denied committing the crime, although he admitted to killing the other two girls. He was charged with their murder.

It is unclear whether he was declared sane again.

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The issue before the court was whether the evidence of previous two murders be admitted in this case (the other young girl who was found strangled)?

The trial court admitted the evidence of a doctor and a pathologist who testified regarding the murder of the previous two girls.

On appeal, it was askedwhether this evidence was admitted correctly. The court referred to the Makin case and the similarities relied on by the trial court. The court dealt specifically with propensity. They held that an abnormal propensity (tendency) can be a means of identification.

Such similar fact evidence is only admissible when there is a nexus between similar facts and facts in issue. In this regard, the following is often quoted: In proximity of time, in method, or in circumstance, there must be a nexus between two sets of facts otherwise no inference can be safely induced there from

The Nexus Requirement: There must be a link between fact in issue (probandum) and the similar fact (probans). Stephen: the court cannot draw inferences from one transaction to another which is not specifically connected with it, merely because the two resemble each other. It has been suggested that this is merely restatement of relevance requirement. Relevance requires that the evidence has probative value (remember, this means that it must give rise to reasonable inferences in deciding facts in issue) The probative value must outweigh the prejudicial effect. If it does, SFE can be admissible

It is an abnormal propensity to strangle young girls without any apparent motive, without an attempt at sexual interference and then to leave their bodies out in the open.

The court held, due to the similarity between the two incidents, which created a nexus between them, it was apparent that accused had a certain scheme or modus operandi this had potential to rebut,the defence that he did not have intention and therefore it was held that the evidence was admissible.

It is difficult to argue that the probative value of this evidence was not based on propensity, since it established that the accused possessed a propensity of the most unusual kind: he was a strangler of small girls, in peculiar circumstances, and for no apparent motive. As this was highly relevant to an issue (the identity of killer) it was held to be admissible. NB: it is difficult to reconcile this case with Makin. Here, unlike in Makin, abnormal propensity was allowed.

The appeal was dismissed. Page 54 of 152

A necessary proviso: It is because of the difficulties outlined above that Zefferttet al assert that Makin formulation is only used to explain case law if a proviso is added: in some cases evidence which proves disposition will be admissible if, on facts, it is a disposition which is highly relevant to an issue in it.

R v Bond 1906 2 KB 389

The accused was a doctor. He was charged with a statutory offence - he had used certain instruments on a woman in order to perform a miscarriage. She claimed that she was staying in his house when he induced her to have sexual relations with him. He said he would keep her right when she feared pregnancy. When she fell pregnant he used instruments on her to bring it away. His defence was that he performed a normal medical examination on her, he had given her pain medication and that it was not his intention to perform an abortion.

The crown then presented evidence of woman who also stayed at the accuseds house nine months previously when the same situation happened. The doc had told her that he would put her right, just as he had put dozens of other girls. When she fell pregnant he did the same thing. The trial court accepted this evidence.

Was the evidence of this previous incident admissible in order to prove the intent of the accused?

On appeal (look at majority): The court referred to Makins formulation. In all cases, in order to make evidence of this class admissible, there must be some connection between the facts and the crime charged. In proximity of time, in method or in circumstance, there must be a nexus between the two sets of facts otherwise no inference can be safely deduced from it.

The evidence was significant in that it made the defence of accident implausible when raised by a man with apparent expertise in abortion. Thus the evidence was allowed. In last years exam, Wouter asked the class to apply this test. So take note of the test below: The facts were as follows: A was charged with the rape and murder of a UCT student close to the Baxter Theatre. The accuseds defence was that he was not there as he was in Stellies. However, there was other evidence brought by another student. She testified that about 15 to 20 mins before the deceased was murdered she was also accosted by the accused but she got away. The question was whether evidence of the student who testified about the attack was relevant. Apply the tests.

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The formulation in DPP v Boardman 1975 AC 421

This case is not prescribed. In this case the court held that if the probative weight outweighs the prejudicial effect, it is relevant. This is the key principle. This case confirmed the Makinrule but stressed the probative value of similar facts vis--vis there prejudicial effect.

But at the end of the day, the test is always relevance.This case does not reject Makin, it applauds it! Boardman must thus be read as revealing the underlying principle in Makin.

Evidence can also play a role in the same case (as alluded to above). In Boardman, two boys testified against a school master who had played with their winkies. Their testimonies were very similar. The court admitted the ones evidence as support of the others evidence.

Note also the decision of the House of Lords in DPP v P: if the probative force in support of the allegation is sufficiently great to make it just to admit it thenthe fact that it is prejudicial to accused will not block its admissibility although this is decided on a case by case basis.

Dangers of categorisation

An unfortunate consequence of the Makin formulation is that it has been interpreted by many lawyers as establishing rigid categories in which similar fact evidence will be regarded as relevant. These categories of similar facts include: to prove identity, intent, guilty knowledge, the actus reus or to rebut defence of innocent association.

However, we must guard against categorization and must not see these categories as absolute. Admitting SFE remains a test of relevance and whether it has sufficient weight to outweigh prejudicial effect. The danger of categorising instances of admissibility is that it may lead to casuistry, to insoluble metaphysical problems as to the confines of the categories, and to the error of thinking that, because evidence slots into a category, it will be admissible.

In the textbook there are certain categories. It is just for the sake of convenience that the case law was discussed in this fashion. It is a mistake to look at these categories and formulate whether it is admissible or not. In fact, the categorization approach is so shit that it was rejected in Harris v DPP. Page 56 of 152

Rex v Smith (1916) 11 Cr App Rep 229

An accused was charged with the murder of a woman. The woman had died in the bath. However, prior to the said bath, the accused had taken her to the doctor who suggested to him that she suffers from epileptic fits.

At the trial the accused did not testify and so it was not clear as to what his defence was but looking at the facts, it was possible to infer two possibilities of how she died:

1) Murder 2) Epileptic fit

The accused had taken out life insurance on her name and was the sole beneficiary (a pretty good motive for killing her). After this incident he went through two marriages. Both women died in the bath and in both cases life insurance was taken out in their names and he was the sole beneficiary! Is this guy stupid?

Once again, the issue at trial was whether the two later incidents were correctly admitted during the trial. On appeal, it was found that this evidence was correctly admitted because of the extreme unlikelihood that all three had epilepsy and all three died in the bath tub. The accused did not testify in either trial and so the court mentioned the design or modus operandi of the accused.

Some author noted that the loss of one wife is misfortune, the loss of a second wife is carelessness, and the loss of a third wife is murder.Dum dumdum.

S v D 1991 (2) SACR 543 (A)

This case importantly referred to Bond (the miscarriage case above) but also illustrates the situation where similar facts played a role in the context of a single case.

The accused was charged with several counts of rape and house breaking. Count 5 and 6 charged that he raped a certain woman twice. Count 12 was also a rape charge. The issue at hand regarded counts 5 and 6.

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What happened was the accused had allegedly said to the victim to sleep down. The trial court was of the view that this was peculiar as it was used in both counts 5/6 and 12. The court held that you can take in the evidence of the previous counts as evidence as the identity was established.

On appeal: The court held that the mere use of thesewords sleep down standing on their own was not enough to make the evidence relevant. The court emphasised that these crimes were all committed in the same vicinity and more or less in the times frame. Furthermore, the modus operandi was very similar. There was a pattern and on that basisthey found that the evidence was correctly admitted.

It is vital to see from this case that everything taken together becomes relevant. There was a good enough link established by using other evidence, not merely the words on their own.

In most cases, similar fact evidence is used to prove a certain fact. It is not usual that similar facts are used to prove the entire act itself. The reason for this is because it is difficult to show a link between similar facts and the act. However, there is the case of S v Green.

S v Green 1962 (7) SA 886 (A)

This case involves the actus reus. This is authority that SFE can also help to prove, inter alia, the alleged act on the part of the accused.

The accused was charged with five counts of fraud (hed persuaded 5 people to invest money in a company which turned out to be a sham. Thus he had allegedly defrauded these people). The main charge was related to certain false representations. He said they discovered a large fishing area, he had invested in the company and that there was so much fish. Of course, this was all false. He continued to deny everything. Because of this, the actus reus became the subject of dispute in this case.

The state was also in possession of other evidence from a number of other people to whom the accused had made similar presentations. Over and above the original fraud charges, the state wanted to bring similar situations in. This was allowed and the other witnesses were called in. The trial court admitted this evidence on the basis that there were common features that ran through both scenarios.

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On appeal, the court referred to Rex v Bond, where the court formulated the test dealing with the nexus. The court held that in most cases of similar fact evidence, these kinds of facts are admitted to prove a specific issue like identity.

The court held that this was not the situation in this case as ALL the facts were in dispute including the actus reus. However, the appeal court found that there was a sufficient nexus in relation to the 5 counts with the other situations.

Similar Facts in Civil Cases

Usually similar facts relate to previous criminal charges. However, SFE can be relevant in civil cases. Note however that this previous activity must be of a criminal nature but does not have to be a crime.

Omega v African Textile Distributors 1982 (1) SA 951 (T)

The manufacture of Omega watches and its agent in Joburg applied to the HC in Johannesburg for an interdict against the respondent on the basis of passing off their products as his own.

The applicant alleged that the respondent manufactured the watches as Homegas and then sold these to hawkers along with an instrument to take off the glass to remove the H and the S to make Omega watches. The respondent claimed that he didnt commit this delict, that the name Homegas is an innovative name for a watch and that they didnt have any desire to copy the name of Omega.

The applicants were in possession of previous incidents. The one previous incident involved Oris and Roamex watches. Norris (Oris) and Roamer (Roamex).

Once again (sigh) the question was whether the similar facts were admissible.It was held that the evidence was admissible since it shows the necessary intent.

The Requirement of Similarity

The probative value of similar fact evidence will to a large extent be determined by the degree of similarity between a persons conduct on other occasions and on the occasion which is the subject of the courts inquiry. Page 59 of 152

Lord Wilberforce expressed the requirement of similarity in the following terms: The basic principle must be that the admission of similar fact evidence is exceptional and requires a strong degree of probative force. This probative force is derived, if at all, from the circumstances that the facts testified to by the several witnesses bear to each other such a striking similarity that they must, when judged by experience and common sense, either all be true, or have arisen from a cause common to the witnesses or from pure coincidence. The jury may therefore properly be asked to judge whether the right conclusion is that all are true, so that each story is supported by the others.

Zeffert asserts that the relevance of similar fact evidence depends upon the argument that the same conditions are likely to produce the same results.

The Test of Coincidence

McEwan maintains that a mistake commonly made since Boardman is to assume that evidence of previous misconduct by the accused will have the requisite probative value only when the other incidents are uniquely strikingly similar. The preferred way to view the test is to ask whether the evidence can be explained away as coincidence. Several cases have shown this line of argument. In R v Bond and the Boardman case are classic examples of this (see notes above).

Coincidence and a nexus

Another way of approaching the coincidence test is to say that the nexus referred to in Bond can be found in the extreme unlikelihood of coincidence. R v Smith highlights this as well (see notes above, the bath case, the argument was that either all three deaths were accidental, or the accused was responsible for the deaths).

The Degree of Similarity

If we apply the coincidence test, it is necessary to consider disputed evidence in its context. McEwan contends that this opens the way for unusual propensities and or evidence which is not, prima facie, strikingly similar. The circumstances of each case will determine their similarity. It depends if the similar evidence will be the key point in the case or whether there is other evidence that is sufficient enough for the prosecution to use you can compare Mankin and Boardman in the notes above.

Facts in Issue

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The admissibility of similar fact evidence also depends on what the issues before the court are. In Thompson v R Lord Sumner held that the issue must have been raised in substance if not in so many words. In many cases the issues are apparent from the facts and therefore the prosecution need not wait until its specifically raised by the accused.

Other Evidence

The relevance of similar fact evidence will also be determined by the strength of the other available evidence. This is well illustrated by the case of R v Ball.S v D is another example of this, albeit an average example (see notes above).

R v Ball 1911 AC 47 HL (not prescribed)

The accused, a brother and sister, were convicted of incest committed during certain periods in 1910. The main prosecution evidence was that the accused, who held themselves out as married, were seen together at night in a house which had only one furnished bedroom, containing a double bed showing signs of occupation by two persons. The brother had been seen coming from the bedroom in a half-dressed state while the woman was in a nightdress. The similar fact evidence was that three years ago (before incest was a crime) the couple were seen living together with a baby and the couple was registered as the babys parents. This similar fact evidence was highly probative, given the circumstances in which they were presently cohabiting. If they had lived in the same house but in different bedrooms the probative value of the evidence would have been diminished.

Examples of the Exclusion of Similar Fact Evidence

Laubscher v National Food Ltd 1986 1 SA 553 (ZS) (not prescribed)

In this case the plaintiff was a pig farmer who claimed that his pigs had died as a result of eating contaminated foodstuff that he had bought from the defendant. He wished to adduce evidence that other pig farmers had similarly lost pigs after they had eaten the defendants foodstuff. The court held this evidence irrelevant in that it lacked sufficient similarity. The evidence could not establish that the foodstuff that the other farmers bought was bought at the same time as the plaintiff. Nor could it indicate that the pigs had become ill within the same time of eating it, or that the conditions on the farms were similar, or that the animal husbandry practices were similar.

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An Alternative Approach

Paizes argues that the similar fact rule was formulated in accordance with the characteristics of the jury trial, and given that the jury trial is abolished, we should reconsider the desirability of the similar fact rule.

If a judge can perceive risk that she might be induced by the reception of the information to wrongly convict the accused, then she must guard against it. Paizies acknowledges that errors of judges are best guarded against by invoking a cautionary rule. This strict rule of inadmissibility is really out of place in our modern system. He argues that if a judge allows similar fact evidence then he must set out his reasons why these facts played a role. Courts have not to date been confronted by this and are thus bound by the Makin formulation.

In England, the Criminal Justice Act has adopted a principled approach reflecting rules of relevance in a comprehensive and detailed way with section abolishing the common law rules governing admissibility of evidence of bad character.

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CHAPTER 8 OPINION EVIDENCE

Introduction

This chapter deals with the following question: is the opinion (inference, conclusion, impression, belief) of a witness whether expert or lay person admissible evidence? Should an opinion be admitted for the purposes of persuading the court to rely on it in deciding the issue at hand?

The answer is that relevance (once again) remains the fundamental test for admissibility. If the issues of the matter are of such a nature that the opinion of a lay person or an expert can assist the court in deciding the issue, then the opinion evidence is relevant and can be admitted (unless some other rule, such as hearsay, calls for its exclusion).

What is an opinion?

An opinion is the inference drawn from a certain set of observed/discovered facts. It is a statement about a particular situation. I thought, I think, etc.

The courts take a robust opinion on what opinion is a view or opinion formed by a witness that in every day language we would regard as an opinion. General Rule: Opinion evidence is Inadmissible However, there are certain exceptions of which we will deal with. Why is it not admissible?

Colgate Palmolive (Pty) Ltd v Elida-Gibbs (Pty) Ltd This case involved a misleading advertisement regarding a particular type of toothpaste. The prosecution wanted to present a layman with no expert knowledge as a witness, in order to show that this layman would, like the complainant, be mislead.

The court accepted this argument. Just because his opinion was contained in evidence could not preclude the evidence if its purpose was to show that as a result of his interpretation of the advert, he was misled.

Stewarts and Lloyds of SA Ltd v Croydon Eng& Mining Supplies (Pty) Ltd (dealt with in more detail later) Page 64 of 152

In this case an issue of a different nature arose. In this case the trial court was requested by counsel for two of the defendants to examine certain handwriting under a high-power microscope, and in so doing to be guided by an expert in the field of handwriting, a certain Mr Gilchrist (he was the opening expert at the time). Counsel claimed that this procedure would have enabled the court to make observations which would have assisted the court in determining the order in which two witnesses could have reflected on the credibility of these two witnesses.

The court declined to look through the microscope and be guided by the expert.

This is distinguishable from case where court can make its own observations and form opinion on basis of ordinary knowledge or skill

Fact and Opinion: Some Comment

It is sometimes stated that in terms of the opinion rule a witness must give evidence of facts and may not express an opinion unless he is an expert or, if not an expert, his opinion can be received as an exception to the general rule which excludes opinion evidence. This is a gross distortion of the true rule because if the witness cannot scientifically prove what he is saying then how does his version of the story translate into facts.S v Pretorius is authority that all testimony to matter of fact is opinion evidence.

An opinion can be contrasted with fact in that facts simply are, whilst opinions are variable in that differing opinions on the same matter may without absurdity be held by different people. An opinion in this sense is inadmissible because it is irrelevant. In the law of evidence, opinion has the meaning of an inference or conclusion of fact drawn from other facts.

The witness must be competent to express an opinion and he must be able to state the factual basis adequately on which the opinion is drawn from. But inability to provide reasons for his opinion should, in principle, affect weight, not admissibility.

Rule and Rationale of the Opinion Rule

Rule

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Any opinion (by a witness), whether expert or non-expert, which is expressed on an issue which the court can decide without receiving such opinion is in principle inadmissible because of its irrelevance.

However if the issue is of such a nature that the witness is in a better position than the court to form an opinion, the opinion will be admissible on the basis of its relevance. Such an opinion has probative force.

Rationale

Opinion evidence is deemed asirrelevant and thus cannot assist the court (c.f. R v Vilbro). Witnesses are not allowed to usurp the functionof the court. This statement is not correct because the court can always reject this opinion and insert its own opinion.

R v Vilbro This case is the leading case that trajects the theory that opinion evidence usurps the function of the court. It serves as a good illustration of how the courts were used to implement the most demeaning and humiliating apartheid law. It shows why people are skeptical about the courts in their enforcement of a horrible social order. Facts Mr and Mrs V had been charged and convicted in the Magistrates Court for contravening the Group Areas Act. Prosecution said that they were members of the colored group and had occupied an area reserved for white people. They were convicted in the lower court and the matter went on appeal. The focus of the appeal was whether the appellants were white or colored. The state proved that the accused were colored and not white. However, the Magistrate did not report his own observation but held that the accused was colored based on the evidence given by the states seven witnesses. The Vibros argued that the witnesses had usurped the function of the court by expressing the opinion on the color of their skin. They stated that they themselves were the real evidence and the magistrate should have drawn his own conclusions after observing them. In this context, the AD rejected the notion that opinion evidence usurped the function of the court. They also rejected the appeal.

In reading this judgement, it is hard not to notice the harsh nature of apartheid law. The AD held that neighbors were in a better position to testify to their race due to the fact that the Vilbros are likely to wear make-up. The Chief of some school was called up to help because he knew how to determine where children would go to school according to their skin color. Page 66 of 152

The evidence led by the Vilbros also reflects the inequality shown during apartheid. They produced their Mauritian documents deeming European, their SA documents also had them as white and they testified to only using Whites Only facilities.

But the court held that he was not white and the fact that he attended a colored school (plus one of their kids) also counted against him as being white. Plus the neighbours thought of their skin as being too dark to be white.

In addition, opinion is excluded because it also creates a risk of confusion of the main issues; prolongs the trial and opens up that old evidential Pandoras Box.

The theory that the opinion rule preserves the fact-finding function of the court is sometimes also expressed in terms of the so-called ultimate issue doctrine, namely that a witness may not express an opinion on an ultimate issue which the court must decide. However this doctrine fails to explain why courts at times permit not only experts but also lay persons to express an opinion on the very issue the court has to decide.

However in R v Van Tonder 1929 the court dealt with a motor collision. Two witnesses were called. One witness said I think the man in the other car was not responsible as he did not hoot and was running very fast.The other witness said the other car is responsible as he was going too fast.

The court held that a witness should not be permitted to express an opinion which requires the application of a standard of law to facts, as would be necessary in this case.

Relevancy Opinion evidence will be accepted by the court where it is relevant to the court. A person will deem opinion evidence as relevant where the person is in a beter position than the court to form an opinion.

Lay persons and experts

The distinction between a lay person and an expert does not govern admissibility, the important thing to remember is whether the opinion evidence will assist the court.

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For procedural purposes, however, a distinction is necessary: in civil cases parties should give notice of their intention to rely on expert opinion evidence; in criminal cases the prosecution is required on constitutional grounds to disclose expert opinion evidence to the accused prior to the commencement of the trial.

Opinion of a Lay Person

There is no general principle as to when opinion from lay people is accepted. The courts usually allow it when it helps the narrative. Courts allow lay persons to express an opinion on the approximate age of a person, the state of sobriety of a person, the general condition of a thing, the approximate speed at which a vehicle was traveling, and handwriting. This is not an exhaustive list. The witness does not have to give reasons, however depending on the reasons or lack of reasons for the opinion should in principle affect the weight and not the admissibility of the opinion.

The following are relevant to when opinion is allowed:

The compendious mode

This is a convenient term to use in those instances where the witness offers an opinion as a brief summary of factual data as perceived by him. It allows the witness to say, for example, that the victim tried to protect herself etc. Admission of the opinion evidence is still left to the discretion of the court. (See Herbst v Rex below).

Handwriting

S 4 of the CPEA and S 228 of the CPA contain similar provisions: a lay witness is permitted to identify handwriting. An expert may also express an opinion on handwriting as may the court. But this must be approached with caution. The fact that the accused who gave a handwriting sample might have purposefully changed their handwriting will affect weight and not admissibility.

Probative Value of a Lay Opinion

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The admissible opinion of a lay person provides prima facie evidence if not challenged, and may be accepted. Much will depend on the issues and the reasons that the witness can advance in support of his conclusion. It may be that matter requires expert opinion to resolve if lay witness evidence is challenged.

Heebst v Rex 1925 SWA 77

This case offers a clear example of when a layperson can express an opinion. The court held that it is never possible for a witness to eliminate altogether the results of inference from the evidence he gives. This alludes to the compendious mode of expressing facts and opinions.

The appellant was charged, on three counts, with contravening the Licenses Proclamation Act of 1921 (he didnt have the necessary license he needed to operate). He was acquitted on the 1st and 2nd count but convicted on the 3rd count.

The appellant had a business which he conducted out of a wooden structure. This structure was very difficult to move as it was so heavy.

In the court a quo, the witnesses were a magistrate and clerk of the court. The magistrate held that, due to this fact, a hawkers license was not appropriate. This was not an easily movable vehicle as a hawker would have and for all intents and purposes it is a shop. Rather, a general business license was actually needed. The clerk gave a similar opinion.

The businessman appealed this finding.

Was this opinion evidence, and, if so, is this expression of opinion (that the structure is a shop and not a hawkers moving vehicle) admissible?

The court held thatwhat is importantis when lay persons can state an opinion which is subsequently admissible. Generally a witness may not give his opinion as to facts in issue because by doing so he usurps the functions of the court. Yet it is equally clear that statement by lay witnesses which are daily accepted as good evidence does actually embody inference, deductions and opinions. Thus there are exceptions to the general rule.

For example, when a lay witness says I see a Chinaman he means that from his knowledge, obtained by experience or study, he is aware that the person appears to possess those characteristics and so he infers that Page 69 of 152

the man is a Chinaman. His short statement is thus a compendious mode of expressing facts and opinion. If were not allowed to express these types of opinion the court would not be allowed to receive the witnesses evidence.

Thus, opinion evidence is by no means confined to experts. There have been cases were ordinary witnesses were allowed to give their opinions in evidence. With regard to questions of identity, condition, appearance, resemblance of persons or things, clearly only evidence of opinion can be given. When the facts in issue involve inferences of law or fact which is for the court or jury and not for the witness to draw, and those facts are of a simple nature or can only be expressed by a direct statement, they will be admissible. BUT whenever the inference is remote or doubtful, then it is inadmissible.

This explains why the witness is allowed to say things like angry, protect and looked surprised this is permitted for reasons of practical convenience but also because the witness is better placed than court to give opinion on these matters. He may subsequently be questioned on reasons for his conclusion.

Admission or exclusion of the evidence tendered in compendious mode will be the courts discretion. Much depends on the circumstances and issues, as well as the question whether for purposes of the case any meaningful attempt can be made to separate conclusion from fact.

Thus the court concluded that this evidence falls into this category (a compendious mode of expressing facts) and allowed it, despite the fact that it contains some opinion.

The appeal is dismissed.

The Expert Witness

Definition

Expert evidence is allowed but certain procedural requirements must be made. Rule 24(9): Before you call an expert, you have to give the other side notice at least 15 days before the trial. And 10 days before the trial, you must provide them with a summary of the experts opinion. This is done so that the other side can call their own witness and cross examination. Also, keep the constitutional rights to information and a fair trial. Secondly, one has to persuade the court that the evidence will be useful. This can be done in a number of ways. Page 70 of 152

The witness must be an expert for the purpose for which he is sought. The witness must not express an opinion of facts which have no bearing on the case and cant be reconciled with the other evidence in the case. A person who is in a better position than the court to make inferences or express an opinion on certain facts will be allowed to express this opinion.

Sometimes there are issues which simply cannot be decided without expert guidance. Expert opinion evidence is thus readily received on issues relating to, for example, ballistics, engineering, chemistry, accounting, medicine etc. In these fields, expert guidance is required. In matters relating to intoxication and handwriting, expert testimony is not absolutely necessary but is admitted.

An expert witness is a person who has specialised knowledge in a certain field which makes him better able to express an opinion on the facts in issue before the court. He must remain neutral.

Holtzhauzen v Roodt 1997 (4) SA 766 (W)

H, the plaintiff, sued R for defamation, averring that R had told a 3rd party that he (H) had raped her when the two of them were alone on a farm. R invoked the defence of truth and public benefit.

In order to support her defense and allegation of rape, she called twoexpert witnesses.

The first witness was a psychiatrist, (W) who would testify that, in his opinion, based on hypnotherapy sessions and interviews, R was raped by H. He would give his opinion that hypnosis is a way of accessing subconscious memories and thoughts from patients by inducing them in a state of trance or deep relaxation. W was a registered clinical psychiatrist and member of SA Society of Clinical Hypnosis. The hypnosis sessions with R had taken place after litigation had been initiated.

The second witness (B) was also a social worker and counselor for rape victims. She would say that rape victims often do not come forward immediately to disclose to third parties what had happened to them. B had undergrad in psychology, a Masters in Social Work and was clinical supervisor of POWA where she counselled rape victims.

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Satchwell J held that Ws (the first witness) evidence was irrelevant and therefore inadmissible on two grounds:

1. The consistency of Rs story was not in dispute. Prior statements to W added no greater weight to what R herself was telling the court.

2. The proposed evidence of W would displace the value judgment of the court. The court itself had to decide matters of credibility without the opinion of W. The evidence could go a long way toward usurping the judgment of the court.

What made it even more removed from admissibility was that these hypnotic sessions began after litigation begun and her statement came from promotion by the psychiatrist.

However, the proposed evidence of B (the second witness) was held to be admissible.

As to the second witness the judge held the court is not knowledgeable about the reactions of rape victims, as rape is a crime that does not see the light of day. The ability of a judicial officer to comprehend the kaleidoscope of emotion and experience of rape is extremely limited. It would be unwise and irresponsible, in lacking special knowledge and skill, to attempt to draw inferences from facts which have been established by evidence without welcoming opportunity to learn and receive guidance from expert better qualified to draw such inferences.The court does not know why victims dont come forward and does not understand the reasons why she waited before she disclosed the issue. Because of this, evidence given by the second witness would be relevant and admissible. The second witnesss opinion was of a general nature unlike the first, and it did not involve the credibility of R.

Thus, the evidence of the first witness was irrelevant and thus inadmissible but the evidence of the second witness was relevant and thus admissible. The test, as mentioned above is can the expert evidence in any way assist the court?

Note: Schwikkard: Bs opinion was of a general nature and, unlike Ws, did not involve opinion on the credibility of R. B also had no personal interview with R.

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Stewart-Lloyds v Croydon Engineering & Mining Supplies 1979 (1) SA 1018 (W)

In the trial court,counsel requested for two of the defendants to examine certain handwriting under a highpower microscope, and in so doing to be guided by an expert in the field of handwriting.

Counsel argued that this procedure would enable the court to make observations which would have assisted the court in determining the order in which two witnesses had affixed their handwriting on a document (which was an issue that could have reflected on the credibility of the two).

The court held that it is undesirable from every point of view that the court should look through certain sophisticated instruments and rely upon its own observations when, from its limited knowledge of the subject, it does not know whether its observations are reliable or not and whether an inference can reliably be drawn from them or not.

Thus, they declined to look through the microscope.

Requirements for Admission of Opinion (from Lay and Expert Witnesses)

Lay Witnesses

1. Competent to express opinion: This is relevent when it is difficult to express the different between fact and opinion (speed, age etc)

2. Factual basis: Its not always easy for a lay witness to do so but they must as far as possible

3. Court must not submit itself: The court must still decide on this evidence

Expert Witnesses

1. Competence: The party adducing the opinion of a witness as an expert opinion must satisfy the court that the opinion is not irrelevant.

The court must be satisfied that:

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a) The witness has special knowledge, training, skill or experience but can also, on account of these attributes, assist the court in deciding the issues (be may have practical experience, not only formal qualifications. The formal qualifications without any practical experience may not be enough to satisfy the court that one is an expert)

b) The witness is an expert for the purpose for which he is called upon to express an opinion

c) That the witness does not or will not express an opinion on hypothetical facts. These are the facts which have no bearing on the case or which cannot be reconciled with all the other evidence in the case.

2. Reasons: It is still for the court to decide on the matter. Because of this, the court needs good reason to allow the expert to make his statement. Probative value is strengthened where proper reasons are advanced in support of an opinion. However, there is no set rule for this requirement. Much will depend on the nature of the issue and the presence or absence of an attack on the opinion of the expert.

S v Blom1992 (1) SACR 649 (E)

The accused was charged with murder. Two police fingerprint experts testified for the prosecution.

At first, they had not prepared comparative charts in respect of the fingerprints found at the sceneof the crime, as their department had a policy not to do this unless there were at least eight points of identification in comparing the fingerprints of the accused with those found at the crime scene.

Both the witnesses were satisfied that those seven points of identification were more than sufficient to identify a fingerprint beyond any doubt and that the fingerprint was that of the accused. It then transpired that the prosecutor had told the defence counsel that only five points of identification had been found. This corresponded with the evidence of the investigating officer. When the two fingerprint experts were asked to indicate the points of identification in court, their evidence was unsatisfactory.

The court held that there was reasonable doubt as to whether the fingerprint was that of the accused, despite the fact that experts had no doubt in their minds. This shows that ultimately, it is up to the court to decide the

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matter and it is their decision as to whether they will accept the evidence of the so called experts or reject their evidence.Thus the court did not accept the opinion of the experts.

Hearsay and Expert Opinion

As a rule, an expert may not base opinions on statements made by person not called as witness, although there are exceptions as per the below:

Referring to Textbooks: An expert may refer to a textbook, despite this being technically hearsay. However, it is irregular for the court to rely upon publications or portions thereof not referred to and adopted by an expert witness.

Menday: An expert witness referring to a text book must:

1. be able to say that she confirms that the textbook is correct according to her own experience and training

2. Also say something about the reputation of the author. This must be reliable in the sense that it has been written by person of established repute or with proved experience in field.

Thus an expert with purely theoretical knowledge from a textbook cannot support his opinion in a special field (of which he has no personal experience in).

Procedural Requirements In civil cases, if a party wants to present expert evidence, they must give notice to the court and a summary of the experts opinion.

In criminal cases prior disclosure may be demanded- and should generally be granted- on constitutional grounds.

There are conflicting cases in SA as to the procedure to be adopted where an expert testifies from his written report but also on the question to what extent the written report - as opposed to viva voce evidence - is received as evidence. The guiding principles are as follows:

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Their oral evidence is the evidence. Notes are an aide memoire: they are only applicable in present recollection revived cases.

Where the expert witness has no independent recollection of case but can vouch for accuracy of recorded observations, the report must be received as evidence.

The expert should be permitted to read the report. This is a necessary exception to the general rule that witnesses are not permitted to read from statements prepared for purposes of the trial. The expert witness should in principle confirm the correctness of his report and state adherence to it, and he must do so in the case of past recollection recorded.

Rule in Hollington v Hewthorn1943 2 A11 ER 35 (1943 k587)

Rule

A conviction in a criminal court is not admissible in subsequent civil proceedings as evidence that the accused committed the offence of which he was convicted.

So in Goody v Odams(below) the previous conviction does not amount to evidence.

This idiotic rule is thanks to the dimwit judge inHollington v Hewthorn, a decision of the English Court of Appeal.

FACTS Father of a deceased (son) claimed damages from the defendant relating to a motor collision that had occurred. Subsequent to this, the defendant was convicted on a charge of careless driving.

Owing to the death of his son, the plaintiff in the civil case was unable to produce any direct evidence of negligence (his son was deceased and could not be called as a witness). So he tendered instead a record of the other drivers conviction for careless driving in a prosecution which followed the same accident.

The trial judge and the court of appeal ruled that this evidence was inadmissible.

The reasons given were that the conviction of careless driving was merely the opinion of another court. The civil court did not want to hear the opinion of the criminal court. The opinion of a bystander on this point would plainly have been thought irrelevant and inadmissible and so too is the opinion of the criminal court (as held by Goddard JJ). Page 76 of 152

Although the case was concerned only with the admissibility of a conviction in subsequent proceedings, its ratio, which became the rule,would also exclude the findings of a civil court in subsequent proceedings which are not between thesame parties, or a conviction in a subsequent prosecution against someone else. Schmidt: Every organ of gov must independently exercise its own authority and not just adopt the decision of another body. The real problem occurs because of the hearsay rule, if we did not have the hearsay rule, what one could admit to a civil court was the witnesses testimony (not the conviction). When witnesses testify, there is a record of that testimony and you could admit this through hearsay. PJ: The SA hearsay rule changed in 88 and since then, Anglo American jurisdictions have followed SA as we are leaders. When dealing with hearsay, a question you should ask is whether it is flexible enough to be able to allow the record of the witnesses statements.

Criticism

The English Law Reform Committee held that the rule was contrary to common sense. It is implied that a criminal conviction, on the strength of which the accused had suffered punishment, was as likely to be wrong as right. Anyone would regard such a conviction as a firm foundation for the belief that the accused had conducted himself in such a manner as to constitute the criminal offence of which he was convicted and tribunals not bound by strict rule of evidence have been held entitled to do the same.

Subsequent to the Committee making these recommendations, the rule was abolished in England by the Civil Evidence Act 1968. Now, a conviction in a criminal case can be presented as evidence in a civil case. It is open to the defendant to rebut it, and hence serves as prima facie evidence. Zeffert on Hollington The rule is generally regarded as wrong. Although it has held to be binding on civil proceedings, it has not been applied in matters that are not civil proceedings. Further S 197(d) of the CPA allows an accuseds previous convictions to be put to him if relevant. Zeffert feels legislative action and statutory repeal is necessary.

Wouter on Hollington In criminal proceedings the standard of proof is beyond a reasonable doubt, while the standard for proof is on a balance of probabailities. If something is proved in a criminal court, which uses a higher standard of proof than a civil court, the civil court ought to accept that it has been proven. What are we if we cant accept the procedures of our criminal courts?

Leeb v Leeb(not prescribed)

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A woman was convicted of the murder of her husband.

Thereafter there were application proceedings (a civil trial) where the question of whether she could derive any benefit from her latehusband, to whom she was married in community of property, arose.

The court asked whether it was permissible to use the other case to show that she was not allowed to inherit? If she did inherit, she would benefit from her own crime, a problem with regard to the die bloodige hand rule which prevents this.

For this rule to apply, it must be proved in civil proceedings that she did in fact murder her husband. How does one do this? The lay person will say surely you can present proof of that finding in the criminal court in the civil court?

But this is not what the law allows, according to Hollington. The record of the criminal court is not admissible in the civil court.

The court held that the record of a criminal court showing a conviction of murder cannot be accepted as evidence in civil proceedings. Therefore you need to present the oral evidence and other evidence again. What a waste of time!

Thus, the point must be proved again and at a different standard - on a balance of probabilities and not beyond a reasonable doubt. Idiots.

Goody v Odams 1967 English Case (not prescribed)

Goody brought an action for damages against a newspaper due to allegedly defamatory stuff theyd written about him. The newspaper had published an article stating that he had participated in a very notorious train robbery, that he was convicted of the train robbery and that he was serving a sentence of 30 years. Which it turns out he was. So this was the truth. Another idiot it seems.

The court decided that the conviction in the criminal case was not admissible as evidence in this civil case.

The defensehad to reprove the point that he did participate in the robbery. The criminal proceedings were inadmissible. It obviously makes no sense to do this. Its a waste of time and as the standard of proof is lower in a civil case, its also stupid. Page 78 of 152

Note: The law in England changed soon after, especially as the government feared that other convicts would come forward with actions like this one.

Woutertjie thinks that the rule in Hollington can be criticised, as the standard of proof in a criminal case is beyond reasonable doubt, whereas the standard of proof in a civil case is on the balance of probabilities. This is a much lower standard, therefore there is no need to go through the process again.

As mentioned above, in English cases you can now submit this evidence and it is seen as prima facie evidence. However, in SA the Hollingtonrule still applies.

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CHAPTER 9 PREVIOUS CONSISTENT STATEMENTS

Definition

A previous consistent statement is a written or oral statement made by a witness on some occasion prior to testifying and which corresponds with or is substantially similar to his or her testimony in court. For example, a partys legal representative obtaining written evidence from a witness prior to trial, or where a witness makes a statement to a legal advisor/prosecutor/police and when he comes to court and says the same.The statement and later evidence must correspond in order for there to be a previous consistent statement.

Rule

The general rule is that a witness is not allowed to testify that on a previous occasion he made an oral or written statement consistent with his evidence in court.

A previous consistent statement is irrelevant and inadmissible because it lacks probative weight. Because it is irrelevant and inadmissible, neither the person who made it (the witness) nor the person to whom it was made can be called to testify. This is sometimes referred to as the rule against narrative or the rule against self-serving statements. Page 80 of 152

Note, importantly that proof ofprevious inconsistent statements is admissible as it may be relevant to credibility.

There are, however, exceptional circumstances in which these statements may be sufficiently relevant to be admissible.

Rationale

The insufficient relevance of such statements can be attributed to the cumulative effect of several factors:

a. A previous consistent statement generally has insufficient probative force. A lie can be repeated as often as the truth. b. The danger of easy fabrication: There is a risk of self-made evidence. This is a factor which indirectly affects relevance and admissibility. c. Evidence of previous consistent statements would in most cases be completely superfluous as it may be accepted that in the ordinary course of events a witnesss evidence would be consistent with what he on other occasions had said about the same topic or incident. d. Proof of previous consistent statements in each and every case would be extremely time consuming and may pave the way for numerous collateral enquiries. A previous consistent statement, once proved, would merely duplicate the evidence already given by a witness. There is no probative contribution. e. The rule against self-corroboration limits the probative value of a previous consistent statement to such an extent that proof of such statement is generally excluded: it has insufficient probative force.

The following case will help to illustrate this rationale:

R v Roberts 1942 28 Cr App R 102

The accused was charged with the murder of young 17 year old girl with whom he had a relationship at one stage. She had broken the relationship off and then started boning some other guy, what a whore. The accused lost his shit when he found out. He went to her home with a rifle. He happened to be too wuss to fight in the war, so served as a member of the home guard. They were involved in an argument outside the house.

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The next moment, she was found lying dead. A witness inside the house had heard a shot go off and, before he knew it, the accused was charged with murder.

At his trial, the accused wanted to present evidence that, just after he had been arrested, he made a statement to his father that it was an accident. Could this evidence be admitted?

The trial court disallowed this evidence.

On appeal, the court agreed. They held that, if they allowed the evidence, it would open the door for an accused to fabricate his evidence. Thus, it has no evidential value.Because it does not assist the court in the elucidation of the matters in dispute, the evidence is said to be inadmissible on grounds of irrelevance.

The trial court had found him to be guild and sentenced him to death. But the nice appeal court changed this to manslaughter and reduced his sentence to a measly10 years.

Exceptions to the General Rule (this is where previous consistent statements are admissibile)

1) To rebut a suggestion of recent fabrication

It happens sometimes that the witness says something, after which the cross-examiner tells the witness that they are making this up or fabricating the evidence (sometimes this allegation is made by implication; or it is alleged that the story was made up without conscious dishonesty). If the witness had made a statement soon after the incident, this statement can be put into evidence in order to show that the witness has been consistent in his testimony statement, therefore refuting allegations of fabrication and rebutting the attack on his credibility.

The effect of this statement (the previous one) does not serve as the corroboration of evidence. There is therule against self-corroboration. It serves a limited purpose, which is to show that the witness is consistent in certain aspects of his specific in-trial statement. The prior statement does NOT apply when crossexamination is generally aimed at showing a witness to be unreliable or untruthful.

In S v Bergh (not prescribed) the court held that even where such an allegation is made by implication, this exception kicks in. In this case the accused was charged with the theft of cattle after the complainant sent cattle to the defendants farm (in fulfilling the conditions of their mutual agreement.In the process, some of Page 82 of 152

the cattle disappeared and the defendant was charged with the theft thereof. During cross-examination, her evidence was put in doubt as to the number of cattle concerned. In those circumstances the court allowed a statement that she made to the police at an earlier point to be admitted. The effect of letting in this statement was to show that she was consistent insofar as the number of cattle was concerned.

2) Previous Identification

Identification in court (dock identification) is of very little probative value. Evidence as to identity is risky and is not always very reliable. Therefore, a cautionary rule is allowed in this regard.

Prior identification cases carry more weight. (R v Rassool). Thus, a previous identification which amounts to a previous consistent statement will be allowed. The evidence of identification must go no further than mere identification. But identifying words accompanying any physical identification may be received. In practice, where identity is in issue the police normally hold an identification parade in which the accused will stand with a number of other people. There are rules prescribing what or how such a parade will be done.

3) Complaints in Sexual Cases

This is likely to form the main issue from this chapter. The common law position is that evidence may be given of a voluntary complaint made by the victim within a reasonable time after the commission of the alleged sexual offence. A complaint in a sexual case becomes relevant as it shows consistency on the part of the complainant in her allegation of the rape and refutes possible fabrication thereof.

The present common law rule applies to females as well as to male victims and thus is no longer confined to sexual crimes (where absence of consent is an essential element). In addition, in terms of the present CL rule, absence of a complaint made within a reasonable time after the event is not fatal to the prosecutions case, as it once was.

The CL requirements governing the admissibility of the complaint (the previous consistent statement) are: 1. The complaint must have been a voluntary one 2. The complainant must testify 3. The complaint must have been made at the first reasonable opportunity Page 83 of 152

4. The complainant must have been a victim of a sexual offence 5. The complaint can only be admitted for the limited purpose of proving consistency

This CL rule that the complaint of the victim is admissible as an exception to the general rule excluding previous consistent statements has been criticised.

It has been argued that the rule does not have a rational basis and is potentially prejudicial to the complainant and the accused. It also fails to take into account research which shows that silence is a part of a series of post traumatic responses to crimes such as rape, and that, despite the sound psychological justifications behind this, in the absence of a complaint made within a reasonable time after the incident there is the risk that the court might draw and adverse inference as regards the credibility of the complainant.

For this reason, it has been withdrawn in Canada.

The South African Law Reform Commission investigated the rule and recommended a change. Thus, ss58 and 59 of Criminal Law Amendment Act (Sexual Offences Act) 2007 now exist.

s58: Previous consistent statements made by a complainant shall be admissible in proceedings involving the alleged commission of a sexual offence provided that the court may not draw any inference only from the absence of such previous consistent statements.

s59: ... the court may not draw any inference only from the length of delay between the alleged commission of such offence and the reporting thereof.

These sections thus allow for two scenarios: 1. The absence of a complaint. There is evidence to show that rape victims dont always come forward right away 2. The length of delay between offences and the complaint

Thus, the court may not make an inference ONLY on the basis of an absence of a complaint (s58) and the court may not make an inference ONLY on the basis of the delay before the complainant made the complaint (s59). The emphasis falls on the word ONLY.

Note that these are still factors which may be taken into account with other factors.

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Common Law and Other requirements for the admissibility of such a statement

1) The Complaint must be voluntary

Common Law

In R v C the court noted that to qualify for admission, the complaint must have been made voluntarily, not as a result of leading or suggestive questions, nor of intimidation.

In S v T 1963 (1) SA 484 (A) the accused was charged with raping his 11 year old step daughter. This allegedly happened on three occasions. The complainant did not readily make such a complaint to her mother until the third occasion. At that time, she complained to her mother and the mother threatened to hit her with a stick if she didnt say who had raped her. She then admitted that it was the stepfather.

The court, on appeal, decided that complaint was made due to intimidation and was thus not a voluntary complaint. Due to this, the accused was acquitted for lack of evidence. This case has beencriticised on the basis that the court paid inadequate attention to all the surrounding circumstances.

Sexual Offences Act

The words shall be admissible in s 58 must inevitably be read subject to the common law requirement of voluntariness. A complaint obtained as a result of violence or threat thereof would, on account of its inherent unreliability, lack the required probative value of proving the consistency of the complaint. Thus the complaint becomes irrelevant and inadmissible. A coerced complaint may be excluded in terms of s35(5) of the constitution which states that evidence obtained in a manner that violates any right in the BOR must be excluded if the admission thereof would render the trial unfair or otherwise detrimental to the administration of justice.

Does the Act mean that only coerced complaints are excluded or are also those which are responses to leading or suggestive questions excluded? It is submitted that the court will have discretion as regards the admissibility of complaints that where responses to leading or suggestive questions. Page 85 of 152

2) The Victim must testify

Common Law

Its a condition of admissibility that the victim should testify. Consistency cannot be proved without the victims version. Neither the fact that the victim complained not the contents of the complaint may be received if the victim fails to testify.

In S v R 1965 (2) SA 463 (W) it was alleged that the victim (an alcoholic) was raped, in an ambulance, whilst she was on way to a nursing home, for treatment. The accused, who had accompanied her on the journey during which the alleged intercourse took place, argued that she had consented. Upon their arrival at the nursing home, the victim repeatedly averred that the accused had raped her. These statements were overheard by a nurse. At the trial, due to alcohol induced amnesia, the victim was unable to recall from the time she entered the ambulance. But in her evidence, she denied that she could have consented to the intercourse. The complaint was held admissible despite the fact that the victim was unable to repeat her testimony. It was held that the complaint was admissible to prove state of mind.

Sexual Offences Act

S 58 sanctions the admissibility of previous consistent statements by a complainant in this context. Thus the CL requirement that the complainant must testify remains intact. The admission of a prior statement of a complainant who does not testify cannot prove consistency, and its unlikely that Parliament intended this section to be an exception to the hearsay rule.

3) Complainant must lay complaint at first reasonable opportunity

Common Law

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This is a flexible concept depending on the facts of the case. Schmidt andRademeyer note that the determination of what exactly would amount to a first reasonable opportunity does to a large extent depend on: 1. The presence or absence of a person to whom it can reasonably be expected that the victim might have complained and 2. The question whether the victim realised the immoral nature of the act.

In S v V it was pointed out that an important question was whether the complainant, due to the lapse of time, could possibly have made a false statement. In this case the accused was charged with the rape of an 11 yr old girl.

In S v de Villiers (not prescribed) the complainant was one of three in a rape case. She had waited for a year before making a complaint and only made it after she got beaten by a street committee because of her poor results at school. The court didnt allow her complaint to be admitted due to of the lengthy delay. The court rejected the 3 young complainants explanation for the delay. This contributed to the acquittal of the 2 appellants (the court of appeal was satisfied that there were also several other contradictions, improbabilities and unsatisfactory aspects in the testimony of the complainants). Note that the presence or absence of a report made within a reasonable time after the incident must be assessed in context; and a delay is not necessarily fatal to the prosecutions case.

In S v Cornick (not prescribed) the court confirmed the rape convictions of the 2 appellants even though the complainant (who was 14 at the time of the rape) had laid charges only 19 years later. A chance meeting with one of the appellants at the home of his sister revived memories of her ordeal, prompting her to lay charges. The court noted that the complainant had been raised by her conservative grandparents who never discussed sex. She had never had a boyfriend. The court held that it was quite likely that she didnt know what was happening to her. She knew that she was being hurt, but didnt appreciate that she was being raped. Thus it was not improbable that she would only understand the full extent of what happened to her when she reached her mid-20s when discussions on sex and rape became common.

Sexual Offences Act

S 58 sanctions the admissibility of evidence of a prior consistent complaint or complaints. Admission of a prior consistent complaint is also possible in terms of the common law, provided that each complaint satisfies the reasonable opportunity requirement. However, has S 58, as read with S 59, abolished the CLs first Page 87 of 152

reasobaleopportunity requirement? Paizes argues that the CL requirement that the complaint be made at the first reasonable opportunity to the first person to whom the complainant might reasonably be expected to complain, will in all probability not survive the new statutory dispensation.

S 58, it is suggested, is not a mere statement of the rule, such an interpretation would render the peremptory terms shall be admissible, as used in S 58, meaningless. It is accordingly submitted that whilst S 58 confirms that a prior complaint is admissible as a means of supporting the credibility of a complainant, it does away with the CL position as far as the latters attended first reasonable opportunity requirement is concerned. This interpretation has the added advantage of catering for the now generally accepted view that complainants in sexual cases generally do not necessarily make immediate or prompt reports.

The whole purpose of S 58, it would seem, was to facilitate proof of a prior consistent statement of a complainant in a sexual case. Furthermore S 59 provides that the court may not draw an inference only from length of any delay between the alleged commission of such offence and the reporting thereof. This means the evidence can be admitted without having to satisfy the first reasonable opportunity requirement.

S 58 permits the admissibility of multiple complaints. Thus, if the requirement of first reasonable opportunity is removed will the court be required to admit all previous complaints regarding the incident concerned? ss 58 and 59 have not abolished the CL rule that the previous consistent statement (the complaint) has the limited probative purpose of proving consistency. Evidence of a complaint is not independent evidence of the facts alleged and cannot serve as evidence of the truth of the contents so as to corroborate the complainant who is the very source from which the report emanated. Thus no amount of evidence which consists of complaint upon complaint can overcome the rule against self corroboration. Thus, seeing as these statements are admitted to prove consistency, it must reach the point where the court must have a discretion to refuse to receive further evidence of yet another complaint. This is demanded by s210 of CPA. Repetition upon repetition of a complaint which remains a self serving statement, becomes superfluous and loses its probative value is assessing consistency.

4) Must be a victim of sexual offence

Common Law

The offence: 1. must be of a sexual nature; Page 88 of 152

2. there must have been a victim (including those participating consensually but who cannot in law give consent) and 3. there must have been violence or some physical element.

The specific offence charged is not the decisive fact. There may be an issue of common assault if indecent act was also committed.

Sexual Offences Act

The common law can no longer apply, as sexual offences are defined and extended to a host of other crimes, many of which the rule would not find application (like bestiality or sexual acts with a corpse where there is no victim in the classic sense)

5) Limited evidential value

Common Law

In terms of the CL, the complaint only serves to prove consistency of the part of the victim. It cannot create a probability in favour of the prosecutions case and cannot corroborate the victim as there is a rule against selfcorroboration.

In S v Hammond2004 (2) SACR 303 (SCA) the accused was charged with rape of a woman. The incident allegedly took place at a beach. The accused claimed that it was consensual. The victims story was held to be unsatisfactory, as she had been drinking with the accused and her friends. The court pointed out that the purpose of such a complaint (and thus its weight) serves as evidence of consistency of the account given by the complainant, and thus pertains to her credibility. It is NOT to be regarded as corroboration of later evidence. The court also pointed out that evidence of the complainants emotional state is admissible to show the absence of consent. This evidence could thus be admissible on different grounds.

This can be seen in S v S, in this case the extremely shocked condition of the victim after the complaint when she reported the rape was considered strong corroboration of her testimony that she was raped.

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The court must be satisfied that the distressed condition was genuine and that it could not be attributed to anything other than the alleged incident.

Sexual Offences Act

S 58 does not change the CL rule.

Part VI of the CPEA

In terms of part VI it is in certain circumstances permissible to hand in signed statements which witnesses, who are also giving oral evidence, made after the incident under investigation. Such previous written statement cannot serve as corroboration of evidence given by the person who made the statement.

Res Gestae

A previous consistent statement can be received if it forms part of the res gestae. Again, it cant corroborate the witness this was confirmed by the AD in S v Moolman. This denotes relevance through contemporaneity.

Refreshing Memory

A witnesss earlier statement may in certain circumstances be used to refresh his memory whilst he is in the witness box. The evidential value of a statement used to refresh memory depends of 1 of 2 possible situations:

a. In the case of present recollection revived the earlier statement has no independent probative value. b. In the case of past recollection recorded the contents of the statement are received. There is no independent oral testimony (the memory of the witness is not recorded) and the issue concerning the admissibility of a previous consistent statement does not arise.

Statements made at arrest or on discovery of incriminating articles

Such statements may be used to prove consistency.

S 213 of the CPA Page 90 of 152

In terms of this section, which does not apply to an accused, a witnesss statement may, in certain circumstances, be proved by consent (without calling the witness). Its possible however, that the witness may also be called upon to testify viva voce after his statement has been proved by consent. In such an instance, the previous written statement will merely serve to show consistency and cannot corroborate a witness.

CHAPTER 10 PRIVATE PRIVILEGE

Until now, we have discussed the relevance requirement.We have seen that this entails different categories of irrelevant evidence. We have also seen that some of this evidence can be admitted at certain times. What we look to now are the exclusionary rules. These rules stand on their own, outside of the relevance requirement,andallow for the exclusion of relevant evidence.

There are three primary forms of exclusionary rules:

1. Privilege 2. Hearsay (not examinable in the May exam) 3. Unconstitutionally obtained evidence

This chapter deals with the first form as manifested in the private sphere.

Introduction

Rules relating to privilege are those by which evidence can be excluded. Evidence is excluded based on the need to protect certain categories of people. Here we distinguish a claim of privilege from non-competence or non-compellability of witnesses. If a witness is compellable, he can be compelled by law to give evidence. Rules determine if someone is a competent witness. For example, a major is, a mental patient isnt.

If this witness is then summonsed to go to court, then they are compelled to go to court, regardless of privilege. However, if there is a privilege, he must go into the witness box and then wait for the question. Only then he can object and claim privilege (or waive privilege), but he cant refuse to enter the witness box. Page 91 of 152

For example, a question relates to information that was passed between the witness and his attorney, this is protected by legal professional privilege. He can bring this up and refuse to answer if asked.

It is important to distinguish between private privilege (aimed at protection of individuals) and state privilege (this protects the states interest, which involves mostly state documents and question of disclosure).

Note various contrasting considerations:

(1) Protection of certain relationships/interests: this is the aim of privilege. For example, attorney client privilege vs. (2) Presentation of all relevant evidence to the court. This is the other side of the coin, required in order for the court to find the truth

These contrasting considerations need to be balanced. The protection of those relationships may be given preference over the finding of the truth. The result is that certain relevant information is withheld from the courts.

Note finally, that the presiding officer has the duty to advise unrepresented accused of any claim to privilege. We will deal first with professional privilege before tackling other kinds of privilege such as privilege against self incrimination; marital privilege and parent-child privilege.

Legal Professional Privilege

Rule

Communications between a legal rep and his or her client is protected from disclosure in civil and criminal proceedings.

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Rationale

It is necessary for the proper functioning of a legal system that a legal rep and his client are able to engage in open-hearted, confidential discussion. The client must feel free to disclose everything to his legal representative, or the legal representative wouldnt be in a position to properly defend the client.

Requirements to use legal professional privilege:

Not every type of communication is protected. The following requirements must be met:

1) The Legal advisor must have acted in a professional capacity

This will depend on the circumstances andfacts of each case.There are certain indicators that will be relevant. For example, if he charged a fee, this will create a strong inference. If he doesnt, this not necessarily means a lack of professional capacity.

The privilege is not limited to an attorney or an advocate in private practice; it also extends to a legal adviser. The rationale for this is found in Mohamed v President of theRSA: to limit the privilege is not justified in law and would require reorganization at a great expense of, for example, government and private corporations with in-house legal teams.However, we must be aware of the distinction between communications made in ones capacity as legal advisor and other capacities which wouldnt be privileged.

2) Communication must have been made in confidence

This is a fact-dependent question. It can be inferred whenthe person approached a legal advisor in his professional capacity for the purposes of obtaining legal advice. This inference will be rebuttable where it is clear that the information intended to be communicated to the other party.

3) The advice or communication must have been for purpose of obtaining legal advice or for litigation

This too is a question of fact. Communications that are not connected to actual or pending litigation are protected, provided they are made for purpose of obtaining legal advice. If made in confidence, but not for Page 93 of 152

purpose of obtaining legal advice, then the communication is not privileged. The privilege will not be upheld if legal advice is sought so as to further a criminal purpose.

4) Client must claim privilege

If client waives this privilege, his legal representative is bound thereby. Where the client is represented in court by his attorney, the legal representative can claim privilege on his behalf.

Scope of the privilege:

Where a client gives evidence in respect of facts that have not been put to the opposing witnesses she may be asked whether she told her legal advisors about those fatcs, but she may not be asked what she told them. Essentially it could establish the credibility of the witness without infringing the witnesses right to privilege. It is a way of finding out if the information exists without getting the information out of the witness as the witness is protected under the right of privilege.

S v Mushimba(this case is not prescribed, but is authority for the privilege of employees)

This case was decided in Namibia (South West Africa).

The accused were charged under anti-terrorism legislation. Apparently they had murdered a certain chief, well thats what they were charged with. They then obtained the legal services of a firm of attorneys in Windhoek.

Mrs Ellis (a secretary at the firm) was working on the case, and offered to type statements of accused after hours. But the bitch was actually an informant for the secret police and was busy reporting all this information!

The accused had consulted with a partner, the records of which she had access to. She passed on these statements to a certain Captain Nel who was in close contact with Lieutenant Dippenaar (the investigating officer) who worked very closely with Advocate Jansen (the state advocate). Adv Jansen was not aware of this

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chain of information.This came to the attention of the defence. As a result of this, there was a special note entered on the request of the defence arguing to the court that this was a gross irregularity.

On appeal, the court pointed out that this was a unique set of facts. They held that it was not common and identified the channel flowing from the defence to the state advocate. The court held that this chain of information obviously had an influence in the presentation of States case.

If the court was to consider this a gross irregularity, it must then assess whether justice was still achieved. The court held that it was a gross irregularity, as the defence was completely penetrated and thus the legal professional privilege was cancelled. Because of this, justice was not achieved and the convictions were set aside.

Communications between advisor/client and 3rd party

Where communications are made between advisor/client and 3rd party, privilege can only be claimed if: The communication was made for the purpose of being submitted to a legal adviser, and Communication was made after litigation was contemplated

Distinguish between statements from agents and an independent 3rd party

An agent can be prevented from disclosing the contents of a statement, whilst an independent third party wishing to disclose what he said cannot be prevented from so doing.

Where another person gains knowledge of a privileged document, its disclosure cannot be prevented

However, if this was as a result of an unlawful act, the court may exclude on the basis that it was unfairly obtained.

The Bogoshi rule

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The AD, in this case, accepted that legal professional privilege is a fundamental right, and can be claimed to prevent seizure by warrant of privileged documents

The courts inherent power to inspect documents

In SARFU v President of the Republic of South Africa it was held that a court should not inspect privileged documents as a matter of course, as such an inspection is only called for in special circumstances, where it is necessary and desirable for a just decision or where there is some reason to cast doubt on the claim of privilege. It is also possible for the court to excise parts of privileged document portions that are not covered thereby.

However it is important to note that the accused right to a fair trial will depend on the nature of the breach and circumstances in which it occurred and therefore there could be situations where the breach of the accuseds legal professional privilege will be justifiable and there will be times when it will be unjustifiable. What about the right to access information? In the case of Jeeva the court held that the legal professional privilege was a reasonable and justifiable limitation on applicants constitutional right of access to information.

Does the court have the powers to override the privilege objection?

S v Safatsa 1988 (1) SA 868 (A)

Youll remember this case from criminal law. The six accused were referred to as the Sharpeville Six. They had allegedly killed a deputy mayor. They had formed part of the crazy mob of people converging on the house of the deceased.A State witness was called to testify against the accused. The defence then indicated that they had a statement in their possession that this witness made to his attorney to obtain legal advice. As it happens, this specific legal advice related to this trial!He was to some extent involved and had approached the attorney for legal advice in respect of the trial.

The defence argued that cross-examination of this statement may assist the accused in his defence and that, due to this, the legal professional privilege should fall away. This argument relied heavily on a non-binding English case (R v Barton 1972) that states that if the defence alleges that disclosure may assist him in his defence, the privilege does not apply.

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The trial court came to conclusion that it does not have power to relax privilege. It rejected the R v Barton argument and stated that, if the witness does not want to waive the right, then the court cant order them to do so. The witness feared that he might be charged. He chose not to waive the privilege and claimed it.

On appeal the defence changed their strategy, arguing that the court does have discretionto relax this privilege.

The court held that this privilegewas a fundamental principle on which our legal system is based and that a claim to relaxation must be approached with the greatest circumspection.Assuming that this privilege can be relaxed, it can only arise within the context of the courts discretion.

Thus, the court differed from the English case. In the English case, the court had decided that the moment it the defence alleges that disclosure will assist him, the privilege falls away. Here, it is still up to the court to make a decision in this regard.

It was held that, if it were possible for the court to relax privilege, there are certain minimum requirements that would have to be met. This means that at least certain information must be given to allow the court to exercise this discretion, namely:

1. How the statement got into possession of defence? 2. Whether legal advice sought related to the case before the court? 3. What is the content of the statement? 4. The court must also be shown how cross examine on this statement could assist the accused in his defence

Having stated this, the court found on the facts that insufficient information had been supplied by the defence. The minimum requirements were not met and the judge was not in position to exercise discretion.

Waiver

The legal professional privilege may be waived by the client, either expressly, impliedly or imputedly.An imputed waiver may arise when the accused alleges that his legal representative was incompetent in carrying out his instructions. In this scenario, counsel will be allowed to respond to that and the court will accept that the privilege was waived. Page 97 of 152

In S v Wagner Rumpff CJ held that an implied waiver involves an element of publication of the document or part of it which can serve as a ground for the inference that the litigant or prosecutor no longer wishes to keep the contents of the document a secret.

In S v Tandwa the SCA drew a distinction between implied and imputed waiver in the context of an allegation of poor legal representation. The court held that implied waiver occurs when the holder of the privilege with the full knowledge of it so behaves that it can objectively be concluded that the privilege was intentionally abandoned. While imputed waiver occurs where, regardless of the holders intention, fairness requires that the court conclude that the privilege was abandoned. So in sum, implied waiver entails an objective inference that the privilege was actually abandoned, while imputed waiver proceeds from fairness, regardless of actual abandonment or not.

Refreshing memory from statement in witness box

If the witnesswishes to refresh his memory from the original statement, the privilege falls away as other parties to the trial also have access to the content of that statement.If the court is satisfied that the witness has no independent recollection, the document must be produced.

The privilege will not be disturbed if the refreshing of the witnesss memory takes place outside the witness box or in adjournment.

Other Professional Privileges

One must always balance the competing interests referred to above.

Historically, preference has been given to the interest of administration of justice byensuring that all relevant evidence is placed before the court. Consequently, the lawyer-client relationshipis the only one with such an all-encompassing privilege attached.

But limited privilege exists in some of the following relationships:

Bankers

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Bankers and their clients enjoy a limited privilege. They need not produce books unless ordered to do so by the court

Insurers and accountants No privilege exists

Priests Smit v Van Niekerk:Privilege is not granted. Public policy does not require privilege to operate in this area.

Journalists Journalists can be compelled to disclose sources of their information. However, they have some relief if they can show a just excuse for not testifying. This was what was held in Smit v Cornelissen, where it was confirmed that there no specific privilege existed. But this was not the issue, this case centered on the journalist having a just excuse.

Doctor and patient The doctor patient relationship is not accorded privilege. However, where the accused has been referred to a doctor for mental observation, any statement made by him at such inquiry will be inadmissible except to the extent that it is relevant to determining his mental condition.

It is arguable that certain professional communications may be protected from disclosure by constitutional right to privacy (s14(d) of the Constitution deals with privacy of communications). However, this may be denied if the requirements of the limitations clause are met.

Marital Privilege

Rule

Communications between spouses made during their marriage need not be disclosed. Spouses include Civil Union partners, according to the Civil Union Act 2006.

Rationale

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To protect marriage relationships, public opinion would find it unacceptable if spouses could force to disclose communications received from each other.

Scope

In terms of S 199 of the CPA each spouse may refuse to answer a question that the other spouse could not have been compelled to answer. However should the spouse who received the information wish to disclose it there is nothing the other spouse can do to stop the spouse from disclosing it.

Parent-Child Privilege

Courts do not recognise privilege pertaining to a communication between parent and their child. The absence of privilege prevails even when parent attends criminal proceedings to provide assistance to their child. There is a strong argument based on public policy which militates against same parents being compelled to testify against their children. But S 192 of the CPA makes it clear that parents/guardians can be compelled to testify against their children and vice versa.

Another argument is that parental assistance is the same as the assistance of a legal advisor. But even where a parent appears not to assist their child, there may be constitutional grounds for holding their communication to be privileged. US courts have recognized that confidential communications between children and parents are privileged from disclosure.

Privilege against self-incrimination and the right to remain silent

Rule

A witness cannot be compelled to answer a question if the answer would expose her to a criminal charge. This privilege applies to both civil and criminal cases. However, in civil cases, the privilege covers a wider field as it includes exposure to penalties and forfeitures.

This privilege must be seen in close connection with the right to remain silent. Part of the right to silence is the privilege against self-incrimination both prior to and during the trial. In the context of the accused in a criminal trial, the privilege is WIDER than this. During the investigation and trial stages, the accused cannot be Page 100 of 152

compelled to make any self-incriminating statements. Hes also a witness, but this privilege is applied from the time hes arrested. Well come to this later.

Rationale

It is a natural consequence of the presumption of innocence that the prosecution must prove guilt beyond a reasonable doubt. In addition, there are public policy considerations: witnesses must be free to testify without fear of incriminating themselves and must feel that they can come forward with information in order for the court to discover the truth. Furthermore, there is public revulsion at the thought that person should be compelled to give evidence that would expose her to criminal punishment.

An important rationale in regard to criminal proceedings is the principle of legality. The State must act within legal bounds and the integrity of the criminal justice system must be upheld. For this to happen, the court, officials and state must respect the dignity and integrity of all citizens.

Witness in Criminal Proceedings

The rule in this regard is embodied in S 203 of the CPA: A witness can claim privilege if the answer to question would expose him to a criminal charge.

This does not apply to civil liability.

The witness must claim the privilege, although the court is under a duty to warn the witness that he can do so.

You will remember from the case of S v Lwane (where a witness testified and was ignorant of his rights, including his right to self incrimination), the court held that they, the courts, are under a duty to warn a witness to not self-incriminate himself. Because the magistrate did not stop him from incriminating himself, it was held that an irregularity had occurred.

Note: Lwane was an accused only at the end. But at the preparatory examination he was a witness. This is authority that there is a duty upon a court to advise a witness that he doesnt have to incriminate himself.

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Before the privilege against self-incrimination will be upheld the court must be satisfied from the circumstances of the case and the nature of the evidence that there are reasonable grounds to believe that the witness will incriminate herself.

A witness at Inquest Proceedings can also claim the privilege, but may be limited. InMasokanyev Additional Magistrate Stellenbosch It was held that the requirement of a warning applied only to viva voce evidence before a judicial tribunal and that the court had admitted a written statement made without warning. The court held that it is bound to exercise discretion, balancing the interests of witness demanding protection against interests of the public which demand full disclosure.

It then held that a policeman can claim privilege in respect of own activities and those of colleagues. This decision has the potential of compromising the principle of open government, as the propriety of police conduct is matter of public concern and should be open to scrutiny.

S203 of the CPA is qualified by S 204, which deals with indemnity at the trial.

Where the State requires evidence of one of the perpetrators, the possibility comes up where they may be able to get the evidence from a (usually minor) accomplice. If the court finds that the witness had testified frankly and honestly, then it may give the witness an indemnity. He wont be charged subsequently for incriminating statements he made. Privilege against self-incrimination thus doesnt apply here, or he wouldnt be able to give evidence. But if he does not answer frankly and honestly then his discharge will have not legal force .This section provides that, whenever the prosecutor informs the court that the witness will be required to answer self-incriminating questions, the court shall inform the competent witness that she is obliged to give evidence and answer incriminating questions, but, if answered frankly and honestly, she will be discharged from prosecution.

The privilege against self-incrimination may also be claimed when an inquiry is held in terms of S 205 of the CPA. However this privilege falls away if the s 204 procedures are invoked in such an inquiry.

Constitutionality of s204 and s205 If s204 a justifiable limitation of privilege? In S v Maunye(not prescribed)the court dealt with the constitutionality of s204 (obiter). S 204 was held to be constitutional as it offers a fair and reasonable bargain. This is thus a justifiable limitation on the right not to give self-incriminating evidence.

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In Nel v Le Roux(not prescribed) the court determined that the procedure in terms of s205 was constitutional. The rule makes provision for a just cause. If there is a just cause not to give evidence, you can refuse to do so (on grounds that your constitutional rights may be infringed).

Scope of Privilege A claim of privilege will succeed only if the court is satisfied that the witnesss apprehension of being exposed to a criminal charge, if she is compelled to answer, is based on reasonable grounds. Clearly if a witness has been indemnified from prosecution she will not be able to claim the privilege. This privilege extends beyond answers that would directly incriminate the witness to those which tend to disclose facts which are innocent in themselves but might form links in the chain of proof in a possible charge against the witness.

The accused in criminal proceedings

Privilege extends to the Pre-trial proceedings: There is a rule against compelling a person to incriminate him or herself. Thus, they cannot be compelled to make a statement showing that they committed a crime. A statement of this nature could be in the form of a written statement, oral, or even pointing out. If it is in the form of a communication, it could be incriminatory.

Historically, courts held that failure to advise an arrested person of their right to remain silent does not necessarily render their statement inadmissible. Rather, this is a factor to be taken into consideration in deciding whether the state discharged the onus of showing admissibility (seeR v Barlin). However, there has been a change in approach under the Constitution. Today, evidence obtained in a manner violating BOR is excluded. Evidence in breach of privilege will for this reason generally be inadmissible.

Miranda v Arizona 384 US 436 (1966)

A US Supreme Courtmajority interpreted the nature of the US Constitutions 5th Amendment. This gives constitutional protection to the privilege against self-incrimination and extends the privilege to include incriminating statements made by persons in police custody.

In four US SC cases, suspects were taken into custody, questioned and confessions were obtained from each. It was argued on appeal in all four cases that, during questioning, the police did not apply certain procedural safeguards. Thus, this statement should not have been admitted as evidence because this infringed the privilege against self-incrimination. The statements, in this case, would be rendered inadmissible. Page 103 of 152

Wouter says that this case is super long and very famous. As if we care.

The accused was arrested at home and taken into custody on suspicion of the kidnap and rape of a certain women. At the police station, he was confronted with the complainant who identified him as the perpetrator.

He was questioned by two policemen in an interrogation room. It was common cause that at no stage was he advised of his right to legal counsel. Two hours later, they emerged with a written confession to the crime at the top of statement, a typed paragraph said confession was made voluntarily with full knowledge of his legal rights understanding that any statement he makes may be used against him.

He was convicted on the basis of this statement.

On appeal, it was argued that the police did not inform him of his right to counsel. It was also not clear if was adequately warned that he did not have to incriminate himself. The court had to decide if the statement was obtained in a procedurally fair manner.Were the necessary procedural safeguards followed? What warnings should be given and did the po-po warn him sufficiently?

The court was split 5 to 4. The majority judgment is by the great jurist Warren CJ.

The court referred to other judgments of the SC dealing with two rights at stake (entrenched in constitution): 1. No person shall be compelled in any criminal case to be a witness against himself 2. An accused shall have the assistance of counsel.

The court analysed the background of the techniques used by the police in questioning suspects. Previously, they had used brutality to obtain confessions from suspects. However, this has changed, and today the emphasis was more psychologically orientated. Coercion thus need not be physical, but it can also be mental the blood of the accused is not the only hallmark of unconstitutional inquisition. These methods can also compromise the privilege against self-incrimination.

The court referred to the rationale underlying this privilege against self-incrimination. The respect a government must accord to the dignity and integrity of its citizens means that they must produce the evidence against the accused by its own labours rather than forcing it out of his or her own mouth. The court laid down certain procedural safeguards to be followed by police to protect privilege against self incrimination. This is the key part of the case:

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1. The suspect must first be informed in clear and unequivocal terms that he has the right to remain silent. 2. Anything he says may be used against him 3. If the accused starts and then stops, then the interrogation must stop, as it must if he asks for a lawyer 4. The right to counsel is essential in protecting the privilege against self-incrimination. The accused must be informed that he has the right to counsel. This means both the right to consult with counsel and the right to have counsel present at an interrogation 5. The accused can waive these rights but it must be very clear that he did so intelligibly and did in fact want to waive those rights 6. Evidence obtained contrary to these safeguards will not be admissible

In South Africa, we have the exact same safeguards.

It was argued by the State that society needs interrogation and that it is more important than the rights of the accused. The court held, however, that crime is contagious. If the government becomes a lawbreaker, it breeds contempt and invites crime. The quality of a nations civilisation can largely be measured by the methods used in the enforcement of its criminal law.

The statement in this case was thus inadmissible: 1. The accused hadnot been informed of his right to counsel 2. It was not clear that he was informed of the privilege against self incrimination.

Murray v United Kingdom 1996 (22) EHRR 29

A contrary position was held here, most likely influenced by continental jurists who played a role in the decision.

The accused was a suspected member of the IRA in Northern Ireland. He was charged and convicted in the High Court for aiding and abetting the unlawful imprisonment of a guy by the name of L.

L was suspected by the IRA to be an informer. The IRA couldnt wait punish this traitor, so they kidnapped him and kept him in prison.

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When the accused was arrested, he was given warnings by police. In terms of legislation, he was supposed to be warned of the following. Even though he has the right to remain silent...

1. At the stage of arrest: If you are found in a place where an offence is being committed and you cant give a reasonable explanation for you being there, then the court can make a negative inference in this regard 2. Stage of the trial: when youre invited to give evidence and you decline, then the court can make a negative inference in this regard

The accused said that he had nothing to say at his arrest and at his trial he did not testify. Thus, according to the above legislation, the court could draw a negative inference. He asked for a lawyer, but was denied access to one for 48 hours.

He was convicted and appealed to the ECHR.He claimed that the negative inference should not have been drawn and also argued that it was against his rights to not be allowed access to counsel.

As far as the inferences are concerned, the HR court found that inferring negatively is a question of common sense and cannot be regarded as unfair or unreasonable in the circumstances. Thus his fair trial rights were not infringed upon.

However, they found that the length of time that passed before he was given legal counsel was unreasonable. This infringed his right to counsel and was held to be unfair. The court thus separated the issues. Wout the Goat thinks the two are intertwined (see below).

Criticism of Murray The Prof says that the two are really entwined issues. You need access to a lawyer to protect your right to silence and self incrimination. What remains of the right to remain silent if negative inferences can be drawn just like that?

In our system, the accused has the right to remain silent from arrest and up to the end of the trial. If he exercises this right then there is NO possibility anyone could make any negative inferences.

At the trial he is also entitled to remain silent but the situation is different. Here, if he decides to remain silent, the court cant make a negative inference solely on this, and his silence cannot close any gaps in the states case. Constitutionally this is not allowed. However, it can have negative consequences for the accused when Page 106 of 152

the state makes out a prima facie case and the accused remains silent. Then, the court will inevitably have to decide the case on the uncontested evidence put forward in the case from the State. This prima facie proof will then develop into conclusive proof. The accused will thus be found guilty.

South African position S 35 of the Constitution

In terms of S 35, a detained person has the right to consult with a legal practitioner and to be informed (if necessary, at state expense) of this right. It is not specified that they be informed on right to remain silent.On other hand, arrested persons must be advised of this right, but is not specified that they have right to consult with legal practitioner. But arrested person will always be detained. Logic/policy thus dictates that the arrested person must be warned of, and have, all these rights.

Further if you are being questioned by the police and you reasonably do not know that you have the right to remain silent and feels compelled to speak, they will be considered as being detained for the purposes of our constitution and therefore will have all the rights at their disposal - right to remain silent, right to legal representation etc. this test is obviously subjective as it is based on the reasonableness of the persons belief.

Further the distinction between arrested, detained and accused persons gives rise to uncertainty regarding the right to privilege against self-incrimination, as this right only extends to an accuseds right to a fair trial. However this is of little significance as the there is authority for the view that the right to a fair trial begins at the inception of the criminal process which was noted in the case of S v Melani where the court state: The right to a fair trial has everything to do with the need to ensure that an accused is treated fairly in the entire criminal process: in the gatehouse of the criminal justice system as well as in its mansions.

There are conflicting views as to whether it is necessary to advise a person of her S 35 rights at every pre-trial stage (you will recall this from Criminal Procedure, you will also recall vomiting throughout that course). The most pragmatic approach is that in each case the crucial inquiry should be whether the accused, after having been apprised of her rights on arrest, was in a position to decide voluntarily how to exercise her rights at each subsequent pre-trial procedure.

Ascertainment of bodily features of an accused person

We dealt with this section in Criminal Procedure.

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Under s 37 CPA, police are authorised to take finger prints and palm prints of an arrested or charged person and are allowed to ascertain whether their body has certain features. They may also instruct a medical doctor to ascertain whether body has certain features, which includes the taking of a blood sample. This practice may obviously implicate the accused.

Thus, is s37 of the CPA in conflict with s35 of the Constitution?

The issue is thus what does the privilege against self incrimination refer to. Does it refer to testimonial evidence solely, or does it also include real evidence?

This was decided by the AD inEx Parte Minister of Justice: In Re R v Matemba, when it was held that the privilege applied only to testimonial utterances. The same reasoning was used to apply to pointing out but in Sheehama, the AD held there that this had a communicative element and accordingly had to be made voluntarily before admitted. Although this also results in production of real evidence, it nonetheless involves degree of communicative conduct.

Note: Real evidence is evidence that simply exists, such as fingerprints, hair etc, while testimonial evidence refers to statements that can change and be varied. Real evidence cannot be varied.

S v Huma1995 (2) SACR 411 (W)

This was dealt with in Criminal Procedure. Annoying that we have to do it again. But here goes...

The accused was charged with a murder that happened during a robbery. A van was used in which police had found fingerprints. At the trial, the state requested that the accused submit himselfto having his fingerprints taken. He refused. The state asked for a court order compelling him to do so. It was argued by the accused that this would infringe his constitutional rights on two grounds:

1. This infringed his right to dignity. It was his right not to be treated in a degrading way. He claimed that the taking of fingerprints constituted this. The court held that that was not the case. To find out if it was degrading the court had to make a value judgment. The court held that taking fingerprints is not a degrading process : It is a worldwide practice of identification Page 108 of 152

It is taken in private It does not infringe physical integrity

2. This infringed upon his privilege against self-incrimination. The court held that, with reference to a US case, when you deal with physical parts of the body, the privilege against self incrimination does NOT apply. This privilege only refers to communicative evidence or testimonial evidence (e.g. statements from the accused). This is real evidence (i.e. observation of scar on face; fingerprint; blood sample). The judge referred to provisions of s 37 and also s 225 that states that if these bodily features of an arrested person is taken against his will, it is still admissible.

This case relied heavily on Schmerber v California

Schmerber v California384US 757

This case dealt with blood samples. What if the accused refused to give blood? The accused was arrested for drunken driving after he was involved in accident and sent to hospital. Against his will, a blood sample was nonetheless taken. The accused raised the argument that this was an infringement of the 5th amendment privilege against selfincrimination. The court held that this privilege against self-incrimination refers to testimonial evidence evidence with a communicative element. Here, there is no communication from the accused. With regards to physical or real evidence, the blood sample is clearly incriminating but it is not SELF incriminating, as it has a reflexive aspect. Blood is not the same as words coming out of his mouth.

This approach was adopted by the SCA in Levack

Levack v Regional Magistrate Wynberg203 (1) SACR 187 (SCA)

A number of accused were charged with being in possession of dagga. At some stage, the State wanted to get voice samples with the help of a voice expert. They wanted to compare these samples to those of tape recordings in order to link the accused with the crime charged. The accused refused. The case went to the HC and then ended up in the SCA.

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Their grounds of appeal were as follows: 1. Voice does not fall within the ambit of s 37. It is not a bodily features (in addition, a voice sample is not specifically mentioned in this section) 2. This would infringe the privilege against self-incrimination

With regard to point 1: The court held that it is within the ambit of the section. We are not dealing with the content of the voices and what they are saying but rather the quality of those voices. The court referred to the dictionary in its interpretation of s37 and then stated: the voice is a sound formed in the larynx, it emanates from and is formed by the body, it is thus a characteristic trait of the human body and each voice is distinctive. It is therefore a distinguishing feature of the body and falls within ambit of s37.

With regard to point 2: The court rejected the argument, holding that this voice sample does NOT infringe this right. The voice samples are real evidence. We are not dealing with what they say, but rather the timber and quality of the voices.

The order to compel accused to give voice sample is acceptable.

S v Orrie2004 (1) SACR 162 (C)

In SA, this case is the authority for the taking of a blood sample from the accused. The question here was whether the court can compel the accused to provide blood samples. The court held that to force a person to do so infringed their right to privacy, bodily security and integrity; but that the infringement is justifiable in terms of the limitations clause.

They referred to Levack,Huma and Schmerber. MoSS v GaqaandMoSS v Xabaare next. Both these cases were very similar. We did them last year if you can believe it. Puke.

Minister of Safety and Security v Gaqa2002 (1) SACR 654 (C) (Cape High Court)

A bullet was connected to a botched robbery. Persons were shot in the process. Subsequently, an informant gave information that led to the apprehension of the accused. The accused had been involved in criminal activity and had a bullet lodged into his leg. He refused to have it removed so that it could potentially be Page 110 of 152

matched to the gun. The accused denied that it was a bullet,arguing thatthe injury was caused because of a screwdriver.

The court came to an interesting decision. The police had reason to believe that this bullet would be important piece of evidence to link accused with the crime. There was no identification evidence so the only evidence that the state had to link the accused with this robbery and murder was the bullet. They knew that theyd need an operation to retrieve the bullet. They brought an application for a court ordercompelling the accused to submit himself to surgery to retrieve the bullet. Police had to bring evidence (i.e. x-ray; district surgeon) to show evidence of the bullets existence.A surgeon stated that it would be a simple operation with little risk to the accused.

The accused argued that the operation would infringe his privilege against self-incrimination.

The court looked at s27 (search and use of force) and s37 (bodily features of accused) of the CPA. They found that these provisions do authorise such an invasion. They also found that there is no infringement of the privilege of self incrimination.

Judge Desai adopted a broad, purposive approach looking at the purpose of the legislation. In the view of the court, both these sections authorise the necessary violence against the person of the accused to remove the bullet.

In addition, the court is dealing with real evidence and not testimonial evidence (see above).

The court referred to the American case of Winston v Lee The accused in this case had a bullet in the chest and the court refused the order because there was a medical risk in removing the bullet from his chest. In this case, the court pointed out that there are important differences: In Winston, there was other evidence implicating the accused, this was a more serious crime (it was just a robbery in American case) and it was in this case the interests of the community that the relevant evidence be put before the court. This outweighed the interest of the accused and the order to remove the bullet was thus granted. Although procedures constituted a serious infringement of the accuseds dignity and bodily integrity, this met the requirements of the limitations clause.

Minister of Safety and Security v Xaba2003 (2) SA 703 (D) (Durban High Court)

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Similar facts as above. Here, a bullet lodged in the body of the accused was potentially linked to a hi-jacking. An informant led police to the accused who had a bullet in his thigh (from the police chase at the scene of the hi-jacking).The accused first agreed to have it removed but then changed his mind. Police bought application to have it removed because they had reason to believe that this would link him to the crime.

The court approached the matter in a different way from the above. The judge followed a narrow, literal approach with regard to the interpretation of these sections. It was held that the intention of the legislature was most important. This is a dated approach since the Constitutional dispensation dictates otherwise, and thus is not often used.

The court held that s27 (search of a person), in its ordinary grammatical meaning, does not include an operation to remove an object. Clearly a police officer is not qualified to perform such an operation and he does not have authority to delegate his authority to another. It thus cant be extended.

With regard to s37 (bodily features): mention is made here of a taking of a blood sample from an arrested person. Because this is specifically mentioned, it was held that the legislature wanted only this specific type of minor surgical intervention to be authorised. Thus an operation to remove an object is clearly excluded.

In the textbook, reference is made with regards to the limitations clause. The impression is that the court found that the procedures cant be justified (this is not correct). The limitations clause did not arise for the decision in this case, because the court found explicitly that s 27 and s 37 do not authorise such an invasion. That was the end of the inquiry.

The court thus concluded that the decision in Gaqawas clearly wrong.

Identification Parade

Whether the accused must be advised of his right to legal representation prior to this is still and open question.

Bail Proceedings

Does the right to privilege against self-incrimination apply in bail cases? At the bail proceedings, the accused can claim the right, but it is limited as he can be asked to disclose previous convictions, and he can be crossexamined on that. The difficultly that arises when he remains quiet is that he may not succeed in obtaining Page 112 of 152

bail. The record of the bail proceedings is admissible (with the exclusion of anything he says that infringes his right to self-incrimination).

In S v Dlamini the court dealt with a provision of the CPA, in terms of which evidence at bail proceedings becomes part of record of court at trial. This was consistent with common law. The accused argued that this was unconstitutional,based on his privilege against self-incrimination.At most, the section required the accused to make a difficult choice. This, it must be said, is a common feature in democratic societies and an important component of freedom. It is the inevitable consequence of the high degree of autonomy afforded to the prosecution and defense in adversarial systems.In each instance, evidence contained in bail record fell to be excluded if its admission would render trial unfair. Thus it was allowed.

In S v Bassonthe court noted that although the CPA stipulates that the record of bail proceedings should form part of the trial record, the court still retained discretion to exclude the bail record if its admission would render the trial unfair.It was held that thetrial court is still best placed to determine what will be a fair trial. However, if the lower court had not exercised its discretion judicially or had been influenced by wrong principles of law or facts, its decision could be overturned. Thecourt concluded that, on the facts, there were no grounds whereby it could interfere with the lower courts discretion

Trial and plea proceedings

The court can ask him if he wants to make a statement to disclose his defence. Whether he makes a statement or not, the presiding officer has the authority to ask him questions, to determine what the issues are for both the state and the accused. What impact does this have on his right to remain silent? The constitution entrenches the right not to be compelled to give self-incriminating evidence. This is reinforced by right to silence and legal representation.

His right to remain silent is NOT affected. The accused is not obliged to make a statement and is not obliged to answer any question. Therefore this right to remain silent remains intact.

When the accused testifies, he is in the position of a witness and that witness can claim the privilege against self incrimination. However, that does not include the crime charged. What about the accused who is ignorant of his right to remain silent? The answer to this is in S v Evans (not prescribed but authority for the duty of the court in this situation).

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S v Evans

The accused was charged with the theft of four sheets at a shop. She pleaded not guilty. The magistrate asked her to make a statement. She refused to do so. But nevertheless, after that, the magistrate asked her did you take 4 sheets at that shop and she said, I know nothing of that.

After evidence was submitted, she testified. She said that she was there with a friend and the friend gave her the sheets, and she took them on assumption that the friend paid for the sheets. She was found guilty.

On appeal, they said it was clear that the magistrate made a negative finding regarding her credibility. There was a conflict in her plea and to what she then testified in court. The judge held that you can reconcile the two but noted that the accused had not been informed at any stage that she does not have to make a statement or to answer any questions. The court held that this was an irregularity as the right to remain silent was not affected by this and there IS a duty on the court to inform the accused of their rights.

Other Investigative Inquiries

There are several types of interrogation procedures outside of the criminal process. The rights in s 35 are limited to trial and plea proceedings.

However, if evidence elicited at such an examination was obtained in contravention of privilege against selfincrimination, then it may be excluded in terms of s 35(5) of the Constitution at a subsequent trial. The right to fair trial is protected by use of immunity in respect of evidence arising out of the non-trial interrogation. This does not mean that the examinee is deprived of right to procedural fairness. This is still subject to the residual safeguards i.e. freedom and the security of the person.

S 205 Remember, this is the procedure whereby an accused can be called to be questioned before a magistrate by a prosecutor (because he has relevant information with regard to an offence). In Cornellisen, a witness was called as he had attended gathering where inflammatory statements (about shooting boers) were made.

Nel v Le Roux 1996 (1) SACR 572 (CC)

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This case considered the extent to which the right to fair trial applies only to accused persons (the case was otherwise about the constitutionality of s 205 of the CPA).

The section was challenged on the grounds of the following rights: equality; freedom and security of the person; cruel, inhuman or degrading punishment or treatment; privacy; freedom of expression; access to information; administrative justice; fair trial; public trial; presumption of innocence; remain silent; privilege against self-incrimination.

The court held that the section was not inconsistent with any of the above provisions. In relation to privilege against self-incrimination, the court held that in view of the indemnity and immunity provisions in CPA, the applicant could not validly object to answering self-incriminating questions.

The general strength of the constitutional challenge: if answering would threaten rights, this would constitute just excuse for refusing to answer.

Witness in Civil Proceedings

S 14 of the CPEA provides: A witness may not refuse to answer a question relevant to the issue, the answering of which has no tendency to incriminate himself, or to expose him to a penalty or forfeiture of any nature whatsoever, by reason only or on the sole ground that the answering of such question may establish or tend to establish that he owes a debt or is otherwise subject to a civil suit.

This section must be read with s 42 which provides: the law of evidence including the law relating to competence, compellability and examination and cross-examination of witnesses which was in force in respect of civil proceedings on the 30th May 1961, shall apply in any case not provided for by this Act or any other law.

The effect of these two provisions is to give a wider ambit to the privilege against self-incrimination in civil cases than in criminal cases. In criminal cases it only applies to answers that would expose the witness to a criminal charge, while in civil cases it also applies to where it would expose the witness to penalties or forfeitures.

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CHAPTER 11 STATE PRIVILEGE

Introduction

Rule

Relevant evidence may be withheld or excluded on the grounds that its admission would be against public policy or harmful to the public interest.Thus, this is very different to privilege in the private interest. This originates from the English common law.

Ambit

1. Matters concerning state affairs

2. The privilege usually applies to communications tending to expose police methods of investigation or to reveal the identity of an informer

3. It also applies to information in police dockets

Traditionally, there was an absolute privilege in this regard. However, the Constitution and case law of the CC have relaxed this privilege to a significant degree. The source of the lawis English Law, by virtue of the 30th May 1961 provisions. Thus, we will first look at English law in this regard, before that of South Africa.

Affairs of State

State privilege applies to the affairs of the state machinery. Case law deals mostly with documents.

It comes into play if the disclosure of a document is considered harmful to the public, especially if its exposure will compromise state security. The Minister can raise the objection with regards to state privilege, but who has the final say? Is it for the executive or the judiciary to decide if the documents may be seen or not? See Duncan below.

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Reference is made in the case law to two kinds of claims: a contents claim (where the claim is based on the content of the document in question) or class claims (the document belongs to a certain class of people, for example, the minutes of cabinet).

Duncan v Cammell Laird & Co 1942 1 A11 ER 587

In 1942, England was involved in the Second World War.

The defendant company had built a submarine under the control of the British Admiral. It had sunk on its maiden trial run. 99 men on board died and only 4 survived, leading to a number of claims for damages resulting from the incident.

Two cases were consolidated and came before the court as a test case.

In order to prove their case, the plaintiff wanted the defendants to adduce certain documents showing the plans and certifications of the submarine, and its specifications.The defence objected to this request. They claimed Crown Privilege, as the sub had been built under instructions of British Admiralty, who, in a letter and an affidavit, argued that allowing the disclosure of these documents would be against the public interest. Should this claim for privilege be upheld? The court upheld this objection and so it went on appeal.

The case eventually came before the House of Lords. The House laid down the principle that, if disclosure of the documents would be harmful to the public interest, it should not be disclosed. The court then held that this can be the case because of the contents of the document or because the document belongs to a certain class of document.

The court then posed two questions: (1) What should be the form of the objection raised by the Crown? (2) Once an objection in the proper form has been taken, should this be conclusive or does the court have the authority to examine the documents to decide whether the claim is valid? On issue (1): The objection should be taken by relevant minister, stating that he has duly considered the contents of the document and that, in his view, it would be against the public interest to disclose these documents.

If taken prior to trial, the normal way would be to do it by way of an affidavit.If during the trial, then a certificate signed by the Minister would also suffice.

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On issue (2) The court took the view that the Minister should be the person deciding whether it would be harmful for the public interest or not. If the Minister raises such an objection, the court should accept this and not order the disclosure of such documents.

This should only happen in the case where it would be harmful for the public interest. The court mentions examples where this would be the case: o o o When harmful for the National Defence When harmful to good diplomatic relations When harmful for the proper functioning of the public service o This is a wide field as opposed to the previous two and thus, this may have been an unfortunate choice of words because in subsequent cases the privilege was extended over an incredibly wide field. The court held that the objection raised should be upheld. It should be noted that this was a time of war and the proper functioning of public service is very wide!

In the circumstances in the Duncan case, the public interest which the court should uphold, i,e the principle of unimpeded access to information, was outweighed by the public interest that national security should not endangered in times of war.

Development of the English Common Law Much of historic development of exclusion on grounds of public interest immunity concerned whether the executives claim to privilege is final. English Courts were inclined to accept that the executive had final say. This culminated in the judgment in Duncan: The court could not question crown privilege if given in proper form which extended state privilege to individual documents and classes of documents. As mentioned, there was severe criticism and judicial dissatisfaction.

Conway v Rimmer(not prescribed)

This time, the court took a different view. This 1968 case reasserted judicial control over exclusion of evidence on grounds of state privilege. Thus, the court has authority to consider such an objection.

However, the facts herein did NOT relate to state security. They dealt with probationary reports by a superintendent in the police about a junior officer. In this case the court decided that the reports must be

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produced and the privilege was rejected. However, this case established the principle that judicial deference of the executive on matters of public interest immunity was unacceptable.

The present position in English law is thus that no classes of documents are absolutely immune from production. The court may inspect these in private. In Balfour, it was held that where an actual or potential risk to national safety is demonstrated by a certificate in its proper form, the court should not exercise its right to inspect. This view has been criticised.

Terminology

Previously, crown or state privilege was used in the highest affairs of state, such as national security, state secrets and diplomatic matters. But now, courts prefer the idea ofpublic interest immunity because public interest to be protected is not confined to the Crown. Importantly, waiver is not possible where public interest demands exclusion. The court must raise the matter of its own accord.

Major differences between public and private privilege

State privilege exists where the public interest in non-disclosure outweighs the public interest that administration of justice should not be hampered. This idea also applies to private privilege, however.

Differences: 1. Secondary/circumstantial evidence is admissible to prove a matter protected in terms of private privilege but inadmissible in respect of public privilege. 2. One may waive private privilege knowingly, voluntarily and intelligently. With state privilege, however, waiver is only possible with the clear authority of ministerial head of a government department. 3. Private privilege must be claimed by the holder thereof. The court may not claim the privilege on behalf of the holder. The court must, however, ensure that the holder is aware of his private privilege. In respect of state privilege, the court may uphold the privilege meromotu(when appropriate).

State Privilege prior to Constitutionalization

Van der Linde v Calitzessentially opens the door for a future finding that the court should also have the final say in matters affecting national security.

Van der Linde v Calitz1967 (2) SA 239 (A) Page 120 of 152

Similarly to Conway v Brimmer, this was an action based on damages for defamation. The plaintiff was employed in the provincial administration as a store keeper. One of the superintendents wrote a report about his work which he didnt dig. He wanted the report to be disclosed but the secretary objected, arguing that disclosure would harmful to the proper function of the civil service.

Should this objection be upheld? The court held this was a matter to be determined by English Law. They referred to the two above cases andRobinson v State of Australia(Australian case decided by the Privy Council). Robinson, in conflict with Duncan, dealt with the marketing and sale of cornin Australia. The Privy Council (which is the final court of appeal for countries of the common law and hence was until 1950 very high authority) decided that the court does have the authority, if it is of the view that this is not harmful for the public interest, to reject the claim. The court decided rather to follow Robinson instead of Duncan.

This decision has been criticised because legislation provides that we must apply English Law. The highest court is the House of Lords, not the Privy Council. Thus, strictly speaking, we should have followed Duncan.Further, it wasnt necessary to follow Robinson and reject Duncan because they could merely have distinguished these cases on the facts. Wou thinks Duncan could have been distinguished and does not see them in total conflict with each other. In any case this healthy development has been brought to an abrupt end due to legislation.

Legislative Inference 1969 - 1996

The effect of Calitz was reversed by the General Law Amendment Act 101 of 1969. The executive and legislature were a bit fearful of the Calitzjudgment, so they adopted legislation where it said that the final say rests with the Minister, the court has no authority to investigate a claim of privilege. This bestowed upon the executive an absolute and unquestionable power to withhold evidence from a court of law if, in the opinion of executive, the disclosure would be prejudicial to the interests of the State or public security. No reasons are required. An executive certificate in proper form was conclusive. This was stated in s66 of the Internal Security Act.

After the Constitution was enacted, s66 was repealed due to it being unconstitutional.

The question thus arises: what should the present situation be?

State Privilege afterConstitutionalization Page 121 of 152

Impact of the Constitutional Provisions

S 66 of the Internal Security Act was repealed in light of the constitutional provisions. It would not have withstood constitutional scrutiny given following provisions: o o o o o s 165 judicial authority in courts; separation of powers; s 32 access to state-held information; s 34 access to courts and fair hearing; s 35(3)(i) right of accused to adduce evidence.

It seems that the effect thereof was to revive the common law except insofar as the CL conflicts with the Constitution.

Common Law Position: A court may, of its own accord, exclude evidence prejudicial to public interest.

It is open to the executive to object to the reception of evidence. In these instances, the political head must make objection in proper form (appear in court or submit affidavit) and must give full reasons for his opinion

The court has residual power to overrule this objection where satisfied that objection is unjustifiable or cannot be sustained. The court must exercise this power with circumspection. In addition, the court must develop the common law to promote spirit, purport and objects of BoR and, in interpreting the BoR, must promote its underlying values of dignity, equality and freedom.

Devising a Constitutional Framework

How is the court to exercise its discretion? A good explanation was given in Swissborough. Basically, the court must be able to consider whether the objection is valid or not. In Swissborough Diamond Mines v Government of the RSA (not prescribed) the court noted that the final say lies with the court, regardless of the nature of the document in question. In certain situations it would be detrimental to state security etc, to disclose the documents. However, the State will have to show this. In addition,

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1. The court not bound by ipse dixit of cabinet minister or bureaucrat. 2. The court is entitled to scrutinize evidence to determine the strength of the public interest affected and the extent to which the interests of justice to the litigant might by harmed by non-disclosure. 3. The court must balance the extent to which it is necessary to disclose against the public interest in non-disclosure. 4. The onus is on the state to show why information should remain hidden. 5. The court should call for oral evidence in camera where necessary and should permit crossexamination of any witness or probe validity of objection. Paizes and Zeffertt: The onus on the state is heavy, requiring the state to show (1) the likelihood of particular injury and (2) that this injury is greater than that which would be caused to the interests of justice by nondisclosure

Schwikkard adds further: The court inspecting the document in private should consider partial disclosure. At the end of the day, however, the courts have the final say.

Specific Instances of State Privilege

This section deals with police methods of investigations and the privilege that is afforded to informers, these two sections are connected, although they deal with separate matters. After these two sections, information in a police docket will be covered, as it is also a specific instance of state privilege. (the notes do deviate a touch from the textbook in this section, but we feel it makes much more sense to cover it in this manner)

1) Police Methods of Investigation

The state privilege rule can be used to protect police methods of investigation and the identity of informers. The rationale comes from R v Abelson where it was held that because crime is conducted in all sorts of devious ways and therefore in order to combat it effectively sometimes the police need to use similar methods, therefore privilege will be attached to their methods of investigation and to the identity of their informers in certain circumstances.

Communications tending to expose methods used to investigate crimes: Page 123 of 152

In R v Abelson the court upheld a claim of privilege, holding that disclosure of certain documents would be contrary to public policy as it would lay bare to public methods used by police to control liquor traffic, he was allowed to keep secret the reports made to him by two police detectives.

In S v Peakethe police used a tape recorder to record a conversation. The court allowed the admission of the recording, but disallowed cross-examination relating to manner in which recording had been obtained

We must take into account the provisions of the constitution that entrench the rights of the detained, arrested and accused. Privilege attaches to an investigation, but this does not mean that police can use improper and unconstitutional methods to investigate crime. In addition, courts have to insure that claim of privilege is not merely to cover up unconstitutionally obtained evidence. Conversations unlawfully recorded in breach of right to privacy may be excluded under s 35(5) of Constitution.

2) Police Methods of using Informers

Rule: No question may be asked and no document received in evidence that would tend to reveal identity of informer. There is a duty on court to ensure that this privilege is upheld regardless of whether it is claimed.

Reasons for privilege: 1. Protects the informer and his family from those against whom he informs 2. Ensures the future use of informer 3. Encourages members of the public to come forward with information on crimes. These considerations all point to the conclusion that public policy is the determining factor used in order to decide when to give up the identity of the informer.

In Ex Parte Minister of Justice: In Re R v Pillay the court noted that it is almost impossible to give a strict, compact definition of an informer. Is it anyone who gives information to the police? Wou says it is easy to identify but hard to define. An informer is a person who has some sort of confidential relationship with the police. Information he supplies to the police must be of a kind that, if his identity is not kept a secret, he would not likely give up this information.Is this privilege absolute? The court held that there are certain occasions where it may be in the informers interest to reveal his identity:

1) When it is material to the ends of justice 2) If it is necessary or right to do so to show the accuseds innocence; and Page 124 of 152

3) When the reason for secrecy no longer exists, for example, when the identity of the informer already exists.

The courts have held that this privilege cannot be waived because it serves a matter of public policy. This was rejected by the AD in Van Schalkwyk. It is difficult to see how public policy is served by prohibiting the informer from himself disclosing his identity. However, there is a proviso: if non-disclosure is proved to be required by public interest, the information will be excluded despite informers willingness. Essentially the key to these type of questions involving an informer always revolve around the issue of public policy.

Extension of informers privilege

In the English case of Blake Austin v DPPthe police used observation towers situated on private premises to observe acts that took place in a graveyard. From the towers, they witnessed two people in the church yard involved in criminal activity. At this trial, it was asked whether the towers (a case of police methods) should be disclosed. The identity of the person who owned the property where the observation posts were situation would need to be disclosed.The court decided that this reveal would be similar to revealing an informers identity as both provide police with indispensible assistance in prevention of crime. Thus, it should not be disclosed. This shows an extension of informers privilege.

Constitutionality of Informers privilege

In McCray v Illinois an informer gave three police officers information that M was dealing in drugs. The informer accompanied the police in a vehicle to the street where M was talking to people. The informer then left. M was arrested and heroin was found on him. The informer was someone who had always furnished the police with such information. At a preliminary hearing, the accuseds counsel asked for the disclosure of the informers identity. The prosecution objected successfully.M appealed to the Supreme Court, claiming that his constitutional right to due process had been violated and that he was given no opportunity to confront and cross-examine the informer.

The court rejected this argument. It held that there was no due process violation if police had made arrest and search in reliance on facts furnished by an informer whom they had reason to trust. The informer was not a material witness. The court recognized that there was no fixed rule regarding the disclosure of his identity. The court must strike a balance between public interest and the right of an individual to prepare and present his

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defense. In this case, the court held that where disclosure of the informers identity was relevant and helpful to accused, privilege must be lifted.

These cases made it clear the informers privilege is not per se unconstitutional but that the constitutional right to a fair trial must be considered in deciding whether the privilege must be maintained or not. This confirms and expands the common law principles governing the relaxation of privilege.The broader impact of the Constitution on informers privilege was correctly stated in Els. The Constitution should not water down the informers privilege to any significant extent even though it vests in the court a wider discretion to enforce disclosure of the informers identity than they previously had.

In Els v Minister of Safety and Security the police received information from one of their regular informers stating that Els was in possession of counterfeit money. The police obtained a search warrant from a magistrate to search his house.They found no counterfeit money or anything else that pointed to criminality. He was not happy with this state of affairs. When the police were there, he asked them where they got this tip-off from. The police stupidly replied that theyd got it from an informer. Els instructed his attorney to institute an action for damages against the informer. Els needed the informers identity to do this, and requested this information from the po-po. They claimed privilege against disclosing the identity of the informer.

To what extent does this privilege still apply under the new Constitutional Dispensation?Prima facie, the applicant is entitled to information to enforce his rights under the Constitution. It would be for the defendant to show that this limitation by virtue of the rule is justifiable in terms of the limitations clause. Public privilege of protecting the identity of the informer totally outweighed the fact that Els might be successful in a damages claim against the informer. The advent of the constitution should not, in the public interest, have the effect of watering down informer privilege.In general, the court would only disclose the identity of the informer if it would show the innocence of the accused.The informers identity was therefore protected.

In Swanepoel v Ministers van Veligheid en Sekuriteit the police disclosed the identity of an informer. The court held that the informer does have a cause of action against the police based on his identity being disclosed against his wishes.

3) Information in police dockets

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The police docket consists of different kinds of material. It contains, inter alia, the witness statements, internal reports and memoranda, investigation diary etc.If the accused could have insight into the witness statements, it could in theory help him in preparing for the trial.

Historically, this was not allowed. In R v Steynan accused was not allowed to see the witness statements pretrial. This was the traditional point of view. This case illustrates the pre-constitutional position. Traditionally, there was no right to consult with any state witness without permission of the Prosecuting Authority.

Two principles governed this:

1. Formulation of the privilege Once the state has obtained statements from the witnesses for purposes of trial, these statements are protected against disclosure. The state need not disclose them to accused. Statements are protected under all circumstances as there was a blanket docket privilege.

2. Qualification In a situation where there is a contradiction between what the witness say in court and his earlier statement, there is an ethical duty on the prosecutor to disclose this to the defense. This impacts on the credibility of the witness and it is therefore fair that the defense should be informed.

The issue arose as to whether the ratio of this case represented a constitutionally defensible position.

Shabalala v AG of Transvaaloverturned the decision in R v Steyn.

In this case the court raised two issues:

Issue 1: Whether or not the common law privilege pertaining to the contents of police dockets in R v Steyn is consistent with the Constitution?

Issue 2: Whether the common law rule of practice which prohibits the accused from consulting with a state witness without the permission of the state prosecutor is consistent with the Constitution?

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Two grounds were given as to why this information should be open to the accused and why this docket privilege is unconstitutional:

a. Fair trial and b. His right to information which is also based in the Constitution.

The court specifically held that the right to information does NOT play a role here. The court thus based its decision in the first ground - the right to a fair trial.

Issue (1)

The court held that the docket privilege rule as set out in R v Steyncannot be justified in terms of the Constitution. Before making this decision, the court referred to the preparatory examination procedure. It noted that, when Steyn was decided, a prep exam was always held in the Magistrates Court. All the state witnesses were called up to give evidence and the accused could cross-examine them before giving his version, if he so wanted to. Through this process, the accused was appraised of the states case in detail so that, by the time the case started, the defence had this knowledge. However, from 1952 until the 1980s, there was a gradual erosion of this procedure until eventually it was phased out completely. development was that the accused lost his previous advantage. The result of this

The courts approach to the interpretation of the Constitution adopted here was a purposive teleological approach. The court took into account the values embodied in the Constitution from the outset. The court pointed out that the Constitution constituted a dramatic break from the past which entailed that future dispensation would be based on accountability and transparency.

Court referred to relevant constitutional sections relied on by the accused:

1. Right to information: no relevancy and therefore no application in this case (as mentioned)

2. Right to fair trial: what is required in terms of the right to a fair trial will depend on the circumstances of each case. The defence argument was that the blanket privilege in Steyninterfered with right to fair trial. The court mentioned a number of objections which were in favour of the privilege: a. Cross examination will be protracted, it will delay the proceedings b. It will place onerous duty on state to always provide information to the accused Page 128 of 152

c. Possibility of intimidation of witnesses

On issue (1): The court must weigh the accuseds right to a fair trial against these possible objections (those in favour of the state). It concluded that the blanket privilege in Steyn(which meant that in all cases in all circumstances the accused is not entitled to any information) is not consistent with right to fair trial in terms of the Constitution.

The court then pointed out that normally, in the ordinary course of proceedings, any exculpatory statement contained in docket should be given to the accused he is entitled thereto. Normally, defence would also be entitled to have access to statements of potential witnesses but qualified this: The state is entitled to resist claim by accused for access to any particular documents in docket on grounds that such access is not justified for purpose of enabling accused to exercise right to fair trial; reason to believe that reasonable risk that access would lead to disclosure of identity of informer or state secrets; reasonable risk that such disclosure might lead to intimidation of witnesses or otherwise prejudice proper ends of justice.

On issue (2): The court first referred to a rule: the defence is not entitled to consult with state witnesses unless permission of prosecuting authority is obtained. In many cases, it will not be necessary for the defence to consult with state witnesses before trial; but in certain cases it may be very important for defence to do so. For example, he may need to know the identity of a state witness who could support his defence of alibi.

The court concluded that this practice (whereby under all circumstances and in all cases the accused is not entitled to consult with state witnesses) is not consistent with the Constitution because it infringed the accuseds right to a fair trial. Furthermore, if it is necessary for the accused to ensure a fair trial, he has right to consult with state witness this will depend on the circumstances of each case.

The procedure would be to approach the prosecuting authority for consent. If they refuse, the accused can approach the court for an order in this regard. Qualification: Even where the accused is entitled to consult with witness, if the witness does not want to be consulted, the accused cannot proceed with consultation. In addition, if the state can show that intimidation or tampering with the witness may take place, or if this would lead to the disclosure of state secrets or the identity of informers; or if it would prejudice the proper ends of justice, it may not be admitted. However, even in these circumstances, the court can exercise discretion to permit consultation subject to suitable safeguards.

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Disclosure of contents not equivalent of further particulars to the charge (s 87 CPA) Disclosure of contents of police dockets does not amount to furnishing further particulars as envisaged in s 87 of the CPA [not even when inappropriately relied on]. Information only becoming available after commencement of trial Late disclosure of information would preclude state from calling witness only if late evidence would result in unfair trial. The Position of Undefended accused An accused entitled to be informed by court of their right to have access to the contents of the police docket but failure to do so is not necessarily a fatal irregularity. Position of Suspects Not entitled to have access to docket do not yet have status of an accused Further Procedural and Evidential Matters Access to docket should be requested by written notice to prosecution however there is no legislation prescribing procedure. In practice, oral request and response have become the norm. If there is a dispute, the court must provide a directive and may inspect documents in docket and hear oral evidence and potentially a trial within a trial is held. State must show refusal justified but court retains discretion. Decision is interlocutory and can be reversed later. Cross Examination on basis of witness statement The defence may use a state witness statement for the purposes of cross examination. (See Shabalala above). Defence interviews with potential state witnesses See order in respect of issue (2) in Shabalala Finally it should be noted that the ultimate power of regulation rests in hands of court. The right to a fair trial governs the issue and right of access to information was not the basis of the CC decision. Accessing the police docket for purposes of Bail Application Is the accused also entitled to information in terms of the docket for purposes of his bail hearing? In Shabalala, the accused was entitled to a docket for preparation for a trial. In Dlamini, the information was needed for bail.

s60(14) of the CPA provides that no accused shall, for the purpose of bail proceedings, have access to any information, record or document relating to the offence in question which is contained inthe police docket

There may be a situation where the accused would be allowed to get the information, however, for example where there is an onus placed on the accused to show that he can be released from bail. If certain information is needed, he might qualify for the info.

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S60 of the CPA: sets out the framework in which bail is regulated in detail. It is to this section that we now turn.

As we know, the accused is usually not entitled to information in the police docket. But there may be situations where he could be entitled to some information. For example, when hes charged with a serious crime in respect of which the onus is on him to show that he should be released on bail. In order to assist discharge of onus, he may need some information.

Issues that arose for decision in three cases: 1. Are statements made during bail proceedings admissible at the trial? Dhlamini 2. Dealt with privilege against self-incrimination. Schietekat 3. Whether withholding of access to police docket was consistent with the Constitution? Dladla Issue (1) The accused raised an alibi at time of trial. However, the state was in possession of the bail proceedings transcript, where he had admitted that he had taken part in the murder, but stated that he had acted under compulsion of another accused.

The prosecution presented this record of bail proceedings, which was fatal to his defense.

Issue (2) In the process of cross-examination during bail proceedings, the accused made incriminating statements. It was argued that these were not admissible because they would infringe against his privilege against self incrimination. There is a conflict between the right to be released on bail and the privilege against self incrimination. In the context of bail proceedings, the situation is such that if he remained quiet, he might not obtain bail.

The court concluded that this choice was inevitable. We cannot say that the choice makes this unconstitutional. Provided the accused was warned that whatever he says at bail proceedings may be used as evidence at his trial and makes the choice to testify freely. This testimony will be admissible at trial, which is not inconsistent with constitution.

Issue (3) The right to access a police docket relates only to trial and not to bail proceedings. This is included in the CPA. It was pointed out that this created some kind of confusion in practice. There is an idea that the accused has a right of access to the police docket right from the outset and has this right specifically for purposes of the bail application. Page 131 of 152

However, the Shabalalaratio is clearly confined to the trial. The court was at pains to point out that the reason the accused should have access to the docket was in order to ensure his fair trial this ratio was not applicable at all to bail proceedings.

The defense argued that there were certain instances when the accused is charged with a very serious crime. In these instances, the onus is on the accused to show that there are exceptional circumstances, and that it is in the interests of justice, that he be released on bail. If there is no access to the police docket for the purpose of bail proceedings, then the accused cannot show these exceptional circumstances.

The courts answer to this was that, if the section is interpreted correctly, it is not an absolute prohibition. If the circumstances demanded that the accused needs certain information in order to discharge the onus, then he may approach the state and the prosecutor may be obliged to lift the veil.

Thus this section is not unconstitutional.

Conclusion All provisions dealing with bail are consistent with Constitution

Promotion of the Access to Information Act PAIA

PAIA does not abolish public and private privileges which exist in terms of our common law or statutory provisions.

PAIA and mandatory protection of records privileged from production in legal proceedings

S 40 of PAIA provides that the information officer of a public body must refuse a request for access to a record of the body if the record is privileged from production in legal proceedings, unless the holder of the privilege has waived it. Non-applicability of PAIA to records required for criminal or civil proceedings

In terms of S 7(2) of PAIA any record obtained in a manner that contravenes s 7(1) is inadmissible as evidence in proceedings referred to in s 7(1) unless the exclusion of such a record by the court concerned would, in the opinion of such a court, be detrimental to the interests of justice. Essentially s 7 of PAIA is an indirect way of Page 132 of 152

encouraging litigants not to use or abuse PAIA as a mechanism for obtaining information for purposes of litigation when access to information is provided for by some other law, such as the rules governing disclosure.

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CHAPTER 12 UNCONSTITUTIONALLY OBTAINED EVIDENCE

Introduction

This topic covers a wide field. There are numerous cases relating to the admissibility of this kind of evidence. We are talking here of highly relevant evidence that is excluded on the basis of other considerations. This section is governed by section 35(5) of the Constitution: Evidence obtained in a manner that violates any right in the BoR must be excluded if the evidence would render the trial unfair or would otherwise be detrimental to the administration of justice. This section has not yet been interpreted by the CC. S 35 (5) closely resembles the equivalent Canadian provision. Thus, our courts have followed Canadian jurisprudence on this topic. Unconstitutionally obtained evidence is another rule which excludes certain relevant evidence.

Heres a practical scenario: the state obtains evidence in breach of accuseds constitutional right to not incriminate himself. Should this evidence, which is taken to be highly relevant, be excluded or not? Should the court have the discretion to decide this issue?

The Competing interests

Once again, we are dealing with a conflict of interests that needs to be kept in a proper balance: The interest of the citizen: protected against illegal or unlawful action on the part of the authorities Interest of the state: to ensure that relevant evidence bearing on the commission of a crime and necessary to enable justice to be done is not excluded on some technical ground Lord Cooper in Lawrie v Mure: Ultimately, balancing these is a matter of reconciling both, as either in the extreme is undesirable.

History of the Rule

The USA has a strict exclusionary approach to protect rights in the American BoR, and to promote substantive and procedural due process. This rule infiltrated other systems, although in a modified form, as a discretionary rule. It has also had an impact on regional and international systems and tribunals. Anglo-American systems initially relied on the English common law approach, but an emphasis on judicial integrity and the promotion of legality/protection of fundamental rights has led to the adoption of a discretionary approach either through a Constitution/BoR or by judicial creation.

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In SA, the final constitution took cue from the Canadian Charter. The adopted a via media approach as a compromise between the extreme American approach and the approach formerly in SA.

For the rationale for this approach, see the exclusionary approach below. There are three approaches used in South Africa in this regard: inclusionary, exclusionary & discretionary:

Inclusionary Approach

This is the traditional Anglo-SA approach prior to the Constitution:

All relevant evidence is admissible. The court is thus not concerned with the manner in which it was obtained. The main argument in its favour is essentially that it is pragmatic and expedient.

There is however, a qualification as per Karuma v R 1955 AC (England): this rule is subject to a very limited judicial discretion, if the strict rules of evidence operate unfairly against the accused.

The rationale behind this is that:

1. The end justifies the means This is the crux of the approach. According to the Wout, this is quite a common standpoint. It means that if there is illegal conduct on the part of the police in obtaining the evidence, but that this evidence leads to a conviction, then it is justified.

Criticism against this approach is stated by that Super-Jew Brandeis J in Olmstead v US: If the government becomes a law breaker, it breeds contempt for the law, it invites every man to become a law unto himself, it invites anarchy to declare that, in the administration of criminal law, the end justifies the means

The main counter argument: Two wrongs do not make a right

Other rationale:

a) Criminals do not restrict themselves in committing crimes so why should the police restrict their methods. Page 135 of 152

b) The probative value and the relevance of evidence is not impaired by unlawful methods employed in acquiring it. c) Exclusionary rule necessarily requires investigation and adjudication of collateral issues which blurs true issues by shifting focus on to conduct of police rather than accused. d) There are sufficient other remedies available to accused whose rights have been violated. e) Policing is social service aimed at protecting society and for purpose of effective law enforcement, society must tolerate illegal police conduct. f) Exclusionary approach has no deterrent effect

g) Not purpose of law of evidence to deter illegal police conduct and not meant to be indirect form of punishment h) Exclusionary rule protects the guilty from conviction i) Criminals do not restrict themselves in committing crimes or in the weapons or means that they use so why should the police restrict their methods j) Exclusionary rule frustrates effective policing

k) Exclusionary rule allows police to frustrate the judicial process through unlawful conduct l) Public policy does not militate against admission of unlawfully obtained evidence

m) Argued that exclusion of unconstitutionally obtained evidence is perceived by society as a condonation of unlawful acts. Argued that if an accused who is factually guilty walks free because of technical blunder by state, then the criminal justice system is held in disrespect by the public. n) Exclusionary rule may have unintended result of limiting ambit of fundamental rights in order to admit crucial evidence. o) Exclusionary approach allows no room for proportionality p) Prosecutor may accept plea of guilty on lesser offence in unacceptable circs because she is apprehensive about the operation of the exclusionary approach

There are obvious rebuttals to many of these.

Exclusionary Approach

If evidence is gathered by illegal conduct on part of the police then such evidence is excluded (bar some minor exceptions).Thus, if the police use unconstitutional methods the courts as a rule will exclude it. This is pretty much the direct opposite of the inclusionary approach and is the approach followed in the US.

The Preventative Effect Argument

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This approach influences the police to comply with the law and follow the rules in gathering evidence against the accused. Elkins v US: The purpose of rule is to deter. The rule will compel respect by removing the incentive to disregard constitutional guarantees. In this sense, the court fulfils a kind of disciplinary function. In South Africa, this approach was referred to in S v Mphala

Due Process in the context of the Bill of Rights

In the prosecution of crime, due process must be followed from the outset until the end of proceedings. Unconstitutionally obtained evidence should be excluded because if not, it will compromise other more important values. We must ensure that the conviction of the accused takes place according to a proper procedure, whereby his constitutional rights are respected throughout all the critical stages of a prosecution. This argument receives more strength when viewed in the context of a BOR that demands and guarantees it, and places important constitutional limitations on official power. It acts not as an evidential barrier, but rather as a constitutional barrier. Procedural justice must be maintained at both the gate-house and the mansion (ie. the courthouse). This famous quote is one which Wouter uses a lot.

Underlying this idea is the principle of legality: in prosecution of the accused, the state must comply with the law, and can therefore only use legal means to investigate a crime.

This may mean that in an individual case, justice may not be served because an accused who is factually guilty may walk free because of some technical blunder of the state. However, one must take into account that in terms of this approach, social justice is achieved and in this regard one can say that the integrity of the system is protected and judicial integrity is also insured.

Doctrine of Legal Guilt

The role that that the exclusionary rule plays in ensuring that the notion of legality is retained in the criminal justice system is supported by the due process doctrine of legal guilt, which essentially holds that you cannot convict someone unless you have kept all their rights in order, afforded them a fair trial and the case has been conducted in a procedurally fair manner. Good authority for this is the case of S v Lwane

Judicial Integrity

The Supreme Court of the USA have identified four facets to this approach, that in admitting such evidence: 1) courts will violate constitution; Page 137 of 152

2) courts will act contrary to oath to uphold Constitution 3) courts will be indirectly encouraging violations 4) courts will create impression that they sanction unconstitutional conduct

This argument loses ground where a discretionary rule is provided for, but must still consider these facets in exercising discretion (S v Hena)

Principle of Self-Correction

An effective due process system must have inherent ability to correct abuses within system, and it must have the inherent ability to correct abuses within the system, the moment they occur. Acceptance of this principle leads to further valid argument: the exclusionary principle it is not primarily aimed at discouraging unconstitutional official conduct, but its true purpose is to serve as an effective internal tool for maintaining and protecting the value of the system as a whole.

Primary Rules and the Secondary Rules

The exclusionary rule merely reinforces the existing rules regulating police powers. See S v Naidoo

The Exclusionary Rule in the USA

The USA, as discussed above, has a judicially created rigid exclusionary rule with judicially created exceptions thereto. These exceptions can assist SA courts in applying s 35(5).The rule is enforced by the 4th amendment, which prohibits unlawful search and seizures without a warrant and prohibits the obtaining of a warrant without probable cause.

This is backed up by case law: In the case of Weeks v US, the court dealt with the position at federal level which made evidence obtained inadmissible. Then, in Mapp v Ohio, the same principle was announced as far as prosecution at state trials level was concerned. In the textbook, there are certain principles in connection to the Mapp case. These principles limit the ambit of this decision, but not to a great extent. One of the principles is that, for the accused to request the exclusion of evidence obtained contrary to this amendment, they must have standing. To have standing, the accuseds rights must have been infringed by the conduct of the police. There are exceptions to the rule, the reasons for which are that that an inflexible exclusionary rule would over hamper the police and then they wont be able to function. Page 138 of 152

The rule and ambit of the rule as laid out in Mapp (not prescribed)

1. Accused must have standing 2. Rule does not apply to civil tax action initiated by federal govt or to evidence secured by private individual as opposed to state official 3. Real evidence excluded by Mapp can, for purpose of impeaching credibility, be introduced to contradict statement made by accused in evidence in chief or cross 4. 4th Amendment does not apply to unlawful search or seizure or property located in foreign country & owned by accused who is a non-resident alien 5. Evidence excluded by Mappcan be used by grand jury in deciding whether to indict 6. Exclusion is not required when connection between unconstitutional conduct & discovery of challenged evidence is so attenuated that dissipates the taint. There are certain exceptions to the rule, as the police would be hamstringed and not be able to function.

Good Faith Exception The policeman acted reasonably and in good faith in relying on a certain statute or a warrant. There can be no deterrent reason for excluding evidence in this case. The primary example comes from Arizona v Evans, where a policeman arrested man in mistaken belief that there was a warrant out (but it had been invalidated). But in searching him, found drugs. The court held that this real evidence was admissible.

Independent Source Exception Evidence is obtained unconstitutionally and later a warrant is secured by means of independent source. In this case, the real evidence seized in terms of the warrant will be admissible on the ground that it was secured through sources independent from and unconnected with the initial unconstitutional discovery.

The Stop & Frisk Exception Real evidence obtained during so called stop & frisk (field detention and patting down of outer clothing on basis that suspects some form of criminal activity) is admissible. Procedure is of importance in practice and principle.

The Miranda Warnings (Miranda v Arizona 384 US 436 (1966))

Youve seen this in the movies, well now you know they come from the case of Miranda v Arizona. When a person is apprehended and questioned, there is a duty on the policeman to issue certain warnings to person in detention: Page 139 of 152

Right to remain silent; if chooses to speak, whatever he says may be used against him Right to consult with a lawyer Right to have lawyer present during interrogation Furthermore, if cant afford to appoint own lawyer, one will be appointed for him at state expense

Evidence obtained in conflict with these warnings will be excluded. The purpose of these warnings is to protect the accuseds rights against self incrimination. The right to counsel was incorporated in the Miranda Warnings to secure thus purpose.

Ambit of the Exclusionary Rule in Miranda The rule is confined to custodial interrogation or where individual has been deprived of freedom in any significant way (usually when he has been detained and is to be questioned by the police). The rule is activated by express questioning and the functional equivalent [anything reasonably likely to elicit an incriminating response]. The accused can waive his rights voluntarily, knowingly and intelligently. In this case, statements obtained are admissible at a later stage. Evidence of a prosecution witness identified as a result of accuseds non-coerced but inadmissible statements obtained in breach of Miranda is admissible. Of course there are some exceptions to this rule, lets turn to them now

The public safety exception If there is a threat to public safety you dont need to receive the suspects answers from the police right away.

Impeachment Where statement was obtained unconstitutionally and the accused testifies at trial, but where there is a conflict between this evidence and the content of the statement made, the statement can be used in cross examination. However, this is for limited purpose i.e. to impeach credibility.

Inevitable discovery In the case of Nix v Williams an unconstitutionally obtained statement and pointing out (from the accused) was obtained from the police. As a result, the police found the body of the deceased. Clearly, the statements could not be allowed in as evidence. But what about the body that was found? This is derivative evidence, real evidence that is discovered as a result of an unconstitutionally obtained statement. This normally suffers the same fate of the statement.The court allowed the evidence as to the condition of the body. This was because, according to the evidence, it was inevitable that the body would have been discovered 200 volunteers Page 140 of 152

&policemen used a grid search method. It was clear they would have found her and this evidence would have been allowed. This is a bit haphazard in its approach, what now if the search party was much smaller, or did not have this instrument. Where do you draw the line?

Evidence obtained contrary to these rules will be inadmissible and will be excluded.

S 24(2) of the Canadian Charter (this is the discretionary approach)

We now turn to the position in Canada. Our courts have shown an inclination to seek support from the Canadian Supreme Courts, which means youd better love this section.

Where a court concludes that evidence was obtained in a manner that infringed the rights or freedoms of the Charter, the evidence shall be excluded if having regard....

1. According to the Canadian approach, the court must first make a factual finding as to whether there was an infringement of a right protected in the Charter. Ie. Will the trial be fair or unfair? 2. Secondly, the court must make a value judgement, having regard to all the circumstances of the case, to determine if admission of the evidence would bring the administration of justice into disrepute. Thus the court exercises some discretion. It must consider all factors relating to the seriousness of the potential infringement. 3. If it would bring the administration of justice into disrepute, then the court MUST exclude the evidence. They have a duty to exclude it.

The Impact of the admission of the evidence on the fairness of the trial

If found to render the trial unfair, the evidence must be excluded without considering factors relating to seriousness of breach or the effect of the exclusion on the repute of the system.

We now turn to some very important Canadian cases, thatWouter did extensively in class, so pay attention.

R v Collins 1987 28 CRR 122 (SCC)

The police were keeping certain people under surveillance by a drug squad. At some stage, the accused and another man left a pub. They were being watched because there was a suspicion that they were holding onto some nice heroin. They were arrested and the drugs were found on them.The police officer then entered the Page 141 of 152

pub and grabbed the accused by the throat, pulling her to the ground. She was holding onto a balloon filled with heroin. The throat grab was to prevent the drugs from being swallowed. Facts show that the force was considerable, yet the policeman had a reasonable suspicion to infer that the woman was holding onto drugs.

It was quite clear the action of the policeman was unlawful and contrary to the rights in the charter. What about the evidence that was discovered? Was this heroin in her hand now inadmissible?

The trial court held that the search of the accused was unlawful, but nevertheless the court admitted the evidence because the court was of the view that it should not be excluded in terms of 24(2).

On appeal to the Supreme Court: (Majority) Judge Lamer-

Firstly, the broad test that the court laid down in applying this provision (would the admission of the evidence put the admin of justice in disrepute?) must be considered from the perspective of a reasonable man. Would a reasonable person in this situation see the administration of justice in disrepute? This is thus an objective test.

The court then laid down certain factors which they need to take into account:

1. Fairness of the trial Would admission of the evidence render the trial unfair? If yes, then the evidence must be excluded. Real evidence that was obtained (physical evidence, not statements or pointing out) in a manner that violated the character of the Charter will rarely operate unfairly for that reason alone. The real evidence already existed and did not come into being as a result of the infringed right. But totally different considerations apply when the accused is compelled to make a statement or forced to point out something (testimonial evidence). In this case, he is convicting himself from his own mouth. In this scenario his right to self incrimination is infringed.

2. The seriousness of the Charter Violation Was the infringement trivial or very serious? The court must look at the actions of the police. Assault would be serious, as would the exclusion of all warnings. The court must also consider the urgency and risk of losing the evidence etc.

3. The court must consider the effect of excluding or admitting the evidence To what extent would the inclusion/ exclusion of the evidence have on the repute of the administration of justice? Page 142 of 152

Thus, the court held that the manner of arrest was a serious infringement on the rights of the accused. An appeal was allowed. In the end, the court did exclude the evidence even though it is not self-incriminating because of the manner of the arrest.

R v Burlinghan

The accused was charged with the murder of two women. The case dealt with the murder of one of the women.The circumstances were similar in both cases: there was evidence of sexual intercourse and both women was shot in the head. Whilst he was in custody, police did a few things that affected the evidence that was discovered. They persistently and vigorously questioned him although he said he wanted to consult his lawyer. Further, they made denigrating remarks about the counsel whom he eventually got in touch with. They also deceived him with a plea bargain, claiming that they would only charge him with second degree murder which was only on offer over a weekend when the counsel was not available. He agreed to this and, after giving a full confession, took them to the place where he hid the gun, which was under a frozen river. Afterwards, he made a statement to his girlfriend to the effect that he had taken the police to place where he took the gun and something to the effect that he knew something about the death of that woman.

The trial court held that any statement he made or anything he pointed out was not admissible because his rights in terms of the Charter were infringed. However, the court allowed the finding of the gun and the evidence of his girlfriend.

Supreme Court issues: 1) Was the accuseds right to counsel infringed by the actions of the police? 2) If yes, then what was the effect thereof? Must all the derivative evidence be excluded? Issue (1) The accuseds right to counsel was clearly infringed because of the manner of questioning (continuing & persistent despite request for lawyer), the denigrating remarks regarding counsel and the way the plea bargain was presented.

Issue (2) The court was asked: Does S 24(2) have the effect that all derivative evidence should be excluded? I.e.The finding of gun & statement to girlfriend. The court held that derivative evidence is the fruit of the poisonous tree. Page 143 of 152

The court pointed out that the gun is real evidence and said that, if they go on authority of R v Collins, then the finding of the gun in and of itself should not operate unfairly against the accused.

However, the court pointed out that, in subsequent cases, the courts had moved away from the differential treatment of real and testimonial evidence. The admissibility of evidence (under s24 (2)) obtained in such a manner depended ultimately not on the nature of the evidence but whether it would only have been obtained without the compelled assistance of the accused.

The court then looked to position on gun. They acknowledged that it would never have been found if it were not for the malicious actions of the police against the accused. Therefore, the evidence regarding the finding of gun should be excluded.

Regarding the statement to the accuseds girlfriend: the court pointed out that a close link existed between the statement made to his girlfriend and the treatment he received from the police. Because of this close link, this derivative evidence should also be excluded. It would also not have happened had he not been treated in the way he had by the police.

Thus, the appeal was allowed and a retrial was ordered.

Thus, the court started moving away from the framework of the Collins case. They went a step further in R v Stillman.

R v Stillman 1997 42 CRR (2d) 189 (SCC)

This case received a lot of criticism.

A 17 year old minor was charged with the murder of a 14 year old girl. There was a possible rape involved, but he wasnt charged or convicted for that. He immediately got hold of two lawyers who told the police he would not give bodily samples or statements. Soon after the lawyers left, the police started to systematically take bodily samples from him. They took hair from his scalp and his pubes (no jokes, Wouter said this). They took imprints of his teeth to match the bite marks on her abdomen. There was an interval, and then he was questioned. He asked to go to the bathroom and he blew his nose, he discarded the tissue and the policeman picked up the tissue and used that for DNA analysis. He was released and rearrested. They then took saliva. All this was obtained against the instruction of the attorneys and was presented at the trial court. The court admitted all the evidence.

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There was no provision at this time allowing the police to take samples. Thus this action clearly was an infringement of the section of the charter dealing with search and seizures.

On appeal, it was questioned whether or not it was admissible or not.

The court retained the framework from Collins. The same three factors were kept in place (the fairness of the trial, the seriousness of the charter violation, that the court must consider the effect of excluding or admitting the evidence).

The court followed a totally different approach with regard to the factor regarding the fairness of the trial. The reasoning in Burlingham was taken further and confirmed: this case provided a systematic analysis of fair trial analysis. As the first step in fair trial analysis, there must be a distinction drawn between conscriptive evidence (where the accused was compelled) and non-conscriptive evidence (where he was not compelled).

The court held that whether the evidence is real or not is not relevant to application of s 24(2). The principle that privilege against self-incrimination is only applicable to testimonial evidence should be rejected).

What matters is whether it is conscriptive or not-conscriptive. If it is compelled (conspriptive), this would render the trial unfair as the compelled use of body or provision of bodily samples will generally result in unfair trial just as surely as a compelled statement. If it is not compelled (and thus fair), the court must look at the other two factors from Collins case: It must consider the seriousness of the violation and the effect of exclusion on the repute of the administration of justice

However, where the challenged evidence would have been discovered in the absence of unlawful conscription of the accused, then admission will not render the trial unfair. This can be illustrated this by either (1) an independent source or (2) an inevitable discovery.

The taking of bodily samples of the accused against the wishes of the accused also infringes his right to self incrimination this is trite as it is only with regard to testimonials NOT applicable to real evidence (this includes bodily samples).

Thus the majority took the view that his rights were infringed because the defence had already stated that they were not going to making any statements or give any samples. The defence said that the evidence contained in the tissue, the actions by the police were not flagrant thus it was not conscriptive. And so this evidence shouldnt be excluded (the evidence towards the tissue).

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So it was ordered to have a re-trial where only the tissue would be admitted

The Stillman case is influential in our courts as we have turned our back on Collins and used the Stillman approach. See the Thandwa case.

R v Grant

This case came 10 years after Stillman. It vindicated many of the critics of Stillman.

Three police officials were patrolling an area at a school which was notorious for drug dealing. Two of the policemen were in plain clothes and in an unmarked car. One was in uniform in a cop car. A guy walked past, saw the uniformed cop and got nervous. The three policemen approached and cornered him. The one policeman asked whether he had something he shouldnt have and he replied that he had a loaded revolver and a bag of weed.

In the Supreme Court, it was found on the facts that the accused had been detained at the stage when the police asked him the question have you got something you shouldnt have? But until he himself came out with the incriminating evidence, they didnt have a reasonable suspicion to detain him and thus this was an arbitrary detention. The infringement of his right arose as he was already detained and then asked a question while at no stage was he warned about his right to counsel. Thus, this was an infringement of one of his charter rights. (he was detained in the sense that they cornered him and he felt he could not escape them).

The second issue regarded the admissibility of the gun as evidence. Was it allowed?

The judge here was in the minority in the Stillman case. The broad test is whether a reasonable person, informed of all relevant circumstances and informed of the charter, would consider the admission of this evidence as bringing the administration of justice into disrepute (effectively the objective bystander test).

The court decided it was necessary to restate the position due to the heavy criticism that theyd received postStillman. They laid down a new framework to apply this provision. When faced with an application for exclusion, the court must assess and balance certain factors. When faced with an application for exclusion under S 24, the court must balance the effect of admitting the evidence with the societys confidence in the justice system. The new approach involves the following three factors:

1. The seriousness of the charter infringing state conduct (ie. How serious was the polices conduct). Page 146 of 152

a. The more series, the higher the chance that the court will exclude the evidence (naturally, otherwise it would look as if the court is associating itself with the police) 2. The impact of the breach on the charter protected interest of the accused a. Again, the more serious the impact on the accused, the higher the chance that the court would not allow the evidence. 3. Societys interest in the adjudication of the case and its merits (ie. the goal of finding the truth vs. the rights of the accused) a. What is the reliability of the evidence? b. How important is this evidence for the states case?

The court then looked at the different types of evidence. Regarding the statements by the accused - the privilege against self-incrimination is of great importance. Regarding bodily evidence - here, they distance themselves from Stillman. Stillman has been criticised for casting the flexible for all circumstances test into a straight jacket (conscriptive / nonconscriptive) that determines admissibility solely on those two factors rather than considering other, perhaps important, factors.

The court recognized that different considerations apply to bodily evidence. Privilege against self-incrimination only refers to statements, not bodily evidence. Thus the court put the privilege against self-incrimination in the CORRECT perspective again.

Non-bodily evidence (e.g. a murder weapon etc) - Here, they also referred to derivative evidence, which is physical evidence that is derived from an unconstitutionally obtained statement.Having distinguished all these types, the same approach or factors must be applied to ALL of these different types of evidence. Thus, in each case where the admissibility of evidence is concerned, the court must apply these factors.

The court then applied the factors to the facts. They concluded that the action of the police was not really abusive or flagrant as it wasnt clear to them that they had detained him (in their mind they had just stopped him on the street and asked him a question, he came forward and told them things he should not have, which is not their fault). As the legal position was uncertain, the evidence was rightly admitted and so the appeal was dismissed.

From an SA perspective:

The differentiation between real and testimonial is a valid distinction in the context of the privilege against self-incrimination and for the purpose of a fair trial. The court must always consider the further question of Page 147 of 152

whether it will be detrimental for the administration of justice.For example, if the police enters a persons house in the middle of the night without a warrant and find an incriminating object there, there is no infringement of privilege against self-incrimination.

Factors relevant to the seriousness of the Charter violations

In R v Therens the court notes that in these types of cases one must determine whether the violationwas committed in good faith, inadvertentlyor of a technical nature or was it deliberate, willful or flagrant? Or was it motivated by urgency or necessity to prevent loss or destruction of evidence?

In R v Greffethe court noted that there is no exhaustive list of factors. The cumulative impact of all factors must be taken into account in assessing seriousness of the Charters violation.

Effect of exclusion on the repute of the administration of justice

The key question to ask is it would bring the administration of justice into disrepute in the eyes of the reasonable person, dispassionate and fully apprised of the facts of the case?

Anglo-South African Common Law Inclusionary Approach

Back in the day, if the evidence was relevant, it was admissible. The court was not concerned with how it was obtained. There was a limited qualification as seen in the Roomer case (from English law): in a criminal case, the court always has discretion to disallow evidence if the strict rules of admissibility would operate unfairly against the accused.

In S v Forbesthe accused was sent for mental observation. There was a question as to his mental capacity at the trial. Whilst at the institution, he made a confession to one of the doctors. The state wanted to present this as evidence.The court held that it had discretion to exclude relevant evidence such as this based on public policy. Here it was excluded for such considerations.

In the case of Hammer, the same approach was followed. Young man being held in custody awaiting trial. He wrote a letter to his mother while in jail. Police intercepted the letter which contained incriminating evidence. Because of the devious conduct of the police the court excluded the evidence based on public policy and fairness to the accused Page 148 of 152

In S v Nelthe judge refused to accept evidence, exercising his discretion to exclude the evidence. The court held that unlawfully obtained evidence could be excluded only where: (1) The accused had been compelled to provide evidence against himself; (2) The evidence had been obtained by duress from an accused

Today S 35(5) is applicable where evidence is obtained by infringing a constitutional right: Evidence obtained in a manner that violates any right in the Bill of Rights must be excluded if the admission of that evidence would render the trial unfair or otherwise be detrimental to the administration of justice.

In this regard, the common law discretion is still applicable, as the evidence can be obtained unlawfully or improperly but without infringing a constitutional right.

According to Kidson the common law discretion is still applicable, but it must be exercised in the context of what was held in this case. Even where a constitutional right wasnt infringed, the admissibility of evidence should still be broadly considered more or less in same manner as s 35(5). This means that the court must consider both legs, namely whether it would infringe the right to a fair trial and whether it would be detrimental to the administration of justice.

The court held that the evidence of a covert recording was held to be admissible: It was not prohibited by the Act; there had been no entrapment; no guile, no untruth or deception which amounted to unacceptable police conduct; and even if there was a contravention of the Act, it was formal and minimal.

Thus, the conduct of the police accordingly provided no ground for exclusion and admission could not have rendered trial unfair.

The Interim Constitution

The IC did not contain any express provision governing the admissibility of unconstitutionally obtained evidence. But of course there was a right to a fair trial which required an immediate and fundamental reappraisal of SA jurisprudence on admissibility. The courts responded by citing various reasons for excluding evidence that would previously have been admitted:

Protection of the Constitutional Right to Fair Trial

S 25 dealt with right to fair trial. This is a broad right which included under it a number of other rights.The cases dealing with this issue under the IC are not all uniform. However, we can say that the right to fair trial Page 149 of 152

was used in number of cases as the basis of exclusion of evidence, especially in the case of testimonial evidence. In these cases, discretion was exercised by the court

In S v Melanithe court first pointed out the importance of the right to counsel and the importance of informing the accused of their right to counsel. This right is used mostly to protect other rights. This was also held in the Miranda case (see above): the rights to remain silent, the right against self-incrimination and the right to be presumed innocent.The Constitution makes it abundantly clear that this protection of arrested person exists from the inception of the criminal process right throughout until the conclusion of the trial. The court held further that this protection has nothing to do with the reliability of evidence, but has everything to ensure that accused is treated fairly throughout the entire criminal process.

The court refers to two concepts (Wouter loves these so you better make sure you know them):

1. The gate house this refers to the police station and interrogation process 2. The mansion this refers to the court house and where the trial takes place It doesnt help that you have most fair procedures in the world in the mansion if in the gate house police can use any imaginable method to get information out of the accused. Say this an youll be considered a genius.

What emerged from this case, and several others, is that the failure of the police to inform the arrestee of his relevant constitutional rights at every critical stage would, as a general rule, require the exclusion of all testimonial communications.

Discretion to Exclude Unconstitutionally Obtained Real Evidence S v Motloutsicovers this area. We dealt with it in Criminal Procedure. Here it is again. This is not prescribed (even though its in the course outline). So this is only for you guys who loved CrimProc and want to remember what it felt like.

The accused was arrested. A few hours after his arrest, the po-po went to his house (at 3am) and found the owner there. It transpired that the accused was renting a room in his home.

The police asked permission to search were allowed by the owner, although they had received no consent from the accused. The search took place without a warrant although the police could easily have obtained a warrant. Thus, the search was not in accordance with legal requirements.The court found that the permission

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that the owner gave was not valid permission with regard to searching the accuseds room. The police found blood stained bank notes there. As you can guess, the issue was whether this evidence was admissible.

The court held that, regarding the accuseds rights, the police action amounted to a conscious and deliberate violation of the accuseds right to privacy. This is what court focused on (invasion of privacy), and thus the privilege against self-incrimination did not arise. Therefore, trial fairness was not the ground for exclusion of the evidence.

The court held that, in a non-constitutional context, it has the discretion to exclude evidence. Therefore, it clearly has similar discretion in a constitutional context. The court referred to Mapp v Ohio (see above), but declined to follow the exclusionary rule therein as it was held to be too strict. The court also referred to the test in the Canadian Charter, but found that this is too narrow an approach.

Thereafter, the court referred to an Irish case People v OBrien, and followed the approach taken therein: Where there was a deliberate, conscious violation of the accuseds constitutional rights, then, as a general rule, the court will exclude such evidence unless there are extraordinary excusing circumstances.

The court ultimately excluded the unconstitutionally obtained evidence as its probative value was outweighed by the fact that the constitutional rights of the accused had been infringed.

S v Mayekiso followed the case above. In this case there was no evidence that an unconstitutional search and seizure had taken place with a view to preventing imminent destruction of significant evidence.

In the exercise of its discretion, the court should weigh up objects of the IC (Human rights protection) against policy considerations (the interest in justice being done). Again the court excluded unconstitutionally obtained real evidence because limited probative value was outweighed by breach of constitutional rights

Public Opinion and Repute of the System

Although the courts are accountable to the public, they should not seek public popularity. The interests of society do not displace the longer term purposes of a Constitution which limit government power and seek to establish a democratic order based on recognition of human rights.

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Despite denials to the contrary, the courts were clearly concerned with the administration of justice being brought into disrepute. FarlamJA in Motloutsi said that this was an NB factor, but too narrow in itself. However, in several other decisions, the courts came close to adopting this approach c.f. Canadian Charter and, in one case, Malefo, it was adopted in toto.

EXAM up to an including the interim constitution in unconstitutionally obtained evidence. Character is included but chapters dealing with electronic evidence excluded

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