TIPS ON HOW TO ANSWER A QUESTION
-Identify and state the central issue of a particular question. This should be done with reference to the facts of the question and a definition. Always consider that more than one issue could be involved.
-Always give a definition of the particular concept or type of evidence you have identified.
-State the general rule regarding admissibility or the type of evidence and mention all the exceptions.
-Discuss the relevant exception or give a general discussion of the law applicable to the specific issue involved. The marks set at a specific question will be the best indication of the amount of information you should give. Never forget to discuss cases and legislation.
-Give a motivated conclusion with reference to the facts of the question.
WHAT IS MEANT BY "RELEVANCE"?
Generally, there needs to be a logical connection between the issues of the case before the court and the evidence that stands to be admitted in order for it to be relevant. This logical relevance is a matter of common sense, but is easily complicated by any attempt to define it in greater detail.
We will give you two examples, one involving facts that are clearly highly relevant and the other referring to facts that are clearly irrelevant.
The accused is charged with shoplifting. The facts that the owner of the shop saw her taking an item from a shelf, hiding it under her sweater, walking out of the shop without paying for the item and being caught outside the shop in possession of an item with the shop's price tag on it, are all clearly relevant to the question whether the accused stole that particular item.
The accused is charged with shoplifting. The fact that she has blond hair, or that she is a good netball player, or that her brother plays lock for the school's second rugby team, definitely has nothing to do with the question whether she stole the particular item.
Evidence about these facts would clearly be irrelevant.
Discussion classes notes Strategic answering of questions in an exam
1. Similar Fact Evidence
1st: Define the Evidence
Similar fact evidence is evidence about a fact which is similar to a fact in issue. The purpose of similar fact evidence is to show that, on other occasions, a party to the proceedings acted in a similar manner to that presently being considered by the court.
Two forms of facts here:
1. Facts before the court (case currently being dealt with)
2. Facts which are similar to facts before the court ( for example, accused previous conviction which is similar to the current case )
The accused is charged with shoplifting. The fact that the accused has previously been convicted of shoplifting is a similar fact.
The state alleges that the accused has committed a number of murders in a similar manner (a typical serial killer). The facts of any one of these murders will be similar to those related to all the other charges of murder.
Requirement of similar fact evidence
1. There must be logical connection between the similar fact evidence and the fact in issue
2. It must have sufficient probative value to warrant the reception
3. It must give rise to reasonable inferences in deciding the facts in issue.
4. Makin v Attorney General for new South Wales 1894 (PC) 65 4.1 It was stated that one may not reason that because the accused committed a similar crime in the past, he has criminal character and therefore indeed committed the offense for which he is being tried 4.2 If the evidence is tendered for this purposes , it will not be sufficiently relevant and will therefore be inadmissible
5. R v Davies 1925 AD 30 5.1 It was found that evidence of the fact that the accuses had indecent photographs in his possession was not admissible on a charge that he had committed indecent acts with another man since the only purpose of this evidence was to establish that the accused had sexually deviant character.
6. Case laws: Harris v DPP It was stated that the second principle in Makin cases does not cover all the aspect related to similar fact evidence - There are other grounds for admissibility, what is important however is that Makin stresses relevance as the true criterion for the admissibility of similar fact evidence
7. DPP V Boardman 7.1 The Court stresses that, when one deals with similar fact evidence, the, most important aspect is the application of the general principle: similar fact evidence will be admissible when the evidentiary value thereof out weights the potential for prejudice
7.2 This formulation is accepted by our supreme court of Appeal in S v D 1991 (2) SACR 543 NB: Always motivate your answer by applying the facts: It can score you a good 1 mark
2. Previous Consistent Statement
1st: define the evidence
- A previous consistent statement is a statement made by a person testifying before court, prior to the testimony.
- The prior statement is consistent with
- a statement made by the same person (or another witness on behalf of the same person) during testimony in court
- Offered in an attempt to corroborate the evidence tendered before court.
- Generally, evidence about a previous consistent statement is not admissible because it is irrelevant.
2.2 Refer to S v Cornick 2007 (2) SACR 115 (HHA)
2.3 Exceptions: -
(a) Prior Identification (S V Moti 1998(2)SACR 245(SCA)
(b) To rebut an allegation of fabrication (Read Schwikkard ss95)
(c) Complaints in Sexual cases (Sv Cornick 2007 (2)SACR 115 (HHA)
2.4 Explanation of each scenario is important for one to gain impressive marks. Mentioning a case, facts and reasoning of the mentioned case is also important.
EXCEPTION TO THE GENERAL RULE
- There are exceptions to this rule. For example, cases involving complaints in sexual cases.
- Evidence about a complaint made soon after an alleged offence of a sexual nature are admissible as evidence that such complaint is made and evidence about the contents of the complaint.
- S v Hammond 2004 (2) SACR 303 (SCA), the rationale behind admitting this evidence is for credibility purposes only and it is not corroborative. It proves consistency in the account given by the complaint and absence of consent.
- Evidence that the victim in an alleged sexual offence made a complaint soon after its occurrence.
- The complaint serves to rebut any suspicion that the complainant has fabricated the allegation.
- According to Section 58 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, the court may not only draw inferences for lack of previous consistent statements in cases involving complaint on sexual offences.
- The exception applies in the following cases of sexual nature (1) rape (2) indecent assault - (3) Incest. These are identified or classified by some degree of assault; physical contact except in young children.
- The complaint must have been made at the first reasonable opportunity.
- Reasonable opportunity depends on the circumstances of the individual case, for example, in R v Gow 1940(2) PH H 148 (C), the court found reasonable a complaint which was made later to the mother instead of immediately to the train driver.
- No adverse inference can solely be drawn pertaining to the delay in reporting the incidence, see Section 59 of Criminal Law(Sexual Offences and Related Matters) Amendment Act 32 of 2007
- The complaint need not have been made totally spontaneous, but may not have been made after questioning which can be described as intimidating or leading.
- The court must decide how much intimidation it will allow before the evidence will become inadmissible. Mentioning of facts in S v T
- The complainant has to give evidence. If not, the evidence will be hearsay. Mentioning of facts in S v R will score you a mark
3. Expert Evidence /Opinion Evidence
Expert evidence is admissible when it can assist the court. This is an application of the Vilbro-rule. (read R v Vilbro)
In civil cases, parties must give notice of their intention to rely on expert evidence.
In criminal cases, the prosecution is required to disclose expert evidence before the trail starts. The following three requirements must be met before such evidence will be admissible:
The court should be satisfied that the expert is capable of giving evidence about the specific issue.
A foundation for the expert’s expertise must be established. His qualifications, practical experience in his field, and his previous track record are all important in this regard.
The court must be informed of the reasons and grounds upon which the opinion is based.
This will enable the court to compare the expert’s findings with other findings of fact in the particular case to see whether the expert’s findings are corroborated by them. S v September The court need not rely on the opinion of an expert.
If, however, the evidence is of such a techni. Bonus remarks An expert that uses textbooks must not merely convey the textbook’s opinion to the court, since that will be hearsay. He must have personal knowledge of the subject in question and should use a textbook to refresh his memory or to explain or support his opinion.
A confession is unequivocal admission of guilt, equivalent to a plea of guilty. See R v Becker.
(1) All elements of an offence are admitted and the statement contains no exculpatory part. The Court in S v Yende held that in order to decide whether a statement amounts to a confession,
a) the statement must be considered as a whole. One should take cognisance of what actually appears in the statement and what is necessarily implied from it.
b) If there is doubt in respect of the above, then the statement is not a confession, as it does not contain a clear admission of guilt.
c) The court also held that an objective, rather than a subjective approach was suitable, since one is concerned with the facts which the accused states rather than the intention behind it.
d) The application of an objective standard does not mean, however, that all subjective factors are left out.
e) The state of mind or intention of the declarant will sometimes be taken into account as one of the surrounding circumstances from which the objective meaning of his statement can be ascertained.
f) The true meaning of a statement can often be decided only by taking the surrounding circumstances into account.
Requirement of a confession
Section 217(1) of the Criminal Procedure Act contains three basic requirements for the admissibility of all confessions.
-Freely and voluntarily. This means that the accused should not have been induced by any promise or threat from a person in authority.
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