LEV3701 Assignment 1 (DETAILED ANSWERS) Semester 1 2024 (150017) - DISTINCTION GUARANTEED

LEV3701 Assignment 1 (DETAILED ANSWERS) Semester 1 2024 (150017) - DISTINCTION GUARANTEED - DISTINCTION GUARANTEED - DISTINCTION GUARANTEED Answers, guidelines, workings and references ............ Consider the following statements about the relevance and admissibility of evidence and choose the correct statement: © 1. Facts relevant to the facts in issue may become in issue themselves. An example would be the reliability of a witness. 2. A finding by a court that a piece of evidence is inadmissible due to irrelevance is final and cannot be reconsidered during the same trial. 3. During a trial, the court must first consider the competency of a witness, then the admissibility of evidence, and finally the weight or persuasive value of evidence. The “weight” of evidence therefore plays no part when the court considers the admissibility of that evidence. 4. Irrelevant evidence will never be admissible, but relevant evidence will always be admissible. X and Y are accused of removing Y's son from the custody of Y's estranged wife (W) and kidnapping him to an unknown destination. W was an eyewitness to the kidnapping. Consider the following statements, and choose the correct option 1. Xcan compel Y to testify in defence of X. © 2. Ycancompel W to testify on his behalf. 3. Y can compel X to testify in defence of Y. 4. Xcan compel W to testify on his behalf lear my choice In the case of an alleged offence of a sexual nature, evidence of a previous consistent statement will inter alia be admissible if the complaint was made ... © 1. atthe first reasonable opportunity, but not later than 48 hours after the offence was committed. © 2. atthe first reasonable opportunity, but not later than 24 hours after the offence was committed. © 3. atthe first reasonable opportunity, and this could be weeks later, depending on the circumstances of each individual case. © 4. atthe first reasonable opportunity, but not later than 12 hours after the offence was committed. Clemy achroic e In S v Ndiki and Others [2007] 2 All SA 185 (Ck) it is explained that if a computer print-out contains a statement of which a person has knowledge and which is stored in the computer's memory, its use in evidence depends upon the credibility of an identifiable person. It would therefore constitute — © 1. realevidence. © 2. evidence of uncertain classification. © 3. hearsay evidence. © 4. documentary evidence. Clemy achroic e Consider the following statements about admissions and confessions and choose the correct option: © 1. Ifthe content of a statement does not expresasdmlit ya ll the elements of an offence, but does so by necessary implication, then the statement amounts to a confession. © 2. Astatement madeto a friend (who is not also a peace officer), will in principle be a confession, if the statement was freely and voluntarily made, while the declarant was in his sound and sober senses and without being unduly influenced thereto. © 3. Astatement that contains the words “made without prejudice” can never be disclosed. © 4. Since an admission amounts to a statement adverse to the person making it, no person can ever make an “admission” which will be held against another person. Clemy achroic e Arobbery is committed at a house in Sunnyside, Pretoria. A suspect, D, who matches the general description of a person seen in the vicinity of the house is arrested. A fingerprint and a footprint are found at the scene and compared to those taken from D. Consider the following statements and choose the correct option: © 1. Footprints will usually constitute direct evidence. © 2. The two sets of fingerprints will be enlarged and compared, and if seven points of similarity are found, this will usually amount to proof upon a preponderance of probabilities that the same person made both prints. © 3. Footprints require an explanation by an expert and the court is obliged to accept the expert's opinion as to the identity of footprints. © 4. Fingerprints may constitute real or circumstantial evidence. Clemy achroic e pSC Consider the following statements about hearsay evidence and choose the correct option: oO O 1. If all the parties to an issue agree to the admission of hearsay evidence, that evidence will no longer be hearsay and consequently becomes admissible. 2. Although a court has a discretion to allow hearsay evidence, this discretion will more readily be exercised in criminal- than in civil matters. 3. The court's approach in McDonald's Corp v Joburgers Drive-Inn Restaurant 1997 (1) SA 1 (A) provides a good example of how the common law hearsay-exceptions should today be handled. 4. The main reason for the inadmissibility of hearsay is that the witness who gives the hearsay evidence cannot guarantee its reliability. Clear my choice Consider the following statements and choose the correct option: O1. O02 o3. O4 An unfavourable witness is someone who testifies with the intention to prejudice the case of the party who called him. A witness who wishes to rely on privilege, such as the privilege against self-incrimination, may refuse to enter the witness box. In civil proceedings, the spouse of a party is always a competent and compellable witness for and against the party concerned. The law relating to the competence and compellability to testify is controlled by a residuary clause in the Criminal Procedure Act 51 of 1977. Clemy achroic e Mr A and Mr B are jointly charged with the murder of Mr A's brother, C. Mr A and Mr B are married to Mrs A and Mrs B respectively. Consider the following statements and choose the correct option: O01. 02 03. O4. Mrs A can be compelled to testify in defence of Mr B. Mrs A can be compelled to testify against Mr A. Mr B is competent to testify in defence of Mr A. Mrs B can be compelled to testify against Mr B. Clear my choice Considetrhe following statements and choose the correct option: O01. 02 03 oO 4 The law of evidence is part of the substantive law, since the substantive law determines what elements must be proved in court before someone will be guilty of a crime. Roman-Dutch law is the common law of South Africa and therefore constitutes the historical source of our procedural law. Section 206 of the Criminal Procedure Act 51 of 1977 is a residuary section, because it provides that the law pertaining to the competency, compellability or privilege of witnesses which was in force in criminal proceedings on 30 May 1961, shall apply in any case not expressly provided for. In terms of section 35(1) of the Constitution, every accused person has the right to adduce and challenge evidence. Clemy achroic e pSC Consider the following statements about opinion evidence and choose the correct option: © 1, The court in Hollinv gHtewtohonrn [1943] 2 All ER 35 decided that the finding on an issue in a civil trial cannot serve as proof of that issue in an ensuing criminal trial, since the onus of proof in criminal matters is higher than in civil matters. © 2, Because of the complicated nature of civil proceedings, parties must give notice of any intention to rely on expert evidence, but in criminal cases the prosecution is not required to disclose expert evidence before the trial starts. © 3. When an expert refers to textbooks while testifying in court, he must not merely convey the author's opinion to the court, since this will constitute hearsay evidence. © 4. Opinion evidence is generally inadmissible because it amounts to evidence of previous consistent statements. Clear my choice Consider the following statements about previous consistent statements and choose the correct option: © 1. There is question of a previous consistent statement when, during testimony in court, a witness repeats a statement consistent with one made on a previous occasion to corroborate his evidence. © 2. The rule against the admissibility of evidence about a previous consistent statement is actually a rule against the admissibility of similar fact evidence. © 3. Section 59 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 determines that, in criminal proceedings involving the alleged commission of a sexual offence, the court must draw a negative inference from the long delay between the alleged commission of such offence and the reporting thereof. © 4. If itis suggested or alleged (mostly during cross-examination) that the witness has recently fabricated a part of his evidence, evidence may be led to show that the same thing was said at an earlier opportunity. This evidence is only tendered to show that he did not recently fabricate the evidence to support his credibility. The evidence is therefore relevant for this purpose (to support the witness's credibility), and essentially corroborates the witness's evidence. Clemy achroic e Consider the following statements about real evidence and choose the correct option: © 1. When the court adjourns to accompany the parties to an inspection of the scene of an incident or crime, what is found at the scene is considered real evidence. © 2. The behaviour of an accused in court will sometimes constitute circumstantial evidence. © 3. Anexpert is often called to explain an object or its operation. In such a case, the expert's evidence will constitute real evidence, © 4. The testimony of an eyewitness in a murder trial that he saw the suspect running from a house with a bloody knife in his hand, and that upon further investigation, he found the victim fatally stabbed inside the house, is real, direct evidence. Clear my choice Consider the following statements and choose the correct option: © 1. Discovery entails a written affidavit listing all possibly relevant documents in the possession of the declarant party or his lawyer. This procedure is used in both criminal and civil cases. © 2. When a document has been authenticated in its country of origin, it is unnecessary to prove the authenticity of such a document in a South African court. © 3. Incriminal proceedings, an original official document may only be produced upon an order by a Director of Public Prosecutions. © 4. In Sv Ndiki and Others [2007] 2 All SA 185 (Ck) it is explained that if a computer print-out contains a statement of which a person has knowledge and which is stored in the computer's memory, its use in evidence depends upon the credibility of an identifiable person. It would therefore constitute real evidence. Clear my choice pSC While presenting the state's case on a charge of escaping from prison, the prosecution wants to present evidence about the accused's latest previous conviction. Consider the following statements and choose the correct option: O1. 02. 03. O4 The evidence falls under state privilege and is therefore inadmissible. The evidence is inadmissible in terms of section 211 of the Criminal Procedure Act 51 of 1977. The evidence is admissible in terms of section 211 of the Criminal Procedure Act 51 of 1977. The evidence is similar fact evidence and therefore admissible. Clemy achroic e Consider the following statements and choose the correct option: O1. 02. O38. O4. Photographs may sometimes constitute real evidence, particularly when the photograph is used to represent some situation and that situation is the subject matter of a court case. The word “document” is a very wide term and includes pictures and photographs. A dispute about the authenticity of a document is dealt with by way of a trial within a trial. Section 212 of the Criminal Procedure Act 51 of 1977 provides that certain evidence can be presented in a written form, such as by an affidavit or certificate. Such evidence is documentary evidence and the normal requirements for the admissibility of documentary evidence are applicable to such evidence. Clear my choice During a civil matter, the plaintiff wants to present the record of a witness's evidence in a criminal trial based on the same facts, as evidence against the defendant. The evidence will be: O O ° oO 1. admissible opinion evidence. 2. evidence about a previous consistent statement. 3. hearsay evidence. 4. similar fact evidence. Clear my choice pSC Consider the following statements and choose the correct option: © 1. If awitness is re-examined on a new matter, the opposing party will have the right to 02. Cc cross-examine the witness on this new matter. In civil cases the court may, out of its own accord and without the consent of the parties involved, call witnesses. Awitness in a criminal case can refuse to answer a question that is relevant to a fact in issue if such an answer can prove civil liability on his part. Refreshing of memory by a witness usually occurs during cross-examination when a witness can no longer accurately recall the events on which he is being cross-examined. lear my choice Cocky is arrested for stabbing his wife with a knife. As the arresting police officer is explaining the reasons for his arrest, Cocky exclaims: "But | de’ O11 02 03. o4 fended myself!” This statement is ... a formal admission. hearsay evidence. a confession. an informal admission, Clear my choice Consider the following statements and choose the correct option: © 1. Section 192 of the Criminal Procedure Act 51 of 1977, which deals with the competence and compeliability of witnesses to testify, refers to the residuary provision in section 206 of the Criminal Procedure Act. This means that English law, as it currently applies in England, is applicable. © 2. The law of evidence is unique because it is part of the substantive law and the adjective law. © 3. The Roman-Dutch law is the common-law source of our substantive law, but the common-law source of our procedural law is English law. © 4. Section 252 of the Criminal Procedure Act 51 of 1977, which deals with character evidence, is an example of a residuary section.