LEV LATEST EXAMPACK.

LEV 3701 LAW OF EVIDENCE LATEST EXAM PACK “LATEST UPDATE” 2023 LATEST UPDATED EXAM REVISION PACK INCLUDES :  PAST EXAM MEMOS  MCQ  ADD Q & A  ASSIGNMENTS SOLUTIONS  SUMMARISED NOTES (October/November 22” Exam also included) Varsity Assist LEV 3701 LAW OF EVIDENCE 2022 OCT / NOV EXAM FINAL PORTFOLIO Question 1 What must the court in a civil case do if a legal question about the cross-examination of a witness arises and there is no express provision in any South African legislation on the specific issue? Fully explain with reference to a definition. [5] Section 42 of the Civil Proceedings Evidence Act 25 of 1965 is a residuary section and provides that the law on the competence and compellability of witnesses, as well as the examination and cross-examination of witnesses, which would have been applicable on 30 May 1969, will apply in any case where no provision has been made in terms of the Civil Proceedings Evidence Act or in terms of any other South African legislation. The general rule is that every person is presumed to be competent and compellable to give evidence unless the matter of competence and compellability is regulated by statutory provisions or, where applicable, by the law as it stood “on the thirtieth day of May 1961. Question 2 Lucky is on trial for the murder of his wife. The prosecution claims that Lucky committed the murder by poisoning his wife with arsenic. Lucky’s defence is that his wife committed suicide. Innocent, an attorney, is called by the prosecution to testify that the accused approached him in his professional capacity for legal advice and, during their discussions, admitted to having killed his wife. Innocent subsequently declined to represent Lucky. The prosecution states that this evidence will be admissible because Lucky had told Innocent of a crime that had already been completed. Do you agree? Fully discuss with reference to the requirements for the admissibility of this type of evidence. [10] This question deals with legal professional privilege. In civil and criminal proceedings communications made between a lawyer and her client may not be disclosed without the client’s consent. The requirements for the existence of the privilege Before legal professional privilege can be claimed the communication in question must have been made to a legal adviser acting in a professional capacity, in confidence, for the purpose of pending litigation or for the purpose of obtaining professional advice. The client must claim the privilege. And the lawyer can claim the privilege on behalf of his client once the latter has made an informed decision.  Acting in a professional capacity Whether an adviser is acting in her professional capacity will be a question of fact in each case. Although a strong inference can be drawn that this requirement has been fulfilled where a fee has been paid, the absence of such payment does not mean that an adviser was not acting in a professional capacity.  The communication must be made in confidence Whether a communication was made in confidence will always be a question of fact. Confidentiality will usually be inferred where it is proved that a legal adviser was consulted in a professional capacity for the purpose of obtaining legal advice. The inference of confidentiality will always be rebuttable, for example, where it is clear from the nature of the communication that it was intended to be communicated to the other party.  For the purpose of obtaining legal advice If a communication is made in confidence, but not for the purpose of obtaining legal advice, it will not be privileged. Whether a particular communication is privileged will always be a question of fact. Communications made between a legal adviser and her client, provided they are made forthe purpose of obtaining legal advice, need not be connected to actual or pending litigation for privilege to attach to them. However, before statements taken from agents or independent third parties will be treated as privileged, they must have been made in connection with contemplated litigation. Legal professional privilege will not be upheld if legal advice is sought so as to further a criminal purpose.  The client must claim the privilege The privilege attaches to the client and it must be claimed by the client. The court will not uphold the privilege in the absence of a claim of privilege. A legal representative is obliged to claim privilege on behalf of her client. If the client waives the privilege the legal representative will be bound by the waiver.  The scope of the rule 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 advisers about those facts, but she may not be asked what she told them. In this case legal professional privilege applies and the prosecution cannot use the statement Question 3 B and D belong to rival gangs. One night a fight breaks out between the gangs and a passing motorist, C, is shot and injured. C lays a charge of attempted murder, and during the investigation, C gives a description of his assailants to the police. An identification parade is held, and B and D are picked from the line-up. B and D are thereafter charged. Answer the following questions with reference to the trial: 3.1 Two bullets are extracted from C at the hospital and, when B and D are arrested, the investigating officer finds a weapon in the possession of both B and D. What type of evidence is at issue here? Discuss with reference to the general rules applicable to this kind of evidence. (10) This question relates to circumstantial evidence . The stated basic principles provide a good starting point in the evaluation process, but these principles must be used in conjunction with the legal rules that apply when specific issues are involved. Guidelines for the presiding officer regarding the evaluation of evidence: 1. Evidence has to be weighed as a whole & the court should not decide a case based on inferences from selected facts considered in isolation. 2. A piecemeal process of reasoning should be avoided (must look at everything together) 3. Inferences & probabilities have to be distinguished from guessing & speculation – the former should always be considered in the light of positive, objective & proven facts. The evaluation of a case based on circumstantial evidence depends on the Presiding officer’s ability to think logically . When evaluating this tyoe of evidence, the court should consider the cumulative effect of all the evidence presented in the case. It is therefore wrong to consider circumstantial evidence in isolation. If inferences are drawn from circumstantial evidence in a criminal case, 2 cardinal rules of logic apply: 1. The inference sought to be drawn must be consistent with all the proven facts. If this is not the case, an inference cannot be sustained. 2. The proven facts should be such that they exclude every reasonable inference except the 1 sought to be drawn. If not, then there must be doubt about the inference sought to be drawn & the accused cannot be convicted. In the case of R v Blom, Blom had made the deceased pregnant and bought chloroform before the deceased died on the railway tracks. He was seen riding from the scene after it happened. He gave false explanations for everything and relied on a false alibi. All these premises could only lead to one final conclusion which was that he killed his girlfriend. In criminal cases guilt has to be proven beyond reasonable doubt and therefore the inference of guilt has to exclude all other reasonable inferences, beyond being consistent with all the facts. In civil cases the latter requirement applies. In this case, both the suspects were described as the assailants and were both also found in possession of the weapons so an inference can be drawn from this . 3.2 Assume that C is the only witness that can identify B and D as his attackers. Fully discuss the evidential rules that the court will have to apply when evaluating C’s evidence at the end of the case. (10) C’s evidence should be evaluated using the Cautionary Rule This a rule of practice bearing the mandatory character of a legal rule, and Prescribing a specific approach to be adopted by the court To assist in the evaluation of certain evidence. In terms of the Single Witness, the statutory provisions make it possible for a court to convict a person or to give judgment against a party on the evidence of a single witness alone. If the court is satisfied that the evidence given by the single witness is satisfactory, it may, but need not, regard that evidence sufficient to convict. The court in R v Mokoena stated that single witness evidence could be relied on when it is clear and satisfactory in every material respect. In R v T, the court interpreted the statement from Mokoena Case so as to mean that the remarks should be elevated to an absolute rule of law. The approach of the court as regard a single witness in terms of the Webber Case should be that a conviction is possible on the evidence of a single witness but must be credible and the evidence should be approached with caution. The degree of caution, which should be applied to the testimony of a single witness, may also be increased by other factors. For eg: Where the state relies upon the evidence of a single witness & does not adduce other available evidence, there is a greater need for caution. The Cautionary Rule with respect to a single witness is not limited to a situation where only one person gives evidence for the prosecution. There is usually more than one point in issue in any particular case, and if only one witness is available to testify on a particular point in issue, that witness will be a single witness. Thus, this is how the court should evaluate C’s evidence. Question 4 A and W (a former advocate) rob a bank. During the robbery, W shoots and kills a security guard and A injures a bank official. Later an argument over the loot ensues between A and W, and A shoots W in the stomach. A is charged with attempted murder and W is the state witness in this case. Obviously, the bank robbery comes up in this case and during cross-examination W makes several statements in which he implicates himself in the murder of the security guard. At no time does the presiding magistrate warn W of his right in terms of section 203 of the Criminal Procedure Act 51 of 1977. Some months later, W is charged with the murder of the security guard. Can the state in this murder case use the statements that were made by W during his testimony in the other case as evidential material against W? Fully explain your answer. [10] In terms of section 203 of the Criminal Procedure Act, a witness cannot be compelled to answer questions if the answer may expose her to a criminal charge. The purpose of this privilege or modern rationale is that a person should not be compelled to give evidence that will exposehim/ her to the risk of criminal charges. The other reason is that people should be encouraged to testify, and they will not do so if they are fearful that they may be forced to incriminate themselves. The legal principles relating to the privilege against self-incrimination as they appear in Magmoed v Janse van Rensburg : (a) The privilege belongs to the witness and must be claimed by her. (b) Before allowing the claim of privilege the court must be satisfied from the circumstances of the case and the nature of the evidence that reasonable grounds exist for the witness to appreciate the danger of being compelled to answer. (c) The witness should be given considerable scope in deciding what is likely to be an incriminating reply. (d) The privilege is also available to persons who testify in inquest proceedings. (e) In South Africa, it is the duty of the presiding officer to inform the witness of her right not to answer an incriminating question. (f) When a witness objects to answering a question based on the privilege against self- incrimination and the judicial officer overrules her objection by mistake and compels her to answer, then the reply, if incriminating, will not be admissible in subsequent proceedings against her. In Magmoed, the court referred to S v Lwane where the Appellate Division decided that it is a well-established rule in our law that it is the duty of a presiding officer to inform witnesses about their right not to answer an incriminating question. The Constitution confirms this rule in section 35(3). The reason for this rule is that most people in our country (especially illiterate people), are ignorant of this right. If the court fails to warn the witness accordingly, the incriminating statements will generally be inadmissible. However, the issue will be determined by the facts of the matter and if the witness is shown to be aware of the right (e.g. if the witness is an attorney or a high-ranking police official), it will not be inadmissible. W has a privilege not to answer any questions which may expose him to a criminal charge (s 203). If he is aware of this privilege and answers a question that does expose him to a criminal charge, then that answer can be used against him. Based on the judgment in Magmoed v Janse van Rensburg W, as a former advocate, can be presumed to be aware of this privilege and the court will probably allow this evidence