This document provides an outline of the study units with relevant questions extracted from previous exam and assignments. This document contains answers to the questions.
1. Other forms of evidentiary material besides evidence.
Admissions
Formal admissions
Judicial notice
Presumptions
SU3
1. Section 252 of CPA determine?
The law as to the admissibility of evidence that was in force in respect of criminal
proceedings on the thirtieth day of May 1961, shall apply in any case not expressly provided
for by this Act or any other law.
2. Meaning of residuary clause?
A residuary clause determines that foreign law must be followed on topics for which no
express local statutory provision has been made.
SU4
1. Requirements that should be met before a witness may refresh memory while in witness
box?
(a) The witness must have personal knowledge of the events recorded.
(b) The witness must be unable to recollect fully a matter on which she is being examined.
(c) The witness must have recorded the information personally.
(d) The record must have been made (or checked and verified) while the facts were still fresh
in the memory of the witness.
(e) The original document must be used where the witness has no independent recollection
of the incident.
(f) A document used to refresh the memory while the witness is in the witness box must be
made available to the court and the opposing legal team so that they can inspect it.
2. Why would witness need personal knowledge of recorded event?
To avoid the inadvertent admission of hearsay evidence.
3. Short note explaining the requirements related to the origins of a document which a
witness wishes to consult to refresh her memory.
Generally, the witness must have made the recording personally. However, there are two
exceptions:
(1) where the witness has given instructions for the recording to take place, in which case
the original recorder must also testify, and
(2) where the witness has read the record and accepted its accuracy, in which event the
original recorder need not testify.
,4. What does it mean that the facts were still fresh in the mind of the witness when they
were recorded?
The test is whether the written record was created, or was checked and verified, at a time
when the facts were still fresh in the memory of the witness. The circumstances of each case
play a decisive part in defining this requirement. Whether the recording took place shortly
after the event, or sometime later, are factors which can assist the court in determining
whether the facts were still fresh in the memory of the witness.
5. When is it not compulsory to use the original document?
It is not compulsory to use the original document where the opponent fails to object, or
where it can be shown that the original has been lost or destroyed.
6. Legal principles regarding production of the document and how its influenced by the
constitution
A document used to refresh the memory while the witness is in the witness box must be
produced to the opponent and to the court. The witness may not use a document which she
refuses to produce. In view of the fact that the blanket docket privilege has fallen away in
criminal cases (in terms of Shabalala v Attorney-General 1995 (2) SACR 761 (CC) the defence
will usually be in possession of the relevant document already.
7. How should a witness deal with any privilege that she may have in respect of information
in the document?
A privileged document gives the holder of that privilege two options:
He or she may waive the privilege (and use the document), or
he or she may claim the privilege (but then he or she cannot use that document).
Examination in chief Cross-exam
Purpose To adduce relevant and 1) To elicit evidence
admissible evidence that supports the
cross-examiner’s
case.
2) To cast doubt on the
credibility of the
opposing party’s
witness.
Party who undertakes this Party calling the witness Opponent of party calling
type of examination the witness
Leading questions Not admissible UNLESS the Admissible.
question deals with
undisputed information or
if it’s in the interests of
justice.
Attack credibility of Not permitted UNLESS Permitted.
witness witness is declared a hostile
witness
, Examination in chief Re-Examination
Purpose To adduce relevant and To clear up any misleading
admissible evidence impression which may have
resulted from the cross-
examination
Party who undertakes this Party calling the witness Party calling the witness
type of examination
Leading questions Not admissible UNLESS the Not admissible, unless the
question deals with question deals with
undisputed information or if undisputed information
it’s in the interests of
justice.
Attack credibility of witness Not permitted UNLESS Not permitted. (It is highly
witness is declared a hostile unlikely that the witness will
witness be declared hostile at this
point)
SU5
Mrs B and her father, Mr X, each lay a charge of assault against Mr B, Mrs B’s husband.
Mrs B alleges that her husband came home from a bar one night and stabbed her with a
knife. Mr X alleges that his son-in-law also punched him in the face and called him a “lazy
old busybody”. Will the public prosecutor be able to compel Mrs B to testify against her
husband on the following charges?
1. The charge of assaulting her?
YES
2. The charge of assaulting her father?
NO
3. The charge of criminal defamation against her father?
NO
SU6 – REAL EVIDENCE
In S v Msane 1977:
1. What was the main result of the state’s failure to use the available real evidence?
This failure may materially reduce the cogency of the evidence of a state witness.
2. What is the duty of a trial court in this regard?
In a criminal case, it is the duty of a trial court to treat the evidence of a single witness with
caution. This implies that the veracity of the witness and the consistency of the witness’s
story should be tested (e.g. by requiring the witness to produce, for inspection by the court,
the dagga alleged to have been sold).
3. To what extent does real evidence eliminate the possibility of false evidence being given
against the accused?
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