Summary
Summary Evidence Semester Notes
- Course
- Law Of Evidence
- Institution
- University Of The Witwatersrand (wits)
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CHAPTER ONERELEVANCE AND ADMISSIBILITY
-s210 of the CPA provides that no evidence as to any fact, matter or thing should be admissible if
irrelevant or immaterial and if it can’t conduce to prove or disprove any point or fact at issue in
criminal proceedings.
-s2 of CPEA define negatively by saying that “irrelevant evidence is inadmissible”
-Common law defines the rule in its positive form “All facts relevant to the issue in legal
proceedings may be proved.” [R v Trupedo]
-Evidence consists of exclusionary artificial rules and is purely English.
-Relevant admissible evidence is privilege, constitutional and the rules of exclusion: hearsay,
character evidence, similar fact evidence and prior consent or statement.
-Rationale for exclusion of irrelevant evidence
Murphy states: “Because the purpose of evidence is [to] establish the probability of the facts upon
which the success of a party’s case depends in law, evidence must be confined to the proof of
facts which are required for that purpose. The proof of supernumerary or unrelated facts will not
assist the court, and may in certain cases prejudice the court against a party, while having no
probative value on the issues actually before it.”
This includes: Time, costs, inconvenience; limitations of the human mind that cloud the real issues.
Irrelevant information reduces the possibility or probability of finding on the facts in issue.
-Meaning of irrelevance
Stephan says: “Relevant means that any 2 facts to which it is applied are so related to each other
that according to the common course of events one either taken by itself or in connection with
other facts proves or renders probable the past, present or future existence or non-existence of the
other.”
-Rule 401 of Federal Rules of Evidence of USA: “Evidence having any tendency to make the
existence of any fact that is of consequence to the determination of the action more probable or
less probable than it would be without the evidence.”
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,DPP v Kilbourne
“Evidence is relevant if it’s logically probative or disapprobative of some matter which requires
proof. I do not propose to analyze what is involved in “logical probativeness” except to note that the
term does not of itself express the element of experience which is so significant of it’s operation in
law, and possibly elsewhere. It’s sufficient to say… that relevant evidence, i.e. logically, probative/
disapprobative evidence, is evidence which makes the matter which requires proof more or less
probable.”
Admissibility
Lack of desirability (therefore admissible)
1. Relevance: Facts in issue, 2 types of facts in issue: Primary and secondary
2. Reasonable and proper inference from the evidence (Trupedo and Shabalala)
3. Avoid a multiplicity of collateral issues: From Fact A to infer fact B to infer fact C
4. Clouds the real facts in issue e.g.: Polygraph Test
S v Nel
Facts: Applicant wanted to lead psychiatric evidence to show that he was mildly retarded.
-Evidence irrelevant; mildly retarded has NO legal definition
-Prejudice: Procedurally disadvantageous and results in lengthy trial or collateral side issues.
R v Kumalo
Facts: A was accused of killing a child. Certain body parts were removed and there were certain
wounds (Muti killing). Prosecution introduced a motive: make muti to prove that Zulu tradition,
concept of withdrawal: in terms of tribal customs.
CJ Shreiner: Highly relevant as it establishes his motive. NOW: Highly prejudicial on belief, was of
that culture and lacked proof therefore it was too general.
R v Dhlamini
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,Facts: A was accused of murder. At 10pm in a cul-de-sac, Dhlamini murdered a woman. Dhlamini
at 10pm was not in cul-de-sac but at dance 16km away. State introduced witness testimony;
witness had been stabbed 140m @9:45pm at cul-de-sac. Highly relevant as it rebuts his evidence.
Purpose: Case precedent will tell you what type of evidence will be relevant and why.
Completeness (whole)
R v Trupedo
Facts: House was broken into; a number of goods were stolen. Police brought a tracker dog to
follow path and led police to another building where a number of people and went up to one of the
people and barked at him. Charged with breaking and entering on evidence of tracking dog.
Court: Held that no proper inference could be drawn from the behaviour of a police dog in its
identification of a suspect. The evidence was rightly excluded as being irrelevant.
General rule: Those facts relevant to the issue in proceedings may be proved. Much of the
law of evidence is concerned with exceptions to the operation of this general principle.
-Case precedent: Shabalala: Bound by R V Trupedo therefore evidence of tracker dog was
inadmissible.
COURT: If you can establish scientifically, then you make case for relevance BUT said that if the
untrustworthiness of such evidence could be sufficiently reduced-even though not totally removed-
then “actions of the dog would become relevant and evidence thereof admissible.”
Characters of evidence
1. All irrelevant evidence is inadmissible. Similar fact evidence only admissible exceptionally.
It is referred to as artificial exclusionary rules.
CHAPTER TWO
SIMILAR FACT EVIDENCE
Definition: Facts which are used to show that a party, usually the accused has behaved on other
occasions in the same way as he is alleged to have behaved in the present circumstances.
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, Similar fact evidence is generally inadmissible because it’s irrelevant, only becomes relevant
exceptionally if you can establish a nexus between present and previous facts. Must be logically
and legally relevant. SFE is admissible in both criminal and civil cases.
Laubscher v National Food Ltd
Facts: L was a pig farmer. Brought pig food products from National Food. He fed it to the pigs and
some of the pigs died. Sought to recover loss by suing National foods. Had to prove that food
caused deaths.
SFE: Pig farmers in vicinity had also bought same food products and some of their pigs had died.
Had to show logical and legal connection between him and other farmers.
Question: Can he establish that link?
Answer: no, couldn’t show other farmers had bought food at the same time or fed at same time.
Couldn’t show that it was from the same food batch. Couldn’t show practices of each farm
therefore counts excluded SFE therefore L lost case.
e.g.: Serial killers
3 different bodies found in course of 18 months.
Body 1: May 1994 Body 2: June 1995 Body 3: July 1996
Accused was charged with murder of body 3 but the prosecution wanted to introduce evidence to
charge with murder of body 1 and 2.
Body 1 found at Pretoria train station, body 2 was found at Soweto train station and Body 3 found
at Durban train station in a field. Although similar, not sufficiently linked/ relevant (no nexus)
therefore coincidental.
All of them were killed by strangulation and showed signs of rape: Can they be admitted? No, they
are not sufficiently similar. All 3 were known prostitutes: Similar? NO
On the back of the victim’s neck, murderer had put an “X”: Similar, sufficiently relevant? Yes. It
established a sufficient nexus.
R v Bond
“In proximity of time, in method or in circumstances there must be a nexus between the 2 sets of
facts; otherwise no inference can be safely induced there from.”
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