Exam (elaborations)
LAW OF EVIDENCE
- Institution
- University Of Pretoria (UP)
These notes provide depth of the law of evidence 320 at the University of Pretoria. It is incorporated with the lecturer`s notes, questions & answers. The best
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UNIT 3: INFORMAL ADMISSIONS, POINTING OUT & CONFESSIONSINFORMAL ADMISSIONS
• Admission & rationale for using admissions as an item of evidence
▪ Admission is statement by party that is adverse to that party`s case.
▪ It is a special type of comprehensive admission that is more reliable.
▪ Rationale for admission: whatever the party say to detriment her case is likely the truth
• Part of a statement admissible as an admission
▪ Once part of statement has been allowed into evidence as admission — maker entitled
to put whole statement before court.
▪ If there`s a part in statement that doesn’t qualify, it is still admissible but has less weigh
FORMAL & INFORMAL ADMISSIONS DIFERS WITH (1) WHEN IT WAS MADE & (2) PROBATIVE VALUE
Formal Admission When: It is made intra curial (in pleading or in court) governed by s220 of CPA
• It is automatically admissible & should be recorded by presiding officer.
Probative value: it is binding on maker.
• Can be made by (1) state, (2) accused & (3) legal representative.
• S v Sekele - accused could retract a formal admission by leading evidence that contradict it.
Informal Admission When: it is made extra curial (out of court)
• Maker of the informal admission need not even be aware that she is making an admission
• Maker is always free to lead evidence to contradict such an admission or explain it away
Probative value: just an item of evidence that maker contradict or explains
• It includes both incriminating and exculpatory (intended as an excuse) parts of statement
KINDS OF STATEMENTS AND CONDUCT ADMISSIONS MAY BE CONTAINED
Oral Statement
Written statement
Positive Conduct Payment of invoice is admission that specified service are performed
• If you run away from police, it might be an informal act.
Negative conduct or silence Admission by silence:
• Suggest party is unable to explain suspicion/incriminating circumstances
• Silence in face of accusation is admission if it forms the basis of common-sense
• Jacob v Henning - Nature of inferences to be drawn from silence depends on
surrounding circumstances.
• Relevance or important of accused`s silence:
▪ Accused did not believe accusation worth answering
▪ Accused was in shock, surprised or confused
▪ It could also be a tactical approach
• Const. Right protection accused`s silence:
▪ S35(1)(a) – right to remain silence and informed of this right.
▪ S35(3)(h) – presumption of innocence.
, • Admissibility of admissions by conduct
▪ General rule: an admission is not admissible against anyone except the maker
▪ Vicarious admissions are not allowed
REQUIREMENTS FOR ADMISSIBILITY OF ADMISSIONS
Civil Case Only one general requirement for admissibility) is relevance
Admissions of settlement negotiations may only be disclosed with consent
• Consent is needed between both parties to disclose
Criminal cases S219A CPA - Extra-curial (or extra-judicial) statement may not be admitted into evidence as admission, unless stat
proves beyond reasonable doubt that statement was made voluntarily
• S v Yolelo - Codification of the common law “voluntary” requirement in S219A
R v Barlin – outlines common law test for voluntariness
• Informal admission is voluntarily if it (1) wasn`t induced by a promise (2) threat from person in authority
• Promise or Threat must (1) induce making of statement & (2) be operative on mind of accused at time
statement is made
• Threat: words or act that give accused some advantage if he speaks
• Promise: words or act that give accused disadvantage if don’t speak
Who is person in authority interpretation:
• It is someone who the accused believes to be capable of carrying out what she says
• Broad: anyone with measure of authority is person in authority (e.g., Father OR son = Employer OR
Employee) – S v Robertson
• Narrow: person whom accused reasonably suppose could influence course of prosecution (e.g., Police
officer) – S v Peter
Impossible to specify what will constitute threat or promise:
• Admission induced by violence or threat of violence: probably involuntary
• Admission induced by promise of lenient treatment: probably involuntary
• Admission under police interrogation (not necessarily involuntary)
• Invitation to speak (depends on surrounding circumstances)
Common law interpretation of voluntariness has led to artificial results:
• Admission of accused received:
▪ Where made under statutory obligation to speak
▪ Where accused too drunk to know what he was saying
▪ Where accused deceived by trick into making admission
▪ Where threat or promise made by someone not in authority
S35(1)(c) - courts have opportunity to depart from artificial & technical common law interpret of voluntariness.
• Arrested person has right not to be compelled to make any confession that to be used as evidence.
• Interpretation of involuntariness is undue influence
• Such admission can be excluded pursuant to s35(5) as it violates BoR.
• S v Agnew - Statement were not made voluntarily (e.g., Threat) and are excluded Ito s35(5) as it violates
right to remain silent & legal rep rights
• Burden of proof with regard to the admissibility of admissions
▪ State bears proving burden that accused made admission voluntarily beyond reasonable
doubt – presumption of innocence.
▪ S219A (1) CPA - accused needs to prove that it was not made voluntarily (Reverse onus)
▪ This is Presumption of voluntariness of admission & is made to magistrate.
• It must be confirmed & reduced to writing in presence of magistrate.
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