the law of evidence - ukzn extended learning (pty) ltd … · evidence. – section 161 of the cpa...

The Law of Evidence

2020/03/11 A G Bradshaw session 3 1

Definition of Evidence

• Any information a court has formally admitted in a civil or criminal or administrative or quasi-judicial hearing

• Information we present to court by way of witnesses, documents, real objects, oral testimony, photographs, audio tapes, files, etc.


Evidence vs. Proof

Proof

• After all evidence has been heard – court weighs it up and assesses the evidence.

• Proof is that evidence which was good enough to convince the court

• Evidence relied on to establish a factum probans i.e. the essential elements of the case, Facts that have to be proved to be successful in the case.


Potential Evidence

Evidence Documents

Oral Evidence/Testimony

Real EvidenceElectronic Evidence

Evidentiary MaterialEvidence

Explanation of Plea

Formal Admissions

Judicial Notice

Probative MaterialEvidence + Evidentiary

Material

Prior to formal

admission

On formal admission(must be taken into account by

court)

Not formally admitted(may be

considered by court)

Probative Force or

Value(potential to

establish relevance

and or to tilt probabilities in favour of a

party)


The Law of EvidenceAbove we defined what evidence is.Now we define what is meant by the law of Evidence.

It is the:• rules and requirements of law that must be met and the process to be followed to render material admissible as evidence in court; and• how the court must evaluate the admitted evidence and establish its weight in coming to a decision.

These rules are found in our common law and have also been entrenched or modified in legislation/statutes.•Civil Proceedings Evidence Act 25 of 1965 (CPEA)– applicable to civil proceedings

•Criminal Procedure Act 51 of 1977(CPA) – applicable to criminal proceedings, witnesses, evidence and incorporates documentary evidence as per Civil Proceedings Evidence Act.

•Law of Evidence Amendment Act 45 of 1988 – applicable to hearsay evidence

•Electronic Communications and Transactions Act 25 of 2002 – regulates electronic communications and transactions.

•Interpretation Act 33 of 1957 – regulates how legislation is interpreted


Kinds of EvidenceOral Evidence/Testimony

Oral Evidence/Testimony = evidence under oath

– Firsthand account of events provided by witnesses.

– Must be done under oath in court in the presence of

all the parties to the proceedings.

– Due to the audi alteram partem principle

– Right to be heard and opportunity to challenge

evidence.

– Section 161 of the CPA 51/77 and Section 42 of the

Civil Proceedings Evidence Act 25/65 (CPEA) –

witnesses should give oral/viva voce evidence.


Kinds of EvidenceAffidavits


Section 17 CPEA Certified by registrar/clerk of courtProof- trial and conviction/acquittal of any person

Section 22(1) and 25 of CPEA Affidavits verifying the institution where scientific expert is employedScientific expert – ascertain facts by way of examination/processes requiring specific skills.These affidavits are admissible on mere production.Relates to evidence about – biology, chemistry, physics, anatomy, pathology.Section 25 – presumption of death of a soldier.

Kinds of Evidence Affidavits continued

Section 212 and 212A of CPA General rule: State/Accused uses affidavits as formal evidence where calling of witness would be inconvenient.

Section 212(4)(a)

Most common – evidence by:- State departments;- Provincial administrations;- Courts;- Banks;- Any facts established by way of examination

requiring special skill in:Biology; pathology; toxicology; ballistics; fingerprints and please note - body prints. Such affidavits are prima facie proof of the facts statedin them. The other party may challenge it. The court has the discretion to call the witness who deposed of the affidavit to give oral evidence


Kinds of EvidenceDocuments

• A document can be made form paper/wood/electronic material, etc.

• Documentary evidence – if the content of the item is an issue before court.

• No matter what form an item takes, it is considered documentary evidence if its contents are relied on.


Kinds of EvidenceReal Evidence


• An object which on proper identification becomes evidence itself.

• any tangible thing that we produce for the court to inspect so as to enable the court to draw conclusions as to any fact in issue.

• Examples of real evidence:

– Fingerprints/ body prints;

– Handwriting samples;

– Blood tests;

– Weapons used in commission of a crime;

– Photographs;

– Films;

– Video recordings;

– Documents;

– Any other thing that we can see/hear.

Kinds of EvidenceReal vs. Documentary

Documentary Real

Content of the item is the issue before court

Item itself is an object to be considered

Example: Contract –submitted to establish the terms of the contract – Thus content

Example: Contract – submitted to prove the existence of the contract if denied ever created


Kinds of Evidence

Primary Secondary

Suggests that no better evidence is available

Suggests that better evidence is available

For example: Original document For example: Copy of document

In terms of documentary evidence – Needed to prove the content of a

document

In terms of documentary evidence – Can be used to prove the actual

existence of a document.


Admissibility of Evidence


• Evidence is either admissible/not

admissible;

• When admissible = the evidence is

allowed;

• When not admissible = the evidence is not

allowed

Admissibility of Documents

• Originality – must produce the original document in court;

• The best evidence rule

• Authenticity – we must prove the authenticity of the document (means: “establishing the authorship of the document

• Relevance – the statement/contents of the document must be relevant


Admissibility of Real Evidence

It must be relevant;

Must be properly identified;

Must not be excluded by any other rule of evidence .


Admissibility of Secondary Evidence

• Original has been destroyed;• Original despite a diligent search cannot be

located• You may be criminally chargedif you produce the

original – for example: threat to national security;• Production is impossible– for example: The

“document” consists of a defamatory statement spray-painted on an external wall;

• Original is in possession of a third party/opposing party who refuses to produce it and it is not possible to compel them


Direct vs. Indirect Evidence

• Direct evidence• Direct assertions to a fact in dispute• Direct proof• Indirect Evidence• No direct assertions to a fact in dispute• Indirect proof• Conclusions to be drawn from evidence presentedInference we seek to draw must

be consistent with all the proven facts• If conclusion does not match all the proved facts – conclusion must be rejected..• Criminal Cases: Proved facts must exclude every reasonable inference except the

inference we seek to draw – if there is another reasonable inference that we can draw from the facts, then reasonable doubt exists as to the correctness of the first inference.

• Civil Cases: Court need to chose the MOST probable inference and not the ONLY probable inference.


What is meant by Admissibility?

• The Court needs to consider if the evidence is relevant to the issue in the proceedings.

• Relevant evidence = admissible (principle comes from the common law).

• Irrelevant/immaterial evidence = not admissible (regulated by statutes).Why inadmissible? Prolong the duration of trial unnecessarily; Obscures actual issues in dispute; Potential to prejudice a party.

• Evidence is relevant, if : it might help to prove/disprove the probable existence (or non-existence)of a fact in issue i.e can it help the court decide.

• Court decides if specific evidence is relevant/not using logic and experience.

• Relevant evidence is inadmissible if its use is precluded by another law


Factors court considers in determining Admissibility

• Factors which a court may consider to decide whether evidence should be admissible or not. The issues to be proved/which are in dispute; Distinguish between Facta probanda– essential elements that must be proved; and Facta probantia– issues relevant to the essential issues.

• Collateral issues: evidence relating only to collateral or peripheral issues, These issues do not add any value to the resolution of the issues in dispute., waste time and resources.

• Potential weight: Is the evidence of sufficient quality or relevance to enable the court to draw inferences from it = must be of practical use

• Unreliable evidence; Usefulness of evidence can be undermined if it is easy to manufacture such evidence.Example: previous consistent statements – easy to fabricate and thus no probative value.

• Prejudice v probative value; should evidence be admitted a party to the proceedings will suffer a procedural disadvantage. Balance between significant importance of evidence and possible prejudice to determine admissibility.

• Precedent; Precedent (what previous courts have decided) can only a guideline and never determine the weight of particular evidence in a particular case– Reason: relevance is linked to the facts of every case (not general relevance).

• Completeness. Irrelevant evidence intended to fill the gaps in a witness’s testimony on relevant issues


The procedure which the court will use to determine the admissibility of specific evidence.

• Trial within a trial process.(in criminal cases usually regarding a confession)

• Any point in proceedings when a party disputes the admissibility of evidence

• Court suspends proceedings• To conduct a mini-trial.• Both sides provide evidence and argument as to the

admissibility /not of the specific evidence.• Court decide whether evidence admissible /not.• If admissible – trial resume and That evidence will be led.• If not admissible – trial will resume without that evidence

led.


BURDEN OF PROOF/ONUS• The duty upon the particular litigant, in order to be successful in persuading the court that

he is entitled to succeed on his claim or defence.• If we do not persuade the court of the merits of the case, we run the risk of losing it.• CRIMINAL CASE

– the onus is on the state to prove its case – there is the Presumption of Innocence hence state bears burden of proof

– Beyond a reasonable doubt– State must prove every element of offence unless accused makes a formal admission;– If there is reasonable doubt – state will be unsuccessful– State to present enough evidence to build a prima facie case against the accused.– If state succeeds, evidentiary burden shifts to the Accused who runs risk of being

convicted if he/she does nothing.– Should accused feels state did not discharge evidentiary burden – may apply for a

discharge in terms of section 174 of the CPA at end of the state case.– Test applicable at that stage: Is there evidence on which a reasonable man might

convict? If not – accused will be discharged.


STANDARD OF PROOF

• The level of proof required of a litigant

• In criminal case the state must prove its case beyond a reasonable doubt

• In civil cases it is balance of probabilities


Standard of Proof

• Civil cases

• On a balance of probabilities

• The side bearing the onus

• Persuade court their case more probable than that of the opponent

• No absolute test – whether discharged the onus depends on relative strength of the opponent’s case.


Standard of ProofPRIMA FACIE PROOF CONCLUSIVE PROOF

Use prima facie proof to establish a prima facie case which can still be challenged or contradicted.

If the court has assessed, analysed and evaluated evidence presented to it and finds that the evidence proves a fact –that evidence is proof of that fact (the fact has been proved by the evidence)

Becomes conclusive proof is the prima facie proof remains unchallenged or un-contradicted.

Evidence which has become proof and can no longer be contradicted = conclusive proof.

Rebuttal is no longer possible


Standard of Proof

Sufficient proof - Relates to criminal proceedings- Section 220(1) of the CPA;- Any formal admission made by the defence of any fact in

issue in a criminal matter shall be sufficient proof of such fact;

- State will not have to prove that fact in issue;- However sufficient proof ≠ conclusive proof – fact is still

open to rebuttal by the accused during the course of the trial;

- If the formal admission remains uncontradicted – sufficient proof will become conclusive proof.


What factors the court considers in reaching a decision?

Credibility of Witnesses.• Oral evidence – look at credibility (believability) of the witness• Evidence from a believable witness – more weight than witness who

cannot be believed.• Determine credibility by way of:• Demeanour /behaviour ; manner of testifying; personality; general

impression; hesitation to answer question; evasiveness; reluctance to answer; physical indicators such as nervous twitch.

• Was witness present in court before testifying – foreknowledge of the evidence – tailoring version to suit what was heard.

• Was witness clearly lying about one aspect of the evidence and what impact, if any, will this have on the rest of the witnesses’ testimony.

• Cautionary rules re. witnesses who may have a motive to lie, for example: co-accused; identification evidence; sometimes child witnesses; single witnesses.


What factors the court considers in reaching a decision?

• Corroboration – Independent corroboration of an aspect is very important

• Corroboration = specific evidence is supported/confirmed by other evidence from a different source.

• Repetition of evidence by samewitness ≠ corroboration– merely that the witness is consistent.

• Rule against self-corroboration: Corroboration must come from an independent source.

• However oral evidence may be corroborated by real evidence.


Presenting Evidence: Oral Evidence– Where accused pleads not guilty – State MUST establish factual and legal basis on which it alleges

the accused is guilty.

– No obligation on the defence to lead evidence since defence may elect to close its case withoutpresenting oral evidence.

– Should defence however choose to present evidence – must be done by way of oral evidence from witnesses.

– State commences – calls witnesses sequentially.– Each witness – oral evidence: examination in chief, cross-examination and re-examination.– If state able to establish prima facie case the evidentiary burden shifts to the accused – The

evidentiary burden may have been discharged by calling defence witnesses other than the accused, but in some cases the accused may need to testify. If the accused elects not to – the court can draw such inferences as may be appropriate from the state’s case in the absence of evidence to the contrary by the accused.

– Accused has opportunity to present oral evidence and/or call witnesses for the defence.– He is entitled to be in court during testimony of any of the defence witnesses.– Accused testifies first – in order to prevent him tailoring his evidence after he heard what other

witnesses testified.– Accused may elect to remain silent and not to testify. – may however change his mind once other defence

witnesses have testified. once defence witnesses have testified he can elect to testify despite fact that he observed testimony of other defence witnesses.

– In terms of section 151(1)(b)(ii) of the CPA – in the latter circumstance court may draw any reasonable inference as may be appropriate in the circumstances, for example accused has tailored his evidence as a result of having observed the evidence of the other defence witnesses.


Witnesses

• Competence

– qualified and able to give evidence if the person can do so lawfully. All persons are considered to be competent to give evidence (few exceptions);

– Not competent if impaired by mental disability or intoxication

• Compellability

A witness who may be lawfully obliged to give evidence. Most witnesses who are competent can be compelled to give evidence.


Witnesses: Competence and Compellability

Husband and wife are competent but not compellable to give evidence against the other (only if they elect to do so)• Section 198 of the CPA applicable;• Cannot be compelled to answer a question that the other spouse cannot be compelled to answer.• May however refuse to disclose any communication made between them during the course of the

marriage – marital privilege.• Marital privilege applies for communications made DURING marriage.• Marriage includes – customary marriages / unions under local indigenous law ; marriages under any

system of religious law; same-sex unions .• Exception – where spouse is competent and compellable to testify against spouse for the state – cases

where the accused is charged with:– Any offence committed against the person of either of them or of a child of either of them;– Any offence under Chapter 8 of the Child Care Act, 1983 …, committed in respect of any child of

either of them ;– Any contravention of any provision of section 31(1) of the Maintenance Act, 1998;– Bigamy ;– Incest ;– Abduction ;– Specific offences in terms of the Sexual Offences Act;

Where spouse is competent and compellable for defence:– Competent and compellable give evidence on behalf of the spouse ); – Competent but not compellable as witness for another co-accused of the spouse .


Witness Competence and Compellability

• A child is a competent witness if the court is satisfied(1)that in a particular case the child:

• has sufficient intelligence;• can communicate effectively;• is capable of understanding what it means to tell the truth,

to distinguish it from what is false and comprehends that it is wrong to lie– court itself may question the child or the legal representative or prosecutor may do so to establish this requirement.

• Evidence of a child often regarded with caution;• Competent and compellable to testify against their

parents– but undesirable that they should be compelled to do so;


Witness: Competence and Compellability

Co – Accused

As witness for the state:

Co-accused may testify against the accused whilst testifying in his/her own defence;

A co-accused is a competent witness against another accused but not compellable.

Only compellable if no longer a co-accused.

As witness for the defence:

Co-accused competent; but not compellable to testify as a witness for the defence (of another accused);


Witness Expert

• ‘An expert comes to court to give the court the benefit of his or her expertise’.

• An expert must provide ‘the court with as objective and unbiased an opinion, based on his or her expertise ... . An expert is not a hired gun who dispenses his or her expertise for the purposes of a particular case’ nor does he or she ‘assume the role of an advocate

• Schneider NO and Others v AA and Another 2010 (5) SA 203 (WCC)


Witness Expert

• Ensure that the expert possess the necessary qualifications, experience and knowledge appropriate to the issue(s) for which he or she is called.

• Determine the nature of the relationship between the expert and client / other party’s expert and client -for fear of potential bias.

• The expert compiles a comprehensive report in language that is educational and understood by all parties to the proceedings

• The contents of the report must also be relevant to the issue/s before the court.

• Avoid influencing an expert in whatever form as to the opinion he or she ought to give and the evidence he or she should provide to the court.


Questions

• A leading question suggests a particular answer .• An open-ended question do not suggest a particular answer .• General rule – a party may not ask leading questions of their witnesses. Witnesses required

to give their account in their own words– reduces the weight of the answer given– because the witness is merely confirming/denying the questioner’s statement.– guards against prejudice to the other party, since by asking a leading question the

witness may be encouraged to state something that he does not have actual knowledge of in order to please the party who called the witness.

– can constitute a serious irregularity and lead to the setting aside of a verdict on appeal.– Value is added to an answer that is not given in response to undue prompting

when leading questions may be asked during evidence in chief– Used for non-contentious issues, such as the witness’s name , address, occupation; or

other matters which are no longer in dispute;– Where the opposing party indicated that they do not mind if a witness is led on a

particular aspect;– If there is no other convenient way of getting the witness to cover a specific aspect.


Procedure: Cross examination

• Test the accuracy and veracity of a witness’s evidence ;• Demolish water it down or qualify iwitness’s evidence wherever possible;• Elicit favourable evidence for the cross-examining party. Cross-examination is a right and the denial or

improper restriction of the right usually constitutes a serious irregularity .• Ordinarily, only one legal representative on behalf of each party may cross-examine.• If a party is legally represented, the legal representative and not the client may cross-examine.• A court may restrict cross-examination if the process is being abused or unduly protracted .

• Cross-examination is not restricted to matters that have been covered during evidence in chief.• A cross-examiner is allowed a wide latitude, especially regarding matters of credibility .• Cross-examination can be vigorous , but must stay within the bounds of fairness and courtesy .• Misleading cross-examination is impermissible , for example suggesting something as a proved fact when

it is not a proved fact.• A cross-examining party must challenge in cross-examination any part of a witness’s evidence that they do

not agree with . Failure to do so can lead to an adverse credibility finding against them if they attempt to argue that their version should be accepted in preference to that of the witness


Re examination

• The party who presented evidence in chief has the opportunity to question their witness again after the opposing party has cross-examined that witness.

• To clarify evidence that has been extracted in cross-examination ;• To clarify any misconceptions and misunderstanding that may have

arisen;• To repair any damage that may have been done to the witness’s

credibility during cross-examination. A party has the right to re-examine on any matter raised during cross-examination (even if it was also raised during evidence in chief).

• A party wishes to raise new material for the first time during re-examination must obtain the permission of the court to do so. The opposing party will then be entitled to cross-examine the witness on that new evidence.


Confession

• Unequivocal admission of guilt to all the elements of the crime and made outside of court.

• section 217, a confession is admissible only if made

– freely and voluntarily;

– in sound and sober senses; and

– without undue influence.

– confession to a peace officer, other than a justice of the peace—that is, to a police official lower than the rank of officer (a captain or higher)—is not admissible unless it is confirmed and reduced to writing in the presence of a magistrate

– Admissible only against the maker of the confession


Formal Admissions

• Section 220(1) of the CPA governs formal admissions.

• Any fact formally admitted by accused in criminal proceedings is sufficient proof of such fact.

• State need not lead evidence about the fact.• The fact (formally admitted) is no longer open to

the accused to challenge or contradict.• Formal admission can only be withdrawn with

permission from the court; however very uncommon.


Informal Admissions

• An informal admission = a statement adverse to the interests of its maker.

• Can be oral /written /made by conduct .• The maker of the informal admission need not

have known that what he said was adverse to their interest or was intended to be adverse to their interest.

• May be expressed or implied.• May be made before /during the trial..


Pointing Out

• Pointing out = an act whereby the accused indicates physically the presence or location of some thing or place actually visible to the inquisitor .

• pointing out is essentially an admission by conduct.

• Section 219A of the CPA is applicable.

• Must be made voluntarily, thus not induced by any illegal or improper threat /by any promise from a person in authority to the accused.


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Previous Inconsistent Statements

• Written or oral statements made by a witness on some occasion prior to testifying which does not correspond with or are substantially similar to the testimony given in court .

• The real value of the statement is that it shows inconsistency on the part of the witness, thereby undermining the witness’s credibility.

• The following factors will affect the impact that it has: - the degree of inconsistency ; whether it was about material or unimportant facts ; the possibility of the inconsistency being due to error.


Previous Consistent Statement

• A previous consistent statement is an oral or written statement made by a witness on a previous occasion that is substantially the same as the witness’s evidence before a court .

• Three circumstances under which a previous consistent statement will be admissible.

– To rebut a suggestion of recent fabrication;

– Complaints in sexual cases where there is a victim;

– Dock identification


Similar Fact Evidence

• Evidence that a person, who has been charged with a particular crime, has behaved in a similar way on other occasions.

• generally inadmissible as it is highly prejudicial • A similar fact must have relevance other than one based solely on

character.• relevance of a similar fact will also depend on what the facts are in issue

are as well as the strength of all the other evidence available to the court.• may be admitted in civil and criminal proceedings in certain circumstances

if it is relevant to the fact in issue and there must be a connection or nexus between the SFE and the fact in issue

• SFE consists of two sets of facts – those facts that are in issue before the court; those facts that are similar to the facts in issue, but are themselves not in issue .

• The probative value of SFE lies in the reasonable inferences that may be drawn from such a fact.


Arguments against SFE

o Usually irrelevant– because it does not relate directly to the issue before the court.

o It is procedurally inconvenient - it raises collateral issues that are distracting, expensive and time-consuming to investigate.

o Using SFE may take an accused by surprise and will add an additional prejudicial burden to the defence – the accused may have to defend himself not only against the present charge, but also against his previous bad acts.

o If SFE is freely admitted, it may encourage inefficient and poor police investigation. A police force may be tempted to focus on a suspect’s previous record of bad conduct, in other words, to search for and arrest ‘the usual suspects’, instead of searching for the real criminal. In addition, a past offender is vulnerable because police can apply pressure on an offender with a record to induce an involuntary confession.

o A similar fact does not usually assist a court in drawing a reasonable inference with respect to the fact in issue.


Opinion

• General rule – opinion of a witness is irrelevant – because it is a function of the court to draw inferences and to form its own opinion from the facts.

• Opinion evidence becomes relevant and admissible when it can assist the court in deciding on a fact in issue, when the witness is in a better position to form an opinion than the court and such an opinion will assist the court in determining a fact in issue .

• In certain circumstances, a court will admit a witness’s opinion, or a summary of inferences to save time and to allow the witness to give testimony in a coherent and consistent manner .

• The opinion evidence of laypersons and experts is relevant and admissible opinion of a layperson is relevant and admissible on certain issues which fall within the competence and experience of laypersons generally .

• Expert opinion evidence in the form of an appropriately qualified expert , or an experienced and skilled layperson, is always admissible to assist the court in determining facts in issue that require specialist knowledge not available to the court.


Hearsay

Section 3 of the Law of Evidence Amendment Act of 1988.• Hearsay evidence = oral or in writing , the probative value of which depends upon

the credibility of any person other than the person giving such evidence.

• The court, having regard to –(i) The nature of the proceedings ;(ii) The nature of the evidence ;(iii) The purpose for which the evidence is tendered;(iv) The probative value of the evidence;(v) The reason why the evidence is not given by the person upon whose credibility

the probative value of such evidence depends;(vi) Any prejudice to a party which the admission of such evidence might entail; and(vii) Any other factor which should in the opinion of the court be taken into account ,

is of the opinion that such evidence should be admitted in the interest of justice.”
