Clear-cut evidence in a not-so-clear-cut situation: when usually inadmissible hearsay evidence should be weighted as prima facie admissible evidence. [8], Statements made in execution of conspiracy or common purpose have been admitted against co-conspirators. At common law, statements made informally by the accused are only admitted if proved to have been made freely and voluntarily. Prior to the commencement of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, expert evidence was sometimes led to explain the delay in reporting. The Constitution also features prominently. In the US the courts have recognised a constitutional right to confidential communications between parent and child. Best view appears to be that such evidence would not be automatically excluded: Du Toit et al: commentary on s 60 (11B)(c): Why exclude if it is clear that accused understood the position perfectly? The situation is now covered by statute, in section 3 of the Law of Evidence Amendment Act,[69] which defines “hearsay” as “evidence, whether oral or in writing, the probative value of which depends upon the credibility of any person other than the person giving evidence.”. There is a need for clarity: Formal admissions should be worded and recorded carefully, to eliminate ambiguity. Section 37 of the Financial Intelligence Centre Act expressly preserves legal professional privilege despite the stringent reporting requirements of the Act. when the reasons for the privilege no longer exist, as when the identity of informer is already known. However, there are certain instances when evidence can no longer be used in court. Having answered this question, one has passed the point of no return; one cannot retrace one's steps back to this proverbial fork in the road. In the second, the similar fact evidence is already legitimately before court. Ideally, if the report of a witness is used, the witness should be asked to confirm and adopt it as part of his evidence. Below are some distinctions between State and private privilege: In Duncan v Cammell Laird, the House of Lords held that the court could never question a claim of State privilege, if the privilege was claimed in the proper form. The Ministry of Defence said that this was a sensitive matter, invoking Crown privilege and arguing, accordingly, that it could not be adduced in court. When a presiding officer of a disciplinary hearing is faced with hearsay evidence he/she must consider: Having to make these crucial yet highly complex decisions requires a solid understanding of the laws of evidence. Reasons could include the death of the witness, a missing witness, poor health of the witness, or other unavailability. It need not be the case that the lawyer is complicit, or aware of the purposes to which his advice was to be put. NYELETI CHARLOTTE RIVOMBO (54762227) Submitted in partial fulfilment of the requirements for the degree LLB In the SCHOOL OF LAW UNIVERSITY OF SOUTH AFRICA LECTURER: ADV M MONYAKANE 24 AUGUST 2020. Swissborough Diamond Mines v Government of RSA, Independent Newspapers v Minister for Intelligence Services, Makin v Attorney General for New South Wales, Ex parte Minister of Justice: In re R v Jacobson & Levy, Ex parte Minister of Justice: In re R v Pillay, Ex parte Minister van Justise: In re S v Wagner, Ferreira v Levin NO; Vryenhoek v Powell NO, S v January: Prokureur-generaal Natal v Khumalo, AA Mutual Insurance Association Ltd v Biddulph, Giesecke & Devrient SA v Minister of Safety & Security, https://en.wikipedia.org/w/index.php?title=Law_of_evidence_in_South_Africa&oldid=1015483118, Creative Commons Attribution-ShareAlike License. [54], Whether or not the communication was made in confidence depends on the facts of each case. The privilege belongs to the client, not to the legal adviser, although the legal adviser would usually raise privilege in the first place. If there is any ambiguity, the general principle is that the interpretation in the accused's favour is to be applied. On the State’s application, the trial court decided to admit the admission also against his co-accused. A confession is proved to be admissible by way of a "trial within a trial," whereby each side leads evidence, and then argues on its admissibility. See in particular s 35(5) of the Constitution. The accused would have to be ready to defend himself on a wide range of issues. Now that we’ve reviewed the basics of admissible evidence, we can discuss inadmissible evidence in Los Angeles. Even if the statement does not constitute an unequivocal admission to the main charge alleged, but objectively constitutes a full admission to some lesser charge (competent verdict), this will amount to confession, and section 217 will apply. (See, for example, the, Section 3(1)(b): Hearsay may be provisionally admitted if the court is informed that the person on whose credibility the evidence depends will be testifying later. if necessary to show the accused’s innocence; and. Counsel said that this was not so, but Tandwa contended that counsel was not allowed to say that, owing to privilege. Undue influence need not emanate from person in authority. An example would be where a legal adviser hires a private detective to obtain certain information for use in contemplated litigation. Withdrawal of a formal admission in criminal trial is possible, if the formalities have been complied with, but a withdrawn admission may still have some evidentiary value. Although it is not entirely clear, the SCA in the Shaik appeal seems to say that executive statements which are adduced to prove the truth of their contents should be dealt with under the statutory law relating to hearsay evidence.[10]. The context and prevailing circumstances in these two were important, especially as regards national security; indeed, they were probably decisive. He must have personal knowledge of the event. After a warning under section 204, the privilege falls away. Tandwa was the bank manager, and it was contended that he was complicit. K There must be such a striking similarity that the only possible inference is that the conclusion is true, or that it has been concocted by a witnesses, or that it is a sheer coincidence. Moolman led evidence from his police pocket book; in other words, his notes. Ex parte Minister of Justice: in re R v Matemba The party in question does not have to realise that something is adverse to his case for it to qualify as an admission. One of them pulled out a knife and stabbed Lwane, who was sent to hospital. In Independent Newspapers v Minister for Intelligence Services, the applicant had applied for the compelled public disclosure of restricted material contained in the records of certain court proceedings. The South African law of evidence forms part of the adjectival or procedural law of that country. This conviction was overturned on appeal. At common law, other professionals, such as doctors, accountants and ministers of religion, are not covered by professional privilege. X is arrested and charged with the murder of a woman whom he had recently married. Whether or not something is adverse to a party's case can depend on the context. It was allowed in as evidence against its maker. The common law covers the many areas not covered by those provisions. The issue will be whether the court may take it into account when considering the strength of the case on the other count, as in DPP v Boardman. For example, a person approaches a drug dealer and asks for "the usual.". The law of evidence overlaps with other branches of procedural and substantive law. There is no all-embracing statute governing the South African law of aspects: Various statutes govern various aspects of it, but the common law is the main source. The court will only allow withdrawal if satisfied that it was a bona fide mistake, and that there is no prejudice to opposing party. The Appellate Division set certain bounds to informer privilege. The SCA did not agree. [14] A formal admission need not necessarily be in writing, but this is preferable, for the purposes of clarity. The statute, in other words, has lowered the onus. where the litigant and a third party shared privity or identity of interest. It is not properly called a “discretion” to admit hearsay evidence. In Pillay’s case, it held that the privilege only operates where public policy requires it, and will be relaxed, at least, in the following circumstances: Is informer privilege constitutional? A confession is a special type of informal admission in a criminal trial. Information that cannot prove or disprove the charges you are facing should not be admitted to the court. In England, there is recent authority to the effect that professional privilege does not extend beyond the legal profession.[58]. What is in issue will depend on the nature of the defence. If, however, a parent assists a child accused in criminal proceedings,[61] the privilege attaches, as the parent is then in a similar position to a legal adviser. In other words, no crimes should be committed in the obtaining and examining of any evidence, which will be later, be relied upon in court. The case of NUMSA obo Adam/VWSA (Pty) Ltd 9 BALR 967 (CCMA) included the issue of the admissibility or otherwise of a written statement by the alleged victim of sexual harassment. Formal admissions constitute an exception to this general rule. In Gosschalk v Rossouw, there was an alleged assault by the police on a detainee. There is no all-embracing statute governing the South African law of evidence: Various statutes govern various aspects of it, but the common law is the main source. Below are the requirements for the admissibility of informal admissions. The effect is that common-law onus (beyond reasonable doubt) once again applies. Improper threats or promises which did not in fact influence the accused will therefore not automatically render the confession inadmissible. The general rule is that a witness is not allowed to testify about, nor may another witness be called to support, a previous consistent statement. In practice, therefore, the exclusion of confessions applies to constables, sergeants and warrant officers in the SAPS, as well as to certain categories of other officials referred to in definition of "peace officer." Explicit assertions by the cross-examiner may constitute admissions, eliminating the need for proof. Hearsay evidence is not admissible because it is not reliable. At a disciplinary hearing, the chairperson should reject evidence that is legally inadmissible. There is a need to explain the provisions to unrepresented accused. It concerned litigation by widows and dependants during World War I, the accident having occurred before the war. They are made under section 220 of the CPA. [39], If the maker of the confession is unaware that the person to whom he makes the statement is a police official, the proviso is not applicable.[40]. Section 199 of CPA and section 12 of CPEA extend the privilege to a spouse who may decline to answer any question which the other spouse may lawfully have declined to answer. This underscores the need for caution and care in cross-examination. 2 South Africa’s international and regional obligation to exclude evidence obtained through torture As mentioned earlier, South Africa is a state party to the CAT. The arbitrator found that this report constituted hearsay as it was neither issued by the school itself nor was it accompanied by any evidence that could authenticate it. Section 3 provides that hearsay evidence is inadmissible in civil or criminal proceedings unless one of the circumstances set out in the section exist. [32], A person taking a confession is not obliged to interrogate the interviewee in order to exclude the possibility of undue influence. The rule is also known as the rule against self-serving statements. The prior statement must have been made while the events were still fresh in the witness's mind. Section 3 provides that hearsay evidence is inadmissible in civil or criminal proceedings unless one of the circumstances set out in the section exist. The issue of similar fact evidence can also arise in civil cases. See Ferreira v Levin. In each case, when accosting his victim, he had gotten her to remove her valuables and then, before raping her, said, “Sleep down,” meaning “Lie down.” In one count, the witness was unable to identify him, but her description of what happened to her was so strikingly similar to other instances that, on similar-fact evidence, it was good enough. It applies both to female and to male victims, and it applies whether absence of consent is an element of offence or not. I can't forget it. This onus is of doubtful constitutionality. The CC had jurisdiction – since there are constitutional issues involved in the case – namely, … Sometimes the prior consistent statement is so closely related to res gestae as not to be permitted. An argument broke out about its distribution. This case involved a probationary policeman who was not going to have his probation confirmed; he wanted access to confidential staff files that the police had on his performance, that he might make his case stronger thereby. The privilege against self-incrimination, as it applies to witnesses in criminal proceedings, is governed by section 203 of the CPA, which refers to position in South Africa as at May 30, 1961. the likelihood of compromising the prosecution’s case; and, Schwikkard, P.J. The reaction of a party may be put before the court, including such reactions as silence and denial with uncomfortable demeanour. The Supreme Court of Appeal (SCA) in South Africa was recently tasked with considering the long established Parol Evidence Rule in the case of Mike Ness Agencies CC v Lourensford Fruit Company (Pty) Ltd. Such evidence is potentially problematic, since people make mistakes. In Laubscher v National Foods, Laubscher sued the producer of animal food, since his animals, after consuming it, had subsequently died. Even after withdrawal, a formal admission may still be taken into account as an item of evidence; it may still constitute an informal admission, in other words. The communication must have been made either for the purpose of obtaining professional legal advice, or for the purpose of pending litigation. The court said it had been wrong in Duncan; court must always apply its mind; must always make up its own mind as to whether the circumstances justify State privilege. It was for the court to decide, and the court decided in casu that records should be revealed. Joh EE "DNA Theft: Recognizing the crime of non-consensual genetic collection and testing" 2011 Boston University Law Review 91:665-700. Because of statutory amendment to the English common law rules, it is likely that future English cases on the point will be of less relevance to South African law. One such admission proved to be particularly important. In a proper case, the court can call for oral evidence about reasons for the exclusion. The privilege only covers communications made during the course of the marriage. [123][124][125], It is a basic principle of the common law that the courts are to treat trap evidence with caution. In the past, the courts have sometimes put cases into categories in order to decide whether similar fact evidence is admissible. The content of the confession itself usually cannot be placed before court at this stage, unless exceptional circumstances apply, as in S v Lebone, where it was necessary to refer to the contents of the confession to refute the allegation made by the accused that he had been coached by the police as to what to say. A person in deep financial trouble is more likely to be tempted. [104], Evidence thus obtained is admissible if it does not go beyond providing an opportunity to commit an offence. “Penalties or forfeiture” means something other than mere civil liability. I can't escape it. He wanted to lead evidence that others who had bought food from the same source had suffered the same kinds of trouble. The communication must have been made in confidence. There may be no prosecution, without the written authority of the DPP, of a trap who possibly exceeds the good-faith requirement. The court itself is entitled to scrutinise the evidence, in order to apply its mind properly. Section 220 has now been amended to cover admissions made by either side. Note must be taken of expert evidence to show why people sometimes do not report such offences immediately. Such statements have limited evidential value. Evidence of the intention of the parties or of their prior negotiations is not admissible except occasionally in the face of enduring ambiguity. "Recent" means after the event in question, and prior to testimony. They only become admissible if the court exercises its power to admit hearsay evidence under Law of Evidence Amendment Act.[6]. Once a plea of guilty is altered to one of not guilty under section 113, any admissions already made, and not affected by the section-113 ruling, “shall stand as proof thereof.” They are unaffected or unchanged by the conversion of the plea to one of not guilty. The privilege falls away also if the witness has already been indemnified—he might have given the same evidence in an earlier trial—or has already been acquitted or convicted. This would constitute an admission that the defendant was the driver. [106] The court is more inclined on common-law principles to evince its displeasure with the police by giving a light sentence. The Parol Evidence Rule. This is an important procedural right.[77]. Admissions may be divided into two categories: formal and informal. 2011). South Africa: Admitting Hearsay Evidence: The Legal Principles 29 September 2019 . The Constitution also features prominently. This occurs all too often in practice. Although this case deals with sensitive state security issues, it is not about privilege as such. Section 217(1) of the CPA contains a proviso: Confessions to peace officers who are not magistrates or justices of peace are not admissible unless confirmed and reduced to writing before magistrate. The granting of privilege is therefore not lightly made.[49]. What is the position if accused is not expressly informed of this right, and incriminates himself during bail proceedings? They can be used against a party, and they constitute conclusive proof of the facts they cover. Under section 14 of the South African Constitution (on the right to privacy), there is scope for the development of such a right in South Africa.[62]. Obviously such people are more likely to yield to temptation. The basic rule is that communications between a lawyer and a client may not be disclosed without the client’s consent. Verification of document: must have been created by witness, but, actual recording of particulars may have been recorded by other person, who will also have to be called; or. Private privilege may be waived, but courts require confirmation that the person so waiving is aware of his rights. It is based on English common law. The Act provides as follows: “(1) Subject to the provisions of any other law, hearsay evidence shall not be admitted as evidence at Generally speaking, the later the stage, the less problematic. Admissibility is determined by way of a "trial within a trial," on the basis of evidence led by the parties on this specific issue, in a form similar to that of a trial proper. The presiding officer is under a duty not to allow hearsay wholesale; the basic principle is still that it is inadmissible. Take careful note of the case of S v Ndhlovu, where the SCA laid down some very clear policy provisions, and gave a very far-reaching decision. The first question raised by this definition is this: What is meant by “depends upon?” The answer seems to be that this phrase refers to the issue of whose credibility the probative value rests upon primarily. Section 113 provides for the setting aside of a plea of guilty in a wider variety of situations than those covered by the withdrawal of other formal admissions: for example, if the court thinks that there is any valid reason why the plea of guilty should not stand. Why was evidence not given by the source itself? 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