Evi3701 Assignment 14

Unformatted text preview: EVI3701/101/3/2016 Tutorial letter 101/3/2016 Law of Evidence: admissibility of evidence EVI3701 Semesters 1 & 2 Department of Criminal and Procedural Law IMPORTANT INFORMATION: This tutorial letter contains important information about your module. 1 Open Rubric CONTENTS Page 1 INTRODUCTION AND WELCOME....................................................................................... 3 2 PURPOSE AND OUTCOME OF THE MODULE................................................................... 3 3 3.1 3.2 3.3 COMMUNICATION WITH YOUR LECTURERS................................................................... 4 Calling or visiting lecturers..................................................................................................... 4 E-mailing lecturers................................................................................................................. 4 Contact details of lecturers..................................................................................................... 4 4 COMMUNICATION WITH THE UNIVERSITY ADMINISTRATION ...................................... 5 5 5.1 5.2 5.3 5.4 5.5 STUDENT SUPPORT SYSTEM ............................................................................................ 5 Student counseling ................................................................................................................. 5 Learning centers .................................................................................................................... 5 Group discussions.................................................................................................................. 5 Contact with fellow students................................................................................................... 6 myUNISA ............................................................................................................................... 6 6 6.1 6.2 6.3 6.4 6.5 STUDY MATERIAL ............................................................................................................... 6 Inventory letter ....................................................................................................................... 6 Study material ........................................................................................................................ 6 Prescribed textbooks.............................................................................................................. 7 Study guide ............................................................................................................................ 7 Dvd......................................................................................................................................... 7 7 7.1 7.2 7.3 7.4 7.5 7.6 HOW THE EXAMINATION SYSTEM WORKS ...................................................................... 8 Admission to the examination ................................................................................................ 8 Examination period ................................................................................................................ 8 Examination paper ................................................................................................................. 8 Previous examination papers ................................................................................................. 8 Supplementary examination and the semester mark ............................................................ 8 Tutorial letter with information on the examination ................................................................ 9 8 8.1 8.2 8.3 8.4 HOW THE ASSIGNMENT SYSTEM WORKS ...................................................................... 9 General remarks .................................................................................................................... 9 Commentaries and feedback on assignments ...................................................................... 9 Submission dates.................................................................................................................. 9 Cooperation between students ............................................................................................ 10 9 9.1 9.2 9.3 9.4 THE ASSIGNMENTS........................................................................................................... 10 FIRST SEMESTER: COMPULSORY ASSIGNMENT 01 ..................................................... 11 FIRST SEMESTER: COMPULSORY ASSIGNMENT 02 ..................................................... 12 SECOND SEMESTER: COMPULSORY ASSIGNMENT 01 ............................................... 18 SECOND SEMESTER: COMPULSORY ASSIGNMENT 02 ............................................... 19 2 EVI3701/101 1 INTRODUCTION AND WELCOME Welcome to the module Law of Evidence: admissibility of evidence! You will find a similar word of welcome in the introduction to your study guide. Please read both these introductory words of welcome with care, and note that, should the information they impart differ, you should follow the information in this tutorial letter. The Law of Evidence is presented in two modules, namely Evidence: admissibility of evidence (EVI3701) and Evidence: the presentation and assessment of evidence (EVI3702). This tutorial letter pertains to EVI3701 only, for both semesters of 2016. Both modules are normally taken during the third year of study. We are pleased to welcome you to this module, and hope that you will find it both interesting and rewarding. We will do our best to help you achieve success in your study of this module. You will be well on your way to success if you start studying early in the semester/year and complete the assignments with due diligence. You will receive a number of tutorial letters during the year. A tutorial letter is our way of communicating with you about teaching, learning and assessment. Tutorial letter 101 contains important information about the scheme of work, resources and assignments for this module. We urge you to read this tutorial letter carefully and to keep it at hand when working through the tutorial material, preparing the assignments, preparing for the examination and addressing questions to your lecturers. Please read Tutorial Letter 301 in combination with Tutorial Letter 101 as it gives you an idea of generally important information when studying from a distance and about a particular College. In this tutorial letter, you will find the assignments for both semesters and instructions on the preparation and submission of the assignments. This tutorial letter also provides all the information you need with regard to the prescribed tutorial material and how to obtain it. Please study this information carefully and make sure that you obtain the prescribed material as soon as possible. We have also included some general and administrative information about this module. Please study this section of the tutorial letter carefully. Right from the start we would like to point out that you must read all the tutorial letters you receive during the semester immediately and carefully, as they always contain important and sometimes urgent information. We hope that you will enjoy this module, and wish you all the best! 2 PURPOSE AND OUTCOME OF THE MODULE The purpose of this module is for students to gain knowledge, skills, attitudes and competencies to analyse and solve problems relating to the general concepts and sources of the law of evidence and the admissibility of evidence. A range of tasks in the study guide and tutorial letters, assignments and examinations will ensure that students achieve the following outcomes: ■ Identification and comprehension of the role of the general concepts and sources of the law of evidence and the admissibility of evidence in current South African law and everyday life. ■ An understanding of the history and theoretical framework of the general concepts and sources of the law of evidence and the admissibility of evidence. 3 ■ ■ 3 Application of the concepts and sources regarding the general concepts and sources of the law of evidence and the admissibility of evidence in practical situations and the solving of multi-dimensional legal problems associated with the general concepts and sources of law of evidence and the admissibility of evidence. Understanding the legal methods of enquiry and research into the general concepts and sources of the law of evidence and the admissibility of evidence. COMMUNICATION WITH YOUR LECTURERS All queries that are not of a purely administrative nature but which concern the content of this module should be directed to the lecturers. Please have your study material with you when you contact us. Administrative queries include questions regarding your tutorial material, availability of prescribed books, whether assignments have been received, what marks you obtained, when you will be writing the examination, etcetera. You are most welcome to contact us with any academic enquiries. Our contact details are set out in the table below. Note that it is not advisable to address a letter or fax to a specific lecturer personally, as he or she may be absent from the office from time to time. Address any postal letter (snail mail) as follows: The Module Leader (EVI3701) Department of Criminal and Procedural Law PO Box 392 UNISA 0003 Letters which are addressed in this way may also be faxed to: (012) 429-3396 PLEASE NOTE: Letters to lecturers may not be enclosed with or inserted into assignments. 3.1 Calling or visiting lecturers You are always welcome to call the lecturers or to send them an e-mail. You will always have a better chance of getting hold of the lecturers before 13:00, but if the lecturer is not available, messages can be left on the answering system (voicemail). Alternatively you can phone the departmental secretaries at (012) 429-4995 or (012) 429 2741. You are also welcome to visit us in person, on the 8th floor of the Cas van Vuuren Building, Main Campus, Muckleneuk Ridge. However, always make an appointment before you do so. This will prevent a situation where you arrive at our offices, only to find that we have a prior engagement or are on leave. 3.2 E-mailing lecturers E-mail is increasingly the preferred method of communication. You can either e-mail us directly, or via the relevant links on myUnisa. If you send the same message to more than one lecturer, please select one to send the message to, and “CC” the others. This will speed up a response from our side. 3.3 4 Contact details of lecturers Lecturer Telephone Dr M J Mathenjwa (012) 429 3695 Prof BC Naudé (012) 429-8607 Mr S Monye (012) 429-8874 Adv M Monyakane (012) 428-4294 Office Cas van Vuuren 8-66 Cas van Vuuren 8-86 Cas van Vuuren 8-20 Cas van Vuuren 8-74 E-mail [email protected][email protected][email protected][email protected] EVI3701/101 4 COMMUNICATION WITH THE UNIVERSITY ADMINISTRATION Students should address all queries on administrative matters to the addresses or telephone- or fax numbers of the relevant administrative department. Contact addresses of the various departments are included in the booklet my Studies @ Unisa, which you will receive with your tutorial material. This booklet contains information on how to contact the University (eg to whom you may write, important telephone and fax numbers, addresses, and details of the times certain facilities are open). For convenience, we repeat that administrative queries include questions regarding your tutorial material, the availability of prescribed books, whether your assignments have been received, what marks you obtained for the assignment, any arrangements regarding the examination, re-marking of examination papers, etcetera. Please remember that there are certain times of the year when the University is inundated with inquiries from thousands of students. Try to space your inquiries so that they will not overlap with these busy periods. Always have your student number at hand when you call the University. Note that you may also use the Unisa website (www.unisa.ac.za) or e-mail if you have access to such facilities. More and more facilities are continuously added to the website. How can students now contact Unisa? ■ Unisa website (http://www.unisa.ac.za & http://mobi.unisa.ac.za) All study-related information is now available on the new Unisa corporate website in both web and mobi formats. ■ myUnisa (https://my.unisa.ac.za/portal & https://my.unisa.ac.za/portal/pda) Students can access their own information via the myUnisa website or mobi site. ■ E-mail ([email protected]) Students may send an e-mail to [email protected] for information on how to contact Unisa via e-mail. ■ SMS (32695 - only for students in South Africa) Students may send an SMS to 32695 for more information on how to contact Unisa via SMS. ■ Fax (012) 429 4150 Student support system 5 STUDENT SUPPORT SYSTEM 5.1 Student counseling For information on the various student support systems and services available at Unisa (eg student counseling, tutorial classes, language support), please consult the booklet my Studies @ Unisa. It is particularly important that you make use of these services if you are struggling with your studies or if you want to improve your language and writing skills. 5.2 Learning centres Tutorial services are available for this module at the various Unisa learning centres. Please consult the publication my Studies @ Unisa for further information. 5.3 Group discussions There are no group discussions scheduled for 2016. 5 5.4 Contact with fellow students 5.4.1 Study groups It is advisable to form study groups and to have contact with fellow students. The addresses of students in your area may be obtained from the following department: Directorate: Student Administration and Registration PO Box 392 UNISA 0003 5.5 myUNISA If you have access to a computer that is linked to the Internet, you can quickly access resources and information at the University. The myUnisa learning management system is Unisa’s online campus which will help you to communicate with your lecturers, with other students and with the administrative departments of Unisa – all through the Internet. To go to the myUnisa website, start at the main Unisa website, http://www.unisa.ac.za, and then click on “Login to myUnisa” on the right-hand side of the screen. This should take you to the myUnisa website. You can also go there directly by typing in http://my.unisa.ac.za. Please consult the booklet my Studies @ Unisa which you received with your study material for more information on myUnisa. 6 STUDY MATERIAL 6.1 Inventory letter At the time of registration, you will receive an inventory letter which will tell you what you have received in your study package and which also show items that are still outstanding. Also see the publication my Studies @ Unisa. Check the study material you received against the inventory letter. You should have received all the items specified in the inventory, unless there is a statement such as “out of stock” or “not available”. If any item is missing, follow the instructions on the back of the inventory letter without delay. 6.2 Study material The tutorial material for Evidence: admissibility of evidence (EVI3701) consists of the following: (a) (b) (c) (d) Two prescribed textbooks (which you have to purchase yourself). A study guide. Tutorial letters (which you will receive during the year/semester). A DVD. The Department of Despatch will provide the tutorial letters, the DVD and study guide for this module. Some of this study material may not be available when you register. Apart from Tutorial Letters 101 and 301, you will also receive other tutorial letters during the year/semester. These tutorial letters will be despatched to you as soon as they are available or needed (for instance, for feedback on an assignment). Tutorial letters are part of your study material for assignment and examination purposes. Read and re-read each 6 EVI3701/101 tutorial letter; keep them for reference purposes, and study them again. We do not know which tutorial letters reach you and which do not. Therefore the onus is on you to ensure that you receive every tutorial letter. Generally the last letter which you will receive will deal with your preparation for the examination, and should reach you not later than approximately three weeks before the examination. If you have access to the Internet, you can view the study guides and tutorial letters for the modules for which you are registered on the University’s online campus, myUnisa, at http://my.unisa.ac.za. 6.3 Prescribed textbooks The prescribed textbooks for this module for 2016 are the following: (a) Schwikkard PJ & Van der Merwe SE Principles of Evidence 3 ed (2009) Juta Cape Town. (b) Van der Merwe DP, Terblanche SS, Naudé BC & Moodley K The Law of Evidence: Cases and Statutes 4 ed (2009) Juta Cape Town. Please consult the list of official booksellers and their addresses listed in the booklet my Studies @ Unisa. If you have any difficulties in obtaining books from these bookshops, please send an e-mail to [email protected] or contact the Registrar as soon as possible at (012) 429 4152. 6.4 Study guide You will receive one study guide for EVI3701. The study guide consists of sixteen (16) study units. The introduction contains a description of the literature for this course and the study method you should follow. Please read the introductory unit of your study guide carefully, as it sets out what we expect of you in this module. Bear in mind that merely memorizing the contents of the study guide is not sufficient. You must also consult your prescribed books. Certain parts of the work which you must study for the examination are not discussed in the study guide but only in your textbook. You have to study these parts of the syllabus in the above-mentioned book. In the course of the discussions in the study guide we refer you to those parts of the book which you must study. Furthermore, if the discussion of a certain topic in the study guide is not clear to you, it will probably become clear if you consult the discussion of that particular topic in the prescribed works. 6.5 DVD You will receive a DVD entitled: “Laws of our Lives”, when your register for this module. Because students often struggle to see the law of evidence in perspective, we have added a DVD to the study material for a better understanding of how our court system functions. Some of you may have already come across this DVD when taking ILW1501, but you should now look at it with the law of evidence in mind. You will not get any exam questions based on the DVD, but it is recommended strongly that you watch this DVD from time to time in order to better your understanding of where the law of evidence fits into our court system. 7 7 HOW THE EXAMINATION SYSTEM WORKS 7.1 Admission to the examination There are two compulsory assignments that you must submit during the semester in which you are registered. If you are registered in the first semester, you must submit the first semester’s assignments only. If you are registered for the second semester, you must submit the second semester’s assignments only. Both assignments contribute to your semester mark. NB! PLEASE NOTE THAT YOU MUST SUBMIT THE FIRST ASSIGNMENT IN ORDER TO BE ADMITTED TO THE EXAMINATION. All students who submit the first compulsory assignment in time (before or on the date of submission), will be admitted to the examination, regardless of the mark obtained for this assignment. In other words, a student who submitted the first assignment but obtained 0% will still be allowed to sit for the examination. Students who do not submit the first compulsory assignment before or on the due date will not receive admission to write the examination, irrespective of whether or not they submit the second compulsory assignment thereafter. The two compulsory assignments (10% each) will comprise 20% of your final mark. 7.2 Examination period EVI3701 is a semester module. This means that if you are registered for the first semester you will write the examination in May/June 2016 and the supplementary examination in October/November 2016. If you are registered for the second semester you will write the examination in October/November 2016 and the supplementary examination in May/June 2017. During the course of the semester the Examination Section will send you information regarding the examination in general, examination venues, examination dates and examination times. 7.3 Examination paper At the end of the semester you will write one two (2)-hour paper. This paper counts 100 marks and contributes 80% towards your final mark. Please take note that, irrespective of your semester mark obtained, you must obtain at least 40% in the examination in order for your semester mark to be taken into account for your final mark. 7.4 Previous examination papers You may accept that examination questions will be similar to the questions asked in the activities in your study guide and in the assignments. The assignments also contain questions from previous examination papers. These will give you a good idea of how examination questions may be put. You will be given feedback on these questions in a following tutorial letter, and that will indicate how such questions should be answered. Previous examination papers are also available on myUnisa. 7.5 Supplementary examination and the semester mark Please note that should the University grant you a supplementary examination, your semester mark will not count towards your final mark. In other words, your examination will count 100% of your final mark and you will have to achieve a mark of at least 50% in the supplementary examination to pass this module. 8 EVI3701/101 However, this arrangement will not affect students who write the aegrotat (sick) examination. In other words, students who for health reasons are unable to write the examination and have a medical certificate to prove it, will be in the same position as students who wrote the examination. Their semester mark will constitute 20% of their final mark. 7.6 Tutorial letter with information on the examination To help you in your preparation for the examination, you will receive a tutorial letter which will explain the format of the examination paper and set out clearly what material you have to study for examination purposes. 8 HOW THE ASSIGNMENT SYSTEM WORKS 8.1 General remarks Assignments should be addressed to: The Registrar PO Box 392 UNISA 0003 You may submit written assignments and assignments done on mark-reading sheets either by post or electronically via myUnisa. Assignments may not be submitted by fax or e-mail. For detailed information and requirements as far as assignments are concerned, see the booklet my Studies @ Unisa which you received with your study material. To submit an assignment via myUnisa, do the following: ■ ■ ■ ■ ■ ■ 8.2 Go to myUnisa. Log in with your student number and password. Select the module. Click on assignments in the left-hand menu. Click on the assignment number you want to submit. Follow the instructions on the screen. Commentaries and feedback on assignments Commentaries on compulsory assignments will be sent to all students registered for this module in a follow-up tutorial letter, and not only to those students who submitted the assignments. As soon as you have received the commentaries, please check your answers. The assignments, and the commentaries on these assignments, constitute an important part of your learning and will help you to be better prepared for the next assignment and the examination. 8.3 Submission dates The closing dates for the submission of the two compulsory assignments are: First semester: ■ 11 March 2016 – Assignment 01 and 1 April 2016 – Assignment 02. Second semester: ■ 22 August 2016 – Assignment 01 and 09 September 2016 – Assignment 02. 9 Please note that the closing dates for assignments are the dates when assignments must reach Unisa. 8.4 Cooperation between students Please note: Although students may work together when preparing assignments, each student must write and submit his or her own individual assignment. In other words, you must submit your own ideas in your own words, sometimes interspersing relevant short quotations that are properly referenced. It is unacceptable for students to submit identical assignments on the basis that they worked together. That is copying (a form of plagiarism) and none of these assignments will be marked. Furthermore, you may be penalised or subjected to disciplinary proceedings by the University. For general information and requirements as far as assignments are concerned, see the brochure my Studies @ Unisa which you received with your study material. 9 THE ASSIGNMENTS This section contains the two compulsory assignments which have been set for this module. The first assignment contains essay-type questions, similar to the ones you can expect in the examination. The second assignment consists of multiple-choice questions. 10 EVI3701/101 9.1 FIRST SEMESTER: COMPULSORY ASSIGNMENT 01 Closing date: 11 March 2016 Unique assignment: 619324 Please note that this assignment is compulsory for students registered for EVI3701 in the FIRST SEMESTER. It is the first compulsory assignment for the FIRST SEMESTER. You have to submit this assignment on time in order to obtain admission to the examination in May/June 2016. Do not delay to complete the assignment. The onus to ensure that it is submitted in time rests on you. This assignment consists of a problem-type question. Consult the booklet my Studies @ Unisa regarding requirements for submitting the assignment. Substantiate your answers and refer to decided cases where relevant. In determining the length of your answers you should be guided by the marks allocated to each subdivision. Please note that problem-type question should always be answered with the following guidelines in mind: ■ Identify and state the central issue of a particular question. This should be done with reference to the facts of the question and a definition. Always consider that more than one issue could be involved. ■ Always give a definition of the particular concept or type of evidence you have identified. ■ State the general rule regarding admissibility or the type of evidence and mention all the exceptions. ■ Discuss the relevant exception or give a general discussion of the law applicable to the specific issue involved. The marks set at a specific question will be the best indication of the amount of information you should give. Never forget to discuss cases and legislation. ■ Give a motivated conclusion with reference to the facts of the question. The accused, a first year law student at Green Field University, is arrested and charged with the murder of a 20-year-old roommate. It appears that a scuffle ensured between the accused and the roommate over maintenance of the room which they were sharing. Shortly thereafter the roommate was found lying dead in a pool of blood in the room. The evidence shows that the deceased died as a result of a knife wound of the abdomen. When the investigating officer questioned the accused about the death of the deceased, he made a statement that he stabbed the deceased once with a knife. (1) Is the statement made to the investigating officer an admission or confession? Explain with reference to definitions and decided cases. (5) (2) During trial, the prosecutor calls a medical doctor who examined the body of the deceased to come and testify about the cause of death of the deceased. Explain the type of, and discuss the requirements for, admissibility of this evidence. (5) (3) The prosecutor wants to call a witness who attended the same secondary school with the accused to come and testify that the accused had stabbed one of his classmate to death with a knife two years ago. Will the court allow this evidence? Define and fully discuss the admissibility of this evidence. (10) 11 9.2 FIRST SEMESTER: COMPULSORY ASSIGNMENT 02 Closing date: 01 April 2016 Unique assignment: 824782 Please note that this assignment is compulsory for students registered for EVI3701 in the FIRST SEMESTER. It is the second compulsory assignment for the FIRST SEMESTER. Assignment 02/2016 contains multiple-choice questions. It consists of a number of statements, with a number of possible answers. You have to select the correct answer and enter it on the Unisa mark-reading sheet. For the completion of Assignment 02/2016 you are once again referred to the relevant section of the booklet my Studies @ Unisa. It is most important that you use an HB pencil. Remember that the mark-reading sheet is marked by computer and that you have to follow the instructions carefully to ensure that your assignment is marked correctly. Also remember to enter the “UNIQUE ASSIGNMENT NO” in the relevant space on the mark-reading sheet. Note that this assignment will serve as an overview of the entire study guide, as the relevant information might come from any of the chapters. Please note that the assignments for the two semesters are not the same and that you must ensure that you answer the questions for the semester for which you registered. Question 1 (a) Substantive law states which facts have to be proved in a particular case. (b) A finding by a court that a particular piece of evidence is inadmissible due to irrelevance is not final and can be reconsidered during the course of the same trial. (c) Irrelevant evidence will never be admissible, but relevant evidence will always be admissible. (d) Similar fact evidence can only be used by the state, since the law prohibits the accused from doing that. Answer 1 (1) (2) (3) (4) (5) 12 Only statement (a) is correct. Only statements (a) and (b) are correct. Only statements (c) and (d) are correct. Only statement (d) is correct. All the statements are correct. EVI3701/101 Question 2 (a) Section 206 of the Criminal Procedure Act 51 of 1977 is a residuary section because it provides that the law as to the competency, compellability, or privilege of witnesses which was in force in respect of criminal proceedings on the thirtieth day of May 1961, shall apply in any case not expressly provided for. (b) The accused, in trying to dispute the admissibility of a confession made while he was in detention, wants to tender evidence that, on other occasions, the police used improper means to get statements from him. This is evidence of previous consistent statements. (c) A similar fact may be distinguished from a previous consistent statement in that a similar fact will seldom, if ever, take the form of a statement. (d) Criminal law and criminal procedural law forms part of the substantive law, whereas the law of evidence forms part of the formal law. Answer 2 (1) (2) (3) (4) (5) Only statements (a) and (b) are correct. Only statements (b) and (c) are correct. Only statements (c) and (d) are correct. Only statement (a) is correct. None of the statements is correct. Question 3 (a) The pointing out of the murder weapon by the accused is admissible as evidence in terms of South African law, because it is an example of confirmation by subsequently discovered facts. (b) There is question of a previous consistent statement when a witness repeats a consistent statement made by another witness on a previous occasion, which serves as selfcorroboration for that other witness. (c) Because of the complicated nature of civil proceedings, parties must give notice of any intention to rely on expert evidence and in criminal cases the prosecution is required, on constitutional grounds, to disclose expert evidence before the trial starts. (d) Evidence presented during a trial-within-a trial will only be allowed in the main trial if it directly relates to the facts in issue in the main trial. Answer 3 (1) (2) (3) (4) (5) All the statements are correct. Only statements (a) and (b) are correct. Only statements (b) and (c) are correct. Only statements (a), (b) and (c) are correct. Only statements (c), (b) and (d) are correct. 13 Question 4 (a) The character of the plaintiff in a civil case is important where the claim is for damages resulting from matters such as defamation or seduction. (b) In S v Moti 1998 (2) SACR 245 (SCA) the court found evidence of a photo-identification to be admissible as an exception to the rule against the admissibility of similar fact evidence. (c) A previous consistent statement is normally made by an accused during police custody. (d) The accused is charged with dealing in dagga. The fact that the accused has previously been convicted of dagga is hearsay evidence. Answer 4 (1) (2) (3) (4) (5) Only statement (a) is correct. Only statements (b) and (d) are correct. Only statement (c) is correct. Only statement (d) is correct. Only statements (a) and (b) are correct. Question 5 (a) If the content of a statement does not expressly admit all the elements of an offence, but does so by necessary implication, then the statement amounts to confession. (b) In order to be admissible, a confession needs to be in writing. (c) An independent third party who by chance overhears a communication between an attorney and his client cannot be prevented from testifying about it. (d) A lay person may express an opinion on whether the driver of a motor vehicle was under the influence of alcohol. Answer 5 (1) (2) (3) (4) (5) 14 Only statement (a) is correct. Only statement (b) is correct. Only statements (a) and (d) are correct. Only statements (a), (c) and (d) are correct. None of the statements is correct. EVI3701/101 Question 6 (a) In order to be admissible, a confession made to a traffic officer must be confirmed and reduced to writing in the presence of a magistrate or peace officer. (b) Although a court has a discretion to allow hearsay evidence this discretion will more readily be exercised in criminal than in civil matters. (c) If an accused give evidence about a statement which is to his disadvantage and which forms part of an inadmissible confession, the otherwise inadmissible confession might become admissible. (d) A statement made to a friend (who is not also a peace officer), will in principle be a confession if the statement was freely and voluntarily made, while the declarant was in his sound and sober senses and without being unduly influenced thereto. Answer 6 (1) (2) (3) (4) (5) Only statement (a) is correct. Only statements (c) and (d) are correct. Only statement (c) is correct. Only statements (b), (c) and (d) are correct. None of the statements is correct. Question 7 (a) A court will normally first establish whether evidence is admissible or not. Only thereafter will the court consider the evidential value of such evidence. (b) The rule against the admissibility of evidence about a previous consistent statement is actually a rule against self-corroboration. (c) A confession which has been done voluntarily, but which is inadmissible because of the non-compliance with another condition of admissibility, may still be admissible if it is relevant and contains an admission. (d) In terms of section 15 of the Civil Proceedings Evidence Act 25 of 1965, a formal admission need not be proved in a civil matter. Answer 7 (1) (2) (3) (4) (5) Only statements (a) and (c) are correct. Only statements (b) and (c) are correct. Only statements (b), (c) and (d) are correct. Only statements (a) and (d) are correct. None of the statements is correct. 15 Question 8 (a) A statement that contains the words “made without prejudice” can never be disclosed. (b) When an expert conveys the opinion of the author of a specific text book to the court, such evidence is in actual fact hearsay evidence. (c) Any evidence which the accused elected to give at his or her bail hearing is always admissible against him or her at the subsequent trial. (d) Information will not be privileged if an agent communicates such information to the client or legal adviser, with the purpose of enabling the legal adviser to advise the client, and after litigation has been contemplated. Answer 8 (1) (2) (3) (4) (5) All the statements are correct. Only statements (a), (b) and (c) are correct. Only statements (b) and (c) are correct. Only statement (b) is correct. None of the statements is correct. Question 9 (a) When a witness objects to answering a question at inquest proceeding mistakenly based on the privilege against self-incriminating, and the judicial officer overturns her objection, then the reply will be admissible in subsequent proceedings against her. (b) The accused may be cross-examined as to previous offences if the purpose of such questioning is to show that he is guilty of the offence with which he is charged with. (c) The court’s approach in McDonald’s Corp v Joburgers Drive-Inn Restaurant 1997 (1) SA 1 (A) provides a good example of how the common law hearsay- exceptions should today be handled. (d) In S v Mthembu 2008 (2) SACR 407 (SCA) the court pointed out that public policy requires that evidence obtained through an intentional and blatant violation of the Constitution should not be admitted. Answer 9 (1) (2) (3) (4) (5) 16 All the statements are correct. Only statements (a) and (b) are correct. Only statement (b) is correct. Only statements (b) and (d) are correct. Only statements (a), (b) and (d) are correct. EVI3701/101 Question 10 (a) A statement that was made without prejudice and in good faith can be disclosed if it constitutes an act of insolvency. (b) A previous consistent statement will not be admitted even if it is relevant in supporting the credibility of the witness. (c) Facts relevant to the facts in issues may become in issue themselves. An example would be the reliability of a witness. (d) If all the parties to an issue agree to the admission of hearsay evidence, that evidence will no longer be hearsay and consequently becomes admissible. Answer 10 (1) (2) (3) (4) (5) Only statements (a) and (c) are correct. Only statements (b) and (c) are correct. Only statements (a), (b) and (c) are correct. Only statements (a), (c) and (d) are correct. None of the statements is correct. 17 9.3 SECOND SEMESTER: COMPULSORY ASSIGNMENT 01 Closing date: 22 August 2016 Unique assignment number: 859846 Please note that this assignment is compulsory for students registered for EVI3701 in the SECOND SEMESTER. It is the first compulsory assignment for the SECOND SEMESTER. Do not delay to complete the assignment. The onus to ensure that it is submitted in time rests on you. This assignment consists of a problem-type question. Consult the booklet my Studies @ Unisa regarding requirements for submitting the assignment. Substantiate your answers and refer to decided cases where relevant. In determining the length of your answers you should be guided by the marks allocated to each subdivision. Please note that problem-type question should always be answered with the following guidelines in mind: ■ Identify and state the central issue of a particular question. This should be done with reference to the facts of the question and a definition. Always consider that more than one issue could be involved. ■ Always give a definition of the particular concept or type of evidence you have identified. ■ State the general rule regarding admissibility or the type of evidence and mention all the exceptions. ■ Discuss the relevant exception or give a general discussion of the law applicable to the specific issue involved. The marks set at a specific question will be the best indication of the amount of information you should give. Never forget to discuss cases and legislation. ■ Give a motivated conclusion with reference to the facts of the question. The accused is charged with attempted murder, robbery with aggravating circumstances and rape of a housewife who lived with her sister in Kimberly. It appears that the assailant raped the complainant, ransacked the house, stole a wrist watch and left the complainant for dead. The complainant’s sister heard her screaming for help and rushed to the room where the complainant was screaming. By the time the complainant’s sister entered her room, the assailant had already ran away and disappeared. (1) During cross examination of the complainant, the defense attorney puts it to her that she is a liar who has recently fabricated the evidence of possible rape. In order to corroborate her testimony the complainant wants to call her sister to come and testify that the complainant had given her a similar version of events. Fully discuss the type and the admissibility of this evidence. (10) (2) If the prosecutor never called the complainant to testify, this changes the nature of the evidence that the sister can give. Give a definition of this type of evidence and mention the factors that the court will take into account in its decision. (5) (3) During the trial the accused want to call a witness to come and give evidence that it is likely that the complainant had consented to sexual intercourse with the accused because in the past the complainant had consented to sexual intercourse with another man. Will the court allow this evidence? Discuss the admissibility of this evidence with reference to section 227 (2) of the Criminal Procedure Act 51 of 1997. (5) 18 EVI3701/101 9.4 SECOND SEMESTER: COMPULSORY ASSIGNMENT 02 Closing date: 09 September 2016 Unique assignment number: 870673 Please note that this assignment is compulsory for students registered for EVI3701 in the SECOND SEMESTER. It is the second compulsory assignment for the SECOND SEMESTER. Assignment 02/2016 contains multiple-choice questions. It consists of a number of statements, with a number of possible answers. You have to select the correct answer and enter it on the Unisa mark-reading sheet. For the completion of Assignment 02/2016 you are once again referred to the relevant section of the booklet my Studies @ Unisa. It is most important that you use an HB pencil. Remember that the mark-reading sheet is marked by computer and that you have to follow the instructions carefully to ensure that your assignment is marked correctly. Also remember to enter the “UNIQUE ASSIGNMENT NO” in the relevant space on the mark-reading sheet. Note that this assignment will serve as an introduction to the entire study guide, as the relevant information might come from any of the chapters. However, it is not necessary to read everything in the chapter not pertaining to the relevant question. Please note that the assignments for the two semesters are not the same and that you must ensure that you answer the questions for the semester for which you registered. Question 1 (a) In S v Mavuso 1987 (3) SA 499 (A) the court found that the mere fact that the appellant had formerly been convicted of the possession of dagga, did not justify the inference that he knew what dagga smelled like. (b) When the court exercises a discretion to admit hearsay evidence, that evidence is no longer hearsay, and for that reason becomes admissible. (c) The procedural law of South Africa is mostly drawn from principles of the Roman-Dutch law. (d) A person is charged with fraud in that he had made a false statement to a financial institution. Evidence that this person has, on previous occasions, made similar false statements to other financial institutions, is evidence about previous consistent statements. Answer 1 (1) (2) (3) (4) (5) All the statements are correct. Only statements (a) and (c) are correct. Only statement (a) is correct. Only statements (c) and (d) are correct. None of the statements is correct. 19 Question 2 (a) The knowledge sources of the law of evidence contain historical sources as well as relevant court cases and applicable South African legislation. (b) Relevance or the lack of it is a matter of degree. (c) The law of evidence is that part of substantive law that regulates the proof of facts in a court of law. (d) A residuary section is a section in a piece of South African legislation. Answer 2 (1) (2) (3) (4) (5) All the statements are correct. Only statements (c) and (d) are correct. Only statements (a), (b) and (d) are correct. Only statement (d) is correct. None of the statements is correct. Question 3 (a) The evidential or probative value of a particular piece of evidence is important only when determining the admissibility of that evidence. (b) A similar fact will seldom, if ever, take the form of a statement. (c) If the accused presents evidence of his good character, the prosecution may present evidence of his bad character, but this evidence is limited to evidence of general reputation. (d) A court may possibly admit the opinion of a lay person as to the estimated speed at which a vehicle had been moving. Answer 3 (1) (2) (3) (4) (5) 20 Only statement (a) is correct. Only statements (a) and (c) are correct. Only statements (c) and (d) are correct. Only statements (b), (c) and (d) are correct. None of the statements is correct. EVI3701/101 Question 4 Mr Z testifies in court about the theft of his car. During cross examination the defense alleges that he is lying. The prosecutor accordingly calls Mr K to come and testify that Mr Z had earlier told him the same thing. Mr K’s evidence is (a) hearsay evidence (b) evidence about a previous consistent statement (c) admissible if it is presented to corroborate Mr Z’s evidence (d) admissible if it is presented to strengthen Mr Z’s credibility Answer 4 (1) (2) (3) (4) (5) All the statements are correct. Only statement (a) is correct. Only statements (a) and (c) are correct. Only statements (b) and (d) are correct. Only statement (d) is correct. Question 5 Section 35 (5) of the Constitution reads as follows: (a) “Evidence obtained in a manner that violates any right in the Bill of Rights can be excluded if the admission of that evidence would render the trial unfair or otherwise be detrimental to the administration of justice.” (b) “Evidence obtained in a manner that violates any right in the Bill of Rights should be excluded if the admission of that evidence would be detrimental to the administration of justice or otherwise render the trial unfair.” (c) “Evidence obtained in a manner that violates any right in the Bill of Rights must be excluded if the admission of that evidence would render the trial unfair or otherwise be detrimental to the administration of justice.” (d) “Evidence obtained in a manner that violates any right in the Bill of Rights may be admitted even if the admission of that evidence would render the trial unfair and also be detrimental to the administration of justice.” Answer 5 (1) (2) (3) (4) (5) All the statements are correct. Only statements (a) and (b) are correct. Only statement (c) is correct. Only statements (b) and (d) are correct. None of the statements is correct. 21 Question 6 (a) If the admission of evidence obtained in violation of the Constitution would render a trial unfair, such evidence could still possible be admitted in terms of the second leg of the test for the exclusion of unconstitutionally obtained evidence. (b) Evidence presented during trial-within-a trial will only be allowed in the main trial if it directly relates to the facts in issue in the main trial. (c) Privileged evidence is excluded because it is irrelevant. (d) A court might allow the opinion of a lay person on the approximate speed at which a vehicle was travelling. Answer 6 (1) (2) (3) (4) (5) Only statements (b) and (c) are correct. Only statements (a) and (c) are correct. Only statement (d) is correct. Only statements (a) and (d) are correct. Only statements (c) and (d) are correct. Question 7 (a) According to R v Becker 1929 AD 167 a confession is a statement that is adverse to the person from whom it emanates. (b) The rule against the admissibility of evidence about a previous consistent statement is actually a rule against self-corroboration. (c) The inability to provide reasons for the opinion of a lay person will in principle affect the admissibility of such opinion evidence. (d) The fact that an arrested person voluntarily provided evidence in the absence of constitutional warnings means that such evidence will automatically be admissible. Answer 7 (1) (2) (3) (4) (5) 22 All the statements are correct. Only statement (b) is correct. Only statements (c) and (d) are correct. Only statements (b) and (d) are correct. None of the statements is correct. EVI3701/101 Question 8 (a) If you make a confession to a friend (who is not also a peace officer), evidence about that confession will be inadmissible, unless your friend is also a justice of the peace. (b) Evidence concerning the behavior of trained police dogs is admissible according to South African case law. (c) Magistrates have a privilege not to testify concerning any legal proceedings in which they were the presiding officer. (d) A subjective test is used to determine whether a statement is an admission and an objective test is used in order to determine whether such a statement was voluntarily done. Answer 8 (1) (2) (3) (4) (5) Only statement (c) is correct. Only statements (a) and (c) are correct. Only statement (b) is correct. Only statements (a), (b) and (c) are correct. None of the statements is correct. Question 9 (a) If an accused gives evidence concerning a statement which is to his advantage and which forms part of an inadmissible confession, the otherwise inadmissible confession might become admissible. (b) Confessions do not occur in civil matters. (c) According to Magmoed v Janse van Rensburg 1993 (1) SACR 67 (A) a witness has to be informed about his privilege against self-incrimination unless, based on the facts of that particular case, it might be expected of him to have been aware of this privilege. (d) When the evidence of a lay person can assist the court to a great extent in coming to a conclusion concerning a matter which it has to decide, that evidence will be admissible. Answer 9 (1) (2) (3) (4) (5) All the statements are correct. Only statement (d) is correct. Only statements (a), (c) and (d) are correct. Only statements (b) and (d) are correct. None of the statements is correct. 23 Question 10 In Hlongwane v Rector, St Francis College 1989 (3) SA 318 (D) the court indicated the following considerations which favoured the exclusion of the hearsay evidence: (a) The probative value of the hearsay evidence. The hearsay was corroborated by various other pieces of evidence. (b) The nature of the proceedings, the nature of the evidence and the purpose for which the evidence was tendered. (c) The reason why the person on whose credibility the evidence depended did not testify, namely intimidation and fear of reprisals. (d) The fact that the admission of the hearsay evidence would bring the issue to a close. Answer 10 (1) (2) (3) (4) (5) Only statement (a) is correct. Only statements (b), (c) and (d) are correct. Only statement (b) is correct. Only statements (b) and (d) are correct. None of the statements is correct. This brings us to the end of this tutorial letter. We hope that you will enjoy this module, and wish you success with your studies. DR M J MATHENJWA PROF BC NAUDÉ MR S MONYE ADV M MONYAKANE 24 ...
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