The accused would have to be ready to defend himself on a wide range of issues. Swissborough Diamond Mines v Government of RSA related to a diamond mining co-operative in Lesotho, whose government was going to interfere with its mining rights. The general rule in evidence is that all relevant evidence is admissible and all irrelevant evidence is inadmissible, though some countries proscribe the prosecution from exploiting evidence obtained in violation of constitutional law, thereby rendering relevant evidence inadmissible. He wanted to get hands on confidential reports as to his performance, that he might prove his case. In the. After several more months, the police had secured many prosecutions. Section 204 does not violate the right to a fair trial. Is it an application as opposed to a trial? The pointing out itself was admissible. Withdrawal of a formal admission in criminal trial is possible, if the formalities have been complied with, but a withdrawn admission may still have some evidentiary value. What could be the harm to the State, it asked, if the performance of an individual policeman is put on table? Judge Edwin Cameron told Tandwa that he was not permitted to have it both ways, for policy reasons. For the first nine months of the operation, he set himself up as part of the community; operations started thereafter. Here we have given best reference books on Law of Evidence which is useful for  L.L.B 2nd year students. Confessions to police officials who are also justices are permissible. Informal admissions, which are usually made out of court, must be distinguished from formal admissions, made in the pleadings or in court. The nature of the proceedings: Are they civil or criminal? The Evidence Act 2006 is an Act of the Parliament of New Zealand that codifies the laws of evidence. See article by Bronstein: ‘Unconstitutionally obtained evidence: a study of entrapment’ in 1997 SALJ 108. This does not mean that hearsay will never be allowed in criminal proceedings.

[91], Note that this issue is now governed by legislation. [124] [125]. al. For a good example of the Southern African application of these principles, see the recent case R v Sole . [98] [99]. (Consumption of alcohol or loss of temper does not per se lead to the conclusion that accused was not in sound and sober senses.) What this means is that one must look to English law, as interpreted in South Africa, at the time. In Laubscher v National Foods , Laubscher sued the producer of animal food, since his animals, after consuming it, had subsequently died. For the rationale for this, see. He was duly convicted, and appealed to AD, which noted the absence of any warning of the privilege. In the law of criminal evidence, a confession is a statement by a suspect in crime which is adverse to that person.

Previously admissions by third parties were sometimes admitted as vicarious admissions: that is, admitted against a party even though not made by that party. KGOMOTSO REBECCA Maisela. It has its basis mainly in English law. Helpful? They are made under section 220 of the CPA. Such prior statements do not constitute corroboration of the witness. The issue of similar fact evidence can also arise in civil cases. [114], Section 252A(1) provides that traps may be used to detect, investigate or uncover the commission of any offence, or to prevent the commission of any offence. At a preparatory examination (then common, now very rare) of Lwane as the complainant, he had recounted the events of the day in question, including the fact that he and his partners had robbed the shop. Much the same applies if a police officer is present during the communication between lawyer and client. Below are some categories of private privilege: On the question of whether or not other professions enjoy privilege, see below. To allow them would be to open the door to much time wasting and the exploration of collateral issues. Privilege attaches not just to communications with legal advisers, but also to communications with the employees of legal advisers, like clerks, secretaries and interpreters. Note here the requirement of the "primacy of orality"—viva voce evidence—and the general rule against proving previous consistent statements. Private privilege may be waived, but courts require confirmation that the person so waiving is aware of his rights. [61] This privilege only arises once the litigation is contemplated, unlike the ordinary type of legal professional privilege, which can come into existence prior to the contemplation of litigation. Similar-fact evidence is usually inadmissible, on the grounds of irrelevance. Project Report on Clinical Legal Education Exercise prescribed for the concerned semester.- 25 Marks. The law of evidence is also concerned with the quantum (amount), quality, and type of proof needed to prevail in litigation. A gang was accused of murder and robbery; on arrest, some of its members made admissions to the police. In S v Malebo , Hiemstra CJ held that "sufficient proof" meant conclusive proof. Facebook; Twitter; LinkedIn; E-mail; Print; Explore Gov.za. Previously there was some debate on this issue, but now it has been decided that such statements are to be judged objectively. In the case of privilege, the witness may not refuse to testify at all; he may refuse only to answer a particular question or questions. This occurs all too often in practice.

if necessary to show the accused’s innocence; and.

Strict contemporaneity is not required; what is fresh will be decided on facts of each case.

[126]. The hearsay provisions of the Criminal Justice Act 2003 reformed the common law relating to the admissibility of hearsay evidence in criminal proceedings begun on or after 4 April 2005. ", See R v Bond for a more helpful formulation than in Makin: "In proximity of time, in method or in circumstances there must be a nexus between the two sets of facts, otherwise no inference can be safely induced therefrom.".

The court will only allow withdrawal if satisfied that it was a bona fide mistake, and that there is no prejudice to opposing party. Note that similar fact evidence is only permissible to resolve facts in issue. Admissions may be divided into two categories: formal and informal. 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." In civil cases, the only requirement is relevance. 1 0 obj [35], Previously courts have held that statements made under statutory compulsion do not fall foul of the requirement that statements be free of undue influence. National security, in other words, was again the decisive issue. The granting of privilege is therefore not lightly made.

The executive had absolute and unquestionable power to block the disclosure of evidence, no reasons required. The policy reason for the exclusion of similar-fact evidence is that its prejudicial effect outweighs its probative value. Section 37 of the Financial Intelligence Centre Act expressly preserves legal professional privilege despite the stringent reporting requirements of the Act. On appeal to SCA, with the evidence overwhelmingly against him, he argued that under the legislation he had been caught unfairly. What is the position if accused is not expressly informed of this right, and incriminates himself during bail proceedings? The statute, in other words, has lowered the onus. Previously the common law did not disallow evidence in civil cases which had been secured by entrapment. This distinction is not watertight. The common law allows for a quasi-exception, in the case of refreshing memory from a previous written statement. [85] But see the recent case of S v Rathumbu . The court could get sidetracked into going into a large array of issues other than those immediately before it. The privilege against self-incrimination originates in the unpopularity of the harsh Star Chamber in England, which forced suspects to talk when interrogated under oath. A confession is a special type of informal admission in a criminal trial. Now suspects in the US must be "mirandised.". [63] Under this section the court may refrain from punishing a recalcitrant witness if there is a “just excuse” for his not testifying. The meaning of "peace officer" is defined in section 1 of the CPA. The accused's presence at the scene of the crime is within his personal knowledge; the veracity of the blood tests is obviously not. Below are the requirements for the admissibility of informal admissions. If the witness is warned under section 204 of the CPA, the privilege falls away: The witness is then given the right to earn an indemnity in exchange for taking away the privilege against self-incrimination. Your email address will not be published.

The privilege belongs to the client, not to the legal adviser, although the legal adviser would usually raise privilege in the first place. protection of the informer and his family; ensuring that the informer (usually “professional” informers, doing it on a permanent or semi-permanent basis) can be used in future; and. [135]. [57] It existed even before advent of the constitutional dispensation in South Africa, but it has even greater importance in that context. It might rather be described as an exclusion of certain categories of evidence on the grounds of public policy, in that admission of such evidence would be harmful to the public interest. What follows deals with latter situation. He was very successful, because it turned out he had been torturing suspects to get them to confess. In S v Moolman , Moolman was a policeman investigating stock-theft cases. In the US the courts have recognised a constitutional right to confidential communications between parent and child. Duncan v Cammell Laird was binding on South Africa, but the Appellate Division, in Van der Linde v Calitz broke away from the House of Lords authority, deciding that the court had the final say. For a proper interpretation of section 252A(3), see S v Kotzè, where the prosecution conceded that the conduct in question had gone beyond a mere furnishing of an opportunity. What is in issue will depend on the nature of the defence. Private privilege may be waived; State privilege may not. The greater the public interest in secrecy, the more likely the court will find the information to be sensitive, and therefore in keeping with State privilege. Agliotti, however, proved an unsatisfactory witness, and so was not given indemnity. Section 218 of the CPA provides as follows: The rationale for this is that, while confession evidence improperly obtained may be unreliable—the person may confess, for example, to avoid some harm or threat of harm—concrete evidence discovered in consequence thereof, or pointing out, etcetera, is not so tainted: There is no threat to reliability. This onus is of doubtful constitutionality. Formal admissions may be made during pleadings, or during the trial itself. Crawford v. Washington, 541 U.S. 36 (2004), is a United States Supreme Court decision that reformulated the standard for determining when the admission of hearsay statements in criminal cases is permitted under the Confrontation Clause of the Sixth Amendment.

(1) Any court may take judicial notice of the law of a foreign state and of 5 indigenous law in so far as such law can be ascertained readily and with sufficient certainty: Provided that indigenous law shall not … Share.