LEV3701 Exam type questions and answers latest updated 2023, Exams of Law

Download LEV3701 Exam type questions and answers latest updated 2023 and more Exams Law in PDF only on Docsity! 1exceptions:exceptions: LEV3701 Exam type questions and answers latest updated 2023  State whether the following statements are true or false: Page 1 of 1348 2exceptions:exceptions:  The Law of Evidence is the name of the field of law that you are currently studying. False (with capitals it refers to the course name)  When it is said that ‘‘the court’’ Page 2 of 1348 5exceptions:exceptions: court. False  Evidence that is provided by modern technology, such as computers and video tapes, presents the law of evidence with difficulties that have not yet all Page 5 of 1348 6exceptions:exceptions: been resolved. True  In the case of judicial notice and presumptions, evidential material is provided without the presentation of evidence. True Page 6 of 1348 7exceptions:exceptions:  Decisions on the admissibility of evidence are made during the trial — decisions on the weight of the evidence are made only at the end of the trial. o True (although, as you will learn later in this course, the Page 7 of 1348 1 0exceptions:exceptions: o Besides evidence, what other forms of evidentiary material are there? Try to give an example of each. Where possible, write down the references to Page 10 of 1348 1 1exceptions:exceptions: decided cases in which these other kinds of evidentiary material were at issue. o Admissions — S v Mjoli 1981 (3) SA 1223 (A) o Formal admissions — S v Mokgoledi 1966 (4) SA 335 (A)o Judicial noticeo Presumptions — S v Page 11 of 1348 1 2exceptions:exceptions: AR Wholesalers 1975 (1) SA 551 (NC) o Briefly explain, with reference to the t o main branches of the law, how the law of evidence fits into the general structure of the law. (5) o Explain the difference between substantive law and adjective law and give an example of each. Into which category does the law of evidence fall? (5) o Substantive law Page 12 of 1348 15exceptions:exceptions: o Briefly explain the relationship between “proof” and the law of evidence.(5) o The law of evidence may be defined as that field of law which generally regulates the proof of facts in court. Proof Page 15 of 1348 16exceptions:exceptions: therefore is central to the entire field of the law of evidence. o Proof : having sufficient grounds for a finding on a point in issue. Proof of a fact means that the court has received probative material with regard to such fact and has Page 16 of 1348 17exceptions:exceptions: accepted such fact as being the truth for purposes of the specific case o Evidence : probative (evidentiary) material (oral, documentary or real evidence) which is produced in court. Evidence of a fact is Page 17 of 1348 20exceptions:exceptions: may have recourse to English law in the event of any uncertainty on an aspect of the law of evidence. o Knowledge sources are a wider concept, covering not only the historical sources, but also relevant Page 20 of 1348 21exceptions:exceptions: court cases creating binding law and applicable South African legislation eg the Criminal Procedure Act 51 of 1977 and the Civil Proceedings Evidence Act 25 of 1965 applying particularly to the law of evidence as Page 21 of 1348 22exceptions:exceptions: well as the Constitution of the Republic of South Africa 1996 which is the highest source of law and its principal provisions affecting the law of evidence are the fundamental rights (‘‘Bill of o Rights’’). Page 22 of 1348 25exceptions:exceptions: foreign law has to be followed on topics for which no express local statutory provision had been made (Indirect incorporation). These are those sections in South African statutes which incorporate foreign law into Page 25 of 1348 26exceptions:exceptions: South African law and thereby preserve that part of foreign law. o Mention the principal provisions of the Constitution of the Republic of South Africa, 1996 that affect the law of evidence. (5)o Section 35(1) of the Constitution provides Page 26 of 1348 27exceptions:exceptions: that every arrested person shall have the right  to be informed, in an understandable language, that he or she has the right to remain silent, and about the consequences of making a statement (sec 35(1)(a) and (b))  not to be compelled to make a confession Page 27 of 1348 30exceptions:exceptions: practitioner assigned to the detained person by the state and at state expense if substantial injustice would otherwise result, and to be informed of this right promptly Page 30 of 1348 31exceptions:exceptions: o Section 35(3) provides that every accused person shall have the right to a fair trial, which includes the right  to be informed of the charge with sufficient details to answer it (sec 35(3)(a))  to be presumed Page 31 of 1348 32exceptions:exceptions: innocent, to remain silent during the plea proceedings as well as during the trial, and not to testify during the trial (sec 35(3)(h)) and  to adduce and challenge evidence and not to be a compellable witness against himself or Page 32 of 1348 35exceptions:exceptions: relationship with the admissibility of evidence o . list the ‘‘facts in issue’’ in any given case o . relate the admissibility of evidence to questions such as the reasonableness of inferences drawn Page 35 of 1348 36exceptions:exceptions: from certain evidence and the prejudicial effect of admitting any evidence o From your reading material, give at least two examples that Page 36 of 1348 37exceptions:exceptions: show that evidence may be inadmissible, despite being relevant. o If the evidence is privileged. o If the evidence was obtained in breach of constitutional rights. o Definition of relevance: o There needs to Page 37 of 1348 40exceptions:exceptions: probable than without the evidence o In the case of S v Shabalala 1986 (4) SA 734 (A);  What is the main reason why the evidence about the behaviour of the police dog was not admitted in R v Page 40 of 1348 41exceptions:exceptions: Trupedo 1920 AD 58? o The probative value was too tenuous (flimsy), in other words not relevant. To draw inferences from dogs’ abilities is to enter a region of “conjecture and uncertainty”. Page 41 of 1348 42exceptions:exceptions:  A number of writers have suggested that the decision in R v Trupedo does not mean that evidence about tracking dogs will always be inadmissible. In what way do they argue should the judgment be viewed? Page 42 of 1348 45exceptions:exceptions: become admissible. Page 45 of 1348 46exceptions:exceptions:  Finally, the court warned that the distinction between weight and admissibility should not be blurred. What principle did the court establish in this connection? o If the weight of the evidence is so Page 46 of 1348 47exceptions:exceptions: inconsequential and relevance so problematic, it serves no purpose to accept the evidence. o Read S v Mavuso 1987 (3) SA 499 (A) Answer the following questions:  Write down the ‘‘test’’ Page 47 of 1348 50exceptions:exceptions: “possession” at the time was so wide that a conviction could follow, even if the accused was merely found in the vicinity of the dagga. o Study unit 5 Similar fact evidence o Read R v Page 50 of 1348 51exceptions:exceptions: Solomons 1959 (2) SA 352 (A Note that one of the more important additional aspects of the admissibility of evidence to come out of this judgment is that a piece of evidence may be inadmissible at one point in a trial, and Page 51 of 1348 52exceptions:exceptions: become admissible at a later stage (or vice versa) o Explain why the court eventually allowed the similar fact evidence. Identify the following in your answer: the facts in issue, the similar facts and the nexus Page 52 of 1348 55exceptions:exceptions: had been involved in earlier on the night of the alleged crime. (This is the similar fact evidence). o However, the court refused to admit this evidence because it was not sufficiently relevant at that stage. Even though Page 55 of 1348 56exceptions:exceptions: there was a logical connection between the facts in issue and the similar fact evidence, the admission of the latter was not desirable. No reasonable inferences could be drawn from the similar fact evidence Page 56 of 1348 57exceptions:exceptions: that could help to decide the facts which were in issue at that stage. o Later on it transpired that there were additional facts in issue: the accused not only denied that he had been in possession of a Page 57 of 1348 60exceptions:exceptions: had obtained the jacket and the watch. A nexus therefore existed between the similar fact evidence and the facts in issue. o Fully discuss the admissibility of similar fact Page 60 of 1348 61exceptions:exceptions: evidence. Also refer in your answer to a definition, examples and applicable cases. (10) o Similar fact evidence is evidence about a fact which is similar to a fact in issue such as: o a previous conviction Page 61 of 1348 62exceptions:exceptions: of shoplifting where an accused is charged with shoplifting; o the state alleges that the accused is a serial killer, the facts of any one of the murders will be similar to those related to all the other charges of murder; Page 62 of 1348 65exceptions:exceptions: crime in dispute has been proved, but because of his criminal propensity or bad character. Similar fact evidence will be admissible provided two elements are satisfied, namely:  There must be a logical connection Page 65 of 1348 66exceptions:exceptions: (nexus) between the similar fact evidence (probans) and the facts in issue (probandum).  The similar fact evidence must have sufficient probative value to warrant its reception. There are a number of factors that may create the Page 66 of 1348 67exceptions:exceptions: necessary link or nexus between the probans and the probandum such as:  Use of particular modus operandi or pattern of behaviour.  Improbability of change and proof of identity, where for example, you have two or more victims Page 67 of 1348 70exceptions:exceptions: for example, if it can be established that the source of a particular commodity which is the subject- matter of the dispute comes from the same company etc.  Proximity of time and space, for example, similar fact evidence becomes Page 70 of 1348 71exceptions:exceptions: relevant and admissible if the offender raises defence of an alibi and you can prove that a similar offence was committed at the same time and area on another occasion.  Cumulative effect - all the evidence taken together point to the Page 71 of 1348 72exceptions:exceptions: likelihood of the two incidents being connected.  Similar fact evidence admissible only to rebut a defence that would be open to the accused, for example, if A stabs B and denies possession of the weapon, then similar Page 72 of 1348 75exceptions:exceptions: modus operandi where they would adopt children in return for a sum of money which was inadequate to maintain them, that other bodies of children had been discovered in the houses previously occupied by the Page 75 of 1348 76exceptions:exceptions: couple and that four women had testified to the fact that they had given their children up for adoption to the accused. The court allowed the evidence to disprove that the baby had died of natural causes and not to Page 76 of 1348 77exceptions:exceptions: show that the accused had a certain disposition to kill babies and therefore that they had killed the child in question. o A is accused of murder in that he stabbed Page 77 of 1348 80exceptions:exceptions: against his client. If you were to be the judge adjudicating on this matter, what would be your admissibility ruling on this point? Would it affect your ruling if A later denies being in possession of a knife on the evening in Page 80 of 1348 81exceptions:exceptions: question? (10) (check answer with lecturer) o The State also calls state witness C, who testifies that she accompanied the deceased on the evening in question and later identified A as the Page 81 of 1348 82exceptions:exceptions: perpetrator from photographs that had been shown to her by the police. Page 82 of 1348 85exceptions:exceptions: immaterial and which can’t prove or disprove any point or fact in issue. o However, Similar fact evidence is admissible in exceptional circumstances only i.e.:  There must be a logical connection (nexus) between the similar fact Page 85 of 1348 86exceptions:exceptions: evidence and the facts in issue.  The admittance of similar fact evidence must be desirable o Similar fact evidence is generally inadmissible because it is irrelevant and can Page 86 of 1348 87exceptions:exceptions: be potentially prejudicial to an accused in that he can be convicted, not because the crime in dispute has been proved, but because of his criminal propensity or bad character. Similar fact evidence will be Page 87 of 1348 90exceptions:exceptions: outweighs the potential for prejudice. o In R v Solomons the state wanted to submit evidence about two knife assaults which the accused had been involved in earlier on the night of the Page 90 of 1348 91exceptions:exceptions: alleged crime. (This is the similar fact evidence). o However, the court refused to admit this evidence because it was not sufficiently relevant at that stage. Even though there was a logical connection between the facts in issue and Page 91 of 1348 92exceptions:exceptions: the similar fact evidence, the admission of the latter was not desirable. No reasonable inferences could be drawn from the similar fact evidence that could help to decide the facts which were in issue Page 92 of 1348 95exceptions:exceptions: drawn (from the similar fact evidence) on the new issues as to whether the accused had a knife in his possession, his alibi and how he had obtained the jacket and the watch. A nexus Page 95 of 1348 96exceptions:exceptions: therefore existed between the similar fact evidence and the facts in issue. o With regard to the case in question It would probably affect my initial ruling of inadmissibility of the Page 96 of 1348 97exceptions:exceptions: similar fact evidence if A later denies being in possession of a knife on the evening in question because a reasonable inference could be drawn (from the similar fact evidence) on the new issues as to whether the accused Page 97 of 1348