Chapter 3- Relevance And Admissibility

Question 0

What approach to admissibility of evidence do the Continental systems, such as the German and French systems, follow?

Answer 0

They follow a more supple approach by , in general, allowing all evidence that has a bearing on the dispute and leaving it to the court to lend appropriate weight to it. Therefore no strict exclusionary rules exist, as is the case in the Anglo-American systems.

Question 1

In the Anglo-American approach to the Law of evidence what distinction is made?

Answer 1

A clear distinction is made between the rules regarding admissibility and the rules regarding the assessment of evidence. The rules aimed at excluding certain types of evidence, such as hearsay evidence, are in fact a particular characteristic of the Anglo-American systems.

Question 2

What are the rules regarding the assessment of evidence aimed at?

Answer 2

At assisting the court in evaluating the evidence presented (i.e. the admissible evidence), in order to arrive at a correct finding of fact.

Question 3

What dos evidence assessment entail?

Answer 3

It normally entails the court analysing all the evidence, making credibility findings, drawing inferences and considering the probabilities.

Question 4

What is a court unable to do in terms of testing evidence?

Answer 4

Unable to test its findings empirically, like that of a chemist experimentally and empirically testing his findings in a lab.

Question 5

Why does the assessment of evidence take place?

Answer 5

In order to enable a court to find out whether a case has been proven or not. Although the court can’t test his findings against constant, natural laws, that doesn’t mean that the assessment of evidence is an unscientific process or a hit-and-miss activity.

Question 6

What is an example of the scientific/logical process that must be followed in the assessment of evidence?

Answer 6

The court is bound to the rules of logic. Inferences from circumstantial evidence must, for example, be in accordance with the rules of logic.

Question 7

In the process of of assessment of evidence, how does logic as a method of argument, have its limitations?

Answer 7

Logical conclusions still don’t provide absolute certainty regarding the truth of the conclusion.

Question 8

In the Law of Evidence, what does the admissibility requirement entail?

Answer 8

The law sets certain requirements which have to be complied with before the evidence concerned can be taken into consideration by the court in settling a dispute.

Question 9

What character do the primary rules that embody the admissibility have?

Answer 9

Although the premise is put positively, namely that all evidence must be admissible, the primary rules that embody this principle have a negative character, inasmuch they determine when evidence is inadmissible.

Question 10

What are the two main categories that the requirements regarding the admissibility of evidence, can be classified in?

Answer 10

1) The relevance rule and its application;

2) The other exclusionary rules.

Question 11

What does the relevance rule entail?

Answer 11

This rule is the primary requirement and briefly defined, means that evidence must be able to contribute to proving the facts in issue.

Question 12

In the application of the relevance rule what distinction must be drawn?

Answer 12

A distinction is drawn between a number of rules according to which various types of evidence are noted as inadmissable.

Question 13

What is the traditional classification of the relevance rule in terms of rules related to evidence that is inadmissible? -5 points

Answer 13

The traditional classification involves:

1) Previous consistent statements;
2) Similar fact evidence;
3) Character evidence;
4) Collateral facts; and
5) Opinion evidence.

Question 14

In terms of the other exclusionary rules (second category of requirements regarding the admissibility of evidence) what do the rules embody?

Answer 14

They embody additional admissibility requirements over and above the relevance requirement. These categories encompass certain rules according to which evidence that might well be relevant (therefore comply with the primary requirement), is nevertheless excluded.

Question 15

What are the categories of other exclusionary groups?

Answer 15

1) Competence and compellability of witnesses;
2) Privilege;
3) Hearsay evidence;
4) Documents; and
5) Admissions and confessions.

Question 16

What is the nature of the SA system with reference to admissibility?

Answer 16

The nature of the SA system, which is based on the English Common Law of Evidence, is characterized by a comprehensive set of rules aimed at excluding evidence. This contrasts with the Continental systems which concentrate more on the weight accorded to evidence.

Question 17

What factors were the character of the English system (and therefore also our own) determined by?

Answer 17

1) The accusatory (adversary) nature of the English process;
2) The use of the jury system; and especially
3) The operation of the doctrine of precedent.

Question 18

What is the dispute about the admissibility of evidence regarded as?

Answer 18

It is regarded as a question which is settled by means of a trial, separately from the trial regarding the merits.

Question 19

Who has the final decision on the admissibility of evidence?

Answer 19

In a situation where a judge is assisted by assessors, only the judge decides in principle about the admissibility of evidence. But if the dispute is about the admissibility of a confession or other statement made by an accused, the assessors take part in the settlement thereof, unless the judge instructs otherwise (s145(4) of CPA) the judge furthermore decides on whether a specific matter is a legal question or a question of fact (s145(4) supra). In short. Means that admissibility of evidence is a legal question about which the judge, excluding the exception mentioned, decides on his own.

Question 20

In a dispute about the admissibility of a confession or other statement by an accused, what does the settlement of such a dispute entail?

Answer 20

This kind of dispute is a legal question, but it can only be addressed after a ruling has been given about the various factual versions by the accused and the State. In cases where assessors are involved, in the settlement of such a dispute, they therefore take part in both the fact finding and the settlement of the legal question. Normally, however, the the ruling regarding admissibility will automatically follow on the fact finding.

Question 21

In English Law, how is evidence that has been obtained in a wrongful or improper way viewed?

Answer 21

It’s endorsed that it doesn’t affect the admissibility of the evidence. The cardinal question is whether the evidence is relevant; if so, it is admissible, regardless of whether it was obtained in wrongful or improper ways. (See dictum in Kuruma v R 1955).

Question 22

What is the situation in SA law with regards to evidence obtained in wrongful or improper ways?

Answer 22

It was the same situation as that of English Law for many years. The Constitution, 1996 substantially changed the situation.

Question 23

In Melani 1995 what was held by the court regarding what the “appropriate relief” would be, in the admissibility of evidence that was obtained wrongfully?

Answer 23

• The first was the rigid inclusionary rule as followed by British law and our own Common Law, provided that evidence was relevant.
• The second was the rigid exclusionary rule followed by the USA courts, which required that all evidence acquired in an unauthorised manner be excluded.
• The third, of which Canada is an example, constituted an a compromise approach in terms of which discretion was given to the judge to exclude evidence depending on the circumstances of the case.

In the opinion of the court, the third offered the best opportunity to find a proper balance between the legitimate interests of an accused and those of the community at large, there is still not one answer regarding the admissibility or inadmissibility of evidence obtained in wrongful/improper ways.

Question 24

With regard to judicial discretion in matters of admissibility of evidence obtained in wrongful or improper ways, what two questions arise?

Answer 24

1) Does the court have a discretion to allow inadmissible evidence?
2) Does the court have a discretion to exclude admissible evidence?

Question 25

What is Schmidt’s opinion with regard to the question of whether a court has a discretion to allow inadmissible evidence?

Answer 25

Schmidt 374 feels that so many of the criticisms against the Anglo-American Law of evidence could’ve been avoided if the judge had such a discretion. He accepts, nevertheless, that only under exceptional circumstances, do our courts have such general discretion.

Question 26

What is the position in SA law with regard to whether a court has a discretion to exclude admissible evidence?

Answer 26

The position in this connection is not that simple. It can be accepted that the court does have a limited discretion to disallow evidence which is, strictly speaking admissible, when dealing with criminal cases.

Question 27

In what cases has the court’s discretion to exclude admissible evidence become evident?

Answer 27

1) Where the probation force of the evidence is slight and the prejudicial potential for the accused is high- this case is very loosely linked too the relevance requirement.
2) Where the evidence, although admissible, also has probative force it ought to be excluded on the grounds of public policy. In this connection the case is again mentioned where the evidence was obtained in a wrongful and improper manner, but there are other possibilities. Schmidt 367 indicates that the development of the common law or customary law, every court must promote the spirit, purport and objects of the BoR.

Question 28

Does the permission of a litigating party for the admission of otherwise inadmissible evidence result in that evidence becoming admissible?

Answer 28

In principle the answer is in the affirmative, but it has to be qualified in certain respects.

Question 29

What is the primary requirement regarding the admissibility of evidence?

Answer 29

The relevance rule, which requires that the evidence must be relevant to the facts in issue in order to be admissible. The statutory stipulation which gives expression to this principle states it negatively; namely, that evidence which is irrelevant to the facts in issue, is inadmissible.

Question 30

What is the statutory stipulation which gives expression to the principle of relevance in determining the admissibility of evidence?

Answer 30

See s210 of the Criminal Procedure Act, and also s2 of the Civil Proceedings Evidence Act.

Question 31

What does s210 of the CPA state with to regard to the relevance requirement in criminal proceedings?

Answer 31

Irrelevant evidence is inadmissible.
“No evidence as to any fact, matter or thing shall be admissible which is irrelevant or immaterial and which can’t conduct to prove or disprove any point or fact at issue in criminal proceedings.”

Question 32

What does s2 of the CPEA state with regard to the relevance requirement in Civil Proceedings?

Answer 32

Only relevant evidence will be admitted.
“No evidence as to any fact, matter or thing which is irrelevant or immaterial and can’t conduct to prove or disprove any point or fact in issue shall be admissible.

Question 33

In the first place, what evidence will be regarded as being relevant?

Answer 33

It is a matter of logic and common sense. It is regarded as relevant if a logical connection exists between such a fact and the fact in u
Issue.

Question 34

How can the facet of relevance requirement be described!

Answer 34

A fact about which evidence is being presented is relevant if it is able, on its own or together with other facts, to make the existence or non-existence of the facts in issue, directly or indirectly, more or less probable.”

Question 35

According to Schmidt, what does the relevance requirement demand?

Answer 35

It demands that the fact about which evidence is to be used must possess a minimum degree of probative force regarding the facts in issue. Put differently it isn’t enough if it is merely possible to draw an inference from the fact concerned regarding then facts in issue (logical relevance therefore not sufficient; it should at least be possible to draw a reasonable inference from the fact concerned regarding the facts in issue for it to be legally relevant.

Question 36

With regard to the minimum degree of probative force that is required for evidence to be relevant, what did the Court in R v Trupedo state?

Answer 36

“A fact is relevant when the inferences can be properly drawn from it as to the existence of the fact in issue.”

If the facts doesn’t justify such an inference, it’s legally irrelevant and therefore inadmissible.

Question 37

When was the facet of the relevance requirement raised in criminal proceedings?

Answer 37

It was raised in the case where the State wanted to present evidence regarding the identification of the accused by a police dog. See the ruling in Shabalala 1986

Question 38

What does Schmidt point out in terms of not confusing the required minimum degree of probative force (admissibility), with the consideration of evidence that becomes pertinent at the assessment phase (weight)?

Answer 38

In Schmidt 392, in the present core-text requirements are not set, since it is simply a question of whether the evidence would be admitted and not which party’s version should be accepted as proven. In the latter case higher requirements are clearly set.

Question 39

Why should a distinction be made between weight and relevancy?

Answer 39

The danger exists that, if the presiding officer attaches weight while dealing with the relevancy question that he might be guilty of a piecemeal process of adjudication. It is suggested that relevance and admissibility only depend on a factual nexus between two sets of facts and that the second test (about weight or significance) only be applicable later when the question of weight or value of evidence arises.

Question 40

What is the difference between facts in issue (Facta probanda) and Facts relevant to the facts in issue (Facta Probantia)?

Answer 40

LOOK AT TABLE ON PAGE 45!!!

Question 41

What is the essence of the definition of the relevance requirment?

Answer 41

The essence of this definition amounts to the principle that a fact must be able to prove or rebut the facts in issue in order to be relevant and therefore admissible.