relevance and admissibility

Question 1

Overview of relevance and admissibility

Answer 1

LOE contains the exclusionary rule which it is criticized for

Question 2

what is the exclusionary rule?

Answer 2

this rule states evidence should not be admitted if it has low probative value and if it likely to risk causing prejudice.

Question 3

An exception to the exclusionary rule

Answer 3

Applying some interlocutory applications and procedures making it dispositive of fact-finding. In such instances, the court would be confronted or seized with admissibility
determinations

Question 4

Not all evidence is relevant

Answer 4

irrelevant Evidence
Irrelevant evidence is ex lege inadmissible, as per section 2 of the Civil Procedure Evidence Act 25 of 1965 and Section 210 of the Criminal
Procedure Act.

Question 5

Case law on irrelevant evidence

Answer 5

S v Griffiths
Ø The court held that the deceased made a statement to his sister and attorney about his wife’s abuse. His wife was later accused of
murdering the deceased (her husband).
Ø The court held that the statement so made to the sister and attorney of the deceased are irrelevant as there is no logical nexus
between the alleged assault and the death of the deceased, and the hearsay evidence would be greatly prejudicial to the accused.

Question 6

Not all relevant evidence is admissible

Answer 6

Even where evidence may be highly relevant it may still be inadmissible and this is because the Law of Evidence does not allow an untrammelled access to all relevant evidence

Question 7

How relevant evidence can be excluded

Answer 7

v SALRC in their report suggest that relevant evidence can be excluded
if:
Ø It would cause unfair prejudice
Ø Would waste time
Ø Would be confusing or misleading

Question 8

Case law supporting exclusion of relevant evidence as inadmissible

Answer 8

v R v Trupedo
Ø Facts:
§ Behavior of a tracker dog was presented as evidence.
§ A dog followed the footprints of the accused from the window to an outside building and identified the accused from 8 men sleeping.
Ø Held:
§ The tracker dog’s behavior was held to be irrelevant.
§ The dog’s behavior was contrived as opposed to spontaneous, and the AD found the evidence to be irrelevant.
Ø Comments:
§ The evidence is relevant if one applies the accepted definition of relevant to the evidence.
§ It contributes to the proof of the facts in issue, even where it only assists the court in drawing an inference about the facts in dispute between the parties.
§ The court, in reality, actually dismissed it
because it had low probative value and potential prejudice.
Not because it was irrelevant.
Keep in mind: Low probative value coupled with high risk for prejudice
is especially prevalent with similar fact evidence.

Question 9

overview of Test for admissibility

Answer 9

whether or not a particular fact as evidence is admissible will be tested against it interlocutory and provisional nature

Question 10

NB aspects of admsiibility

Answer 10

v If the court makes a finding that evidence is admissible, the court may later change this because of the interlocutory nature of the proceedings.

v A compartmentalized trial-within-a-trial is held to determine the admissibility, separating the determination institutionally from the main trial.

v The decision of whether to admit evidence is also functionally distinguished from determining the weight of evidence.

Question 11

Mcdonald Corporation v Joburgers Drive-Inn Restaurant on admissibility of evidence

Answer 11

Ø Question admissibility of evidence is a question of law.
Ø It is, therefore, irregular when the prosecutor’s cross-examination exceeds the scope of the admissibility enquiry and
asks questions about the merits of the case

Question 12

DPP v Viljoen on admissibility of evidence

Answer 12

Ø It would also be improper for the court to deal with admissibility of evidence and the merits at the same time.

Question 13

S v Van der Walt on the admissibility of evidence

Answer 13

Ø It is irregular and constitutionally impermissible to not deal with
the admissibility as a trial-within-a-trial.

Question 14

Two reasons for decision in s v Van der Walt

Answer 14

The accused must know which case they must meet and which evidence to rebut. The accused will use this knowledge to:
* Decide to apply for discharge (s 174 of the CPA)
* Testify in main trial
* Close their case
* Call for further evidence
§ The accused may wish to testify in the admissibility inquiry (trial-within-a-trial) but not in the main trial.

Question 15

Refusal/Denial to make a confession

Answer 15

Denial of making a confession by an accused is not a question of admissibility

Distinction between a dispute to a factualmaking of the admission and one of admissibility is a difficult one to make, and in practice, both will be dealt with at a trial-within-a-trial.

Question 16

Presentation of proof against admissibility of evidence

Answer 16

The party claiming that the evidence is inadmissible must present evidence to demonstrate its admissibility, regardless of who has the onus in the main trial.
Ø The Standard of Proof is the same as the Merits
§ Civil Trials à Balance of probabilities
§ Criminal Cases à Beyond a reasonable doubt

Question 17

S v Post on Refusal/Denial to make a confession

Answer 17

During the trial-within-a-trial, the truth of the confession’s content is not in question and is therefore considered irrelevant.
However, if the content becomes relevant—such as when the accused claims ignorance of the signed confession—it may be admitted, but not to establish its truthfulness regarding the case’s merits.

Question 18

S v Methembu on Discretion of the Courts in terms of Admissibility

Answer 18

Courts have the discretion to decide admissibility, but this discretion is qualified.
Ø The court’s discretion must be judicially exercised, which means that the court must take all the facts into account and be guided by :
The goals of fact-finding, searching for the truth fairly and efficiently

Question 19

case law on Discretion of the Courts in terms of Admissibility

Answer 19

S v Zuma

Question 20

S v Mthembu(not Methembu) on Discretion of the Courts in terms of Admissibility

Answer 20

SAPS solicited evidence by torturing an accomplice of the accused.
Ø The evidence was highly relevant but excluded as it was obtained unconstitutionally in breach of the accomplices’ right to freedom
and security of a person [s 12(1)(d)

Question 21

Three requirements
for admissibility

Answer 21

v Relevant
v Material
v Not excluded/prejudicial

Each of these requirements must be established before evidence can be admitted, but they operate in a co-dependant and mutually reinforcing manner.

Question 22

R v Matthews on the three requirements of admissibility

Answer 22

The court admitted evidence about previous unrelated robberies, but the relevance outweighed the prejudice of similar fact
evidence as the previous robberies could prove the motive for murder of the deceased, who was a member of the rival gang.
Ø Such evidence can be excluded by the similar fact exclusionary rule but can be admissible if it is logically and legally relevant).

Question 23

R v D on the three requirements of admissibility

Answer 23

v R v D
Ø The accused’s sexual history with four unrelated persons was logically relevant to establish the identity of the perpetrator of the crime.
Ø The court held that the propensity of the accused was exclude by the similar fact evidence exclusionary rule on the basis that it was
prejudicial
Therefore, it can be assumed that the exception was not applied
as this information was not logically and legally relevant.

Question 24

Two presentational grounds on which evidence may be excluded

Answer 24

Either it was obtained in an unconstitutional fashion;
or
The medium via which it is being presented is unreliable

Question 25

S v Aimes on exclusion of evidence based on it being obtained in an unconstitutional manner

Answer 25

Admission of the accused’s bail evidence, where he was not informed of his right to remain silent, would violate his right to a fair trial

Question 26

S v Ebrahim on exclusion of evidence based on the medium via which it is being presented is unreliable

Answer 26

§ The court held that the expert testimony of a lip reader was inadmissible owing to the fact that the witness was not an expert.
§ Therefore, unreliable and prejudices the right to a fair trial.

Question 27

Two conditions for evidence to be admitted

Answer 27

Must be relevant
Must be material

Question 28

Evidence must be Relevant to be Admitted

Answer 28

v The Burden of Proof
Ø Is on litigant who endeavors to introduce the evidence and they
must prove that the evidence is:
§ Relevant
§ Not excluded by an exclusionary rule
§ Not overwhelmingly prejudicial

Ø Additional Considerations
§ Evidence must be relevant to one or more of the facta
probanda.
§ There must be a nexus between evidence sought to be introduced and the facta probanda
§ The Evidence must make the facta probanda more or less likely, in the common course of events.
§ Admissibility and weight are separate, therefore, the nexus need not be absolute or beyond a reasonable doubt.
§ Relevance is preliminary in the determination of probative value.

Question 29

S v Mayo on condition that Evidence must be Material

Answer 29

The court held that a police officer’s pocketbook was not relevant to the issues of the case and it was not material, as it would not assist in proving or disproving any of the issues before the court

Question 30

What does material mean?

Answer 30

That it must be related to the lawsuit without having regard to the logical strength of the connection.

Therefore, it must be related to the cause of action of the dispute.