All types of legal procedure look to the law of evidence to govern which facts they may receive, and how: civil and criminal trials, inquests, extraditions, commissions of inquiry, etc.
Although it is not entirely clear, the SCA in the Shaik appeal seems to say that executive statements which are adduced to prove the truth of their contents should be dealt with under the statutory law relating to hearsay evidence.
The system encourages people to admit facts which are not in dispute, so that the trial is not derailed and unnecessarily delayed by extraneous and superfluous issues.
[37] The proviso to s 217(1) states that confession to a disqualified official becomes admissible if it is subsequently confirmed and reduced to writing in the presence of a magistrate or justice of the peace.
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.
The United States Supreme Court, in the case of Miranda v Arizona, held that the constitutional foundation for the privilege is the respect that government must accord to the dignity and integrity of its citizens.
The privilege against self-incrimination, as it applies to witnesses in criminal proceedings, is governed by section 203 of the CPA, which refers to position in South Africa as at May 30, 1961.
In S v Lwane, the accused, and others involved in the robbery of a training store, fled from the scene of the crime and when they had reached what they took to be a safe distance began dividing up the loot.
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.
In Magmoed v Janse van Rensburg, a very important case, a policeman had been giving evidence at inquest, after a number of people had been shot dead by the police.
He can refuse to answer questions which would incriminate, or would expose him to “penalties or forfeiture.”[52] Under section 14 mere exposure to a civil claim is insufficient to raise privilege.
The House of Lords (deciding the case at the darkest point of the war) held that, once the decision to invoke Crown privilege is made in the proper form, it may not be questioned.
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.
South Africa got there first, in other words, in remarkably similar circumstances, involving a fairly junior official working for the Free State provincial administration.
In Independent Newspapers v Minister for Intelligence Services, the applicant had applied for the compelled public disclosure of restricted material contained in the records of certain court proceedings.
The court held that a fair and objective assessment required the striking of a harmonious balance between the two competing claims—the applicant’s right to “open justice” and the constitutionally-derived power and duty of the executive to make and implement national-security policy.
At common law the State is protected against disclosure of communications which would tend to reveal the identity of an informer or otherwise expose methods of detection of crime.
The situation is now covered by statute, in section 3 of the Law of Evidence Amendment Act,[69] which defines “hearsay” as “evidence, whether oral or in writing, the probative value of which depends upon the credibility of any person other than the person giving evidence.” The first question raised by this definition is this: What is meant by “depends upon?” The answer seems to be that this phrase refers to the issue of whose credibility the probative value rests upon primarily.
[77] Take careful note of the case of S v Ndhlovu, where the SCA laid down some very clear policy provisions, and gave a very far-reaching decision.
[87] Evidence of previous consistent statements is admissible in sexual offence cases, but the court may not draw an adverse inference from the failure to make a complaint.
Prior to the commencement of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, expert evidence was sometimes led to explain the delay in reporting.
Note the correct status of the document used to refresh memory: At common law it does not constitute independent evidence, although in practice this distinction can be difficult to apply, as in the case, for example, of a professional report of a medical expert.
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 in DPP v Boardman approved expressly of the Makin rule, but in fact applied a more supple test: Similar-fact evidence is admissible where its probative value exceeds its prejudicial effect.
In each case, when accosting his victim, he had gotten her to remove her valuables and then, before raping her, said, “Sleep down,” meaning “Lie down.” In one count, the witness was unable to identify him, but her description of what happened to her was so strikingly similar to other instances that, on similar-fact evidence, it was good enough.
[98] A similar provision in California led to the admission in the Michael Jackson trial of evidence of alleged prior misconduct in circumstances where it would probably have been excluded under common-law rules.
The applicable rules are substantially the same as in criminal trials, but in practice the courts tend to be more inclined to accept such evidence, as the prejudicial aspect is less problematic.
There are two main policy issues behind this provision: This is the common-law meaning of entrapment: "A trap is a person who, with a view to securing the conviction of another, proposes certain criminal conduct to him, and himself ostensibly takes part therein.
[110] Section 252A(2) sets out the circumstances which will be taken into account—this is not, however, a “brightline test”—to determine whether the evidence goes beyond a mere opportunity to commit an offence: Note the illogicality of some of the criteria.
In S v Kotzè, the facts of the case did not make it necessary to consider this issue, but the court said obiter that the onus ought to be beyond reasonable doubt, and also stressed need for compliance with section 252A(6).