ASPIRANT PROSECUTOR PROGRAMME - Study Guide - 2025-part-3_1.pdf

PART II THE LAW OF EVIDENCE & CYBER CRIMES - 85 - A Introduction This portion of the study guide is developed to give you an overview of the law of evidence and similarly prepare you for the aspirant examination. NOTE: The outcome of any prosecution largely rests on...

PART II THE LAW OF EVIDENCE & CYBER CRIMES - 85 - A Introduction This portion of the study guide is developed to give you an overview of the law of evidence and similarly prepare you for the aspirant examination. NOTE: The outcome of any prosecution largely rests on the shoulders of a prosecutor. It’s the function of a prosecutor to present admissible and relevant evidence which assists the court in determining the facts in dispute. The objective of the court is to make a determination after having weighed the probabilities of each version presented to the court. B. THE IMPACT THE LAW OF EVIDENCE HAS ON THE PRESENTATION OF EVIDENCE IN COURT The fundamental principle that governs the Law of Evidence is that it tells us how to go about proving a case before court notwithstanding the fact that the foundation of this principle is based on what evidence is admissible and what evidence is excluded and such evidence must be relevant before proceeding with the case in the court. The basic approach in understanding these concepts are broken down as follows: ❖ Any evidence is admissible and must deal directly with the facts in issue thus making it relevant to the issue before the court. ❖ A previous consistent statement made by a witness would normally serve to corroborate the witness subsequent statement which is inadmissible. However, there are exceptions – o if there is a claim of recent fabrication by the witness or o in terms of S58 of the Sexual Offences (Criminal Law and Related Matters) Amendment Act 32 of 2007. In these instances the previous consistent statement is used to demonstrate consistency and not corroboration. ❖ Similar Fact Evidence which deals with the accused having something wrong prior to this act does not mean that the accused committed the current offence, thus this type of evidence is inadmissible. ❖ Character Evidence this evidence is considered irrelevant and is thus inadmissible. Unless the party intending to adduce such evidence, demonstrates why such evidence - 86 -  should be allowed and how it affects the issues to be determined by the court. (See the discussion of S.210, S.211 and S.227 of CPA) ❖ Hearsay Evidence is generally inadmissible as witnesses need to give evidence of what happened to them and or what they personally saw. However, after the promulgation of the so-called “Hearsay Act” – The Law of Evidence Amendment Act 45 of 1988 - provision has been made for Hearsay evidence to be admissible in court under specific circumstances. (see full discussion of Hearsay evidence in S.222 of CPA) Hearsay evidence is admissible at bail applications as these are sui generis in nature. ❖ Opinion Evidence. The general rule is that opinion evidence is inadmissible. However, this type of evidence may be admissible when either party presents a subject matter expert in a specialized field to give an opinion of his / her assessment of facts which he/she has established. The purpose of such evidence is to guide the court in the interpretation of these facts which may be in dispute. The opinion of the expert does not usurp the function of the court – the presiding officer is guided by the opinion and ultimately determines whether or not to accept the opinion given. (full discussion of Opinion Evidence and exceptions is contained below) ❖ Privilege: Certain categories of persons are protected from giving evidence specific categories of person – see S.192. S.198 S.199 S.201 and S.202 of CPA (full discussion below) ❖ Evidence may be excluded as the evidence obtained and or seized was in violation of the Bill of Rights as enshrined in the Constitution. However, this evidence must be presented to court to make a finding in so far the admissibility of the evidence is concerned. ❖ Accused who incriminate themselves either by way of an admission and/or confession will have to meet the threshold otherwise the incriminating statements cannot be used against him in the subsequent trial. See S.217 S.218 S219 and S.219A discusses below) ❖ Court officials – Apart from the presiding officer, all other officials are competent and compellable to testify, but it is not advisable - S v Kirsten 1950 (3) SA 659(K). ❖ Parliamentary representatives - Competent and compellable in criminal cases, however members of Parliament cannot be compelled as a witness pending his / her business in Parliament, unless the court is situated in Parliament. ❖ Diplomatic staff – Exempted in terms of section 2, Act 74 of 1989. S v Muchindu 1995 (1) SASV 194 (W), this includes Foreign heads of states as well as diplomats. ❖ The President: is both competent and compellable as a witness, the decision to compel him or her to give evidence should not be taken lightly. ❖ Accused – Only competent to testify on behalf of the defence at his own request - section 196(1)(a), Act 51 of 1977 – This is not applicable in inquests - Wessels V Add Magistrate, Johannesburg 1983 (1) SA 530(T). Accused is competent, but not compellable to testify for his co-accused. S v Ntuli 1978 (2) SA 69(A). The primary rule of admissibility is the rule of relevance. The evidence must not only be logically relevant to be admissible but must also be legally relevant. Relevance is a legal rule which has been formulated in s 210 of the Criminal Procedure Act and s 2 of the Civil - 87 - Proceedings Evidence Act. Section 210 states that: ‘No evidence as to any fact, matter or thing shall be admissible which is irrelevant or immaterial and which cannot conduct to prove or disprove any point or fact at issue in criminal proceedings. C. Definition of relevance as defined by case law DPP v Kilbourne (1973) AC 729: “Evidence is relevant if it is logically probative or disprobative of some matter which required proof. I do not propose to analyse what is involved in “logical probativeness”, except to note that the term itself express the element of experience which is so significant of its operation in law, and possibly elsewhere. It is sufficient to say that relevant evidence is evidence which makes the matter which requires proof more or less probable.” R v Mpanza 1915 AD 348: “…. Any facts are…relevant if from their existence inferences may properly be drawn as to the existence of the fact in issue.” S v Mayo 1990 (1) SACR 659 (E): “It is not in the interest of justice that relevant material should be excluded from court, whether it is relevant to the issue or to issues which are themselves relevant to the issue but strictly speaking not in issue themselves, and this includes the credibility of the witnesses, provided that the question of their credibility is in some way related to the issues or matter relevant to the issues.” S v Holshausen 1984 (4) SA 852 (A): “It is necessary to emphasise that logical relevancy of facts for the most part determines their legal admissibility.” In R v Mattews 1960 (1) SA 752 (A) at 758, Schreiner JA held that it is ‘based upon a blend of logic and experience lying outside the law’. Any fact is relevant if, from its existence, alone or in combination with other facts, inferences may properly be drawn as to the existence of the fact in issue. Evidence may be relevant to credibility only and not to an issue; it may then be admissible on that ground. A document containing both inadmissible and admissible evidence does not become inadmissible in its totality – the admissible parts may be presented in evidence. When a dispute arises about the admissibility of evidence, a “trial within a trial” is held to determine admissibility. It must be determined there and then – not only at the end of the trial. However, the finding is not final. - 88 - NOTE: The basic principles mentioned above is to ensure that the prosecution is able to understand the type of evidence presented to court. It is prudent that the prosecution is able to differentiate between admissible and inadmissible evidence. THE MANNER IN WHICH EVIDENCE IS PRESENTED AT COURT The way evidence is presented in court depends on the type and nature of the evidence. There are various methods of presenting evidence to the court without the need to call a witness. These methods will be discussed under the topic of the CPA. See S.212 and S.213 of the CPA. However, evidence, for the most part, is presented by the witness giving his or her oral (viva voca) testimony in the witness box, relating to the sequence of events that transpired on the day in question. ASSESSMENT OF EVIDENCE FROM A PROSECUTORIAL PERSPECTIVE 1. Identify the issues surrounding the facts of the case, namely the elements of the offence, identity and evidence available in support thereof. 2. Identify all the evidence available in the docket that will be used in the presentation of the state’s case. 3. Assess whether the evidence to be presented will assist the court in drawing the necessary inferences after taking a holistic approach to the evidence presented in court. Upon conclusion of this assessment, the prosecutor will be able to evaluate whether the evidence to be presented is relevant and thus admissible. D. ORAL EVIDENCE Firstly, before the prosecution can consider calling a witness in support of proving the elements of an offence, it is necessary to ascertain if there are any provisions in terms of law that will disqualify the witness from testifying in an open court. The following Sections of the Criminal Procedure Act 51 of 1977 sets the foundation when making a determination whether to call a witness to give evidence in a Criminal Court. - 89 - 1. Section 192 of the CPA Every witness competent and compellable unless expressly excluded. Every person not expressly excluded by the Criminal Procedure Act 51 of 1977 from giving evidence shall, subject to the provisions of section 206, be competent and compellable to give evidence in criminal proceedings. Section 206 of the CPA The law as to the competency, compellability or privilege of witnesses which was in force in respect of criminal proceedings on the 13th of May 1961, shall apply in any case not expressly provided for by this Act or any other Law. S v Maduma 1978 (2) SA 777(D): ……… it is a fundamental principle of an ordered society and of a democratic society that witnesses can be compelled to testify as to what they know and that their evidence can be properly tested in a court of law. It may involve great hardship to the witness but the interests of society, or as the Chief Justice put it in Weinberg’s case 1966(4) SA 660(A) ’the demands of justice’ require that he testify. 2. Section 193 of the Criminal Procedure Act 51 of 1977 Court to decide upon competency of witness. The court in which criminal proceedings are conducted shall decide any question concerning the competency or compellability of any witness to give evidence. It should be noted from the onset that there is a difference between competence and compellability. The questions to be asked by the trial court is: (i) Is the witness competent to testify? and (ii) Can the witness be compelled to testify? Parties cannot agree to let an incompetent witness testify – S v Kumalo 1962 (4) SA 432(N). Competence has to do whether the witness being called by the prosecution has the mental capacity to testify. Witnesses who lack the mental capacity to testify are automatically excluded from testifying in an open court. In this instance the focus is on the individual. Compellability: Witnesses are considered compellable who may assist the prosecution in contributing the incident that transpired on that particular day, which resulted in the prosecution of the accused. Here the focus is the evidence to be presented by such a witness and whether in terms of Section 192 of the CPA this witness is a protected person, excluded from being compelled to testify in a court of law. To understand the difference between the two concepts, it is important to look at statutory provisions of the Criminal Procedure Act and how witnesses have been categorized within the - 90 - provisions dealing with the competency and compellability of witnesses to be considered by the prosecution with regard to it presentation of its case. 3. Section 194 of the Criminal Procedure Act 51 of 1977 Incompetency due to state of mind No person appearing or proved to be afflicted with mental illness or to be labouring under any imbecility of mind due to intoxication or drugs or the like, and who is thereby deprived of the proper use of his reason, shall be competent to give evidence while so afflicted or disabled. A witness is incompetent to testify if he is, during the giving of his testimony, deprived of the proper use of his reason - S v Zenzile 1992 (1) SASV 444(C). Where a witness becomes incompetent during his testimony, that part of his evidence given before becoming incompetent as far as it is not in contention, remains standing - S v Vilbro 1957 (3) SA 223(A). See S v Mokie 1992 (1) SASV 430(T). 3.1. MENTALLY CHALLENGED WITNESSES: The basis for dealing with a mentally challenged witness is adequately dealt with in S v Katoo 2005 (1) SACR 522 (SCA). The court, in considering Section 194 of the CPA 51 of 1977, held that “The first requirement of the section is that it must be shown to the trial court that the witness suffers from (1) a mental illness, or (2) that he or she labours under imbecility of mind due to intoxication or drugs or the like. Secondly it must also be established that as a direct result of such mental illness or imbecility the witness is deprived of the proper use of his or her reason. These two requirements must collectively be satisfied before a witness may be disqualified from testifying on the basis of incompetence.” Drunkenness – Competent and compellable – It will affect the credibility of the witness. Deaf witness – Competent and compellable, provided that he can communicate and understand the nature of the proceedings. Section (2) stipulates that viva voce-evidence includes sign-language. S v Ranikolo 1954 (3) SA 255 (O), S v Zenzle 1992 (1) SACR 444 (C) - 91 - 4. SPOUSES AS STATE WITNESSES With regard to the calling a spouse as a witness one needs to specify whether he/she is called by the prosecution, the accused or a co-accused in the matter. Depending on the circumstances there are specific rules that the person calling the witness has to comply with 4.1. Section 195 of the CPA Generally, the wife or husband is competent but not compellable to testify against the other. The fact that the husband or wife may not be a compellable witness in certain circumstances does not disqualify that husband or wife from testifying against the other. He or she may still testify for the prosecution provided that the witness has been made aware of the fact that he/she may not be compelled to testify and still elects to testify. Evidence for prosecution by husband or wife of accused. (1) The wife or husband of an accused shall be competent, but not compellable, to give evidence for the prosecution in criminal proceedings, but shall be competent and compellable to give evidence for the prosecution at such proceedings where the accused is charged with— (a) any offence committed against the person of either of them or of a child of either of them; (b) any offence under Chapter 8 of the Child Care Act, 1983 (Act 74 of 1983), committed in respect of any child of either of them; (c) any contravention of any provision of section 31 (1) of the Maintenance Act, 1998, or of such provision as applied by any other law; (d) bigamy; (e) incest; (f) abduction; (g) any contravention of any provision of section 2, 8, 9, 10, 11, 12, 12A, 13, 17 or 20 of the Sexual Offences Act, 1957 (Act 23 of 1957); [Para. (g) amended by s. 1 of Act No. 49 of 1996 and by s. 4 of Act No. 18 of 1996.] (h) perjury committed in connection with or for the purpose of any judicial proceedings instituted or to be instituted or contemplated by the one of them against the other, or in connection with or for the purpose of criminal proceedings in respect of any offence included in this subsection; - 92 - (i) the statutory offence of making a false statement in any affidavit or any affirmed, solemn or attested declaration if it is made in connection with or for the purpose of any such proceedings as are mentioned in paragraph (h). (2) For the purposes of the law of evidence in criminal proceedings, “marriage” shall include a customary marriage or customary union concluded under the indigenous law and custom of any of the indigenous peoples of the Republic of South Africa or any marriage concluded under any system of religious law. The Sexual Offences and Related Matters Act also needs to be taken into consideration. 5. SPOUSES REQUIRED AS A DEFENCE WITNESS. 5.1. Section 196 of the Criminal Procedure Act 51 of 1977 Evidence of accused and husband or wife on behalf of accused. (1) An accused and the wife or husband of an accused shall be a competent witness for the defence at every stage of criminal proceedings, whether or not the accused is charged jointly with any other person: Provided that- (a) an accused shall not be called as a witness except upon his own application; (b) the wife or husband of an accused shall not be a compellable witness where a co- accused calls that wife or husband as a witness for the defence. (2) The evidence which an accused may, upon his own application, give in his own defence at joint criminal proceedings, shall not be inadmissible against a co-accused at such proceedings by reason only that such accused is for any reason not a competent witness for the prosecution against such co-accused. S v Haibed 1993 (1) PH H18 (Nm) (3) An accused may not make an unsworn statement at his trial in lieu of evidence but shall, if he wishes to give evidence, do so on oath or, as the case may be, by affirmation. Marriage partner as witness called by the court – Section 186 Act 51 of 1977 - 93 - S v Taylor 1991 (2) SASV 69 (C) on 73A-B: In my view, the correct view is that the court can call any witness whom the parties could have called. Where, as in this case, different rules apply in regard to the competence and compellability of a witness who is called by the prosecution, or by the defence, the court’s duty is to ensure that in the interest of justice the accused is not prejudiced. 6. CO – ACCUSED Section 157 (2) of the CPA provides that at any point during the trial, the court may order a separation of trials so that the one accused is no longer a co-accused in the trial of the other. Upon such separation, the co-accused may then give evidence against one another. From the onset it should be noted that a co-accused is not a competent witness for the prosecution. The state may only call a person who had previously been a co-accused to testify under the following scenarios. 1. Where the prosecution withdraws charges against the Accused and considers using this accused as a Section 204 witness as provided in the Criminal Procedure Act 51 of 1977. 2. Where the co-accused has been acquitted of the charge and his testimony may assist the prosecution’s case. 3. Where the accused tenders a plea of guilty and makes a full disclosure in his involvement of the crime with the assistance of the co-accused. 4. If the trials of the accused and co- accused have been separated by some legally valid reason submitted to the court. Further it is advisable that the accused which the state intends calling on to give evidence against a co-accused should be sentenced after his conviction but prior to testifying in court 7. CHILDREN AS STATE WITNESSES Young children are competent witnesses if, in the opinion of the court, they can understand what it means to tell the truth. They must give their evidence sworn or unsworn, depending on whether they understand the meaning and import of the oath. This is sanctioned by section 164 of the CPA. The section - 94 - then provides that, if they cannot take the oath, the judicial officer must admonish them to tell the truth. If the child does not have the intelligence to distinguish between what is true and false, and to recognise the danger and wickedness of lying, he or she cannot be admonished to tell the truth; he or she is then an incompetent witness. A child is deemed to be a competent witness after the court has established the following from the witness: 1. Has sufficient intelligence; 2. Can communicate effectively; 3. Is capable of distinguishing between a truth and a lie and comprehends that it is wrong to tell a lie. The Director Of Public Prosecutions V Hendrik Jacobus Petrus Swartz, Unreported case A906/98 delivered on 2/9/99 in the TPD: On a parity of reasoning, based on the judgement in Jackson’s case supra, it cannot be said that the evidence of children, in sexual and other cases, where they are single witnesses, obliges the court to apply the cautionary rules before a conviction can take place. It does not follow that a court should not apply the cautionary rules at all or seek corroboration of a complainant’s evidence. In certain cases, caution, in the form of corroboration, may not be necessary. In others a court may be unable to rely solely upon the evidence of a single witness. This is so whether the witness is an adult or a child. S v Viveiros (2) All SA 86(A) on 88c-d: In view of the nature of the charges and the age of the complainant it is well to remind oneself, at the outset that, whilst there is no statutory requirement that a child’s evidence must be corroborated, it has long been accepted that the evidence of young children should be treated with caution, and that the evidence in a particular case involving sexual misconduct may call for a cautionary approach. (S v J 1998 (2) SA 984 (A) on 1009b) Cautionary rules should be applied. S v Mashava 1994 (1) SASV 224 (T). No encouragement (S v Shabangu 1963 (3) PH H99 (N)) or threat (S v Jacobs 1970 (2) PH H 152 (K)), may be used to persuade the child to testify. S v Jackson 1998 (1) SACR 471 (SCA) on 473F: In my view, the cautionary rule in sexual assault cases is based on an irrational and out-dated perception. It unjustly stereotypes - 95 - complainants in sexual assault cases (overwhelmingly women) as particularly unreliable. In our system of law, the burden is on the State to prove the guilt of the accused beyond reasonable doubt – no more and no less. The evidence in a particular case may call for a cautionary approach, but that is a far cry from the application of a general cautionary rule. 8. JUDICIAL OFFICERS AS STATE WITNESSES A judge or magistrate may not give evidence, even on a formal matter, in a case that he is hearing. The function of the judicial officer is always to remain objective over the cases they preside. It is for this reason they are considered as incompetent witnesses in respect of the cases that they preside over. Section 4 of the Magistrates Court Act states that a charge sheet is a reflection of the court proceedings and if a dispute of fact arises regarding endorsements on the charge sheet, the presiding officer may testify to clarify the record wherein he is not presiding over. It also permissible for a magistrate to whom a confession has been made, to be called in a trial within a trial if the accused challenges the voluntariness of the confession. See Section 217 of the CPA 9. LEGAL REPRESENTATIVES / PROSECUTORS AS WITNESSES. SECTION 201 OF THE CPA: PRIVILEGE OF LEGAL PRACTITIONER No legal practitioner qualified to practise in any court, whether within the Republic or elsewhere, shall be competent, without the consent of the person concerned, to give evidence at criminal proceedings against any person by whom he is professionally employed or consulted as to any fact, matter or thing with regard to which such practitioner would not on the thirtieth day of May, 1961, by reason of such employment or consultation, have been competent to give evidence without such consent: Provided that such legal practitioner shall be competent and compellable to give evidence as to any fact, matter or thing which relates to or is connected with the commission of any offence with which the person by whom such legal practitioner is professionally employed or consulted, is charged, if such fact, matter or thing came to the knowledge of such legal practitioner before he was professionally employed or consulted with reference to the defence of the person concerned. A mere friendly conversation is not covered S v Green 1962 (3) SA 899 (D). A relationship of legal adviser and client must exist otherwise the communication is not privileged. - 96 -  Where a client makes a confession to an attorney without seeking that attorney’s legal advice in connection therewith, the confession is not privileged information (S v Kearney 1964 (2) SA 495 (A) It is undesirable for legal representatives to be called give evidence on any matter of controversy. The General Rule applicable to both Legal Practitioners as well as Prosecutors is that they are both competent and compellable. However, there is a Legal Professional Privilege that they may rely upon as a just excuse. PRESENTATION OF ORAL EVIDENCE DURING THE DIFFERENT STAGES IN A CRIMINAL TRIAL Under this heading, the role of the prosecutor will be discussed, as to how a prosecutor should deal with its own witness it intends calling: Oral evidence is the most common means used in adducing evidence in a criminal court. As a general rule oral evidence must be given under oath. S v V 1998 (2) SACR 651 (KPA) on 652i – 653a: This capacity to understand the difference between truth and falsehood is thus a prerequisite for the oath, the affirmation and an admonition in terms of section 164. If section 164 is to be resorted to in order to procure the evidence of a child the court must first make the necessary finding that the child does not understand the nature and the import of the oath. To make a finding entails an enquiry. The court must enquire and satisfy itself whether the child understands the oath and understands what it means to speak the truth. See Henderson v S (supra at 597d-g). If the child does not, it cannot be admonished under section 164, it is an incompetent witness, whose evidence is inadmissible. The admission of such evidence is an irregularity which, in my opinion, constitutes a failure of justice per se. The following methods may be used as defined in the CPA 51 of 1977 for witnesses to testify in a criminal court. 10. OATH / AFFIRMATION / WARNING 10.1. Section 162, Act 51 of 1977 - Oath I swear that the evidence that I shall give, shall be the truth, the whole truth and nothing but the truth, so help me God. - 97 - 10.2. Section 163, Act 51 of 1977 - Affirmation I solemnly affirm that the evidence that I shall give, shall be the truth, the whole truth and nothing but the truth. 10.3. Section 164, Act 51 of 1977 – Warning Where any person, because of ignorance arising from youth, defective education or other cause, is found not to understand the nature and import of the oath or affirmation, such person may be admitted to give evidence provided that such person, in lieu, of the oath or the affirmation, be admonished to speak the truth, the whole truth and nothing but the truth. S v Ndlela 1984 (1) SA 223(N): The result, when no oath is taken by a witness of whom is required is that what he then says has neither the character or the status of evidence. There are three (3) significant stages in a criminal trial, within which oral evidence is presented to court. 1. Evidence in Chief; 2. Cross - examination; 3. Re - examination. The purpose of evidence in chief is to put relevant and admissible evidence before the court through oral testimony of a witness in the form of questions and answers. The opposing party will have an opportunity to test the credibility of that witness through cross –examination and the party being the prosecutor who called the witness will be able to clarify issues raised during cross examination in re-examination. The prosecution is not allowed to lead new evidence not canvassed during evidence in chief and or cross examination. Leading questions which are suggestive of an answer is not allowed on a disputed fact but may be allowed when dealing with an undisputed fact but ultimately whether to allow a leading question or not is up to the court. As a general rule, witnesses when giving oral testimony are not permitted to rely on or refer to any form of record including any witness statement, during their oral testimony. Unless there is an application made to allow such witness to refresh his/her memory and that application is granted by the court. (This practical application will be covered during Aspirant Prosecutor Training) The rules regarding the assessment of evidence are there to assist the court in evaluating the evidence presented, evidence that is allowed and admissible in order to arrive at a correct finding of fact. - 98 - Evidence assessment entails the court in analyzing all the evidence, making credibility findings, drawing inferences and finally looking at the probabilities of all the evidence presented. 11. EVIDENCE IN CHIEF 11.1. REFRESHING OF MEMORY OF A WITNESS Due to the complexity of the matter a witness may be given time to refresh his/her memory. There is no general rule which precludes a witness from reading his / her statement before entering the witness box. ❖ The common- law approach is that witnesses should be allowed to refresh his memory before testifying; ❖ Pre- trial refreshment of memory is a procedural right based on a fundamental rule that the witness must be given adequate opportunity to prepare for trial. The legal principles applicable in determining when a witness may refresh is/her memory is based on the following two (2) grounds: 1. The witness wants to refresh his / her memory before his / her testimony or during an adjournment; There is no general rule which prohibits a witness whose testimony has been interrupted by an adjournment to refresh his memory before re-entering the witness box. 2. The witness wants to refresh his/her testimony by referring to a document while in the witness box. COMMON LAW FOUNDATION REQUIREMENTS FOR PURPOSES OF REFRESHING A MEMORY OF A WITNESS. ❖ Personal knowledge of the event ❖ Inability to recollect ❖ Verification of the document used to refresh memory ❖ Confirmation that the document was compiled while the facts contained therein were fresh in his/her memory ❖ Use of the original document ❖ Production of the document. PROBATIVE VALUE OF A DOCUMENT USED TO REFRESH MEMORY ❖ Present recollection revived ❖ Past recollection revived - 99 -  PROCEDURAL ASPECTS OF COMPETENCE AND COMPELLABILITY. When dealing with the procedural issues, a distinction is made between the concepts of compellability and the right of privilege. A person may be compelled to supply information regarding an offence under certain circumstances or to testify or answer question under oath or affirmation during a trial The first scenario we will deal with is where a witness has information in his/ her possession that might assist the prosecution in its case. The criteria being that this witness has material evidence or relevant information regarding an offence that was committed. The remedy that the prosecution has in this instance is to invoke S 205 of the Criminal Procedure Act 51 of 1977. 12. SECTION 205, ACT 51 OF 1977 (1) a Judge of the Supreme court, a regional court magistrate or a magistrate may, subject to the provisions of ss (4), upon request of an Attorney-General or a public prosecutor authorised thereto in writing by the attorney-general, require the attendance before him or any other Judge, regional court magistrate or magistrate, for examination by the Attorney- General or the public prosecutor authorised thereto in writing by the attorney-General, of any person who is likely to give material or relevant information as to any alleged offence, whether or not it is known by whom the offence was committed: Nel v Le Roux and Others 1996 (1) SASV 572 (CC) on 573g: There is nothing in the provisions of section 205, read with section 189 of the Criminal Procedure Act which compels or requires the examinee to answer a question (or for that matter to produce a document) which would unjustifiably infringe or threaten to infringe any of the examinee’s Chapter 3 rights. On 575d: The court accordingly held that the provisions of section 205 of Criminal Procedure Act were not inconsistent with the Constitution. S v Mahlangu 2000 (1) SACR 565 (W) – Headnote: The Court held as far as it could be argued that the applicant was seeking to protect rights which would come under threat once he commenced with the examination, the procedure itself afforded the necessary protection. The applicant’s position could not be likened to that of a witness in a trial. The present situation dealt with the stage in the proceedings prior to the applicant being or becoming a witness: respondent sought his co-operation and still had to decide whether to ultimately use him as a witness. It was only once the applicant started giving the information he had that the respondent would be in a position to assess whether to disclose the information that he had to the witness. It was in the interest of the State to withhold secret information until it became its interest to disclose it as the circumstances demanded. Until the applicant was examined it was not clear what he knew and neither was it possible for the respondent to know what he was going to ask of the applicant as the applicant’s responses would determine that to a large extent. If the applicant was required to answer a question relating to events so long ago that he could not recall them, the lack of recollection might be a ‘just excuse’ and thus he was - 100 - protected. The determination was to be made as and when the facts and circumstances giving rise thereto appeared. His application at the present stage was clearly premature. The Court held further that the position of the applicant could not be likened to that of an accused. As to the complaint that the applicant’s rights under section 32 of the Constitution was infringed, the court held that section 32 was aimed at the protection of the rights of a party seeking information from the State. The applicant was however the one who was under an obligation to give evidence and he had no protectable right not to do so, therefore he had no basis for seeking any information from the State prior to the commencement of the section 205 inquiry. The applicant had not mentioned in his founding papers what specific right or rights he sought to protect by his reliance on section 32. He had been offered immunity in terms of sections 203 and 204 and he was therefore only at risk for the purposes of section 205 itself, namely that if he refused information asked from him without just excuse. 13. RECALCITRANT WITNESS – SECTION 189 A compellable witness may not refuse to attend court, once a subpoena is served on this witness he/she has to attend court otherwise he/she may face a risk of being arrested. This witness may not refuse to take the oath/affirmation or answer any questions without a just excuse. DEFINITION: A witness that: (i) is present, and (ii) required to give evidence, and (iii) refuses to take the oath/affirmation, or (iv) takes the oath/affirmation but then refuses to answers questions or submit a book/document/other evidentiary material to court, and (v) offers no just excuse for his conduct. PROCEDURE WHEREIN A WITNESS REFUSES TO CO-OPERATE IN COURT Witness is entitled to legal representation - S v Nkosi 1990 (1) SASV 509 (N) At the first signs of recalcitrance the witness should be warned in terms of section 189, Act 51 of 1977 Court should ask the accused if he has a just excuse If the witness does not offer a just excuse the court must proceed with the sentencing proceedings - 101 -  A court may impose a sentence of imprisonment not exceeding two (2) years, or where the criminal proceedings relate to an offence listed in Part III of Schedule 2, the court may impose a sentence of imprisonment not exceeding five (5) years. After expiration of the period of imprisonment the accused may be brought to court - Section 189(2) If good cause is shown the court may remit any punishment or part thereof - section 189(3) Section189(7) – Any lower court has jurisdiction to impose prescribed sentence Process can be repeated if the witness is still recalcitrant The courts have ruled the following when dealing with a recalcitrant witness: S v Weinberg 1966 (4) SA 660 (A) – “just excuse” is wider than a mere legal excuse S v Heyman 1966 (4) SA 598 (A) – where the physical and psychological nature of the witness is such that he cannot testify, it would qualify as a “just excuse”. Attorney-General, Tvl v Kader 1991 (2) SASV 669 (A): Even though a witness has reason to fear for his and his family’s safety if he testifies, the demands of society and the interest of administration of justice require that he nevertheless testify. S v Maluleke 1993 (1) SASV 649(T): Even when it is clear that the conduct of the witness constitutes a contravention of section 189(1) he must be given a full and fair opportunity of being heard on sentence. 14. HOSTILE WITNESS – SECTION 190 The rule at common law is that a party may not cross-examine his own witness unless he is impeached. Circumstances dictate who will be the potential witnesses in the matter. The consequence of this is that some witnesses may be reluctant, resentful and blatantly untruthful in an attempt to undermine the case before court. DEFINITION: A witness that shows an antagonistic animus against the party that called him and/or has the intention to prejudice the party that called him Not all witnesses who give unfavourable evidence are hostile. A witness is hostile if he is not desirous of telling the truth to the court at the instance of the party calling him. The mere fact that he gives evidence contrary to what the party calling him expects does not make him - 102 - hostile, nor is the fact that he has made a previous inconsistent statement necessarily conclusive - Hoffmann p.351 FACTORS TO BE CONSIDERED (i) Conduct and attitude in the dock - S v Steyn 1987 (1) SA 353(W) (ii) Relationship of the witness to the opposing party - Meyers Trustees V Malan 1911 TPD 559 (iii) Previous conduct towards the party that called him (iv) Circumstances of the case - City Panelbeaters v Bhana and Sons 1985 (2) SA 155(D) (v) Nature of the evidence that he gives, e.g. unsuspecting, unfavourable. (vi) Previous inconsistent statements made by the witness - S v Jabaar 1982 (4) SA 652(K) (vii) Nature of the contradictions (viii) Prejudice shown towards other witnesses, accused (ix) Explanation given for the contradictions PROCEDURE A court can never mero motu declare a witness a hostile witness, it can only do so at the request of the party that called him. The onus is on the applicant to prove that the witness is a hostile witness. This can be either by addressing the court from the dock or by leading evidence. The manner in which one may counter such evidence is either by calling other witnesses to contradict such evidence; or using the statement against this witness and or applying to court to declare this witness as a hostile witness. EFFECT OF IMPEACHMENT. The witness can, after being declared a hostile witness, be cross-examined by the party that called him. The evidence given by the witness is not excluded per se. - 103 - 15. DISCREDITING OF OWN WITNESS – SECTION 190(2) The witness, through his evidence is prejudicing the party that called him. It is not necessary that the witness show a hostile animus against the party that called him. The party that called him only has to prove that the deviation in the evidence of the witness is material. The mere proof of a previous inconsistent statement suffices. PROCEDURE The party that called him informs the court that he is planning to discredit his own witness. This can be done at any stage of the proceedings, but tactically it would be better to do it during re-examination because the other side is then prevented from cross-examining the witness. Put question to the witness about his statement Hands the statement in as an exhibit Request the witness to explain the contradictions The witness is then discredited Where the witness denies any of the facts it must be proved by means of a trial-within-a- trial ◼ Address the presiding officer ◼ Lead evidence as to the voluntariness of the statement ◼ Call interpreter and corroborating witness, if necessary EFFECT OF DISCREDITING The cogency of a discredited witness`s evidence will depend on the facts. The mere fact that a witness lied on one particular point does not preclude the court from accepting his evidence on other points – R v Gumede 1949 (3) SA 749 (A). The party who discredited the witness may therefore request the court to reject the evidence of such a witness for as far as it contradicts the rest of the evidence and still accept the evidence that is in line with the rest of the evidence. - 104 - R v W and another 1960 (3) SA 247 (OK): Now it is no doubt competent for a court, while rejecting one portion of the sworn testimony of a witness, to accept another portion; but where a witness is clearly perjuring himself in matters of great importance, there should be very good reasons to justify a court in finding that in other respects he is speaking the truth. 16. INDEMNIFYING OF WITNESS –SECTION 2O4, ACT 51 OF 1977 The indemnifying of a witness from prosecution takes place in accordance with the provision of section 204, Act 51 of 1977 when a person who might incriminate himself, is used as a witness for the prosecution. Normally a witness is entitled to call on the privilege against self- incrimination as set out in section 203, Act 51 of 1977. PROCEDURE When the witness is called to the witness dock the prosecutor will inform the court that a request for indemnity will be made. The prosecutor acts in his own discretion and may offer indemnity without authority from the Director of Public Prosecutions – S v NDABENI 1959(2) ALL SA 630(EC) The prosecutor specifies the crimes/offences the witness would require to be indemnified from. The court must satisfy itself that the witness is indeed a competent witness. The witness is then informed that he is obliged to testify. The court informs the witness that during his testimony certain questions would be put to him, which might require from him to incriminate him. The witness is then informed that, should he answers such questions frankly and honestly, he/she will be, at the end of the proceedings be discharged from prosecution on the offences specified by the prosecutor - S v Mnyamana 1990 (1) SACR 137(A). In S v Ncube 1976 (1) SA 798(RA) it was considered an irregularity to inform the witness that he must testify to the ‘satisfaction of the court’. It is also an irregularity to compare a witness’s testimony to his statement to the police and then decide that he did not answer ‘frankly and honestly’ – S v Banda: In re Zikhali 1972 (4) SA 707(NC). - 105 - 17. CROSS – EXAMINATION OF A WITNESS SECTION 166(1) is the enabling provision REQUIREMENTS Courtesy - S v Tswai 1988 (1) SA 851 (K) Fairness – provocative cross-examination can lead to an irregularity in the proceedings and cause the conviction to be set aside on review or appeal - S v T 1986 (2) SA 112 (O) Honesty - S v Kubeka 1982 (1) SA 543 (W) Admissibility – No cross-examination is allowed on inadmissible evidence - S v Nkwanyana 1978 (3) SA 404 (N) LIMITATION OF THE RIGHT TO CROSS-EXAMINATION I.T.O SECTION 166(3) If it appears to a court that any cross-examination contemplated in this section is being protracted unreasonably and thereby causing the proceedings to be delayed unreasonably, the court may request the cross-examiner to disclose the relevancy of any particular line of examination and may impose reasonable limits on the examination regarding the length thereof or regarding any particular line of examination. The court may order that any submission regarding the relevancy of the cross-examination be heard in the absence of the witness FAILURE BY THE STATE TO CONDUCT CROSS-EXAMINATION This may, in certain circumstances, have the effect that the State fails to prove its’ case beyond reasonable doubt. S v Manicum 1998 (2) SACR 400 (NPD) S v Katamba 2000 (1) SACR 162 (NmS) – Headnote: It is advisable for State counsel, when cross-examining an accused, to challenge specific facts in the accused’s evidence, which the State wishes to suggest as false. However, when state counsel challenges the whole of the accused’s exculpatory evidence, by suggesting that it is untrue and putting the essence of the State’s case to the accused, the mere fact that one of the exculpatory facts alleged by the accused, which is inconsistent with the State’s case, is not specifically challenged by State counsel, cannot be regarded as an implied admission by the State of the accused’s evidence on that point. - 106 - 18. RE-EXAMINATION OF A WITNESS SECTION 166(1) Act 51 of 1977 is the enabling provision THE PURPOSE AND SCOPE A PROSECUTOR / LEGAL REPRESENTATIVE MAY RE- EXAMINE A WITNESS S v Ramalope 1995 (1) SASV 616 (A): on 619C: The right of a party to re-examine his or her witness is, therefore, not a privilege or favour granted by the court, but a legal right, statutorily entrenched. S v Ramalope (supra) on 619J - 620A : Generally speaking, the object of re-examination is to clear up any point or misunderstanding which may have occurred during cross-examination; to correct wrong impressions or false perceptions which may have been created in the course of cross-examination, to give the witness a fair opportunity to explain answers given by him under cross-examination, which, if unexplained, may create a wrong impression or be used to arrive at false deductions; to put before the court the full picture and context of fact elicited during cross-examination; or to give the witness an opportunity, to correct patent mistakes made under cross-examination…All these objectives are covered by section 166(1). The examples quoted above are not intended to be a numerus clausus. Re-examination can be, and frequently is, a very important mechanism for presenting a full and fair picture of the evidence of a witness and thus arriving at the truth. Of course, if council wishes to deal with new matter (i.e. not arising from cross-examination) he requires the leave of the court to do so. 19. COURT CAN EXAMINE A WITNESS SECTION 167 enables the court to call back any witness to testify S v Sigwahla 1967 (4) SA 566 (A): A judicial officer should ever bear in mind that he is holding a balance between the parties, and that fairness to both sides should be his guiding star, and that his impartiality must be seen to exist. There are occasions, particularly where a party is unrepresented, when the judicial officer will properly take some part in the examination of a witness; but in the main, and as far as is reasonably possible, he will usually tend to leave the dispute to the contestants, interrupting only when it is necessary to clarify - 107 - some point in the interests of justice. Thereby he is better able to form objective appraisals of the witness who appear before him, and avoids creating wrong impressions in the minds of those present. The party that originally called the witness cannot cross-examine the witness. GUIDELINES SET DOWN FOR QUESTIONING BY THE COURT Set down in S v Rall 1982 (1) SA 828 (A) It must be done such a manner that the impartiality of the court is at no stage questioned The court must at no stage become so involved in the questioning that it clouds the issues The court must at no stage intimidate or upset the witness in such a manner that it weakens his answers and effect his credibility See in general S v Gerberts 1997 (2) SACR 601 (SCA). Section 186, Act 51 of 1977 – The court may subpoena a witness, not present, to testify. The only question should be whether it is in the interest of justice to do so, if the answer is in the affirmative, the witness should be called to testify - S v Qunika 1989 (4) SA 869 (WLD). This witness is then the witness of the court and both parties would be entitled to cross- examine. This section differs from s.167 in that the court calls a witness that was not called to testify by either the State or the defence. R v Hepworth 1928 AD 265: A judge is an administrator of justice, he is merely a figure head, he has not only to direct and control the proceedings according to the recognised rules of procedure but to see that justice is done. PROCEDURES: The witness must be a competent witness. See sections 192 and 194 of Act 51 of 1977, and S v Jamba 1947 (4) SA 228 (C) Witness must give admissible evidence - S v Zakeyu 1957 (3) SA 198 (C) The court is not entitled to call the accused as a witness - 108 -  Both parties must be given the opportunity to refute the evidence tendered by the court’s witness S v Lubbe 1966 (2) SA 70 (O) Witness can be called at any stage of the proceedings - S v Van Molenddorf 1987 (1) SA 135 (T) E. REAL EVIDENCE Real evidence is any object that is tangible upon inspection and identification, the mere identification in court becomes evidence of the said object. There various types of real evidence, below are just a few examples used daily in court: Appearances of the accused. Video footage and or recordings Documents – to prove the existence of the documents but NOT THE CONTENTS thereof Fingerprints Weapons in the form of a knife, firearm, axe Handwriting samples Blood tests Tape recordings 1. ADMISSABILITY REQUIREMENTS: The evidence mentioned above must be relevant to the current proceedings before the court. The basic requirement is that the evidence has to be properly identifiable and that there are no exclusionary provisions in terms of legislations dealing with the rule of evidence. The witness will have to correlate his testimony in accordance with the real evidence and how the presentation of the real evidence is applicable to the commission of the offence the accused is charged with. IDENTIFICATION AND PURPOSE OF REAL EVIDENCE BEING PRESENTED IN COURT: The court independently will make its own observations regarding the presentation of the real evidence before court. - 109 -  2. APPEARANCES OF PERSONS The court may note the following appearances / features of a person under the following circumstances: After having heard the testimony of the witness, the court may inspect any wounds and or injuries sustained by the witness including an accused who testifies regarding wounds and or injuries sustained at the time of the commission of the offence. Where the identity of the person is in question. Identifying specific characteristics and of features like scars or tattoos. To determine the competency of a specific person / witness. 3. VIDEO FOOTAGE: With the increasing accessibility of technology for everyday people, things are starting to get digitalized: digital camera, digital cable, digital sound, and digital video. It is no longer the case where a video production is only possible for specialized studios. The purpose of submitting video, audio or photographic evidence to a court is usually to prove the truth of the contents of these recordings. The requirements for admissibility of this kind of evidence have, for many years, been a cause of judicial inconsistency. The difference in approach by the Natal Provincial Division on the one hand and those of other divisions, on the other hand, has far-reaching consequences when it comes to admissibility of these recordings. The Natal Provincial Division considers these types of evidence as documentary evidence. The inevitable result is that the common law requirements for the admissibility of documents, namely, originality, authenticity and truth of the contents, are applicable to these recordings. The judgments of the other provinces referred to take the position that these recordings are not documentary evidence but real evidence. The requirement of the evidence being ‘original’, for admissibility cannot be defended: The unavailability of the original of electronic emanated evidence does not affect its admissibility. Disturbances, interferences and where portions are destroyed, only affects the evidential weight and not its admissibility. - 110 -  3.1. PRESENTING VIDEO AND AUDIO EVIDENCE: The prosecutor must know what kind of evidence it is, to be able to know if there are any admissibility requirements! Must see the videos before presenting it. Ideal to watch videos together with person that made the recording. In S v Baleka and Others (1) 1986 (4) 192 on 199 F-G the court found the following: ‘In my view tape sound recordings and tape video recordings and a combination of the two are real evidence to which the rules of evidence relating to documents are not applicable’. See also: S v W 1975 (3) SA 841 (T) on 843A (Photo and video tape) S v Fuhri 1994 (2) SACR 829 (A) (Photo) 3.2. POSSIBLE OBJECTIONS BY DEFENCE: 1) Not originals – Refer court to S v Baleka and Others supra (Not necessary to be originals) 2) Not authentic – Argue that it does not relate to admissibility but to evidential weight. S v Baleka supra. (No trial within a trial) 3) That it was tampered with and therefore not a true version of what happened – Adduce chain evidence to proof the contrary. (Evidential weight – credibility question, thus no trial within a trial necessary) The case law dealing with the status, admissibility and cogency of audio and video tapes as evidence are not in harmony. In S v Mpumlo & others 1986 (3) SA 485 (E) Mullins J found that a video film was not a document (at 488H) but constituted real evidence which, provided it was relevant, could be produced as admissible evidence subject to any dispute that might arise concerning its authenticity or interpretation (at 490H). The film in that case was a copy and no evidence had been adduced as to the whereabouts of the original or the correctness of the copy. The lack of such evidence, Mullins J found (at 492C–D), 'would not affect the admissibility of the video film, but only if the authenticity thereof - 111 - was attacked, the weight to be attached thereto'. He expressly excluded from the ambit of these remarks, however, cine films (which he regarded as being far more akin to a photograph (at 489–90)) and audio tapes (which, he suggested, may be governed by different principles (at 492H)). In S v Ramgobin & others 1986 (4) SA 117 (N), however, Milne JP found himself 'unable to see any difference, in principle, between the admissibility of an audio tape recording and a video tape recording' (at 129). For such tapes to be admissible against an accused person in criminal proceedings he found the State had to prove the following beyond reasonable doubt: (a) that they were original; (b) that they had not been interfered with; (c) that they related to the occasion to which it was alleged they related; (d) that they were faithful; (e) that they proved the identity of the speakers; and (f) that they were sufficiently intelligible to be placed before the trier or triers of fact. In regard to the need for proof of accuracy, he added, there must be a witness to the event purportedly recorded who is able to testify that it accurately portrays that event. It need not be the person who made the recording but may be anyone who witnessed the event. In laying down these requirements Milne JP expressly rejected the approach taken by Mullins J in Mpumlo. He found authority for his view in the decisions of the English, American and Canadian courts, the only Appellate Division decision in point (viz S v Veii 1968 (1) PH H49 (A)), and the decision in S v Singh & another 1975 (1) SA 330 (N). He accordingly excluded evidence of two audio tape recordings of extremely poor quality, holding that since they were inaudible there was no basis upon which the accused, their counsel, the court or anyone else could consider them. Singh's case was, however, rejected in S v Baleka & others (1) 1986 (4) SA 192 (T) where Van Dijkhorst J took the view (at 199F–G) that 'tape sound recordings and tape video recordings and a combination of the two are real evidence to which the rules of evidence relating to documents are not applicable'. The principle in Mpumlo's case which dealt with the visual component of video tapes should, he found, be extended to govern the aural component of both video and audio tapes. Subsequently, in S v Baleka & others (3) 1986 (4) SA 1005 (T) Van Dijkhorst J (at 1023E) found himself unable to agree with the 'stringent test for admissibility' laid down by Milne JP in S v Ramgobin. His conclusions may be summarized as follows: (a) The Ramgobin test derives from the real danger that tape recordings may be altered in such a way that even experts cannot detect the alteration. But it is absurd to exclude evidence merely because it is potentially dangerous where its correctness has not even been challenged or placed in issue. All evidence—even viva voce testimony—is potentially - 112 -  dangerous, but a court will not disregard it unless it is shown that these dangers are real and not illusory. Thus, an eyewitness may be cross-examined, and a tape recording may be 'gainsaid by calling the speakers themselves or members of the audience to cast doubt on its authenticity and veracity' (at 1023F–G). (b) Although the State will ultimately have to convince the court of the reliability and accuracy of a recording, there is no reason why this has to be done before the final argument at the end of the case. All that need be established for admissibility is that prima facie the recording has some probative value. (c) Reliability and accuracy need not be proven solely by the viva voce evidence of a witness who saw and heard the events recorded: even circumstantial evidence may in appropriate cases be sufficient. (d) There is no ground or authority for applying the best evidence rule to evidence of tape recordings: proof of originality is therefore not a prerequisite to the admissibility of such evidence. (e) The test laid down by Milne JP in respect of the authenticity of a recording is too wide. No hard and fast rule should be applied since even a tape that is partly unintelligible or 'interfered with' may be relied on by a court if it finds that the balance of the recording is reliable. In sum, Van Dijkhorst J found, tape recordings should be treated in the same manner as any other type of real evidence. It is admissible if it is relevant; it is relevant if it has probative value; and it will only have probative value if it is linked to the issues to be decided. This link will often have to be supplied by evidence of identification of the voices on the tape in cases where the identity of the speaker is in issue. However, at this stage of the proceedings no more than prima facie proof is necessary, and it is only at the end of the case that the dangers inherent in such evidence have to be weighed. In S v Nieuwoudt 1990 (4) SA 217 (A) the Appellate Division found it unnecessary, on the facts of the case, to choose between the approaches taken by the courts in Natal and the Transvaal. Hefer JA expressed the view, nevertheless, that the latter approach seemed to be preferable. He went on to say, however, that even if proof of authenticity was a prerequisite for the admissibility of a tape recording, the recording could not be excluded solely on the ground that interferences ('steurings') in the form of erasures, substitutions or insertions appeared in it. Whereas every interference had to be examined because of the danger of - 113 - distortion, not every interference necessarily or even probably pointed to a lack of authenticity. Hefer JA pointed out that it would be absurd to exclude a recording solely because of an accidental erasure and said that the same applied to deliberate interferences in circumstances where the remainder of the recording was not distorted. The crucial question was whether the State had excluded the reasonable possibility of a false recording, and that question had to be answered by having regard to the cumulative effect of all available indications; the State was not expected to exclude every separate factor which might weigh in favour of the defence. Further support for the Baleka approach in preference to the Ramgobin approach is to be found in S v Fuhri 1994 (2) SACR 829 (A), where Hefer JA again found himself unable to agree with some of the remarks made by Milne JP in Ramgobin. In Fuhri it was held that where the ability of a 'speed camera' to measure the speed of a vehicle and to record it and its reliability were not in issue, and where it was common cause that the apparatus had been correctly set up and put into operation, a photograph taken by that camera was admissible even where there was no witness who could verify that it was a true image of what had appeared in front of the lens of the camera at the critical moment. The trustworthiness of the process could, in the court's view, be judicially noticed as too notorious to need evidence, since the science of speed photography had advanced to a sufficient degree of general recognition. One of the issues in S v Koralev & another 2006 (2) SACR 298 (N) was the admissibility of certain pornographic images, found on the computer of one of the appellants, which had either been downloaded from the Internet or transferred from a digital camera. The court referred to the different views expressed by the courts in Natal and the Transvaal (discussed above) as well as the judgment of Hefer JA in S v Fuhri (supra) and reached these conclusions: First, that, since in the modern age such images can be and are tampered with (and with ease) because of the available technology, it is 'essential for evidence in relation to such images to be approached with extreme caution' (at 307 e–f ), so that one can accept and rely on such evidence only where due and proper compliance with these requirements has taken place. Second, before the evidence could be received, there had to be some proof of their accuracy in the form of corroboration that the events depicted actually occurred. This corroboration must be found in some independent source of evidence which makes the evidence constituted by the images 'more acceptable in that it supports an aspect or aspects thereof' (at 307 a–b). The court found that it would be extremely unsafe to rely solely on the evidence of the images to convict the appellants on a charge of unlawfully possessing child pornography: the - 114 - computer was accessible to at least two other people, apart from the appellants (who were husband and wife). It disagreed, too, with the finding of the magistrate that the images were 'original' images. In its view the original images would have been those contained on the camera disk or the original source from which the images had been loaded onto the Internet site. Koralev's case thus clearly leans more toward the views expressed in Singh and Ramgobin than those endorsed in Baleka (1) (supra) and Baleka (3) (supra). Its insistence on proof of originality and corroboration goes beyond the less formal test put forward in the latter cases. The Supreme Court of Appeal in Mdlongwa 2010 (2) SACR 419 (SCA) 427f-h has finally given a conclusive judgement on this issue where it held undeniably and unequivocally that video evidence is real evidence and that it need not be established that the original footage was used in order to have it introduced into evidence. The basic evidentiary rule is that all relevant evidence is admissible unless excluded either by the common law or by statute. See Ex Parte Rosch 1 All SA 319 (W); R v Trupedo 1920 AD 58 62 and R v Katz 1946 AD 71, 78. 3.3. TRIAL-WITHIN-A-TRIAL A trial-within-a-trial may be conducted to allow a party to identity (authenticity) the electronically emanated evidence to prove the admissibility of that evidence. The court is obliged to listen to the recordings during the trial-within-a-trial in order to adjudicate admissibility of the tapes. This situation is not analogues to the admissibility of a confession since the contents of the recording cannot be equated with the contents of a confession. See Motata v Nair 2009 (1) SACR 263 (T). The trial-within-a-trial procedure followed in the Motata case can be contrasted with the different approach taken by the trial court and approved of by the appellate division in Nieuwoudt 1990 (4) SA 217 (A) 231B. In the Nieuwoudt case, the defence objected to the admissibility of the tape recording on the basis that it is not authentic but a fabricated tape recording. No trial-within-a-trial was held but the court followed the procedure adopted by a full bench in Singh 1975 (1) SA 330 (N). The State, with the consent of the defence, submitted - 115 - all its evidence in the main trial, including evidence on the authenticity of the tape. After closure of the State’s case, the defence lead all its evidence on this issue. The State and the defence only argued on the authenticity of the tape recording during their final arguments and the court only dealt with it during its final judgement. The appellate division concluded that this procedure was undoubtedly the more practical one because the question of authenticity of the tape was closely related to the credibility of a number of witnesses, which could at best be adjudicated after hearing all the evidence. 4. DOCUMENTS A document may provide probative value in so far as the contents are fixed and may give a clear indication and or interpretation of the facts in issue, for example, in fraud cases. However, there is a concern that documents may be falsified and thus it is crucial for the author to validate the authenticity of the contents as well as the originality thereof. The main requirement for a document to be used in court is that the prosecutor needs to prove its originality as well authenticity before it can be admissible in court. Besides the law of evidence there are various other statutes that makes provision for the handing in of documentary evidence, for example S 212 of the CPA, The Electronic Communications and Transactions Act and the recent promulgation of the Cyber Crime Act. 5. INSPECTIONS IN LOCO This form of evidence allows the court to inspect a scene of crime as a result of this inspection the court is able to follow the testimony of the witness clearly as well as there may be certain factors omitted in the testimony which may allow the court to draw inferences which may strengthen or negate the version of the witness in so far as corroboration of the evidence is being considered. 6. FINGERPRINTS AND HANDWRITING This form of evidence is not visible to a lay person and as such, a subject matter expert will testify as to the features of both the fingerprints as well as the disputed handwriting sample. This aspect will be dealt with more under Expert / Opinion Evidence below. - 116 -  7. BLOOD TESTS AND DNA Blood tests are used a lot in criminal matters wherein the prosecution will lead evidence to prove offences like driving under the influence and DNA results for either paternity tests and or to link the accused in matters stemming from a sexual nature. In terms of the S37 of the Criminal Procedure Act 51 of 1977, no suspect may refuse to give a blood sample. 8. TAPE RECORDINGS Tape recording may be admissible as real evidence only if the prosecution is able to prove the following: 1. The court is satisfied on the mere production thereof it is prima facie original; 2. The recording is identifiable; 3. Evidence is led to identify the participants in the recording; 4. The court is able to draw an inference from the contents of the conversation; 5. Any transcription of the recording, also accompanied by a transcriber’s certificate. F. DOCUMENTS AND DOCUMENTARY EVIDENCE Includes any device by means of which information is recorded or stored [s 221(5) CPA]; To simplify: If one needs to read or listen to and interpret the content of evidential material in order to draw certain inferences, it will be documentary in nature. Seccombe V Attorney-General 1919 TDP 270: The word “document” is a very wide term and includes everything that contains the written or pictorial proof of something. It does not matter of what material it is made. If it contains in writing or in cyphers proof of some facts it is a document, and the fact that a number of leaves happen to be bound together so as to take the appearance of a book cannot make any difference. If in fact it contains written proof of facts, it is a document. - 117 - There are 3 types of documents, each with their own definition - Official Documents, Public Documents and Private Documents. Generally, all documents which cannot be classified as either public or official, will be a private document. Step 1 Identify the legal principles that should be applied Common law; Statutory law; or Both. 1. THE REQUIREMENTS FOR ADMISSIBILITY The general rule is that no evidence may be used to prove the contents of a document except when the original is available. The court may allow secondary evidence only if copies of the secondary evidence can be authenticated regarding the contents through oral evidence. AT COMMON LAW Original (primary evidence; best evidence) Ideally, the original document/ video footage must be presented; Normally there will only be one original document / video footage but the possible existence of duplicate or multiple originals may exist; The following are examples of exceptions to the rule that the original document / video footage must be presented: Where the original was destroyed or cannot be found after diligent search or non-production can be satisfactorily explained; Where the original is in the possession of the opposing party; Where production of the original will be illegal (e g driver’s licence); Where a statutory provision dispenses with presentation of the original. - 118 -