BWR 310

NOTES – SEMESTER TEST 2

 STUDY UNIT 4 - SIMILAR FACT EVIDENCE

 STUDY UNIT 5 – CHARACTER EVIDENCE

 STUDY UNIT 6 – OPINION EVIDENCE

STUDY UNIT 4
SIMILAR FACT EVIDENCE
➔ STUDY OUTCOMES

➔ RELEVANCE

➔ WHAT ARE SIMILAR FACTS?

➔ SIMILAR FACT EVIDENCE

➔ THE ADMISSIBILITY OF SIMILAR FACTS

➔ THE GENERAL RULE AGAINST ADMISSIBILITY

➔ EVOLUTION OF THE SIMILAR FACT RULE

➔ NEXUS & COINCIDENCE

➔ OTHER EVIDENCE

➔ EXCLUSION OF SIMILAR FACT EVIDENCE

➔ SUMMARY OF HOW TO DETERMINE RELEVANCE

 STUDY OUTCOMES

➔ Explain the concept of similar fact evidence & understand that it involves
2 different sets of facts

➔ Discuss & apply the admissibility of similar fact evidence

➔ Evaluate the reason for the general rule against the admissibility of
similar fact evidence

➔ Explain the types of prejudice against the accused that could result from
the admission of similar fact evidence

➔ Discuss & evaluate the evolution of the similar fact evidence rule
pursuant to the following cases: Makin v Attorney-General, R v Straffen,
DPP v Boardman & S v D

➔ Explain the relationship between the nexus requirement &

coincidence, in particular, the test for coincidence

➔ Explain the dependence of the relevance of similar fact evidence on other

available evidence pursuant to R v Ball

➔ Discuss the exclusion of similar fact evidence in accordance with

Laubscher v National Foods
RELEVANCE

RELEVANT EVIDENCE

PRE - CONDITION FOR ADMISSIBILITY

Evidence with the POTENTIAL

To make the existence of ANY FACT IN ISSUE

MORE PROBABLE OR LESS PROBABLE

 WHAT ARE SIMILAR FACTS?

A PARTY IN THIS CASE USUALLY REFERS TO THE

ACCUSED, BUT IT CAN BE ANY PARTY INCLUDING A
WITNESS SUCH AS THE COMPLAINANT

SIMILAR FACTS ARE EVIDENCE THAT SHOWS A PARTY TO THE PROCEEDING HAS BEHAVED

THE SAME WAY ON OTHER OCCASIONS AS HE HAS ALLEGEDLY BEHAVED IN THE CASE

WHICH IS CURRENTLY BEING CONSIDERED BY THE COURT

2 SETS OF FA CTS

THERE ARE 2 SETS OF FACTS

FACTS NOW IS ISSUE BEFORE FACTS SIMILAR TO THE FACTS

THE COURT IN ISSUE

1ST SET OF FACTS, THESE ARE THE FACTS 2ND SET OF FACTS, BUT THESE FACTS
UPON WHICH THE COURT MUST MAKE A THEMSELVES ARE NOT IN ISSUE
DECISION

EXAMPLES

➢ George is charged with dealing in dagga & the state wants to introduce evidence showing that George
has dealt with dagga on previous occasions.
➢ The first set of facts is the fact that George is charged with dealing with Dagga now.
➢ The second set of facts is similar in that George has previously dealt in Dagga, but those previous
convictions are not at issue themselves, so they are not trying to convict him of the previous dealings,
but they want to introduce it to show similar facts/behavior.

➢ Jennifer is trying to dispute the admissibility of a confession she made while in detention. She held that
the confession should not be admissible because the police used improper interrogation techniques and
she wants to show evidence that the police had used improper means of interrogation in other
interrogations.
➢ The first set of facts is the issue before the court & in this case, it is the confession obtained by the
improper means of interrogation
➢ The second set of facts is similar facts presented as evidence that shows that the police have on other
occasions used improper means of interrogation
 SIMILAR FACT EVIDENCE

❖ GENERAL ASPECTS REGARDING SIMILAR FACTS SUCH AS

 Similar facts may amount to character evidence

 Similar facts must conform to the evidence requirements of character evidence

 Similar fact evidence can be regarded as circumstantial evidence from which the
courts must draw a reasonable inference

 Similar fact evidence may amount to a crime or a delict

 Similar fact evidence can serve before immoral conduct

 Similar fact evidence is commonly used in criminal cases by the state against the accused

 In this case there is nothing prohibiting the accused to use similar fact evidence if
it is to his advantage

 Such as the accused can use similar fact evidence to establish the defense

 SIMILAR CONDUCT BEFORE AS WELL AS AFTER THE FACTS IN ANY ISSUE MAY
BE ADMISSIBLE
 THE ADMISSIBILITY OF SIMILAR FACTS

G ENERA L

❖ Similar fact evidence IS GENERALLY INADMISSIBLE BECAUSE SUCH FACTS ARE

DEEMED IRRELEVANT

❖ THE MOST IMPORTANT EVIDENTIARY ASPECT IS THAT THERE MUST BE A LINK [NEXUS]

 THE NEXUS REQUIREMENT

REQUI REM ENT FOR A DMI SSI BI LI TY

❖ The admissibility of similar fact evidence involves THE NEXUS REQUIREMENT

❖ FOR SIMILAR FACT EVIDENCE TO BE ADMISSIBLE THERE MUST BE A LINK

 A LINK BETWEEN THE [FACT IN ISSUE] & [THE SIMILAR FACT]

THE PROBANDUM THE PROBANS

❖ The link must BE RELEVANT

 The nexus requirement is a way of showing that evidence must be relevant
 The RELEVANCE MUST BE SOMETHING OTHER THAT CHARACTER ALONE

❖ The link must be MORE THAN MERE SIMILARITY

 The facts must be LINKED BY A CHAIN OF CAUSE & EFFECT in some assignable way

EXAMPLE
Max & Ben has a contract
The fact that Max’s contract with Ben contains a particular provision that Max includes in all of his
contracts
This particular provision cannot be proven by means of showing evidence that all his other contracts
also include that provision
MERE SIMILARITY IS NOT ENOUGH
RELEVA NCE OF THE FA CT I N I SSUE

❖ SIMILAR FACT EVIDENCE WILL ONLY BE ADMISSIBLE IF THE SIMILAR FACT IS RELEVANT
TO THE FACT IN ISSUE

❖ A key element is THE DEGREE OF RELEVANCE

 The degree of relevance is the element that counts

 Some rational connection between the facts is not enough

❖ FOR SIMILAR FACTS TO BE ADMITTED

 Similar facts must have inherent power to assist in either proving or disproving the issue

 In this case inherent power means PROBATIVE VALUE

 The admission of similar fact evidence is exceptional therefore a strong degree of

probative force is required
 THE GENERAL RULE AGAINST ADMISSIBILITY

THE RULE AG AI NST THE A DMI SSI BILI TY OF SIMI LAR FA CT EVI DENCE

❖ THE GENERAL RULE IS THAT SIMILAR FACT EVIDENCE IS INADMISSIBLE

❖ Similar fact evidence IS GENERALLY INADMISSIBLE BECAUSE SUCH FACTS ARE

DEEMED IRRELEVANT

❖ Similar fact evidence is IRRELEVANT BECAUSE ITS PREJUDICIAL EFFECT

OUTWEIGHS ITS PROBATIVE VALUE

❖ As a rule, the STAE IS NOT ALLOWED TO EVEN HINT TO ANYTHING THAT MIGHT

ZEFFERT & PAIZES

INDICATE THAT THE ACCUSED HAS A CRIMINAL NATURE OR A BAD CHARACTER

❖ This rule prohibits any evidence that could further the forbidden line of reasoning

❖ Any evidence that is used for the sole purpose to support the inference of showing that the
accused has a bad character or a criminal nature

THE DEVELOPM ENT OF THE RULE AG AI NST SI MI LA R FA CT EVI DENCE

❖ The general rule against similar fact evidence was DEVELOPED WITH THE IDEA OF A JURY
SYSTEM, but trial by jury has been abolished in SA

❖ THE MAIN QUESTION IS:

 Do we still need a rule against similar fact evidence?
 Because we must always measure everything through the lens of the Constitution
 And every person has the right to a fair trial it is a Constitutional right
 This right must be used to control the admissibility of similar fact evidence
 ❖ The general rule against the admission of similar fact evidence WAS DEVELOPED TO
PREVENT JURIES FROM BEING PREJUDICED BY SUCH EVIDENCE

EXAMPLE

The use of similar fact evidence might make a jury aware of previous bad conduct & behavior of an
accused

In such a case the jury may decide that the accused must be guilty because he has previously
behaved bad, therefore he deserves to be punished regardless of whether there is enough evidence
to prove the current crime the accused is now being charged with

THE PREJUDICIA L EFF ECT OF SIM ILA R FA CT EVI DENCE

 Apart from the Constitutional provision similar fact evidence is generally irrelevant because
its prejudicial effect outweighs its probative value

 THERE ARE DIFFERENT TYPES OF PREJUDICE

➢ Similar fact evidence is usually irrelevant because it DOES NOT DIRECTLY RELATE TO
THE ISSUE BEFORE THE COURT

 In this case, the accused is put in a position where he must not only defend
himself against the current offense but he will also need to defend himself against
his past misconduct

➢ Similar fact evidence can be PROCEDURALLY INCONVENIENT

 It can be procedurally inconvenient because the accused is taken by surprise

➢ Similar fact evidence can also RAISE MANY COLLATERAL ISSUES such as

 It can be distracting
 It can be very time-consuming
 It can be expensive to investigate

➢ Similar fact evidence can UNDERMINE PROPER ADMINISTRATION

 Because it encourages inefficient police investigation

  There are different prejudicial factors, and, in each case, the prejudicial
factors can be different with that in mind, how do we develop and
formulate a workable general rule to determine the accessibility if you
must consider every single type of prejudice that could be involved, so
you can see this is very difficult. As a result, the similar set rule has
evolved over time, as the case law, developed

TYP ES OF I NA DM ISSI BLE EVI DENCE

❖ 4 TYPES OF EVIDENCE THAT ARE INADMISSIBLE

 PREVIOUS CONSISTENT STATEMENTS

 SIMILAR FACT EVIDENCE THESE 4 TYPES OF EVIDENCE ARE

INADMISSIBLE BEC THEY ARE IRRELEVANT
 CHARACTER EVIDENCE THIS IS THE GENERAL RULE

 OPINION EVIDENCE
EVOLUTION OF THE SIMILAR FACT RULE

M A KI N v ATTORNEY G ENERA L OF NEW SOUTH WA LES

FACTS

 This case concerned a husband and a wife, John, and Sarah, they were the Makin’s, and
they were known as baby Farmers in the 19th century

 Baby farmers entailed parents who could not afford to raise their children would pay the
baby farmers – Makin’s an amount that was clearly insufficient for the children's care.

 Then in return the Makin’s would undertake to foster. They basically fostered children of the
poor.

 They were later charged with the Murder of one of the young children in their care. This was
the Murray boy, the child's body was found buried in a garden, but they pled not guilty &
claimed that the child had died of natural causes

 They claimed it was natural causes or in the alternative that there was an accident, but it
was not their fault.

 The facts were consistent with the allegation that the child was murdered, to gain
maintenance money & the defense that a child died of natural causes, accompanied by their
natural burial.

THE PROSECUTION

 Bit of background evidence the prosecution produced - the Makin’s lived in various houses.

 The Murray boy was found at a house in George Street, but they also found the remains of
other infants. Then they started looking at the previous houses where the accused stayed.
There they found remains of other children as well.

 The prosecution wanted to important 2 pieces of evidence:

1st – The skeletal remains of the other babies that had been found in the Makin’s gardens

2nd – The testimony from 4 other women who had given their babies to the Makin in the situation

where they paid a small amount, which was clearly insufficient for the baby's

maintenance and for the Makin to look after those babies & they simply vanished

they never got their children back

JUDGEMENT

 This evidence is clearly highly prejudicial to the accused

 At trial the court accepted the similar fact evidence and of course, the Markin’s did not agree
with this, therefore we have an appeal

 After the appeal, the Privy Council determined that the trial court correctly received similar
facts, the prosecution cannot lead similar fact evidence to show that the accused are guilty
of prior criminal acts for purposes of reasoning that the accused because of such criminal
conduct or bad character also committed the crime charge.

 In other words, the courts say that similar facts cannot be admitted, only to show that the
accused had a propensity to commit an offense.

 The prosecution could not lead the evidence of the skeletal remains of the other babies, and
the testimony of the four women, to show that because of that, they had a propensity, or
they had a propensity to commit the offense

 However similar facts can be admitted, if relevant to the issues before the court. So, it may
be relevant to bear the question on whether the acts, constituting the crime were designed
or accidental or to rebut the defense opened of the accused.

R v STRAF FEN

FACTS

 In the case the accused had been charged with the murder of a young girl

 The prosecution wanted to give evidence that related to other girls who were also murdered.

 All three girls, the similarities were that they had all been strangled as a cause of death.

 That the cause of this strangulation was without sexual molestation so with no rape involved
– no sexual interferences.

 They were also killed for no apparent motive.

 In all three cases, there was no evidence of a struggle nor defensive wounds on the bodies
of the children.

 There was also an attempt to hide the body although it would have been easy to conceal
the bodies.
 JUDGMENT

 In this case the similar fact evidence was admitted on the ground that it was relevant to the
identity. The fact that two other girls were also murdered led to the fact that similar fact
evidence was admitted.

 In the opinion of the court the evidence was rightly admitted, not for the purpose of showing
to use Mr. Ellen's words that Stephen was a professional straggler, but for the purpose of
showing the strength of strangled Linda. In other words, for the purpose of identifying the
murderer of Linda as being the same person as the person who murdered the other two little
girls in precisely the same way.

 During the appeal, the grounds for appeal were that there was no true issue of identity and
the court was only paying lip service to Straffin

 It was established that the accused had the propensity of the most unusual kind because
what happened was the accused was a strangler of small girls in peculiar circumstances,
and for no apparent motive.

 So, it was the peculiar propensity, that was highly relevant and made the evidence,
admissible. It is not propensity, the propensity in general, cannot be the reason why the
evidence is made admissible, but you can see in this case this was really a peculiar
propensity, and therefore, it was highly relevant the case

DPP v BOA RDM A N & S v D

 This was a headmaster, who was charged with the sodomy of two schoolboys. In this case, the rule
was formulated with regard to the admissibility of similar fact evidence

 Similar fact evidence as an item of circumstantial evidence is exceptionally admissible when its
probative value outweighs its prejudicial effect- this formulation has been used, and has been
accepted by South African courts

 The Boardman case was specifically accepted in the appeal case of S v D, but SA courts have given
the Boardman case, a flawed emphasis

 The real question must be whether when looking at the facts in totality – the evidence of similar fact
has sufficient probative value to outweigh prejudicial effect

 In other words, it all comes down to whether or not similar fact evidence is relevant to see in the
totality of the case, without singling out striking similarity whether it has sufficient probative value to
outweigh the prejudicial effect
 NEXUS & COINCIDENCE

TO BE ADMISSIBLE THE MOST IMPORTANT EVIDENTIARY ASPECT IS THAT THERE

MUST BE A LINK OR NEXUS BETWEEN SIMILAR FACT AND FACT IN ISSUE

W HAT CONSTI TUTES A SUF FI CI ENT NEXUS ?

❖ McEwan maintains that a mistake commonly made is to assume that evidence of previous
misconduct by the accused will have the necessary probative value only when the other
incidents are uniquely strikingly similar.

❖ She says it is preferable to see the test in terms of “whether the evidence can be explained
away as coincidence”

 SIMILAR FACTS WILL HAVE NO RELEVANT PROBATIVE VALUE IF THEIR

CONNECTION WITH FACTS IN ISSUE CAN BE EXPLAINED AWAY AS A
COINCIDENCE

 Similar fact evidence is relevant & admissible if the nexus goes beyond just coincidence

❖ THE NEXUS LIES IN THE EXTREME UNLIKELIHOOD OF COINCIDENCE

❖ Several examples from case law support this argument

 IN THIS CASE, THE TEST OF COINCIDENCE WAS ESTABLISHED

R v BOND & SIMILAR FACT EVIDENCE WAS ADMITTED

FACTS:

❖ The court stated that in the proximity of time in method or in circumstance, there must be a
Nexus between the two sets of facts, otherwise no inference can be safely deduced from it.

❖ The accused was a medical practitioner, he was convicted of unlawfully using instruments
& bought a woman with the intent to procure an abortion

❖ The defense of the accused was that he used the instruments in lawful medical examination
& that the miscarriage or abortion that occurred was accidental.

❖ Therefore, he did not have the necessary intent to be charged with that crime.

JUDGEMENT:

❖ The court admitted the evidence of another woman (T) who testified that the accused had
intentionally performed a similar operation on her 9 months earlier & he also told her that he
had done it right in dozens of girls.

❖ Both women T & J had been living with the accused in his house before the abortions, and
both were impregnated by him.

❖ The importance of the bond case is that it shows that the nexus can be found in the extreme
unlikelihood of coincidence.

❖ The issue before the court

 Whether the accused unlawfully caused the abortion

 The similar facts the prosecution wanted to admit was the previous operation, which
happened nine months earlier.

❖ If we look at those two sets of facts

 There is no striking similarity between the two unlawful abortions

 But the similar fact evidence is significant because the defense of an accident is
implausible

❖ There is an extreme unlikelihood of coincidence when raised by a man who has seeming
expertise in abortion because remember this is a medical practitioner who has expertise in
abortion and as a result it cannot be merely explained away as a coincidence.
 EPILEPTIC CASE
R v SMI TH SIMILAR FACT EVIDENCE WAS ADMITTED

FACTS:

 In this case the accused was charged with the murder of a woman with whom he went through
a bigamous marriage ceremony.

 This woman was found dead in the bathtub, and shortly before she died the accused had taken
out life insurance on her life,

 He would benefit financially from her death when she died.

 The accused was arrested, and his defense was that her death was caused by an epileptic fit

 In this case it was found that two other women had also died on subsequent dates, and the
accused had gone through a form of marriage, with each of these women, like that of the victim
in this case

 Both other women had also died in their bath, and the circumstances appear to be like that of
the victim in the present case

 In each case, the accused would benefit financially because he had taken out, life insurance
on those women

JUDGEMENT:

 These similar facts, were admitted & appealed

 In the appeal the court held that the similar fact evidence was correctly embedded because
it was sufficiently relevant to the accused defense

 Again, here the court applied the test of coincidence and said that the occurrence of so many
accidents that benefited the accused, could not reasonably be explained based on
coincidence

 The court held that either all three deaths were accidental or else the accused was
responsible for them each of them

 We are dealing here with the extreme unlikelihood of coincidence, therefore we must
establish the required link so that this evidence could be admitted
 OTHER EVIDENCE

❖ The relevance of similar fact evidence will also be determined by the strength of the other
available evidence.

❖ This is well illustrated by the case of R v Ball.

R v BA LL

FACTS:

➢ The accused, a brother & sister, were convicted of incest committed during certain periods
in 1910.

➢ The main prosecution evidence was that the accused, who held themselves out as married,
were seen together at night in a house that had only one furnished bedroom, containing a
double bed showing signs of occupation by two persons.

➢ The brother had been seen coming from the bedroom in a half-dressed state while the
woman was in a nightdress.

JUDGEMENT:

➢ The similar fact evidence admitted by Scrutton J was that 3 years earlier, before incest was
made criminal, the accused had lived together as man and wife sharing a bed, and that a
baby had been born, the accused being registered as its parents.

➢ This similar fact evidence was highly probative, given the circumstances in which they were
presently cohabiting.

➢ If the evidence had been that they lived in the same house but occupied separate bedrooms,
the probative value of the evidence would have been greatly diminished
 EXCLUSION OF SIMILAR FACT EVIDENCE

Laubsc her v Nat ional Foods

❖ In this case the plaintiff was a pig farmer & he claimed that because contaminated food was
sold by national foods his pigs had died, and the plaintiff (pig farmer) wanted to admit similar
fact evidence from neighboring pig farmers, who had also lost their pigs after that, eaten from
national foods.

❖ The court rejected the evidence as being insufficiently similar, and therefore irrelevant
because the court held that

 the evidence did not show that the other farmers bought their pig food during the same
time period as the plaintiff

 the food was not necessarily from the same batch of food, so there's no evidence that
the food that all the farmers feed the pigs came from the same batch. So, there is no
similarity between them, and then of course if we look at the pig farms themselves.

 How do we know what the conditions are on the pig farms, they were not similar, or all
the farmers did they take the same care of their pigs were there other factors that could
have influenced why those pigs died?

 Then of course, evidence did not show that all the farmers pig had become ill within the
same period after eating it

❖ So, you can see many reasons why there was insufficient similarity between the set of facts
 SUMMARY OF HOW TO DETERMINE RELEVANCE

1. The first question is to determine, IS THERE A STRIKING SIMILARITY (this is of course based
on your authority in the Boardman case as adopted in S V D. You can help either also stated,
as is the two sets of facts, are they not similar enough or not sufficiently similar and refer to the
Laubscher case). Remember here you would ask the question differently whether you are
acting on behalf of the defense, or are you acting on behalf of the prosecution

2. The second question is to determine WHETHER THE PROBATIVE VALUE WILL OUTWEIGH
THE PREJUDICIAL EFFECT (You will use the authority of DPP v Boardman as adopted in S
V D)

3. The third question you will ask yourself is, CAN THE TWO SETS OF FACTS BE EXPLAINED
AWAY AS MERE COINCIDENCE (here your authorities are R V Smith or R V BOND for the
coincidence test - you need to describe what the coincidence test is and how it is applied)

4. You will also when determine wHETHER THE SIMILAR FACT EVIDENCE IS RELEVANT
AND THEREFORE ADMISSIBLE. You need to SEE WHETHER THERE IS SUFFICIENT,
NEXUS (here you look at the bond case again you do not need, instead of using word ‘Nexus”
you can also refer to the chain of cause and effect is broken, or that proximity of time method
and circumstances, there is not enough of a link)

5. THE EVIDENCE RELATED TO AND THERE IT IS DETERMINED BY THE SET OF FACTS,

DOES NOT BEAR OR DOES IT BEAR TO THE QUESTION OF WHETHER THE
[DEATH]DEPENDING ON THE SET OF FACTS, THIS IS JUST THE EXAMPLE WAS
DESIGNED OR ACCIDENTAL, NOR DOES IT, REBUT THE ACCUSED’S DEFENSE (you
will look at the Makin case)
STUDY UNIT 5
CHARACTER EVIDENCE

➔ STUDY OUTCOMES

➔ RELEVANCE

➔ INTRODUCTION

➔ CHARACTER IN CRIMINAL CASES

➔ CHARACTER IN CIVIL CASES

 STUDY OUTCOMES
 Discuss the circumstances under which, and the extent to which, the character of the
accused may become relevant in criminal cases

 Explain the effect of the provisions of section 197 of the Criminal Procedure Act 55 of
1977 on evidence of the character of the accused

 Explain the effect of the provisions of section 211 of the Criminal Procedure Act 55 of
1977 on evidence of the character of the accused

 Discuss the circumstances under which, and the extent to which, the character of
opposition witnesses may become relevant in criminal cases

 Discuss the circumstances under which, and the extent to which, the character of the
complainant may become relevant in criminal cases, in particular sexual offences and
the effect of section 227 of the Criminal Procedure Act 55 of 1977

 Discuss the circumstances under which, and the extent to which, the character of the
parties may become relevant in civil cases
RELEVANCE

RELEVANT EVIDENCE

PRE - CONDITION FOR ADMISSIBILITY

Evidence with the POTENTIAL

To make the existence of ANY FACT IN ISSUE

MORE PROBABLE OR LESS PROBABLE

 INTRODUCTION

❖ This unit discusses what evidence can be used to determine a person's character & nature.

❖ This unit deals with the admissibility of evidence relating to the character of witnesses, the
accused, or parties in civil proceedings.

THE KEY TO UNDERSTA NDI NG THI S STUDY UNI T I S TO A SK YOURSELF

1. Am I dealing with A CRIMINAL CASE OR A CIVIL CASE?

2. If it IS A CRIMINAL CASE – WHOSE CHARACTER IS IN QUESTION

 THE ACCUSED

 THE OPPOSITION WITNESS

 OWN WITNESS

 THE COMPLAINANT

ASK YOURSELF

WITH WHAT AM I DEALING?

AM I DEALING WITH A CIVIL CASE? AM I DEALING WITH A CRIMINAL CASE

WHOSE CHARACTER IS IN QUESTION

ACCUSED OPPOSITION WITNESS OWN WITNESS COMPLAINANT

2 FORM S OF CHA RA CTER EVI DENCE

❖ Historically a distinction has been drawn between 2 forms of character evidence

 MORAL DISPOSITION

 REPUTATION

MORAL Disposition to THINK & ACT

DISPOSITION IN A CERTAIN WAY

2 FORMS

OPINION HELD BY THE

REPUTATION COMMUNITY AS TO MORAL
DISPOSITION

❖ 19th century ENG COMMON LAW PREFERRED EVIDENCE OF GENERAL REPUTATION TO

ESTABLISH CHARACTER rather than dispositional evidence

 Modern SA Law of Evidence DOES NOT REFLECT THIS DISTINCTION

 CHARACTER IN CRIMINAL CASES

 CHARACTER OF THE ACCUSED

 General rule

 Evidence of the accused’s own good character

 Evidence of the accused’s bad character

 The process of giving evidence of the accused’s character

 Evidence of the accused’s character – accused vs state

 SECTION 197 OF CPA

 Section 197 of the CPA

 Section 197 – Protection of the Accused

 Section 197 (d)

 SECTION 211 OF CPA

 OPPOSITION WITNESSES

 OWN WITNESSES

 CHARACTER OF THE COMPLAINANT

 Credibility of the complainant’s character

 Sexual offences – common law rule

 Sexual offences – section 227 of the CPA

 CHARACTER OF T HE ACCUSED

G ENERA L RULE

MAY GIVE EVIDENCE OF

BUT THE STATE/
THE ACCUSED OWN GOOD
PROSECUTION
CHARACTER

IS PROHIBITED FROM
GIVING EVIDENCE OF
HIS BAD CARACTER

EVI DENCE OF THE A CCUSED’S OW N G OOD CHARA CTER

❖ ACCUSSED MAY GIVE EVIDENCE OF OWN GOOD CHARACTER

 the general rule it must still be relevant

 there must be a link between the character evidence & the effects

❖ The STATE IS PROHIBITED from GIVING EVIDENCE OF THE ACCUSED’S BAD CHARACTER

 This depends on specified exceptions

 This is because of the unreasonable prejudicial effect on the presiding officer

❖ There are many ways in which an accused can try & establish his good character such as:

 THE ACCUSED GIVING EVIDENCE OF HERSELF

 THE ACCUSED CALLING WITNESSES TO TESTIFY ON HER BEHALF

 CROSS-EXAMINING THE STATE WITNESSES

❖ However, once the accused herself, or through witnesses, gives evidence about her good
character the state can respond by introducing evidence of bad character. The accused may
also render herself liable to cross-examination about her bad character in terms of s 197 of the
CPA
EVI DENCE OF THE A CCUSED’S BA D CHA RA CTER

❖ THE GENERAL RULE is that the state is prohibited from inducing evidence of the bad
character of the accused

THERE IS ONE EXCEPTION

❖ ONCE the accused has given evidence of OWN GOOD CHARACTER – the STATE MAY
GIVE EVIDENCE OF THE ACCUSED’S BAD CHARACTER

 This is to ensure that the ACCUSED does not have an unfair advantage

 Because if you can only present, 1 side of this story, you're going to have an unfair advantage.

❖ THE STATE CAN RESPOND IN 3 DIFFERENT WAYS:

 Calling witnesses to testify to the accused’s bad reputation

 Cross-examining the accused’s character witnesses

 Cross-examining the accused

❖ When the accused ATTACKS THE CHARACTER OF STATE WITNESSES BUT DOES
NOT GIVE EVIDENCE OF HIS OWN GOOD CHARACTER

 In any such case the STATE MAY NOT GIVE EVIDENCE of the accused’s BAD
CHARACTER

 In these circumstances the STATE WILL BE LIMITED & may ONLY CROSS-
EXAMINE the accused about his character in terms of S 197 of CPA

❖ The STATE is NOT ALLOWED to CALL A POLICE OFFICER TO TESTIFY about the
accused’s PREVIOUS CONVICTIONS

R v BUTTERWASSER
 ❖ When the state however does call witnesses to testify about the
accused’s bad character, such witnesses may in theory ONLY TESTIFY
WHAT THEY KNOW ABOUT THE ACCUSED’S GENERAL REPUTATION

THE P ROCESS OF P ROVI DI NG EVI DENCE OF THE A CCUSED’ S CHA RA CTER

ACCUSSED MAY GIVE EVIDENCE OF OWN GOOD CHARACTER

THE STATE IS PROHIBITED FROM GIVING EVIDENCE OF THE ACCUSED’S BAD

CHARACTER

ONCE THE ACCUSED HAS GIVEN EVIDENCE OF OWN GOOD CHARACTER

THE STATE MAY GIVE EVIDENCE OF THE ACCUSED’S BAD CHARACTER

G IVI NG EVI DENCE OF THE A CCUSED’ S CHA RA CTER – A CCUSED vs STATE

ACCUSED GIVES EVIDENCE STATE GIVES EVIDENCE OF

OF OWN GOOD CHARACTER ACCUSED'S BAD CHARACTER

Accused giving evidence Calling witnesses to testify to

herself the accused’s bad reputation

Accused calling witnesses to Cross-examining the accused’s

testify on her behalf character witnesses

CROSS – EXAMINING state CROSS – EXAMINING the

witnesses accused
 SECTION 197 OF CPA

LEG ISLATI ON – SECTI ON 197 OF THE CPA

“An accused who gives evidence at criminal proceedings shall not be asked or required to answer any

question tending to show that he has committed or has been convicted of or has been charged with any

offence other than the offence with which he is charged, or that he is of bad character, unless —

(a) he or his legal representative asks any question of any witness with a view to establishing
his own good character or he himself gives evidence of his own good character, or the
nature or conduct of the defence is such as to involve imputation of the character of the
complainant or any other witness for the prosecution

(b) he gives evidence against any other person charged with the same offence or an offence
in respect of the same facts

(c) the proceedings against him are such as are described in section 240 or 241 and the notice
under those sections has been given to him

(d) or the proof that he has committed or has been convicted of such other offence is
admissible evidence to show that he is guilty of the offence with which he is charged.”

SECTI ON 197

 DOES NOT ALLOW THE STATE TO GIVE EVIDENCE OF BAD CHARACTER

 ONLY PROVIDES FOR CROSS-EXAMINATION OF THE ACCUSED

SECTI ON 197 – P ROTECTI ON OF THE A CCUSED

❖ Section 197 involves protecting the accused against cross-examination

SHOWING PREVIOUS CRIMINAL CONDUCT,

CHARGES OR CONVICTIONS
THE ACCUSED IS PROTECTED AGAINST CROSS -
EXAMINATION THAT IS DIRECTED AT
SHOWING BAD CHARACTER

 However, even though section 197 provides protection & shields the accused, THE
ACCUSED CAN LOSE THIS PROTECTION

❖ THERE ARE 3 WAYS IN WHICH THE ACCUSED WILL LOSE THIS PROTECTION & SHIELD

1. BY GIVING EVIDENCE OF OWN GOOD CHARACTER

2. BY ATTACKING THE CHARACTER OF THE PROSECUTIONS WITNESS

3. BY TESTIFYING AGAINST THE CO – ACCUSED/ ANY OTHER PERSON CHARGED WITH

THE SAME OFFENCE

ACCUSED LOSES THE PROTECTION OF S197 WHEN

BY GIVING EVIDENCE OF BY ATTACKING THE CHARACTER OF A TESTIFY AGAINST

OWN GOOD CHARACTER THE PROSECUTIONS WITNESS THE CO - ACCUSED

S 197 (a) S 197(a) S 197(b)

SECTI ON 197(D)

 Section 197(d) provides that the accused may be cross-examined about previous offences
 if the purpose of such evidence is to show he is guilty of the offence he is charged

 S 197 does not prohibit the accused from being asked questions relevant to an
issue before the court
 even if such questions show bad character or reveal the accused’s previous convictions.

 Thus it can be said that s 197 (d) merely confirms the similar fact rule.

SECTION 211 OF CPA

SECTI ON 211 OF THE CPA

 Section 211 of the Criminal Procedure Act DEALS WITH EVIDENCE DURING CRIMINAL
PROCEEDINGS OF PREVIOUS CONVICTIONS

 THE STATE IS PROHIBITED FROM

 GIVING EVIDENCE OF THE ACCUSED with regards to an offense to show the accused
had previously been convicted of that offense
 CROSS-EXAMINING THE

P REVI OUS CONVI CTI ONS A RE NOT A DMI SSI BLE

 The reason why previous convictions are usually not admissible is that it's considered
irrelevant because we're dealing with a specific crime or offence, that is before the court

 THERE ARE CERTAIN EXCEPTIONS

o Accused testifying about her own prior convictions
o Prior convictions & bail proceedings
 EXCEPTI ONS REGA RDI NG THE A DMI SSI BI LI TY OF PREVIOUS CONVI CTIONS

➔ THE ACCUSED CAN TESTIFY ABOUT HER OWN PRIOR CONVICTIONS

 Section 211 does not prevent an accused from testifying about her own previous
convictions

 This might be done to support a defence based on an alibi.

 When an accused chooses this course, she runs the risk of having her character
attacked by the prosecution in cross-examination

EXAMPLE

• If you were previously convicted & you were arrested at the time the crime you are being
charged with occurred
• You are now being charged that on 2 April 2020 you robbed a jewellery store.
• But on 2 April 2020 you were actually arrested because you did not adhere to lockdown rules.
• In that instance, you, as the accused, would want to tell the court about your previous
convictions or prior convictions, because it supports your defence of an alibi that you
weren't at the jewellery store when the robbery occurred.

➔ PRIOR CONVICTIONS ARE ADMISSIBLE IN BAIL PROCEEDINGS

 evidence of previous convictions is admitted DURING THE COURSE OF BAIL

PROCEEDINGS as they are not considered criminal proceedings

 Prior convictions are also admissible in Bail proceedings so before your trial even starts,
when you hear whether or not you can be released on bail.

 Then prior convictions can be taken into consideration because it can be in the interest of
society to know whether or not you have been convicted of several previous rape charges
and you are now again here because you have been charged with rape that might be in the
interest of society - then that bail will not be granted

➔ PREVIOUS CONVICTIONS ARE ALSO ADMISSIBLE AFTER CONVICTION in order to assist

the court in determining an appropriate sentence
 OPPOSI TION WI TNESSES
➔ The party calling the witness MAY NOT GIVE EVIDENCE OF GOOD CHARACTER

 Unless the credibility of the witness has been impeached by evidence of a bad reputation

➔ If a witness DENIES AN ALLEGATION that she has a REPUTATION FOR UNTRUTHFULNESS

 In such circumstances the opposition may call a witness to testify that she would not believe
the accused witness if she were to swear under oath based on her knowledge of the accused
witness’s reputation

➔ Another court’s assessment of the opposing witness’s credibility may be put to the
witness in cross-examination

OWN WI TNESSES
 The party calling the witness MAY NOT QUESTION THE CREDIBILITY OF THEIR OWN WITNESS
BY CROSS-EXAMINATION

 Even IF THE EVIDENCE IS UNFAVOURABLE

 However, the party calling the witness IS ALLOWED TO & MAY

 Give further evidence contradicting the witness’s testimony

 Ask the court to declare the witness hostile

 Prove previous inconsistent statements against the witness

 CHARACTER OF T HE COMPLAIN T

CREDIBILITY OF THE COMPLAI NA NT ’ S CHARA CTER

 In all criminal cases if the COMPLAINANT TESTIFIES, HE MAY BE CROSS-EXAMINED

 The cross-examiner may ask questions that are relevant to exposing the witness’s credibility
or lack thereof

 The character of the complainant is not relevant to the credibility

 Evidence which is solely directed at establishing that the complainant has a bad character is
prohibited, as is evidence of good character

 Nevertheless, in a FEW EXCEPTIONAL CATEGORIES OF CASES THE COMPLAINANT’S

CHARACTER IS VIEWED AS RELEVANT.

SEXUAL OFFENCES & CIVIL CASES

 SEXUAL OFFENCE CASES

COM M ON LAW RULE

 THE COMMON LAW RULE IN RAPE & INDECENT ASSAULT CASES

 The common law rule in CASES INVOLVING A CHARGE OF RAPE OR INDECENT ASSAULT
provides that the accused MAY GIVE EVIDENCE ABOUT THE COMPLAINTANT’S BAD
REPUTATION FOR A LACK OF CHASTITY

 The common law rule HAVE BEEN CRITICISED ON A NUMBER OF GROUNDS:

• During the cross-examination concerning prior sexual history, the victim is not only
humiliated & traumatised but the evidence obtained is also irrelevant

• Evidence of this nature is deemed inadmissible in other cases & there is no

grounds for admitting such evidence where the case is of a sexual nature

• The possibility of such cross-examination deters victims from reporting sexual offences
 PREVIOUS SEXUAL EXPERIENCE
OF CONDUCT

SEXUAL OFF ENCES – SECTI ON 227 (2)

 NO EVIDENCE may be GIVEN ABOUT ANY PREVIOUS SEXUAL EXPERIENCE OR CONDUCT

OF THE COMPLAINANT other than the offence the complainant has been charged with

 No questions or evidence in cross-examination regarding such sexual experience or

conduct shall be put to the complainant, accused or any other witness

 2 EXCEPTIONS EXIST

o Except if the court has on application granted leave to give such evidence

o Except if such evidence has been introduced by the state

IF THE COURT IS SATISFIED THAT THE

EVIDENCE IS RELEVANT, THE COURT SHALL
GRANT LEAVE TO GIVE EVIDENCE

SEXUAL OFF ENCES – SECTI ON 227 ( 4)

 The court shall ONLY GRANT LEAVE TO GIVE EVIDENCE & CROSS-EXAMINE PREVIOUS
SEXUAL HISTORY IF THE COURT IS SATISFIED that such evidence is RELEVANT
 DETERMINING
RELEVANCE
SEXUAL OFF ENCES – SECTI ON 227 ( 5)

 IN ORDER TO DETERMINE THE RELEVANCE OF EVIDENCE THE COURT SHOULD

CONSIDER
o The interests of justice, especially the accused’s right to a fair trial

o The interests of society in encouraging reporting of sexual offences

o Specific cases of sexual activity relevant to the fact in the issue

o The chances of rebutting the evidence given by the state

o Fundamental to the accused’s defence

o Not substantially outweighed by potential prejudice to the complainant’s personal

dignity & right to privacy

SEXUAL OFF ENCES – SECTI ON 227 ( 6)

❖ Court must refuse to leave to adduce evidence / cross-examine w/r/t previous sexual history
if the purpose is to support an inference that complainant
 is more likely to have consented
 is less worthy of belief

SEXUAL OFF ENCES – SECTI ON 227 ( 7)

 The court is must PROVIDE REASONS FOR REFUSING OR ALLOWING THE

APPLICATION to lead prior sexual history evidence
 CHARACTER IN CIVIL CASES

G ENERA L RULE

THE CHARACTER ARE GENARALLY HOWEVER THERE

OF THE PARTIES IRRELEVANT ARE EXCEPTIONS

SP ECIF IC CA SES WHERE THE CHARA CTER MAY BE RELEVA NT

❖ The character of the parties involved is generally IRRELEVANT

 HOWEVER, IN CERTAIN SPECIFIC CASES THE CHARACTER OF A PARTY MAY BE

RELEVANT

❖ WHEN MAY THE CHARACTER BE RELEVANT

 IN A DEFAMATION ACTION

• The defendant who fails in her defence of truth & justification

• Such a defendant MAY GIVE EVIDENCE OF THE PLAINTIFF’S GENERAL BAD

REPUTATION TO MITIGATE DAMAGES

CHA RA CTER EVI DENCE

❖ Parties who are WITNESSES MAY BE CROSS–EXAMINED in terms of their CREDIBILITY

❖ In certain circumstances CHARACTER EVIDENCE CAN BE RELEVANT WITH REGARDS TO

CREDIBILITY

❖ CHARACTER EVIDENCE can be ADMITTED AS PART OF SIMILAR FACT RULE

STUDY UNIT 6
OPINION EVIDENCE

 STUDY OUTCOMES

 RELEVANCE

 INTRODUCTION

 TRUE OPINION RULE

 LAY PERSONS & EXPERTS

 OPINION OF LAY PERSONS

 THE EXPERT WITNESS

 STUDY OUTCOMES

 Explain why it is not always possible to distinguish between “fact” and “opinion”

 Explain the opinion rule in terms of the “ultimate issue doctrine,”

 Explain in detail the “true” opinion rule in the South African Law of Evidence

 Distinguish between lay and expert witnesses

 List and describe a number of instances in which the opinions of lay witnesses have been

accepted by our courts

 Explain the “compendious mode” of testifying in the context of lay opinion evidence

 Explain the test for admissibility of expert opinion evidence pursuant to the cases of

Gentiruco v Firestone, Ruto Flour Mills v Adelson, and in particular Holtzhausen v Roodt

 Explain why it is important to lay a proper foundation for the expert opinion evidence

 Explain in detail the considerations that guide our courts in assessing the probative value of

expert opinion evidence, as expounded in the following cases: Coopers v Deutsche

Gesellschaft, Michael v Linksfield Park Clinic and S v Van As

 Explain in detail the ethical duties of the expert witness, as articulated in Schneider v

Aspeling and the “Ikarian Reefer” case

 Explain the role of hearsay in expert opinion evidence

 Discuss the procedural aspects relating to expert opinion evidence, in particular the

distinctions between and similarities between “present recollection refreshed” and “past

recollection recorded” when expert witnesses testify from written reports

RELEVANCE

RELEVANT EVIDENCE

PRE - CONDITION FOR ADMISSIBILITY

Evidence with the POTENTIAL

To make the existence of ANY FACT IN ISSUE

MORE PROBABLE OR LESS PROBABLE

THE LI NK BETW EEN RELEVA NT EVIDENCE A ND OPI NI ON EVI DENCE

RELEVANT EVIDENCE OPINION EVIDENCE

OPINION EVIDENCE NEEDS TO BE

PRECONDITION FOR ADMISSIBILITY
RELEVANT TO BE ADMISSIBLE

EVIDENCE IS ADMISSIBLE IF IT IS OPINION EVIDENCE THAT IS

RELEVANT IRRELEVANT WILL BE INADMISSIBLE
INTRODUCTION

I. MAIN GOAL

II. OPINION

III. WHAT MAY THE WITNESS TESTIFY

 What are facts

 Testimony of facts

IV. EYEWITNESS IDENTIFICATION

 Physical characteristics

V. THE OPINION RULE

 Ultimate issue doctrine

 Usurp the function of the court

 I. MAIN GOAL

IS THE OPINION OF A WITNESS ASMISSIBLE EVIDENCE

II. OPINION

OPINION

INFERENCE CONCLUSION IMPRESSION BELIEF

III. WHAT CAN THE WITNESS TESTIFY

❖ A witness must testify only to the facts in the issue

 A witness is thus, NOT ALLOWED TO TESTIFY ABOUT THEIR OPINION

 W HAT A RE FA CTS

WITNESSES ARE REQUIRED TO TESTIFY ABOUT THE FACTS.

WHAT ARE THE FACTS

IDENTIFICATION
SEE HEAR FEELING
OF PERSONS

   
WHAT DID THE WITNESS WAS THE WITNESS ABLE
WHAT DID THE WITNESS
WHAT DID THE WITNESS FEEL, DID HE TOUCH TO IDENTIFY SOMEONE
HEAR, DID HE HEAR
SEE OR PRECEIVE SOMETHING WHILE ON WHO WAS RUNNING
GUNSHOTS
THE GROUND AWAY FROM THE CRIME

TESTI M ONY OF FA CTS

❖ WITNESSES TESTIFYING ABOUT FACTS ARE CALLED

 Fact witnesses
 Percipient witnesses

❖ FACT WITNESSES
 Testify about the facts
 MAY NOT give their OPINION ABOUT THE FACTS

❖ For the purpose of the law of evidence, it IS NOT ALWAYS POSSIBLE TO DISTINGUISH
CLEARLY BETWEEN FACT & OPINION

❖ ALL TESTIMONY WITH REGARD TO THE FACTS IS OPINION EVIDENCE

 It is the conclusion formed from mental impressions
 IV. EYEWITNESS IDENTIFICATION

❖ The complainant testifies that it was the accused who assaulted her

THE IDENTIFICATION IS NO MORE THAN

❖ Where the perpetrator was a stranger
INFERENCE drawn from a RESEMBLANCE
BETWEEN THE PERPETRATOR & THE
❖ Where the opportunity to see was not great
ACCUSED

P HYSI CAL CHARA CTERISTI CS

❖ Identity IS NOT A FACT THAT CAN BE OBSERVED

❖ The witness can ONLY OBSERVE certain PHYSICAL CHARACTERISTICS

❖ Physical characteristics can BE COMPARED

❖ Physical characteristics can FORM THE BASIS OF THE CONCLUSION IN THE MIND OF THE
WITNESS
 V. THE OPINION RULE

ULTIMATE ISSUE DOCTRINE

ULTIM ATE I SSUE DOCTRI NE

❖ The opinion rule is sometimes expressed in terms of the ULTIMATE ISSUE DOCTRINE

❖ The witness CAN NOT EXPRESS THEIR OPINION ON THE ISSUE that must
ULTIMATELY BE DECIDED BY THE COURT

❖ The witness cannot & may not express their opinion on the issue BECAUSE BY DOING
THIS THE WITNESS WOULD DEPRIVE & REMOVE THE FUNCTION OF THE COURT

 “Empty catchphrase”
 “Pernicious shibboleth”

USURP THE F UNCTI ON OF THE COURT

 EMPTY CATCHPHRASE

& ZEFFERT & PAIZES

 PERNICIOUS SHIBBOLETH

 The witness cannot usurp the function of the court BECAUSE THE COURT IS NOT
BOUND BY THE OPINION OF WITNESSES

WIGMORE

 The courts REGULARLY PREMIT EXPERT & LAY PERSON OPINION ON DIFFERENT
ISSUES the court has TO DECIDE ON

 Such as in DRUNK DRIVING CASES

o The state must prove that the accused was under the influence when driving
o The courts will receive both lay person & expert opinions on this issue
 TRUE OPINION RULE

I. ESTABLISHING THE TRUE OPINION RULE

II. IRRELEVANT & INADMISSIBLE OPINION

III. EXCLUDED OPINION

IV. WITNESS CAN NOT GIVE OPINION ON CERTAIN ISSUES:

 I. ESTABLISHING THE TRUE OPINION RULE

 THE TRUE OPINION RULE IS ESTABLISHED IN A NUMBER OF DECISIONS:

(1) The opinion of a witness IS ADMISSIBLE WHEN IT IS RELEVANT

Wigmore as applied in Ruto Flour Mils v Adelson

(2) The opinion IS RELEVANT IF IT IS OF APPRECIABLE ASSISTANCE TO THE COURT

(3) If the WITNESS IS IN A BETTER POSITION THAT THE COURT TO FORM AN OPINION ON THE
ISSUE, THE OPINION IS ADMISSIBLE ON THE BASIS OF RELEVANCE

 Such an opinion has PROBATIVE FORCE because it CAN ASSIST THE COURT IN
DETERMINING THE ISSUE

II. IRRELEVANT & INADMISSIBLE OPINION

 ANY OPINION GIVEN ON AN ISSUE THAT THE COURT CAN DECIDE WITHOUT THE
OPINION OF A LAYPERSON OR EXPERT WITNESS IS IRRELEVANT & THUS
INADMISSIBLE

 Any witness opinion that does not assist the court in determining the issue is irrelevant &
inadmissible

Helen Suzman foundation v President of RSA

 IRRELEVANCE & INADMISSIBILITY LIES IN THE FACT THAT IT IS UNNECESSARY

IF THE COURT CAN FORM ITS OWN THE OPINION OF A WITNESS IS

OPINION DEEMED UNNECESSARY
 III. EXCLUDED OPINION

 THE OPINION IS NOT EXCLUDED TO PROTECT THE FACT-FINDING FUNCTION OF THE

COURT

 THE OPINION IS EXCLUDED BECAUSE IT IS DEEMED UNNECESSARY

 The opinion makes NO PROBATIVE CONTRIBUTION

 The opinion CREATES THE RISK OF CONFUSING THE MAIN ISSUE

 The opinion LEADS TO PROLONING OF TRAILS

IV. WITNESS CAN NOT GIVE OPINION ON CERTAIN ISSUES

 LEGAL MERITS of the case

 CONCLUSIONS OF THE LAW

 Any INTERPRETING MEANING of words IN STATUTES

 SUCH OPINIONS ARE UNNECESSARY, THUS IRRELEVANT &

INADMISSIBLE BECAUSE THEY CAN NOT ASSIST THE COURT

 IF the court can form its own opinion on the issue, the opinion of a witness on such an issue is
deemed unnecessary
 LAY PERSONS & EXPERTS

A DMI SSI BI LI TY OF OPI NI ON EVI DENCE

 It is normally accepted that in order to determine the admissibility of opinion evidence such
determination is based on the distinction between expert & lay opinion

 But this distinction, the distinction between expert & lay opinion does not govern nor
determine admissibility

 ADMISSIBILITY ONLY DEPENDS ON WHETHER THE OPINION OF THE WITNESS

CAN ASSIST THE COURT

EXP ERT EVI DENCE – VS – OP I NI ON EVI DENCE

 When we consider the admissibility of opinion evidence, we usually consider it by distinguishing

between expert evidence & opinion evidence.

 However, the distinction between expert evidence & opinion evidence IS NOT IMPORTANT FOR
DETERMINING ADMISSIBILITY

 Because ADMISSIBILITY IS BASED ON WHETHER OR NOT THE OPINION CAN

ASSIST THE COURT
 Whether it is an expert opinion or a lay person’s opinion makes NO DIFFERENCE

EXP ERT OPI NI ON VS LAY P ERSON OPI NI ON

 THIS DISTINCTION IS IMPORTANT FOR PROCEDURAL PURPOSES

 It is important when examining your set of facts

 It is important when you want the court to determine which opinion will be given

Parties must give notice of intention to rely on

IN CIVIL CASES
expert opinion evidence

The state is required on constitutional

IN CRIMINAL CASES grounds to disclose expert opinion evidence
to the accused before the trail
OPINION OF LAY PERSONS

I. APPLICATION OF THE TRUE OPINION RULE

II. LAY WITNESS MAY EXPRESS OPINION

III. COMPENDIOUS MODE

 I. APPLICATION OF THE TRUE OPINION RULE

IT CANNOT ASSIST THE

MUST BE EXCLUDED IF
COURT
OPINION EVIDENCE
IT CAN ASSIST THE
MUST BE ADMITTED IF
COURT

II. LAY WITNESS MAY EXPRESS OPINION

AGE

STATE OF
HANDWRITING SOBRIETY

LAY WITNESS CAN

GIVE OPINION ON

WEATHER CONDITION OF
CONDITIONS OBJECT

SPEED OF CAR
❖ Approximate age of a person

o Young

o Middle-aged

o Old

❖ The person’s state of sobriety

o Drunk

o Sober

❖ The general condition of the object

o Old

o New

o Cheap

o Expensive

❖ The approximate speed of the vehicle

o Fast

o Slow

❖ The conditions of the weather

o Hot

o Cold

o Rain

o Clear

❖ The handwriting familiar to the lay person

 Never completely possible for a witness to eliminate inferences/conclusions from
“factual” testimony

III. COMPENDIOUS MODE

❖ This is a term from ENG law

❖ The term compendious mode REFERS TO CASES WHERE THE WITNESS GIVES AN
OPINION THAT IS A BRIEF SUMMARY OF THE FACTS

A WI TNESS TESTI F YI NG I N COMP ENDI OUS M ODE

 This is when a witness is allowed to testify about the state of a person such as

• The person was angry

• The person was upset

• The person was well-dressed

• The person looked surprised

• The person tried to protect herself

• The person was drunk

 Witness testimony in compendious mode is PERMITTED FOR PRACTICAL PURPOSES

• The purpose is to maintain the narrative

• It is intended to save time & expenses

• It is allowed because the witness is in a better place than the court

A SUMM A RY OF THE FA CTS

❖ When a witness expresses an opinion, it is a summary of the facts

❖ For example: when the witness expresses her opinion that “the accused was drunk”

 The opinion is a summary of the facts that the witness perceived

▪ The accused slurred his speech

▪ His breath smelled of liquor

THE COURT CA N A DMI T OR REF USE EVI DENCE I N A COMP ENDI OUS MODE

 The court has full discretion to admit or refuse evidence presented in compendious mode

 The court’s decision is guided by 2 main PRINCIPAL CONSIDERATIONS

IS HELPFUL TO THE COURT

WHETHER THE SUMMARY OF FACTS
ARE NOT PREJUDICIAL TO EITHER PARTY
THE EXPERT WITNESS

I. THE EXPERT WITNESS

II. THE NEED TO LAY A FOUNDATION

III. PROBATIVE VALUE OF EXPERT OPINION

IV. ETHICAL DUTIES OF AN EXPERT WITNESS

V. EXPERT OPINION & HEARSAY

VI. PROCEDURAL ASPECTS OF EXPERT OPINION

 I. THE EXPERT WITNESS

❖ ANY AND ALL ISSUES THAT CAN NOT BE DECIDED WITHOUT EXPERT
GUIDANCE REQUIRE AN EXPERT WITNESS

EXP ERT OPI NI ON EVI DENCE

❖ Expert opinion evidence is easily received on certain issues

❖ Issues relating to the following accept expert opinion evidence

➢ Ballistics

➢ Engineering

➢ Chemistry THIS IS NOT A CLOSED LIST

➢ Medicine There are cases where expert evidence, though not absolutely necessary,
would nevertheless still be of use.
➢ Accounting
Intoxication & handwriting are two examples.
➢ Psychiatry

G ENTI RUCO v FI RESTONE

➔ A true & practical test for the r admissibility of opinion of a skilled witness is whether/not
the court can receive “appreciable help” from a witness on a particular issue

RUTO FLOUR MI LLS v A DELSON

➔ Opinion of expert is received because & whenever expert’s skill is greater than that of court

➔ SUPERFLUOUS EXPERT OPINION IS EXCLUDED

 because it is not needed
 Court is just as able as witness to draw the conclusion
HOLTZ HAUSEN v ROODT

 FACTS

 P sued D for defamation

 P alleged that D had told 3rd parties that P had raped her while they were alone on his farm

 D used truth as a defence

 EVIDENCE

 The defendant, is support of her defence that P had in fact raped her

 D wanted to call expert witness [W] to testify

 Expert witness [W] is a registered clinical psychologist

 W conducted several interviews & 2 hypnotherapy sessions with D

 W was going to testify in expert opinion that D was telling the truth, that D was in fact raped by P

 P objected to the admissibility of the expert witness’s opinion in terms of D’s credibility

 COURT DECISION

 The expert witness [W] opinion was inadmissible

 W’s opinion was inadmissible because it was irrelevant in terms of the fact that it was unhelpful
to the court

 W’s opinion was unhelpful to the court because the court was quite capable of forming its own
opinion about the credibility [veracity] of D

 ISSUE & FACTS OF THE SECOND CONSIDERATION

 The evidence shows that D did not report the rape at the exact moment when her mother & sister
who went to town returned to P’s far

 D wanted to call another expert [B], Expert witness [B] is a social worker who counselled raped
victims

 B was going to testify in her expert opinion that victims of acquaintance rape often do not disclose the
rape to 3rd parties immediately after the incident

 P also objected to the admissibility of B’s opinion

COURT DECISION

 Unlike the opinion of expert [W]

 The opinion of expert witness [B], B’s opinion was relevant & therefore admissible

 In normal circumstances the court would be entitled to draw a negative inference from the fact that D did
not immediately report the rape to her family, by implying that there was nothing for D to report

 Expert witnesses who work with rape survivors can assist the court in terms of getting a better
understanding of why rape survivors often do not take the first opportunity to seek help & report the incident

 In this case the expert witness is better qualified to draw such inferences that the court

II. THE NEED TO LAY A FOUNDATION

❖ Before the court will allow an expert to testify, they must lay a foundation.

❖ The party seeking to give an expert opinion must satisfy the court that the opinion is not unnecessary

 In other words, it's not irrelevant for purposes /to show that it's not irrelevant
 the court must be satisfied that the witness has specialist knowledge, training skill
or experience.

THE COURT M UST BE SATI SFI ED WITH EXP ERT OPI NI ON

❖ Any party wanting to provide an expert opinion must satisfy the court

❖ The court must be satisfied that the expert’s opinion is not unnecessary & irrelevant

❖ REQUIREMENTS TO SATISFY THE COURT

 The expert witness has specialist knowledge BECAUSE OF THESE QUALITIES &
CHARACTERISTICS, EXPERT WITNESS
 The expert witness has specialist training OPINIONS CAN ASSIST THE COURT

 The expert witness has specialist skills or experience

 The qualities of the expert can assist the court

 The witness is indeed an expert for the purpose that she was called
NECESSA RY QUA LIFI CATI ONS & EXPERI ENCE OF A N EXP ERT

❖ FUNCTION OF THE COURT

 It is the function and responsibility of the court to decide whether the expert has the
necessary qualifications & experience to provide the required assistance to the court

❖ FORMAL QUALIFICATIONS

 Formal qualifications are NOT ALWAYS ESSENTIAL

 For example, an experienced stock farmer can be able to provide expert evidence on the value
of cattle

 For example, a police officer may provide expert evidence on ballistics in the case where he
has extensive practical experience which compensates for a lack of formal qualifications

S v Mlimo

❖ FUNDAMENTAL TEST

 The fundamental test involves whether the evidence can assist the court

 In terms of practical implications, in certain cases formal training without practical experience
may not be considered enough to qualify the witness as an expert

III. PROBATIVE VALUE OF EXPERT OPINION

P ROP ER & VALI D REA SONS FOR OP INI ON

 An expert is required to support their opinion with valid reasons

 The probative value of an expert’s opinion will be stronger if such an expert provides proper
reasons for his opinion
COOP ERS v DEUTSCHE G ESELLSCHA FT

 “[A]n expert’s opinion represents his reasoned conclusion based on certain facts or data, which are
either common cause, or established by his own evidence or that of some other competent witness.
Except possibly where it is not controverted, an expert’s bald statement of his opinion is not of any
real assistance. Proper evaluation of the opinion can only be undertaken if the process of reasoning
which led to the conclusion, including the premises from which the reasoning proceeds, are
disclosed by the expert.”

 An expert’s opinion represents a reasoned conclusion that is based on certain facts & data

 In terms of bald statements of an expert opinion, such opinions are deemed to be of no real
assistance

 The court properly evaluates expert opinions ONLY IF THE FOLLOWING 2 PRINCIPLAS ARE
PRESENT

o The expert discloses the grounds of reasoning

o The expert discloses the process of reasoning that led to the conclusion

CONF LI CTI NG OPI NI ONS

 What happens when 2 expert witnesses give conflicting opinions?

 MICHAEL v LINKSFIELD PARK CLINIC

 Sets out the guidelines to approach a conflict between medical experts in delictual cases

 IN TERMS OF CONFLICTING OPINIONS, THE COURTS DETERMINATION WILL

DEPEND ON

o examining the opinions of the expert witnesses & analysing the essential reasoning of the
opinions

o the determination will NOT DEPEND ON THE CREDIBILITY OF THE EXPERT WITNESSES
TECHNI CA L EXP ERT EVI DENCE

❖ There are extreme cases where expert evidence can be so technical that the court may
not be in a position to follow the exact reasoning of the expert or observe the specific
points of identification.

❖ In such an instance great emphasis will be placed upon the general character of the
witness’s profession & the absence or presence of possible bias.

S v VA N A S

❖ This case involves NB observations & findings in terms of expert opinion evidence.
❖ In this case the court held that there must be a distinction between 2 situations:
o The 1st is where the expert’s opinion is based on that of recognised writers or
authority in the science concerned
o The 2nd is where the expert has personally conducted experiments & then in court
bases his opinion on the results of his experiments.

❖ IN THIS CASE IT WAS HELD THAT THE 2nd SITUATION IS PREFERED BECAUSE

o It is easier for the court to follow the evidence

o It is easier for the court to accept the evidence
o It is easier for the court to rely on it in deciding the issue

❖ The opinion of an expert must be ignored & should strictly speaking be considered inadmissible
 IF it is based on a hypothetical situation that has no relation to the facts in the issue or it is
entirely inconsistent with the facts found proved.

❖ This is a frequent problem where a psychiatrist relies solely on an accused’s version of the
events in assessing his mental condition for purposes of determining criminal responsibility.
 IV. ETHICAL DUTIES OF AN EXPERT WITNESS

 SCHNEIDER V ASPELING CITING WITH APPROVAL TO IKARIAN REEFER CASE:

 Ikarian Reefer is an English law case

 The ethical duties of an expert witness were set out in this case

 The ethical duties were so well set out that they have now formed part of the rules of court
in England.

 In South Africa it does not form part of a specific set of rules but it has been cited with
approval in the SCHNEIDER CASE.

 Expert evidence should be & be seen to be an independent product of an expert

uninfluenced by the demands of litigation.

 The expert should not assume the role of an advocate

 Going hand in hand with the first duty

 The expert should not assume the role of an advocate.

 You as an expert, or the expert is not there to promote a specific site

 They must only provide independent assistance to the court

 They are there for the court

 They are supposed to give an objective and an on biased opinion

 Experts should state facts/assumptions upon which opinions are based/BASIS RULE

 The third duty is that the expert should state the fact/ assumptions, which the opinion is
based so this is known as the basis rule.

 In other words, you must be able to also give the reasons

 You must be able to say: this is the reason why I'm basing my opinion is based on x

 The expert should not fail to consider material facts that would detract from the opinion

 The expert should make clear when question/ issues fall outside their expertise

 if the expert had insufficient data to fully research the opinion, they must state that the
opinion is only professional
 V. EXPERT OPINION & HEARSAY

❖ AN EXPERT CAN EITHER RELY ON

Because There's no general rule
 THEIR PERSONAL EXPERIENCE
that they must rely on personal
 ON REPORTED DATA OF SCIENTISTS IN BOOKS experience

❖ There's no general rule that they must rely on personal experience, they can rely on either one.

 But if they rely on information in textbooks or journals

 It's technically hearsay

 The reason why it's hearsay is that the information in that journal has been written by
someone else.

❖ An expert witness may not as a rule base his opinions on statements made by a person
not called as a witness

❖ An expert witness may be allowed to rely on information that would technically be hearsay,
but which may be admitted if the conditions set out are satisfied.

❖ Expert allowed to do so if:

• Expert by virtue of own training, can confirm correctness of statement in book

• Textbook is reliable, it is written by person who is authoritative in field

 VI. PROCEDURAL ASPECTS OF EXPERT OPINION

CI VI L CA SES

 CIVIL CASES TAKE PLACE IN THE HIGH COURT

 REQUIREMENTS TO LEAD EXPERT EVIDENCE

 The party who wants to lead expert evidence must meet the following requirements

1. The party must GIVE NOTICE TO THE OTHER PARTY

 30 DAYS NOTICE AFTER THE CLOSE OF PLEADINGS – PLAINTIFF

 60 DAYS NOTICE AFTER THE CLOSE OF PLEADINGS IN THE CASE OF THE

DEFENDANT

2. The plaintiff MUST DELIVER A SUMMARY OF EXPERT’S OPINION

 90 DAYS AFTER THE CLOSE OF PLEADINGS

3. The defendant MUST DELIVER THE SUMMARY OF EXPERTS OPINION

 120 DAYS AFTER THE CLOSE OF PLEADINGS

CRIMI NAL CA SES

❖ No specific days specified but Prior disclose /certificate of intended expert evidence may be
demanded and should be granted on constitutional grounds.
TESTI M ONEY F ROM A WRI T TEN REP ORT

 Experts are allowed to refresh present recollection from report & notes

o These reports & notes are sometimes included in the case as exhibits

 THE REPORT & NOTES ARE NOT THE EVIDENCE

 THE EXPERT’S VIVA VOCE TESTIMONY IS THE ONLY EVIDENCE

PAST RECOLLECTI ON RECORED

 This is when the expert has NO INDEPENDENT RECOLLECTION OF THE CASE after consulting
the report & notes

 IN THESE CIRCUMSTANCES THE REPORT MUST BE RECEIVED AS EVIDENCE

QUESTION 1

A is charged with two counts, namely, housebreaking with the intention to steal, and secondly,
attempted rape of S. The incident that gave rise to the charges took place during the early
morning hours on 20 August 2011, at the house of an elderly couple, V (the husband) and S
(the wife) in Waverley, Pretoria.

(a) A pleads not guilty and during his plea explanation he informs the court that he has an
alibi defence for the time of the alleged break-in into the house of V and S, namely, that
he was in Polokwane, visiting his girlfriend. During the state‟s case the prosecutor wants
to lead evidence from W to the effect that A was involved in an assault at a club in
Sunnyside two hours before the break-in. Should the court allow it? Motivate your answer.

(b) What is the purpose when calling a witness, such as W, for examination-in-chief and
explain the most important rule the prosecutor should remember during this stage

(c) S is subpoenaed to testify against A about the attempted rape charge. During the
consultation prior to her court attendance, she tells the prosecutor that, since the incident
she has suffered from anxiety attacks and depression.
i. Explain in which way S can possibly be accommodated during the trial.
ii. What requirement(s) will be applicable for the use of this procedural option in order
to assist S in giving her evidence?

(d) Suppose that S‟s granddaughter of 12 years-old, K, was also present during the incident
and became a victim of sexual assault committed by A.
i. What procedural option is available to accommodate K during her testimony?

(e) E is a clinical psychologist whom the prosecutor wants to call as an expert witness to
explain why S disclosed the attempted rape incident only 6 months after the
housebreaking had been reported. Briefly explain whether the court would allow that and
motivate your answer by referring to case law..

(f) The doctor at the clinic that S visited the day after the event is called to testify. He
indicates that he needs to refresh his memory from his previous statement (report) made
to the police. Briefly explain the two different approaches regarding the use of previous
consistent statements in court.
QUESTION 2

List five examples of instances where a court may allow for the evidence of a lay person.

QUESTION 3

Colonel Sanreal, a police officer, is involved in a car accident with Mr Sly, a well-known attorney
from Gauteng. Colonel Sanreal’s car is badly damaged. The accident scene is attended by the
experienced Captain Richman, who takes down notes about the accident. Captain Richman
suggests that the drivers exchange contact details and encourages them to settle any possible
insurance claims. Neither driver’s blood is tested for alcohol. Shortly afterwards, the drivers
meet, and after some negotiation, Mr Sly undertakes to pay the damages for Colonel Sanreal’s
car. A day later, however, Mr Sly is arrested and charged with drunken driving. Answer the
following questions with reference to this set of facts:

(a) Mr Sly requests a copy of the police docket to prepare for his defence. Will he be
successful? Discuss with reference to applicable case law.

(b) During Mr Sly’s trial, the prosecution intends to call Captain Richman to testify as an
expert witness about whether Mr Sly was drunk at the time of the accident. Do you think
the court will allow this to happen? Fully discuss with reference to any possible
requirements for admissibility.

(c) It later emerges that Mr Sly made a statement without prejudice during the initial
negotiations between himself and Colonel Sanreal. In this statement he admitted to
having caused the accident. Colonel Sanreal intends to use this statement as evidence
against Mr Sly in a civil claim if Mr Sly fails to pay the damages for his car. Do you think
he will be successful? Discuss fully.

(d) Further investigation reveals that Mr Sly has previous convictions for reckless and
negligent driving as well as for drunken driving. Can this evidence be presented in court?
Explain fully.
QUESTION 4

Opinion of expert must be ignored (and should strictly speaking be considered inadmissible) if
based on some hypothetical situation that does not relate to the facts / that is entirely inconsistent
with the facts proved Deaver’s experiments ignored the estasblished facts and working
hypotheses of the prosecution regarding points of impact, where the defendant was standing,
how he would have swung the murder weapon etc. Deaver’s experiments and conclusions were
entirely 2 of 5 based on hypothetical situations.

QUESTION 5

You act on behalf of a young man in a claim for damages against the Motor Vehicle Accident
Fund. The claim is based on injuries which your client sustained in a motor vehicle accident. In
order to prove your claim, you intend calling a certain doctor Marius Britz, ‘n neuro surgeon, to
testify regarding your client’s injuries and his chances of leading a normal life again. Which
formal requirements have to be met in order to call doctor Britz as a witness? Discuss
comprehensively.

QUESTION 6

In the case of Holtzhauzen v Roodt 1997 (4) SA 766 (W), the court found that the opinion
evidence of the first expert, Wilkenson, was irrelevant and therefore not admissible. The opinion
of the second expert, Breslin, was however viewed in a different light.

(a) As a general principle or approach, it is required that a party seeking to adduce expert
opinion must lay a foundation or should satisfy the court that the evidence is relevant.
Explain what is meant by this requirement

(b) Briefly explain, with reference to the facts of the case, how the court reached the
conclusion that Breslin’s evidence was relevant and therefore admissible.
QUESTION 7

The police are called to a possible murder scene in the early hours of the morning. Upon arrival,
they find a woman's body in a bathroom inside the townhouse which belongs to her boyfriend.
Shots were fired at her through the bathroom's locked door and she was struck several times.
The boyfriend's defence is that he had thought she was a burglar. During the testimony the
accused testifies that he is an upstanding member of the community who has a lot of respect for
guns and that he has always handled his gun with extreme caution. The prosecution is aware of
previous incidents involving the negligent handling of guns that can disprove the accused's
testimony. Can the accused be cross-examined as to these incidents? Explain your answer with
reference to authority

QUESTION 8

The accused, a general practitioner, is charged with two counts of indecent assault on two female
patients. The first count alleges that he had sexually assaulted a woman, M, during a consultation
on 7 January 2020. The second count alleges that he had sexually assaulted a woman, J, on 20
December 2019. Fully discuss the admissibility of the following possible evidence:

(a) Evidence given on behalf of the accused by witnesses who testify about his good character

(b) Evidence given on behalf of the accused by witnesses who can testify about the previous
sexual conduct of M and J.

QUESTION 9

The accused is charged with receiving a stolen motor vehicle while knowing the vehicle to be
stolen. The state further proves that the accused was found in possession of the vehicle

(a) May the state present evidence that the accused was found guilty three years ago of
forging cheques? Motivate your answer.

(b) If your answer to the previous question is in the affirmative, which possible requirements
need to have been met in order for the state to lead such evidence?