STUDY UNIT 5

CHARACTER EVIDENCE
I N T RO D UC TI ON

❖ 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.

T H E K E Y T O UN D ER S T AN DIN G T H I S S TU D Y UN I T I S TO A S K Y O UR S EL F

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 F ORM S OF C H AR A CT E R E VI D EN C E

❖ 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

 C HARAC T ER I N CR IMIN AL C ASES

G EN E RA L RU LE

MAY GIVE EVIDENCE

BUT THE STATE/
THE ACCUSED OF OWN GOOD
PROSECUTION
CHARACTER

IS PROHIBITED
FROM GIVING
EVIDENCE OF HIS
BAD CARACTER

E V ID EN C E O F T H E A CC U S ED ’ S O WN GO O D C H AR A CT E R

❖ 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
E V ID EN C E O F T H E A CC U S ED ’ S B AD C HA R A CT ER

❖ 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

T H E PR O C E S S OF PR O VI DIN G E VI D EN CE O F T H E AC CU S E D’ S C H A RA C TE R

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 I VIN G E VI D EN C E O F T H E AC CU S E D’ S C H A R AC T ER – ACC U S ED v s S T A T E

ACCUSED GIVES EVIDENCE OF STATE GIVES EVIDENCE OF

OWN GOOD CHARACTER ACCUSED'S BAD CHARACTER

Accused giving evidence Calling witnesses to testify to the

herself 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 accused
witnesses
 SECT ION 197 OF CPA

L EG I SL A TI ON – S EC T I ON 1 9 7 OF T H E CP A

“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.”

S E C T ION 1 9 7

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

 ONLY PROVIDES FOR CROSS-EXAMINATION OF THE ACCUSED

S E C T ION 1 9 7 – PR OT E CT I ON O F T H E AC C U S ED

❖ 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)

S E C T ION 1 9 7( 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.

SECT ION 211 OF CPA

S E C T ION 2 1 1 O F T H E C P A

 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 R E VI O U S C ON V IC T I ON S A RE N O T A DM I S SI BL E

 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
 E X C E PT I ON S R EG AR DIN G T H E ADM I S SIB IL I TY OF PR E VI O U S C ON V IC T I ON S

➔ 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 T ION WI T NESSES

➔ 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 T NESSES

 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

 CHARACT ER OF T HE COMPL AIN T

C R ED IB ILI T Y OF T H E C OM PL A IN AN T’ S C H A R AC T ER

 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

C OM M ON L AW R UL E

 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

S E X U AL OF F EN C E S – S EC TI ON 2 2 7 ( 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

S E X U AL OF F EN C E S – S EC TI ON 2 2 7 ( 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

S E X U AL OF F EN C E S – S EC TI ON 2 2 7 ( 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

S E X U AL OF F EN C E S – S EC TI ON 2 2 7 ( 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

S E X U AL OF F EN C E S – S EC TI ON 2 2 7 ( 7)

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

APPLICATION to lead prior sexual history evidence
 C HARAC T ER I N CIVI L CA SES

G EN E RA L RU LE

THE CHARACTER ARE GENARALLY HOWEVER THERE

OF THE PARTIES IRRELEVANT ARE EXCEPTIONS

S P E C IF IC C A S E S W H ER E T H E C H A R AC TE R M A Y B E R EL EV AN T

❖ 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

C H A R AC T ER E V ID EN C E

❖ 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

R v BU T TE RWASS ER
 QUEST IONS

 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

 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:

1. Evidence given on behalf of the accused by witnesses who testify about his good
character. [3]

2. Evidence given on behalf of the accused by witnesses who can testify about the
previous sexual conduct of M and J. [4]
STUDY UNIT 6
OPINION EVIDENCE
T H E L IN K B ET WE EN R EL E V AN T EV ID EN C E AN D O PIN I ON EV ID EN C E

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

M A IN G O AL

IS THE OPINION OF A WITNESS ASMISSIBLE EVIDENCE

O P IN I ON

OPINION

INFERENCE CONCLUSION IMPRESSION BELIEF

 W H A T C AN T H E WI TN E S S T E S TI F Y

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

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

W H A T A R E F AC T S

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
T E S T IM ON Y O F F AC T S

❖ 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

E Y E WI TN E S S I D EN T IF IC A T ION

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

THE IDENTIFICATION IS NO MORE

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

P H Y S I C AL C H AR A CT ER I S TI C S

❖ 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
 T HE OPINION RULE

ULTIMATE ISSUE DOCTRINE

U L TIM A T E I S S U E D OC TR IN E

❖ 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”

U S U R P T H E F UN C T I ON O F T H E C O URT

 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
 T RUE OPINION RULE NB

E S T A BL I S HIN G T H E TR U E O PIN I ON R ULE

 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

I RR EL E V AN T & IN ADM I S S IBL E O PIN I ON

 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
E X CL UD ED O P IN I ON
 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

W ITN E S S C AN N O T GI V E O P IN ION ON C E RT A IN I S S U E S
 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
 LA Y P ERS ONS & EX PER TS

A DM I S S IB IL IT Y OF OP IN I ON E VI D EN C E
 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

E X P E RT EV ID EN C E – V S – O P IN I ON E VID EN C E
 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

E X P E RT O PIN I ON V S L A Y P ER S ON O P IN I 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
I N CI V IL C A S E S

❖ Parties must give notice of intention to rely on expert opinion evidence

I N CR IM IN AL C A S E S

❖ The state is required on constitutional grounds to disclose expert opinion evidence to the
accused before the trail

O PI NIO N O F L AY PER SO NS

A P P L IC A TI ON OF T H E TR U E O P IN ION RU L E

IT CANNOT ASSIST THE

MUST BE EXCLUDED IF
COURT
OPINION EVIDENCE
IT CAN ASSIST THE
MUST BE ADMITTED IF
COURT
L A Y WI TN E S S M A Y E X PR E S S O P IN I ON

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

C OM P EN DI O U S M OD E
❖ 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 TN E S S T E S TI F YIN G IN C OM P EN D IO U S MO D E

 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 S U MM AR Y OF T H E F AC T S

❖ 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

T H E CO U RT C AN ADM I T O R RE F U S E E VI D EN C E IN A C OM P EN DI O U S M OD E

 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
 T HE EX PERT WI TNESS

I. THE EXPERT WITNESS

❖ ANY AND ALL ISSUES THAT CAN NOT BE DECIDED WITHOUT

EXPERT GUIDANCE REQUIRE AN EXPERT WITNESS

E X P E RT O PIN I ON EV ID EN C E

❖ 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 EN T IR UC O v F IR E ST ON E

➔ 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
R U T O FL O UR MI LL S v A DE L SON

➔ 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

H O L TZ H A U S EN v R OO DT

 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.
T H E CO U RT M U S T B E S A T IS FI E D WI T H E X P E RT O PIN I 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
 The expert witness has specialist training & CHARACTERISTICS, EXPERT
WITNESS OPINIONS CAN ASSIST
 The expert witness has specialist skills or experience THE COURT

 The qualities of the expert can assist the court

 The witness is indeed an expert for the purpose that she was called

N EC E S S AR Y Q U AL IF I CA T I ON S & EX P ER IE N C E OF AN E X P ER T

❖ 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 R O P ER & V AL ID R E A SO N S F O R O P IN IO N

 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

C O O P ER S v D EU T SC H E G E S ELL SC H A 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

C ON FLI C TIN G O P IN I ON S

 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

T E C HN IC AL EX P ER T EV ID EN C E

❖ 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 V AN 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:

 L
 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

C I VIL C A S E S

 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

C RI MIN AL C A S E S

❖ No specific days specified but Prior disclose /certificate of intended expert evidence may be
demanded and should be granted on constitutional grounds.
T E S T IM ON E Y FR OM A W RI T T EN RE P O RT

 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

P A S T R E C OLL EC T ION R E C OR ED

 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

 CASE L AW

 Wigmore
 Ruto Flour Mills v Adelson
 Helen Suzman Foundation v President of RSA
 Holtzhausen v Roodt
 Gentiruco v Firestone
 S v Mlimo
 Coopers v Deutsche Gesellschaft
 Michael v Linksfield Park Clinic
 S v Van As
 Schneider v Aspeling
 “Ikarian Reefer” case:
STUDY UNIT 7
HEARSAY
STUDY UNIT 7 – A
RES GESTAE
E X P L AN AT OR Y N OT E

OLD EXCEPTIONS TO THE HEARSAY

RES GESTAE
RULE

 RES GESTAE:
 MOST COMMON OF THE OLD COMMON LAW EXCEPTIONS TO THE HEARSAY RULE

 Although these old exceptions are no longer exceptions under Section 3

 The COURT CAN STILL CONSIDER THESE OLD EXCEPTIONS UNDER ANY OTHER
FACTOR

5 T Y P E S O F R E S G E ST A E

 Different categories of res gestae are evolved to enable the admission of hearsay evidence
 These included the following 5 old exceptions to the hearsay rule

SPONTANEOUS STATEMENTS

COMPOSITE ACT

STATEMENTS THAT PROVE STATE

RES GESTAE OF MIND

STATEMENTS THAT PROVE

PHYSICAL SENSATIONS

DYING DECLARATIONS
 IN T RODUCT ION

❖ THE PROBLEM WITH THE COMMON LAW HEARSAY RULE

 The rule led to the exclusion of relevant evidence

 The rule led to the exclusion of reliable evidence

❖ IMPROVING THESE CONSEQUENCES

 A closed list of common law exceptions was developed to improve these unfortunate
consequences

 Although these exceptions are now obsolete, they may still be considered under
“any other factor”
 RES GESTAE
L IT E R AL ME AN IN G OF R E S G E S T A E

A TRANSACTION
RES GESTAE
THINGS DONE

A DM I S S IB IL IT Y OF F AC T EV ID EN C E

❖ In the law of evidence, EVIDENCE OF FACTS CAN BE ADMISSIBLE AS RES GESTAE

 if these facts are so closely connected in time, place, and circumstances

 these facts are closely connected and involve some type of transaction

 it can be said that these facts form part of that transaction

T H E DO CT RIN E OF R E S G E S T A E

❖ The doctrine of res gestae accepts

 PHYSICAL ACTS
 REPORTED STATEMENTS

T H E M O S T IM P OR T AN T S T A TE M EN T S FO RM IN G P AR T O F R E S G E ST A E

 SPONTANEOUS statements MADE DURING EMERGENCY of some kind

 statements that GO WITH & EXPLAIN RELEVANT ACT (so-called composite act)

 statements that PROVE THE STATE OF MIND

 statements that PROVE PHYSICAL SENSATIONS

 T H E 5 TY PE S OF RES G ES TAE

SPON TANEOUS STAT EMEN TS

R E A S ON F OR T H I S EX C E PT I ON

 It is seen as a product of instinctive response, thus less likely to be a fabrication or deliberate

distortion

 The reason behind admitting spontaneous statements is because they are considered to be a
product of instinctive response & because someone is responding to their instinct it's considered to
be less likely that that statement is fabricated/ less likely that that statement was deliberately distorted

S P O N T AN E O U S ST A T EM EN T

 The statement is considered “spontaneous” when it is so closely linked with the event that
the presiding officer concludes in the event dominated the mind of the declarant

 It is the only thing that person could think of at the moment they made the statement,
making it a spontaneous statement

S v T U GE

 FACTS OF THE CASE

• Witness to a robbery wrote down the number of the robbers’ car on his hand as the car drove off

• The robbers robbed the residents in the van in which the witness was traveling.

• The witness transferred the number onto a piece of paper.

  ADMISSIBILITY OF EVIDENCE

• The witness had disappeared at the time of the trial & the prosecution called another
witness to hand the piece of paper bearing the registration number of the car into evidence

• Its admission into evidence was one of the grounds of appeal.

• The appeal court held “that the act of writing down the number was, in all the
circumstances, part of the res gestae accompanying the events constituting the robbery &
was therefore admissible under that exception to the hearsay rule”

 JUDGEMENT

• The court held that in order for a res gestae statement to be admitted into evidence
certain conditions must exist

• In this case the court provided 4 CONDITIONS THAT MUST BE PRESENT BEFORE A
RES GESTAE STATEMENT CAN BE ADMITTED INTO EVIDENCE

R E Q UIR E M EN T S F OR A R E S G E ST A E STA T E M EN T TO BE AD MI TT E D IN T O E VI DE N C E

❖ In the S v TUGE case the court held that in order for a res gestae statement to be admitted into
evidence certain conditions must exist

❖ THERE ARE 4 REQUIREMENTS/ CONDITIONS THAT MUST BE MET

ORIGINAL SPEAKER UNAVAILABLE

STRESS /NERVOUS EXCITEMENT

CERTAIN CONDITIONS MUST
EXIST FOR SPONTANEOUS
STATEMENTS TO BE ADMITTED
STATEMENT MADE UNDER STRESS

NOT RESULT IN A RECONSTRUCTION OF

PAST EVENTS
1. ORIGINAL SPEAKER UNAVAILABLE

 The ORIGINAL SPEAKER must be SHOWN TO BE UNAVAILABLE AS a WITNESS

 In terms of the S v TUGE CASE DOES THIS CONDITION EXIST

 Yes
 The person who took down the number who wrote it was no longer available as a witness

2. STRESS /NERVOUS EXCITEMENT

 There MUST HAVE BEEN an OCCURRENCE that PRODUCED a STRESS OF NERVOUS

EXCITEMENT

 In terms of the S v TUGE CASE DOES THIS CONDITION EXIST

 YES DEFINITELY
 It was an armed robbery.
 It was a very stressful situation.
 They feared for their lives, and the robbers were speeding away, so it was stressful

3. STATEMENT MADE UNDER STRESS

 The STATEMENT MUST HAVE BEEN MADE whilst the STRESS WAS STILL “so
OPERATIVE ON THE SPEAKER that his reflective powers may be assumed to have been
in suspension

 In terms of the S v TUGE CASE DOES THIS CONDITION EXIST

 YES
 In this case that definitely happened because he had just been held at gunpoint, where
he was asked for his money or any money that was in the van
 Therefore, he was stressed & as the robbers were speeding away, he was busy
writing down the number
 The statement can be either written such as in this case or it could have been an oral
statement as well
 4. NOT RESULT IN A RECONSTRUCTION OF PAST EVENT

 The STATEMENT MUST NOT AMOUNT to a RECONSTRUCTION OF a PAST EVENT

 In terms of the S v TUGE CASE DOES THIS CONDITION EXIST

 The robbers held them at gunpoint, asked for the money and they speed away.
 Now while that was still happening, speeding away, he wrote down the number.
 It wasn't a case where later on he was reconstructing a past event.
 He was in the moment and in the end, it's still the court's discretion to determine
whether there was a sufficient degree of spontaneity.

COMPOSI T E ACTS

❖ THIS EXCEPTION APPLIES TO BOTH ORAL & WRITTEN STATEMENTS

❖ A HEARSAY STATEMENT CAN BE ADMITTED AS PART OF RES GESTAE

 A hearsay statement that explains the act may be admitted

 The hearsay statement may be admitted as part of res gestae ONLY when combined with
statements the act could properly be evaluated as evidence

Where an act was accompanied by a hearsay statement &

the act could only be properly evaluated as evidence

if it was considered in conjunction with the statement

the statement could be admitted if certain conditions

were met

C ON DI T ION S

❖ THE STATEMENT COULD BE ADMITTED IF CERTAIN CONDITIONS WERE MET

 ❖ There are 3 conditions

1. The act & the statement must be almost simultaneous

the act itself had to be relevant in
2. The statement must be made by the actor
order for the statement to be
3. The statement must only be used to explain the act admissible.

STAT EMEN TS T HAT PROVE STAT E OF MIND

A DM I S S IBL E ST A T EM EN T S

 In order to be admissible, the state of mind of the declarant must be relevant to an issue
before the court

 STATEMENTS THAT REVEAL A PERSON’S STATE OF MIND IS ADMISSIBLE AS RES

GESTAE WHERE THE PERSON’S STATE OF MIND IS RELEVANT TO THE ISSUE
BEFORE THE COURT

T H E R E A S ON F OR T HI S EX C E PT I ON

 The rationale for this exception was that such statements were frequently the best &
sometimes the only evidence of a person’s state of mind

 Statements that prove a person’s state of mind IS ADMISSIBLE BECAUSE

 Such a statement is often the best & only evidence of the person’s state of mind
STAT EMEN TS PROVE PH YSICAL SENSAT IONS

A DM I TT IN G E VI DEN C E O F C ON T EM P OR AN E O U S P H Y S IC AL S EN S A TI ON S

 Statements by a non-witness such as

 my head is aching
SUCH STATEMENTS WERE ADMITTED AT COMMON LAW AS
EVIDENCE OF CONTEMPORANEOS PHYSICAL SENSATIONS
 I am going to vomit

P R O VIN G P H Y S IC AL S EN S AT I ON

❖ TO PROVE A CERTAIN PHYSICAL SENSATION, YOU HAVE TO ADMIT

• A person’s express statement

• A person’s involuntary gesture This is admitted to prove contemporaneous

physical sensations
• A person’s reaction

❖ The statement must have been made contemporaneous with the bodily sensation
 In other words, approximately simultaneously now
 ❖ The reason why the statement, which is actually a hearsay statement is admitted is similar
to the statement to prove the state of mind because it can be the only and therefore the
based evidence of a person's bodily sensations.

1. These statements are admissible to prove the existence of a physical sensation or a

symptom

2. It's not admissible to show the cause that produce the physical sensation

 My stomach hurts

That's what the person said

 I think Peter poisoned me.

Only the 1st part - My stomach hurts would be admissible

 because it’s a statement to prove a physical sensation a person
had a sore stomach

Not the 2nd part

 because this relates to the cause that produced the physical sensation.

DYING DECL ARAT IONS

R E Q UIR E M EN T S F OR ADM I S S I ON

❖ Under the common law, dying declarations can be admitted into evidence if certain
requirements were met
❖ THE REQUIREMENTS FOR DYING DECLARATIONS TO BE ADMITTED

1. The declaration must be relevant to the cause of death

 If Ben is dying, and he knows he is dying

 If he makes a statement saying that it was Tim who killed him
 This statement is going to be relevant

2. The evidence was presented on a charge of murder or culpable homicide

 Dying declarations are only admissible in criminal cases

 More specifically if the person was charged with murder / culpable homicide

3. In normal circumstances, the deceased would have been a competent witness

 Nothing hinders him to be a competent witness

4. At the time of making the statement the declarant was living in a set & hopeless
expectation of death

 A person was just run over, and he is bleeding excessively

 Knowing that he is going to die
 At that moment he makes a statement saying unless it was Tim that ran me over
 This would be considered under a settled and hopeless expectation of death

SET & HOPELESS EXPECTATION OF DEATH

 THERE IS NO GUARANTEE OF TRUTHFULNESS

T H E R E A S ON S U P PO RT IN G T HI S E XC E PT I ON

❖ The rationale underpinning this exception was NECESSITY AND RELIABILITY

❖ The reason for this exception is that it's unlikely or considered unlikely that a person who
realizes they're going to die would make a false declaration
CASE L AW