Similar Fact Evidence

• Meaning → evidence that a person, who has been charged with a particular crime, has
behaved in a similar way on other occasions (facts-in-issue & facts similar to facts-in-issue)
• Purpose → show that a person has on other occasions acted in a similar manner to the
circumstances presently before the court.
• Admissibility → generally inadmissible because it is irrelevant. To be admissible there must be
link (nexus) between SF and facts-in-issue (link must be more than mere similarity)
o SFE will be admissible if its relevant to fact-in-issue (degree of relevance; probative
value to assist w/ issue)
o Treated as circumstantial evidence (court must draw reasonable inference)
o SFE is usually irrelevant when prejudicial effect > probative value
• Evolution of SFE → prejudice w/ SFE made general admissibility rule formulation difficult.
o Makin → SFE would be highly prejudicial to accused (accepted SFE). SFE is used for
purposes of reasoning that the accused committed this crime (not previous ones)
o R v Straffen → SFE was admitted to show that the accused’s maniacal propensities in
these circumstances was highly relevant to a fact in issue
o R v Bond → must have connection, link, nexus a chain of cause and effect, between
the SF and a fact-in-issue
o DPP v Boardman → SFE (as circumstantial evidence) is exceptionally admissible when
its probative value > prejudicial effect
o S v D → accepted Boardman but stated, there is no single manner of resolving inquiry
• Nexus and coincidence → SF will have no relevant probative value if connection w/ facts-
in-issue is explained as a coincidence
o SFE = relevant & admissible if nexus goes beyond mere coincidence
o R v Bond → nexus can be found in the extreme unlikelihood of coincidence
o R v Smith → occurrence of many accidents could not reasonably be explained on
the basis of coincidence
• Relevance of SFE will be determined by the strength of all other available evidence.
o R v Ball → prior conduct has a high probative weight given other evidence

Opinion & Expert Evidence

• General rule → opinion of a witness is irrelevant because it is the function of the court to
draw inferences and to form its opinion from the facts.
• True opinion rule → expressed i.t.o the ultimate issue doctrine where opinion evidence is
admissible when it is relevant (appreciable assistance to court)
o Witness is in a better position than court to form an opinion then the opinion is
admissible on the basis of relevance (probative weight because it can assist court)
o Irrelevant & inadmissible if court can decide on matter w/o opinion.
• The distinction between lay persons and experts does not govern admissibility (depends on
whether they can assist the court)
o For procedural purposes the distinction is important because in civil cases parties
must give notice of intention to rely on expert opinion evidence and in criminal cases
state is required to disclose expert opinion evidence to the accused before trial
• Opinion of laypersons → not possible as a witness to completely eliminate inferences from
factual testimony.
o Compendious mode is when a witness gives an opinion that is a brief summary of
facts (is the summary helpful and not prejudicial to either party?)
o Examples: approximate age, value of articles; sobriety of person; approximate speed
• Expert witnesses → expert opinion will be received when the fact-in-issue relates to scientific
fields.
 o Gentiruco v Firestone → whether/not court can receive “appreciable help” from
witness on particular issue.
o Holtzhausen v Roodt → opinion can be irrelevant & inadmissible when it is not helpful
to the court.
o Courts must be satisfied that the witness has specialized knowledge, skills etc; expert
can assist the court; the witness is an expert for the purpose they were called
• Probative value of expert opinion → providing reasons for opinion results in the proative
value being stronger
o Coopers v Deutsche Gesellschaft → court can evaluate expert opinion when the
premises of reasoning & process of reasoning that led to the conclusion is disclosed
o Michael v Linksfield Park Clinic → conflicting opinions means that the court will not
depend on creditability but rather exam opinions and the reasoning.
• Expert opinion & hearsay → may rely on reported data if they can confirm the correctness
of statement in the book & the textbook is reliable.
• Ethical duties of expert witnesses → according to Scheider v Aspelling, experts must give an
uninfluenced & independent opinion.
• Hollington rule → judgment of previous criminal court amounted to the opinion of that
tribunal & was therefore irrelevant/inadmissible before a civil court (confined to civil proc)

Character Evidence
• 3 psychological characteristics → general reputation; actual disposition to behave; specific
acts committed by person.
• Common law → exceptionally admissible evidence is limited to general reputation.
• Irrelevant & inadmissible because it has limited probative value & is highly prejudicial.
• Murphy approach → a court cannot convict someone merely on the evidence of past
misconduct or acquit a person simply because he/she has a good reputation
• Admissible in s42 of CPEA & s227 (sexual offences); s211 (previous convictions); s197 (the
shield excluding bad character) of the CPA.
• Criminal proceedings → may not admit evidence of the accused’s character (irrelevant &
highly prejudicial) but where accused adduce evidence of good character the prosecution
can counter.
o Accused may elect to adduce evidence of good character and you can cross.
o Prosecution may counter bad character.
o S211 CPA (previous convictions) → does not prevent an accused from voluntarily
admitting evidence of his/her previous convictions (alibi defence)
o S197 (bad character) → bring about good character; accused gives info about
others; statutory specific criminal offence of receiving/being in possession of stolen
property knowing its stolen; remove shield w.r.t SFE
• Character of complainant → irrelevant & any questioning that intends to establish character
is prohibited (subject to cross)
o Relevant & admissible in sexual offences & crimen iniuria (complainant’s dignity)
• Civil proceedings → character is irrelevant & inadmissible (unless it is relevant to facts-in-issue
or determining damages)

Evidence In Sexual Offences

• Common law → accused could admit evidence of complainant’s bad reputation or sexual
history.
 o complainant could be cross-examined on sexual history.
• Criticism of common law and previous s227 → few limitations were placed on the
admissibility of the complainant’s sexual history.
o Cross-examining the complainant on sexual history was traumatic/humiliating.
o Sexual evidence could be irrelevant.
o prospect of being cross-examined about sexual history deterred a complainant from
laying a charge of rape.
• Present s227
o s227(2): no evidence of previous sexual experience will be admissible unless court
grants leave; evidence is introduced by prosecution.
o s227(3): court may direct application be heard in camera.
o s227(4): court may grant application if it’s satisfied that complainant's sexual history is
relevant.
o s227(5): court must consider factors like the interest of justice/society; fundamental to
accused's defence etc.
o s227(6): court must refuse leave to adduce evidence if purpose of sexual history is to
support inference that complainant is more likely to consent/be less worthy of belief.
o s227(7): court must provide reasons for allowing/refusing.

Corroboration
• Self-corroboration → principle states that evidence regarding previous statements cannot
be led to support something that the witness is currently saying in court.
• Purpose of the rule against self-corroboration
o renders self-corroborating evidence irrelevant.
o prohibits oral evidence emanating from a specific witness being used to strengthen
the credibility of that same witness.
o limited to oral/written statements.
• Collateral evidence → evidence of facts that are not connected to facts-in-issue (s210 CPA)
o General rule: inadmissible but can be exceptionally admitted when it affects the
connection of other evidence.
• Res gestae → ad hoc collection of common law evidentiary facts and discrete legal
concepts
o exceptionally admissible: integral part of same continuous transaction; relevant to
transaction; gives light on transaction; forms part of complete picture.

Previous Consistent Statements

• Definition → statement made by a witness on a previous occasion which is substantially the

same as the witness’s statement made in court
• Common law → PCS is irrelevant & inadmissible (S v Burgh)
o @ Trial : witness may not be asked whether they previously made a statement similar
to testimony in court
• Rules against PCS → Corroboration of a statement should come from an independent
source and a witness cannot corroborate by pointing out that they has said the same thing
before
o R v Roberts → testimony is inadmissible because it is self-serving & self- corroborative
 o PCS is irrelevant because of low degree of probative value; easily fabricated;
superfluous; collateral issues.
• Previous inconsistent statement → relevant & admissible because it speaks of lack of
credibility of the witness.
• Admissibility of PCS → relevant & admissible (Hotzhausen v Roodt) to rebut the opposing
party’s suggestion of recent fabrication; complaints by a victim in sexual cases; dock
identification.
• Exceptions to the general rules
o Rebut Allegation of Recent Fabrication → Attack must specifically be on witness’s so-
called fabricated testimony, not a general assault on the witness’s credibility.
▪ On re-examination, witness may rebut accusation.
▪ PCS is admitted for relevance.
o Complaint By Victim of Sexual Offences → common law rules says that voluntary
complaint made by the victim within a reasonable time after the commission of
alleged sexual offence = admissible as PCS
▪ Common law requirements → complaint must be voluntary; witness must
tesifty; complaint must be made at the first reasonable opportunity;
complainant must be a victim of sexual offence; complaint can be admitted
for a limited time (for consistency)
▪ s58 Criminal Law Amendment Act → evidence relating to PCS shall be
admissible in crim proc of sexual offences provided that the court may not
draw adverse inference from absence of PCS.
▪ s59 Criminal Law Amendment Act → in crim proc, the court may not draw
inference only from the delay between the alleged commission of offence
and the reporting.
o Prior Identification (Dock Identification)→ witness who identifies an accused @ trial,
also identified the accused on a previous occasion (little probative value, serves to
confirm identity)
• Other circumstances in which PCS is admissible.
o S 34(2) CPEA; s 222 CPA → permit a witness giving oral evidence at trial to hand in a
written, signed statement made after the incident under investigation
o S 213 CPA → a witness statement may be proved by consent between the
prosecution & accused without calling the witness to testify
o Statements made to the police at the moment of arrest.
o An explanation given by an accused when found in possession of stolen property (S
240 & 241 CPA)

Hearsay Evidence
• Definition → a witness testifying about what he or she ‘heard’ another person ‘say.’
• General rule → s3(4) of the Law of Evidence Amendment Act states i.r.t evidence, the
probative value depends on the credibility of any person other than the person giving such
evidence.
• Basic rule of procedure → in order for the testimony of a person to be admitted as evidence
@ trial, the person must be called to appear before the court as a witness.
o Evidence of a non-witness is inadmissible @ trial.
• Inadmissibility → reception of evidence @ trial requires the calling of a witness to testify
under oath & be subject to cross-examination.
o Hearsay evidence is unreliable; prejudicial; and may render an unfair trial.
• Pre-1988 Position → common law regulated hearsay and it was defined as a “statement of
person not called as witness tendered for the purpose of proving the truth of statement”.
o Courts had no discretion to admit hearsay outside a closed list of exceptions.
o Law of Evidence Amendment Act made common law exceptions no longer
applicable.
• S3(1) of LEAA → hearsay evidence shall not be admitted as evidence in criminal or civil
proceedings, unless
o Each party for whom the evidence is against agrees to its admission.
o The person upon whose credibility the probative value of evidence depends on will
ultimately personally testify @ trial.
o Evidence should be in interest of justice considering the nature of the proc/evidence;
purpose/probative value of evidence; prejudice etc.
• S v Ndhlovu → argument against admission of hearsay is that it infringed the right to
challenge the evidence in s 35(3)(i)- it was procedurally & substantially unfair
o hearsay could not be subject to cross.
o admission was unfair as the opposing party could not effectively counter the
inferences that could be drawn.
o SCA held → s3 is constitutionally sound because hearsay cannot be admitted unless
there are compelling reasons to do.
▪ The judge will ensure fairness of admitting hearsay.
• Admissibility of hearsay → inadmissible unless saved by an exception (s3(1)(a)-(c))
o By agreement (s3(1)(a)) → consent must be based on a full understanding of
potential prejudicial consequences.
o Where the person testifies (s3(1)(b) & s3(3)) → if a person testifies @ later time its
admissible and a court may allow them to testify @ later time
o In the interests of justice (s3(1)(c)) → SCA in S v Shaik said courts should not be
hesitant to admit hearsay
▪ AD in McDonald’s Corporation v Joburgs Drive Inn Restaurant - the decision to
admit hearsay is a decision of law based on statute & not a judicial discretion.
• “In the interests of justice”
o Nature of proc → the standard of proof
o Nature of evidence → truth; accuracy; making up evidence; lucid
o Purpose of evidence → more likely to be admitted when it is tendered to prove a
subsidiary issue rather than a fundamental fact-in-issue.
o Probative value → assess probative value against prejudice.
o Reason why evidence is not given by person whose credibility probative value
depends → death; ill health; absence from country are acceptable reasons
o Prejudice → unfair burden of rebuttal; countering would be ineffective; lengthen
proc; cannot cross person who made hearsay.
• Other statutory exceptions in CPA
o S212 → to avoid procedural inconvenience of calling a witness, certain facts may be
admitted by affidavit and constitute prima facie evidence
▪ act/transaction took place; supply official w/ info relevant to issue in crim
proc; registration and recording of official matters; exam & test results.
o Other facts proved by affidavit in s212:
▪ Existence & nature of precious stones/metal; condition & identity of dead
body; chain of custody of object/body sample
o S213 → allows a written witness statement to be admitted at trial (substituting oral
evidence) but only by consent of all parties.
o S215 → allows the recorded evidence of a witness at a prior trial to be admitted by
way of affidavit @ a later trial.
o S221 → allows trade/business records compiled from information by a person having
personal knowledge to be admitted where the person is dead; mentally ill; out of the
country; cannot be found/identified.
 o S235 → allows an original record of a judicial proceeding to be proved by way of a
certified copy.
• Other statutory exception in CPEA
o S22(1) → exam & results can be admitted via affidavit.
o S26 → allows the admission of tables of sunset & sunrise times prepared by any official
observatory.
o S28 → bank book copies along w/ affidavit are allowed.
o S34 → permits the admission of an original document containing a statement made
by a person about a fact in issue (have person knowledge of facts; called to testify)

Privilege
• Definition → an individual, or the state, may lawfully refuse to disclose relevant but privileged
evidence at because it is in the interest of justice (privilege is used as protection)
• Privilege can exclude relevant, admissible evidence because of the overriding public policy
• Privilege must be distinguished from evidentiary rules (competence & compellability)
• Witness who invokes privilege must take the witness box and then raise privilege on question-
by-question basis
• Private privilege → Legal professional privilege or attorney-client privilege; litigation privilege;
privilege against self-incrimination; right to silence; martial/child privilege
• Public privilege → State/executive privilege; Promotion of Access to Information Act (PAIA);
police docket privilege; detection of crime privilege
• Legal professional privilege → general rule in law is that communications between legal
adviser and client is privileged if they were acting in professional capacity; client consulted
in confidence; purpose of communication was to obtain legal advice.
o S v Safatsa → recognised full, confidential, honest and frank communications
between client and legal adviser to be fundamental right
o Bennet v Minister of Safety & Security → court reiterated that attorney-client privilege
is fundamental right (imperative to ensure fair trial)
• Requirements of legal professional privilege
o Legal advisor must act in professional capacity (all factors must be considered)
o Communication must be made in confidence (client consulted legal adviser in
professional capacity for purposes of obtaining legal advice)
o Communication must be made for purpose of obtaining legal advice.
o Advice must not facilitate commission of crime/fraud
• Who can claim legal professional privilege → must be claimed by client
• Scope of legal professional privilege → protects from disclosure communications between
client / legal adviser but not between client/legal adviser and 3rd party.
o Bogoshi v Van Vuuren → Because privilege is a fundamental right, it can be claimed
to prevent seizure by warrant of privileged documents
• Waiver i.t.o legal professional privilege → client can waive privilege (express, implied,
imputed)
o Privilege i.t.o witness’s statement falls away when witness uses statement to refresh
recollection while in the witness box
o Accused cannot be crossed on confidential information
• Privilege vs other constitutional rights
o Jeeva v Receiver of Revenue, Port Elizabeth → privilege is a reasonable and justifiable
limitation
• Litigation privilege → Protects from disclosure communications between client or legal
adviser and third parties for purpose of pending litigation
o Requirements → be made for purpose of being placed before legal adviser for
advice; communication must have been made after litigation was contemplated
 Admissions, Confessions & Pointings Out
• Admissions in civil & crim proc → (in)formal/vicarious admissions; statements made w/o
prejudice
• Admissions in crim proc only → confessions and pointings out; admissibility is determined by
(in)formal admission, confessions, pointings out
o Constitutionally we look @ right to silence(s35(1)(a)(b)); not to compelled to make
admission/confession (s35(1)(c)); trial fairness (s35(5))
• Informal admissions → statement by party in criminal/civil case that is averse to that party’s
case
o S v Nduli → cannot make excuses against a statement you made (self-serving; false)
o Admissions can be contained in oral/written statements; positive/negative conduct
o Admission by silence → can be admission if it forms the basis of common sense
inference (look @ surrounding circumstances)
▪ Note right to remain silent and presumption of innocence
• Case law (informal admissions)
o Jacobs v Henning → admission by negative conduct in the form of silence
o R v Barlin → admission by negative conduct in the form of silence
o Maharaj v Paradaya → admission by failure to answer letter
o R v West → failure to answer a letter ( due to pregnancy) did not amount to an
admission
• Formal v informal admissions → informal admissions are made out of court while formal
admissions are made in court/pleadings; informal it just an item of evidence while formal in
binding.
• Vicarious admissions → statement made by a 3rd person in the scope of his/her duties that is
admissible against accused even though accused did not personally make it
o General rule → not vicariously admissible as they are only admissible against their
makers
o Exceptions → co-perpetrator make statement to purpose of committing crime;
accused authorizes maker of statement to make it on their behalf in the form in
express/implied authority; privity.
• Admissibility of informal admissions → in civil proc (relevance); in crime proc (beyond
reasonable doubt; voluntary statement)
• S35(1)(c) Constitution → arested person shall have the right to not be compelled to make
admission/confession.
• Burden of proof → state bears burden of proving beyond reasonable doubt that accused
made admission voluntary.
• Trial-within-trial → both parties lead evidence; court decides admissibility; contents are
irrelevant until admissibility has been decided.
• Pointing out → forms part of a confession or statement that is not admissible
• Admissibility of pointing out → extra-curial admissions only admissible after state has proven
that it was made voluntarily (S v Sheehama; S v January)
• Confessions → statement made out of court admitting to all elements of crime (Becker)
• Admissibility of confessions → s217(1) CPA says it is admissible if it was made voluntary;
declared in sound and sober senses (R v Blyth); w/o being unduly influenced.
• Case law (undue influence)
o R v Michael → impression he would not be prosecuted if he made a confession
o R v Afrika → encouraged to speak is not undue influence
o R v Kearney → promised that the statement would be kept secret (not undue)
o R v Sampson → confronting w/ other statement to trick you (undue influence)
• Technical prerequisites of confessions
o Made to peace officer → must be confirmed in writing.
 o S v Latha → not advisable that a policeman who was part of the investigation team
should also take down the confession of the accused.
o S v Dhlamini → details must correspond from what you say to written statement.
o Magistrate must ensure that statement is voluntary; ask relevant questions
• Admission of inadmissible confession → s217(3) states that exceptions are when accused
adduces @ trial; judge says it is favorable to accused (Nieuwoudt)
• Burden of proof i.t.o confessions → beyond a reasonable doubt that an oral or written
confession is admissible.
• Confessions to lesser/related offences → competent verdict
• Confession vs admission → requirements for admissibility are stricter for confessions
o Admissions are admissible in civ & crim proc, but confession is admissible at crim proc
• Artificial distinction → S v Agnew discusses whether distinctions between admissions and
confessions should be abolished.

Competence & Compellability

• General rule → Everyone is presumed to be competent and compellable unless statute or
common law provides otherwise.
• Children → children may testify as long as they appreciate duty to speak the truth; have
sufficient intelligence; can communicate effectively.
o Competent and compellable to testify against their parents.
o S v Herholdt → competency test was used to determine whether the child could
understand the difference between the truth and falsehood
• Mentally incompetent & intoxicated witness → s194 CPA says that they are not a competent
witness in that state (S v Katoo)
• Hearing and speech impaired → competent and compellable if they can communicate
with court (sign language etc)
• Accused → competent to testify in own defence but not compellable
• Incrimination of co-accused → accused’s competence limited to giving testimony in own
defence and cannot be compelled to give evidence helpful to co-accused.
o Chance of incriminating co-accused and if the co-accused elects to remain silent,
they cannot be compelled to give evidence.
• Accused can become witness for state against former co-accused by terminating status as
accused → charge is withdrawn against accused; found not guilty and discharged;
accused pleads guilty and trial is separate from co-accused; trial separated for another
reason.
• Spouses in civil cases → competent and compellable witness for/against spouse but spouse
may claim marital privilege.
• Spouses in criminal cases → competent witness for accused; competent & compellable to
testify for accused; only competent to testify for co-accused; competent for state.
• Former spouses → S v Taylor states that former spouse competent but not compellable if
called by state; competent and compellable if called by accused.
• Spouse as co-accused → neither can be compelled by state.
• Judicial officers → judges are not competent to give evidence in case over which
preside/presided (must recuse if you have special knowledge)
• Officers of courts as witness → attorneys etc are competent & compellable.
• Members of parliament → until completion of business, they cannot be compelled.
• President → President of RSA v SARFU states president is competent and compellable.
• Recalcitrant witness → competent & compellable witness who refuses to attend
proceedings may be brought to court by warrant of arrest; tried and punished, unless they
can give a just excuse.
• S205 examination (subpoena to appear for questioning before judicial officer) → DPP
investigates crime, and witness has material info, you can subpoena them
• Compelling journalists → S v Cornelissen, court had to strike balance between 3 factors in
the interests of justice (freedom of individual; need for effective prosecution of crime; the
need for press to report freely and fairly)
• S v Thurston → parties cannot consent to admission of incompetent witness’s evidence

Cautionary Rules
• Court should not base its findings on unreliable evidence or untrustworthy evidence.
• Aspects of the rule → court should be cautious when relying on evidence thought to be
unreliable; court should seek safeguards when doing so.
• Closely linked to corroboration → deal w/ caution first, then the corroboration rule
o both concepts relate to the weight or probative value of evidence
o in practice, corroborating evidence is frequently used to satisfy or comply with the
second part of the cautionary rule.
o The rule is not contained in legislation but has been developed through case law.
• Purpose → ensure that the courts do not make a finding in a particular matter based on
evidence which judicial experience has
• Applicable categories that cautionary rules apply to → participants; single witness
testimony; children’s testimony; identification evidence; sexual offences.
• Participant → rule applies to anyone who has committed an offence in connection with the
same criminal transaction that forms the subject matter of the charge.
o S v Masuku → caution is imperative; accomplice has motive to lie; corroboration
must directly implicate accused
• Single witness testimony → R v Mokoena, an accused should not be convicted on the
evidence of a single witness unless it appears that his/her testimony is clear & satisfactory.
o S v Sauls, accused may be convicted even though there are shortcomings in the
single witness’s testimony (consider merits; trustworthiness; STANDARD OF PROOF)
• Children’s evidence → they are imaginative, may be unable to properly distinguish between
right & wrong and susceptible to suggestion & manipulation.
o Consider child’s age; oath/affirmation.
• Identification evidence → correct identification of the accused as the perpetrator of the
crime is a vital element.
• Sexual offences → S v Jackson abolished cautionary rule because it held that the rule was
based on an irrational and outdated perception which unjustly stereotypes complainants in
sexual cases as unreliable.
o Despite case, court still treat uncorroborated testimony of sexual complainants with
caution.
• Corroboration → cautionary rule requires the court to find safeguards to reassure itself that
the evidence it is relying on is trustworthy.
o DPP v Kilbourne defines corroboration as evidence that confirm/support/strengthen
other evidence.
• Characteristics of corroborating evidence → admissibility; independent source
• Corroboration and cautionary rule → cautionary rule is closely related to the process of
corroboration because corroborative evidence usually provides the safeguard required by
the cautionary rule
• Corroboration of confessions → s209A CPA requires confession be corroborated in a
material respect before the court can convict the accused (proof is NB)
o First alternative → merely that the confession be confirmed in a material respect (R v
Blyth)
o Second alternative → proof by means of other evidence.
 Circumstantial Evidence
• Facts-in-issue may be proved by direct/indirect evidence.
• Circumstantial evidence is not provided by the direct testimony of eyewitnesses but from
associated facts from which an inference must be drawn about the facts in issues.
o Requires a court to draw inferences or conclusions.
• S v Reddy states that two articles of circumstantial evidence together may have great
weight.
• Criminal proceedings → circumstantial evidence is dangerous because other inferences
that can be drawn from the facts.
o R v Blom → inference must be drawn consistently w/ all provided facts and excl. all
reasonable inferences (because the level of proof is beyond a reasonable doubt)
o Godla v S → court cannot examine circumstantial evidence in isolation – must
consider the cumulative effect of all the circumstantial evidence.
o Weighing evidence → consider in its totality.
o Circumstances that create inferences of guilty person → fleeing scene; resistance of
arrest; general conduct etc
• Civil proceedings → onus of proof is on a balance of probabilities.
o Second rule in R v Blom is not applicable as court need only to choose the most
reasonable inference.
o Rules → inference must be drawn consistently w/ all proved facts; proved facts
should render the most probable inference.
o Givan v Skidmore → sufficient if it is the strongest or most probable inference