1

Evaluation of evidence
Chapter 37
2 Recap of previous unit

 Meaning of character evidence

 The general rule on admissibility of character evidence
 Admissibility of character evidence in criminal cases
 Character evidence in civil cases
3 Outcome of unit

 The process of evaluation of evidence

 General principles on evaluation of evidence
 Some of the factors taken into account in evaluating evidence (list not exhaustive)
 Probability
 Corroboration
 Credibility
 Reliability
 Demeanor
 Circumstantial evidence
 Contradictions and discrepancies
 Failure to testify/ cross-examine?
 Cautionary rules
 Judicial notice, presumptions, admissions (these have already been covered)
 Etc.
4 What is evaluation?

 Evaluating evidence is the process followed by court to examine, assess and assign weight
to determine from the evidence presented:
 Exactly what facts have been proved
 The alleged facts that are not supported by evidence
 How the facts fit together to form complete picture from which the court can draw conclusions.

 This is a process done as part of the role and function of the court as the trier of the facts.
The Court takes into a number of factors in its evaluation of evidence. These are far from
exhaustive. Notable examples include Credibility, Probabilities, Reliability ,
Corroboration, cautionary rules, Contradictions and discrepancies, Circumstantial
evidence, Demeanour, Judicial notice, Presumptions, Etc.
5 The process of evaluation of evidence

 Remember burden of proof i.e. civil or criminal?

 Direct or circumstantial inference? Correct inferences need to be drawn
 Fundamental and General rule: All facts relevant to issue must be proved.
 All admitted facts do not necessarily have weight. Once admitted its persuasiveness alone or in
conjunction with other facta probanda has to be considered. Whether court will attach weight
depends on various factors.
 Establish factual basis of the case – needed to decide the legal issues
 Admitted and agreed - common facts
 Dispute – facts proved – standards
 Inferences drawn.
 Court hears and accepts evidence that factual allegation is true.
 Decides State / Plaintiff version – evidence proves.
6 Principles for actual process

 Court sets out – different questions of law and fact that have to be determined – evaluates
 Usually set out sequentially – unless need to go back and forth. Draws inferences – sum
 Evaluates evidence in essential features – disputed issues – inferences – primary facts.
 Compare evidence – to show a version preferred
 Consider defects – case – in light – all evidence
 Take into account weight assigned – particular
 Party – given chance to be heard – all evidence
 If available– X material and supporting witnesses
7 Outline of final process

 In judgment reasons have to be given.

 Intelligent analysis of evidence + extraction of the material portions and points of the
evidence.
 Matter of common sense, logic and experience.
 Credibility is determined, inferences are drawn and probabilities and improbabilities are
considered.
8 Guidelines and principles to understand

 How much weight to attach to pieces of evidence

 How much weight to attach to evidence as a whole
 How to evaluate conflicting evidence
 To be able to apply these rules in a given situation
9 Two basic principles when evaluating

 Evidence must be weighed in its totality

 Inferences must be distinguished from conjecture or speculation.
 Avoid piecemeal reasoning: whole is greater than sum of the parts. Drawn from ALL proven facts.
 Probabilities and inferences are legitimate considerations, whereas conjecture and speculation are not
 Probabilities and inferences are based on facts
 Conjecture and speculation are based on sheer guess work. But: Probabilities must be used correctly.
Consider facts as whole and not each alone or in isolation.
10 Evidence is to be weighed as a whole
(Read chapter 37 for some relevant case law)
 A conspectus of all and not compartmentalised or fragmented –illogical and wrong.
 Taking account of the:
 Probabilities
 Reliability of witnesses, and their opportunity for observation
 Absence of interest or bias
 Intrinsic merits or demerits of the testimony itself
 Inconsistency, contradictions
 Corroboration
 Other relevant factors
11 Factors to consider in weighing evidence

 Corroboration
 Credibility
 Demeanour
 Effect of telling lies by witness
 Circumstantial evidence
 Inferences in criminal and civil cases
 Failure to cross examine or to testify
 Failure to call a witness
 Cautionary rule
 Probability
 Etc.
 NB. We engage with some of these factors below
12 Probabilities and Inferences

 Probabilities  Inferences
 Weight court gives to a witness’s version  Interim conclusions - drawn from
on contested point. sufficient relevance and quality of
 evidence.
Uncertainty – consider what reasonably
probable – reject improbable.  Court has to do preliminary assessment
 of the potential weight before.
Evaluation of likelihood event happened
as witness says it has.  Once admitted if it helps court to draw
 inference
Context is key and it also takes common
sense
13 Corroboration

 To make a judgement- court has to rely on trustworthy evidence. If evidence suspect for any reason = witness
hesitant, biased or contradicts – then this evidence has to be supported or backed up by other evidence to test
trustworthiness of shaky evidence.
 In situations which are traditionally suspect – court has to apply caution in admitting such evidence – which
led to the development of the Cautionary rule which requires corroboration.
 Both aid in the fact finding process – have bearing on the determining of weight and probative value to give
to admitted evidence.
 In DPP v Kilbourne 1973 AC 729 756: Corroboration was defined as “nothing other than evidence which
confirms or supports or strengthens other evidence. It is in short evidence which renders other evidence more
probable. If so, there is no essential difference between on the one hand, corroboration and, on the other,
supporting evidence.”
 In R v W 1949 3 SA 772 (A): defined as evidence that supports the evidence of the complainant and makes
evidence of accused less probable on the disputed issues.
 Precisely, it is a process by which evidence is supported or strengthened by other independent evidence.
14 Importance of corroboration

 CPA s208- Court can convict accused on single evidence of a competent witness.
 Even though s 208 only requires the single evidence of a competent witness, corroboration
is practically very important when weighing up various types of evidence
 Note that: Corroboration must be from an independent source i.e. independent from the
evidence that needs corroborating. This is the rule against self-corroboration. Also, mere
repetition of story does not constitute corroboration.
15 The process of corroboration

 Identify evidence that needs corroboration.

 Identify other sources that may support.
 Present to court in appropriate format. Forms - Oral, real or documentary .
 Requirements:
 Must be admissible – if cannot be used in court cannot corroborate eg inadmissible hearsay etc
 Variety of forms – not only oral, fingerprints, if formal admission – question under x exam
 Independent source – other than suspicious or untrustworthy. Must confirm the other evidence.
16 Credibility

 Credibility concerns a witness’ truthfulness (veracity)

 In Stellenbosch Farmers’ Winery Group Ltd and Another v Martell 2003 1 SA 11 (SCA)
it was held that the Court’s findings on the credibility of a particular witness will depend
on its impression about the veracity of the witness.
 Note that a witness can be trustworthy and honest but mistaken
17 Factors to consider in assessing credibility

 General quality of testimony

 Consistency (internally, and with objective facts)
 Integrity and candour, Age, where relevant
 Capacity and opportunity for observation
 Personal interest in outcome, partiality, prejudice or self interest
 Temperament and personality
 Intellect
 Objectivity
 Ability to communicate
 Demeanour
 Etc.
18 Engage with some cases

 See S v Lotter 2008 (2) SACR 595 (C)

 S v Burger and Others 2010 (2) SACR 66 (ECG)
 R v Abdoorham 1954 (3) SA 163 (N)
 S v Oothuizen 1982 (3) SA 571 (T) at 577B
19 Reliability

 The Supreme Court has held Stellenbosch Farmers’ Winery Group Ltd and Another v
Martell 2003 1 SA 11 (SCA) that reliability of a witness will depend on:
 His or her bias, latent and blatant
 External contradictions
 Probability or improbability of particular aspects of his/her version
 Opportunities he or she had to experience or observe event in question
 The quality, integrity and independence of his/her recall
20 Demeanor

 Demeanour is not merely the appearance but behaviour in the witness box plus manner of
testifying.
 Was evidence given with assurance? Impudence?
 Hesitation while answering? deflect or crying instead of answer?
 Sheepish appearance?
 Demeanour involves many factors that distinguish living word from mere written records.
 Character, personality and overall impression
21 Legal rules that apply to Demeanour

 Demeanour on its own can be fallible guide to credibility – crafty witness.

 Where interpreter used, even less reliable guide
 Danger of overlooking cultural differences
 Demeanour rarely decisive
 Inherent probabilities/improbabilities in the evidence can be far more important
 Trial court in better position than appeal court to assess demeanour. Position held in
President of RSA v Sarfu and others 2000 (1) SA 1 (CC). However the role of trial court
in assessing demeanour not to be overemphasised to throw common sense out of the
window e.g. where there is a misdirection by judicial officer in lower court. See this
viewpoint in R v Dhlumayo and Another 1948 (2) SA 677 (A) and S v Robiyana and
Others 2009 (1) SACR 104 (Ck)
22 Cont ..

 To test truthfulness – it can be fallible i.e. It is not always possible to interpret behaviour
correctly . Appeal courts reluctant to interfere.
 Demeanour should be considered along with other factors such as:
 Probability of witnesses story
 Reasonableness of conduct
 Witnesses memory
 Consistency of witnesses version
 Interest in the matter
23 Circumstantial Evidence

 What is it? It is indirect or associated to facts i.e. not from direct testimony of eye
witnesses from which court is required to draw inferences or conclusions.
 It can be stronger or less compelling than direct eye
 Rules for evaluation:
 Inference can only be drawn if consistent with proven facts.
 Proven facts – exclude every reasonable inference except the one drawn.
 All relevant pieces of evidence viewed and considered together.
 Evaluating – if close probabilities-cannot inference
24 Circumstantial evidence and the rule on R v
Blom
 The two cardinal rules of logic in R v Blom 1939 AD 188:
 Inference sought to be drawn must be consistent with all proved facts. If it is not, then inference cannot
be drawn.
 Proved facts should exclude every reasonable inference other than the one sought to be drawn. If other
inferences not excluded, then the criminal standard of beyond reasonable doubt has not been met.
 In Godla v S (A98/2009) (2011) ZAFSHC 46: Held that court must consider the cumulative
effect of circumstantial evidence in the case, having looked at the evidence of both the state and
the prosecution.
 On practical application, see: R v Du Plessis 1944 AD 314. - Accused convicted on strength of
single finger print on car bumper. Conviction overturned on appeal. no direct witness – on
appeal accused’s fingerprint found on bumper did not justify the sole reasonable inference that
accused has been involved in theft of the Dodge. See also S v Ngubane and Another
(SS123/2016) [2019] ZAGPJHC 539; 2021 (2) SACR 158 (GJ) (18 June 2019) in which Du
Plessis is cited.
25 Test at discharge stage - premature

 Note that Blom test is inappropriate at stage of application for discharge.

 Test at discharge stage is whether court could reasonably convict on any of the evidence
 Reason for difference at this stage is because the court has not yet made credibility
findings. Also, the accused given his/her side of the story.
26 Circumstantial evidence in civil cases

 Standard: Balance of probabilities – lower than in criminal cases.

 Blom:
 First rule is the same: the inference must be consistent with all proved facts
 Second rule is different: the inference sought must be the most reasonable and probable
one, not the only reasonable inference to be drawn.
 Rule in civil cases : Proved facts – such render –inference sought to be drawn –more
probable than any other reasonable inference. If facts allow for another more or equally
probable – then the inference sought cannot prevail or be drawn.
27 Contradictions and discrepancies

 A common, though rebuttable, indication that witness is untruthful or unreliable is that he/she contradicts
him/herself. Assumption is that truthful witness will be consistent. This is however debatable.
 Two forms of contradiction
 Internal: contradiction between versions given by same witness e.g. oral testimony in court inconsistent with
previous statement at police
 External: one witness contradicts another witness on the same side e.g. doctor’s report inconsistent with
testimony of rape victim
 Some contradictions are minor i.e. they don’t go to the heart of the matter in dispute. Some are major i.e. they
go to the heart of the issue in dispute.
 S v Jochems 1991 (1) SACR 208 (A): SCA held-The mere fact that there were contradictions between the
evidence of the accused and his witness on a contestable factual issue is not, of itself, a sufficient ground for
rejecting the evidence of the accused.
 Each case to be decided on its merit. The context is key and court to be guided by common sense.
28 Effect of lies and contradictions by a
witness
 Lies do not automatically mean the witness is totally unworthy of belief. The following
maxims do not apply in SA law.
 Semel mentitus, semper mentitur - once untruthful always untruthful
 Falsum in uno, falsum in omnibus - false in one and false in all others
 See S v Oosthuizen 1982 (3) SA 571 (T) at 577B for valuable guidance on how to weigh
up contradictions, lies and inconsistencies = Lying on one point does not all evidence
untrue. Honest mistake – cannot support inference - another point fabrication .
29 Petersen v Minister of Safety & Security [2009] ZASCA 88
(10 Sep 2009)

 As was pointed out by Nicholas J in S v Oosthuizen1982 (3) SA 571 (T) at 576B-D:

 “Where the [contradicting] statements are made by different persons, the contradiction in
itself proves only that one of them is erroneous: it does not prove which one. It follows that
the mere fact of the contradiction does not support any conclusion as to the credibility of
either person. It acquires probative value only if the contradicting witness is believed in
preference to the first witness, that is, if the error of the first witness is established.”
 And at 576G-H:
 “Plainly it is not every error made by a witness which affects his credibility. In each case
the trier of fact has to make an evaluation; taking into account such matters as the nature of
the contradictions, their number and importance, and their bearing on other parts of the
witness's evidence.”
30 Failure to testify

 Where evidence placed before court and prima facie case established
 Evidentiary burden to rebut evidence expected to avoid preliminary conclusion of guilt
 Failure to testify by party expected to rebut evidence suggests negative inference can be drawn
 However, this is not necessarily the case
 In civil cases: failure to testify may have adverse effect, depending on circumstances
 In criminal cases: Trite law that if a prima facie case has been established, and if not countered by cogent
evidence, court can find guilt is proved beyond reasonable doubt. But failure to testify not item of evidence.
Can strengthen States case etc esp if circumstantial evidence and accused silent.
 Post 1996 – Constitution guarantees the right remain silent and no inference from silence – keep
uncontroverted evidence separate – assess later. Not an admission – but a missed opportunity to do
something.
31 Failure to testify: how far can court go?

 Where there is direct evidence implicating accused, failure of accused to testify tends to
strengthen the State’s case
 Because there is no gainsaying evidence to contradict and less evidence to doubt.
 Thus no reason to doubt its credibility/reliability
 Where case is based only on circumstantial evidence, different considerations apply if
State has strong case and accused does nothing to prevent unfavourable inferences being
drawn
32 Constitutional right to silence

 S 35(3)(h) of Constitution gives accused the right to silence but failure to testify cannot be taken
too far
 S v Brown: failure to testify not a direct factor going into the scale but its effect is to the leave
scale tilted against the accused.
 Principles in S v Brown and Others (CC 18/2017) [2019] ZAECPEHC 11
 No inference – by refusal to testify itself
 Uncontroverted prima facie case – silence not a fact
 Court decides – prima facie alone–harden PBR Doubt.
 Accused silence – cannot prevent logical inferences being drawn from undisputed evidence in States
case.
 An accused’s silence is not a piece evidence – have to testify – no indirect compulsion.
33 Some cases to reflect on

 S v Boesak 2001 (1) SACR 633 (SCA): Evidence calling for an answer – accused remains
silent in the face of such evidence then a court may be entitled to concludes that the
evidence is sufficient to prove guilt in the absence of an explanation. Whether the
conclusion is justified will depend on the weight of the evidence.
 S v Tandwa 2008 (1) SACR 613 (SCA): Accused has con right to remain silent that must
be made decisively as “ the choice to remain silent in the face of evidence of
suggestive of complicity, Must in an appropriate case, lead to an inference of guilt.
 NB. Each case will be dealt with based on the facts and evidence.
34 Failure to cross-examine

 Remember cross-examination has two purposes.

 To challenge the truth or accuracy of a witness’s version
 To elicit favourable material
 Failure to cross-examine is generally taken as indication that the other party does not dispute the
witness’s version
 Therefore, it is vital to put accused version to the witness – have to argue their version better in
preference to that of the witness.
 Failure can have serious consequences:
 S v Boesak 2001 (1) SACR 633 (SCA) – if you do not agree, challenge. Don’t then risk
acceptance .
 S v Boesak 2001 (1) SA 912(CC)
35 The cautionary rules applicable

 The rules on caution also impact on the evaluation process of evidence. This factor will be
dealt with in detail in the next class.
 Practice question

 The process of evaluation of evidence is a complex process, with the court being required
to take several factors into account. You are presenting a paper to a group of criminal law
practitioners. Draft a paper, clearly advising them on the factors that judicial officers often
take into account in evaluating the various forms of evidence presented in court. (20
marks)