LEV3701 Exam Memos Bachelors of Law (University of South Africa)

2.1. Generally, the following three requirements have to be met when opinion evidence is at issue: 1. The court should be satisfied that the expert is capable of giving evidence about the specific issue. In other words, a foundation for the expert's expertise must be established. It is therefore very important to test her expertise by asking searching questions on her qualifications (and even the date when they were obtained), practical experience in her field, as well as her previous track record as an expert witness. 2. Secondly, the court must be generally informed of the reasons and grounds upon which the opinion is based. This will enable the court to compare the expert's findings with other findings of fact in the particular case to see whether the expert's findings are corroborated by them. 3. Thirdly, the court need not rely on the opinion of an expert witness. If, however, the evidence is of such a technical nature that the court cannot make a reliable inference, the court must rely fully on the evidence given by the expert. 2.2. Correct approach is to weigh up elements pointing to the guilt of the accused against the elements that are indicative of innocence •Must take into account inherent strengths and weaknesses and probabilities of both sides 3 | Page •Absence of interest or bias •Intrinsic merits / demerits •Two basic principles •The evidence must be weighed in its totality •Probabilities and inferences must be distinguished from conjecture or speculation – these must be considered in the light of proved facts •Evidence needs to be weighed as a whole, not piecemeal: •The principles must be used in conjunction with the legal issues that apply when specific issues are involved, which include circumstantial evidence, corroboration and the cautionary rule. 2.3. The main limitation to police docket privilege is the constitutional right of an accused to a fair trial, as framed in section 25(3) of the interim Constitution – section 35(3) of the final Constitution. The police docket privilege which applied in terms of R v Steyn 1954 (1) SA 324 (A) cannot be reconciled with this. Normally, this right would ensure access by the accused to exculpatory documents (documents which tend to show that the accused is not guilty) in the docket, as well as to witness’s statements which he may need in order to exercise his right to a fair trial. The State may oppose such requests on the ground that such access is unnecessary in order to exercise that right; that it may lead to the identification of a police informant; that it may lead to intimidation of witnesses or in some other fashion subvert the ends of justice. The court has to exercise a judicial discretion in determining whether access should be allowed. 2.4. Evidential material ⮚ which independently ⮚ confirms ⮚ other (untrustworthy) evidential matter ⮚ and which is admissible