Circumstantial Evidence 2020 PDF

Preview

Summary

A detailed analysis of the lecture on Circumstantial evidence...

Description

LECTURE 17: CIRCUMSTANTIAL EVIDENCE AND CIRCUMSTANTIAL FACTORS

17 CIRCUMSTANTIAL EVIDENCE AND CIRCUMSTANTIAL FACTORS 1.

INTRODUCTION

293

2.

THE DISTINCTION BETWEEN DIRECT AND INDIRECT (CIRCUMSTANTIAL) EVIDENCE

293

3. 3.1 3.1.1 3.1.2 3.1.3 3.1.4 3.1.5 3.2 3.2.1 3.2.2 3.2.3 3.2.4 3.3 3.3.1 3.3.2 3.3.3 3.3.4 3.3.5 3.3.6

GUIDELINES TO, AND EXAMPLES OF, THE APPLICATION OF CIRCUMSTANTIAL EVIDENCE 294 Prospective evidence 295 Continuity 295 Correspondence in the ordinary course of business of official matters 296 Habit 296 Motive, plan or intention 296 Ability or knowledge 297 Contemporaneity or concomitant evidence 298 Opportunity 298 298 Res gestae The standard (norm) of comparison 299 299 Negligence - res ipsa loquitur Retrospective evidence 300 Regularity (omnia praesumuntur rite esse acta) 301 Mechanical instruments and devices 302 Possession as proof of ownership 302 Failure to explain or previous untruths 302 False evidence 303 303 Corpus delicti 291

LECTURE 17: CIRCUMSTANTIAL EVIDENCE AND CIRCUMSTANTIAL FACTORS

3.3.7

Fingerprints, blood tests and police dogs

304

4. 4.1 4.2

CIRCUMSTANTIAL FACTORS The failure to testify Failure to adduce available evidence

305 305 306

4.3 4.4 4.5

Failure to cross-examine 307 Presence in court of a witness yet to testify 307 Previous experience of the witness by the court 308

5.

THE APPLICATION AND VALUE OF CIRCUMSTANTIAL EVIDENCE

308

PRESCRIBED MATERIAL

309

6. •

GENERAL LEARNING OUTCOME: To study the Law of Evidence principles with regard to circumstantial evidence and circumstantial factors.

•

SPECIFIC LEARNING OUTCOMES: After completion of this lecture you should be able to: • distinguish between direct and indirect evidence; • discuss the examples of circumstantial evidence by using practical scenarios; • distinguish between the different circumstantial factors; • briefly discuss the prescribed material and apply it to case scenarios.

292

LECTURE 17: CIRCUMSTANTIAL EVIDENCE AND CIRCUMSTANTIAL FACTORS

1.

INTRODUCTION

Circumstantial evidence may play a role in the process of evaluating evidence as well as in answering the question of admissibility of such evidence and is therefore treated as a question of relevance. In this lecture the emphasis will be on the different ways in which it manifests itself in practice. Other types of evidence, which are traditionally regarded as factual presumptions, will also be discussed as circumstantial evidence. The reasons for this are that they usually really only provide guidelines for the drawing of inferences rather than being true presumptions. In Sigwhala 1967 4 SA 566 (A) 569 the court prefers the term “inferences of fact” rather than “factual presumptions”. Circumstantial factors such as the failure by a party to testify, crossexamine or call available witnesses are also discussed. Although it is not evidence as such, it facilitates the drawing of inferences. The evaluation and value of circumstantial evidence will be dealt with later on. 2.

THE DISTINCTION BETWEEN DIRECT AND INDIRECT (CIRCUMSTANTIAL) EVIDENCE

An eyewitness will give evidence of what he physically observed. The witness who saw, for example the accused stabbing the complainant will give direct evidence to the court about this observation. This evidence is not always available and the court will then have to make do with indirect evidence and draw inferences from that. Obviously the indirect (or circumstantial) evidence must be such that it warrants a particular inference. An example would be the witness who testifies that he saw the accused with a knife in his hand whilst chasing the deceased. Shortly hereafter he came upon the deceased, who now had several open wounds to the chest. He further testifies that he saw the accused wiping 293

LECTURE 17: CIRCUMSTANTIAL EVIDENCE AND CIRCUMSTANTIAL FACTORS

blood from a knife not far from where the deceased was lying. The inference that it was the accused who stabbed the deceased would be almost irresistible. It usually requires more circumstantial evidence to infer a specific fact than would have been the case if direct evidence of that fact was available. It is, however, only at the end of the case, when the evidence is evaluated, that the difference between the two types of evidence becomes evident. The distinction is also of importance if, at the closure of state’s case, the accused declines to give evidence. The court then has to decide what to infer from the accused’s failure to give evidence. See Letsoko 1964 4 SA 768 (A); Gokool 1965 3 SA 461 (N); Theron 1968 4 SA 61 (T) and Mthetwa 1972 3 SA 766 (A). A distinction must be drawn between the drawing of inferences and making assumptions when dealing with circumstantial evidence. A specific assumption is assumed without further ado and without a basis for such an assumption having been laid. Inferences on the other hand, depend on specific factual information. Circumstantial evidence has on occasion been compared to a chain, the links of which consist of pieces of evidence. This is not a good comparison, as it implies that the chain will break once one piece of evidence is rejected. A better comparison would be to a braided rope: when the strands break, the rope weakens and conversely, when strands are added, it gets stronger. The gist of the matter is that one piece of circumstantial evidence may be inconclusive, but once other evidence is added, it gains probative force. 3.

GUIDELINES TO AND EXAMPLES OF THE APPLICATION OF CIRCUMSTANTIAL EVIDENCE

The inferences, which a court may draw from circumstantial evidence, can be divided into three categories.

294

LECTURE 17: CIRCUMSTANTIAL EVIDENCE AND CIRCUMSTANTIAL FACTORS

3.1 Prospective evidence Circumstances, which existed in the past, may lead to the inference that matters can be expected to turn out in a specific way. 3.1.1 Continuity The inference that a specific state of affairs still exists, may be drawn if it is proved that it existed in the past. One thinks of the ‘presumption of continuity” which provides the nexus when dealing with similar fact evidence. It is merely a question of relevance based on sound logic. The following examples illustrate this type of evidence: The accused denies that he traveled at an excessive speed. The state adduces evidence that shortly before this, he also traveled at an excessive speed. • Consent is in dispute during a rape case. The state leads evidence of an argument between the complainant and the accused immediately prior to the alleged rape. •

Another typical example of this aspect of continuity is the so-called “doctrine of recent possession”. It is sometimes seen as a presumption but in reality it is a factual inference. The accused who is found in possession of recently stolen property and who is unable to explain his possession thereof satisfactorily, will be convicted either of stealing that property or of receiving it, knowing it to be stolen property. It may even be inferred that the accused was involved in a crime which went handin-hand with the theft, such as housebreaking or even murder. If recently purchased property is defective, it may be inferred that it was already defective at the time of sale. The lapse of time between the incident and the possession is obviously important. The longer the time-period, the weaker the inference.

295

LECTURE 17: CIRCUMSTANTIAL EVIDENCE AND CIRCUMSTANTIAL FACTORS

3.1.2

Correspondence in the ordinary course of business or official matters The fact that evidence shows that an official letter was written and a copy filed, may lead to the inference that the addressee received it. If the letter were posted in an unofficial manner it would seem that evidence that it was sent as a matter of routine, will first have to be adduced before such an inference will be drawn. A court may not infer, as a matter of course, that a letter was stolen if it was posted but not received. A statutory presumption that a letter was delivered operates with letters sent by certified mail. See section 7 of the Interpretation Act, 33 of 1957.

3.1.3 Habit The fact that a person is in the habit of acting in a certain way, is relevant to the question as to whether he also acted in that manner at a given time. The habit of a jogger to jog on the side of the road facing oncoming traffic, led to inferences in Goldberg v General Insurance 1980 3 SA 200 (A). 3.1.4 Motive, plan or intention Evidence about a motive for acting in a certain manner is often allowed to show that it is probable that the accused committed the act in question. In Shaik 1983 4 SA 57 (A)62E it was said that the more probable the consequence, the more probable the inference that the accused foresaw it. This usually takes the form of previous statements or acts which justify the inference of motive. Evidence of the severe financial problems experienced by a company may justify the inference that the company director, who is charged with setting fire to the company warehouse, wanted the insurance money. The opposite is also true; absence of any indication of a motive may lead to the opposite inference being drawn.

296

LECTURE 17: CIRCUMSTANTIAL EVIDENCE AND CIRCUMSTANTIAL FACTORS

Evidence that the accused made certain plans or preparations is also relevant to the question as to whether he in fact committed the final act. Evidence that an accused purchased or obtained poison, a knife or a firearm is relevant, even though he may only have mentioned his intention to do so. The subjective nature of intention causes it to be mostly inferred. Schmidt 161, puts it succinctly when he says that one’s actions are usually expressions of one’s will - you intend to do what you in fact do and it is thus often possible to infer from an act that the perpetrator intended to act in that manner. Other circumstances, not necessarily linked to conduct, may also justify an inference of intention, for instance factors such as the nature and size of an object used during an assault with intent to cause grievous bodily harm, or prior knowledge gained by the accused of, for instance, dagga. Our judicature makes it clear that the inference which is drawn from circumstantial evidence (although sometimes referred to as a factual presumption) is not the same as a judicial presumption. 3.1.5 Ability or knowledge Evidence, which tends to indicate that a person had the specific ability to perpetrate a specific act, may be extremely relevant as circumstantial evidence. The special knowledge which one party has and the lack of such knowledge with the other party may, as a circumstantial factor, play an important role in the eventual assessment of the evidence. The failure by a party to disclose, by way of evidence, his specific knowledge may lead to an adverse inference being made against him. If the question arises whether a person possessed specific knowledge regarding a particular subject, the answer may lie in circumstantial evidence in the form of similar fact evidence.

297

LECTURE 17: CIRCUMSTANTIAL EVIDENCE AND CIRCUMSTANTIAL FACTORS

3.2 Contemporaneity or concomitant evidence This evidence is generally accepted because circumstances, which exist contemporaneously with the disputed act or transaction may more or less render the alleged facts probable. 3.2.1 Opportunity Circumstantial evidence of the opportunity to do something or the lack of opportunity to do so is regularly used to prove or disprove the presence of someone at a specific place and time. A presumption of adultery having been committed would not be out of place upon proof that the couple shared the same bedroom, being produced. The inference that it was the accused that caused the deficiency, in circumstances where he was the only person who had access to the money or stock in question, would be almost irresistible if he is charged with theft by general deficiency. 3.2.2 Res gestae This term points to “that (things) which have been done”, in other words, some or other transaction, act or occurrence. Traditionally res gestae is discussed, either under hearsay evidence, or as an aspect of relevance. It is preferable to deal with it as circumstantial evidence, which derives its grounds for its admissibility from the general rule relating to relevancy. Contrary to other authors, it is here regarded as a type of circumstantial evidence, which manifests itself in specific ways, thus obviating the need to devote a separate lecture thereto. Being mindful of all the negative criticism, which this concept has elicited, it will nevertheless be briefly discussed in the context of its relevance. Evidence of an act, which consists of words, may be presented as circumstantial evidence. The cry of the accused’s wife when she came upon the police, serves as an example of admissible res gestae evidence. The discussion between people entering a club was admitted in Lenssen 298

LECTURE 17: CIRCUMSTANTIAL EVIDENCE AND CIRCUMSTANTIAL FACTORS

1906 TS 154 and it was possible to infer therefrom that they intended to enter that place in order to gamble. Great emphasis is normally placed on contemporaneity or rather spontaneity. Schmidt 454 correctly points out that the lapse of time or the context in which the words were uttered should not be over-emphasized. The so-called (part word or part act) merely means that words are admissible if they accompany an act and tend to explain or elucidate that act. Certain formalistic requirements have developed in our positive law as requisites for the admissibility of such words. It is submitted that this unnecessarily complicates the whole issue and that the normal test for the relevance of circumstantial evidence should be sufficient. 3.2.3 The standard (norm) of comparison Evidence of how specific people would react to particular circumstances would be admissible as circumstantial evidence, should the question arise as to whether the reaction of the accused in similar circumstances was reasonable (the objective norm of the reasonable man). In practice this is most useful in crimes involving negligence, specifically in applying the reasonable man test. Evidence about the correct application and operation of apparatus or devices will also be useful as a norm for comparison, in order to establish how similar devices or apparatus operated under the same circumstances. One of the best-known norms of comparison is to be found with fingerprint and disputed handwriting evidence where comparison charts are used to establish identity. 3.2.4 Negligence - Res ipsa loquitur Res ipsa loquitur literally means “the facts speak for themselves” and is almost exclusively used to infer negligence from circumstantial evidence. Schmidt163, with reference to Administrator, Natal v Stanley Motors 1960 1 SA 690 (A) correctly points out that this rule is only applicable when there is doubt as to the real cause of an event. 299

LECTURE 17: CIRCUMSTANTIAL EVIDENCE AND CIRCUMSTANTIAL FACTORS

The circumstances which are presented and from which negligence is to be inferred, must form part of the occurrence.

Res ipsa loquitur was discussed or applied in the following instances: where a load fell off a conveyor belt ─ (Minister of Railways v Cayzor, Irvine & Co 1914 EDL 183 190); where a swab was left in a person’s body after an operation ─ (Van Wyk v Lewis 1924 AD 438); where a milk delivery man went through a window on his bicycle ─ (Gordon v Mathie’s Estate 1933 CPD 353); where a cyclist collided with a pedestrian who was going in the same direction ─ (Davis v Union Government 1936 TPD 197); where a motor vehicle ran down an incline shortly after the driver got out ─ (Naude v Transvaal Boot & Shoe 1938 AD 379); where a lawnmower shot out stones ─ (Roos v AA Mutual Insurance Association 1974 4 SA 295 (C). Also see Paulson 1995 1 SACR 518 (C) 521 and Stacey v Kent 1995 3 SA 344 (E). Res ipsa loquitur is not a presumption. It is an inference, which may be drawn in given circumstances. It does not affect the incidence of the burden of proof. It applies to civil, as well as criminal cases. With the latter the burden of proof on the state is obviously higher. 3.3 Retrospective evidence This type of circumstantial evidence is admissible for exactly the opposite reasons as evidence, which relates to future conduct. Subsequent acts, transactions or occurrences justify the inference that the alleged act was committed or that the occurrence already existed. In other words, inferences are drawn from the subsequent conduct of a person, for instance failure to explain, testify or call available witnesses, or telling lies at a later stage.

300

LECTURE 17: CIRCUMSTANTIAL EVIDENCE AND CIRCUMSTANTIAL FACTORS

3.3.1 Regularity (omnia praesumuntur rite esse acta) The rule omnia praesumuntur rite esse acta is discussed here only insofar as it assists in drawing factual inferences. The court is able to determine, from a given set of facts, whether something happened in the ordinary course of business. The obligatory application of the rule as a legal presumption is not discussed here, such as the presumption that a wedding ceremony was legitimate, that a person is legally empowered to act, that a last will and testament which, on the face of it, seems regular, is legitimate, etc. Section 250 of the Criminal Procedure Act, 51 of 1977 is a typical example of the application of the rule as a presumption in Criminal law. The inference of regularity is usually associated with formalities and procedures, and certain conditions or rules have to be applied before it may be used. The view that the rule does not affect or determine the burden of proof, is supported here. It must be dealt with in the same way as other relevant circumstantial evidence. In my view there is no need for formal conditions, as the only norm should be that it complies with the requisite for relevance which is applicable to all other circumstantial evidence. The rule has been discussed and applied in many factual situations placed before our courts and these may be useful as a norm for comparison, should the practitioner be faced with facts similar to one of these. 3.3.2 Mechanical instruments and devices The inference that an instrument or device functioned in a particular manner at a specific time, may be drawn if evidence is presented that it usually functions in that manner. This is not a legal presumption and there is no burden on the opposing party to prove that the instrument malfunctioned. The court may even take judicial notice of such a fact in certain cases. See Mthimkulu 1975 4 SA 759 (A).

301

LECTURE 17: CIRCUMSTANTIAL EVIDENCE AND CIRCUMSTANTIAL FACTORS

The party who wants the court to infer that the instrument functioned correctly will, of course, have to adduce expert evidence to this effect if he does not have the expertise himself. 3.3.3 Possession as proof of ownership A rule exists in Material law that a person who claims ownership of movable property, firstly has to supply proof of ownership to the possessor of that property. This leads to the inference that the possessor is also the owner, unless proved otherwise. This inference is a result of circumstantial evidence and does not affect the incidence of the burden of proof. Its value is totally dependent on the particular facts of each case. 3.3.4 Failure to explain or previous untruths Even though an accused has a right to remain silent and is also not obliged to incriminate himself, an adverse inference may, in specific circumstances, be drawn from his failure to provide an explanation. The absence of an explanation or silence should be treated with great circumspection as people react quite differently to accusations. ...