formal admission in law
However, the language employed by Ponnan JA in.
Evidence of whatever type must be both relevant and admissible. S v Boesak 2000 (1) SACR 632 (SCA) Secondly, by conflating the right to silence and the right to a fair trial at all stages, Yacoob J implies that the only remedy for infringing the right to remain silent is the exclusion of evidence. Formal Admission: The expression “Admission “means voluntarily acknowledgment of the existence or truth of a particular fact. When an admission of fact is appropriate 1. Section 35(5) confers a discretion on the courts to admit evidence even if it was unconstitutionally obtained, provided that it is fair to do so and its admission is not detrimental to the interests of justice. You may wish to agree certain facts with the defence, so that these facts will not need to be proved at court.
On the other hand, the concurring judgment of Goldstone and O’Regan JJ suggests that such inferences might be constitutional if arrested persons are warned of the consequences of their silence. [S]omewhat surprisingly, the fourth appellant did not testify. Any investigation around the accused’s silence cannot be said to infringe his right to silence unless the trial is thereby rendered unfair. The rationale for admitting such evidence would appear to be that a person is unlikely to make an admission adverse to his interests if the contents of that admission are not true. S v Peters 1992 (1) SACR 292 (E) The response of a party to the use of Sections 9 and 10 is subject to the general requirement in Part One of the Rules to prepare and conduct the case ef… Undue emphasis on trial fairness may result in insufficient attention being given to the underlying relationship between the right to remain silent and the right to dignity.Schwikkard finds, though, that "much is to be said for the contextual approach taken by Yacoob J in respect of the appropriate warning to be given to arrested persons. ".It would seem, therefore, that the common-law position remains largely intact and that it is constitutionally permissible to take the late disclosure of an alibi into account in determining what weight should be attached to the alibi defence.As to the drawing of inferences from pre-trial silence, Moseneke J makes it clear that negative inferences are constitutionally impermissible. One conclusion that would be consistent with both judgments, and which is suggested by Schwikkard.is that the ambiguity of silence (and the impermissibility of drawing any inference) would remain if an arrested person did not understand the revised warning.
If, however, an alibi defence is raised for the first time at trial, then the court, in determining whether the alibi is reasonably possibly true, may take into account, in terms of the common law, that there has been no opportunity for the state to investigate the alibi properly.The constitutionality of the common-law approach to the late disclosure of an alibi was considered by the Constitutional Court in.These issues were raised on appeal by one of two co-accused, whose conviction on a charge of murder and two counts of attempted murder had been confirmed by the Supreme Court of Appeal. R v Mayet 1957 (1) SA 492 (A) Formal admissions: Formal admissions are judicial admissions, and in such a case, there is no need to prove the facts admitted. If made, whether orally or in writing, on behalf of a defendant who is an individual, it must be made by the defendant's counsel or solicitor.6. Evidence may be proved by: 1. calling witnesses (witness evidence); 2. producing documents (documentary evidence); 3. producing things (real evidence). S v Robertson 1981 (1) SA 460 (C)
Evidence is relevant if it logically goes to proving or disproving some fact at issue in the prosecution. Section 58 of the Indian Evidence Act says that the facts which are judicially admitted need not to be proved. In those circumstances, a reasonable expectation existed that, if there were an explanation consistent with his innocence, it would have been proffered. Sections 9 and 10 Criminal Justice Act 1967 (CJA) provide for evidence to be tendered by way of written statement or formal admission. Section 15 of the CPEA provides that it is not necessary for a party to prove a fact formally admitted; nor is it competent to disprove a fact so admitted. The following facts may be suitable for formal admission:5. In these circumstances it would very difficult for any court to conclude that an inference to credibility or guilt was the only reasonable inference—the consequence outlined in (b) above would not necessarily be precluded.This issue was "skirted," Schwikkard believes, by the Supreme Court of Appeal in,Naidoo v Marine & Trade Insurance Co Ltd 1978 (3) SA 666 (A) at 677
Jacobs v Henning 1927 TPD 324
On arrest, the accused had been warned of his right to remain silent, but nevertheless elected to make an oral statement in which he described the whereabouts of his family at the time of the shooting.
The effect on weight is not the result of a negative inference as to credibility or guilt, but simply a product of the evaluation of evidence in the context of an adversarial system. A court must also ensure that the trial is fair overall, and in that process, balance the interests of the accused with that of society at large and the administration of justice.Because this broad concept of trial fairness cannot, presumably, be found in section 35(3), Yacoob J locates it in section 35(5).
First, s 35(5) only becomes applicable once it has been established that evidence has been unconstitutionally obtained. Taking into account the limited use of an inference based on the late disclosure of an alibi, he concluded that the common-law rule is a justifiable limitation of the right to remain silent, and that late disclosure of an alibi may have consequences which "can legitimately be taken into account in evaluating the evidence as a whole. ".if there is evidence that requires a response and if no response is forthcoming [...] the Court may be justified in concluding that the evidence is sufficient, in the absence of an explanation, to prove the guilt of the accused.The precise nature of the negative consequences of remaining silent at trial is "not altogether clear.".
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