There are 12 Solvability Factors namely:
1. Witnesses to a crime
2. Knowledge of a suspect’s name
3. Knowledge where a suspect can be located
4. Description of a suspect
5. Identification of a suspect
6. Property with identifiable characteristics, marks, or numbers, so it can be traced
7. A significant modus operandi
8. Significant physical evidence
9. Description that identifies the vehicle used by the suspect
10. Positive results from a crime scene evidence search
11. Belief that a crime may be solved with reasonable additional investigative effort
12. Opportunity for, but one person to have committed the crime
Tuesday, June 28, 2011
Dying Declaration
According toe Hiemstra’s Suid-Afrikaanse Strafproses 4th edition Article 223 regarding dying declarations (sterfbed verklaring), a person who is conscious and knows that death is imminent may give a verbal or written statement (that does not have to be under oath) concerning what he or she believes to be the cause or circumstances of death that can be introduced into evidence during a trial in certain cases.
Such a statement would normally be barred as hearsay but may nonetheless be admitted as evidence in certain kinds of cases because it constituted the last words of a dying person. Nemo moriturus preasumitur mentiri means a dying person is presumed not to lie. A dying declaration is considered credible and trustworthy evidence based upon the general belief that most people who know that they are about to die do not lie. As a result, it is an exception to the Hearsay rule, which prohibits the use of a statement made by someone other than the person who repeats it while testifying during a trial, because of its inherent untrustworthiness.
In the case of R v Nzobi 1932 WLD 98, the dying person said in a written statement “Having the fear of death upon me and no hope of recovery”, the court investigated the matter and found that the dying person still had hope of recovery, and the statement became inadmissible in court.
So, the court has to investigate the use of words and the circumstances to determine the trustworthiness of a dying declaration. The statement is not allowed to be made with information seeking questions, and a witness has to be present.
Lastly, it is not necessary to give the ipsissima verba, the exact words as in R v Baloi 1949 1 SA 491.
My suggestions is that a dying declaration be taken before the person dies, with a witness present, the statement be given in court as evidence, and then that the court has to investigate the declaration and the circumstances, so that the accused may be found guilty.
Such a statement would normally be barred as hearsay but may nonetheless be admitted as evidence in certain kinds of cases because it constituted the last words of a dying person. Nemo moriturus preasumitur mentiri means a dying person is presumed not to lie. A dying declaration is considered credible and trustworthy evidence based upon the general belief that most people who know that they are about to die do not lie. As a result, it is an exception to the Hearsay rule, which prohibits the use of a statement made by someone other than the person who repeats it while testifying during a trial, because of its inherent untrustworthiness.
In the case of R v Nzobi 1932 WLD 98, the dying person said in a written statement “Having the fear of death upon me and no hope of recovery”, the court investigated the matter and found that the dying person still had hope of recovery, and the statement became inadmissible in court.
So, the court has to investigate the use of words and the circumstances to determine the trustworthiness of a dying declaration. The statement is not allowed to be made with information seeking questions, and a witness has to be present.
Lastly, it is not necessary to give the ipsissima verba, the exact words as in R v Baloi 1949 1 SA 491.
My suggestions is that a dying declaration be taken before the person dies, with a witness present, the statement be given in court as evidence, and then that the court has to investigate the declaration and the circumstances, so that the accused may be found guilty.
Examples of Theft by False Pretences
- X tells Y that he can fix television sets, and Y agrees that X may fix her TV, but X never returns the TV.
- X convinces Y to hand over his Rolex so he can furnish him with a valuation certificate, and then X disappears with Y’s Rolex.
- X borrows a bicycle from Y, with the promise to return it, but X never does…
- X takes a wedding band from a goldsmith to show his “fiancé”, and vanishes.
- X tells Y that he can fix shoes, and Y agrees that X may fix two pairs of her shoes, but X never returns the shoes.
- X convinces Y to hand over his Rolex so he can furnish him with a valuation certificate, and then X disappears with Y’s Rolex.
- X borrows a bicycle from Y, with the promise to return it, but X never does…
- X takes a wedding band from a goldsmith to show his “fiancé”, and vanishes.
- X tells Y that he can fix shoes, and Y agrees that X may fix two pairs of her shoes, but X never returns the shoes.
Examples of Corruption.
- X goes for his driver’s license test and puts a bottle of Klipdrift under test official Y’s seat. Y finds the bottle and immediately passes X’s driver’s license.
- X gets pulled over for speeding by Y, when Y asks X for his license, X hands him R500 and Y lets him go with a warning.
- X tenders for a contract from Y, X “gifts” Y with a brand new Audi and receives gets the contract from Y.
- In the case of Hansie Cronje where he accepted gratification, to rig a cricket game, to convince certain batsmen to reach or not reach a certain target.
- If I enclosed R500 into this assignment to convince the moderator to give me excellent marks, that would be corruption.
- X gets pulled over for speeding by Y, when Y asks X for his license, X hands him R500 and Y lets him go with a warning.
- X tenders for a contract from Y, X “gifts” Y with a brand new Audi and receives gets the contract from Y.
- In the case of Hansie Cronje where he accepted gratification, to rig a cricket game, to convince certain batsmen to reach or not reach a certain target.
- If I enclosed R500 into this assignment to convince the moderator to give me excellent marks, that would be corruption.
Examples of Commercial Crime related Common Law Theft
- X steals Y’s cheque book, but gets caught before he can use it.
- X works at a receiving desk at the government printers Y, 50 printer cartridges get delivered, and X takes 5 cartridges and puts it in the back of his vehicle.
- X works at the embossing department at a bank. She takes 2 boxes of un-embossed cards with the intention of selling it on the black market.
- X, a drivers license official signs for 3 face value documents, but takes 5.
- X, a Metro Police Officer fills up the patrol vehicle at the municipality’s expense, later he takes the patrol vehicle to his house and takes out 10 liters of petrol for his personal vehicle.
- X works at a receiving desk at the government printers Y, 50 printer cartridges get delivered, and X takes 5 cartridges and puts it in the back of his vehicle.
- X works at the embossing department at a bank. She takes 2 boxes of un-embossed cards with the intention of selling it on the black market.
- X, a drivers license official signs for 3 face value documents, but takes 5.
- X, a Metro Police Officer fills up the patrol vehicle at the municipality’s expense, later he takes the patrol vehicle to his house and takes out 10 liters of petrol for his personal vehicle.
Examples of Forgery and Uttering
- X writes a prescription on a prescription pad that belongs to Dr. Y in order to obtain prescription medication unlawfully. X presents the forged prescription to Chemist Z, knowing that the prescription is forged.
- X applies for a job at Company Y, with a High School Certificate that he bought from Z.
- X, a Zimbabwean, buys an ID document from Y in order to get a job at company Z.
- X buys a driver’s license from Y, and a week later presents the document to Metro Police officer Y as a valid driver’s license.
- X steals a cheque out of Y’s mailbox and changes the beneficiary name to his name, then banks the cheque at Bank Z.
- X applies for a job at Company Y, with a High School Certificate that he bought from Z.
- X, a Zimbabwean, buys an ID document from Y in order to get a job at company Z.
- X buys a driver’s license from Y, and a week later presents the document to Metro Police officer Y as a valid driver’s license.
- X steals a cheque out of Y’s mailbox and changes the beneficiary name to his name, then banks the cheque at Bank Z.
Potential Prejudice
The crime of fraud is defined as the unlawful intentional making of a misrepresentation that causes actual or potential prejudice. So, in order for there to be fraud, all four elements have to be present.
Potential prejudice means that there was an intention to cause harm, but it did not succeed. A practical example is if X steals a credit card in the name of Y, walks into a shop, with the credit card, gets groceries, and at the till the sales person recognizes that the credit card can not belong to X, and the transaction is not made, potential prejudice is present. Y however was not potentially prejudiced. Although the card has Y’s name and signature on it, the credit card itself belongs to the Bank. The bank was potentially prejudiced, and the Bank will be the complainant in the court case.
Y is not the victim. Y did not suffer potential prejudice.
It can be determined then that if the sales person agreed to the sale, prejudice would have occurred.
For potential prejudice to be proved there has to be a risk that prejudice was possible. Only the possibility of prejudice has to be present, and that the misrepresentation is “good enough” to have deceived a sensible person. If the misrepresentation is unbelievable to a sensible person, there is no potential prejudice. Prejudice also does not have to be suffered by the party who the misrepresentation is made; it can be to a third party as well. As in my example supra, the prejudice would have been suffered by the Bank, not the grocery shop. Even though the sales person did not believe the misrepresentation, the potential prejudice was still a factor. If X had gone to a different store and they accepted the transaction, the Bank would have suffered a loss.
Potential prejudice means that there was an intention to cause harm, but it did not succeed. A practical example is if X steals a credit card in the name of Y, walks into a shop, with the credit card, gets groceries, and at the till the sales person recognizes that the credit card can not belong to X, and the transaction is not made, potential prejudice is present. Y however was not potentially prejudiced. Although the card has Y’s name and signature on it, the credit card itself belongs to the Bank. The bank was potentially prejudiced, and the Bank will be the complainant in the court case.
Y is not the victim. Y did not suffer potential prejudice.
It can be determined then that if the sales person agreed to the sale, prejudice would have occurred.
For potential prejudice to be proved there has to be a risk that prejudice was possible. Only the possibility of prejudice has to be present, and that the misrepresentation is “good enough” to have deceived a sensible person. If the misrepresentation is unbelievable to a sensible person, there is no potential prejudice. Prejudice also does not have to be suffered by the party who the misrepresentation is made; it can be to a third party as well. As in my example supra, the prejudice would have been suffered by the Bank, not the grocery shop. Even though the sales person did not believe the misrepresentation, the potential prejudice was still a factor. If X had gone to a different store and they accepted the transaction, the Bank would have suffered a loss.
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