Die geheueverfrissingsprosedure

van der Merwe, Stephan Erasmus

Die geheueverfrissingsprosedure

Doctoral Thesis

1988

Abstract

The English common law of evidence assigns great importance to the principle of orality in the adjudication of disputes; insists, generally speaking, that a witness' oral statement in court (as opposed to his earlier written account) is the proper evidence; requires that a witness -should as a rule give independent oral testimony, i e, without the aid of a record (note, document, memorandum); acknowledges the inevitability of a witness being unable to recall the relevant event (or some details thereof); accepts the necessity of "memory refreshing'' as a means of promoting the accuracy of recall or obtaining evidence which might otherwise be lost; regards the procedure of refreshing the memory of a witness as perfectly compatible with the principle of orality which is such a marked characteristic of the accusatorial trial system; denies the usefulness - but not necessarily the validity - of Wigmore's fundamental distinction between ''present recollection revived" and "past recollection recorded"; and, further, maintains that oral evidence is received even where the witness has no independent recollection, i e, where he relies solely on his earlier recorded recollection. Legislation - locally and abroad - has amended some of the above principles or conceptions of the common law, most notably the principle that the earlier out of court written statement of the witness may as a rule not be received and, when received, may not be treated as an item of evidence. Part VI of the Civil Proceedings Evidence Act 25 of 1965 (as read with section 222 of the Criminal Procedure Act 51 of 1977) gives effect to the valid argument or consideration that the written statement of a witness may, depending upon circumstances, be more accurate than his later recollection in court. But Part VI contains strict conditions upon which such earlier record may be received as documentary evidence. Occasions may therefore still arise where the common law procedure of refreshing the memory of a witness should be followed. Documents used for the purpose of refreshing the memory of a witness, are not necessarily admissible as evidence in terms of Part VI. And even where a document is admissible in terms of Part VI, there might be good tactical reasons , why a party would prefer to attempt to refresh the memory of his witness, as opposed to merely resorting to reliance upon Part VI. One central issue examined in this thesis, is whether the distinctign between present recollection revived and past recollection recorded is valid and, further, whether this distinction is useful in dealing with problems concerning the common law procedure of refreshing the memory of a witness. ''Present recollection revived" (herinneringsherlewing) refers to the situation where the witness' memory is stimulated so that he can actively recall the forgotten events and testify independently from the written source which merely acted as a trigger. "Past recollection recorded'' (herinneringsherhaling) refers to the situation where the witness, even after consulting the written source, cannot testify from memory and can only vouch for the accuracy and reliability of the written source. An attempt is also made to determine whether the aforementioned distinction can be reconciled with the rules and principles of the common law trial and evidentiary system.

Keywords

law

Reference:

Collections

PhD / Doctoral

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