LAW OF EVIDENCE

LECTURE NOTES

Lecture 1: Introduction

1.1 What is evidence?

The word evidence has no one definition but has been given several definitions. The
following are some of the definitions given by eminent writers.

a) That which tends to prove facts in issue (Cross and Tapper)

b) Information which provides for belief that a particular fact or set of facts is true
(I.H. Dennis)
c) That which may be placed before the court in order that it may decide issues
of fact. (Phips on evidence)

Therefore, evidence may be defined as information, facts, objects which are

presented to court to inquire into the existence or not of facts in issue for the
determination of the court.

1.2 Sources of the Law of Evidence

There are several sources of law of evidence. The following is list of some of the
sources, come of which we will be reefing to in this course:
a) The Constitution
Article 18 of the constitution contains provisions on protection of the rule of
law and rights to a fair trial, which are relevant to the law of evidence,
including, presumption of innocence (Art 18 (2) (a)), examination of witnesses
(Art 18 (2) (e)), rule against retrospective application of laws and the rule
against giving self-incriminating evidence.
b) Acts of Parliament
Several statutes prescribe procedural rules on commencement of
proceedings, burden of proof and so on. There are also statutes with general
provisions that are important to the law of evidence. In this course, some of
the statutes we will use include:
 i) Criminal Procedure Code, Cap 88 of the Laws of Zambia;
ii) Juveniles Act, Cap 53 of the Laws of Zambia;
iii) Evidence Act, Cap 43 of the laws of Zambia;
iv) Evidence ( Bankers Books) Act, Cap 44 of the Laws of Zambia;
v) Subordinate Courts Act, Cap 28 of the Laws of Zambia;
vi) High Court Act, Cap 27 of Laws of Zambia;
vii) Supreme Court Act, Cap 25 of the Laws Zambia.
c) Common Law
d) Judicial Precedents
e) Text Books or writings of eminent writers.

1.3 Principal items of judicial evidence

The law of evidence is concerned with a number of exclusionary rules on what
may or may not be admitted as evidence in court during a trial. It also looks at
relevance and probative value of evidence.

1.3.1 Facts in Issue

These are facts or information that a party needs to prove in order to succeed in their
case. The phrase refers to principal facts which are necessary by law to establish the
claim, liability or defence forming the subject matter of proceedings. For instance,
facts that the prosecutor (in a criminal case) or Plaintiff (in civil case) must prove to
secure a conviction or defence. Also, those facts that the defence (in a criminal case)
or defendant (in a civil case) must prove to establish a successful defence.
There are two types of facts in issue, namely:
a) Facts in Issue as a matter of Law.
b) Facts in issue as a matter of Law of Evidence.
Facts in Issue as a Matter of Law
These are also called questions of law. They relate to substantive law which
governs the rights and liabilities of arties to litigation. Examples include:
i) Elements of the crime of murder
ii) Elements of the tort of negligence
iii) Is seizure the correct way of terminating a tenancy of business
premises
These issues of law are properly governed or taken care of by rules of
pleading. For example, in pleading a case of negligence in a case involving a
road traffic accident, the plaintiff must plead that the accident was caused by
the negligence of the Defendant and that the Defendant owed the Plaintiff a
duty of care.

Facts in issue as a matter of law of Evidence

These are issues of fact. They are concerned with facts as evidence of other
facts. Examples include the credibility and reliability of witnesses, weight to be
given to evidence, burden and standard of proof, and so on.
The law of evidence is concerned with these facts in issue. Therefore, the
remainder of the course will look at the rules governing admissibility of objects
of proof as such facts in issue.

One of the functions of the law of evidence is to control and direct the process
of finding of facts by the court. Rules of evidence provide the necessary
guidelines to the court in its fact finding mission.

Why the distinction?

In jury systems, issues of substantive law are determined by the judge while
issues of fact are determined by the jury. In a combined system like ours, both
issues of law and issues of fact are determined by the judge.

The distinction is only relevant, in a combined system, in appeal cases in the

appellate court. The appellate court will usually not overturn a judgement
based on a wrong finding of facts. It will however usually fault a wrong finding
of law. This is because the trail court will have had the opportunity to listen to
the testimony and observe the demeanour of witnesses.
The role of a judge in finding facts in issue
When an allegation or claim is made, the judge must construct a true reality of
facts and experiences that have been observed by other people in order to
and the facts in issue. This task would be achieved by listening to stories of
those that had experienced the facts in order to draw inferences of the
existence of other facts. The court will reach its best decision possible in
conditions of uncertainty.
1.4 OBJECTS OF PROOF AND CLASSIFICATION OF EVIDENCE

1.4.1 Objects of proof

Facts in issue can be proved by testimony, documents, things, circumstantial
evidence and other evidentiary facts.
a) Testimony
This is a statement of a witness offered as truth of what is stated. It may be
oral or by Affidavit. The general rule is that witnesses can only testify on
things that they have personally observed with their senses.
There are a number of rules and regulations that have been devised to guard
against witnesses giving evidence of things they have not personally
experienced and is reliable. Examples include the rule on oaths, affirmations,
competence of witnesses, cross examination, law against perjury.

The probative value of testimony is diminished when the same is offered by a

person who did not observe the facts deposed to. (To be discussed more on
the Rule against Hearsay)

b) Documents
Documents contain information that is relevant to prove facts in issue.
Documents can be offered as real evidence of things contained in them (e.g.
Terms of a written contract), or as hearsay (e.g. where a letter is produced to
attest to contents of a letter when offered by someone who did not author it.)

c) Real evidence
These are actual objects produced in court. They are objects produced as
proof of facts in issue before court. Examples include a bicycle alleged to be
the stolen bicycle found in possession of the defendant.

Objects or things are not reliable on their own unless they are accompanied
by testimony.
Another example of real evidence is a view, i.e. where the court is invited to
sit outside the courtroom to view a site or equipment. (Per Parker LJ, in
 Buckingham v Daily News Ltd [1956]2 All ER 904. Held, occurrences at a
view are part of evidence as though the machine had been brought in court.)

d) Circumstantial evidence
This is in also known as indirect evidence. It is evidence of facts from which
the court must infer evidence of facts in issue. It is not direct evidence but the
court can make inferences from it in making a finding of fact.
Examples of circumstantial evidence
i) Prospectant evidence
The reception of evidence was premised on the argument that
occurrence of an act, state of mind or affairs in the past justifies an
inference that the act was done, state of affairs existed at the moment
of time into which the court is inquiring.
a) Continuance
Evidence of a state of affairs existing at a time before the
occurrence of a fact in issue could be admitted to establish that the
same state of affairs had continued at the time inquired into. For
example, evidence of the speed at which a person is driving a few
moments earlier than the moment enquired into can be admitted as
circumstantial evidence. Relevant will vary form case to case.

b) Course of business
For example, evidence that a letter was delivered to the registered
address and duly acknowledged may be admitted as circumstantial
evidence to show that the company director read a letter or
document.
c) Habit
In Joy v Philips, Mills & Co Ltd [1916] 1 KB 849, the defendant
was allowed to call evidence of the deceased boy‟s practice of
teasing the horse as tending to negate the plaintiff‟s claim that the
boy died in the course of employment. The case involved a claim of
compensation following the death of a stable boy who was found
holding a halter which there was no occasion for him to use at the
 time of day. This was admissible evidence to shed light on the
probable cause of death.

d) Motive, plan
Facts which supply motive are admitted as circumstantial evidence.
For example, a plan to kill someone for benefit, buying of poison,
forging a will etc.
e) Knowledge or capacity
E.g. a person‟s knowledge of cutting up bodies may be admissible
in a murder case as to means of the use of such skills.

ii) Concomitant Evidence

Based on the argument that evidence of circumstances existing
contemporaneously with transaction in which the court is inquiring
render facts in issue more probable.
a) Opportunity
Presence of accused at the place and time of the crime make it
probable that he/she could have committed the crime
iii) Retrospectant evidence
Subsequent occurrence of an act, state of mind or affairs justify
inference that act was done or state of affairs existed at the time being
inquired into. Examples include, the endorsement of cheque as proof
of payment, failure to give an explanation following a certain event,
odd coincidences, and so on.
Case Law on Circumstantial Evidence
i) David Zulu v The People (1977) Z.R. 151 (S.C.)
The appellant was convicted of the murder of a woman in the course of
a sexual assault; the injuries found on the body suggested that she
had struggled with her assailant. The evidence established that the
appellant and the deceased had been drinking beer together at a bar
and were seen leaving the bar together at about midnight; between
0600 and 0700 hours the next day the deceased's partially undressed
body was found. The appellant was traced and when arrested was
found to have scratches on the neck and chest. He explained in
 evidence that the scratches were caused by flying pieces of iron at his
place of work, an explanation which was not rebutted. The trial court
without any evidence to support the finding said that the appellant had
protective clothing at work and therefore that the flying particles of iron
could not penetrate such clothing; the trial court consequently inferred
that the scratches on the appellant were sustained during the struggle
with the deceased.

Held:
(i) It is a weakness peculiar to circumstantial evidence that by its
very nature it is not direct proof of a matter at issue but rather is proof
of facts not in issue but relevant to the fact in issue and from which an
inference of the fact in issue may be drawn.
(ii) It is incumbent on a trial judge that he should guard against
drawing; wrong inferences from the circumstantial evidence at his
disposal before he can feel safe to convict. The judge must be satisfied
that the circumstantial evidence has taken the case out of the realm of
conjecture so that it attains such a degree of cogency which can permit
only an inference of guilt.
(iii) The appellant's explanation was a logical one and was not
rebutted, and it was therefore an unwarranted inference that the
scratches on the appellant's body were caused in the course of
committing the offence at issue.

The circumstantial evidence received at the trial did not succeed in

taking this case out of the realm of conjecture, and we are of the
further opinion that the danger of erroneous inference on the part of
the learned commissioner has not been dispelled Per Chomba, JS

ii) Khupe Kafunda v The People (SCZ JUDGMENT NO. 5 OF 2005)

The appellant was sentenced to death following upon his conviction for
the offence of murder, contrary to section 200 of the Penal Code, Cap
87 of the Laws of Zambia. The particulars of the offence alleged that
the appellant, on a date unknown, but between 27th and 29th January,
2001 at Mufulira, in the Mufulira District of the Copperbelt Province of
the Republic of Zambia, murdered William Hillier. The prosecution
called eight witnesses in support of their case. The salient evidence
connecting the appellant to the offence was adduced from PWs 1 & 7.

The summary of their evidence was that on 27th January, 2001, the
appellant, then an employee of Lake Farm, owned by the deceased,
arrived at the farm around 22:00 hours, when the deceases was about
to retire to bed. After the two talked for a while, the deceased went
into the house and collected a coat, thereafter, he went out with the
appellant.

Pw1, the girlfriend of the deceased, heard two gun-shot sounds shortly
after the two left the farm. On that day, the deceased and the
appellant did not return from where they went. By 17:00 hours the
following day, a Sunday, a search was conducted by the deceased's
farm 32 workers who had become concerned. At 18:00 hours the
appellant appeared at the farm. When asked about the deceased, his
response was that he had left him in the bush because it was cold. A
report was made to the Police. Earlier searches conducted by the
Police did not yield any results. However, on the 30th of January,
2001, after a tip off, PW7, a police officer, in a group of other officers,
were led by the appellant to a place where the body of the deceased
was exhumed from a shallow grave.

The appellant further led the Police to Kafue River Bridge, where he
alleged he had thrown the gun in the river. He also led the police to
the recovery of an empty cartridge in the grass near Kafue River
Bridge. The appellant's clothes were found in a bedroom at Lake View
Farm together with three live ammunition for a Greener gun similar to
the empty cartridge. A post mortem examination report revealed that
the cause of death was gun-shot wounds.
 The trial court reviewed the evidence and made the following findings:
that the circumstantial evidence against the appellant was
overwhelming; that the appellant was not only the last person to see
the deceased alive, but that he later led the Police to a shallow grave
where the body was exhumed; that the medical evidence established
that the deceased had been shot at close range; that the appellant
later led the Police to Kafue River bridge to show them where he threw
the gun; that an empty cartridge was recovered in the grass near the
bridge area; and that three live bullets similar to the empty cartridge
were found in the appellant's slumber jacket. The court found that the
circumstantial evidence against the appellant was so overwhelming
that he had the opportunity and the time to commit the offence.

The court concluded that the prosecution had proved the case beyond
reasonable doubt and convicted the appellant accordingly.

On appeal, the Appellant argued inter alia that he had been wrongly
convicted on the ground that there was no direct evidence linking him
to the crime and, that there was no eye witnesses and that the police
failed to show that he had led them to the shallow grave where the
body was exhumed. The SC agreed that there was no direct evidence
to link him with the crime but found that there was strong circumstantial
evidence to link the accused to the crime. The SC upheld the
conviction and dismissed the appeal.

1.4.2 Classification of evidence

a) Primary and Secondary Evidence

This classification is usually relevant to documentary evidence. Primary
evidence is the best or highest quality of evidence providing for greatest
certainty.
Secondary evidence relates to inferior or substitutable evidence and indicates
the existence of original or higher quality evidence. Secondary evidence may
be admitted when the whereabouts of primary evidence has been explained.
b) Direct and Indirect Evidence
Direct evidence is that evidence such as production of a thing, testimony
given by the person who personally perceived the things testified about.
Indirect evidence on the other hand is the name given to evidence of facts
from which the existence of other facts may be inferred.
Lecture 2: Relevance, admissibility and Weight of Evidence

2.1 Relevance
Relevance in law of evidence relates to logical relevancy of evidence to the issue or
connection between the two of which, in the ordinary course of events, the existence
of the former makes the latter probable. The rules on relevance have a bearing on
ensuring that the court conducts its fact-finding mission in the most efficient,
reasonable and fair manner. Facts that are remotely connected to the facts in issue
will be considered logically irrelevant.

2.2 Admissibility
Admissibility relates to the legal relevance of evidence. While relevance depends on
logic, human experience, admissibility is founded on law, policy and precedent.
Evidence which is relevant may be excluded from admission by rules of law that aim
to protect the fundamental rights of an accused person. E.g. exclusion of self-
incriminating statements unless made freely and voluntarily. On the other hand,
some evidence which may not be logical in human understanding may be admissible
in law.

2.3 Test for Relevance and admissibility of logical evidence

2.3.1 Test for relevance

Acts, declarations and incidents which constitute or accompany and explain the fact
or transaction in issue are admissible for or against a party as part of res gestae. The
rule stems from the obvious consideration that no disputed event or transaction ever
occurs isolated form all other events or transactions. Where the line is to be drawn is
always a difficult matter. There are many differing opinions on where the line should
be drawn. The acceptable opinion is that where the evidential fact is in the particular
circumstances, either an integral part of the event or transaction itself or so
connected with it as to be of real value in determining its existence or its true nature,
then such fact is admissible as part of res gestae.
Evidence is not a matter of mere logic. It is about ascertaining the truth of facts in
dispute in the most reasonable practical and fair manner.

2.3.2 Summary of Guides to Relevance

a) Remoteness
A balance must be drawn between the probative value of the evidence and
the probative value of the evidence and the external pressures vitiating its use
such as time to be taken to resolve collateral issues, danger of manufacture of
evidence and public policy.
b) Multiplicity of Issues
A party may be allowed to adduce evidence of comparison but the rule on
remoteness should be observed.
c) Danger of manufacture of evidence
Properly governed by provisions on prohibition of certain evidence from
admission (e.g. the rule hearsay, opinion and evidence of character).
d) Sensitivity to public or private opinion
Examples include evidence that would embarrass the witness. When
considering this rule, one must strike a balance between the sensitivity
itself and the probative value of evidence.

2.3.2. Admissibility of Logically Relevant Evidence

Not all relevant evidence is admissible before court. The following are some of the
guidelines on admissibility of certain relevant evidence and exclusionary rules that
apply by law, public policy and precedent:

a) Facts in Issue
Facts in issue or relevant are not always admissible if they have the effect of
making a direct assertion or denial as they may involve drawing of inferences,
which is properly the function of the fact finder.

b) Constituent incidents
These may vary from a single act to a variety of acts, declarations,
circumstances occupying a length of time or occurring at distinct intervals or
occasions. They may comprise things done or to be done omitted to be done
by a principle or agent etc.
 c) Cumulative and continuous transactions
Sometimes, a fact in issue can only be established by proving a series of
similar facts occurring either because of the nature of the act or transaction or
by custom.
d) Documentary transactions
When a contract, will or other formal transaction has been reduced to writing,
the rules of excluding extrinsic information to substitute agreed terms apply.
The evidence or facts presented or res gestae must therefore by production of
proof of the document itself.

2.3.2.1 Prohibitions
a) Hearsay

Generally inadmissible to avoid danger of manufacturing evidence

b) Opinion

Witnesses generally not allowed to tell court inferences made form facts perceived
but to stick to evidence of facts.

c) Character

Evidence of character is generally inadmissible. Public policy and legal rule

on presumption of innocence

d) Similar fact
This type of evidence is also generally inadmissible

Note: all the above mentioned exemptions are subject to exceptions which will be
discussed later in the course.

2.4 Exercise
a) John, a local politician sues Alan for slander concerning words spoken at a
political rally. Allan is alleged to have made a statement that „I hear Allan intends to
contest for the 2011 local government elections. Has the council run out credible
people that we should be getting candidates from Chainama Hills Hospital?‟ Peter, a
witness who attended the rally and heard the words complained of, is called to
testify.

i) What testimony would the witness give that would be relevant?

ii) Is the witness testimony that „I heard John slander or defame Alan admissible‟
admissible?

b) Joel supplies baskets to his customer. The customers sign contracts which
require them to pay a deposit of 50% of the purchase price before the baskets
are delivered. Joel has sued Peter a customer for the full amount of the
Purchase price of baskets supplied sometime in March, 2011. Peter admits to
owing Joel but only up to 50% of the purchase price.
i) Can Peter rely on a contract between Joel and James, another
customer of Peter‟s
ii) Can Joel rely on a contract a contract between Joel and Zulu, Joel‟s
supplier of reeds?
c) Jane has been accused of murdering her late husband Manda, who died of
acetone poisoning. John, a local librarian who assisted Jane when she was
researching poisons, is called to testify on behalf of the prosecution.
i) What relevant evidence can he give?

Can Peter, a sales representative working at the local chemist testify that he sold
malaria tablets to Jane on the material date?

2.3 Weight of Evidence

Unlike admissibility, weight, credibility and sufficiency of evidence depend on
common senses, logic and human experience. The weight of evidence may affect its
admissibility. There are various guides that are provided to assist the fact finder in
assessing the weight of evidence. They include the following;

a) Burden and standard of proof

b) Presumptions
c) Corroboration
d) What statements are evidence for what purpose or best evidence.
LECTURE 3: BURDEN AND STANDARD OF PROOF

3.1 burden of proof

The burden of proof or onus of proof refers to the obligation on a party to satisfy the
court to a specified standard of proof that certain facts are true. The facts for this
particular purpose are facts in issue.

The general rule is that the burden lies on a party who asserts in the affirmative.
Robins v National Trust Co. [1927] AC 515.

In the nature of things, the negative is more difficult to prove than the positive. “It is
an ancient rule founded on consideration of good sense and should not be departed
from without string reason.‟ Joseph Constantine Steamship Line Limited v
Imperial Smelting Corp [1942] Ac 154.

Example: negligence- plaintiff

Contributory negligence- defendant.

The burden rests on the person who would not succeed if no more evidence is
called. The burden may be affected by statute and presumptions.

Burden of proof has 2 distinct meanings: legal burden and evidential burden.
1) Legal burden
This is the burden of proof that is discharged by pleading. The burden of proof
in this sense rests on the party, whether plaintiff or defendant who
substantially asserts in the affirmative of the issue. It is fixed by either
substantive law or pleading at the beginning of the trial by the state of
pleadings and it remains unchanged throughout the trial.
2) Evidential burden
This is the burden of adducing evidence that a party has. It may shift constantly
according as one scale of evidence or other preponderance. The onus in this
case rests on the party who would fail if no evidence at all or no more evidence is
called on the other side.
Burden of Proof in Criminal cases
In criminal cases, the burden of proof rests entirely with the prosecution.
Where the accused introduces new things in his defence such as self-
defence, automatism and provocation, the burden does not shift to the
accused. It is up to the prosecution to disprove the defence raised.
Mwewa Murono v The People, SCZ JUDGMENT NO. 23 OF 2004

The Appellant was convicted of murder contrary to Section 200 of the Penal
Code, Cap 87 of the Laws of Zambia and was sentenced to suffer death. It
was alleged that on 19th July 2003 at Mansa he did murder one Francis
Mwewa. He appealed against both conviction and sentence.

1. In criminal cases, the rule is that the legal burden of proving every element
of the offence charged, and consequently the quilt of the accused, lies from
beginning to end , on the prosecution.
2. The standard of proof must be beyond all reasonable doubt.

3. A submission of no case to answer may properly be and upheld:-

(a) When there has been no evidence to prove the essential element of the
alleged offence.
(b) When evidence adduced by the prosecution has been so discredited that
no reasonable tribunal could safely convict on it.
4. The accused bears the burden of adducing evidence in support of any
defence after he has been found with a case to answer.

1. The application of Sections 206 and 291 of the Criminal Procedure

Code Chapter 88 of the Laws of Zambia does not depend on the defence
making a no case to answer submission. The Court has of its own motion to
consider whether a prima facie case has been made out.
2. If an accused person is convicted as a result of an error of the trial
Court in thinking that there is a prima facie case, the conviction cannot stand.
It must be quashed. An appellate Court has no discretion.
 This is however regulated by statute (check provisions of the Penal code on
defences)
KAZEMBE AND ZEBRON v THE PEOPLE (1969) Z.R. 22

"Automatism" is defined in the Concise Oxford Dictionary as 'Involuntary

actions . . . actions performed unconsciously or subconsciously'; and we
agree that section 10 of the Penal Code does let in automatism as a possible
defence. [2] There would be no burden on an accused person to establish that
he was acting under the influence of automatism. The burden would be on the
prosecution to negative it and to prove beyond reasonable doubt that the
accused was acting in the exercise of his will and not under the influence of
automatism. [3] But there is this important qualification. If the automatism is
due to any disease affecting the mind of the accused person different
considerations apply. By section 12 of the Penal Code "Every person is
presumed to be of sound mind, and to have been of sound mind at any time
which comes in question, until the contrary is proved"; and by section 13.

The evidential burden is satisfied by establishing a prima facie case against

the accused. If no evidence is called by the accused, the judge should be
satisfy himself or herself that the prosecution has proved its case beyond
reasonable doubt. This is at the stage of submissions on a case to answer.

Burden of Proof in Civil cases

In civil cases like criminal cases, the burden of proof is satisfied when a party
has established a prima facie case against the other party. Where the plaintiff
establishes a prima facie case against the Defendant, the burden shifts to the
defendant to establish its defence.
Matrimonial Causes
The burden is the same as in civil cases.

3.2 Standard of proof

The extent to which a party discharges burden of proof.
a) Criminal cases
 Proof beyond reasonable doubt. It does not mean proof beyond a shadow of
doubt. Woolmington v DPP [1935]AC 462

If no evidence is called by defence, can prosecution succeed? Has

prosecution established a prima facie case? This can be established during
submissions on no case to answer.

The defence is not required to prove innocence. Standard of proof on balance

of probabilities.

b) Civil cases
Standard is on balance of probabilities. In Bater v Bater [1950] 2 All E.R. 458,
Denning, L.J., used words regarding the standard of proof in both civil and criminal
cases, which have been expressly approved in subsequent cases. He said at page
459: 'It is true that by our law there is a higher standard of proof in criminal cases
than in civil cases, but this is subject to the qualification that there is no absolute
standard in either case. In criminal cases the charge must be proved beyond
reasonable doubt, but there may be degrees of proof within that standard. Many
great judges have said that, in proportion as the crime is enormous, so ought the
proof to be clear.'
Castings Ltd v Wardlaw [1956]AC 613

Degree varies from case to case. E.g. higher standard involved on allegation of
fraud. Allegations of fraud even in a civil case must be proved on a higher standard
than balance of probabilities because they are of criminal nature- Sablehand
Zambia Limited v ZRA (SCZ JUDGMENT NO. 20 OF 2005)

c) Matrimonial causes
Like in civil cases.
In divorce proceedings – proof of allegations of adultery should be on a balance of
probabilities but higher standard though not criminal standard
C v C AND H (1977) Z.R. 12 (H.C.)
3.3 Incidence on burden of proof
a) Statutes

Statutes affect the burden of proof. E.g.

i) Where statute casts burden of proof - statutes creating offences of strict

liability.
ii) Where statute give defence of facts within peculiar knowledge of a party e.g.
provocation and self-defence
Section 12(3) of the Penal Code, Cap 87 of the Laws of Zambia
Burden of proof of defence of diminished responsibility lies with defence
which it should discharge on a balance of probabilities.
R v Putland & Sonrell [1946] 1 All ER 85
Kazembe and Zebron v The People
iii) Provisos.
Burden of proving one falls within proviso lies with party alleging but no
legal burden on plaintiff to prove one doesn‟t fall within proviso

b) Presumptions of law

Where rebuttable presumption of law exists in favour of party, it lies upon the other
party to rebut it.

i) Civil cases – fraud vitiates title

ii) Criminal cases- presumption of innocence casts burden of proof on prosecution.

Burden of proving non consent in rape lies with prosecution.

ii) Conflicting presumptions neutralise each other. Case must be determined on

evidence e.g. presumption of validity of marriage vs. presumption of death.
LECTURE 4: WITNESSES

4.0 Introduction
Witnesses are the major media through which evidence is brought to court. A
discussion on witnesses helps us understand the weight that the court will give to
testimony of witnesses. Some of the important considerations to be discussed under
witnesses involve: competence and compellability, the nature and importance of
oaths and affirmations, credibility and reliability as well as when the court must
decide whether or not corroboration of evidence will be necessary.

There is a general rule respecting the autonomy of parties in an adversarial system

to call whichever witness they decide in whatever manner. However the rule is only
true for civil cases. In criminal cases, the prosecutor has no autonomy to call
whatever witness. His duty is to do justice to the case. He may be compelled to
make available evidence which he comes across which could support the accused‟s
innocence. The court can also demand which witnesses can be called.

In the case of Fraser v The People (1968) ZR 93 (H.C)

Held: In Trial the prosecution has discretion in whether to call certain witnesses, but
that discretion must be exercised in a manner calculated to further the interests of
justice and to be fair to the defence.

If the prosecution exercises its discretion in calling witnesses improperly, the court
may itself call the witnesses.

Read also;

Dallison v Caffery [1964] 2 All ER 610

R v Olivia [1995] 3 All ER 116

Abel Banda v The People (1986) ZR 105

A prosecutor is under no duty to place before the court all the evidence known by
him, however where he knows of a credible witness whose evidence supports the
accused‟s innocence, he should inform the defence about it.
4.1 Competence and Compellability
Competence relates to the qualifications of a witness to give evidence.
Compellability discusses whether or not a party may be forced to give evidence in a
given case. Competence is to be distinguished from compellability. A person may be
admitted to give evidence though in certain cases he will not be compelled by the
court to do so. Generally, all persons are both competent and compellable.

4.1.1 Competence
Generally, all persons are competent to testify either for or against a party to
proceedings.

The law however places certain further qualifications on certain special types or
categories of witnesses based on interest, prejudice and capacity generally

At common law, objections on competence of a witness are usually taken by the

judge at the time the witness is being sworn. In modern practice, objections may be
taken before a witness is sworn or are taken during cross examination. If the witness‟
incompetence appears, his/her evidence may be excluded from the record.

4.1.1.1 Witnesses with an interest in outcome of the case

a) The Accused in criminal proceedings

b) Spouses

At common law a husband or wife was considered incompetent to testify either for or
against the other spouse by reason of unity in person and interest. The only
exception was in cases of personal violence against a spouse, forcible marriage and
in public interest in cases of treason.

The People v Mushaikwa (1973) ZR 161

Held:

i) At common law, the wife of an accused person is not a competent witness for
the prosecution save in cases of forcible marriage and possibly treason on
both of which occasions the spouse is competent and compellable.
ii) Generally all competent witnesses are compellable; bit in the case of a
spouse of an accused person although the spouse may be rendered by
 statute a competent witness in certain cases the spouse is not compellable
in these instances.
iii) Failure by the court to give such a warning renders the evidence given by the
spouse totally inadmissible.

By statute, these rules of competence were removed.

c) Accomplice

Cautionary rule of practice is that such testimony should be corroborated

Katebe v The People (1975) ZR 14

Emmanuel Phiri & Others v The People (1978) ZR 79

Emmanuel Phiri v The People (1982) ZR 77

4.1.1.2 Competence by reason of capacity

a) Defective intellect

A witness who is of unsound mind or under the influence of alcohol is not competent
to testify in a court of law, if the defect of mind or drunkenness prevents them from
understanding the nature of an oath and giving rational evidence. The incapacity
only exists at the time of the defect. Thus an insane person may be a competent
witness during lucid moments so can drunkards when he/she has become sober.
The question is generally one of degree and weight.

Insane persons are permitted to give evidence provided he/she understands the
nature of the oath. Further, depending on the nature of disability, an application may
be made to court so that the testimony of such witness is postponed until such a time
when the incapacity has been removed.

b) Infancy

There is no precise rule as to the age of capacity to testify. (R v Khan 1981 b73 Cr.
App. 190 14 years as the age limit when inquiry should be made) The degree of
knowledge and intelligence will vary from witness to witness. The competency of
children depends on their ability to understand the nature of an oath and the
consequences of falsehood.

It is important for a party who wishes to call a child witness to lay sufficient ground
for admission of their evidence or to satisfy the court of their competence. Some of
the questions that may be asked include: “what becomes of a liar?” or “is it good or
bad to lie?”

This would effectively be conducted during a viore dire to establish the competence
of a witness, Preliminary examination to test competence of a child witness. Section
122 of the Juveniles Act, Cap 53 of the Laws of Zambia provides for viore dire in
assessing competence of a child of tender years, now 14 years. (Provisions of the
Juveniles (Amendment) Act No.3 of 2011)

Case law

Mwelwa v The People (1972) ZR 29

Tembo v People (1980) ZR 36

R v Campbell [1956] All ER 272

Kamanga v The People Appeal No 120 of 2008

Sinyanza v The People (2009) ZR 24

4.1.1.3 Competence in Criminal Cases

a) Prosecution Witnesses

Accused, spouse, co-accused and/or spouse of co-accused or person indicted with

accused generally not competent witness for prosecution.

Crispin Soondo v The People (1981) ZR 302

Held: Where 2 or more persons are indicted jointly, the wife or husband of any such
defendant is not a competent witness against any co-defendant.
To render co-defendant or their spouses competent for the prosecution, they must
be acquitted or nolle prosecui entered in favour of them, have pleaded guilty or are
tried separately.

An accused who has been convicted may be called to testify against a co-accused
but he/she must first be sentenced to avoid that he/she will be influenced by the fear
of probable sentence.

Certain rights may be waived where a party enters into a plea agreement (Refer to
Plea Negotiations and Agreements Act No. 20 of 2010) a clause containing a
statement that the accused person was informed of, and has waived, the following
rights:
a) the right not to be compelled to give self-incriminating evidence;
b) the right to confront and cross-examine any witnesses against the accused
person; and
c) The right to pursue pre-trial motions and appeal preliminary points.

b) Defence Witnesses

Accused person is a competent witness for the defence. In all cases, the court has a
duty to inform the accused of his right to give evidence in his defence. Failure to give
such warning may result in a conviction being quashed. The accused must be
informed of his right to remain silent.

Section 151 and 157 of the CPC Cap 88 of the Laws of Zambia

The People v Mushaikwa (1973) ZR 161

Spouse of accused may be competent on application by accused. Section 157(iii)

of CPC

If a co-defendant gives evidence that implicates another co-accused, he may be

cross-examined by both the prosecution and the co-accused.
4.1. 2 compellability
All witnesses competent to give evidence are generally compellable to do so. There
is an exception on relation to privilege e.g. sovereign and legal practitioners. The
court may compel a witness to give evidence by „subpoena duces tecum‟ – to
produce document or „subpoena testificandum‟ – to testify. (Read Part VII of the
High Court Act and Part VIII of Subordinate Court Act, Cap 28 of the Laws of
Zambia)

Also ss. 143 – 148 of CPC, Cap 88

Where a person refuses to take oath and testify when summoned by court, he/she
shall be guilty of contempt of court. S28 High Court Act, Cap 27 of Laws of Zambia.
Also section 150 CPC, Cap 88

4.3 oath and affirmation

4.3.1. Oath
A witness who is called to testify may give evidence under oath or affirmation.
Subject to exceptions, all oral evidence must be given on oath or solemn affirmation.

If it appears that a witness has a religious belief, he must either be sworn in the
usual way, and if he objects, to affirm

The manner in which the oath is taken is provided under s.36 (1) of the High Court
Act, Cap 27 of the laws of Zambia.

4.3.2 Affirmation
The form and manner in which an affirmation should be taken regulated by Part VII
of the High Court Act, particularly s. 3691). Words such as „I …….do solemnly and
sincerely affirm that the evidence I shall give to the court shall be the truth and
nothing but the truth.‟

Oaths are administered by court, arbitrators or persons empowered to take

evidence, commissioners for oaths, notary public where it is made outside the
country.
4.3.3. Witnesses who need not swear or affirm
Some witnesses are not by law required to swear or affirm. Evidence of children can
be admitted unsworn if the judge is satisfied that the child does not understand the
nature of an oath but posse‟s sufficient intelligence to justify reception of their
evidences and understand the importance of speaking the truth. Their evidence must
however be corroborated by some other material evidence in support.

Witnesses called to merely produce a document need not be sworn. E.g. Lands
officer to present a deeds printout.

Perjury

Criminal liability for lying on oath – see Part XI of the Penal Code

4.4 Corroboration
As a general rule, the court can convict based on the testimony of one witness or
duly proved documentary evidence. However, evidence of something more may be
necessary in certain instances where the evidence has been discredited or reliability
of its sources questioned. Evidence of something more or supporting evidence is
what is referred to as corroboration.

Corroboration relates to evidence of something more. Confirming or supporting

evidence. If the evidence given is not sufficient to support a conviction, then the court
must seek additional evidence. In order to be supporting or confirming, it must come
from an independent source.

When assessing testimony of certain categories of witnesses, courts should warn

themselves of the danger of convicting without corroborating evidence.

Statutory Provisions

s. 59 Penal Code for offences of sedition

s.140, cap 87

Case Law

Emmanuel Phiri v The People (1978) ZR 79

Held: Court must warn self on convicting on uncorroborated evidence of an
accomplice.

Shamwana & 7 others v The People (1985) ZR 41

DPP v Hester [1972] 3 All ER 1056 at p 1059

Mwelwa v the People (1972) ZR 29 – Children

Nsofu v The People (1973) ZR 287

Corroboration need not be independent evidence. It is supporting evidence that

tends to confirm the truth of the evidence of the witness on which evidence the
conviction is based. It should not be used as substitute for evidence lacking
credibility. (DPP v Kilbourne [1973] 1 All ER 440)

Evidence discussed under classification can be used to support other evidence

although the court can also draw an inference from the behaviour of an accused
person to corroborate testimony that requires corroboration. It can also be
corroborated by the evidence of an accused person which is favourable to the
defence.
Lecture 5: Course of Evidence

5.0 Examination of Witnesses

After witnesses have taken oath or affirmation, they give oral evidence in three stage
process. Each stage has particular importance in relation to information sought to be
solicited form the witness as well as the as to help the court try facts in the most
effective and just manner. There are rules on the type of questions that a witness
may be asked at what stage of the proceedings. The 3 stages are: examination in
chief, cross examination and re-examination.

5.1 examination in chief

This is the stage of proceedings where a party who called the witness asks the
witness questions. During this stage of proceedings, a witness after stating his or her
particulars is asked to narrate facts which he/she perceived or experienced. Any
question may be relevant to facts in issue but is not excluded form admissibility by
exclusionary rules. The exclusionary rules must be observed so that a witness ked
that seeks to give testimony that is should restrict themselves to facts that are
relevant and are not prejudicial.

During this stage of proceedings, a party is not allowed to ask leading questions i.e.
questions requiring a „yes‟ or „no‟ answer. The rationale is that a witness must not be
influenced in the manner in which they narrate facts perceived by them. It is probable
that a witness will simply agree with the statements or suggestion by a party who
called him thereby only giving favourable information and suppressing unfavourable
information. This is not good as it impairs the fact finding mission of the judge who
must reconstruct a true reality of the facts in issue.

Leading questions may be allowed in the interests of expediency in relation to

introductory matters and facts on which there is no dispute.

A witness may use a document to refresh memory but is restricted to documents

written at the time that the facts on which a witness is testifying are still fresh.
Different rules apply in different jurisdictions when a witness gives an inconstant
statement from one previously made. Documents used to refresh memory are
normally not admitted as part of evidence but may be admitted to help the credibility
and consistency of a witness.

5.2 cross examination

This is the stage when a witness is asked questions by counsel form the other side.
During cross examination, the witness will be asked direct or leading questions

The object is to try and discredit the evidence of the witness and his credibility.

Counsel is generally at sea to ask any question but must be guided by the principles
of relevance admissibility and fairness. Counsel should not bully a witness. The may
interfere when cross examination is not proceeding in this manner.

A witness may be asked questions that are intended to cast doubt on the witness‟
credibility, establish bias on the part of the witness and disability in terms of their
competence as a witness.

5.3 Re- examination

The object is to rehabilitate the credibility of the witness which may have been
discredited during examination in chief. Questions asked must be limited to issues
arising during examination in chief. The witness is given a chance to clarify
conflicting statements they may have made during cross examination. It should
however not be used as forum to rehearse evidence that has been given in chief.

Questions in re-examination must be restricted to matters arising in cross

examination.

5.4 Unfavourable and Hostile witnesses

5.4.1 Hostile witnesses

Hostile witness is a party‟s own witness who turns hostile to testifies against the
party calling him. Where this is the case, the party who called the witness may cross
examine the witness. This is a witness who is not desirous of speaking the truth in
favour of a party calling him. A witness who turns hostile may be cross examined by
the party who called him, but must first be declared hostile by the judge.

A witness may give a statement at a PI then later give a contradictory statement at

trial.
JEFFREY GODFREY MUNALULA v THE PEOPLE (1982) Z.R. 58 (S.C.)

The appellant was convicted of theft by public servant and was sentenced to seven
years' imprisonment with hard labour. He appealed to the Supreme Court against
conviction, submitting inter alia that the learned magistrate erred in treating a
prosecution witness as hostile and rejecting, his evidence, since that witness' alleged
inconsistency had not been demonstrated.

Held:

(i) Where on an application to treat a witness as hostile, the court after sight of the
inconsistent statement, decides to grant the application, it should then direct itself not
to place any reliance on the contents of the statement and so record in the judgment.

(ii) Before, with leave of the court, adducing evidence to prove a witness's
inconsistency, the previous statement and its circumstances must be mentioned to
the witness so that he may say whether or not he has made such a statement.

(iii) It is in the court's discretion to determine a witness's hostility in that he does not,
give his evidence fully and with desire to tell the truth; he is not hostile simply
because his evidence contradicts his proof or is unfavourable to the party calling
him. Much is dependent on the stature and extent of the contradiction; but, under
common law file court may treat as hostile, even a witness who has not made a prior
inconsistent statement, on the basis of his demeanour.

(iv)The inconsistent statement of a hostile witness is completely inadmissible as

evidence of the truth of the facts stated therein.

There is no absolute rule that a hostile witness‟ testimony must be completely thrown
out. One might be rehabilitated if they adopt the previous inconsistent statement and
explain it in the context of their testimony. (R v Goodway [1993] 4 All ER 894)
5.4.2 Unfavourable witnesses
Unfavourable witness on the other hand is one who fails to come to proof of facts for
which he is called to prove. There is no hostile intention or deliberate move on his
part.

In certain circumstances a party is permitted to contradict a witness whom he himself

has called. A party producing a witness is not allowed to impeach his credit by
general evidence of bad character. If, however, the witness proves unfavourable, the
party calling him may adduce other evidence of the facts in question, which
contradicts the evidence given by the unfavourable witness. This of course is also
possible in the case of a witness who is declared hostile.

Manyepa v The People (1975) Z.R. 24 (S.C.)

The appellant was convicted in the subordinate court of indecent assault on a

female. The prosecution led the evidence of a witness who was completely adverse
to the prosecution case. There was no evidence on the record that any attempt was
made to treat him as a hostile witness or to challenge his evidence.

Held:

It is not only when a witness is formally declared hostile by the court that the party
calling him is entitled to lead other evidence which contradicts the unfavourable
evidence, and it follows that even where the witness has not been declared hostile it
is for the court to decide where the truth lies after considering the whole of the
evidence.

5.4.3 Refractory witnesses

6. Exclusionary Rules
We have seen that the law of evidence provides guidelines to the trial judge to
conduct its fact finding mission in the most effective, efficient and fair manner. The
considerations of fairness and justice demand that certain relevant evidence would
not be admissible based on the rules of law, public policy and precedent.

6.1 facts excluded on grounds of Privilege

A witness is privileged when he/she cannot be compelled to answer questions or
present certain documents. Privilege means that either a witness himself or who he
represents will not be compelled to give evidence or will not be allowed until the
person he represents has given consent. It extends to answering of questions and
does not prevent questions from being asked.

Bankers may be compelled to disclose account information where a court order has
been issued but are generally not compellable in cases where the bank is not a
party. (Evidence (Bankers Books) Act, Cap 44 of the laws of Zambia. S. 6 and 7)

6.1 Professional privilege

A client, lawyer cannot be compelled or allowed without express consent of client to
disclose oral or documentary communications passing between them in professional
confidence.

The rule is for the protection of the client and is intended to facilitate free
communication between advocate and client. The privilege may be waived by client
not advocate. No formal retainer need exist as long as a client consulted a
professional lawyer. The privilege only exists as long the relationship of lawyer client
exists.

The privilege is of infinite period. The protection is not lost after litigation. The
privilege may be waived by the client.

There are exceptions where communication is intended to facilitate commission of

crime or fraud. There are also statutory exemptions.
6.1.1 Other relationships
The rule does not extend to other relationships of confidence. A doctor may be
compelled to disclose facts discussed with a client in confidence. This also applies to
communication with a priest. Although there is very little jurisprudence on the
subject, it appears the doctor and the clergy may claim some form of privilege on the
basis of public policy and interest.

6.2 Matrimonial communications

No spouse is compellable to disclose information communicated during the course of
a marriage. The rule applies even after the marriage is dissolved. S. 157(iv) CPC,
Cap 88

6.3 Incriminating information

A witness is protected from answering a question or producing a document that
makes him or her criminally liable. There is an exception if the time for proceedings
has expired, a penalty has been waived or a witness has been convicted or
acquitted. s.157 (vi) CPC Cap 88
6.2 Evidence of similar facts
The general rule is that it is not competent for the prosecution to bring evidence
tending to show that the accused has been guilty of criminal acts other than those for
which he/she is being tried leading to the conclusion that the accused is a person
likely, form his criminal conduct or character, to have committed the crime for which
s/he is being tried. On the other hand, the mere fact that the evidence adduced tends
to show the commission of other crimes does not render it inadmissible if it be
relevant to an issue before the jury (Per Lord Herschell in Makin v Attorney
General for New South Wales [1894] A.C 232)

The principle was restated in DPP v Boardman [1975] AC 421, evidence of similar
facts can be admitted if it is more than barely relevant to the guilt of the accused.

Evidence of similar facts may be admitted. Instances where such evidence may be
admitted include as evidence to show if acts alleged were designed or accidental or
to show identity of the person or rebut a defence open to the accused. It however
must be substantially relevant to the facts in issue. The discretion is on the judge to
exclude evidence of similar fact of it is not substantially relevant to facts in issue. In
exercising the discretion, the court should weigh whether the probative value of the
evidence outweighs the likely prejudice to the accused or party. In the law,
provisions of s. 157 CPC are directive in this regard.

It is an error to draw up a closed list of instances in which similar fact evidence may
be admitted. Circumstances differ from case to case.

The weighting should be that of probative force vs. prejudicial effect.

Probative force

i) the cogency (strong or clear to warrant belief) of the evidence showing

accused‟s bad disposition
ii) the extent to which such disposition supports an inference sought to be drawn
form it
iii) The degree of relevance of such inference to some fact in issue in the
proceedings.
 Prejudicial force

i) the accused is painted as bad and prone to commit crimes (against the
presumption of innocence)
ii) Prosecutors are more likely to not investigate other possible offenders but will
rely on identification evidence of victims of similar crimes.

Esther Mwiimbe v The People (1986) Z.R. 15 (S.C.)

Mr Zulu raised two other subsidiary grounds, both of which are valid. One was that
the learned trial judge erred in admitting the evidence of an old police docket in
which an allegation of the attempted murder of the deceased by the appellant had
been investigated and dropped. Mr Sivakumaran properly concedes that the docket
was wrongly admitted but submits that the irregularity occasioned thereby was not
fatal. Evidence of an alleged previous attempt by an accused on the life of a victim
may in certain cases, and if relevant, be admissible as similar fact evidence in proof
or disproof of a fact in issue. However, the admission of similar fact evidence is
in the discretion of the trial court which will no doubt, among other things,
consider whether its evidential value outweighs its prejudicial effect. In this
case, there is nothing on the record to indicate that the learned trial judge had
discussed the exercise of his discretion. That being the case, and following the usual
approach to criminal cases, we must assume in favour of the appellant that had' he
considered the question, he would have exercised his discretion in favour of
exclusion.

O’Brien v Chief Constable of South Wales Police [2005] 2 All ER 930

Held – The test of admissibility of similar fact evidence in a civil suit was the
test of relevance; such evidence was admissible if it was potentially probative
of an issue in the action. The test of admissibility of similar facts in criminal
proceedings required enhanced relevance or substantial probative value
because, if the evidence was not cogent, the prejudice that it would cause to
the defendant could render the proceedings unfair. The test of admissibility of
evidence of bad character that a defendant wished to adduce against a police
witness required enhanced relevance in order to ensure that the ambit of the trial
remained manageable. The automatic application of either of those tests as a rule of
law in a civil suit would build into civil procedure an inappropriate and undesirable
inflexibility. However, the policy considerations which had given rise to the complex
rules of criminal evidence were considerations which a judge with the management
of litigation would wish to keep well in mind. Similar fact evidence would not
necessarily, but could, carry the risk of causing unfair prejudice; evidence of
impropriety which reflected adversely on the character of a party could risk
causing prejudice which was disproportionate to its relevance. The judge
would be astute to see that the probative cogency of the evidence justified the
risk of prejudice in the interests of a fair trial, and when considering whether to
admit evidence or permit cross examination on collateral matters, he would
have regard to the need for proportionality and expedition.
6.3 Evidence of Character
Evidence of character relates to evidence that tends to show the tendency of a
person to act, think, or feel in a particular way. Disposition or propensity of a person
to think, feel act in a certain manner. Character may be revealed by commission of
other crimes or other discreditable conduct. Evidence of character may be relevant
to make inferences of facts in issue. Much as such evidence may be relevant, there
is sufficient research to show that it equally tends to prejudice the judge before
whom an accused person is appearing. Prejudice would be in form of deciding while
placing undue weight or consideration to collateral issues as opposed to evidence
before court to prove facts in issue.

The conflict of likely prejudice and relevance of evidence of character is resolved in

favour of a party so that evidence of character is generally not admissible. Where
such evidence is admissible, its admission should depend on the courts finding after
weighing the prejudicial effect against the probative value.

Following the above test, evidence of character is admissible in cases where

character is in issue. Examples include defamation cases (character may be
necessary to justify a defence of justification), matrimonial cases (divorce on based
on the fact that the Respondent has behaved in such a way that he Petitioner cannot
reasonably be expected to live with the Respondent. In such cases, the general
character of the respondent must be proved.

Generally, evidence of good character of a party need not be led as the law
presumes that a party is of good character until the contrary is proved. (Zambia
Publishing Company Ltd v Pius Kakungu (1982) Z.R. 167)

Furthermore, evidence of the accused bad character is generally inadmissible. The

exceptions are:

i) Where the Defence leads evidence of good character, in which case he/ she may
be cross examined on that evidence to impeach such evidence.
ii) Another exception is where an accused person has attacked the character of a
prosecution witness in which case the accused will be said to have removed his
shield

Where character is tendered to prove or disprove some other issue, it generally not
admissible although relevant. This position holds true in both civil and criminal
cases. In criminal offences, the rule is strict because such evidence tends to
prejudice the accused in that he will be singled as a person with propensity to
commit crimes. Furthermore, if a person has been tried and convicted of a previous
crime, it is against public policy that all future crimes should refer to previous crimes.

Melody Chibuye v The People (1970) Z.R. 28 (H.C.)

The appellant was convicted of theft and sentenced to eighteen months'

imprisonment with hard labour. Under cross-examination the appellant was asked
questions which elicited the facts that during the two months preceding his trial he
had been in prison and that he had been released from prison only two days prior to
his arrest in connection with the present case, that he had previously been in gaol for
theft, and a denial that he was a habitual criminal. The appellant appealed against
conviction.

Held:
(i) Under s. 148 (f) of the Criminal Procedure Code questions relating to the
accused previous committals and convictions could only be admitted in evidence
where
ii) It can be proved that his guilt in those offences show that he is guilty of the
present offences;
(ii) Where the good character of the prosecution witness has been put in issue;
and
(iii) Where the accused wants to establish his good character.
(iv) It was wrong for the prosecutor to cross-examine the appellant as to his
character since the prejudicial effect of the evidence extracted outweighed its
evidential value. The trial magistrate ought to have refused the cross-examination or
to have informed the appellant of his right to refuse to answer those questions.

.Witnesses
An opponent‟s witness can be asked about his general character, previous
convictions for purposes of discrediting his testimony. The restrictions are that the
matter must be relevant to the credibility of the witness. It relevant only to credit,
evidence should not be brought to rebut witness‟ denial.

Secondly, the court will not allow questions that are solely intended to embarrass the
witness or torture them.

Statutory provisions on previous convictions or other offences than those inquired

into.

Section 157(vi) CPC Cap 88

a person charged and called as a witness, … shall not be required to answer, any
question tending to show that he has committed or been convicted of, or been
charged with any offence other than that (with which) he is then charged, or is of bad
character, unless-
(a) The proof that he has committed or been convicted of such other offence is
admissible evidence to show that he is guilty of the offence wherewith he is then
charged; or
(b) he has, personally or by his advocate, asked questions of the witnesses for the
prosecution with a view to establishing his own good character, or has given
evidence of his own good character, or the nature or conduct of the defence is such
as to involve imputations on the
Character of the complainant or the witnesses for the prosecution; or
(c) He has given evidence against any other person charged with the
Same offence
7.0 hearsay evidence
Formal oral or written statements of a person in or outside court may not be tendered
in evidence as truth of that state in the statement. The rationales for exclusion are
that:

1. The maker of the statement has not taken any responsibility to ensure its
truth. The statement is not made on oath nor is the maker subjected to cross
examination to test his/her credibility.
2. Truth depreciates in the process of repetition
3. Such information may protract litigation because it potentially invites untruths
4. It would encourage substitution of weak evidence for best evidence.

Such statements are not admissible as evidence unless they fall under exceptions
under common law and statute.

Muvuma Kambanja Situna v The People (1982) Z.R. 115

7.1 Exceptions
There are exceptions to the rule. Exceptions include:

7.1.1 Where a statement is not admitted as truth of what it says

Subramaniam v Public Prosecutor, 1956, 1 W.L.R. 965
Shamwana and 7 others v the people (1985) ZR 41
“evidence of an out-of-court statement made in the absence of the accused to
a witness is hearsay and inadmissible when the object of the evidence is to
establish the truth of what is contained in the statement. It is, however, not
hearsay and is admissible when it is proposed to establish by the evidence,
not the truth of the statement, but the fact that it was made. And so, it is the
purpose for which the evidence tendered that is the key to its admissibility. On
the facts of this case, it is clear that what PW119 said to PW5 was relevant in
relation, not to the truth of the statement, but to PW5's mental state and his
subsequent conduct to turn State witness. To this extent, therefore, what PW5
narrated in court was not hearsay evidence and was admissible.”
7.1.2 res gestae
The term means the transaction or story. It relates to statements that are
uttered contemporaneously or that explain the facts in issue.

One such example is the spontaneous utterances about an event or issue.

Ratten v R [1972] AC 378.

Statement made by a person in such circumstances where there is no

opportunity for concoction or error.
The conditions for admissions are
i) statement should be made by actor,
ii) must relate to the act in issue
iii) Must have been made contemporaneously with the act.
The People v John Nguni (1977) Z.R. 376
Held:
Evidence of a statement made by a person who is not called as a witness
may be admitted as part of the res gestae and can be treated as an exception
to the hearsay rule provided it is made in such conditions of involvement or
pressure as to exclude the possibility 20 of concoction or distortion to the
advantage of the maker or to the disadvantage of the accused.
Chisoni Banda v The People (1990-92) Z.R. 70.
Edward Sinyama v The People (1993 - 1994) Z.R. 16
The true test and the primary concern of the Court (as to whether a statement
may be admitted as part of the res gestae) must be whether the possibility of
concoction or distortion should be disregarded in the particular case

7.1.3 Admissions and confessions

Admissions and confessions by a party to proceedings, when made out of
court are normally admissible as an exception to the hearsay rule. Admissions
are usually express but may be implied by a person‟s silence.
An admission of a party that is adverse to him/her amounts to a confessions.
Different rules will apply and we will discuss this in more detail later.
7.14 Dying declarations
In criminal trials for murder or any unlawful homicide, statement or declaration
by the deceased is admissible as an exception to the hearsay rule. The rule is
premised on the assumption that no better evidence is available from the
witness and also that the maker of the statement is under a settled hopeless
expectation of death when the statement is made. No one wants to meet his
maker with a lie on his lips.

The victim must have given up all hope of living or thought that death was
eminent. It is not necessary that the death should be expected immediately
provided the deceased had no hope of recovery when the statement is made.
The deceased should actually die.

7.1.5 Declarations made in the course of duty

Another exception relates to reports or declarations made on official duty,
provided they are made contemporaneously with facts in issue. The rule does
not extend to collateral matters of which it was not the declarant‟s duty to
report.

7.1.4 May also be admitted by tribunals that do not observe strict rules of evidence.
e.g. industrial relations court is not bound rules of evidence.
8.0 confessions
Confession is an admission made by the person charged with a crime stating or
suggesting that he committed that crime.

Confessions are generally not admissible against the person making them unless the
person wishing to rely of them shows they are make voluntarily, i.e. without they
have not been obtained from either fear of prejudice or hope of advantage held out
by the person in authority. This was formulated in the classic case of Ibrahim v R
[1914] AC 599 in the speech of Lord Summers

Involuntary confessions are not admitted because it is quite unsafe to receive a

statement made under fear or promise or promise of reward. Voluntary confessions
are admissible because what a person having knowledge on the subject says is very
relevant to prove facts in issue as evidence against him. A voluntary confession is
therefore admissible in law.

The judge exercising this discretion may still exclude a confession statement if it was
obtained in breach of the judges rules. (R v Bass [1953] 1 QB 480). Even where the
judges‟ rules have been administered, the court may still exclude it if it is not relevant
whether or not it was legally obtained. Relevant evidence is admissible regardless of
how it is obtained. Therefore, a distinction is made between the confession, which is
an exception to the rule, and evidence obtained as a consequence of an involuntary
confession, which itself is admissible.

The question whether a confession has been made voluntarily must be determined
by the judge. Where a challenge arises on admissibility of a confession, it is for the
judge to rule on it. Evidence on the issue is heard in a viore dire or trial within a trial.
Objections should be made at the time that the prosecution starts to lead evidence
which is sought to be excluded.

During the trial within a trial, the judge will determine two issues, whether or not there
was an element of inducement, and if the prosecution is the one that induced the
accused. The truth of the confession will come up after it has been admitted.
If a confession is found to be inadmissible, the accused person would not be cross
examined on it.

Person in authority
To exclude a confession, the inducement must come from a person in authority. The
following have been held to be persons in authority: a constable having custody of
the accused, an employer, a lawyer and so on. Where an inducement is not made by
a person in authority, the confession is generally admissible but may be excluded if it
is shown that the inducement goes to deprive a person of free will whether to make a
statement or not.

Abel Banda v The People (1986) Z.R. 105

A village headman is not a person in authority for purposes of administering a warn

and caution before interrogating a suspect, since his normal duties do not pertain to
investigating crime.

In R v Harz [1967] 1 AC 760, the HOL held that where a statement has been
induced by threat or promise, it is inadmissible even though the threat or promise
relate to some other matter not connected to the charge with which the accused is
being investigated.

A threat or promise need not be express, it may be implied form the conduct of the
person in authority. Fear alone will not exclude the confession nor will threat or
promise to one prisoner influence another.

Threats and promises may take various forms. In R v Richards [1967] Cr. App. R
266, the words “I think it would be better for you if you made a statement and told me
exactly what happened” were held to be capable of constituting a threat. If the threat
or inducement has been removed but passage of time or a by a person more
superior to the person making a threat, it will be admissible.

8.1 Judges rules

These the rules formulated in 1912 by judges for their guidance. They are not law
but are administrative directions for the observance of the police to aid them in fair
administration of justice. The judges rules applicable to Zambia are the 1930 ones in
Achbold para 1118.

Of them is a principle that a person who gives a statement or answer to a question

put across to him by authorities must do so voluntarily. Within that principle, there
are rules that should be followed.

i) When the police are investigating a crime, they are entitled to question
anyone whether or not suspected.
ii) As soon as soon police have reasonable cause that an offence has been
committed, they shall caution a person before putting any question relating
to the offence before him. The caution shall be in the following terms;

“You are not obliged to say anything unless you wish to do so but what
you say may be put in writing and given in evidence.”

The warning should again be given when a person has been charged if the police
wish to ask him/her questions relating to the offence.

Charles Lukolongo and Others V The People (1986) Z.R. 115

Before admitting a statement obtained contrary to the Judges' Rules a trial court
should consider whether the prejudicial effect of the evidence outweighs its
evidential value.

8.3 Form of confession

May be oral or in writing. Where a confessions equivocal, the court may quash a
conviction based solely on it.

8.4 Evidence obtained in consequence of an unlawful act or inadmissible

confession
Where evidence is obtained in breach of statutory procedure, it will not be admissible
in court.

The rule against admission of involuntary confessions does not extend to evidence
found as consequence of the confession.

Liswaniso V The People (1976) Z.R. 277

9.0 Evidence of Opinion
Evidence of opinion is generally not admissible. This is because telling of opinion
involves giving of inferences drawn from facts perceived or experienced, which is the
proper function of the court. There are however exceptions to the rule.

9.1 Lay opinion

Opinion evidence of a lay person may be admitted when it relates to matters which
cannot be verbalised without expressing an opinion. Examples include:

Lay observation of state of a person who has been drinking

Blake v The People (1973) Z.R. 157

But in any event it did not offend the principle involved that laymen are not entitled to
place their opinion before the court as to the effect of a consumption of alcohol by
him on an accused's ability to drive. Under cross-examination the hospital medical
officer said that just by looking at him the appellant appeared to be drunk, and was
shouting and arguing with the police. This was not offered as an expert opinion but
was just as acceptable evidence as the opinion of Assistant Inspector Mulundano
that the appellant was drunk.

Mwale v The People (1975) Z.R. 163

A non-expert witness is competent to give evidence as to his impressions of

drunkenness based on facts. Therefore a medical doctor and an analytical chemist
whose qualifications have been established and must be regarded as expert
witnesses, can give opinion evidence as to drunkenness and indeed ability to drive a
vehicle based on findings after a voluntary examination

9.2Expert opinion
Experts are allowed to give an opinion on evidence falling within their expertise.

The requirement for experts is only on matters on which the court cannot make its
own inferences of the facts in issue; otherwise the expert will just introduce jargon
and delay the proceedings.
In Phillips and others v Symes and others [2005] 4 All ER 518, the following were
stated as the duties of an expert witness in civil proceedings:

i) Expert evidence presented to the Court should be, and should be seen to be,
the independent product of the expert uninfluenced as to form or content
by the exigencies of litigation (Whitehouse v. Jordan ([1981] 1 All ER 267
at 276, [1981] 1 WLR 246 at 256–257) per Lord Wilberforce).
ii) An expert witness should provide independent assistance to the Court by way
of objective unbiased opinion in relation to matters within his expertise
(see Polivitte Ltd. v. Commercial Union Assurance Co. Plc. ([1987] 1
Lloyd‟s Rep 379 at 386) per Mr Justice Garland and Re J ([1991] FCR
193) per Mr Justice Cazalet). An expert witness in the High Court should
never assume the role of an advocate.
iii) An expert witness should state the facts or assumption upon which his opinion
is based. He should not omit to consider material facts which could detract
from his concluded opinion (Re J).
iv) An expert witness should make it clear when a particular question or issue
falls outside his expertise.
v) If an expert‟s opinion is not properly researched because he considers that
insufficient data is available, then this must be stated with an indication
that the opinion is no more than a provisional one (Re J).
vi) If, after exchange of reports, an expert witness changes his view on a material
matter having read the other side‟s expert‟s report or for any other reason,
such change of view should be communicated (through legal
representatives) to the other side without delay and when appropriate to
the Court. 7. Where expert evidence refers to photographs, plans,
calculations, analyses.

When dealing with the evidence of an expert witness a court should always bear
in mind that the opinion of an expert is his own opinion only, and it is the duty of
the court to come to its own conclusion bases on the findings of the expert
witness. The opinion of a handwriting expert must not be substituted for the
judgment of the court. It can only be used as to guide, albeit a very strong guide,
 to the court in arriving at its own conclusion on the evidence before it. The same
thing applies to the opinion of other expert witnesses. Chuba v The People
(1976) Z.R. 272

Shawaza Fawaz and Prosper Chelelwa v The People (1995) S.J. S.C.Z./9/49/94

A party who is not satisfied with the opinion of his expert may call another expert if
the court is satisfied that he expert had modified his opinion for reasons that could
not fairly support his revised opinion.

Stallwood v David and another [2007] 1 All ER 206

Where two experts give conflicting opinions, the court can call a third expert if it so
wishes but otherwise has to determine where the truth lies.
10.0 public Policy
Relevant evidence must be excluded on the ground of public policy when it concerns
certain matters of public interest considered more important than the full disclosure
of the evidence in court.

The interests will vary from case to case to case and from time to time. The
considerations are similar to the rules governing privilege, the main difference being
that privilege may be waived while public interest or policy is an absolute rule.

The relevant guides for the court necessarily involve:

i) The public interest that harm shall not be done to the nation or public service; and

ii) The public interest that the administration of justice shall not be frustrated by the
withholding of documents which must be produced if justice is to be done.

If the judge decides, on the balance, that the document should be produced, it is
advisable for him/her to see it before admitting it. The decision is for the court and it
may sometimes require examining the document to make the relevant determination.
Otherwise, the party seeking to rely on it must show that it is relevant.

The objection must be made by the party wishing to rely on the public policy
protection, his counsel or the court.

The scope of the rule is unlimited. Many areas evolve as law and policy develop.
Some of the most classic ones involve documents by the state, discussions or
proceedings in parliament, police sources and so on.

Section 25(1) of the State Proceedings Act provides for protection of state
documents on grounds of public policy during discovery and inspection of documents
to be adduced as evidence in court.

The grounds of privilege may also be by a minister as stated in section 25(3) of the
State Proceedings Act.
Parliament deliberations may not be produced without leave of the House (s. 8 of the
National Assembly (Powers and Privileges) Act, Cap 12 of the Laws of Zambia).

The governing principle is the general public interest in the mater. The fact that a
document is marked confidential is not per se an absolute bar to its production.
Asiatic Petroleum Co. Ltd v Anglo-Persian Oil Co. Ltd [1916] 1 KB 822, per
Swinfen-Eady LJ

Other public interest considerations may be based on the character of the source of
information. The protection also extends to sources of police information. However
the claim for public interest must be weighed against the public interest in the
administration of justice, such that information should not be excluded if it tends to
establish the innocence of an accused person.

Daniel Chizoka Mbandangoma and The Attorney- General (1977) Z.R. 334

The plaintiff in a civil action against the State applied that a witness for the defendant
be ordered to disclose the identity of a police informer on whose information the
plaintiff was charged with theft by public servant. The defendant objected on the
ground that as a matter of public policy the identity of a police informer is not
required to be disclosed.

Held:

The identity of police informers must in the public interest be kept secret and is not
required to be disclosed.

110. Evidence of identification

10. 1 Introduction
Identification is an issue in criminal law. When a person pleads not guilty, every
aspect of the crime is in issue including the identity of the accused person as the
person who committed the crime. There are a number of factors that and information
that are used to identify the accused as the person who committed the crime. Some
of the evidence involves forensic evidence that places an accused person at the
scene of the crime. Examples include, finger print evidence, DNA, handwriting, and
so on. Much of the identification evidence however depends on identification of the
accused person by witnesses. There is less trouble with forensic evidence of
identification. The problem however arises when determining the reliability of
evidence of identification by eye witnesses.

The problems of eye witness evidence of identity.

It is now trite that evidence of identification of eye witnesses carries a high risk of
miscarriage of justice. There are a number or reasons that have been put forward for
this proposition including the following:

a) Observation

Identification by witnesses with defective vision is not reliable. The defect may be as
a result of a perceptual disorder, bad eyesight, and colour blindness among others.

Similarly, accuracy of identification by a witness who had poor opportunity to observe

is not reliable. A person who sees a person in a few seconds may not have sufficient
opportunity to observe a person.

Further, there is a tendency of bias by witnesses in relation to race, sex and gender
of the accused person or association of such persons with a gang etc. Members of a
particular racial group are better at identifying persons of the same race than
another.

It is easier to identify people with distinctive features than those with neutral features.

b) Storage and retrieval of memory

Research by psychologists has shown that a number of post-event factors affect the
accuracy of identification by witnesses. It is common sense that memory tends to
fade after some time after seeing someone or something. The accuracy of
identification tends to diminish with memory as time passes between the observation
of an event and the time that a person is asked to identify an accused person.

Research has also shown that retrieval of memory can be strongly influenced by the
conduct of identification procedures. E.g. A witness may pick out a person from an
identification parade having previously identified that person from the police photos
of convicted person. While honestly believing that the person is the one the witness
saw committing an offence, the memory may be assisted by the picture that the saw
at a later stage at police.

Further, suggestive identification may very likely influence a witness. For example,
biased instruction that suggests that the perpetrator is on the parade may the
witness pick out someone even though the person is not on the parade. Also, the
system of bringing suspects without shoes, belts, etc. when others are normally
dressed may suggest to the witness or prompt the witness to identify the suspect as
the person they saw commit a crime.

CHARLES LUKOLONGO AND OTHERS v THE PEOPLE (1986) Z.R. 115

The practice of allowing suspects in an identification parade to be manifestly and

conspicuously different from the others as regards dress was depreciated in the case
of Chisha v The People (1968) ZR 26 and that of allowing identifying witnesses to
see the accused persons at a police station before the identification parade was
conducted was equally condemned in the case of Musonda v The People (1968)
Z.R. 98. To these unfair practices we must add the one complained of in this case,
namely allowing suspects to be barefooted while others were not. Needless to
mention that police officers conducting identification parades ought to show the
highest standard of fairness and impartiality.

Evidence of identification based parades which have been unfairly conducted is

indefensible and in cases where such evidence is the only evidence implicating an
accused person a conviction will be quashed on appeal.

Kenneth Mtonga and Victor Kaonga v the People (SCZ Judgment No. 5 of
2000.)

Held:

(i) The Police or anyone responsible for conducting an identification parade must
do nothing that might directly or indirectly prevent the identification from being
proper, fair and independent. Failure to observe this principle may, in a proper case,
nullify the identification.

(ii) If, therefore, any irregularity committed in connection with the identification
parade can be regarded as having any effect whatsoever on the identification, it
would not be to nullify the identification given the ample opportunity available to the
witnesses. (iii) If the identification is weakened then, of course, all it would need is
something more, some connecting link in order to remove any possibility of a
mistaken identity.

c) Evaluation of eye witness accuracy.

A judge relying on common sense to evaluate eyewitness‟ testimony may be

tempted to attach undue weight top irrelevant factors such as the confidence of the
witness, the educational qualifications of a witness etc.

10.2 Problems of adducing identification evidence at trial.

Dock identification has a potential of prejudice to the accused. If the witness is
identifying the accused for the first time, it is probable that the witness is probably
that the witness has forgotten the person he/she saw at the relevant time. If a
witness has identified a witness before, there are still risks that he witness is
remembering the witness form the last identification.

Evidence of previous identifications is more reliable because the witness is

remembering the person whom, he/she saw. Identification parades are usually
conducted shortly after commission of the crime. Therefore, the witness would still
have a substantial recollection of what they saw.

Evidence of previous identification by witness

A witness who had previously identified the accused as the person who committed
the act in question may be brought to testify about the identity. A court evaluating
such evidence must warn itself of the possibility of honest mistake identifying the
witness.

In R v Turnbull and Another [1976] All E.R. 549, the court of Appeal held that
evidence of identification ought to be treated with caution before it can be relied on
as founding a criminal conviction. If the quality is not good there is need to look for
supporting evidence to rule out the possibility of honest mistake in identification.

The Court laid the following guidelines for courts when evaluating identification
evidence:
i) Whenever a case against an accused person depends wholly or substantially on
the correctness of one or more identifications of the accused which the defence
alleges to be mistaken, the judge should warn himself of the need for caution before
convicting the accused in reliance on the correctness of the identification(s).

ii) The judge must closely examine the circumstances in which the identification by
each witness came to be made. Factors to consider include; the length of time the
witness had the accused under observation, the nature of the light, whether the
observation was impeded in any way e.g. by passing traffic, people, fear, and so on.
Whether the witness had seen the accused before, how often? How long had passed
between the observance and the identification?

All these factors go the quality of identification.

iii) When the judgement of the quality of the identification is poor, e.g. when it
depends on a fleeting glance or longer observation made under difficult conditions,
the judge should not place weight on that evidence unless there is other evidence
which goes to support the evidence.

These guidelines are applicable in all cases where identification of an accused

person is alleged to be mistaken.

MUVUMA KAMBANJA SITUNA v THE PEOPLE (1982) Z.R. 115

The appellant was convicted of one count of aggravated robbery and two counts of
attempted murder. PW4, the shop assistant, rushed out of the shop with the rest of
the customers who were chased out by the armed bandits and it was PW4 alone
who stated that he had observed the robbers and identified the appellant as the man
who had collected the cash from the till after his armed confederate had cleared the
shop of the customers. The trial court considered that the appellant had been
properly identified at the parade by the single identifying witness despite allegations
by the defence that the parade was improperly conducted and the inherent danger of
an honest mistake in the circumstances

Held:
 (i) The evidence of a single identifying witness must be tested and evaluated
with the greatest care to exclude the dangers of an honest mistake; the
witness should be subjected to searching questions and careful note taken
of all the prevailing conditions and the basis upon which the witness claims
to recognise the accused.
(ii) If the opportunity for a positive and reliable identification is poor then it follows
that the possibility of an honest mistake has not been ruled out unless
there is some other connecting link between the accused and the offence
which would render mistaken identification too much of a coincidence.
(iii) PW4 had stated that he had seen the appellant entering the shop as he
himself was rushing out for safety. It is quite clear on these facts,
therefore, that PW4 could only have had at best a momentary glimpse of
the appellant. In these circumstances there is a great deal of merit in the
ground appeal which attacks the quality of identification in this case

Exceptions
The rule does not apply where identification is of motor vehicle. Vehicles do not
change expressions. But the judge must satisfy itself of the witness‟ opportunity to
view the car, knowledge of makes and colours.

The warning is unnecessary where the accused does not deny being at the scene
and there was no possibility of mistaken identity. Then the question should be what
he accused was doing at the time.

The warning may not be necessary if the witness has not made a mistake but is
merely lying.

Where the court is invited to identify an accused person, either by looking at pictures
or a video footage taken at the scene of crime or a voice or handwriting. They may
do so with the help of experts.

Supporting evidence
Need not be corroboration within the strict terms. It may sometimes be supported by
a fake alibi, forensic evidence and other circumstantial evidence.
11.0 documentary evidence
The evidence act, cap 43 of the laws of Zambia defines "document" as includes any
device by means of which information is recorded or stored, and books, maps, plans
and drawings. As a general rule, a party who wishes to rely on contents of a
document and that of identifying it must adduce primary evidence of its contents.
This is spoken of as the most important survival of the best evidence rule. Read
sections 3 and 4 of the Evidence Act, Cap 43 of the laws of Zambia.

11.1 Primary evidence of contents of a document

a) The original

The primary contents of a document are the original.

b) Copy of document requiring enrolment

There are certain private documents which must be filed in court or other public or
office and when filed as such, a copy is issued by the court or such public office may
be treated as the original. E.g. probate of will, lease registered at Ministry of lands.

c) An informal admission by one party to litigation constitutes primary evidence

against him of the contents of the document. The opponent is dispensed from the
necessity of producing the original or showing that the case comes within the rule
requiring this to be done.

11.2 Secondary evidence

These include certified copies, examined copies, office copies and other public
documents such as statues, etc.

11.3 Exceptions to the general rule requiring production of original

document
a) When document is in possession and control of opponent who fails to produce it
after a notice has been served on him/her.

When a notice to produce is served on a party, it provides a foundation for reception

of secondary evidence.

It does not compel a party to produce a document in their possession or power.

b) When original has not been found after due search.

c) When production of original is, for practical purposes, impossible.

d) When production of an original document would be highly inconvenient owing to
the public nature of the document.

e) Bankers Books

11.4 The person to adduce documentary evidence

The person to produce the document to court must be:

a) The person who has personal knowledge of the matters dealt with by the
statement; or
b) where the statement (in so far as the matters dealt with thereby are not within his
personal knowledge) in the performance of a duty to record information supplied to
him by a person who had, or might reasonably be supposed to have, personal
knowledge of those matters; and
c) if the maker of the statement is called as a witness in the exception is that the
maker of the statement need not be called if the witness is dead, or unfit by reason
of bodily or mental condition to attend as a witness, or if is outside Zambia and it is
not reasonably practicable to secure his attendance, or if all reasonable efforts to
find the witness have been made without success.

11.5 Proof of attestation and execution of private documents.

When a party wishes to rely on executed document, the court will require evidence
that the document was properly executed.
The court requires proof that the document was signed by the person whom it is said
to have signed. In terms of execution, the court must satisfy itself that the document
was duly executed. There are a number of ways in which the court will establish the
handwriting or signature in question.
a) Proof of handwriting
i) Handwriting can be proved by testimony of a person whose handwriting is to be
proved. It could also be proved by the testimony of a person who saw the document
being executed.
ii) The opinion of a person who is sufficiently familiar with the handwriting or signing
of the person whose handwriting is in question. For these purposes, the witness
need not see the witness write. It is sufficient that the witness possessed or has
received documents purporting to have been written or signed by person whose
writing is in question. What is important is the witness has had sufficient opportunity
knowledge of the handwriting in question.
iii) Expert opinion of a handwriting expert following comparison of the disputed
writing with proved to have been written or signed by the person whose writing or
signature is in question.
b) Proof of attestation

i) Section 6 of the Evidence Act, attestation may be proved in the ways discussed
above but there are documents requiring special proof of attestation.

ii) Wills and testamentary documents – one of the attesting witnesses. If the
witnesses are not available, evidence must be shown that they are dead, insane or
outside the jurisdiction. Secondly, evidence of their handwriting or signature to prove
attestation must be called. If evidence of handwriting cannot be obtained, evidence
of those who saw the will being executed or any other evidence of due execution will
be called.

c) Presumption relating to documents

Attestation like handwriting would not be easily proved in a case of an old document.
The practical difficulties of this are negated by the presumption of due execution of a
document purporting to be not less than 20 years old, provided it is produced from
proper custody. What is proper custody will vary from case to case. Read Section 7
of the Evidence Act, Cap 43 of the laws of Zambia.

Another presumption is the presumption that a document was executed on the date
which it bears.

Alterations in a deed are presumed to have been before execution, otherwise the
entire document would be void. This presumption does not apply to wills because
alterations made after execution will not invalidate the entire will and can be
validated.

Where a party Electronic messages (Electronic Communications and Transactions

Act No.21 of 2009)
The Act defines a „data message‟ as data generated, sent, received or stored by
electronic means and includes a voice, where the voice is used in an automated
transaction and a stored record.
Other relevant provisions are found in section 6 which states, inter alia, that:
(1) Where the signature of a person is required by law and such law does not
specify the type of signature, that requirement in relation to a data message shall be
met only if an advanced electronic signature is used.
a) An electronic signature shall not be without legal force and effect merely on the
grounds that it is in electronic form.
b) Where an electronic signature is required by the parties to an electronic
transaction and the parties have not agreed on the type of electronic signature to be
used, that requirement shall be met in relation to a data message if a method is used
to identify the person and to indicate the person's approval of the information
communicated and having regard to all the relevant circumstances at the time the
method was used, the method was as reliable as was appropriate for the purposes
for which the information was communicated.
c) Where an advanced electronic signature has been used, such signature shall be
treated as a valid electronic signature and to have been applied properly, unless the
contrary is proved.
b) Where an electronic signature is not required by the parties to an electronic
transaction, an expression of intent or other statement shall not be without legal
force and effect merely on the grounds that it is in the form of a data message, or it is
not evidenced by an electronic signature but is evidenced by other means from
which such person's intent or other statement can be inferred.

11.6 Admissibility of extrinsic evidence

Documents are admissible as exclusive evidence of things stated therein. Flowing

from this rule, extrinsic evidence is generally not admissible when, if accepted, it
would have the effect of varying, contradicting, constituting a transaction required by
law to be in writing or document constituting a valid and effective contract or
transaction. (Bank of Australia v Palmer [1897] AC 540)
However, pre-contractual statements may be admissible if they retain a legal
significance. This however depends on the nature of the contract or agreement. In
conveyance for example, the rule is stricter than in a contract for sale of gods.

Exceptions

i) Evidence to question validity or effectiveness of a contract or document

ii) Consideration
Absence of consideration invalidates a simple contract in writing. This is
usually proved by extrinsic evidence.
iii) Evidence admitted to establish the real nature of the transaction
iv) Capacity of parties whether one signs as landlord, tenant or agent.
v) Collateral undertakings
These are also known as contracts that are partially oral and partially
written. It includes oral warrantees as to condition and quality.
vi) Aid to interpretation.
13.0 Judicial notice
In an a legal system such as ours, each party must prove the facts in issue by
bringing evidence in support of a fact in order to satisfy the burden of proof to a
required standard. The court will not normally make a finding of fact absence
evidence in support of that finding. Judicial notice declares that a court can make a
finding of fact even though not adduced in evidence of certain facts which are so
notorious and of a general nature or where statute declares that certain facts must
be taken judicial notice of.

13.1 facts judicially noticed without inquiry

There is no limit on cases in which the courts may take judicial notice of facts without
inquiry. The guiding principle for the court is that a fact is too notorious to be subject
to serious dispute. For example, that a month is too short for a child to be fully
developed, that Christmas falls on 25th December, etc.

13.2 Facts judicially noticed after inquiry.

A court may take judicial notice of a fact after a submission has been made. For
example, the court may take judicial notice of state sovereignty following a
submission that a transaction is governed by foreign law. Also the court may take
judicial notice of a custom, the state of infrastructure in the capital city as compared
to other cities, professional practice.

13.3 Statutory provisions

The court will take judicial notice of the signature of certain officials such as the DPP
(see section 84 of the Criminal Procedure Code, Cap 88 of the Laws of Zambia).

The court can take judicial notice of statutes and law as provided under section 6 of
the Interpretation and General Provisions Act, Cap 2 of the laws of Zambia.

Personal knowledge
Judges can only take judicial knowledge of personal knowledge which is of a general
nature and public notoriety. The judge is not entitled to collect evidence of facts
privately no matter how interested the judge is in the subject of inquiry.
The rationale for judicial review is to provide expediency to the trial process.
Secondly, there are matters that are too notorious that requiring proof thereof would
end to insult the intelligence of the judge.

Gastove Kapata V The People (1984) Z.R. 47 (S.C.)

At the close of the trial, there was no evidence to prove that the road on which the
offence was committed was a public road. The fact that the said road was a public
road was a necessary element of the charge. The court took judicial notice of the
road and held that it was a public road; and convicted the accused.

On Appeal, it was held as follows:

(i) In so far as the utilisation of personal knowledge is concerned, the general

rule is that a court may, in arriving at its decision in a particular case, act on its own
personal knowledge of facts of a general nature, which is notorious facts relevant to
the case.

(ii) The Commissioner being a resident of Kitwe was entitled to make use of his
personal knowledge of a general matter, which is of a notorious matter, namely, that
the road in question was public road to which the public had access.

“It is trite law that judicial notice is the cognisance taken by the court itself of certain
matters which are so notorious, or clearly so established, that the need to adduce
evidence of their existence is deemed unnecessary. This is simply a common sense
device by which the court's time and the litigant's expenses are saved. It is
important, however, that, in taking judicial notice of (notorious) facts, courts should
proceed with caution. Thus, if there is room for doubt as to whether a fact is truly
notorious, judicial notice should not be taken of it.”

“Insofar as the utilisation of personal knowledge is concerned, the general rule

is that a judge may, in arriving at his decision in a particular case, act on his
personal knowledge of facts of a general nature, that is, notorious facts
relevant to the case.” Per Silungwe CJ

Mutambo And Five Others V The People (1965) Z.R. 15 (C.A.)

Apart from personal experiences of the judges in the course of their duties one may
note and apply to this country the view expressed in R. v Aspinall, 13 Cox's C.C.,
563 at 571 - 'But judges are entitled and bound to take judicial notice of that which is
the common knowledge of the great majority of mankind....' Although the learned trial
Judge took a view of their evidence to be mentioned in a moment, there lies in the
record also the evidence of the appellants themselves, which evidence was
considered, and which sets out their views as to a threat from members of the UNIP
and as to their beliefs that the police were making war upon them

Mwape v The People (1976) ZR 160 (SC)

The question of judicial notice has been canvassed by the State. A court may, and in
some cases must, take judicial notice of various matters. It will, for instance, take
judicial notice of matters of common knowledge which are so notorious that to lead
evidence in order to establish their existence may be unnecessary and could, as
Phipson puts it in his Manual of the Law of Evidence, 10th Edition at page 21 be "an
insult to the intelligence to require evidence". In Clinton v Lyons & Co. Ltd [1] the
King's Bench Division recognised that cat and dog may fight. Nokes in his
Introduction to Evidence, 3rd Edition, summarises the point well when he says at
page 55 that "this is merely notice of a general characteristic and should not make
inadmissible evidence that a particular dog was of a timid nature"

The People v Fred M’membe, Masautso Phiri And Bright Mwape (1997) S.J. 63
(H.C.)
The three accused were employees of The Post, an independent newspaper. In
issue number 401 of the newspaper, the accused carried a story in which they
revealed a devious plot by the government to hold a secret referendum on the
proposed constitutional amendments.
The accused are charged with an offence under section 4 (3) of the State Security
Act, Cap 110 of the Laws of Zambia. Leaving out what is not necessary, section 4
(3) aforesaid provides thus: “Any person who receives … Any information knowing
or having reasonable grounds to believe at the time when he receives it that the
same information has been communicated to him in contravention of the Provisions
of this Act … shall be guilty of an offence”.

Police conducted a search of the premises on that day and found, in Bright Mwape‟s
(Accused three) Office, the document Programme of work on Constitutional Reform
Activities (Ex P1) under a table calendar. The document Ex P1 (a hand written
document substantially similar with Ex P3) was not and is not marked secret. The
document contained nothing more than what its title suggests and the projected
costs for the activities to be undertaken in the Provinces. Information contained on
EX P1 came from Ex P3 (a schedule to a cabinet memorandum) which was a
classified document.

The issue whether Ex P 3 was a classified document for purposes of the state
Security Act was a matter of fact on which the court had to determine.

Justice Peter Chitengi in making a ruling on a case to answer stated thus:

“In fact reading through Ex P3 one finds that it contains nothing new and
secret but matters that were publicly discussed during the constitutional
reform debates, which matters are common knowledge and which I take
judicial notice. The document Ex P3 contains no matter which if it fell into the
hands of the enemy or the general public would imperil or prejudice the
interest of the State.”

14.0 Presumptions.
Presumptions There are presumptions of law and presumptions of fact
Presumptions of law could be conclusive (e.g. age of capacity to commit a crime in
the penal code) or rebuttable (e.g. a person who has been away for 7 years is
presumed dead.)
Presumptions of fact are inferences that the mind naturally draws. Presumptions of
fact are always rebuttable.

14.1 Differences Between Presumptions of Fact and Presumptions of Law

i) Presumptions of law draw their force form law while presumptions of fact derive
form logic
ii) Presumption of law applies to a class the conditions of which are fixed and uniform
while presumptions of fact apply to individual cases conditions of which are
inconsistent and fluctuating
iii) Presumptions of law are held to be conclusive in the absence of evidence to the
centrally while presumptions of fact may sometimes be disregarded.

14.3 Examples of Presumptions of Law

i) Legitimacy
ii) Death
iii) Sanity
iv) Innocence
v) Copyright

14.4 Presumptions of Fact

These are logical inferences that the mind naturally draws. There is therefore no list
that may be drawn in this case. They are inferences or presumptions which render
circumstantial evidence admissible.

For example, in Mwansa Mushala and others) Z.R. 58 (S.C.) v The People (1978
The failure by the police to take fingerprints from the car the third appellant was
alleged to have been driving leads to the presumption in his favour that his
fingerprints were not on or in that car and therefore that he may not have been the
one who was driving that car.

14. 5 Effect on burden of proof

b) Presumptions of law
Where rebuttable presumption of law exists in favour of party, it lies upon the other
party to rebut it.

i) Civil cases – fraud vitiates title

ii) Criminal cases- presumption of innocence casts burden of proof on prosecution.

Burden of proving non consent in rape lies with prosecution.

ii) Conflicting presumptions neutralise each other. Case must be determined on

evidence e.g. presumption of validity of marriage vs. presumption of death.

15.0 Estoppel
Estoppel is rule that precludes a party form denying the existence of some state of
facts which he/she has formerly asserted.
When an estoppel binds a party to litigation he/she is prevented form relying on or
denying
the existence of certain facts. To this extent, estoppels are regarded as something
that make unnecessary for production of evidence. The whole notion of estoppel is
primarily important in civil cases.

In criminal cases, the rule against double jeopardy plays an equivalent role as
estoppel in civil cases. The doctrines of autrefois acquit and autrefois convict provide
that a person who has been tried by a competent court and has been acquitted or
convicted cannot be tried of the same charges again.

As a general rule, estoppel does not override the law of the land. Therefore, if a
particular formality is required by statute, estoppel cannot cure the defect.

15.1 Estoppel by record

The chief of these are judgements. The estoppel on this ground is founded on the
premises that:
i) there should be an end to litigation
ii) no one should be sued twice on the same ground
Flowing from these, judgments are binding and no evidence may be admitted to
contract or vary them.
A judgement of a competent court is conclusive against all persons of the existence
of the state of things. E.g. a judgment of a criminal court acquitting an accused
person is conclusive evidence of the acquittal in a case of malicious prosecution.

Because there is a judgement of a competent court a party will be estopped form

bringing another action against the same person on the same facts. This is a matter
for substantive law and we will not focus on it.

When an issue has been decided upon by a court of competent jurisdiction, neither
party is allowed to adduce evidence on the issue.
This estoppel must be pleaded where there is an opportunity otherwise they may be
deemed to have been waived.

15.2 Estoppel by Deed

When a person enters into a certain engagement by deed, he/she is not permitted to
deny the facts under such deed. The exceptions are where there is fraud, duress,
infancy or any other illegality.

15.3 Estoppel by conduct

A party who acts or makes a statement on which the other party act believing that a
certain state of affairs exists is estopped from disputing the existence of the state of
affairs. There must however be a duty if care on the recipient of the statement in the
face of negligence or the conduct consists wholly of omissions. In order to be
effective, the following should be satisfied:
i) Estoppel must relate to the existing fact or state of facts.
ii) it must be unambiguous
iii) the result must be legal it would not be binding if giving effect to it would be
something prohibited by law.