Question 4 June 2010
Similar fact evidence
In accordance with the doctrine of precedent, the Supreme Court is not bound by its previous
decisions. This principle is well illustrated in the case of S v Banana 2001(1) ZLR 607 S, where the
court revisited the accepted longstanding approach of the Zimbabwean courts towards a number
of evidentiary issues raised in the case.
In the light of the pronouncements in the Banana case, explain and critically discuss the aspproach
of our courts in relation to the following evidentiary matters:
(a) admissibility of similar fact evidence;
(b) the approach to the evidence of a complainant in sexual assault cases.
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(a) admissibility of similar fact evidence
Similar fact evidence is evidence pertaining to similar conduct of the accused on other occasions or
of the commission by the accused of similar offences. It is evidence of propensity.
Over the years, our courts have generally held the view that similar fact evidence is generally
inadmissible although there are certain exceptions. Our courts have always refused to accept similar
fact evidence to prove the propensity of the accused to commit that particular offence. Accordingly,
in Banana it was held that the general rule in similar fact evidence is that it is forbidden in law to
reason saying the accused is the sort of person likely to have committed the offence he is alleged to
have committed because he has done it before. If evidence is adduced to further the above
conclusion, it should be excluded.
The test for the admissibility of similar fact evidence had always been determined as according to
Boardman v DPP which stated that the similar fact must be such of an unusual nature or striking
similarity that it would be an affront or insult to common sense to assume that the similarity to the
offence charged was explicable on the basis of coeincidence.
In the Banana case the court referred to R v P where it was held that the requirement of striking
similarity was not indispensible. The test in every particular case must not be whether there was
striking similarity, but whether the probative value outweighed the prejudicial effect on the accused.
The probative force against the prejudicial effect must be sufficiently great to make it just to admit
the evidence notwithstanding that it is prejudicial to the accused in tending to show that he was
found guilty of another crime of a similar nature.
The judge in the Banana case held that this was the course to be followed. In this case, the only
prejudice on the accused was that the evidence revealed that he could have committed other
offences of a similar nature but the probative value of the evidence was greater because it proved
that he was the same person who committed those offences.
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(b) the approach to the evidence of a complainant in sexual assault cases.
The approach of our courts towards compainants of sexual offences as according to the case of
Canaan S. Banana v the State is firstly that the judge should warn himself against the danger of
convicting an accused based on the uncorroborated evidence of 'suspect witnesses'. Complainants
of sexual offences fall into the category of 'suspect witnesses'.
Our courts apply a two-stage test as was applied in S v Mupfudza. The first question the court asks is:
Is the complainant credible? If the answer is yes, then the next question is: is there corroboration ie
independent evidence in support of the evidence of the complainant. The witness must not only be
credible, the court must be satisfied that the witness is a plausible one by the application of the
cautionary rule. The court must seek corroboration tending to exclude the possibility of false
incrimination.
In Banana v State the court referred to the approach used by other jurisdictions on complainants of
sexual offences. It referred to S v D, a Namibian case. In this case the Namibian High Court re-
examined the need for the cautionary rule in sexual offences. It held that there is no rational basis
for the continued existence of the rule. Furthermore it held that while a trial court could consider
the nature and circumstances of the particular case, in the end only one test applies: was the
accused's guilt proved beyond reasonable doubt? This test must be the same regardless whether the
crime is theft or rape.
The court examined cases in South Africa, which seemed to follow the Namibian approach. In S v
Jackson, a South African case, the court held that the cautionary rule in sexual offences is based on
an irrational and outdated notion. It particularly stereotypes complainants (women) as unreliable.
The burden of proof to prove the accused's guilt is on the prosecution which should prove the guilt
beyond reasonable doubt, no more, no less. Evidence in a particular case may may call for the
application of caution, but that is a far cry from the cautionary rule.
Prior to the Jackson case it had long been accepted in criminal sexual offences cases that they fell
into a special category. It was said that there was an inherent danger of relying on the unconfirmed
testimony of a complainant. This resulted in the courts adopting a fixed cautionary rule of practice.
The Namibian courts followed the Jackson decision in the case of S v K. were no convincing reasons
for its continued application. The rule placed an added burden on victims of sexual offences which
could lead to grave injustice to the victims involved.
Chief Justice Anthony Gubbay said in his opinion, the time had come for our courts to move away
from the approach of the cautionary rule and follow the South African approach. He said that the
cautionnary rule is not warranted but this does not mean that the nature of the alleged offence
need not be carefully considered.
Our courts, according to the Banana case hold that the cautionary rule is nolonger seen as a rule of
law, but a rule of practice (procedural safeguard) an admonition to scrupulous objectivity where the
scope of error is high.
