THE UNIVERSITY OF ZAMBIA

INSTITUTE OF DISTANCE EDUCTION

BACHELOR OF LAWS

MODULE

LAW 3011: - LAW OF EVIDENCE

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materials should be addressed to:
The Director,
Institute of Distance Education
The University of Zambia
P.O. Box 32379
Lusaka
Zambia
Tel: +211 290719
Fax: +211 253952
E-mail: director-ide@unza.zm
Website: www.unza.zm

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TABLE OF CONTENTS

ACKNOWLEDGEMENTS................................................................................................................... 11

MODULE STRUCTURE...................................................................................................................... 12

INTRODUCTION ................................................................................................................................. 13

AIM ....................................................................................................................................................... 14

OBJECTIVES ...................................................................................................................................... 14

ASSESSMENT .................................................................................................................................... 14

CONTINUOUS ASSESSMENT: 30%.......................................................................................... 15

PRESCRIBED READINGS................................................................................................................. 15

RECOMMENDED READINGS ........................................................................................................... 15

TIME FRAME ....................................................................................................................................... 16

STUDY SKILLS ................................................................................................................................... 16

NEED HELP? ...................................................................................................................................... 17

UNIT 1 .................................................................................................................................................. 18

INTRODUCTION TO THE LAW OF EVIDENCE ............................................................................................. 18

1.0 INTRODUCTION ........................................................................................................................... 18

1.1 OBJECTIVES ................................................................................................................................ 18

1.2 REFLECTION ................................................................................................................................ 18

1.3 DEFINITION OF EVIDENCE ........................................................................................................ 19

1.4 WHY DO WE STUDY THE LAW OF EVIDENCE? ............................................................. 19

1.5 SOURCES OF LAW OF EVIDENCE........................................................................................... 20

1.5.1 THE CONSTITUTION OF ZAMBIA, CHAPTER 1 OF THE LAWS OF ZAMBIA ..................................................... 20

1.5.2 ACTS OF PARLIAMENT ........................................................................................................................... 21
1.5.3 COMMON LAW ................................................................................................................................... 21

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 1.5.4 JUDICIAL PRECEDENTS ........................................................................................................................... 22
1.5.5 TEXT BOOKS OR WRITINGS OF EMINENT WRITERS ....................................................................................... 22

1.6 PRINCIPAL ITEMS OF JUDICIAL EVIDENCE.......................................................................... 22

1.6.1 FACTS OPEN TO PROOF OR DISPROOF ....................................................................................................... 22

1.6.1.1 Facts in Issue....................................................................................................................... 23
1.6.1.2 Relevant Facts..................................................................................................................... 25
1.6.1.3 Collateral Facts ................................................................................................................... 25
1.6.1.4 Rationale for distinguishing the three facts ............................................................... 26

1.7 JUDICIAL DISCRETION .............................................................................................................. 27

1.8 REFERENCES AND SUGGESTED READINGS ....................................................................... 28

UNIT 2 .................................................................................................................................................. 30

OBJECTS OF PROOF/CLASSIFICATION OF EVIDENCE ................................................................................ 30

2.0 INTRODUCTION ........................................................................................................................... 30

2.1 OBJECTIVES......................................................................................................................... 30

2.2 REFLECTION......................................................................................................................... 31

2.3 OBJECTS OF PROOF ................................................................................................................. 31

2.3.1 TESTIMONY......................................................................................................................................... 31
2.3.2 DOCUMENTS ....................................................................................................................................... 31
2.3.3 REAL EVIDENCE .................................................................................................................................... 32
2.3.4 CIRCUMSTANTIAL EVIDENCE ................................................................................................................... 32

2.4 CONCLUSION............................................................................................................................... 35

2.5 REFERENCES AND RECOMMENDED READINGS ................................................................ 36

UNIT 3 .................................................................................................................................................. 37

RELEVANCE, ADMISSIBILITY AND WEIGHT OF EVIDENCE......................................................................... 37

3.0 INTRODUCTION ........................................................................................................................... 37

3.1 OBJECTIVES ................................................................................................................................ 37

3.2 REFLECTION ................................................................................................................................ 37

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3.3 RELEVANCE................................................................................................................................. 37

3.4 ADMISSIBILITY ............................................................................................................................ 38

3.5 WEIGHT OF EVIDENCE .............................................................................................................. 39

3.6 ACTIVITY ....................................................................................................................................... 39

3.7 REFERENCES AND RECOMMENDED READINGS ................................................................ 40

UNIT 4 .................................................................................................................................................. 41

BURDEN OF PROOF AND STANDARD OF PROOF ...................................................................................... 41

4.0 INTRODUCTION ........................................................................................................................... 41

4.1 OBJECTIVES......................................................................................................................... 41

4.2 REFLECTION ................................................................................................................................ 41

4.3 BURDEN OF PROOF ................................................................................................................... 41

4.3.1 LEGAL BURDEN .................................................................................................................................... 42

4.3.2 EVIDENTIAL BURDEN ............................................................................................................................. 43

4.4 INCIDENCE OF BURDEN OF PROOF ....................................................................................... 43

4.4.1 CRIMINAL CASES .................................................................................................................................. 43

4.4.2 CIVIL CASES ......................................................................................................................................... 45

4.5 STANDARD OF PROOF .............................................................................................................. 45

4.5.1 CRIMINAL CASES .................................................................................................................................. 46

4.5.2 CIVIL CASES ......................................................................................................................................... 46

4.6 FACTORS AFFECTING BURDEN AND STANDARD OF PROOF ......................................... 47

4.6.1 STATUTES ........................................................................................................................................... 47

4.6.2 PRESUMPTIONS ................................................................................................................................... 47

4.7 ACTIVITY ....................................................................................................................................... 47

4.8 REFERENCES AND RECOMMENDED READINGS ................................................................ 48

UNIT 5 .................................................................................................................................................. 49

WITNESSES............................................................................................................................................... 49

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5.0 INTRODUCTION ........................................................................................................................... 49

5.1 OBJECTIVES ................................................................................................................................ 49

5.2 ACTIVITY ....................................................................................................................................... 50

5.3 CHOICE AND ORDER OF CALLING WITNESSES .................................................................. 50

5.4 COMPETENCE, COMPELLABILITY AND PRIVILEGE OF WITNESSES .............................. 51

5.4.1 COMPETENCE ...................................................................................................................................... 51

5.4.1.1. Competence by reason of capacity................................................................................. 52
5.4.1.2 Witnesses with an interest in outcome of the case ........................................................ 53
5.4.2 COMPELLABILITY .................................................................................................................................. 55

5.5 PRIVILEGE .................................................................................................................................... 56

5.5.1 SOVEREIGN IMMUNITY .......................................................................................................................... 57

5.5.2 PUBLIC POLICY .................................................................................................................................... 57
5.5.3 BANKERS ............................................................................................................................................ 60
5.5.4 LEGAL PROFESSIONAL PRIVILEGE ............................................................................................................. 60
5.5.5 WITHOUT PREJUDICE COMMUNICATION .................................................................................................... 61
5.5.5 Matrimonial communications............................................................................................ 62
5.5.7 Incriminating information ....................................................................................................... 62

5.6 REFERENCES AND OTHER RECOMMENDED READINGS .................................................. 63

UNIT 6 .................................................................................................................................................. 65

COURSE OF EVIDENCE IN COURT ............................................................................................................. 65

6.0 INTRODUCTION ........................................................................................................................... 65

6.1 OBJECTIVES ................................................................................................................................ 65

6.2 REFLECTION ................................................................................................................................ 65

6.3 SWEARING OF WITNESSES...................................................................................................... 66

6.3.1 OATHS AND AFFIRMATION ..................................................................................................................... 66

6.4 EXAMINATION OF WITNESSES ................................................................................................ 67

6.4.1 EXAMINATION IN CHIEF ......................................................................................................................... 67

6.4.2 CROSS EXAMINATION ............................................................................................................................ 69

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 6.4.3 RE- EXAMINATION ................................................................................................................................ 70

6.5 UNFAVOURABLE AND HOSTILE WITNESSES ...................................................................... 70

6.5.1 HOSTILE WITNESSES.............................................................................................................................. 70

6.5.2 UNFAVOURABLE WITNESSES ................................................................................................................... 71
6.5.3 REFRACTORY WITNESS .......................................................................................................................... 72

6.6 REFERENCES AND PRESCRIBED READINGS ...................................................................... 73

UNIT 7 .................................................................................................................................................. 74

CORROBORATION AND CARE WARNINGS................................................................................................ 74

7.0 INTRODUCTION ........................................................................................................................... 74

7.1 OBJECTIVES ................................................................................................................................ 74

7.2 CORROBORATION...................................................................................................................... 74

7.3 CARE WARNINGS ....................................................................................................................... 75

7.3.1 EVIDENCE OF IDENTIFICATION ................................................................................................................. 75

7.4 SUPPORTING EVIDENCE ............................................................................................................................ 78

UNIT 8 .................................................................................................................................................. 81

EVIDENCE OF CHARACTER AND DISPOSITION .......................................................................................... 81

8.0 INTRODUCTION ........................................................................................................................... 81

8.1 OBJECTIVES ................................................................................................................................ 81

8.2 EVIDENCE OF CHARACTER ..................................................................................................... 81

8.2.1 PARTIES TO PROCEEDINGS ..................................................................................................................... 82

8.2.2 WITNESSES ......................................................................................................................................... 84

8.3 EVIDENCE OF SIMILAR FACTS ................................................................................................ 84

8.4 ACTIVITY................................................................................................................................ 87

8.5 REFERENCES AND RECOMMENDED READINGS ................................................................ 88

UNIT 9 .................................................................................................................................................. 89

OPINION................................................................................................................................................... 89

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9.0 INTRODUCTION ........................................................................................................................... 89

9.1 OBJECTIVES ................................................................................................................................ 89

9.2 EVIDENCE OF OPINION ...................................................................................................... 89

9.2.1EXPERT OPINION ................................................................................................................................... 89

9.2.2. LAY OPINION ...................................................................................................................................... 92

UNIT 10 ................................................................................................................................................ 94

THE RULE AGAINST HEARSAY ................................................................................................................... 94

10.0 INTRODUCTION ......................................................................................................................... 94

10.1 OBJECTIVES .............................................................................................................................. 94

10.2 THE RULE AGAINST HEARSAY ............................................................................................. 94

10.4 EXCEPTIONS.............................................................................................................................. 95

10.4.1 A STATEMENT TENDERED NOT AS TRUTH OF WHAT IT SAYS BUT THAT THE STATEMENT WAS MADE. ..................... 95
HEARSAY STATEMENTS TENDERED NOT AS TRUTH OF THE STATEMENT BUT TO SHOW THAT THE STATEMENT WAS MADE ARE
ADMISSIBLE. ................................................................................................................................................ 95
10.4.2 RES GESTAE .............................................................................................................................. 95
10.4.3 ADMISSIONS AND CONFESSIONS ............................................................................................................ 96
10.4.4 DYING DECLARATIONS ......................................................................................................................... 96
10.4.5 DECLARATIONS MADE IN THE COURSE OF DUTY ........................................................................................ 97

10.5 REFERENCES AND RECOMMENDED READING............................................................ 97

UNIT 11 ................................................................................................................................................ 98

CONFESSIONS .......................................................................................................................................... 98

11.0 INTRODUCTION ......................................................................................................................... 98

11.1 OBJECTIVES .............................................................................................................................. 98

11.3 REFLECTION.............................................................................................................................. 98

11.4 DEFINITION................................................................................................................................. 98

11.5 ADMISSIBILITY OF CONFESSIONS IN CRIMINAL TRIALS ................................................ 99

11.6 THE TRIAL WITHIN A TRIAL (VOIRE DIRE) .......................................................................... 99

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11.7 ADMISSIBILITY TEST ............................................................................................................. 100

11.7.1 INDUCEMENT .................................................................................................................................. 101

11.7.2 ADMISSIBILITY AND DISCRETION ................................................................................... 102

11.8 IMPLICATIONS OF CONFESSION ON CO- ACCUSED ...................................................... 103

11.9 EVIDENCE OBTAINED IN CONSEQUENCE OF AN UNLAWFUL ACT OR INADMISSIBLE

CONFESSION ................................................................................................................................... 104

11.10 SELF ASSESSMENT ............................................................................................................. 104

11.11 REFERENCES AND RECOMMENDED READINGS .......................................................... 105

UNIT 12 .............................................................................................................................................. 106

DOCUMENTARY EVIDENCE .................................................................................................................... 106

12.0 INTRODUCTION ....................................................................................................................... 106

IN THIS UNIT, YOU WILL BE INTRODUCED TO RULES OF LAW GOVERNING

ADMISSIBILITY OF DOCUMENTARY EVIDENCE IN COURTS OF LAW. YOU REQUIRE AT
LEAST 60 MINUTES COMPLETING THE UNIT............................................................................ 106

12.1 OBJECTIVES ............................................................................................................................ 106

12.3 ACTIVITY................................................................................................................................... 106

12.3 DEFINITION OF DOCUMENT ................................................................................................. 106

12.4 THE PERSON TO ADDUCE DOCUMENTARY EVIDENCE ................................................ 108

12.5 PROOF OF ATTESTATION AND EXECUTION OF PRIVATE DOCUMENTS.............. 108

12.6 PRESUMPTION RELATING TO DOCUMENTS .................................................................... 109

12.7 ADMISSIBILITY OF EXTRINSIC EVIDENCE ........................................................................ 110

12.8 REFERENCES AND RECOMMENDED READINGS ............................................................ 111

UNIT 13 .............................................................................................................................................. 112

PROOF OF FACTS WITHOUT EVIDENCE .................................................................................... 112

7.0 INTRODUCTION ......................................................................... ERROR! BOOKMARK NOT DEFINED.

7.1 PRESUMPTIONS........................................................................................................................ 113

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 7.1.1 REBUTTABLE PRESUMPTIONS OF LAW .................................................................................................... 113
7.1.2 IRREBUTTABLE PRESUMPTIONS OF LAW .................................................................................................. 114
7.1.3 PRESUMPTIONS OF FACT ..................................................................................................................... 114
7.1.4 DIFFERENCES BETWEEN PRESUMPTIONS OF FACT AND PRESUMPTIONS OF LAW.............................................. 115

7.2 JUDICIAL NOTICE ..................................................................................................................... 115

7.2.1 FACTS JUDICIALLY NOTICED WITHOUT INQUIRY ......................................................................................... 116

7.2.2 FACTS JUDICIALLY NOTICED AFTER INQUIRY.............................................................................................. 116
7.2.3 STATUTORY PROVISIONS ...................................................................................................................... 116
7.2.4 PERSONAL KNOWLEDGE ...................................................................................................................... 116

7.3 ESTOPPEL .................................................................................................................................. 117

15.1 ESTOPPEL BY RECORD........................................................................................................................... 118

15.2 ESTOPPEL BY DEED .............................................................................................................................. 119
15.3 ESTOPPEL BY CONDUCT ........................................................................................................................ 119

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ACKNOWLEDGEMENTS

The University of Zambia (UNZA), Institute of Distance Education (IDE) wishes to

thank MS FELICITY KAYUMBA KALUNGA for writing this module, Law 3011:
Law of Evidence.

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MODULE STRUCTURE

I. Introduction
II. The Aim of the Module
III. Module Objectives [Learning outcomes]
IV. Assessment
V. Prescribed and Recommended Readings
VI. Time frame
VII. Study skills [Learning tips]
VIII. Need help [Studying at a distance]

The module is divided into nine units. Each unit addresses some of the learning
outcomes. You will be asked to complete various tasks so that you can
demonstrate your competence in achieving the learning outcomes.

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INTRODUCTION

Welcome to the Module on the Law of Evidence (Law 3011).

“Objection my Lord.” Have you ever observed court proceedings and wondered
what this phrase means or why and when it is used? As a lawyer, one the things
that will challenge you in your career is learning the skill of how to present your
case in court. How do you present your information to court to prove your case?
When is it time to object to information and why?

The information presented to court to support one’s claim is what is called

evidence. The law of Evidence equips you with theoretical founding knowledge
that helps you respond to the following questions, including: what evidence is
admissible in court? What are rules govern admissibility of evidence? What
would amount to sufficient evidence?

This module will equip you with the relevant knowledge on the usual fundamental
questions of relevance and the admissibility of evidence. It also explains the
concepts of burden and standard of proof and presumption of innocence as
founding principles of the law of evidence in criminal cases. It gives you the basic
understanding of the differences in law and practice of evidence in civil and
criminal proceedings in court.

This is a procedural law course. We assume that at this stage, you would have
successfully completed the second year foundational courses including Legal
Process, Law of Torts, Law of Contract, Family law, Constitutional Law and
Criminal Law. We will rely on your knowledge in substantive law covered under
the second year series.

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We hope that you will reflect on the content and activities in this module coupled
with your experience in the areas of specialization to develop competencies to be
able to successfully explain and analyse rules and the law of evidence.

Aim

The aim of this module is to familiarise you with the usual fundamental questions
of evidence and the admissibility of evidence in courts of law. It will also equip
you with sufficient knowledge to help you analyse the basic principles of burden
and standard of proof and the in civil and criminal proceedings. You will also be
encouraged to think about and reflect on your successes and difficulties of the
application of all the aspects of each unit.

Objectives

By the end of this course, you should be able to:

i) Explain various legal rules of admissibility of evidence in courts
ii) Explain how relevant and admissible evidence is presented and assessed
By courts in litigation.
iii) Apply principles of law of evidence in civil and criminal litigation
iv) Identify relevant evidence and know which evidence can be admitted in
Court in accordance with rules of evidence.

Assessment

Your work in this module will be assessed in the following three ways:
 One test worth 20%
 A written assignment worth 10%.

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  A written examination set by the University of Zambia at the end of the
module (worth 70 per cent of the final mark). In summary, you will be
assessed as follows-
Continuous Assessment: 30%

1 test 20%
1 written assignment 10%
Final Examination: 70%

Prescribed Readings

1. R. Cross & C. Tapper 1985 Cross on Evidence, 6th Edition London:

Butterworths & co.
2. Cross & Wilkins & Tapper 1986 Outline of the Law of Evidence 6th Edition
London: Butterworths
3. J.Hatchard and M. Ndulo 1991 The law of evidence in Zambia: Cases and
Materials Lusaka: Multimedia publications

Recommended Readings

1. G.D. Nokes 1962 Introduction to evidence 3rd edition London: Sweet &
Maxwell
2. Hodge Malek, Ed 2003 Phipson on Evidence 15th Edition London: Sweet
& Maxwell

Apart from this module, you are expected to read widely around all the topics
covered in the module. You may find the references provided at the end of each
unit useful, but you could also explore other sources of information, particularly

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the Laws of Zambia and law reports, particularly Zambia Law Reports and law
reports from other jurisdictions. You could also find useful information in Journals
and Internet sources which have invaluable information.

Time frame
You are expected to spend at least 60 hours of study time on this module. In
addition, there shall be arranged contacts with lecturers from the University from
time to time during the course. You are requested to spend your time judiciously
so that you reap maximum benefit from the course.

Study Skills
You may not have studied by distance education before. Here are some simple
tips for you to follow which will help you do better in your learning and keep you
focused-

1. Set goals such as: I will succeed in this course. At the beginning of the
module, break the lessons into manageable chunks. You might not have
time to do a full lesson in one night, so plan how much you can do, then
stick to it until you are done.
2. Establish a regular study/learning schedule
3. Determine what time is best for you to study
4. Have a dedicated study place with all the supplies you might need
5. Tell people what you are doing because only then are you more likely to
stick to a course.
6. Ask someone to proofread your work before you submit it.
7. Reward yourself with whatever work for you, along the way.
8. If you do not understand something ask your local learning centre or your
tutor, who will be able to help you.

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 9. Search for the meaning of principles and concepts instead of just
memorizing
10. Apply the principles learnt to practical exercises and activities given in the
module

Need help?

In case you have difficulties during the duration of the course, please get in touch
with the Director, Institute of Distance Education, or the resident lecturer in your
province.

All enquiries in connection with the payment of fees should be directed to the
Director, Institute of Distance Education:

The Director,
Institute of Distance Education,
University of Zambia,
P. O. Box 32379,
10101 Lusaka

Coordinator, Learner Support Services (Land Cell): +260 978772248

Senior Administrative Officer
(Programme Development & Production) +260 977639993
IDE Land Line: +260 211 290719
IDE Fax: +260 211 290719
IDE E-mail: director-ide@unza.zm
http://www.unza.zm

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 Unit 1

INTRODUCTION TO THE LAW OF EVIDENCE

1.0 Introduction

In this unit, you learn the definition of evidence and sources of law of evidence.
You will gain an appreciation of the importance of studying the law of evidence in
your training as a lawyer. You will require at least 90 minutes to study this unit.

1.1 Objectives

By the end of this unit, you should:

 Define evidence
 Know the sources of the law of evidence in Zambia
 Explain the value of the law of evidence
 Be able to identify different types of evidence that can be presented before
court

1.2 Reflection

Have you ever thought about the meaning of ‘evidence’? What do you think is the
study of the law of evidence? Where can we find the law of evidence? Well,
whether you have ever considered the above questions or not, kindly posse a
while, reflect and write down your answers to the above questions.

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We want to imagine that in your definition, you focussed on oral presentations
made by a witness in a court of law. This is only a type of evidence known as
testimony.
We also want to imagine that you wrote down some of the sources of law in
general as you learnt in your module in legal process. We also appreciate that
you could have had difficulty appreciating how some of the sources of law you
identified could be applied to evidence. In this unit, you will learn that the term
evidence means much more than testimony. We build up on that definition and
discuss the various forms that evidence takes. We hope you will have a clearer
understanding of the term evidence and examples or types of evidence at the
end of this unit.

1.3 Definition of Evidence

As we have earlier stated, in your critical reflection section, the word evidence
has no one definition but has been given several definitions. The following are
some of the definitions given by eminent writers.
 R. Cross and C. Tapper in their book, Outline of the Law of Evidence,
define evidence as that which tends to prove facts in issue
 I.H. Dennis, in ….defines it as information which provides for belief that a
particular fact or set of facts is true
 Professor Phips defines it as that which may be placed before the court in
order that it may decide issues of fact.

Based on the above descriptions, evidence may therefore be defined as

information (facts, documents, objects) which are presented to court to inquire
into the existence or not of facts in issue for the determination of the court.
1.4 Why do we study the Law of Evidence?
The law of evidence is that body of law which regulates the means by which facts
may be proved in courts or tribunals that follow strict rules of evidence. It is

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procedural law, which deals with procedure for enforcing rights and obligations of
parties under the law, as compared to sustentative law, which defines rights and
obligations of parties under the law.

In litigation, the ideal situation is to have the court take into account all evidence
that is relevant to the dispute using all available resources. However, in an
adversarial system, like ours, the role of the judge is to decide or inquire into
facts that are brought before court. This inquiry is also limited by constraints of
time and expense. Also, because of the nature of the adversarial system, parties
supplying evidence will focus more on winning the case than finding the truth. In
so doing, they may bring false information, mistaken information, and sometimes
information that tends to prejudice or embarrass the other party to court.

The main object of the study of the law of evidence is therefore to ensure that
relevant evidence is brought to courts using the least expensive, fair and efficient
means. Lawyers must learn the rules of the law of evidence to enable them
affectively represent their clients in the courts of law within the above stated
structure limitations. Furthermore, the law of evidence comprises rules of law
which exclude relevant evidence for various reasons including, insufficiency, and
lack of probative value, prejudice and public interest among others.

1.5 Sources of Law of Evidence

There are several sources of law of evidence. The following is list of some of the
main sources, some of which you will be referring to in the course of your study
of the course:

1.5.1 The Constitution of Zambia, Chapter 1 of the Laws of Zambia

Article 18 of the Constitution contains provisions on protection of the rule of law
and right to a fair trial which are relevant to the law of evidence, including,

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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, among other provisions.

1.5.2 Acts of Parliament

Several statutes prescribe procedural rules for commencement of court
proceedings, burden of proof, requirement for corroboration, and so on.
There are also statutes that contain general provisions that are important to the
law of evidence. In this course, some of the statutes we will use include:
 Criminal Procedure Code, Cap 88 of the Laws of Zambia;
 Juveniles Act, Cap 53 of the Laws of Zambia (as Amended by Act
No. 3 of 2011);
 Evidence Act, Cap 43 of the laws of Zambia;
 Evidence ( Bankers Books) Act, Cap 44 of the Laws of Zambia;
 Subordinate Courts Act, Cap 28 of the Laws of Zambia;
 High Court Act, Cap 27 of Laws of Zambia;
 Supreme Court Act, Cap 25 of the Laws Zambia.

1.5.3 Common Law

A lot of principles of the law of evidence are found in the common law principles.
You will note that the Zambian Evidence Act is short statute and does not provide
for many rules of evidence. Common law is therefore an invariable source of law
for the law of evidence. Under this, you will also discover that courts exercise
their inherent jurisdiction to ensure that court proceedings are conducted in a fair
and efficient manner. The court will also exercise its inherent jurisdiction to
observe the demeanour of witnesses in assessing the weight of evidence as you
will learn in the next unit when considering the best evidence rule.

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1.5.4 Judicial Precedents
Judicial precedents from Zambia and other common law jurisdictions also
provide an invariable source of law for the law of evidence. Judicial precedents
contain pronouncements of how the courts interpret statutory provisions as well
as well as develop the common law.

1.5.5 Text Books or writings of eminent writers

Commentaries from eminent writers are also an important source of the law of
evidence as they explain principles of law as well provide a theoretical basis for
advocating for law reform and implementation.

1.6 Principal items of judicial evidence

Under this section, you learn what is meant by facts that ought to be proved in
court to succeed in your case. You also understand what evidence suffices to be
proof of a fact in court. 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. At the
end of this module, you will learn that not all issues require production of
evidence and that not all information can be admitted in court as evidence.

1.6.1 Facts open to proof or disproof

Litigation almost always involves disagreement on facts on which parties seek a
determination by court. The facts open to proof or disproof can be grouped as:
 Facts in issue;
 Relevant facts; and
 Collateral facts.

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1.6.1.1 Facts in Issue
By facts in issue, we mean facts or information that a party to proceedings 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. They are also known as principal facts (factum
probandum) which must be proved. Examples of these include;
 facts that the prosecutor (in a criminal case) must prove to secure a
conviction;
 facts that a plaintiff (the person who brings a claim to court in a civil
matter) must prove to get a judgment in their favour;
 facts which the defence (the accused person in a criminal case) must
prove to successfully escape criminal liability; and
 facts which a defendant (a person against whom a claim is made in a civil
case) must prove to establish a successful defence.

These facts are also referred to as questions of law. You will heavily depend on
your knowledge of substantive law to identify these facts in any given case.

The nature and number of facts in issue in a case are determined partly by
substantive law, as above stated, and partly by what parties allege, admit or
deny. For example, in a civil matter, as you will learn from your module in civil
procedure, the nature and number of facts in issue are set out in a statement of
claim or defence respectively. A statement of claim is a document which defines
the scope of the plaintiff’s claim against the defendant while a defence is a
document which defines the scope of the defendant’s defence against the
Plaintiff’s claim. Where certain material facts or facts in issue are not so stated in
a statement of claim or defence, the Court may give a summary judgment striking
out the statement of claim on grounds that it does not sufficiently disclose a
cause of action. Similarly, where a defendant does not deny or traverse an

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allegation in a statement of fact, he/she will be taken to have admitted it as such
it will not be required to be proved by evidence in court.

Examples of facts in issue include:

i) Elements of the crime of murder
ii) Elements of the tort of negligence
iii) Elements of the defence of contributory negligence

Further, rules of pleading guide practitioners on what facts must be included in

what claim. (This is a subject of Practical Civil and Criminal Procedure taught at
ZIALE for those of you who wish to practice at the Advocates on the Zambian
Bar).

Here is a practical example of what facts are in issue in a case of personal

damage as a result of negligence in a road traffic accident:
The plaintiff must, in a statement of claim, state facts that show;
 That the accident happened;
 the date and time when it happened;
 sufficient description and identification of the motor vehicle involved with
reasonable certainty;
 that the accident was caused by the negligence of the defendant;
 that the defendant owed the Plaintiff a duty of care and that the duty of
care was breached by the Defendant.

Activity

Using the above information and example, list the facts in issue you would
include in a statement of claim for libel.

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1.6.1.2 Relevant Facts
These are sometimes referred to as facts relevant to facts in issue. They are
concerned with facts as evidence of other facts. If only facts in issue are the ones
to prove, many defences would fail. For example if the only fact to be proved is
that A’s motor vehicle run over B, it would be sufficient to bring an eye witness
who saw the vehicle running over B. However, the presence of skid marks on the
wrong side of the road, the testimony of the doctor who tested B for alcohol, will
be relevant to establish that A was in fact not negligent as there was no breach of
the duty of care. Such evidence will show, by the skid marks, that A had done
everything possible to avoid hitting B notwithstanding that he deliberately walked
in front of A’s motor vehicle. That evidence of relevant facts is known as
circumstantial evidence. Where a party to proceedings seeks to establish a
relevant fact the existence of which is denied by the opponent, the relevant fact
may also be said to be a fact in issue requiring proof of such fact.

Relevant facts, unlike the facts in issue which are governed by substantive law
and rules of pleading, are governed by the law of evidence. One of the functions
of the law of evidence is to control and direct the process of bringing relevant
facts to court by providing rules and regulations on how these facts may be
proved in the most fair, effective and efficient manner.

1.6.1.3 Collateral Facts

These are also referred to as subordinate facts. These are facts that affect
admissibility and weight to be attached to evidence. They are three kinds namely:
 Facts affecting competence of witnesses. For example, a child below the
age of 14 must satisfy certain conditions under the law before their
evidence may be admitted in court.

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  Facts affecting credibility of witnesses. Examples include, evidence of
identification of an observation in the dark, a witness who makes
conflicting statements in examination in chief and cross examination
among others.
 Preliminary facts which must be proved as a condition precedent to the
admissibility of evidence tendered to prove a fact in issue or a relevant
fact. For example, the law of evidence requires that producing copy of a
document should only be allowed after showing proof that original has
been destroyed or cannot be found after due search.

You will fully understand the subject after you have studied the various rules of
admissibility of evidence in the following units.
Where a party to proceedings wishes to establish a collateral fact, the existence
of which is denied by the other, the collateral fact may also be a fact in issue.
Like relevant facts, collateral facts are also governed by the law of evidence and
not by substantive law. Further, collateral facts and relevant facts, though
important are not defined at the beginning of the matter as is the case with facts
in issue, but arise as the matter progresses. As, a lawyer, you should therefore
be well grounded in the law of evidence to ensure that your client’s case is well
represented throughout the proceedings.

1.6.1.4 Rationale for distinguishing the three facts

The above distinction of facts in issue, relevant facts and collateral facts is
relevant when it comes to exercise of judicial discretion and the approach that
appellate courts will take regarding findings of fact by the trial court. The
appellate court will usually not overturn a judgement based on a wrong finding of
facts or evidence. This is the category under which relevant facts and collateral
facts fall. It will however usually overturn a wrong finding of law or where the
finding or exercise of judicial discretion is not supported by the evaluation

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properly shown on record. The rationale for the reluctance in overturning
findings of facts based on collateral and relevant facts is that these matters arise
as the case progresses and are regulated by law of evidence and not the
substantive law. Because they arise as the matter progresses, the trial court is
better placed to exercise discretion as they would have had an opportunity to
receive evidence hear and observe witnesses which the appellate court has no
opportunity to do.

The above proposition has been stated in a number of decided cases including:

 Wilson Masauso Zulu v Avondale Housing Project Limited

(1982) Z.R. 172 (S.C.)
In that case, it was held, inter alia, that the appellate court will only reverse
findings of fact made by a trial court if it is satisfied that the findings in
question were either perverse or made in the absence of any relevant
evidence or upon misapprehension of the facts.
 Mbinga Nyambe v The People SCZ Judgment NO. 5 OF 2011
In that case, the Supreme Court, on the argument that the trail judge did not take
into account of the Appellant’s version of how the when the items found in his
possession were given to him, held that the trial judge was entitled to decide
whom to believe between the Appellant and the Prosecution witness, “PW1.”

1.7 Judicial Discretion

Another important concept you should appreciate in the introduction to the law of
evidence is judicial discretion which we mentioned is an exercise of common law
jurisdiction of the court. The justification for exercise of judicial discretion is to
ensure that proceedings are conducted in a just and efficient manner. The
exercise of discretion enables the court to do justice even where written law has
not made express provision. If evidence was either admissible or inadmissible,
the law would have been much straight-forward. However, the cost of clarity

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would have been rigidity and injustice. The judges is to include otherwise
inadmissible evidence or exclude otherwise admissible evidence unless
otherwise limited by statutory law. The inclusionary discretion is virtually non-
existent while the exclusionary discretion is exercised in civil matters in favour of
either party and in criminal matters in favour of the accused person.

In civil matters, the court has power to exclude marginally relevant evidence,
peripheral material as well limit cross examination in terms of type of questions
asked and time taken.

In criminal matters, exclusionary discretion is based on the judge’s power and

overriding duty to ensure that the accused person receives justice. In the
exercise of this discretion, a judge has authority to exclude legally admissible
evidence if in the judge’s opinion, such evidence’s prejudicial effect outweighs its
probative value. This discretion also includes discretion to exclude admissible
evidence that is obtained from the accused illegally. The exercise of judicial
discretion is subjective and is decided on a case by case basis. The guiding
principle is to ensure fair trial. Another guideline on the exercise of discretion is
that the discretion is only exercisable in relation to the prosecution’s evidence
and not that of an accused person. There is therefore no discretion to exclude
evidence of an accused person that tends to implicate a co-accused.

In terms of appeals, an appellate court will normally not overturn an exercise of

discretion by reason only of the fact that it would have arrived at a different
decision. The appellate court will normally uphold it provided that there is
material, on the record, on which the trial court properly exercised its discretion.

1.8 References and suggested Readings

Case Law

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 Mbinga Nyambe v The People SCZ Judgment No. 5 of 2011
Wilson Masauso Zulu v Avondale Housing Project Limited (1982) Z.R. 172
(S.C.)
R v Sang [1980] AC 402.

Books
Tapper, Collin. Cross and Wilkins Outline of the Law of Evidence, 6th ed.
London: Butterworths, 1786. (Chapter 1)
Cross, Rupert and Collin Tapper. Cross on Evidence, 6th ed. London:
Butterworth & co Publishers Ltd, 1985 (chapter 1 pages 16 to 49)
Keane, Adrian. The Morden Law of Evidence, 6th ed. New York: Oxford
University Press, 2006. (Chapters 1 &2)

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 UNIT 2

OBJECTS OF PROOF/CLASSIFICATION OF EVIDENCE

2.0 Introduction

In this Unit you learn about the different objects of proof or types of evidence and
some useful classifications of evidence. This information is important in that
helps you know what type of foundation or what conditions you should fulfil
before the court can successfully admit a particular object into evidence. It also
helps you determine the weight that the court would attach to particular evidence
as well avoid unwarranted objections to your evidence. You will require at least
60 minutes to successfully complete this unit.

2.1 Objectives

By the end of this unit, you should be able to:

i) Identify objects of proof and classify it in various classes of evidence

ii) Explain various requirements for sufficiency of proof for each class of
evidence.

iii) Explain the fundamental principles of relevance and admissibility of

evidence.

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2.2 Reflection

Remember the definition of evidence in unit one which we identified has no

single definition. Did you try to identify what objects or information can act as
proof of facts in issue? Why do you think it is important to classify evidence in
different types and categories?

2.3 Objects of proof

In unit 1, we defined evidence as objects, information that is produced in court to
prove facts requiring proof. The facts requiring proof may be proved by
testimony, documents, things, circumstantial evidence and other evidentiary
facts. These are also known as types or classes of evidence and they are called
differently by different writers depending on their form and what they achieve in
providing proof of facts in issue. These objects discussed below in detail.

2.3.1 Testimony
This is a statement of a witness offered as truth of what is stated. It may be oral
or written. 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 unreliable
evidence or evidence of things they have not personally experienced. Some of
those rules include the requirement to take oaths or affirmations, assessing the
competence of witnesses, cross examination and the law on criminal conviction
for perjury.

2.3.2 Documents
Documents contain information that is relevant to prove facts in issue.

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Documents can be offered as real evidence of things contained in them (e.g.
Terms of a written contract), or as to explain something that is contained in a
document. Section 2 of the Evidence Act, Cap 43 of the Laws of Zambia, defines
documents as includes maps, etc. on which information is stored. In this respect,
the definition also covers electronic information. Different rules are required to lay
foundations for admission of different types of documentary evidence.

2.3.3 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 have been
stolen by the accused in a criminal matter. Another important example to note
under this class is view or re-enactment of a scene. Occurrences at a view are
part of evidence as though item viewed out of court was actually brought into
court. As earlier stated, documents may also fall under this category when the
classification is based on type of evidence. You should also note that real
evidence may not reliable on its own unless it is accompanied by testimony
which explains its value or use to the proceedings.

2.3.4 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. We will spend some time on this type
because the special rules of law regulating its admissibility into evidence.
Circumstantial evidence does not, on its own, provide sufficient proof of facts to
be proved. In the case of DPP v Kilbourne [1973] AC 729 at 758, Lord Simon
state that: ‘Circumstantial evidence is like a rope comprised of several codes.
One strand may be insufficient to sustain the weight but 3 stranded together may
be quite of sufficient strength.’

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Examples of circumstantial evidence include:
 Continuance
Evidence that tends to show that a of a state of affairs existing at a time
before or after 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. Relevance will vary form case to case.
 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.
 Knowledge or capacity
For example, a person’s knowledge of cutting up bodies may be
admissible in a murder case as to means of the use of such skills.
 Opportunity
For example, presence of accused at the place and time of the crime
makes it probable that he/she could have committed the crime. This
evidence is received on the premise that evidence of circumstances
existing contemporaneously with transaction in which the court is inquiring
renders facts in issue more probable.
 Identity
Facts which help establish the identity of a person are admitted as
circumstantial evidence of the fact the person is in fact the one who did
something e.g. Fingerprints, DNA samples.
 Odd coincidences. For example, if a person begins running upon seeing
the police near a scene of a crime, the running could supply circumstantial
evidence of their guilt.

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In terms of value, circumstantial evidence must be narrowly examined so that a
court must only convict on it if it produces only an inference of doubt.
This position has been upheld by the courts in a number of cases including the
following:

 David Zulu v The People (1977) Z.R. 151 (S.C.)

In that case, 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 06:00 and 07:00 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.

The Supreme Court held that:

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.

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 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.

Based on the above principles, the court found that the circumstantial evidence
received at the trial did not succeed in taking the case out of the realm of
conjecture, and were of the opinion that the danger of drawing an erroneous
inference had not been dispelled by the trial court. On that basis, the court
upheld the appeal and acquitted the appellant.

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

In this case, unlike David Zulu, cited above, the court found that the
circumstantial evidence against the accused was so strong that it removed the
case outside the realm of conjuncture.

2.4 Conclusion

In this unit, you have learnt the different types of evidence or objects of proof that
can be submitted to court. You have also learnt, briefly, the different legal
requirements that require to be fulfilled for each type of evidence to be admitted
depending on what you seek to prove with that evidence. We spent some time
discussing circumstantial evidence which has special rules of admission, namely
that the court should only convict on it (in a criminal offence) when is so
overwhelming as to eliminate the danger of drawing a false inference form it.

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2.5 References and Recommended Readings
Case Law
Buckingham v Daily News Ltd [1956]2 All ER 904
David Zulu v The People (1977) Z.R. 151 (S.C.)
Joy v Philips, Mills & Co Ltd [1916] 1 KB 849
Khupe Kafunda v The People (SCZ JUDGMENT NO. 5 OF 2005)
Mbinga Nyambe v The People SCZ Judgment No. 5 Of 2011
Books
Tapper, Collin. Cross and Wilkins Outline of the Law of Evidence, 6th ed.
London: Butterworths, 1786. (Chapter 8)
Cross, Rupert and Collin Tapper. Cross on Evidence, 6th ed. London:
Butterworth & co Publishers Ltd, 1985 (chapter 1 pages 16 to 60)
Keane, Adrian. The Morden Law of Evidence, 6th ed. New York: Oxford
University Press, 2006. (Chapters 2)

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 Unit 3

RELEVANCE, ADMISSIBILITY AND WEIGHT OF EVIDENCE

3.0 Introduction
In this unit, you will be introduced to the fundamental concepts of relevance,
admissibility and weight of evidence to build up what you have learnt so far. You
will require at least 60 minutes to successfully complete this unit.

3.1 Objectives
By the end of this unit, you should be able to:
i) Explain what is meant by relevant and admissible evidence;
ii) Identify what the guides the court in evaluating evidence once admitted by
court.
iii) Identify the best possible evidence to produce to court to assist in
ensuring litigation is conducted in the most effective and least expensive
way. trace the methods used in the study of psychology
3.2 Reflection

What do you understand by best evidence? When would the court exclude
evidence on grounds it is too remove or prejudicial?

3.3 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.

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The following are some of the guidelines for determining what evidence may be
relevant to prove a fact in issue.
 Remoteness
Remoteness refers to how closely or remotely connected the evidence
sought to be admitted is to the fact requiring proof. The court must draw a
balance between 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. The
probative value of evidence is a determination of how probable it is that A
did something that is alleged, by looking at the evidence adduced. For
instance, to prove that A stole B’s car, how probable is it to infer that A
stole the car, by examining a document purportedly signed by B showing
that A had in fact hired the particular vehicle from B on the day it is alleged
to have been stolen?
3.4 Admissibility
Admissibility relates to the legal relevance of evidence. While relevance depends
on logic and 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 the parties to litigation. For
example, the law excludes self-incriminating statements form admission unless
those statements are made freely and voluntarily.

Not all relevant evidence is admissible in court. Examples include:

 Facts in issue, relevant facts or collateral facts are not always admissible if
they have the effect of making a direct assertion or denial of the allegation
as they may involve drawing of inferences, which is properly the function
of the court. Parties must therefore refrain from alleging fact which draw a
conclusion on a matter which they seek the court’s decision.

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  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.
 Exclusionary rules of evidence exclude certain types and categories of
evidence form admission on grounds of, precedent and public policy. In
the coming units, you will look at some of the exclusionary rules of
evidence with more detail. Examples include, the rule against hearsay,
special rules on admissibility of evidence of character and evidence of
opinion among other things.
3.5 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 amount to evidence and for what purpose?

3.6 Activity
Answer the following questions:
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.

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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?

3.7 References and Recommended Readings

Case Law
Buckingham v Daily News Ltd [1956]2 All ER 904
David Zulu v The People (1977) Z.R. 151 (S.C.)
Joy v Philips, Mills & Co Ltd [1916] 1 KB 849
Khupe Kafunda v The People (SCZ JUDGMENT NO. 5 of 2005)
Mbinga Nyambe v The People SCZ Judgment No. 5 of 2011

Books
Tapper, Collin. Cross and Wilkins Outline of the Law of Evidence, 6th ed.
London: Butterworths, 1786. (Chapter 8)
Cross, Rupert and Collin Tapper. Cross on Evidence, 6th ed. London:
Butterworth & co Publishers Ltd, 1985 (chapter 1 pages 16 to 60)
Keane, Adrian. The Morden Law of Evidence, 6th ed. New York: Oxford
University Press, 2006. (Chapters 2)

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 Unit 4

BURDEN OF PROOF AND STANDARD OF PROOF

4.0 Introduction
In this unit, you will understand the fundamental evidential principles of burden of
proof and standard of proof. You also understand the differences in obligations to
prove a case between civil proceedings and criminal proceedings. You will
require at least 60minutes to study this unit.

4.1 Objectives
By the end of this unit, you should be able to:
i) Explain the principles of burden and standard of proof in the law of
evidence.

ii) Explain how burden and standard of proof determine the sufficiency of
evidence you should produce to prove a fact requiring proof in any given
case.
4.2 Reflection
Imagine you bring a claim against your neighbour for nuisance. What extent do
you have to go to show the court that your neighbour is actually liable? What
sought of evidence must you bring and how much? What principle of law of
evidence would guide you in responding to the above questions?
4.3 Burden of proof
The phrase “burden of proof” refers to the obligation on a party to satisfy the
court to a specified standard 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. This is based on the common sense
assumption that it is easier to prove something in the affirmative than the
negative.

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For example, in a tort of negligence in which the Defendant claims contributory
negligence, the obligation to prove negligence lies with the Plaintiff while the
Defendant has the burden of proving contributory negligence.

The practical importance of the concept of burden of proof is fourfold:

 It can determine the eventual outcome of the proceeding. This would be a
determination of whether the party has successfully discharged the burden
of proof to the required standard to warrant a judgment in their favour after
analysis of all evidence produced in court.
 It helps determine which party has the right to begin adducing evidence in
court. As a general rule, the person on whom the burden lies to convince
the court of a fact in issue has the right to call their evidence first. In civil
cases, it would have to be the Plaintiff and in criminal cases, the
prosecution.
 Another important occasion in which the principle comes to play is
determining the circumstances under which a defendant, in a criminal
matter, may make a successful submission of no case to answer at the
close of the prosecution’s case.
 The principle is also important when it comes to summing up of the case
for purposes judgment. The will have to evaluate the evidence to
determine whether or not it is sufficient to prove facts in issue.
The question whether or not a party has discharged the burden of proof is only
considered at the close of the case after the parties have given their evidence.
The phrase burden of proof has come to be understood in two distinct ways,
namely, legal burden and evidential burden.

4.3.1 Legal burden

This is the obligation imposed on a party by a rule of law to prove a fact in issue.
This burden of proof is discharged by pleading in a statement of claim or
defence.

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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.

4.3.2 Evidential burden

This is the burden that a party has to adduce evidence to prove a fact requiring
proof. In other words, it is the obligation to show that there is sufficient evidence
to find the existence or non-existence of a fact in issue in accordance with the
required standard. Some writers have argued that this should not strictly be
referred to as a burden of proof as it can be discharged by production of
evidence that falls short of proof. This burden is discharged when there is
sufficient evidence to justify a favourable finding. The onus in this case rests on
the party who would lose if no evidence at all or no more evidence is called on
the other side.

4.4 incidence of burden of proof

Under this section, you will learn that the incidence of burden of proof
substantially differs in civil and criminal proceedings.

4.4.1 Criminal cases

In criminal cases, the burden of proof rests entirely with the prosecution. The
prosecution has the legal and evidential burden to prove all elements of the crime
regardless of the accused person’s defence. This principle was explicitly stated in
the case of Woolmington v DPP [1935] AC 462.
In that case the accused was charged with the murder of his wife. He claimed
that he had short his wife by accident. The trial judge directed the jury that once it
had been established that the accused had shot his wife, he bore the burden of
disproving malice aforethought.

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The House of Lords held this to be misdirection. Lord Sanky LC, formulated the
classic principle that ‘throughout the web of English criminal law, one golden
thread is always to be seen, that it is the duty of the prosecution to prove the
prisoners guilt subject to … the defence of insanity and also any statutory
exception.’

The exception to the above rule is where the accused introduces new things in
his defence such as self-defence, automatism and provocation.
In such cases, the accused person bears the burden of producing evidence to
support the defence. The legal burden however remains with the prosecution to
disprove that defence to the required standard.

In 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. The Supreme Court held that:

1. In criminal cases, the rule is that the legal burden of proving every
element of the offence charged, and consequently the guilt 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.

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Another case in which the principle was discussed is Kazembe and Zebron v
The People (1969) Z.R. 22
In that case, the court stated, in reference to the statutory defence of
"automatism," that 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.

The prosecution also bears the evidential burden to satisfy the court that the
accused person should be put on their defence at the close of the prosecution’s
case. 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
satisfied that the prosecution has proved its case beyond reasonable doubt. This
is at the stage of submissions on a case to answer.

4.4.2 Civil cases

In civil cases, the burden of proof lies with the party who alleges in the
affirmative. It is satisfied when that party has established a prima facie case
against the other. Where the plaintiff establishes a prima facie case against the
Defendant, the burden shifts to the defendant to establish its defence.

4.5 Standard of Proof

Standard of proof can be defined as the extent to which a party discharges
burden of proof. Again, there are differences in the extent of proof required in a
civil and criminal matter.

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4.5.1 Criminal cases
In criminal cases, the standard set by law is proof beyond reasonable doubt. In.
Woolmington v DPP [1935] AC 462, it was held that proof beyond reasonable
doubt does not mean proof beyond a shadow of doubt. The relevant test is
whether or not the court can convict even if no evidence is called by the defence.
The standard is satisfied when the prosecution by its evidence has proved all
elements of the offence and that its evidence has not been discredited by cross
examination or that no reasonable doubt is created in the mind of the judge after
hearing evidence of the accused in defence. In criminal offences, the defence
has no obligation to prove their innocence; all you need to do as counsel for the
defence is create reasonable doubt.

4.5.2 Civil cases

In civil case, the standard is on balance of probabilities of preponderance of
proof. In Bater v Bater [1950] 2 All E.R. 458, Denning, L.J., used the following
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.'

The 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)

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4.6 factors affecting burden and standard of proof
There are factors that affect the general rules on burden and standard of proof.
We briefly look at these factors here. You will have a chance to examine some of
the factors in more detail in the following units.

4.6.1 Statutes
Statutes affect the burden of proof by shifting the burden to a party who would
not, under the common law general rules, bear the burden. Examples include
statutes creating offences of strict liability; statutes which give defences of facts
within the peculiar knowledge of a party such as provocation and self-defence.
See section 12(3) of the Penal Code, Cap 87 of the Laws of Zambia.

4.6.2 Presumptions
Presumptions of law in favour of a party give the burden on the party against
whom they operate to rebut it.
For example, in a claim for land which is subject of a title deed, there lies a
presumption that it is prima facie evidence of ownership. The burden is therefore
on a party who wishes to rebut the presumption to bring evidence to show that
title may have been wrongly acquired by proving fraud, for example. A good
example of the operation of presumptions in a criminal offence is the
presumption of innocence which casts burden of proof on prosecution to prove
an accused person’s guilt beyond reasonable doubt.
4.7 Activity
1. Having learnt what is meant by burden and standard of proof. Try and
answer the questions in the reflection above.In your own words, explain
what the standard of proof in civil and criminal cases.

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4.8 References and Recommended Readings
Case Law
Bater v Bater [1950] 2 All E.R. 458
C v C AND H (1977) Z.R. 12 (H.C.)
Castings Ltd v Wardlaw [1956]AC 613
Kazembe and Zebron v The People
Mwewa Murono v The People, SCZ JUDGMENT NO. 23 OF 2004
R v Putland & Sonrell [1946] 1 All ER 85
Robins v National Trust Co. [1927] AC 515.
Sablehand Zambia Limited v ZRA (SCZ JUDGMENT NO. 20 OF 2005)
Woolmington v DPP [1935] AC 462
Books
Tapper, Collin. Cross and Wilkins Outline of the Law of Evidence, 6th ed.
London: Butterworths, 1786. (Chapter 8)
Cross, Rupert and Collin Tapper. Cross on Evidence, 6th ed. London:
Butterworth & co Publishers Ltd, 1985 (chapter 3 and 4)
Keane, Adrian. The Morden Law of Evidence, 6th ed. New York: Oxford
University Press, 2006. (Chapters 4)

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 UNIT 5

WITNESSES
5.0 Introduction
In this unit, you learn about witnesses as a source of evidence known as
testimony. Witnesses are the major media by which evidence is brought to court.
Testimony is an assertion of a witness in court offered as evidence of the truth of
that which is asserted. A discussion on witnesses helps you understand the
weight that the court will attach evidence adduced by witnesses as well identify
and prioritise the witnesses you want to present to court and in what order. Some
of the important considerations you will learn in this unit include: competence and
compellability of witnesses, the nature and importance of oaths and affirmations,
credibility and reliability of witnesses as well as instances when the court must
decide whether or not corroboration of evidence will be necessary by law or
practice. You will require at least 180 minutes to successfully complete this unit.

5.1 Objectives
By the end of this unit you should be able to;
 Explain competence and compellability of witnesses. Which witnesses are
special witness and require more or additional evidence to support a
finding;
 Explain the special classes of witnesses’ testimonies which require some
condition precedent before admission of their testimony or which witness’
testimony must be taken with caution.
 Authenticating testimony and explain the importance and value of oaths
and affirmations
Examine witnesses in court through the usual stages of examination
 Explain legal principles of corroboration and care warnings.

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5.2 Activity
 What do you understand by the term witness?
 Who can be a witness? Are there any limitations on persons who can be
witnesses?
 What type of evidence do witnesses give?
 Describe the processes through which witnesses go when giving evidence
in court.
5.3 Choice and order of calling witnesses
There is a general rule that respects the autonomy of parties, in an adversarial
system, to call whichever witness they decide in whatever order. However the
rule only holds true for civil cases. In criminal cases, the prosecutor’s autonomy
to call whatever witness they wish may be limited by the court. The prosecutors’
duty is to do justice to the case. In executing that duty, they may be compelled to
make available evidence which they come across which could support the
accused peson'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), the court held, inter alia,
that:
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.

The court in that case upheld the holding of Lord Denning M.R. in the case of
Dallison v Caffery [1964] 2 All ER 610, where he stated, at page 618 that:
The duty of a prosecuting counsel or solicitor, as I have always
understood it, is this: if he knows of a credible witness who can speak to
material facts which [tend to] show the prisoner to be innocent, he must
either call that witness himself or make his statement available to the

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 defence…It would be highly reprehensible to conceal from the court the
evidence which such a witness can give.
If the prosecuting counsel or solicitor knows, not of a credible witness, but
a witness whom he does not accept as credible, he should tell the defence
about him so that they can call him if they wish.

Further, the Supreme Court of Zambia in Abel Banda v The People (1986) ZR
105 restated the autonomy of the prosecutor in the following words:
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.

5.4 Competence, Compellability and privilege of witnesses

Having made the choice of witnesses and what order you wish to call, the next
qualification you should consider is competence of a witness. There are certain
witnesses who are disqualified from giving testimony in court. There are also
classes of witnesses who may not be called as witnesses on grounds that they
have privilege and as such cannot be compelled to give testimony in court.
Generally, all persons are both competent and compellable except in exceptional
circumstances discussed below.

5.4.1 Competence
Competence relates to qualification of a witness to give evidence. Generally, all
persons are competent to testify either for or against a party to proceedings. The
law however places certain qualifications and restrictions on some categories of
witnesses based on interest, prejudice and capacity. 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 objectionable, his/her evidence may be excluded from the
record.

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5.4.1.1. 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. Though a person has disease of the mind, he or she is can be a
competent witness if the court is satisfied that the insanity does not affect his
ability to tell the truth. The relevant time for consideration is the time of giving
testimony. 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 they understand the nature of the oath and consequences of
falsehood. 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
Evidence of children is taken with caution because of the special nature of their
intellectual capacity. 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. The child
must be questioned to establish that s/he understands the obligation imposed by
an oath to tell the truth above the ordinary requirement. The child should possess
intelligence to understand that lying on oath attracts criminal liability. 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. This is
established in what is known as a voire dire, which is a preliminary examination
conducted by the court to satisfy itself about the competence of a child witness.
Some of the questions that may be asked include: “what becomes of a liar?” or
“is it good or bad to lie?”

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Section 122 of the Juveniles Act, Cap 53 of the Laws of Zambia, as amended by
the Juveniles (Amendment) Act No.3 of 2011, provides for viore dire in assessing
competence of a child of tender years i.e. below the age of 14. The Act provides
that where a child below the age of 14 is proposed as witness, the court shall
take the evidence on oath if, in the opinion of the court, the child possesses
sufficient intelligence to understand the nature of oath and the duty of speaking
the truth. If the court is not satisfied of the two conditions precedent set out
above, the court should not receive the testimony of such child. Further, if such
evidence is tendered by the prosecution, the court must not convict on such
evidence unless it has been corroborated by other material evidence implicating
the accused.

You should take note, as you read Zambian case, older than 2011 that the
common law, before the amendment Act did not prescribe the age of the juvenile.
The common law also permitted admission of unsworn testimony of a child which
position has been removed by statue.
R v Campbell [1956] All ER 272

5.4.1.2 Witnesses with an interest in outcome of the case

a) The Accused in criminal proceedings
The accused person is an incompetent witness for the prosecution, whether
prosecuted solely or jointly. An accused person is a competent witness for the
defence. S157 of the Criminal Procedure Code, Cap 88
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.

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In the case of The People v Mushaikwa (1973) Z.R. 161, it was held that:
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 Section 157 of the Criminal Procedure Code, the accused person’s spouse is
a competent witness for the defence on application by the accused. The section
also emphasises that a spouse is not a compellable witness as regards marital
communications. Another statutory provision that has changed the common law
provision on the competence of a spouse is the Juveniles Act, Chapter 53 of the
Laws of Zambia, which makes a spouse a competent witness with regards to
certain scheduled offences against children.

The rules restricting competence of a spouse also apply to a spouse of a person

jointly charged with the accused person. This position of law was affirmed in
Crispin Soondo v The People (1981) Z.R. 302, where it was held, inter alia,
that 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.

c) Accomplice
An accomplice is a person who I alleged to have committed an offence together
with the person who is being tried. An accomplice may give evidence for the

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defence in own case or for the prosecution where the accused persons are not
being tried by the same court. When such a person gives testimony, he/she will
be liable to cross examination.
There is however a cautionary rule of practice which requires that testimony of an
accomplice tendered on behalf of the prosecution should be corroborated by
other evidence. The requirement for corroboration was aptly set stated in the
case of Emmanuel Phiri & Others v The People (1978) Z.R. 79.

To render co-defendant or their spouses competent for the prosecution, the co-
defendant or accomplice must be acquitted or nolle prosecui entered in their
favour, or, they should 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 their being 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.

5.4.2 Compellability
Compellability as earlier discussed refers to the power of the court to compel a
witness to testify in court and attach sanction where such a witnesses refuses to
testify. All witnesses competent to give evidence are generally compellable to do
so. There are however exceptions on grounds on privilege and public policy.

The court may compel a witness to give evidence by subpoena or witness

summons.

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A ‘subpoena duces tecum’ compels a witness to attend court to produce
documents while a ‘subpoena testificandum’ compels a witness to attend court to
give testimony.

For more information on the operation of these subpoenas, read provisions of

Part VII of the High Court Act, Part VIII of Subordinate Court Act, Cap 28 of
the Laws of Zambia for civil cases, and sections 143 – 148 of Criminal
Procedure Code, Cap 88 for criminal offences.

Where a witness does not comply with a witness summons or subpoena, the
court may issue a warrant for the arrest of a witness upon proof of due service of
the subpoena. The court can also issue a warrant of arrest without issuance of a
subpoena where the court is satisfied that the person will not attend as witness
unless he/she is compelled to do so. There are also penal sanctions of a fine up
to 600 penalty units or in default imprisonment for 15 days for failure to attend
court as a witness without a reasonable excuse as provided by S148 CPC. Even
after being compelled to attend court, the law empowers courts to compel
witnesses to take oath and testify. 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

5.5 Privilege
There are certain classes of witnesses who cannot be compelled to give
evidence on grounds of privilege. The privilege also extends to a compellable
witness who can lawfully refuse to answer certain questions on grounds of
privilege. The privilege may relate the witness himself/herself or the evidence
propose dot be given. A witness is privileged when he/she cannot be compelled
to answer questions or present certain documents.

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We discuss the special categories of witnesses and information to which privilege
applies under this section.

5.5.1 Sovereign Immunity

The law recognises the immunity of sovereign states and their agents not to be
compelled to give evidence in courts of law on grounds of sovereign immunity.
Refer to the Diplomatic Immunities and Privileges Act, Cap 20 of the Laws of
Zambia.

5.5.2 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 differences being:
1. Where a person successfully claims privilege, he/she is entitled to refuse
to answer questions or disclose a document. There is no question of
weighing the claim of privilege against the value of the evidence at trial
2. The heads of privilege are upheld for the benefit of clearly identified
people. If these people choose to waive the privilege or fail to claim it, no
one else can claim it. On appeal, there would not be success if the
privilege for a non-party is improperly rejected.
3. A successful claim of privilege successfully prevents certain people from
being compelled to give evidence of particular matters but there will be no
objection to those matters being proved by other evidence, if available. On
the other hand, if a claim to public interest immunity succeeds, it will not
be possible to prove the excluded facts by any other means.
4. Privilege may be waived while public interest or policy is an absolute rule
as the public policy consideration is owed to the state which an overriding
consideration.

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The exclusion covers information that disclosure would cause harm to the nation
or public service. A court faced with a claim of public policy must conduct a
weighing exercise that necessarily involves:
 Assessing the public interest that harm shall not be done to the nation or
public service; and
 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.

In Heuff v Mbewe (1965) Z.R. 111 (S.C.), the Supreme Court held, inter alia,
that:
i) If the judge is in doubt as to whether a State interest justifies the
withholding of documents, he must uphold the State's objection.
ii) A document need not be produced by the State, either on discovery or at
trial, if the head of a Government department personally examines the
documents and certifies in good faith and on reasonable grounds
(which he must state) that disclosure of the document is contrary to
public policy.
iii) If a claim of State privilege is upheld, no secondary evidence as to the
contents of documents is admissible.

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 among other categories. Examples

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include Section 25(1) of the State Proceedings Act, Cap 70, which provides
for protection of state documents on grounds of public policy during discovery
and inspection of documents to be adduced as evidence in court; section 25(3) of
the State Proceedings Act which provides that the minister may order that a
document be withheld from production on grounds of privilege; and section 8 of
the National Assembly (Powers and Privileges) Act, Cap 12 of the Laws of
Zambia, which states that Parliament deliberations may not be produced without
leave of the House.

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 L.J. See also the case of Attorney-General v Mwaba (1975) Z.R.
218 (S.C.), where the Supreme Court stated, obiter, that:
(a) Many government servants may be required to swear an oath not
to divulge information, but this does not permit them to decline to give
evidence on these matters in court.
(b) A government servant can claim not to be obliged to give evidence
where the question is one of privilege, but a claim to privilege should not
be made and acceded to without proper foundation, and no basis for such
a claim was laid in this case.

Other public interest considerations may be based on the character of the source
of 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.

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5.5.3 Bankers
Bankers are generally not compellable witnesses with regards to account
information where the bank is not a party to proceedings. The law however
provides an exception where bankers can be compelled to disclose account
information following court order. (Refer to the Evidence (Bankers Books) Act,
Cap 44 of the laws of Zambia. S. 6 and 7).

5.5.4 Legal Professional privilege

A lawyer cannot be compelled or allowed without express consent of client to
disclose oral or documentary communications passing between the lawyer and a
client 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 needs exist as
long as a client consulted a professional lawyer. The privilege is of infinite period.
The protection is not lost after litigation.

This is based on the common law doctrine which enables a client to maintain the
confidentiality of:
a) Communications between layer and client - Protected material includes
legal advice to client, oral or written.
The communication must have made in the course of lawyer client
relationship or with the view of establishing one.
b) Communications between lawyer, client or potential witnesses, drafts etc
in preparation for litigation
c) Items enclosed or referred to in such communications - 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 protection does not however extend to:

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 a) Facts observed by lawyer even if done in the course of the relationship.
E.g. handwriting, condition in which client was or even identity of convicted
client in another matter;
b) Pre-existing documents that are not prepared for purpose of litigation even
if a client had sought advice on them; and
c) Advise intended to commit a crime;

The obligation is a continuing one even after termination of the retainer. It

also extends to staff in a law firm such as secretaries, orderlies although such
privilege will not apply to a person who overhears a conversation or obtains a
copy. Such person may be compelled to produce the document or testify.
A client is entitled to waive the privilege. After waiving it, one cannot reclaim
the privilege.

5.5.5 without prejudice communication

Communications between parties to facilitate out of court settlements are also
exempt from mandatory production into court if they are made without
prejudice to the parties’ withdrawal of certain positions asserted in them.
Without prejudice (in Latin - salvo jure), means “without loss of rights; in a
way that does not harm or cancel the legal rights or privileges of a party.”

The rationale is to encourage out of court settlements at which parties should

be allowed to make concessions, at times without admitting liability. A party to
civil proceedings cannot be compelled to produce communications marked
“without prejudice’ in court proceedings.

Communication between opposing parties to litigation does not attract

privilege. To facilitate alternative dispute resolution or negotiation, there is a
rule of law that allows parties to make concessions without prejudice to the
maker of the concession should the settlement attempt fail. The

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 communication remains privileged even after a settlement is reached unless
the privilege has been waived by the party wishing to produce them. They are
inadmissible in any subsequent litigation.

In Lusaka West Development Company Limited, B.S. K. Chiti (Receiver),

Zambia State Insurance Corporation V Turnkey Properties Limited
S.C.Z. Judgment No. 1 Of 1990, the Supreme Court of Zambia stated that
as a general rule, without prejudice communication or correspondence is
inadmissible on grounds of public policy to protect genuine negotiations
between the parties with a view to reaching a settlement out of court. The
same rule applies where a matter is being resolved by court annexed
mediation. (Read O31 r10 HCR, Cap 27)

5.5.5 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.

5.5.7 Incriminating information

A witness is protected from answering questions or producing documents 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. According to section 157 (vi) CPC Cap 88;
“a person charged and called as a witness, in pursuance of this section,
shall not be asked, and, if asked, shall not be required to answer, any
question tending to show that he has committed …any offence other than
that wherewith he is then charged….”

This exclusion is quite clear in criminal cases and also shows the object of the
law to prevent abuse of powers by police to interrogate persons in their custody
for cases for which they have no proof.

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It also reinforces the constitutional rights on the presumption of innocence until
proven otherwise as provided under Article 18 of the Constitution.

The challenge however comes with civil proceedings. In civil matters, documents
may be declared by parties during discovery and claims of privilege can be made
at that stage. The claim can also be made by a witness who has been
subpoenaed to give testimony or produce a document. In Blunt v Park Lane
Hotel [1942] 2 KB 253, Goddard LJ stated that “the rule is that no one is bound
to answer any question if the answer thereto would, in the opinion of the court,
would have a tendency to expose him to any criminal charge, or forfeiture which
the judge regards as reasonably likely to be preferred or sued for.

5.6 References and other Recommended Readings

Statutes
Criminal Procedure Code, Cap 88 of the Laws of Zambia, 143 – 148; 150; s.157
(vi)
High Court Act, Cap 27 of the Laws of Zambia, Part VII; Order 31 rule 10 High
Court Rules.
Juveniles Act, Cap 53 of the Laws of Zambia (as amended by The Juveniles
(Amendment) Act No.3 of 2011), Section 122
State Proceedings Act, Cap 70 of the laws of Zambia, Section 25(1)
Subordinate Court Act, Cap 28 of the Laws of Zambia, Part VIII

Case Law
Abel Banda v The People (1986) ZR 105
Asiatic Petroleum Co. Ltd v Anglo-Persian Oil Co. Ltd [1916] 1 KB 822
AT & T Istel v Tully & Others [1992] 3 All ER 523
Attorney-General v Mwaba (1975) Z.R. 218 (S.C
Blunt v Park Lane Hotel [1942] 2 KB 253

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Dallison v Caffery [1964] 2 All ER 610
Daniel Chizoka Mbandangoma and The Attorney- General (1977) Z.R. 334
DPP v Hester [1972] 3 All ER 1056 at p 1059
Heuff v Mbewe (1965) Z.R. 111 (S.C.)
Fraser v The People (1968) ZR 93 (H.C)
Katebe v The People (1975) ZR 14
R v Goodway [1993] 4 All ER 894)
R v Kemble [1990]3All ER 116
Shamwana & 7 others v The People (1985) ZR 41
The People v Mushaikwa (1973) ZR 161Manyepa v The People (1975) Z.R. 24
(S.C.)
Books
Black’s Law Dictionary, 8th Ed
Tapper, Collin. Cross and Wilkins Outline of the Law of Evidence, 6th ed.
London: Butterworths, 1786. (Chapter 8)
Cross, Rupert and Collin Tapper. Cross on Evidence, 6th ed. London:
Butterworth & co Publishers Ltd, 1985 (chapter 13)
Keane, Adrian. The Morden Law of Evidence, 6th ed. New York: Oxford
University Press, 2006. (Chapter 20)

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 UNIT 6

COURSE OF EVIDENCE IN COURT

6.0 Introduction
In the last Chapter, you looked at witnesses in general. The specific aspects
covered included, competence and compellability of witnesses including grounds
of privilege as an exception to general rule on compellability. In this chapter, you
look at what happens in court when a witness has been called. You will start with
the taking of an oath and affirmation and proceed to look at the procedure of
giving evidence. The last section looks at what you ought to do if a witness is not
cooperative, unwilling to give testimony that supports your client’s case or is
simply hostile. You will require at least 60 minutes to successfully study this unit.

6.1 Objectives
By the end of this unit, you should be able to:

 Explain the mechanisms under the law of evidence that ensure that
testimony is authentic and reliable.

 Explain the usual stages of examining witnesses in a court of law.

 Evaluate your witness and identify what courses of action to take ensure
that their testimony is reliable and helpful to your client.
6.2 Reflection
Have you ever observed a court hearing? Why do you think witnesses are asked
to swear on the bible before they start giving evidence? What type of questions
can you ask your witness? How do you challenge the evidence of your
opponent’s witness? Write down the answers to the above questions and rate
yourself after completing this unit.

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6.3 Swearing of Witnesses
In practice, witnesses remain outside the court room until it is their turn to give
evidence. There is no rule of law requiring witnesses to remain outside court but
it is practical rule that helps add more weight to their testimony when it has not
been influenced by previous witnesses.
The court when assessing testimony of witnesses should attach less weight to
the testimony of a witness who has been in court throughout trial. This rule does
not however apply to expert witnesses. One of the mechanisms by which
testimony is authenticated is by swearing the witness. A witness who has been
sworn gives sworn evidence. Swearing a witness can be done taking an oath or
affirmation.

6.3.1 Oaths and Affirmation

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. Sworn evidence is that 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 or it is not reasonably practical without
inconvenience or delay to administer in the manner appropriate to a person’s
religious belief, 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. Whether an oath has been
administered in a lawful manner does not depend on the intricacies of the religion
which is relied on by the witness but whether the oath is one which the witness
himself considers binding on his conscience. R v Kemble [1990]3All ER 116. In
this case, a Muslim had taken oath using the New Testament whereas under the
strict tenets of Islam, no oath that is taken by a Muslim is valid unless taken on a
copy of the Koran in Arabic.

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The form and manner in which an affirmation should be taken regulated by Part
VII of the High Court Act, particularly s. 36(1). 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.

Some witnesses are not by law required to swear or affirm. Witnesses called to
merely produce a document need not be sworn. E.g. Lands officer to present a
deeds printout.

A witness who false testimony on oath can be liable to criminal prosecution for
perjury – see Part XI of the Penal Code, Cap 87 of the Laws of Zambia.

6.4 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
solicited from the witness as well as to help the court try facts in the most
effective and just manner. There are rules regulating 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.

6.4.1 Examination in chief

This is the stage of proceedings when the witness is asked by the party who
called him to narrate the facts that they perceived with one of their senses.
Practically, a witness will be asked to give their particulars including name,
residential address and occupation. After stating their particulars, the witness is
asked to narrate facts which he/she perceived or experienced.

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The questions are relevant to guide the witness into narrating relevant facts. Your
knowledge on relevance will assist you in selecting appropriate questions to ask
during examination in chief. The questioning can be done by either asking open
ended questions to allow the witness to narrate the story freely or by asking
specific questions. Asking general questions is favoured as it allows the witness
to tell the story from their memory without counsel appearing to be guiding the
narration or possibly concocting the story. The danger with this method however,
is that the witness may refer to material that is legally inadmissible or dwell on
irrelevant material. The best is to combine general questions with specific ones at
intervals to allow the witness to stick to relevant and legally admissible testimony.
What is important is for counsel to assess the witness before trial to guide them
on what not to say and how to follow the chronology of the events. If the witness’
story is not flowing smoothly or the case involves complex material, the better
style is to ask specific questions.

You should note that during this stage, counsel must observe exclusionary rules
and guide the witness so that they do not give inadmissible and even self-
incriminating statements. Opposing counsel should also be alert so that they
object to admission of objectionable information. It is therefore that you
understand the law of evidence in order for you to successfully present your
client’s case.

During this stage of proceedings, the party or lawyer who called the witness is
not allowed to ask leading questions. Leading questions are questions that tend
to suggest answers. Some writers have argued that a question that requires a
‘yes’ or ‘no’ answer is ipso facto a leading question. Although one may tell a
leading question by its form, like the one requiring yes or no answer, one can
also tell a leading question by its content and context.

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For example, if one describes one alternative in a concrete manner and another
alternative in a vague manner, the natural inference by the respondent is to
assume the first alternative is suggested.

The rationale for restricting leading questions in examination in chief is that a

witness must not be influenced in the manner in which they narrate facts
perceived by them. Because the person who called the witness is the one asking
questions, there is a probable assumption that they owe it to that party to
respond in a certain way to help their case.
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.

6.4.2 Cross examination

This is the stage when a witness is asked questions by the opposing party or
their counsel. The object is to try and discredit the evidence of the witness and
test the witness’ credibility. During this stage, counsel is generally allowed to ask
any question but must be guided by the principles of relevance admissibility and
fairness.

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There is no restriction on asking of direct or leading questions during this stage.
The court may however interfere when cross examination is not proceeding in a
fair manner, including where counsel bullies the witness unnecessarily. 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.

6.4.3 Re- examination

The object of this stage is to rehabilitate the credibility of the witness which may
have been discredited during cross examination. The witness is given a chance
to clarify conflicting statements they may have made during cross examination.
Questions that should be asked during this stage must be limited to issues
arising during cross examination. It should not be used as forum to repeat
evidence that has been given in examination in chief. Like examination in chief,
counsel is not allowed to ask leading questions during this stage of examination.

6.5 Unfavourable and Hostile witnesses

Once a witness is called to testify, they may fail to give testimony due to a
number of reasons including bad memory. Some witnesses may just not be
desirous of giving evidence in favour of the party who called them. Others may
simply refuse to take oath or give evidence for no valid reason. This section
shows you what steps you should take once you have identified any of the three
problems mentions above.

6.5.1 Hostile witnesses

A hostile witness is a party’s own witness who turns is not desirous of speaking
the truth in favour of the party who called him or her. Where this is the case, the
party who called the witness may cross examine the witness. This can be seen
from the witness’ testimony and sometimes form the witness’ hostile demeanour.
Once a witness turns hostile, the party calling the witness should apply to court

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so that the witness is declared hostile. Once the court has made the ruling that
the witness is a hostile witness, the party who called the witness may cross
examine the witness.

In the case of JEFFREY GODFREY MUNALULA v THE PEOPLE (1982) Z.R.

58 (S.C.), the Supreme Court held that:
(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. The testimony may rehabilitated the witness adopts their previous
inconsistent statement and explain it in the context of their testimony. (R v
Goodway [1993] 4 All ER 894)

6.5.2 Unfavourable witnesses

An unfavourable witness is one who fails to prove 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 the witness’ credit
by general evidence of bad character.

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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.

In 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. The Supreme court held that 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.

6.5.3 Refractory Witness

A refractory witness is a witness who, after being called to give testimony refuses
to take oath, give testimony or is otherwise not cooperative for no reasonable
excuse. Section 150 of the Criminal Procedure Code provides that where a
person a witness is a refractory witness, the court may adjourn the case and
order that witness to be remanded in custody until he/she consents to do what is
required of them by the court. The period for which the person may be committed
to prison should not exceed 8 days. If at the expiry of the 8 day period, the
person is brought to court but still refuses or neglects to do what is required of
him/her, the court may again commit them to prison for the like period. The
power given under section 150 of the CPC is in addition to the court’s inherent
jurisdiction punish a person for contempt of court.

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6.6 References and prescribed readings
Statutes
Criminal Procedure Code, Cap 88 of the Laws of Zambia, s150
Penal code, Cap 87 of the Laws of Zambia
Case Law
R v Kemble [1990]3All ER 116
Manyepa v The People (1975) Z.R. 24 (S.C.)
Jeffrey Godfrey Munalula v The People (1982) Z.R. 58 (S.C.),
Books
Tapper, Collin. Cross and Wilkins Outline of the Law of Evidence, 6th ed.
London: Butterworths, 1786. (Chapter 8)
Cross, Rupert and Collin Tapper. Cross on Evidence, 6th ed. London:
Butterworth & co Publishers Ltd, 1985 (chapter 13)
Keane, Adrian. The Morden Law of Evidence, 6th ed. New York: Oxford
University Press, 2006. (Chapter 20)

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 UNIT 7

CORROBORATION AND CARE WARNINGS

7.0 Introduction
In this unit, you learn about the requirement for corroboration or caution that the
court must take when evaluating evidence of witnesses. In other words, what
would a court consider as sufficient evidence to make a judgment of the issues
presented. As a general rule, the court can make a finding based on the
testimony of one witness or duly proved documentary evidence. This general rule
of law holds true for civil cases. In criminal cases however, the court may require
supporting evidence, or treat certain testimony with caution, in instances where
reliability or capacity of a witness is questioned.

7.1 objectives
By the end of this unit, you should be able to:
 Explain corroboration
 Identify evidence which requires corroboration as a matter of law;
 Distinguish the requirement of corroboration as a matter of law and
instances where the court requires to warn itself against convicting on
uncorroborated evidence
 Explain what evidence amounts to corroborating evidence.

7.2 Corroboration
Corroboration can be defined as confirming or supporting evidence. If the
evidence given is not sufficient to support a conviction, then the court must seek
additional evidence. In order support or confirm other evidence, corroboration
must independent evidence.

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The requirement for corroboration may be provided by statue or common law
principles. Examples of statutory provisions include: section 59 of the Penal
Code for offences of sedition and section 122 of the Juveniles Act on testimony
of a child below the age of 14.

7.3 Care warnings

Apart from corroboration required as a matter of law, common law provides that
courts must warn themselves against convicting evidence of certain witnesses.
Examples include evidence of an accomplice, evidence of a single identifying
witness and evidence of the prosecutrix in a sexual offence.

7.3.1 Evidence of identification

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.

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

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  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.
 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.
 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. For example, a
witness may pick out a person from an identification parade having
previously identified that person from the police photos of convicted
people while honestly believing that the person is the one the witness saw
committing an offence. In such a case the memory may be assisted by the
picture that the saw at a later stage at police.

Commenting on suggestive identification, the court in Charles Lukolongo

and Others v The People (1986) Z.R. 115, held 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.

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 See also the case of Kenneth Mtonga and Victor Kaonga v the
People (SCZ Judgment No. 5 of 2000.) in which the court held,
inter alia, that:
i) 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.
ii) 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.

 The other problem associated with evidence of a single identifying witness

is that 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.

Because of the above problems associated with testimony of a single identifying

witness, there is a common law rule requiring judges to warn themselves against
convicting solely on evidence of a single identifying witness where there is a
possibility of honest mistake.

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:

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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. These principles have been applied in a
number of Zambian cases. You will do well to read those cases to appreciate
more on how the guidelines are applied by courts.

The warning is however unnecessary where the accused does not deny being at
the scene and there was no possibility of mistaken identity. The question in such
instances should then be what was the accused doing at the time? The warning
is also not be necessary if the witness has not made a mistake but is merely
lying. In this case, the court will just disregard the testimony for being unreliable.
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,
there would be no need for the caution.

7.4 Supporting evidence

Strictly speaking, to amount to corroboration, the supporting evidence must come
from an independent source and must support the evidence requiring
corroboration in a material particular.

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In the case of Mwelwa v The People (1972) ZR 29, the court held that evidence
is not corroboration unless it implicates the accused in a material particular. In
that case, the sworn evidence of a child whose oath was improperly taken was
not admissible as corroborating evidence as it required to be corroborated by
law.

The standard however seems to be differently applied in different cases. In

Nsofu v The People (1973) ZR 287, the court held that 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. See also the
case of Emmanuel Phiri and Others v the People (1978) Z.R. 79 (S.C.)

For supporting evidence of a single identification witness however, it need not be

corroboration within the strict terms. It may sometimes be sufficiently supported
by a fake alibi, forensic evidence and other circumstantial evidence.

7.5 References a Recommended Readings

Cases
Charles Lukolongo and Others v The People (1986) Z.R. 115
Chisha v The People (1968) ZR 26
DPP v Hester [1972] 3 All ER 1056
DPP v Kilbourne [1973] 1 All ER 440
Emmanuel Phiri v The People (1982) ZR 77
Emmanuel Phiri & Others v The People (1978) ZR 79
Kenneth Mtonga and Victor Kaonga v The People (SCZ Judgment No. 5 of
2000.)
Mwelwa v The People (1972) ZR 29
Musonda v The People (1968) Z.R. 98

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Muvuma Kambanja Situna v The People (1982) ZR 115
Nsofu v The People (1973) ZR 287
R v Turnbull and Another [1976] All E.R. 549,

Books
Tapper, Collin. Cross and Wilkins Outline of the Law of Evidence, 6th ed.
London: Butterworths, 1786. (Chapter 4)
Cross, Rupert and Collin Tapper. Cross on Evidence, 6th ed. London:
Butterworth & co Publishers Ltd, 1985 (chapters 6,7 and 8)
Keane, Adrian. The Morden Law of Evidence, 6th ed. New York: Oxford
University Press, 2006. (Chapters 5 to 8)

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 UNIT 8

EVIDENCE OF CHARACTER AND DISPOSITION

8.0 Introduction
In this unit, you will be acquainted with the rules of law governing admissibility of
evidence of disposition. As we had established in unit 1, of the functions of the
law of evidence is to ensure that the parties’ rights are protected during legal
proceedings. The law therefore generally excludes evidence of character or
disposition form admission to evidence subject to a number of exceptions.

8.1 Objectives
By the end of this unit, you should be able to:
 Explain the general rule evidence of character;
 discuss circumstances when evidence of character or disposition may be
admitted in criminal matters;
 explain factors that assist the court in deciding to exclude evidence of
character or disposition.
8.2 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. It is evidence of the 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. It may be
proved by evidence of general disposition or by testimony of people who know
the person.

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 placing undue weight or consideration to

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collateral issues (character) 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 court’s
finding after weighing the prejudicial effect of the evidence against its probative
value.

8.2.1 Parties to Proceedings

Following the above test, evidence of character is generally admissible, in civil
cases, where character is in issue. Examples include defamation cases
(character may be necessary to justify a defence of justification or fair comment),
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. Even in those cases, evidence of good character of a party
generally 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). In civil cases, evidence of bad character of a party may be
relevant to prove facts in issue and as is admissible. In deciding whether or not to
admit such evidence, emphasis is placed more on probative value than on
prejudicial effect.

In criminal cases, evidence of the accused bad character is generally

inadmissible. The exceptions are:
i) Where the Defence leads evidence of good character, in which case the
accused may be cross examined on that evidence to impeach such
evidence.

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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. Even in such a case, the prosecution will only be allowed to call evidence
of the general disposition of the accused.
iii) The other exception to the rule is when dealing with evidence known as
“similar fact” which is discussed in more detail below.

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.

In 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.
The court held that:
(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 it can be proved that his guilt in those offences show that he is guilty of the

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present offences; Where the good character of the prosecution witness has been
put in issue; and where the accused wants to establish his good character.

8.2.2 Witnesses
When it comes to witnesses, opponents’ witnesses can be asked about their
general character or previous convictions for purposes of discrediting their
testimony. The restrictions are that the matter must be relevant to the credibility
of the witness. The relevance of this testimony is only to discredit evidence of a
witness. As such, there a party seeking to bring such evidence is not allowed to
bring evidence to rebut the witness’ denial of the evidence of bad character.
Further, the court will not, during cross examination, allow questions that are
solely intended to embarrass the witness or torture them.

Section 157(vi) of the Criminal Procedure Code, Cap 88 provides that:

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.

8.3 Evidence of similar facts

Admission of evidence of similar facts is governed by rules of law governing
admissibility of evidence of disposition.

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Similar fact evidence may be tendered to show that a person is of a certain kind
of disposition or tendency to act in a particular manner. It is also referred to some
as a method of proffering to prove character of a party.

In civil cases, evidence of similar facts may be admitted in court when it is

relevant to the facts in issue. When deciding to admit or exclude such evidence,
the court will place more emphasis on probative value than prejudicial effect. The
court will admit evidence of similar facts if it is logically relevant to proving the
facts in issue provided it is not oppressive or unfair to the other side. We use
similar reasoning as in the admissibility of self -incriminating statements. The
leading authority on the applicable test was well demonstrated in the case of
O’Brien v Chief Constable of South Wales Police [2005] 2 all ER 931, where
the House of Lords held that evidence had been properly admitted to show that
Detective Inspector L had behaved with impropriety (framing an accused person)
in two other and Detective Chief Superintendent C had done so on one other
occasion. The court further stated that the test of admissibility in civil matters is
different form that applied in criminal matters.

In Hales v Kerr [1908] 2 KB 601, evidence of previous customers who had

contracted ringworms after being shaved by the Defendant was admitted to
prove negligence in a matter in which the Plaintiff alleged he had contracted
ringworms from a dirty razor used by the Defendant.

In Joy v Phillips, Mils & Co Ltd [1916] 1 KB 849, evidence of previous

incidences showing that the deceased stable boy was in a habit of teasing
horses with a halter was admitted to negative a claim under the workers’
compensation that the accident did not occur in the course of employment.
That notwithstanding, the court has overriding authority and discretion to ensure
that trial is conducted in the most just, fair and efficient manner.

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This includes limiting the time spent on proving collateral matters that may arise
in cross examination and protecting litigants from unfair practices.

In criminal cases, 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.

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Probative force refers to:
 the cogency (strong or clear to warrant belief) of the evidence showing
accused peson’s bad disposition;
 the extent to which such disposition supports an inference sought to be
drawn form it; or
 The degree of relevance of such inference to some fact in issue in the
proceedings.

Prejudicial force on the other hand looks at:

 The extent to which the accused is painted as bad and prone to
commit crimes (against the presumption of innocence); or
 Whether or not prosecutors are more likely to not investigate other
possible offenders but will rely on identification evidence of victims of
similar crimes.

In Esther Mwiimbe v The People (1986) Z.R. 15 (S.C.), the Supreme Court
stated that ‘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 conclusion therefore, the test for
admission of evidence of similar facts in civil cases is that of relevance. The
stakes are however high when it comes to criminal offences in which case the
court should only exercise its discretion after determining that the evidence’s
probative value outweighs its prejudicial effect.

8.4 Activity

i) Explain the rule on admissibility of evidence of character.

ii) What is the justification for the strict rules on evidence of character in
criminal cases?

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8.5 References and Recommended Readings

Statutes
Section 157 Criminal Procedure Code, Cap 88 of the Laws of Zambia
Case Law
DPP v Boardman [1975] AC 421
Esther Mwiimbe v The People (1986) Z.R. 15 (S.C.)
Makin v Attorney General for New South Wales [1894] A.C 232)
Melody Chibuye v The People (1970) Z.R. 28 (H.C.)
O’Brien v Chief Constable of South Wales Police [2005] 2 All ER 930
Zambia Publishing Company Ltd v Pius Kakungu (1982) Z.R. 167
Books
Tapper, Collin. Cross and Wilkins Outline of the Law of Evidence, 6th ed.
London: Butterworths, 1786. (Chapters 9 and 10)
Keane, Adrian. The Morden Law of Evidence, 6th ed. New York: Oxford
University Press, 2006. (Chapters 15 to 17)

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 UNIT 9

OPINION
9.0 Introduction
In this unit, we look at special rules governing admissibility of opinions in court
proceedings. You will require at 60 minutes to successfully complete this unit.

9.1 Objectives
By the end of this unit, you should be able to:
 explain the rules on admissibility of lay opinion;
 explain the rules on admissibility of expert witnesses;
 Properly lay a legal foundation for admissibility of opinion evidence.

9.2 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. Also there is likelihood that the judge may tend to
believe those inferences without making its own inference. Also, there is a
general rule of law that witnesses must give testimony of facts which they have
perceived with their senses. This exercise does involve expression of opinion.
There are however exceptions to the rule.

9.2.1Expert opinion
The first exception to the rule relates to expert opinion. Experts are allowed to
give an opinion on evidence falling within their area of expertise for evidence
requiring such 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. The expert witness
must give evidence within their expertise. The court may decide to regard a

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witness as a non-expert following an examination so that the witness limits
himself/herself to facts. Expertise may be by training or experience.
There is no mandatory requirement that the witness must have acquired the
expertise professionally. In R v Silverlock [1894]2QB 766, the court held that a
solicitor who had studied handwriting for ten years, mostly as an amateur, had
properly been allowed to give his opinion as to whether certain disputed
handwriting was that of the accused.

The obligations of an expert witness were aptly set out in Phillips and others v
Symes and others [2005] 4 All ER 518, as follows:
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). this is important for
purposes of reliability of the evidence. It must be founded on objective
and reliable processes.
iv) An expert witness should make it clear when a particular question or issue
falls outside his expertise.

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 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.

When dealing with the evidence of an expert witness a court should always
bear in mind that the opinion of an expert is the expert’s own opinion only,
and it is the duty of the court to come to its own conclusion based on the
findings of the expert witness. The opinion of an expert must not be
substituted for the judgment of the court. It can only be used 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.

Like other unfavourable witnesses, 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. Further, 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. When assessing the weight of the evidence, the court will be guided
by the same rules as when assessing non-expert evidence. Some guides will
be reliability of the methods of research or scientific criteria if you like,
circumstances of the case, the expert’s qualifications and how they were
acquired, the overall credibility of the witness and the relevance of the opinion
to deciding ultimate facts. (Per Stallwood v David and another [2007] 1 All ER
206)

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 9.2.2. Lay opinion
Opinions of a lay people may be admitted when they relate to matters which
cannot be verbalised without expressing an opinion. Examples include Lay
observation of state of a person who has been drinking, the identity of a
witness, speed, time, voices, handwriting, temperature etc. See the following
cases: Blake v The People (1973) Z.R. 157; Mwale v The People (1975)
Z.R. 163
In both cases, the Court affirmed the position that non-expert witness is
competent to give evidence as to his impressions of drunkenness based on
facts. The cardinal factor when admitting opinions is to ensure that the
opinions are based on observed facts which cannot properly be verbalised by
the witness.

9.3 Activity
i) Having learnt the qualifications and duties of an expert witness, write
down a list of qualities you will need to satisfy yourself with before
calling an expert witness.
ii) What questions would you ask your expert witness in examination in chief
to lay a foundation for admission of their opinion?
iii) Apart from the examples given, give more examples of lay opinion that
cannot be properly verbalised.

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9.4 References and Recommended Readings
Cases
Blake v The People (1973) Z.R. 157
Chuba v The People (1976) Z.R. 272
R v Silverlock [1894]2QB 766
Phillips and others v Symes and others [2005] 4 All ER 518
Mwale v The People (1975) Z.R. 163
Shawaza Fawaz and Prosper Chelelwa v The People (1995) S.J.S.C.Z./9/49/94
Stallwood v David and another [2007] 1 All ER 206
Whitehouse v. Jordan ([1981] 1 All ER 267 at 276, [1981] 1 WLR 246 at 256–257

Books
Cross, Rupert and Collin Tapper. Cross on Evidence, 6th ed. London:
Butterworth & co Publishers Ltd, 1985 (chapter 14)
Keane, Adrian. The Morden Law of Evidence, 6th ed. New York: Oxford
University Press, 2006. (Chapter 18)

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 UNIT 10

THE RULE AGAINST HEARSAY

10.0 introduction
In this unit, you will be introduced to one of the fundamental rules of evidence,
the rule against hearsay. You will require at 90 minutes to successfully complete
this unit.
10.1 Objectives
By the end of this unit, you should be able to:
 explain the exclusionary rule against hearsay;
 identify admissible hearsay and justify its admissibility to evidence;
 explain the guidelines that guide the courts’ discretion to admit admissible
hearsay evidence.
10.2 The rule against hearsay
Formal oral or written statements of a person made outside court are not
admissible as evidence of truth of that 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 and the maker of the statement
is not subjected to cross examination to test the maker’s 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.

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10.4 Exceptions
The exceptions to the rule excluding hearsay evidence from admissibility include:

10.4.1 A statement tendered not as truth of what it says but that the
statement was made.

Hearsay statements tendered not as truth of the statement but to show that the
statement was made are admissible.

In Shamwana and 7 others v the people (1985) ZR 41, the court stated that
“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.” The deterring factor is
therefore the purpose for which the evidence tendered to court.

10.4.2 Res gestae

The term res gestae means transaction or story. It relates to statements that are
uttered contemporaneously or are so related to the transaction or story in issue.
Such statements are admissible as an exception to the general rule against
hearsay. In Ratten v R [1972] AC 378, it was held that a statement made by a
person in such circumstances where there is no opportunity for concoction or
error should be admitted under the exception to the general rule. For a statement
to be admissible, it must meet the following conditions:
 The statement should be made by actor or participant;
 it must relate to the act in issue; and
 it must be made contemporaneously with the act.

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The Zambian courts have had occasion to define what amounts to res gestae. In
the case of The People v John Nguni (1977) Z.R. 376, the court held that
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 of concoction or distortion to the advantage of the
maker or to the disadvantage of the accused.

In Chisoni Banda v The People (1990-92) Z.R. 70 and Edward Sinyama v The
People (1993 - 1994) Z.R. 16, the court emphasised that what is important is not
how much time may have passed or distance the actor may have moved from
the transaction. 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

10.4.3 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. 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.

10.4.4 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. To be admissible, it must be established that the victim must have
given up all hope of living or thought that death was eminent. It is not necessary

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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.

10.4.5 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.

10.5 References and recommended reading

Case Law
Chisoni Banda v The People (1990-92) Z.R. 70
Edward Sinyama v The People (1993 - 1994) Z.R. 16
Muvuma Kambanja Situna v The People (1982) Z.R. 115
Ratten v R [1972] AC 378.
Shamwana and 7 others v the people (1985) ZR 41
Subramaniam v Public Prosecutor, 1956, 1 W.L.R. 965
The People v John Nguni (1977) Z.R. 376

Books
Cross, Rupert and Collin Tapper. Cross on Evidence, 6th ed. London:
Butterworth & co Publishers Ltd, 1985.
Keane, Adrian. The Morden Law of Evidence, 6th ed. New York: Oxford
University Press, 2006.

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 UNIT 11

CONFESSIONS
11.0 introduction
In this unit, we discuss the rules of evidence governing admissibility of
confessions. You will require at least 60 minutes to successfully complete this
section. You also learn the rationale for the strict rules on admissibility of
confessions in criminal proceedings.
11.1 Objectives
By the end of this unit, you should be able to:
 Explain the rights of a suspect in criminal investigations.
 Identify objectionable evidence of confessions in criminal trials.
 Appropriately respond to objections against properly lawfully obtained
confessions in criminal prosecution.
 Explain the admissibility criteria of confession statements in criminal
proceedings.

11.3 Reflection
 What is a confession?
 Is it admissible?

11.4 Definition
A confession is an admission made by the person charged with a crime stating or
suggesting that he committed that crime. It may be oral or written. Confessions
include admissions in part or in whole or any other self-incriminating statement.
Confessions made outside court are generally admissible as an exception to the
rule against hearsay as truth against the person making them once the court is
satisfied that the confession was made freely and voluntarily.

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11.5 Admissibility of confessions in criminal trials
Before a confession can be admitted into evidence in criminal cases, the
prosecutor must show that the confession was made voluntarily, i.e. without fear
of prejudice or hope of advantage held out to the accused by the person in
authority. This principle was formulated in the classic case of Ibrahim v R [1914]
AC 599 in the speech of Lord Summers.
Involuntary confessions are not admitted mainly for two reasons:
 A statement made out of fear of prejudice or promise of reward will mostly
likely be untrue
 The police must be discouraged from using improper methods of
investigation by being deprived of the advantage of using confessions to
obtain a conviction.

The judge exercising the discretion to allow a confession statement may still
exclude a statement, even after finding that it was obtained voluntarily, if it is
irrelevant, its prejudicial effect outweighs its probative value, or if the authority
who obtains the confession improperly conducted themselves, including a failure
to caution the accused person e.g. where the confession statement was obtained
in breach of the judges rules. (R v Bass [1953] 1 QB 480). Where the
admissibility of a confession has been challenged on the ground that was
involuntary, the court must conduct a trial within a trial (voire dire) in order to
establish voluntariness or the circumstances under which the confession was
procured. Before deciding to admit a confession, the trial court must

11.6 The Trial within a Trial (Voire dire)

The question whether a confession has been made voluntarily must be
determined by the judge in a voire dire or trial within a trial.

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Where it is proposed by the prosecution to adduce a confession statement and
the defence is that the statement was never made, or that the statement is
forgery, there is no need for the court to conduct a trial within a trial as the issue
of whether or not a statement was made becomes an issue for determination in
the main trial. (Tapisha v The People (1973)ZR 222).

However, where the prosecution wishes to rely on a confession statement and

the defence is that the accused signed the statement without knowledge of its
content, under fraudulent misrepresentation, or was induced by fear of prejudice
or promise of reward, the court must stay the main trial and determine the issue
of admissibility of the confession in a trial within a trial. The question of
admissibility will be determined in a voire dire although, at this stage, the court is
not concerned with the truth or relevance of the confession statement to the facts
in issue. Tapisha v The People (1973) Z.R. 222. During a trial within a trial, the
prosecution must bring evidence to prove, beyond reasonable doubt, that the
confession was given freely by the accused.

Where a confession is tendered as evidence, the procedure is that the defence

must be given an opportunity to comment on it so that objections are taken at
that stage. This procedure is necessary even where the accused person is not
represented. The trial court must give an opportunity to an accused to make an
objection, if any to the admissibility or voluntariness of the confession statement.
The above position was affirmed in the case of Hamfuti v The People (1972)
Z.R. 240 (H.C.).

11.7 Admissibility Test

During the trial within a trial, the judge or magistrate will determine two issues:
whether or not there was an element of inducement, and if the inducement is
such that the accused was deprived of the exercise of his free will.

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11.7.1 Inducement
Inducement has been described in R v Priestley [1965] 51 Crim App R 1, as
something which tends to sap or has sapped the free will which must exist before
a confession is voluntary or something that excites hopes or fears or so affects
the minds of suspects that their will crumbles and they speak when otherwise
they would remain silent.
A threat or promise need not be express; it may be implied from the conduct of
the person in authority.

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. In R v
Harz [1967] 1 AC 760, the House of Lords 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.

Fear alone will not exclude the confession nor will threat or promise to one
suspect influence another. What is cardinal is the person exerting the fear or
making a promise as well as the effect of that fear on a suspect. It should be of
the effect that the suspect fails to exercise free will. The inducement must be
made by a person in authority. The following have been held to be persons in
authority: a police officer 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.

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In Abel Banda v The People (1986) Z.R. 105, the Court held that 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. This position of law was affirmed in Mbomena Moola v The
People, SCZ Judgment No. 35 OF 2000 in describing a village committee that
did not comply with the judges rules.

11.7.2 Admissibility and Discretion

A confession will only be admitted after it has been proved, beyond reasonable
doubt that the confession was made freely and voluntarily. Muwowo V The
People(1965) Z.R. 91 (C.A.). The truth or weight to be attached to a confession
statement will be considered after it has been admitted. (See also Chigowe v
The People (1977) ZR 21.)

If a confession is found to be inadmissible, the accused person would not be

cross examined on it. Even after a confession is found to have been voluntarily
made, the court has direction to exclude it if the police improperly conducted
themselves. Improper conduct on obtaining a confession statement may be
evidenced by failure to comply with “the judges’ rules”. The court may also
exclude a confession statement where its prejudicial effect outweighs its
evidential value.
a) The 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.Zondo and others v The Queen [1963-1964] Z. and
N.R.L.R., 97; Chileshe v The People (1972) Z.R. 48 (H.C.).

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One of the principles under the judges rules that a person who gives a statement
or answer to a question by a person in authority 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 suspected. 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.”
iii) The warning should again be given when a person has been charged if
the police wish to ask the accused person questions relating to the
offence.
Breach of the Judges’ rules does not automatically render evidence, and in
particular a confession, inadmissible. 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.
 Shamwana & Others v The People (1985) Z.R. 41 (S.C.)
 Charles Lukolongo and Others V The People (1986) Z.R. 115
11.8 Implications of Confession on Co- accused
A confession made out of court when admitted will only be admitted as evidence
against its author. R v Gunewardene [1951] 2 Kb 600. The exceptions are:
i) Where a co-accused is convicted on his/her confession and the conviction
is used as evidence against the accused
ii) where co-accused by words or conduct adopts or accepts the truth of the
confession as his/her own

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 iii) in offences involving a common purpose or enterprise and the acts or
utterances of A can be used to show common enterprise or B’s action
in the common purpose ( R v Jones [1977]2 Cr App R 173)

11.9 Evidence obtained in consequence of an unlawful act or inadmissible

confession
At common law, where evidence is obtained in breach of statutory procedure, it
will not be admissible in court. This is not the case in Zambia. Liswaniso V The
People (1976) Z.R. 277. For confessions however, even at common, the rule
against admission of involuntary confessions does not extend to evidence found
as consequence of the confession.
 Jack Maulla and Asukile Mwapuki v The People (1980) Z.R. 119 (S.C.)
 The People v Chanda (1972) Z.R. 116 (H.C.)

11.10 Self assessment

 What is the law regarding admissibility of confessions in criminal trials?
 Why does the law put restrict admissibility of confessions?
 What is the process of determining admissibility called?
 Can court exclude confession after finding it was made voluntarily?
 What is the status of evidence or facts discovered in consequence of an
inadmissible confession?

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11.11 References and recommended readings

Case Law
Abel Banda v The People (1986) Z.R. 105
Charles Lukolongo and Others v The People (1986) Z.R. 115
Chigowe v The People (1977) ZR 21
Chileshe v The People (1972) Z.R. 48 (H.C.)
Hamfuti v The People (1972) Z.R. 240 (H.C.)
Ibrahim v R [1914] AC 599
Liswaniso v The People (1976) Z.R. 277
Mbomena Moola v The People,SCZ Judgment No. 35 OF 2000
Muwowo V The People(1965) Z.R. 91 (C.A.).
R v Gunewardene [1951] 2 Kb 600.
R v Bass [1953] 1 QB 480
R v Harz [1967] 1 AC 760
R v Jones [1977]2 Cr App R 173)
R v Priestley [1965]51 Crim App R 1
R v Richards [1967] Cr. App. R 266
Shamwana & Others v The People (1985) Z.R. 41 (S.C.)
Tapisha v The People (1973) Z.R. 222
Zondo and others v The Queen [1963-1964] Z. and N.R.L.R., 97;

Books

Chanda, A.W. “The Role of the Lower Courts in the Domestic Implementation of
Human Rights,” Zambia Law Journal, 2001 Vol. 31 Pages 1-17 at P9
Cross, Rupert and Collin Tapper. Cross on Evidence, 6th ed. London:
Butterworth & co Publishers Ltd, 1985
Keane, Adrian. The Morden Law of Evidence, 6th ed. New York: Oxford
University Press, 2006

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 UNIT 12

DOCUMENTARY EVIDENCE
12.0 Introduction
In this unit, you will be introduced to rules of law governing admissibility of
documentary evidence in courts of law. You require at least 60 minutes
completing the unit.

12.1 Objectives
By the end of the unit, you should be able to:
 Explain the admissibility requirements for documentary evidence.
 Identify and explain the procedures for admitting documentary evidence in
civil and criminal cases.

12.3 Activity
 In your own words, define the term document and list items of evidence
that can be defined as documentary evidence.
 How do you produce a document as evidence in court?

12.3 Definition of document

The Evidence Act, Chapter 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 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.
Examples of primary documentary evidence include the following:
 The primary contents of a document are the original.
 A copy of document requiring enrolment: There are certain private
documents which must be filed in court or other public or office and when

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 filed as such, a copy is issued by the court or such public office. Such
copy may be treated as primary evidence of the original. Examples include
probate of will, lease registered at Ministry of lands.
 An informal admission by one party to litigation constitutes primary
evidence against that party 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.
 Secondary evidence of documents that may be admitted as primary
evidence such as certified copies, examined copies (especially in civil
matters following discovery and inspection of documents), office copies
and other public documents such as statues, etc.

There are instances when the general rule requiring primary documentary
evidence may not apply. Exceptions include:
 Where a 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.
 When original has not been found after due search.
 When production of original is, for practical purposes, impossible.
 When production of an original document would be highly inconvenient
owing to the public nature of the document.
 Bankers Books

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12.4 The person to adduce documentary evidence
To be admissible, a document must be produced form good custody. This
requirement ensures that documents that are produced in court are not corrupted
or destroyed due to breaks in storage and transmission to court. A person cannot
testify on contents of a document that has not been admitted in court. The person
who can lawfully produce the document to court must be:
 The author or maker of the statement except where the author 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.
 person who has personal knowledge of the matters dealt with by the
statement; or
 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

12.5 Proof of attestation and execution of private documents.

When a party wishes to rely on an 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 proof of signing or
attestation which we discuss in detail below. The most obvious way under
common law is by proof of handwriting with the exception of certain special
documents as provided by section 6 of Evidence Act.

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Handwriting can be proved by:
 testimony of a person whose handwriting is to be proved;
 testimony of a person who saw the document being executed;
 opinion of a person who is sufficiently familiar with the handwriting or
signing of the person whose handwriting is in question; or
 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.
The special documents requiring special proof of attestation under section 6 of
the Evidence Act, are Wills and testamentary documents which require calling at
least one of the attesting witnesses. If the witnesses are not available, evidence
must be shown that they are dead, insane or outside the jurisdiction. After
satisfying the court that the witnesses are either dead or unavailable, 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.

12.6 Presumption relating to documents

There are a number of presumptions of law relating to documentary evidence
that make help make the production of evidence efficient. Section 7 of the
Evidence Act provides for a presumption of due attestation in relation to
documents that are not less than 20 years provided they are produced form
proper custody. The presumption is justified on grounds that there may be
practical difficulties in proving handwriting of a document that is very old. What is
proper custody will vary from case to case. Read Section 7 of the Evidence Act,
Cap 43 of the laws of Zambia.

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Another important 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.

12.7 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.

Other exceptions to the rule on extrinsic evidence include:

 Evidence to question validity or effectiveness of a contract or document
 Evidence to prove consideration of a contract. Absence of consideration
invalidates a simple contract in writing. This is usually proved by extrinsic
evidence.
 Evidence admitted to establish the real nature of the transaction
 Capacity of parties: whether one signs as landlord, tenant or agent.
 Collateral undertakings also known as contracts that are partially oral and
partially written. It includes oral warrantees as to condition and quality.
 Aid to interpretation.

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12.8 References and recommended readings

Evidence Act, Chapter 43 of the laws of Zambia.

Bank of Australia v Palmer [1897] AC 540
Cross, Rupert and Collin Tapper. Cross on Evidence, 6th ed. London:
Butterworth & co Publishers Ltd, 1985
Keane, Adrian. The Morden Law of Evidence, 6th ed. New York: Oxford
University Press, 2006

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 UNIT 13

PROOF OF FACTS WITHOUT EVIDENCE

13.0 Introduction
In this unit, you will learn that the law allows the court to make findings on some
facts without requiring evidence to be adduced on them. You need at 120
minutes to successfully study this unit. The particular principles that you will
study in this unit are judicial notice and presumptions. Facts in issue and relevant
facts are proved only by producing evidence. This rule of proof by evidence is
however not absolute as there are instances when a party need not adduce
evidence to proof facts in issue or relevant facts. The exceptions include facts on
which presumptions of law or fact operate, facts judicially noticed and facts
formally admitted (under the doctrine of estoppel).

13.1 Objectives
By the end of this unit, you should be able to:
 Explain judicial notice and instances where courts can take judicial notice
of facts
 Explain the presumptions and their effect on parties’ obligations to adduce
evidence.
 Distinguish presumptions of law from presumptions of fact and explain
their consequences in civil and criminal proceedings

13.2 Activity
Answer the following questions:
 What is a fact in issue/ relevant to the issue?
 When is it said to be proved?
 What is a burden of proof?
 When would a party successfully discharge the burden?
 What are presumptions?

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  When is judicial notice?
 What matters can the court take judicial notice of?
 What effect do presumptions and Judicial notice have on a party’s burden
of adducing evidence?

13.3 Presumptions.
Presumptions can be defined as the assumed position of the state of affairs
existing as a matter of law or fact. Where a presumption operates, a certain
conclusion must be drawn by the court in the absence of evidence to the
contrary. Certain facts or combination of facts can give rise to inferences that
justify that based on legal rules, certain conclusions should be drawn. A good
example is the principle of res ipsa loquitur in the law of torts.

There are three conventional classifications of presumptions, namely rebuttable

presumptions of law, irrebuttable presumptions of law and presumptions of fact.

13.3.1 Rebuttable Presumptions of Law

Where a rebuttable presumption of law operates, upon proof or admission of a
basic or primary fact, another fact must be presumed unless there is contrary
produced. For example, section 33 of the Lands and Deeds Registry Act, Cap
185 presumes that a certificate of title is proof of ownership of land unless there
is proof of fraud or illegality. This will means that once the proponent produces a
certificate of title bearing the proponent’s name in evidence, in the absence of
evidence such as fraud or illegality, the court can properly make a finding that the
proponent owns the land in question.
Other examples include the presumption of sanity provided by section11 of the
Penal Code and res ipsa loquitur.

In civil cases, a rebuttable presumption of law places the legal burden on the
person against whom it operates to discharge it on the balance of probabilities.

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In criminal cases on the other hand, a rebuttable presumption in favour of the
accused places a legal obligation on the prosecution to disprove the existence of
the presumed fact beyond reasonable doubt. A good example of this is the
presumption of innocence. Where a presumption exists in favour of the
prosecution, there is no legal obligation on the accused to prosecution to
disprove the presumed fact. Instead, the law places the evidential burden on the
accused person to prove the non-existence of the presumed fact while the
prosecution retains the legal burden to challenge the accused person’s evidence
reasonable doubt. This position was affirmed in the case of Kazembe & Zebron
v The People. Refer also to other cases discussed on burden of proof.

13.3.2 Irrebuttable Presumptions of Law

These are also known as conclusive presumptions and are found in statutory
law. Where such a presumption operates, a party against whom it operates is
barred from adducing any evidence in rebuttal. A good example of an irrebuttable
presumption of law is section 14 of the Penal Code which provides that a
person below the age of 8 is not capable of any criminal act or omission. the law
also creates a miscellaneous class of presumptions on which there is no
requirement to prove a basic fact such as the presumption of innocence, and
sanity referred to above.

13.3.3 Presumptions of Fact

These are sometimes referred to as circumstantial evidence. They are logical
inferences that are drawn by the court once a party has proved a basic fact and
there is no evidence to the contrary. Their strength varies from case to case.
Unlike presumptions of law, they do not place a burden of proof, legal or
evidential, on the other party. However, if a court makes a finding against a
presumed fact in civil cases, that could form basis for reversal of the decision on
appeal.

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For example, in Mwansa Mushala and others v The People (1978) Z.R. 58
(S.C.), 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.

13.3.4 Differences between Presumptions of Law and Presumptions of Fact

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

Where there are two conflicting presumptions, they cancel each other. E.g.
presumption of validity marriage vs. presumption of death, in this case the court
will proceed as though no presumption exists.

13.4 Judicial notice

In a legal system such as ours, each party to proceedings 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 in
the absence evidence in support of that finding. Judicial notice declares that a
court can make a finding of fact even though no evidence has been given to
support it. The power is limited to certain facts which are so notorious and of a
general nature or where statute declares that certain facts must be taken judicial
notice of. The court can take judicial notice of a fact with or without an inquiry.

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13.4.1 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. A good example the fact that a month is too short
for a human child to be fully developed or the fact that Christmas falls on 25th
December.

13.4.2 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, the day of the week that a date
fell on etc.

13.4.3 Statutory provisions

Statute provides certain facts that a court can take judicial notice of. For
example, 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).

13.4.4 Personal knowledge

Judges can only take judicial notice 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 notice 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. In Gastove Kapata V The People (1984)
Z.R. 47 (S.C.), the Supreme court stated, in reference to personal knowledge,
that:

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 “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

Another authority on the subject is Mutambo and Five Others V The People
(1965) Z.R. 15 (C.A.), where the court stated that: 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

See also the case of Mwape v The People (1976) ZR 160 (SC)

13.5 Estoppel
Estoppel is rule that precludes a party from denying the existence of some state
of facts which he/she has formerly asserted or admitted. These admissions are
distinct form informal admissions that we discussed as an exception to the
hearsay rule. In civil cases, formal admissions are in form of pleadings. They
may also be admitted by default where a party does not traverse an averment in
a statement of claim when so required. A party who does not admit certain
undisputed facts may be condemned to pay costs if a judgment is made on
application.

A fact that is formerly admitted ceases to be in issue. Evidence on that fact is not
necessary nor is it admissible. When an estoppel binds a party to litigation
he/she is prevented from relying on or denying the existence of certain facts.

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To this extent, estoppels are regarded as something that make it unnecessary for
production of evidence. The whole notion of estoppel is primarily important in civil
cases.

In criminal matters, formal admissions are done in court e.g. a plea of guilt that is
not withdrawn by the accused. It also extends to facts established by order or
decree of the court and cannot be overturned in subsequent proceedings. 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.

13.5.1 Estoppel by record

The law provides a rule against adducing evidence on matters on which a court
of competent jurisdiction has made an order. The estoppel on this ground is
founded on the premise that:
i) There should be an end to litigation
ii) No one should be sued twice on the same ground

Flowing from the above, judgments are binding and no evidence may be
admitted to contradict or vary them other than through the formal processes of
law. 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. When an issue has been decided upon by a court of competent
jurisdiction, neither party is allowed to adduce evidence on the issue.

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13.5.2 Estoppel by Deed
This is more of a subject of contract and is a special kind of admission. It is more
useful in construction of contracts. 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.

13.5.3 Estoppel by conduct

This is yet another principle on interpretation of contracts. A party who acts or
makes a statement on which the other party relies believing that a certain state of
affairs exists, are stopped from disputing the existence of the state of affairs.
There must however be a duty of 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.

13.6 References and recommended readings

Penal Code, Chapter 87 of the Laws of Zambia, section 14
Lands and Deeds Registry Act, Chapter 185 of the laws of Zambia, section 33
Gastove Kapata V The People (1984) Z.R. 47 (S.C.)
Kazembe & Zebron v The People (1969) Z.R. 22
Mwape v The People (1976) ZR 160 (SC)
Mwansa Mushala and others v The People (1978) Z.R. 58 (S.C.)
Mutambo and Five Others V The People (1965) Z.R. 15 (C.A.)
Cross, Rupert and Collin Tapper. Cross on Evidence, 6th ed. London:
Butterworth & co Publishers Ltd, 1985
Keane, Adrian. The Morden Law of Evidence, 6th ed. New York: Oxford
University Press, 2006

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