EVIDENCE ZIALE NOTES

AUTHORED BY KALUBA BRIGHT C

BCK

Mobile No. 0978497894/0954032675

Emails
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(2016-2017 INTAKE)

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 List of Relevant Statutes (Acts of Parliament) for the Course 1

(The Subordinate Court Act, Vol. 3 – Cap 28 of the Laws of Zambia)

Electronic Communications and Transactions Act No. 21 of 2009

The Affiliation and Maintenance of Children Act, Vol. 5 Cap 64 of the Laws of Zambia
The Authentication of Documents Act, – Cap 75, Vol. 6 of the Laws of Zambia

The Criminal Procedure Code, Vol. 7 Cap 88 of the Laws of Zambia

The Evidence (Bankers Book) Act, Vol. 4 – Cap 44

The Evidence Act, Vol. 4 - Cap 43 of the Laws of Zambia

The Evidence Act, Vol. 4 – Cap 43 of the Laws of Zambia

The High Court Act, Vol. 3 – Cap 27 of the Laws of Zambia

The Interpretation and General Provisions Act, – Cap 2, Vol. 2 of the Laws of Zambia

The Penal Code, Vol. 7 - Cap 87 of the Laws of Zambia

The Road Traffic Act, No. 11 of 2002

While notes of this nature are important and helpful, it is advisable to consult other notes and textbooks in order to avoid being
misled.2

1 This is not an exhausted list of statutes. Take Note.

2 Do Not Take Anything and Everything as Gospel Truth.

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What is Evidence?

(Law) all the means by which any alleged matter of fact whose truth is investigated at judicial trial is
established or disproved. 3

Facts

As distinguished from act, an occurrence, or happening not immediately brought about by human
activity; more generally, anything cognizable by any of the senses, which may have legal implication,
or which may be a matter of law; in the context of the phrases accessory before or after the fact, a
crime; as contrasted with theory or speculation, that which exists, can be seen or mea sured. In
pleading and litigation, the facts are circumstances, deeds, sayings, and inferences from them as
distinct from the legal consequences, rules applicable thereto, and legal conclusions.

Facts and Law

In legal inquiries this distinction is frequently involved. A matter of fact or a question of fact
concerns the existence, or some state, at some past time relevant for the inquiry, of some person, or
thing, or state of affairs, ascertainable by the senses or by inference from conduct or happenings.
Matters of fact thus include e.g. time, place, weather, light, speed, color, identification of persons,
what was said, done, heard, and so on, and such inferred facts as a person‟s intention, sanity, state of
mind, knowledge, and the like. Matters of facts have to be ascertained, failing admission, by
competent and relevant evidence given by witnesses, experts or provided by deeds, records, etc. 4

Matters of law or questions of law on the other hand include what are the rules of law applicable to
some issue, what their proper formulations are, and what they require or permit. Matters of law have
to be ascertained, failing admission, by interpretation of statutes, cases, and other authoritative
sources of law, aided by the arguments of the parties‟ counsel. The interpretation of documents is
always a question of law. 5

3 Word Web Dictionary

4 Vide, David M. Walker, The Oxford Companion to Law, (Oxford University Press: Oxford, 1980)
5 ibid

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In particular cases either the matters of fact or those of law may be admitted or undisputed, but in
many cases both the matters of fact and those of law involved may be uncertain and be contested.
The distinction is frequently important:
a. An appeal on matters of fact allows investigation at the hearing of the appeal of the evidence and the
proper inferences from it, whereas an appeal on point of law limits consideration at the appeal to
such questions as whether facts admitted or held proved justify or permit, by the rules of law, a
particular decision or disposal of the case before the court.

b. The distinction also arises in the interpretation of decided case; thus a case may be thought to have
decided that particular conduct in question fell within a category such as of lack of reasonable care
for an employee‟s negligence‟s safety, a decision of fact, or that that particular kind of conduct was
itself legally negligent, a decision of law.

c. In a secondary sense any matter to be decided on evidence and inference therefrom is called a matter
of fact, and other matters are matters of law.

In many circumstances questions of mixed fact and law arise; thus whether X is guilty of
manslaughter depends on what he is held to have done (fact) and whether such conduct in such
circumstances amounts to manslaughter, as that concept has been defined and explained by
authoritative cases (law). Whether Y is liable for slander depends on whether he published matt er of
and concerning the plaintiff (fact) and whether it fell within the category of slander as defined in law
(law). Accordingly, the Judge‟s verdict is normally a mixed finding of fact and law and the decision
of the judge of first instance is, normally, also a mixed finding.

Facts in Issue

Facts in issue are all those facts which the plaintiff in a civil action, or the prosecutor in criminal
proceedings must prove in order to succeed. Facts in issue include any other facts which the
defendant must prove in order to succeed in their defence.

R v. Sims (1946) KB. 531 at page 539; (1946) I AII ER 697, at page 701

Wherever there is a plea of not guilty, everything is in issue, and the prosecution has to prove the
whole of their case, including the identity of the accused, the nature of the act and the existence of
any necessary knowledge or intent.

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Relevance and Admissibility 6

According to Cross on Evidence, the word „Relevancy‟ is defined as any two facts to which it is
applied are so related to each other that according to the common course of events one either by
itself or in connection with other facts proves or renders probable the past, present, or future
existence or non-existence of the other. 7 On the other hand David Walker postulates that relevancy
refers to the degree of connection and probative value between a fact that is given in evidence and
the issue to be proved. 8 John Hatchard and Muna Ndulo in their book „The Law of Evidence in Zambia:
Cases and Materials’ contends that „„evidence is relevant if it is logically probative or dis-probative
of some matter requires proof.‟‟ 9

Relevancy of facts had been provided from Section 5-55 of Evidence Act 1950. By referring to the
illustration (a) provided in Section 5 where A is tried for the murder of B by beating him with a club
with the intention of causing his death. There are three facts in issue to be proved – A‟s beating B
with a club; A‟s causing B‟s death by beating; and A‟s intention to cause B‟s death.

A fact is relevant when it is so related to the fact in issue, that they render the fact in issue probable
or improbable. For example, to prove the third facts in issue in the example given hereinabove, the
facts that A and B were having a quarrel before the murder happens is relevant to prove the third
facts in issue which is A‟s intention to cause B‟s death.

On the other hand Admissibility in relation to evidence, is the question whether particular items of
evidence maybe adduced. 10 It involves the process whereby the Court determines whether the Law
of Evidence permits that relevant evidence to be received by the Court. Admissible evidence is
accordingly evidence not excluded and also relevant to the matter under inquiry. Evidence is
admissible if it maybe lawfully adduced at trial. 11

The Relationship between Relevancy and Admissibility

Relevancy is determined by logic and common sense, practical or human experience, and knowledge
of affairs. Relevancy is not primarily dependant on rules of law but admissibility is founded on law.

6 I have eschewed to discuss “weight of evidence” which is equally an important aspect of the law of evidence. If necessary, counsel is
advised to look it up in necessary textbooks.
7 Sir Rupert Cross, Cross on Evidence, 4 th Ed, (Butterworths: London, 1979)
8 David Walker, The Oxford Companion to Law (Clarendon Press: Oxford, 1980)
9 John Hatchard and Muna Ndulo, The Law of Evidence in Zambia: Cases and Material, (Multimedia Publications, Lusaka: Zambia, 1991)
10 David Walker, The Oxford Companion to Law (Clarendon Press: Oxford, 1980), 32
11 John Hatchard and Muna Ndulo, The Law of Evidence in Zambia: Cases and Material, (Multimedia Publications, Lusaka: Zambia, 1991)

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It is therefore safer to contend that admissibility of evidence depends first on the concept of
relevancy of a sufficiently high degree, and secondly on the fact that the evidence tendered does not
infringe any of the exclusionary rules that may be applicable to it. Thus admissibility signifies that
the particular fact is relevant and something more, that it has also satisfied all the auxiliary tests and
extrinsic policies. 12

Thus, relevancy is usually known as logical relevancy while admissibility is known as legal relevanc y.
Relevancy is a question of fact which is the duty of lawyers to decide whether to tender such
evidence in the Court. On the other hand, admissibility is the ability of the Court to decide whether
evidence should be received by the Court. 13

In the case of Hollington v. Hewthorn & Co., Ltd.,14 Goddard, L.J., stated that the general rule
governing the law of evidence is that all evidence which is sufficiently relevant to an issue before the
Court is admissible and all that is irrelevant, or insufficiently relevant, should be excluded.

The concept of admissibility is often distinguished from relevancy. Albeit all relevant evidence is
prima facie admissible; some relevant evidence is nevertheless inadmissible. At the same time not all
admissible evidence is universally relevant. Admissible evidence maybe relevant to one count of an
indictment and not to the other. It may be admissible against one accused (or party) but not another.
It may be admissible to rebut a defence but inadmissible to reinforce the case for the prosecution. 15

A summation of the above exposition was given by Lord Herschell LC in Makin v. Attorney
General for New South Wales when he held that:

It is undoubtedly not competent for the prosecution to adduce evidence tending to show that the
accused has been guilty of criminal acts that those covered in the indictment, for the purpose of
leading to the conclusion that the person accused is a person likely from his criminal conduct or
character to have committed the offence for which 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 is relevant to an issue before the jury and it may be so relevant if it bears upon the
question whether the acts alleged constitute the crime charged in the indictment or to rebut a
defence which would otherwise be open to the accused.16

12 David Walker, The Oxford Companion to Law (Clarendon Press: Oxford, 1980)
13 Public Prosecutor v. Dato Seri Anwar bin Ibraim (2010) 2 MLJ 392
14 Hollington v. Hewthorn & Co., Ltd., (1943) K.B. 587 at p. 494
15 John Hatchard and Muna Ndulo, The Law of Evidence in Zambia: Cases and Material, (Multimedia Publications, Lusaka: Zambia, 1991)
16 Makin v. Attorney General for New South Wales (1894) AC 57, 65

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For example, hearsay evidence is generally excluded even though relevant. Take for instance that,
Steven Chibelushi Bwalya Nshangalilwa Modern Mushala Chiwa II Jr saw that Yully had
killed Cassy Legal with a knife. Then Steven Chibelushi Bwalya Nshangalilwa Modern
Mushala Chiwa II Jr told what he saw to Kaluba. Here, Kaluba cannot become a witness as he
did not see the incident himself. The fact that Kaluba heard from Steven Chibelushi Bwalya
Nshangalilwa Modern Mushala Chiwa II Jr that Yully murdered Cassy Legal with a knife is
relevant as it is based on logic and common sense. However, such evidence is generally inadmissible
in Court as it is forbidden by Law of Evidence.

Since evidence may be admissible for one purpose and not for another. It is significant to take
notice that the wrongful admission or rejection of evidence may be a ground of appeal. 17

Direct Evidence

Testimony

Testimony is a statement of a witness in court offered as evidence of the truth of that which18 is
stated. Oath, competency of witnesses and cross examination of witnesses are only but rules of
evidence meant to ensure that testimony shall be as reliable as possible. There are instances when
testimony is the only evidence available. If it is hearsay it should be narrated in court. If the evidence
is contained in a document, the document has to be produced and it should be identified by the
witness.

The general rule of evidence is that a witness can only give evidence of facts which he has personal
knowledge, something which he perceived with one of his five senses. 19 His statement must be
prima facie accepted as evidence of such knowledge otherwise there would be an infinite regress if
the facts had to be proved by other witnesses. The person against whom evidence, testimony is
offered has the right to cross examine the witness. The requirement that a witness can only give
evidence of the facts within his knowledge and that of cross examination is the basis for excluding
hearsay evidence. The rationale for the exclusionary rule is that the probative value of evidence

17 Hollington v. Hewthorn & Co., Ltd., (1943) K.B. 587 at p. 494

18 Relate this to hearsay evidence. Remember the exclusionary rule on hearsay
19 It is because of this requirement that hearsay evidence is excluded….

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diminishes if it is given by a person other than the witness with actual knowledge of the facts in
issue.

Hearsay

Generally, the accused herself can prove facts by direct testimony, by swearing to it herself or can
call a witness to swear to it. At times the witness or the accused herself can depose to what someone
else was heard to say on the subject matter.

Case Law on Hearsay

a. Subramanian v. Public Prosecutor, 1956, 1 W.L.R. 965
Mr. Da Silva said:
Evidence of a statement made to a witness by a person who is not himself called as a witness
may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is
to establish the truth of what is contained in the statement. It is 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.'

b. Mutambo and Five Others v. The People (1965) Z.R. 15 (C.A.)

Evidence of statement made in the presence of a court witness is inadmissible hearsay if

offered to prove the truth of what is contained in the statement but not if offered to prove
the fact that the statement was made.

c. Andine Ali Tembo v. The People 2011

A statement is hearsay and, therefore, inadmissible if the object of the evidence is to

establish the truth of what is contained in the statement. It is not hearsay and is admissible
when by the statement it is not intended to establish the truth, but merely to establish that a
statement was made.

The word (hearsay) implies that a witness is prevented from reporting a communication heard
outside the Courtroom but this is not the case. Hearsay is not defined by the nature of the evidence (an
out of Court statement) but by the use to which it is put. To be excluded as hearsay the out of Court
statement, must be relied upon to prove the matter stated. 20

20 Phipson on Evidence, Seventeenth Edition, (Sweet and Maxwell, 2010), 855

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

Hearsay evidence which does not fall within the exceptions to the rule and which does not come
within s.4 of the Evidence Act, Cap.170, is inadmissible as evidence of the truth of that which is
alleged.

Note:
The rule against hearsay applies to what people wrote as well as to what they were heard to say. It
also applies to what the witness said out of court and to what he proves to have been said by others
whether they are called or not as witnesses. A statement other than one made by a person while
giving oral evidence in the proceedings is inadmissible as evidence of any fact stated.

Previous Statements of the Person Testifying

Generally, previous statements of a person who is testifying are inadmissible as evidence of facts
stated. If previous statements of the person testifying are consistent they are generally inadmissible.
Even where they are admissible they are not admissible as evidence of the facts stated. If the
previous statement is inconsistent the witness may be asked in cross examination if they made it. If
they deny having made it, other witnesses can prove it. At common law such as statement is only
admissible as evidence of stated facts when a person who made it is part of the proceedings. As
aforesaid if the previous statement is inconsistent it is inadmissible and only serves to inform that it
is unsafe to act on the positive statement contained in the statement.

Previous Statements of the Person Not Testifying

Previous statements made by a person other than the one testifying are inadmissible as evidence of
stated facts.

Exceptions
1. Dying Declarations
These are admissible in homicide cases inter alia as evidence of the cause of death. 21 The basis for
this rule is that no one would wish to die with a lie on their lips.

R v. Munenga 1954
LEWY CJ
The rule that the statement by the deceased is admissible as I am satisfied as to the circumstances in
which it was made and that the deceased made it under a settled hopeless expectation of immediate
death; and when the deceased had abandoned all hope of living.

21 Obviously the exception is not limited to homicide cases…...you have to research more on this

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The People v. Pelete Banda (1977) Z.R. 363 (H.C.
PW5, Soko, and PW6, Ngulube, gave evidence of taking a dying declaration. The State applied to
produce the dying declaration as exhibit but defence counsel objected to its production. The court
rejected the dying declaration as inadmissible in evidence for three reasons.

Firstly, the deceased had given the declaration in Nyanja but the Nyanja version of the declaration
was not produced; what was produced was the English translation thereof. It was not in deceased's
own words and the words written down in English were not the actual words used by the deceased.
Secondly, there was no sufficient evidence that the dying declaration was made in expectation of
immediate death. Thirdly, the declaration was taken in the form of questions and answers and what
was taken down was only answers.

2. Res Gestaes
(law) rule of evidence that covers words that are so closely associated with an occurrence
that the words are considered part of the occurrence and as such their report does not
violate the hearsay rule.

The People v. John Nguni (1977) Z.R. 376 (H.C.)

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.

Summary

Hearsay is inadmissible because

a. The person who proves a statement made by another person has no actual knowledge of the facts
stated.
b. The person against whom such evidence is tendered has no opportunity to cross examine the actual
maker or author of the statement.

As a consequence of the reasons advanced above – direct testimony has higher probative value than
hearsay. Further, when a witness is asked to narrate another‟s statement for reasons other than
inducing the court to accept it as true, his evidence is said to be original. Original evidence is the
evidence of the fact that a statement was tendered without reference to the truth of anything alleged
in the statement. It is therefore necessary to take note of the reasons why evidence is tendered in
court. How to object to hearsay statement: the moment you hear a witness referring to a statement
which someone else who is not in court made:

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 Counsel should Stand22 up and say Objection my Lord Hearsay and then Sit Down23
The court will then ask Counsel why the witness tendering a statement made by a person not
presently in court as evidence. If such a statement is being tendered as truth of the statement (the
court will sustain the objection) otherwise it will give a go ahead as aforesaid…….

Circumstantial Evidence

1. Circumstantial Evidence is any fact from the existence of which the judge can infer the
existence or non-existence of a fact in issue. When circumstantial evidence is given by a
witness in court – such a witness is inviting the judge to:

a. Assume that the witness is speaking the truth

b. That the person against whom the evidence is given committed the crime.

For example, in murder cases when a witness testifies that he saw the accused carrying a
blood stained knife at the door of the house in which the deceased was found mortally
wounded…. in this scenario the witness is asking the judge to assume that the prosecutor is
telling the truth and secondly, that the accused inflicted the mortal wound with the knife.

2. David Zulu v. The People (1977) 151 (S.C)

This case brings out the fundamental points in relation to what amounts to circumstantial
evidence and how the court should approach the case when such evidence is before it:

a. Firstly, the case demonstrates that it is competent for the court to convict on circumstantial
evidence as it is to convict on any type of evidence which is admissible.

b. The weakness of circumstantial evidence is that it is not a direct proof of the facts in issue but a
proof of facts not in issue but relevant to the fact in issue and from which inference of the fact
in issue may be drawn.

c. It is incumbent on the judge to guard himself against drawing wrong inferences from the
circumstantial evidence at his disposal before he can feel safe to convict.

22 When Counsel stands to object – the other Counsel should sit down. Never two lawyers standing at a go
23 The court is ongoing… examination of witness… thus the objection is made immediately and viva voce

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 d. In order to feel safe to convict the judge must be satisfied that the circumstantial evidence has
taken the case out of the realm of conjecture so that it attains such a degree of cogency which
can permit only of an inference of guilty.

e. Lord Heward, Chief Justice of England in P. L. Taylor and Others V. R, 21 Cr. App. R. 20.
where at page 21 he states: "It has been said that the evidence against the applicants is
circumstantial; so it is but circumstantial evidence is very often the best. It is evidence of
surrounding circumstances which, by un-designed coincidences, is capable of proving a
proposition with the accuracy of mathematics."

f. Saidi Banda V. The People SCZ Appeal No. 144 Of 2015

1. in this case the Supreme Court affirmed that it is competent in some instances to convict
upon circumstantial evidence. The court went on to emphasize that the law with respect to
circumstantial evidence has been restated many times by this court, and it is that, in order to
convict based on circumstantial evidence, the inculpatory facts must be incompatible with
the innocence of the accused and incapable of explanation upon any other hypothesis than
that of the accused's guilt.

The court then proceeded to explain the three staged approach whose net effect I believe is
in no way different from the principle in David Zulu that the circumstantial evidence should
be so overwhelming so as to take the case out of the realm of conjecture to attain the level
of cogency which can only permit an inference of guilty. However, what is important to note
is that the courts are always trying to improve on ways of dealing with circumstantial
evidence.

2. Where the prosecution's case depends wholly or in part on circumstantial evidence, the court
is, in effect, being called upon to reason in a staged approach. The court must first find that the
prosecution evidence has established certain basic facts. Those facts do not have to be proved beyond reasonable
doubt. Taken by themselves, those facts cannot, therefore, prove the guilt of the accused
person. The court should then infer or conclude from a combination of those established facts that a
further fact or facts exist. The court must then be satisfied that, those further facts implicate the
accused in a manner that points to nothing else but his guilt.

3. Khupe Kafunda vs The People (2005) Z.R. 31 (S.C.) this case also demonstrates that it is
competent for the court to convict based on circumstantial available before it. The only vital
condition is that the circumstantial available should be so overwhelming such does it does
not only connect the accused to the crime but that it only leads to the inference that the
accused is guilty.

Differences between Circumstantial and Direct Evidence

i. Direct Evidence as opposed to hearsay is a statement of a witness offered as proof of truth of

any facts stated by him including his mental and physical state at a given time.

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 ii. Direct Evidence also means that a witness perceived certain things with one of his five senses or
that he was in a certain mental or physical state if such is in question.

Circumstantial Evidence

Circumstantial evidence is any fact (evidentiary fact or factum probans) from the existence of which
the judge may infer the existence of a fact in issue (principal fact or factum probandum). When the
witness tenders circumstantial evidence – the court is asked to assume firstly that:

1. The witness is telling the truth

2. That the accused committed the wrong in question
Circumstantial evidence may be proved by Testimony, Hearsay, Documents, things and other evidentiary
facts.

Things

Things are different types of evidence because they require the court to draw its own conclusions
based on its perception. The court draws inferences independent of what is reported to it by a
witness. For instance, where a witness says they saw a knife and that it bore blood stains. The court
is asked to assume that both statements are true. But where a witness produces and swears that the
bloodstained knife produced is the one he saw, the court is only bound to make necessary
assumption in order to reach the conclusion as to the condition of the knife.

Real Evidence

Real Evidence covers the production of material objects for inspection by the court.

a. Material objects
i. If the condition of a material object is among the facts in issue, e.g. where it is alleged
that a certain suit does not fit the customer or that a defendant‟s dog is vicious (the
object suit or dog) may be produced in court to enable the court form its own opinion
on the matter.

Failure to produce such a document would be to the detriment of the party that has
failed to produce.

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 ii. Real evidence may be used to establish the facts in issue but it is often of less probative
value if not tendered with the help of a testimony. Where an object is tendered as
evidence it should be accompanied by a testimony to explain why such an object should
be taken as evidence.

b. Appearance of Persons

i. A person‟s physical characteristics are included among the possible items of real
evidence. They serve as valuable means of proof. The fact that someone is tall, short,
weak, strong or left handed may render it more or less probable that he committed the
crime charged.

ii. The resemblance of a child produced in court in relation to his father or mother is
evidence of parentage (Affiliation Proceedings). The Court is acting on real evidence
when it determines the age of the child by observations or inspection (abena General
Kanene).

c. Demeanor of Witnesses

i. The demeanor of a witness is real evidence too. A witness who gives evidence forthright
and unperturbed is likely to be believed by the court than one halting and prevaricating.

ii. The demeanor of the witness is analogous to the answers given to the questions in cross
examination in so far as the same relates to the fact in issue.

d. Views

i. When that which is shown at the view is something that might have been brought in
court had it been convenient to do so e.g., when the courts view cars within the yard or
the court views the land at the farm. This is real evidence on which the court is invited
to act.

Cases Law in Support of Views as Real Evidence

1. Railways Commissioners v. Murphy (1967) 41 A.L. J.R

Where the court is taken to the factory and the happening is reconstructed. Hodson
contended that this is not real evidence but something which helps to understand
the evidence which has already been given in court (position in Australia).

2. Goold v. Evans & Co (1951) 2 T.L.R. 1189

Lord Denning contended that the reconstruction of the happening of an event is

real evidence (this position is different from the one in the case above.24

24 The difference in position is obviously reflective of the difference in jurisdiction

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 3. Tameshwar v. R (1957)

Precautions must be taken to make sure that both parties are present at the scene
and that the court does not act on the information which is illegally obtained.
The judge should be present on the scene and should not by any chance abscond
the view.

4. Christma Hotel v. Cavmont Insurance Corporation Ltd 2006/HPC/0039

This case merely illustrates an instance where the Zambian Court was invited for a
view in order to help arrive at the correct position. The main issue of determination
here was with respect to the person who was driving the bus at the time when the
accident happened. The court concluded that according to its observation the
allegation that the driver survived the accident was a mere sophistry because the
nature of the accident was such that a driver could not survive. In any case how
possible was it that the drive survived when a person who sat right behind him died
or when the engine of the bus was pushed so much to the driver‟s seat.

e. Tape Recordings
1. When a court permits a tape recording to be played over. It is acting on real evidence
if the intonation of the words is relevant.
2. If the attention of the court is to the terms of the recording – it may treat the same
as hearsay evidence.
3. The party relying on the tape recording must satisfy the court to the effect that there
is a prima facie case that the recording is original.

f. Document
1. A document may be put in evidence either as a substance (paper, for instance) or a
parchment bearing an inscription or else a statement (the inscription on the
substance). When a document is produced as a chattel it is definitely real evidence.
For instance, a deed claimed to have been stolen but produced to show that it bears
the finger prints of the accused.
2. When a document is treated as a statement it amounts to testimonial evidence.

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DOCUMENTS (DOCUMENTARY EVIDENCE)

Definitions [Broader or Scholarly Perspective]

Anything on which signs have been marked to record or transmit any information, a category
including books, letters, deeds, title deeds, maps, plans, drawings, photographs, and the like.
Documents can either be public or private. Public Documents record matters noted for the public
benefit and include statutes and statutory instruments, judgments, public records and registers and
are frequently proved by production of official or authenticated documents. Private documents on
the other hand are documents which are privately and unofficially produced, and include letters,
contracts, wills, and must be generally proved before being admissible in evidence. 25

Thus, documentary evidence is evidence provided by a document such as official records, archives,
statutes and other public documents, certificates, survey assessments and reports made by public
authority, registers of births, deaths and marriages. Judicial records, histories, scientific books and
records, maps and private papers. Save where statute regulates particular cases it must be generally
established by whom the document was made, before its contents can be considered for the
evidence they give as to facts in issue. 26

The contents of a document may be incorporated in the evidence of a witness who swears, for
instance that he entered into a written contract. The court may be referred to them because they
contain admissible hearsay, for instance an entry made by the registrar of births, deaths and
managers.

Documents as defined at Law

The Evidence Act – Chapter 43, Vol. 4 of the Laws of Zambia

Section 2 of the above Act provides that „document includes any device by means of which
information is recorded or stored and books, maps, plans and drawings.
The Evidence (Bankers Book) Act – Chapter 44, Vol. 4 of the Laws of Zambia

Section 2 of the above Act provides that „document includes any device by means of which
information is recorded or stored and books, maps, plans and drawings.

25 David M. Walker The Oxford Companion to Law, (Oxford University Pres: Oxford, 1980), 371
26 Ibid. Please Note that generally definitions are helpful save you need to be careful if you wish to cite them in exam. For instance,
in Zambia Sections 6 and 18 of The Interpretation and General Provisions Act, Cap Two, Vol. 2 of the Laws of Zambia provid e that
the Courts will take Judicial Notice of Acts, Applied Acts, Ordinances and Statutory Instruments inter alia. Therefore, there is no need
for proof when you need to rely on these documents. But the definition above has not talked about this.

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The Interpretation and General Provisions Act – Chapter 2, Vol. 2 of the Laws of Zambia

Cap 2 provides that document includes any publications and any matter written, expressed or
described upon any substance by means of letters, figures or marks or by more than one of those
means which is intended to be used for the purposes of recording that matter.

The Authentication of Documents Act – Chapter 75, Vol. 6 of the Laws of Zambia

Section 2 provides that "document" means any deed, contract, power of attorney, affidavit, or other
writing, but does not include an affidavit sworn before a Commissioner of the High Court”.

R v. Daye (1908) KB 33 at 340

DARLING J., stated that “any written thing capable of being evidence is properly described as a
document and that it is immaterial on what the writing may be inscribed. It might be inscribed on
paper, as it is the common case now; but the common case once was that it was not on paper, but
on parchment; and long before that it was on stone, marble, or clay, and it might be, and often was,
on metal. So I should desire to guard myself against being supposed to assent to the argument that
a thing is not a document unless it be a paper writing. It should say it is a document no matter upon
what material it be, provided it is writing or printing and capable of being evidence.

It is important to note that documents can be private or public. The general rule which apply both
to criminal and civil proceedings is that a document is only admissible in evidence upon proof of
duce execution. Due execution is proved commonly by handwriting or signature albeit other
methods include evidence of a writer (author), evidence of a witness who saw the document being
signed by someone, comparison of documents in dispute with those proved to be authentic,
admission by a party against whom the document is tendered and evidence of a witness who
acquired knowledge of writing in some way.

As regards proof of public documents which are admissible against the whole world subject to
rebuttal by the person against whom they are sought to be produced; to start with the court will take
Judicial Notice of Acts of Parliament (vide Sections 8 and 16 of Cap 2). Secondly Order 5 Rule 4 of
the High Court provides that:

The Government Gazette in Zambia and any Government Gazette of any Commonwealth
Country may be proved by the bare production of the Government Gazette. 27

27 This is also found in Order 5 Rule 4 of the Subordinate Court Rules

17
This invariably means that proof of execution of public documents is met by the mere production of
an official copy.

Example of Documents
It is important to note that some Zambian cases rely entirely on the principles developed in previous
cases and so citation of one case is enough unless otherwise. In other words, I am saying “some
cases provide for the same things or principles and so you can use one case (landmark case) to
explain all the principles unless you have the luxury of time to cite all cases”.

1. Without Prejudice Documents

Cutts v. Head (1984) Ch. 290 at 306

The rationale behind the without prejudice policy is that parties should be encouraged as far as
possible to settle disputes without resort to litigation and should not be discouraged by knowledge
that anything said in the course of negotiations shall be used against them in courts of law……

Lusaka West Development Company, BSK., Chiti (Reciever) and Zambia State Insurance
Corporation v. Turnkey Properties (1990) ZR 1

As a general rule without prejudice communications or correspondence is inadmissible on grounds

of public policy to protect genuine negotiations between parties with a view to reaching settlement
out of court.28

The rationale for without prejudice as outlined above was later ingeminated in Boart Longyear (Z)
Ltd v. Austin Makanya – Selected Judgment No. 9 of 2016 where the court postulated that:

The without prejudice rules is an evidentiary rule of admissibility. The rationale behind it, is to
promote the freedom of parties to negotiate matters in dispute between them amicably, without
holding back in fear that whatever they divulge may be used against them in litigation.

Exceptions to the Without Prejudice Rule

Usually, without prejudice will be admissible in the following instances which are exceptions to the
general stated above, namely: when the case of the party relying on such a document rest wholly on
such documents,29 when the issue is whether the without prejudice documents have resulted in a
concluded compromise agreement,30 and when there is need to show that an agreement concluded

28Rule 39 of the Legal Practitioners Practice Rules – encourages practitioners to advise their parties to settle matters out of court ( ex
curia) but Counsel should be aware of the Statute of Limitation or any other Acts of Parliament Providing for Limitation lest the
party loses the cause of action in trying to settle outside court.
29 Lusaka West Dev. Co., BSK Chiti and ZISC v. Turnkey Properties (1990) ZR 1
30 Unilever Plc v. Proctor and Gamble (2001) 1 AII ER 783

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 between the parties through without prejudice documents should be set aside on ground of
misrepresentation, fraud or undue influence.31

2. Electronically Generated Documents (Emails inter alia)

The Electronic Communications and Transactions Act No. 21 of 2009 is the relevant statute
when it comes to the evidence of this nature. Section 2 of the said Act defines Email, Data Message
inter alia. Section 4 of the Act gives data message legal force. Section 6 of the Act speaks to the
legal force of an electric signature. Section 7 of the Act is equally important as it talks about the
originality of an email inter alia. Section 8 of the Act talks about the admissibility and evidential
weight of data messages. This Section creates an exception to the best evidence rule. 32 Perhaps
because it is difficult to produce the original data message in court due to the fact that a person
trying to rely on such information will present printed copies to court. 33 Thus, in most cases such
documents will only raise issues if the other party objects to the production of the same on ground
that it has been altered or perhaps the person tendering it into court is not a competent witness. In
the absence of such allegations by the other part – there is no need to even lay a foundation on
production of such evidence.34

OTK Ltd v. Aminita Zambiana Ltd and Others 2005/HPC/0199

It was held in this case that Section 8(4) of the Electronic Communications and Transactions Act
allows for receipt and admission by the Court of a data (electronic generated message) from a
person other than an expert. Thus, there is no need to parade an expert to prove that the
computers through which the communication was effected were operating properly inter alia.

3. Documents Executed Outside Zambia

The relevant statute under this type of document is the Authentication of Documents Act –
Chapter 75, Vol. 6 of the Laws of Zambia. It is important to note here that the documents
affected here are usually private documents. A plethora 35of cases attests to this proposition.

Section 2 of the said Act provides that “authentication when applied to a document means the
verification of any signature thereon”. Section 3 of the Act speaks to how the documents executed
outside Zambia should be authenticated without necessarily explaining the consequences of failure
to authenticate. However, the courts as will be noted herein-below, shortly, have labored to explain
what amounts to authentication and the effect unauthenticated documents.

31 Unilever Plc v. Proctor and Gamble (2001) 1 AII ER 783

32 As taught by Counsel Steven Lungu
33 My understanding or interpretation
34 My understanding
35 This case is also very important when dealing with differences between the General List and Commercial List. It was held in this

case that commercial list was introduced as a fast track section (now division) of the High Court to assist in the speedy disposal of
commercial matters. That commercial list is a division of the High Court and not an independent court. The court further stated that
the issuance of Order for Directions by the judge in commercial list pursuant to Order 53 Rule 8 is intended to make the judge take
charge of the matter at an early stage and track it to its logical conclusion. The said rationale is also true for witness statements.

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 Execution of documents as used in Section 3 of the Authentication of Documents Act refers to
signature of a document. 36 The term Execute means to make „a legal document‟ valid by signing; to
bring „a legal document‟ into its final, legally binding enforceable form (each party executes the
contract without a signature witness). 37

African Alliance Pioneer Master Fund v. Vehicle Insurance Limited – SCZ 2011 the court held
that in determining where a written document was executed, courts should consider the following:

i. The place of execution as agreed to and specified in the contract, even if the contract was actually
signed elsewhere. This is important as it will indicate the law which the parties intended to apply to
their contract. When the place of execution is indicated in the document – it matters not the place
where the parties signed the document.

ii. The place where all the parties signed or sealed the contract, if all signed in one place or location.
Here too the presumption will be that such a place is the place whose law they parties intended to
govern their contract unless otherwise.

iii. If the two above does not apply, the court should then take note of the last party signed. Under this
point the court noted that it is commonsense that unless both parties sign a contract document, it is
not an agreement worth its name. That is to say a document only becomes a binding contract or an
agreement the moment the other the second or the last party signs it.

Thus in this case a document which was signed by one party in Gaborone, Botswana and the other
in Lusaka, Zambia on two different dates, namely on 9 and 29 th September, 2008 respectively was
held to have been executed in Zambia and needed no authentication for purposes of use in Zambia.

Lummus Agricultural Services Co. Ltd and Lummus Agricultural Services (Z) Ltd v.
Gwembe Valley Dev. Co. Ltd SCZ Appeal No. 29 of 1997 the court held as follows:

 A document executed outside Zambia will remain unavailable for use in Zambia if not
authenticated in accordance with Section 3 of the Authentication of Documents Act – Cap 75,
Vol.6 of the Laws of Zambia.

 An instrument which is not attested or registered is valid between the parties but ineffective against
other persons (third parties).

36 African Alliance Pioneer Master Fund v. Vehicle Insurance Limited - SCZ 2011
37 Black‟s Law Dictionary – the definition as cited by the court in the African Alliance case

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 A document executed outside Zambia cannot be useful for any purposes in Zambia before it is
authenticated and its authentication has no retrospective effect.

Steak Ranches International BV v. Steak Ranches Ltd Appeal No. 219/2012

 When the parties have agreed to have signed the document, there is no need to authenticate it (the
issue of signing is moot for want of verification of signatures. It is not a fact in issue). The
document is thus unequivocally binding between the parties.

 Therefore, to oust a document only on the ground that it is not authenticated when in actual fact
the parties themselves do not dispute attesting to the document would be a miscarriage of justice.

Samuel Chitungu v. Anson Enterprises Ltd 2015/HP/0815

 The residential addresses for the grantor alias Donor and Grantee alias Donee were Zambian
and the Power of Attorney was witnessed in Zambia. Thus, in the absence of any evidence that
the document was executed outside Zambia, the POA was valid for use in Zambia without
authentication.

Rainbow Tourism Group (Z) Ltd v. Savoy Hotel Ltd and Another 2014/HPC/0209
 The ruling by the High Court in favor of the Defendant in this case, saw a serious and very
equivocal departure from the principles set in the preceding cases. Suffice to say the Judge in
the lower court was on the frolic of his own. Take note of the ruling of the Supreme Court on
the same matter on appeal. The SCZ could hardly wait to overrule the ruling of the High
Court.

Rainbow Tourism Group (Z) Ltd v. Savoy Hotel Ltd and Another Selected
Judgment No. 13 of 2017

 On appeal the Court ruled in favor of the appellants by upholding the principle set in
the Lummus case, namely; that an instrument which is not attested or registered is valid
between the parties but ineffective against other persons (third parties).

Primary and Secondary Evidence

The general rule is that the contents of a document must be proved by primary evidence, for
instance, by production of the original document in court. Section 3 of the Evidence Act embodies

21
this general rule. 38 Additionally, Section 3 (1) (a) of the Evidence Act embodies the principle that the
document should be produced by a witness with personal knowledge of its contents or a witnesses
who somehow dealt on the document otherwise it will amount to hearsay. 39 This is to say unless the
intention of a party is to show mere existence of the document he should adduce primary evidence
of the document.

Section 3 of the Evidence (Bankers Book) Act – Cap 44 of the Laws of Zambia provides that entries
in banker‟s book are prima facie evidence of such entries albeit there should be proof that the book is
the ordinary book of the bank and the entries were made in ordinary course of business of the
Bank. 40Section 3 (2) (b) of the Evidence Act allows for receipt of secondary evidence provided that
the same is certified as true copy of the original. 41 Below are some of the instances when a party will
rely on secondary evidence:

a. Where the original document is lost and cannot be found

b. Where it is practically impossible to produce the original document

c. Where the original document is in the possession of a stranger to the proceedings and such a
person rightfully refuses to produce the document. In George Bienga v. The People (1978) ZR
(HC) with reference to Cross on Evidence the court stated that when the original of a document is
in the possession of a stranger to the litigation, the proper course for the party desiring to prove the
contents of the document is to serve the stranger with a subpoena duces tecum. The stranger
may, however, be able to establish a claim to privilege in respect of the document when secondary
evidence of its contents becomes admissible.' 42

d. Where the document is in the possession of the opposing party to the proceedings who refuses to
produce it even after serving them with a Notice to Produce. Zaksat General Trading Co. Ltd.
V. Yousef Al Shaibani & Others (2000) SLR 60 the case discusses the essence of Notice to
Produce and the rationale behind the document. It was held that:

When a document is in the possession of the adverse party or someone bound to give up
possession thereof to him any such party refuses to produce it either after notice, or when notice is

38 Section 3 of the Evidence Act – Cap 43 of the Laws of Zambia

39 This point is necessary on production of evidence too because you need to establish custody of the document inter alia during
examination of witness
40 Section 7 of the Evidence (Banker‟s Book) Act provide instances when Bankers and Officials of the Bank will not be compellable

witnesses. This is in instances when the Bank is not a party to the proceedings. This issues is therefore relevant on the par t of this
document where competency and compellability of witnesses is discussed.
41 ibid
42 Subpoena duces tecum should be distinguished from subpoena duces testificandum which is issued to compel a witness to

come to court and testify.

22
 excused, the other party may, in civil cases, provided that it was duly stamped,43 give secondary
evidence of its contents.

The object of a notice to produce is to enable the adversary to have the document in court, and if
he does not, to enable his opponent to give secondary evidence thereof, so as to exclude the
argument that the latter has not taken all reasonable means to procure the original.

While Primary evidence is the original copy of the document. Secondary evidence is the photocopy
of the original document. In R v Wayte (1983) 76 Cr. App. R. 11O at 116 it was held that:

First, there are no degrees of secondary evidence. The mere fact that it is easy to construct a false
document by photocopying techniques does not render the photocopy inadmissible.

The fact that the documents were only copies merely went to weight, not admissibility.

The contents of the document as a general rule must be proved by production of primary evidence.
There should be proof of due execution when dealing with documents 44 (especially private
documents).

Practice Point Summary:

1. Letter of Courtesy
2. Notice to Produce (Run to this if there is no positive response to the letter in 1)
3. Produce Secondary Evidence if the two documents above have not been responded to positively

Production and Admission of Evidence

It is important to take cognizance that there are different rules that apply in terms of production and
admission of evidence, let alone the weight to be attached to the evidence that falls within the above
discussed types of categories and their sub-categories. Therefore, it is important to identify the facts
in issue, evidence available for each issue and then ascertain the sufficiency of t he evidence. 45
Further, there is a distinction in the weight to be attached to admitted evidence that falls within each
43 This should be understood contextually [depending on the jurisdiction]. In Zambia it may suffice to say „provided the Notice to
Produce is Properly Served on the Party]
44 It is important to take note that the court will usually take judicial notice of Public Documents (Section 6 and 18 of Cap of the Laws

of Zambia). Unless their production is opposed to on ground of forgery inter alia – proof of execution will not really be needed.
45 Is the evidence available capable of proving the issue beyond reasonable doubt or on balance of probabilities in criminal and civil

procedure respectively?

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of the above categories/sub-categories. Nonetheless, there are four general standards to be satisfied
for the production and admissibility of evidence which include:

1. Relevancy
The proposed evidence should be relevant in the sense that it should aid in proving or establishing
the existence or nonexistence of the fact in issue. The evidence tendered should logically relate to
the facts in issue.

2. Authentic or Genuine of Evidence

The proposer of the evidence should at least show that the proposed evidence is genuine. This can
be achieved by producing primary evidence.

3. Competency of Source of Evidence

The source of the evidence should be from a competent source. For example, evidence should be
produced in court through a competent witness.46

4. Custody of Evidence

The proposer of the evidence should show that the document produced was at one point or the
other in the custody of the witness otherwise it will be documentary hearsay subject to the rule
against hearsay.

Exhibits

Exhibits are evidence and every advocate must know how to manage exhibits both before and
during trial. Exhibits in any trial (criminal or civil) must invariably fall into one or more of the
categories of evidence discussed earlier. The four general standards highlighted above apply to
exhibits and failure to show the existence of the four rules will render the exhibit inadmissible or
lose its probative value. Proof of competence and custody inter alia is obtained through the
examination of witnesses (examination in chief and re-examination). Thus, exhibits are constantly
introduced into court through the examination of witnesses by an advocate. Witness stands in
witness box and the following questions are asked in that order….

1. What is your name?

2. What is your age47?

46 The CPC outlines a type or category of witness that are not competent depending on the nature of the case
47 To establish e.g. that the witness is over 18. Under Section 7 of The Evidence (Bankers Book) Act – Cap 44 Bankers and Officials
of the Bank are not compellable witnesses in matters to which the Bank is not a party. Further, the Evidence Act as stated above says
it should be produced by a witness equipped with the knowledge of its contents.

24
 3. What is your address
4. What is your occupation?
For expert witnesses:
5. As a state pathologist what do you do?
6. How long have you been a state
pathologist?48
7. Where did you qualify as a state
pathologist?

The rules and sub-rules relating to the mode of proof examining the witness include that leading
questions should not be asked in examination in chief but in cross examination inter alia. The
following is the essence of these rules relating to production of evidence:

i. The examination of witnesses help the court ascertain the truth

ii. To avoid unnecessary delay of courts time
iii. To protect the parties in a dispute including accused persons and their witnesses in
criminal cases from harassment or undue embarrassment or prejudice.

How Evidence is presented in Court

It is important at this stage to consider how evidence is presented in court. To start with if parties
have agreed to tender evidence by bundles of documents then the rules applicable to that formula
(pleadings) will apply. 49 Order 19 of the High Court Rules provides for Order of Directions. Rule 1
of the said Order provides that:

The Court or trial Judge shall, not later than fourteen days after appearance and defence have been
filed, give directions with respect to the following matters:

(a) reply and defence to counter claim, if any;

(b) discovery of documents;
(c) inspection of documents;
(d) admissions;
(e) interrogatories; and
(f) place and mode of trial

48The answer to this will mainly speak to the weight which the court will attach to the evidence so tendered
49 Order 6 and 19 of the High Court are important. Under Order 6 the mode of commencement will determine how to tender
evidence (by Affidavit or Bundles). Order 19 talks about pleadings – Discovery, Inspection etc. This order is important because once
pleadings close – documentary evidence will hardly be relied on in court if it is not part of the bundles.

25
Therefore, where this is the case the parties are expected to strictly comply with the Orders for
Direction as doing otherwise is usually at the party‟s peril. The case of Mwape Kapenda v. Elias
Tembo and 3 Others 2013/HP/0797 discusses the importance of Orders for Directions and so it is
important that the reader takes time to read the said case in full.

In Mwape Kapenda v. Elias Tembo and 3 Others 2013/HP/0797 the court said the following:

It is generally desirable for each party to see all material documents in the possession of his
opponent, and to take the copies of the more important ones. Such disclosure is obtained by the
process called discovery of documents. The process of disclosure of documents is twofold and includes:

a. The disclosure of what documents exists

b. The inspection of the documents as the other party is entitled to see.

The process of discovery is achieved through the parties serving lists of documents on each other
and later filling bundles of documents in line with the Orders of Directions before the matte r
proceeds to trial. If a party wishes to file additional documents it does the same with leave of court.
The party files the following documents in order to obtain leave of court:

a. Application to File Supplementary Bundles of Documents

b. Affidavit in Support of Application to File Supplementary Bundle of Document

The essence of discovery is to enable the other party inspect the documents for purposes of raising
objections.

Below are the steps that the parties will take where evidence is not to be introduced by bundles of
documents. Mainly in criminal matters where the witness produces the document physically.

Production

1. The advocate must make his witness say something about the exhibit and thereafter show the same
to the opposing party.

2. The intended exhibit must be shown to the witness by the party proposing it. In turn the witness
must be made to specifically refer to the intended exhibit, without announcing

3. The advocate must ensure that the witness sufficiently identifies the intended exhibit after which
the intended exhibit must be marked with some unique mark/symbol/number to identify it.

Admission
4. The proposer of the intended exhibit must lay the necessary evidential foundation for its admission
as evidence. Depending on what the intended exhibit is and how it fits into the trial, the advocate

26
 must establish through the witness(es) the necessary foundation for its admission into evidence. At
the minimum the evidential foundation must respond to the four general standards raised above
and that the intended exhibit is a document, that it is the best or primary evidence. If it is
secondary, it must be shown that primary evidence is unavailable.

5. The proposer of the intended exhibit must offer it into evidence. The magic question is “Do you
wish to produce this item as part of your evidence?” The item will then be admitted into evidence if
there is no objection and it will then be marked with an exhibit number by the court (i.e., Exhibit
P1”, “Exhibit P2”, “Exhibit P3”)

6. Objections to the admission of items as exhibits must be made, argued and decided upon soon
after the offer is made.

7. If he item is admitted as evidence that exhibit or relevant portion of it will be read out and
published in the court room by the witness who offered it. The exhibit will then remain part of the
court record and must then be considered by the trial court in the final analysis.

LEGAL PROFESSION PRIVILEGE

The doctrine of legal professional privilege has been at the heart of the lawyer client relationship
since its origins in the 16th century. Lord Taylor of Gosforth CJ, in R v. Derby Magistrates’
Court, Ex Parte B [1996] 1 AC 487 at 507C-E50, observed:

a man must be able to consult his lawyer in confidence, since otherwise he might hold back half the
truth. The client must be sure that what he tells his lawyer in confidence will never be revealed
without his consent. Legal professional privilege is thus much more than an ordinary rule of
evidence, limited in its application to the facts of a particular case. It is a fundamental condition on
which the administration of justice as a whole rest.51

Where legal professional privilege exists, it is absolute and cannot be overridden by a supposedly
greater public interest, nor is it subject to any balancing exercise between maintaining the privilege
and weighing up competing interests in favor of disclosure. 52 Communications between a lawyer and
client which attract legal professional privilege are protected from disclosure, whether those
communications are spoken or written.

50 This case is also considered in Ethics (Head 1)

51 Three Rivers DC v Bank of England (No 6) [2005] 1 AC 610 (the rationale was equally stated in this case)
52 Three Rivers DC v Bank of England (No 6) [2005] 1 AC 610

27
For legal professional privilege to exist, however, certain conditions must be met. These are
considered below by reference to the two classes of legal professional privilege: legal advice privilege
and litigation privilege.

Legal Advice Privilege

In circumstances where no litigation is contemplated or pending, communications between a client

and their lawyer are privileged by reason of their being subject to legal advice privilege, provided
they are:

a. Confidential;
b. made or written by or to the lawyer in their professional capacity;
c. and for the purpose of obtaining legal advice or assistance for the client. It is essential that all three
limbs are present for privilege to exist.

In Wheeler v. Le Marchant (1881) L.R. 17 Ch.D. 675 at 682 the court held that:

The quality of confidence is a prerequisite to the privilege, because it is the protection of such
confidence which forms the bedrock of the rationale for the privilege as essential to the
administration of justice.

This invariably means that there can be no privilege without confidentiality. If, therefore, an
otherwise privilege document has lost its confidence there can be no claim for privilege. There can
be no privilege unless the communication is confidential.53

In considering whether a communication is confidential, the test is not whether it contains

confidential information, but whether disclosure of it would be a breach of confidence.

In Croft House Care Limited v Durham County Council5 [2010] EWHC 909 (TCC) at 38 the
court held that:

the fact that documents contained confidential information was not in itself a reason for not
providing such documents on disclosure and inspection. The test was rather whether the
communication or document was made confidentially for the purpose of obtaining legal advice.

53 Phipson on Evidence pages 602 paragraphs 23-18 (as cited by the Court in the Mpongwe Farms Ltd v. Dar Farms and Others)

28
To attract the requisite confidence, the communication must also occur in the ordinary course of
professional engagement of a lawyer. In Follett v Jefferyes 1 Sim (N.S.) at 16-17, Lord Cranworth
V-C observed that:

the rule does not apply to all which passes between a client and his solicitor but only to what passes
between them in professional confidence”. In this case, instances of fraud that had been contrived
by the solicitor and client together were recognized to be exceptions to the general rule.

Litigation Professional Privilege

Legal professional privilege gives the holder of the privilege the right to resist disclosure of protected
material in legal proceedings, even if that evidence is of critical relevance to the outcome of the
proceedings.

American Insurance Co. Ltd vs Herbert Smith & Co. (1997) 137 NJ 148

These authorities, he submitted, established that if a privileged document is disclosed by mistake

the courts will turn the page back and restore the status quo ante by ordering the return of the
document and by restraining any use being made of it.

Webster vs James Chapman & Co., (a firm) & Others [1989] 3 AII ER at 948

Where a privileged document mistakenly finds itself in the hands of the third party, part to the
proceedings, the document will remain privileged and unavailable for use in court as evidence. It
would be unfair that a careless of one part should be allowed to put the other party at a
disadvantage.

Mpongwe Farms Ltd v. Dar Farms Ltd and Others 2011/HPC/0512

The assiduousness of the issue in this case pore[d] on legal advice privilege. Therefore, the court
made reference to the purpose and rationale of the same as outlined in the cases above. The court
found that the document (letter) was indeed privileged. However, given that the document was
intentionally (not mistakenly as was the case in Webster) copied to the third party, it lost
confidence and thus was no more privileged.

EXTRINSIC EVIDENCE

The best evidence rule which is the general principle of evidence is that a party seeking to prove a
fact must adduce the best form of evidence that the circumstances allow. As a result of this direct
evidence is preferred to hearsay, an original document to a copy albeit exceptions exist when

29
secondary evidence is admitted. The rationale behind the best evidence rule lies in the exclusiveness
and conclusiveness of a document as evidence of its contents. The major problem that arises from
the above proposition is firstly, whether, once a transaction has been embodied in a document,
evidence may be given of those it mentions, and, secondly, the extent to which evidence may be
given of the terms used in the document.

The problem in either case is one of admissibility of extrinsic evidence, which entails evidence other
than the document the contents of which are under consideration. This type of evidence is called
Parole Evidence because it often takes the form of oral testimony albeit it may consist other
documentary.

Extrinsic evidence is generally inadmissible when it would, if accepted, have the effect of adding to,
varying or contradicting the terms of a judicial record, a transaction required by law to be in writing,
or a document constituting a valid and effective contract or other transaction. This principle is often
applied to contacts and so there is a plethora of contract law case law on the principle.

In Bank of Australia v. Palmer (1897) A.C. 540 Lord Morris held that:

Parole testimony cannot be received to contradict, vary, add to or subtract from the terms of a
written contract or the terms in which the parties have deliberately agreed to record any part of
their contract.

When considering the evidence of this nature the court usually put regard to the presumed
intention of the parties. If the court is satisfied that the parties intended to be bound absolutely
by the contract they are bound by its terms though unacquainted with them and though one of
the parties believes that something said in the course of negotiations is still binding. 54

It would be pointless to admit extrinsic evidence with regard to those negotiations because it is
irrelevant. It is for the same reason that evidence that one of the parties to a written agreement
did not intend to be contractually bound is inadmissible. 55 Evidence of antecedent negotiations
is relevant and admissible if they retain their contractual effect or legal significance after the

54 Parker v. South Eastern Rail. Co. (1877), 2 CPD. 416

55 Smith v. Mansi (1962) 3 AII ER 857

30
writing has been brought into existence. Such evidence is always admissible if tendered to
establish the existence of contract collateral to the writing, or the conclusion of a contract
which is partially oral and partly in writing.

In Holmes Limited v. Buildwell Construction Company Limited (1973) Z.R. 97 (H.C.)

The plaintiffs agreed in writing to hire a grader to the defendants. The terms of this agreement
included a clause to the effect that the plaintiffs would provide a driver. The grader was delivered to
the defendants but no driver was provided. The defendants repudiated the contract about one
month later. The plaintiffs alleged that it had been verbally agreed between the parties that the
defendants would provide transport so as to enable the plaintiffs' driver to reach the place where
the grader was to be operated. The plaintiffs further alleged that the defendants failed to provide
the transport and thereby were in breach of the contract. The plaintiffs claimed damages for the
hire of the grader. The defendants counterclaimed for breach of contract by the plaintiffs in failing
to provide a driver.

Held:
a. Where the parties have embodied the terms of their contract in a written document, extrinsic
evidence is not generally admissible to add to, vary, subtract from or contradict the terms of
the written contract.

b. By way of exception to the above rule, extrinsic evidence may be admitted to show that the
written instrument was not intended to express the whole agreement between the parties.

c. Any discussion of verbal conditions before the written agreement was completely superseded
by the written document.

d. Since the written agreement did not provide that the defendants should provide transport for
the driver the latter had no obligation to do so and the plaintiffs were in breach of their
contract by failing to provide the driver. Their claim for the hire price therefore failed.

WITNESSES

Witnesses are a means through which evidence is taken or brought to court. However, it is always
important for the court and indeed the parties to the proceedings to make sure that evidence is given
by a competent witness. The general rule is that any person capable of:

 Understanding the Nature of Oath or need for Affirmation

 Giving Rational Testimony
 Remembering what he perceived
 Communicating what he perceived,

31
is a competent witness. A person who is competent is usually, though not always, compellable. In
some instances a competent witness will not be compellable. The privilege of a witness is the right
of a witness although competent and compellable to refuse to answer certain questions or produce
documents even though relevant to the case.

Exceptions to the General Rule

1. The competency of:

a. Persons of Unsound Mind and,
b. Children of Tender Age,

depends on intellect and understanding. Therefore, these will not be competent witnesses if the their
mental capacity (in case of a child), illness, drunkenness and other similar conditions prevents them
from understanding the nature of the oath and giving rational testimony. Individuals of this class can
nonetheless give evidence while in their lucid mind. However, in most cases the competency of such
witnesses is established at the earliest before the witness begins to give evidence by holding a voire
dire.

What is a Voire Dire?

1. Voire Dire is a preliminary examination by a judge of a witness to determine their competence. A

party who wishes to call a child witness should lay sufficient ground for the admission of their
evidence or should satisfy the court of the competence of the child to give evidence. This is achieved
through a voire dire.56

2. The Juveniles Act Chapter 53 of the Laws of Zambia provides in Section 122 that child witness
below the age of 14 can only give evidence where the child is possessed of sufficient intelligence,
understands the duty of speaking the truth and the same should be received on oath.
a. The evidence of a child shall not be received by the court where the child is not possessed of
sufficient intelligence to justify the receipt of the child‟s evidence on oath and does not
understand the duty of speaking the truth.
b. The evidence of the child will not be the basis of a conviction if it is not corroborated.

This means that the accused can appeal against the conviction and sentence where the conviction is secured
on an uncorroborated evidence of a child. This form of corroboration being a statutory requirement means it
is mandatory.

56 Arguably, in Zambia a Voire Dire is restricted to the circumstances provided for under Section 122 of the Juveniles Act.

32
 3. Rationale for the Voire Dire

i. The rationale is that a child may lack the necessary capacity to give evidence. Thus, it is
necessary for the court to make sure that the child is of capacity and competent to give
evidence.

ii. Case Law on Voire Dire

i. Zulu v. The People (1973) ZR 326

a. Appellant was convicted of defilement solely based on evidence of a child
witness (prosecutrix) aged 13. Appealed against sentence on ground that the
voire dire was defective.
b. The Supreme Court outlined the steps to follow when faced with child w itness:
i. The court should make a finding to the effect that the child witness is
of tender age. If the finding is affirmative, then Section 122 of the
Juveniles Act applies otherwise it must not apply.
ii. The court should make a finding as to whether the child possess
sufficient intelligence to justify receipt of evidence on oath; also inquire
on whether the child understands the essence of telling the truth.
iii. If the findings in the two things above is in the affirmative, then the
child should be sworn in to give evidence otherwise the court should
decline to receive such evidence.
iv. The court should record the proceedings of the voire dire.

The People v. Thomas Manroe Hpa/50/2010 57

The convict was charged of two accounts of defilement contrary to section 138(1) of the Penal
Code, as read together with Act No. 15 of 2005. The matter was referred to the High Court for
review and sentencing. Held:

1. Section 131 A of Act No. 15 of 2005 defines “child” as person below the age of sixteen years.

2. The position of the law is that as general rule, Courts may act on the testimony of a single witness
even where there is no other evidence which supports it.

3. Both common sense and experience suggest that there are certain categories of witnesses and certain
types of evidence which are dangerous to rely on. Amongst this special species of evidence is the
evidence of children.

57While the Zulu case remains important on this area of the Law of Evidence, the Thomas Manroe case is equally important
because it discusses corroboration needed in Sexual Offences and the one required under Section 122 of the Juveniles Act.

33
 4. The evidence of children is key in two main respects. First, children may be witnesses to the
commission of sexual offences and second, children may in fact be victims to sexual offences. The
general rule, therefore, is that evidence of all children who testify in Court must be corroborated.

5. The rationale for requiring that the evidence of children must be corroborated is that by reason of immaturity of mind of
a child, whether the evidence is sworn, or unsworn, one way, falls within the category of what may be conveniently called
suspect witness, whose evidence must of necessity be treated as suspect.

6. A conviction which is founded on suspect evidence cannot be regarded as safe, unless such evidence
is supported to such an extent as satisfies the trier of the facts that the danger of placing reliance
upon suspect evidence has been excluded.

7. The general rule, therefore, in sexual offences is that there must be corroboration of both the commission of
offence and the identity of the offender in order to eliminate the twin dangers of false complaint and false
implication.

8. Notwithstanding, as a matter of strict law, a conviction on the uncorroborated evidence of the

complaint is competent.

9. A voire dire is a preliminary examination to test the competence of a child to give evidence. In Zambia, a voire dire is
governed by section 122 of the Juveniles Act.

10. It is essential that the trial Court not any, conducts a voire dire, but also records the question and
answers and the trial Court's conclusions to enable an appellate Court to be satisfied that the trial
Court has carried out its duty.

11. The convict was properly convicted because the evidence of the prosecutrix was corroborated by
medical evidence which showed that the complainant's hymen was broken, albeit the report was
made late.

2. The competency of:

a. An accused person and,
b. Co- accused

depends on their status. The general rule at common law is that an accused person is not a
competent witness for the prosecution. The Criminal Procedure Code of Zambia, Cap 88 of the
Laws embodies this general rule in Section 157. 58 The exception to the general rule is found in
Section 151 of the Criminal Procedure Code which provides instances, circumstances or cases when
an accused person (husband or wife) can be competent witness for the prosecution inter alia.

58 Section 158 of the Criminal Procedure Code is equally important.

34
With respect to co-accused the general rule is that an accused person is not a competent witness for
the prosecution and this applies in cases where two or more persons are jointly charged so that a co-
accused person cannot be called by the prosecution as a witness against another. The rationale
behind this is that a person is jointly charged when they are all subject to the verdict of the court in
one proceeding. However, individuals who are jointly charged can become competent and
compellable witnesses against each other when either of them is discharged so that he is not subject
to the verdict of the court. The prosecution can achieve this by entering a nolle prosqui (Section 81 of the
CPC), withdraw of a charge (Section 88 of the CPC), offer of no evidence (Section 206) of the CPC) or as a result
of an acquittal of the accused due to no case to answer or in instances where the accused has
pleaded guilty. 59

The attendance of witnesses before the court to either testify or produce a document can be
voluntary or by compulsion. It is by compulsion when the court has issued either a Subpoena duces
tecum or Subpoena duce testificandum. Below are the statutory provisions empowering the court on its
own motion or by application by a party to summon a witness:

Subordinate Court

1. Section 41 of the Subordinate Court provides for these powers

1.1 Order 5 Rule 10 of the SCR – provides that a witness can be called to produce a document and
not to testify.
1.2 The document to issue is Subpoena Duce Tecum. Found in the first Schedule of the Sub Court Act.
Form 14
High Court

2. Section 27 of the Act provides for these powers.

2.1. Order 5 Rule 10 of the HCR – provides that a witness can be called to produce a document and not
to testify.
2.2. The documents to issue include:

a. Subpoena Duce Testificandum. Form 25

b. Subpoena Duce Tecum. Form 26

In criminal matters the Criminal Procedure Code provide for these powers in Section 143. The
documents to issue in order to compel attendance of a witness for such purposes are provided for in

59This information is important and relevant even in Criminal Procedure. Therefore, it is equally important under this topic to peruse
through the Plea Negotiations Act.

35
the Fourth Schedule to the Act. The court has to issue Summons (Form 8 Sub Court and Form 8a
High Court). 60

JUDICIAL NOTICE

The knowledge which is attributed by law to judicial persons, and which does not require to be given
them in a particular case by evidence. This includes all matters of law of the legal system and those
matters of fact which are undisputed and of everyday knowledge. 61

Cross on Evidence

The general rule is that all the facts in issue or relevant to the issue in a given case must be proved by
evidence, testimony, documents, things and relevant facts. Thus, where a plaintiff or prosecutor fails
to prove an essential fact, his opponent may succeed on a submission that there is no case to answer
albeit the evidence was readily available.

There are two exceptions to the general rule and they include:

1. There is no evidence needed for facts that can be taken judicial notice of.
2. No need of evidence of facts that have been admitted.

The court can take judicial notice of certain facts both in criminal and civil proceedings. When the
court takes judicial notice of things it declares that it will find that the facts exists albeit the existence
of the fact has not been established by evidence. For instance, if the date of Christmas should be in
issue, it will not be necessary for a party that desires to establish that fact to call a witness to swear
that the birth of our Lord is celebrated on 25 th of December; this is a matter for which the court
should take Judicial Notice.

Lecture Notes

The court may and in some cases must take judicial notice of serious matters. The court will take
judicial notice of various matters. The court will take judicial notice of matters of common

60 They are both Summons but drafted differently depending on the court.
61 Definition by David M. Walker, The Oxford Companion to Law, (Oxford University: Oxford, 1980)

36
knowledge which are so notorious that to lead evidence in order to establish their existence maybe
unnecessary and could be an insult to the intelligence to require evidence.

Commonwealth Shipping Representative V. P and O Branch Services (1923) A.C. 191

Lord Summer stated that Judicial Notice refers to facts which a judge can be called upon to receive
and to act upon either from his personal knowledge of them,62 or from inquiries to be made by
himself63 for his own information from sources to which it is proper for him to refer.

Holland v. Jones (1917) 23 CLR

The basic essential is that the fact judicially noticed should be of a class that is generally known as
to give rise to the presumption that all persons are aw are of it.

Rationale for Taking Judicial Notice

There are basically two reasons for the existence of judicial notice:

1. The doctrine expedites the hearing of many cases. Much time would be wasted if every fact was not
admitted had to be subject of evidence, which would in many instances, be costly and difficult to
obtain.
2. The doctrine tends to produce uniformity of decisions on matters of fact where a diversity of
findings might be distinctly embarrassing.

Facts Judicially Noticed Without Inquiry

The courts will take judicial notice of notorious facts without inquiry simply because the same facts
are so notorious to be the subject of serious dispute. R v. Luffe (1807), 8 East 193 the court held
that it is unnecessary to call evidence to show that a fortnight is too short a person for human
gestation period.

1. Hubert Sankombe v. The People (1977) Z.R 127 (SC)

The distance between clearly defined geographical locations, such as towns, is a matter of which
judicial notice can and should be taken. Section 18 of the Interpretation and General Provisions

62 This is of course subject to other considerations. “We shall see this later (in the voice of Mr. Chimuka”)
63 Fatyela v. The People (overruled by Shamwana v. The People).

37
 Act Cap of the Laws of Zambia – states that every statutory instrument should be published in the
gazette and shall be judicially noticed. The court then took judicial notice of SI No. 37 of 1971
which designates the roads between Kalulushi and Kitwe and gives a distance of 13.4Km. The
distance was judicially noticed.

2. Gastove Kapata v. The People (1984) ZR 47 (SC)

a. In so far as the utilization of personal knowledge is concerned, the general rule is that a court
may in arriving at its decision in a particular case, act on its personal knowledge of facts of
general nature that is notorious facts relevant to the case.
b. The commissioner being a resident of Kitwe was entitled to make use of his personal
knowledge of a general matter, that is a notorious matter namely, that the road in question was
public road to which the public had access.

3. Kaniki v. Jairus (1967) ZR 71 (H.C)

The court could not take judicial notice of an African Customary Law. If the judge wants to
acquaint himself with the knowledge of African Customary Law – he should sit with assessors or
experts of African customary law.

Facts Taken Judicial Noticed After Inquiry

Judges take judicial notice of common law. Courts take judicial notice of political information
supplied to it by secretary of the state. Courts will take judicial notice of a custom. 64 Courts will take
judicial notice of historical facts. Courts will take judicial notice of professional practice (Court
records inter alia).

1. Fatyela v. The People (1966) ZR. 135 (H.C)

It is improper for a magistrate to look at the record of another court in order to determine what
was said during the hearing of a case. The correct position and procedure is to have the clerk of
another court produce the record and to have a witness present at the other trial identify the
accused and testify as to what occurred.

2. Shamwana and Others v. The People (1985) ZR 14 (SC)

64 Refer to Kaniki v. Jairus – for the correct position in Zambia

38
 The trial judge of the High Court took judicial notice of the prosecution witness in another case in
the absence of evidence to that effect. The witness was convicted and sentenced of receiving goods
believed to have been stolen or unlawfully acquired. He was then acquitted. In Shamwana case the
appellant objected to the evidence of the said witness being admitted on ground that he was not
credible since he was convicted of an offence involving dishonestly. 65The court held that the
evidence of the witness was admissible because he was a clean person. The court took judicial
notice of the witness‟s acquittal by referring to court records.

PRESUMPTIONS

In the law of evidence, presumption is an inference or conclusion of fact which must be drawn from
certain other established.
Three Types of Presumption
a. Conclusive Presumption
These are conclusions which by law must be drawn from certain facts and which cannot be
rebutted by any evidence. They are not matters of evidence but rules. These include a presumption
that a child under 8 years of age cannot be guilty of a criminal offence (vide Section 7 and 14 of the
Penal Code – Cap 87 of the Laws of Zambia).

b. Rebuttable Presumptions
These are conclusions of law which must be drawn or are required to be drawn in the absence of
evidence to the contrary. For instance, the presumption that every accused person is presumed to
be of sound mind and liable for his deeds until the contrary is established is a rebuttable
presumption.

c. Presumption of Facts
These are conclusions of which a judge of fact may draw from other proved facts. It is however, of
great import to note that the strength or weakness of a particular presumption of fact depends on
the circumstances and the presence or absence of alternative explanation. For instance, possession
of stolen property shortly after it was stolen, in the absence of an explanation, raises an inference
that the possessor was connected with the theft.

Presumptions not based on Proof of Basic Facts

1. Presumption of Innocence

This is a fundamental principle of criminal law in common law countries (Zambian inclusive). The
presumption is to the effect that a person charged of a crime must be presumed innocent until the

65 The holding in Shamwana certainly overruled the position in the Fatyela case

39
 contrary is proved by the prosecution beyond reasonable doubt or the accused themselves have
admitted of being guilty. If no evidence is led by the prosecution to rebut the presumption, then
the accused must be acquitted. Article 18 (2) (c) of the Constitution of Zambia (Amendment) Act
No. 2 of 2016.

2. Presumption of Innocence in Favor of Children between 8-12 years Old

Presumption that children between 8-12 years are doli incapax. The presumption is rebuttable by
proof of mischievous discretion. Section 14 (2) of the Penal Code Chapter 87 of the Laws of
Zambia.

3. Presumption of Sanity
Section 11 of the Penal Code Cap 87 of the Laws of Zambia aforesaid provides that every person is
presumed to be of sound mind, and to have been of sound mind at any time in question, until the
contrary is proved. The effect of this presumption is to cast the burden of proof on the
prosecution.

Presumptions Depending Upon Proof of Basic Facts

1. Presumption of Death
This presumption will be made of a person if he has been missing for a continuous period of not
less than seven years. To prove this presumption one has to show that:

a. There are persons who would be likely to have heard of that person during that period. For instance,
his relatives and friends.

b. That the same people never saw or heard of him.

c. That all inquiries have been made in the circumstances and have not disclosed his existence or
whereabouts.

2. Presumptions of Marriage
A prima facie presumption in favor of the validity of the marriage is raised upon proof either
two circumstances:

a. That the parties went through an apparently regular ceremony of marriage and afterwards lived
as husband and wife. This presumption can be rebutted by proof that there was no
consummation
b. That the parties cohabited and were treated as married by those who knew them.

40
 3. Presumption of Legitimacy
a. It is presumed that a child born during wedlock or one born within gestation period of its
dissolution is a legitimate child.

b. This presumption is rebuttable if there is strong evidence to show that there was no intercourse
within the said period or perhaps by the use of DNA.

Note: Ancient Documents

 Documents which are 20 years old do not require proof of execution

CORROBORATION

Corroboration means the evidence that confirms the accuracy of other evidence in a material
particular. In criminal law it is independent evidence that implicates the person accused of a crime
by connecting him with it. In Director of Public Prosecution v. Hester (1973) AC 296 it was held
that the effect of corroborative evidence is that one credit worth witness confirms what another
credit witness has said. 66

The general rule as established in Director of Public Prosecution v. Hester (1973) AC 296 and
confirmed in Kilbourne v. R (1973) and Chizu v. The People (1979) ZR is that evidence of a
single witness is sufficient to prove any issue and therefore, a magistrate can convict on the evidence
given by one competent witness. In Mutale v. The People (1973) ZR and Ndhlobvu v. The People
(1973) ZR the court held that a magistrate can convict on uncorroborated evidence. 67

Naofu v. The People (1973) ZR 287 (SC)

1. This was a defilement case in which the accused argued inter alia that the corroborative evidence
available was not conclusive.
Held Held Held (In Mr. Mudenda‟s voice accompanied by his gesture)
a. Corroboration must not be equated with independent proof; it is not evidence which need to be
conclusive in itself.

66 Director of Public Prosecution v. Hester (1973) AC 296

67 This is of course subject to other considerations. “We shall see this later (in the voice of Mr. Chimuka”).

41
 b. Corroboration is independent evidence which tends to confirm that the witness is telling the
truth when he says that the offence was committed and that it was committed by the accused.

c. Where evidence of a witness requires corroboration it is nonetheless the evidence of the witness
on which a conviction is secured. Corroborative evidence merely serves to satisfy the court that
it is safe to rely on the evidence of a witness.

Corroboration may be required as a matter of statute (statutory law), practice and/or in instances
where the judge needs to warn himself of the dangers of convicting on uncorroborated evidence.

Corroboration by Required by Statute

It is not difficult to know instances when corroboration is required by statute. This is because the
circumstances are clearly stated in the relevant statute. Corroboration is required by statute in the
following instances or cases:

i) Perjury (Section 107 of the Penal Code)

ii) Sedition (Section 59 of the Penal Code)
iii) Procuration (Section 140 of the Penal Code. Proviso)
iv) Evidence of Children (Section 122 of the Juveniles Act)
v) Affiliation Proceedings (Section of the Affiliation and Maintenance of Childrens‟ Act)

When corroboration is needed by statute a magistrate a magistrate needs to warn and direct himself
as follows:

a. That the offence is one for which the statute requires corroboration in order to secure a conviction.
b. That the accused cannot be convicted in the absence of corroboration.

In criminal matters the corroboration required is the same as at common law. That is to say evidence
independent of that of the witness which implicates the person accused of an offence in a material
particular.

Corroboration needed by Practice

Corroboration is required by practice in the following instances:
a. Cases of Accomplices
b. Evidence of a Complaint in Sexual Offences
c. Evidence of Children
d. Claims against the estate of the deceased person
e. Matters under the Matrimonial Causes Act and Affiliation Proceedings

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When corroboration is required as a matter of practice the rule is that the court can accept the
evidence even though not corroborated but should warn itself of the dangers of acting on
uncorroborated evidence and should give reasons for so acting. When acting on uncorroborated
evidence the magistrate should direct himself properly to make sure that the dangers of acting on
uncorroborated evidence are excluded.

Emmanuel Phiri and Others v. The People (1978) ZR 79 (SC)

i. A magistrate must direct himself as to the dangers of acting on the uncorroborated evidence
of an accomplice with the same care as the jury would be directed and his judgment must
show that he has done so.

ii. No particular words are necessary for such a direction. What is necessary is that the
judgment should show that the magistrate has applied his mind to the particular dangers
raised by the nature and facts of a particular case before him.
Accomplices
Accomplices are:

1. Participants in the crime charged, either as principals or accessories. Receivers of stolen property in
instances where the trial is of the thieves from whom they received the property. Parties to a crime
which are admissible as similar facts.

2. Whether a witness is capable of being an accomplice is a matter of law but whether he is an

accomplice is a matter of fact. The burden to prove beyond reasonable doubt that a witness is an
accomplice is on the prosecution.

3. Where an accomplice gives evidence on behalf of the prosecution which is favorable to both the
defence and prosecution it is in the discretion of the court to warn itself.

4. There is no irregularity in not giving a warning where the court is of the view that doing so will
actually cause harm.

5. The corroboration warning is only given when a witness is testifying against the defence or
on behalf of the prosecution. There is hardly need for the warning when he is testifying on
behalf of the defence.

In Muyangwa v. The People (1976) ZR 230 (SC) and Chipango v. The People (1978) ZR 230
(SC) the court held that evidence by a witness who has already been convicted and possibly

43
acquitted remains accomplice evidence. Further, in Weigtman (1978) 1 NRLR the court held that a
person who has been given immunity from prosecution in return for his testimony is an accomplice.

Co-Defendants

1. Where an accused person makes an incriminating statement out of court, that is evidence only
against himself and not any other co-accused. Save where an accused gives evidence on his behalf at
times such evidence implicates the co-accused or undermines the defence of the co-accused.

2. Evidence given on oath by a co-accused is evidence in the case for all purposes.

Spouses of Defendants

1. The wife of an accomplice who testifies can corroborate his evidence. However, such evidence
should be treated with caution.
2. Where an accomplice does not testify the wife of that accused can corroborate the evidence of co-
accused who testifies.

Witness with an Interest to Serve

1. Sometimes a witness for the prosecution may not fall in the three categories of accomplice but may
have some purpose of his own to serve.

2. The evidence of a person may be tendered because of their desire to further their own interest than
to tell the truth.

3. Musupi v. The People (1978) ZR (SC)

a. Although there is a difference between an accomplice and a witness with an interest to serve.
Such distinction is otiose in so far as the court‟s approach is concerned. The question is whether
the danger of relying on such evidence has been excluded.

b. Once in the circumstances of the case it is reasonably possible that the witness has a motive to
give false evidence, the danger of false implication is present and must be excluded before a
conviction can be made.

c. Machobane v. The People (1972) ZR 101 (CA) an accused should not be convicted on the
evidence of a witness with a possible interest to serve unless there are special and compelling
grounds.

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 d. Kapindula v. The People (1978) ZR 337 the rule is that the trial court must warn itself of the
danger of acting on uncorroborated evidence.

e. Zonde v. The People (1981) ZR 337 (SC) a person in whose possession stolen property is
found is prima facie an accomplice or a witness with an interest to serve and the trial court must
warn itself of the danger of acting on the uncorroborated evidence of such a person.

Sexual Offences

1. Complainants in sexual offences, particularly female have been found to be capable of giving false
evidence for a crime which did not occur to implicate the accused. Because of this it is by practice
required that there should be corroboration or the judge should warn himself of the dangers
embedded in acting or convicting on uncorroborated evidence of the prosecutrix.

2. The judge can therefore convict on uncorroborated evidence provided the dangers of false
implication have been excluded.

3. Phiri v. The People (1982) ZR 77 (SC) in sexual offences there must be corroboration of both
commission of the offence and identity of the accused in order to eliminate the dangers of false
complaint and false implication. Failure to do this by the court is a misdirection.

Forms of Corroboration

1. Mwewa v. The People (1972) ZR 29 (HC) evidence of early complaint is not corroboration of the
evidence of the prosecutrix. The magistrate should remind himself that early complaint does not
amount to corroboration.

2. Machilika v. The People (1978) ZR 44 (SC) the presence of spermatozoa (amalume, sperm,
insande sande – mu citechi/nanikane) in a sexually active complainant is only evidence of the fact
that she had sexual intercourse a few days ago and not evidence of the fact that she had sexual
intercourse with the accused.

3. Kalimukwa v. The People (1971) ZR 85 (HC) independent evidence of the distressed condition of
the complainant soon after the alleged offence may be corroboration.
4. Zimba v. The People (1971) ZR 85 (HC) the court should satisfy itself that the distress was
genuine and not simulated.

5. James (1971) Cr App R 299 (PC) evidence of torn clothing must be treated in the same way and
tested for possible self-infliction. The torn clothing should be as a result of the action of the accused.
The distress should be genuine and not faked.

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Rape Cases
1. Corroboration needed in rape is more particular than in accomplices. The corroborative evidence
should relate to the material particular and should implicate the accused. Corroboration in rape
should also confirm that:

a. The sexual intercourse took place

b. That the complainant did not consent
c. That the accused committed the rape (James (1971) CR App R
d. Corroboration is not necessary in case of ingredients not disputed. For instance, if the accused
says they had sexual intercourse with the complainant but that it was consented, the prosecution
need not corroborate the evidence on the part where they are saying there was no consent. 68

Sworn Evidence of a Child

1. Section 122 of the Juveniles Act as Amended

Court can no longer receive unsworn evidence of a child. There is no more room for unsworn
evidence. The sworn evidence need corroboration for the court to convict on it otherwise the
accused should be acquitted.

2. Tembo v. The People (1980) ZR 218 (SC) the evidence of all children need corroboration.
The position of the law in this case is better than that in Chisha v. The People albeit both cases
were decided before the amendment to the Section. Under the previous position the court was
able to secure a conviction on unsworn evidence of a child witness which is no longer the
position of the law under the current provision. It is because of this backdrop that most of the
cases decided prior to the amendment no longer have a useful purpose to serve. They have been
overruled.

Summary on Corroboration

1. Corroboration is evidence from an independent source confirming and strengthening other evidence.
Generally, evidence of a single witness, if accepted, suffices to establish a fact, in both civil and
criminal cases. However, in certain cases corroboration is needed e.g., perjury, procuration and
sedition inter alia corroboration is required as a matter of statutory aforesaid. 69 In Sexual offences
corroboration is required as a matter of practice.

2. The general rule is that the court may convict upon the uncorroborated evidence of one witness in
both criminal and civil proceedings.70

68 In The People v. Thomas Manroe – it was held that there should also be corroboration in relation to the identity of the accused
69 Definition by David M. Walker, The Oxford Companion to Law, (Oxford University: Oxford, 1980)
70 Cross on Evidence

46
 a. When corroboration is required as a matter of statutory a conviction or finding of fact secured in
its absence is bound to be quashed or set aside by the appellate court. 71

b. When corroboration is needed as a matter of practice the judge should precaution of the dangers
of convicting on uncorroborated evidence. Once that is done the conviction won‟t be assailed on
legal grounds.

CONFESSIONS

What is a confession?

1. A confession is a judicial or extra judicial statement admitting guilt of offence charged.

David M, Walker goes on to say that a confession made to the police officer shortly after the
offence was committed is admissible provided it was not obtained by coercion, threats or
otherwise unfairly.
Cross on Evidence on the other hand defines a confession as an expression which includes
inculpatory statements by the accused, as well as full admission of guilt. In other words, a
confession is a statement by the accused which tend to incriminate them and to show that
they have admitted of being guilty of the crime charged.

A confession can only be admitted as evidence if it is not caught up by the exclusionary rule
applicable to admissions made to persons in authority. In Abel Banda v. The People
(1986) ZR it was held that a villager is not a person in authority for purposes of
administering a warning and caution statement. This is so because primarily the duties of a
village headman do not extend investing crimes.

A person in authority is one whom the accused can safely conclude will have influence on
the prosecution. Generally, a police officer, prosecutor, magistrate and lawyers have been
held to constitute persons in authority.

2. Exclusionary Rule for Confessions

a. Ibrahim v. R (1914) A.C. 599

71 Cross on Evidence

47
 i. No statement by an accused is admissible in evidence against him unless it is shown by
the prosecution to have been a voluntary statement, in the sense that it has not been
obtained from him either by fear of prejudice or hope of advantage exercised or held
out by a person in authority.

ii. The method in which a confession was obtained affects the weight of the evidence
rather than its admissibility.

3. Rationale for the Exclusionary Rule

a. an accused must be protected in as far as it is practicable from unjust convictions. An accused

person enjoys the privilege of not giving incriminating statements. Thus, it is improper to force
or pressure the accused into making incriminating statements (vide Customs Exericse v. Harz
and Power (1967).

b. The exclusionary rule was also established in order to prevent persons in authority such as police
officers from using wrong methods to obtain evidence.

c. The exclusionary rule was also made in order to prevent the accused from giving incriminating
information with a view that they will be tried for a lesser offence or under the hope that the
court will be lenient with them.
4. Conditions for Admissibility of Confessions

i. R v. Thompson (1893) 2 Q.B the burden of proving that the confession was made
voluntarily lies on the prosecution. This should be done on the standard of beyond
reasonable doubt.

ii. The confession should be made to a person in authority. A person in authority is an

individual whom the accused would suspect to be capable of influencing the prosecution. It
is clearly, accepted that a police officer, prosecutor and magistrate is a person in authority
(Cross on Evidence 5th Ed, p541 and Abel Banda v. The People).

iii. There should be evidence that the statement was made voluntarily without inducement.
Without inducement in the sense that the accused was not coerced, threatened, or promised
to gain an advantage if they confessed.

5. Trial within a Trial

The voluntariness of a confession is determined through a trial within a trial. During a trial
within a trial the judge has to determine whether the accused was induced to make a
confession and whether the same was induced by a person in authority. A trial within a trial is

48
 simply a mini trial within the main trial structured solely to determine the voluntariness of a
confession.
Where a confession is involuntary the accused cannot be cross examined on it and it is
invariably excluded.

i. Case Law on Trial Within a Trial

a. Hamfuti v. The People (1972) ZR 240
i. The appellant in this case was charged with stock theft. Only evidence available
was a confession
ii. It was held that whether or not the accused is represented when a point where
the prosecution witness is about to dispose of a statement reaches, the trial
court should ask the accused whether they object to such a statement.

b. Kasuba v. The People (1975) ZR 274

i. The appellant in this case was charged with obtaining goods by false pretenses.
Confession statement was the main evidence available for the prosecution.
ii. It was held that the court should always ask the defence on whether they object
to the statement or not, especially in cases where the accused was
unrepresented. The failure to inquire into a statement is fatal to the
prosecution‟s evidence because it is an irregularity. An irregularity is curable if
the circumstances are not prejudicial to the accused.
c. Mwelwa v. The People (1972) ZR
i. The failure to make the inquiry as to the objection of the statement may entitle
a judge to attach less weight to the statement.
ii. Whenever the accused object to the voluntariness of a confession the proper
procedure is to hold a trial within a trial.

d. Tapisha v. The People (1973) ZR 222 (CA)

i. Voluntariness of a confession is as a matter of fact of law a condition precedent
to the admissibility of a confession statement which must be decided by means
of a trial within a trial.
ii. Failure to conduct a trial within a trial where it is supposed to is an irregularity
which is curable if there is no prejudice to the accused. Where prejudice is
resulted or may have resulted the appellate court should quash the conviction
inter alia.72

e. Wakilaba v. The People (1979) ZR

i. The obligation to hold a trial within a trial is mandatory
ii. A trial within a trial can be held even at the close of the prosecution‟s case.
iii. The failure to hold a trial within a trial is curable only in instances where it does
not prejudice the accused.

72 Nyambe v. The People (1973) ZR

49
 f. Edward Kunda v. The People (1971) ZR (99)
i. A trial within a trial should be conducted whether or not the statement in
question is verbal or in writing.
ii. In Chigowe v. The People (1977) ZR 21 it was held that the burden of
proving that the confession was voluntarily made lie on the prosecution and to
do so beyond reasonable doubt.

SIMILAR FACT EVIDENCE

At page 6 of this document the rule on the admissibility of similar fact evidence was partially or
passively alluded to with reference to the landmark case ( Makin v. Attorney General for New
South Wales (1894) AC 57, 65 ) on the subject. Therefore, this part will merely build up on the
principle established in the said landmark case. Evidence of similar fact or transaction directly in
issue is admissible if it is logically probative; that is to say, if it is logically relevant in determining the
fact in issue and is not excluded by the rule against hearsay and it may be admitted to prove a
systematic course of events inter alia. 73 Suffice it to say for similar fact evidence to be admissible it
should firstly be, relevant to the facts in issue and secondly, its probative value should outweigh
its prejudicial effect. That is to say there must be convincing evidence that the accused performed
the similar acts and the similar fact should be relevant to the similar facts in issue.

In Esther Mwiimbe v. The People (1986) Z.R. 15 (SC) the Supreme Court of Zambia held that:

The admission of similar facts evidence is in the discretion of the trial court which among other
things should consider whether its evidential value outweighs its prejudicial effect.
Section 157 (vi) and 157 (vi) (a) of the Criminal Procedure Code is very instructive on the issue of
similar fact evidence in as far as it relates to the accused persons themselves. 74 Section 157 (iv) of
the Criminal Procedure Code, Cap 88 of the Laws of Zambia is equally important as it alludes to the
fact that information exchanged between husband and wife is privileged and so neither of them can
be compelled to offload that which was exchanged between them during the subsistence of the
marriage.

73Mood Music v De Wolfe Ltd (1976) 2 WLR 451

74It is important to consider the entire Section 157 of the Criminal Procedure Code, Cap 88 of the Laws of Zambia. It is under this
Section where competency of accused and husband or wife as witnesses is discussed inter alia

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PREVIOUS CONVICTIONS AND CHARACTER EVIDENCE
In civil cases a party‟s conviction on a particular occasion may always be proved if it is among the
facts in issues in a case, as when a libel in which the conviction was alleged is justified; but the only
situation in which convictions for misconduct on other occasions than that into which the court is
inquiring are regularly admitted is that which arises when a party is cross-examined as to his credit.

In criminal proceedings a conviction of the accused may always be proved when it is a fact in issue
as would be the case on a plea of autrefois convict. Previous convictions generally may not be proved
against the accused as facts relevant to the issues because they amount to nothing more than
evidence of character and can have no additional relevance in the absence of evidence concerning
the facts on which they were founded.

R v. Butterwasser (1948) 1 KB 4: (1947) 2 AII ER 415

The prosecution can only give evidence of the character of the accused if he raises the issue.

The brief facts of the case above are that the accused had been convicted of unlawful wounding by
razor slashing. He did not give evidence on his behalf nor did he call a witness to speak to his
character, neither did he cross examine the witnesses for the prosecution on this subject. They were,
however, minutely questioned concerning their own criminal records and evidence was thereafter
given of the accused‟s previous convictions. The appeal against the decision of the trial court was
allowed because the latter evidence was improperly received. It was held that:

By attacking the witnesses for the prosecution and suggesting they were unreliable, he is not putting
his character in issue; he is putting their character in issue.

In R v. Rowton (1867), Le. & Ca. 520 the brief facts of the case are that a schoolmaster was
charged with indecent assault on a boy, and called witnesses to his character. The crown called a
witness to give evidence in rebuttal, and this witness was asked about the accused‟s character for
decency and morality of conduct. He responded as follows:

I know nothing of the neighborhood‟s opinion because I was only a boy at school when I knew
him, but my own opinion, and that of my brothers who were also pupils of his, is that his character
is that of a man capable of the grossest indecency and the most flagrant immorality.

51
It was held that this evidence was not admissible in evidence the witness ought only to speak to the
accused‟s reputation – a matter about which he was ignorant. It is thus settled that at common law,
disposition must be proved by reputation, not specific acts or opinion.

The answers given by character witnesses in cross-examination on the subject of the accused‟s
character may be contradicted by other evidence. Character witnesses maybe cross-examined about
their own character credibility, the accused‟s reputation and their knowledge of it. Successive
editions of Archbold have contained a statement to the following effect:

If the defendant endeavors to establish a good character, either by calling witnesses himself, cross
examining the prosecution witness or by himself giving evidence to that effect, the prosecution is at
liberty in most cases to prove his previous convictions.75

Section 157 (vi) and 157 (vi) (a) of the Criminal Procedure Code is very authoritative on the issue of
character evidence in as far as it relates to the accused persons themselves. 76 Section 157 (vi) does
not apply to examination in chief and so an accused person can disclose evidence of bad character
or previous convictions if such will help in the defence.

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

Held:
i) Under s. 148 (f) of the Criminal Procedure Code questions relating to the accused's
previous committals and convictions could only be admitted in evidence where:
ii) it can be proved that his guilt in those offences show that he is guilty of the present
offences;
iii) where the good character of the prosecution witness has been put in issue; and

75 Archbold 40 th Edition, Paragraph 558. This position seem to go hand in hand with the exception created by the Criminal Procedure
Code – Cap 88 of the Laws of Zambia in Section 157 (vi) (b).
76 It is important to consider the entire Section 157 of the Criminal Procedure Code, Cap 88 of the Laws of Zambia. It is under this

Section where competency of accused and husband or wife as witnesses is discussed inter alia

52
 iv) where the accused wants to establish his good character.77
v) It was wrong for the prosecutor to cross-examine the appellant as to his character since the
prejudicial effect of the evidence extracted outweighed its evidential value. The trial
magistrate ought to have refused the cross-examination or to have informed the appellant
of his right to refuse to answer those questions.

Previous convictions may be proved after verdict in order to guide the court on the questions of
sentence. 78 The People v. Alex Muhau Kalanda (1981) Z.R. 308 (H.C.) the Court held that:

Once information concerning a previous conviction has been brought to the notice of the court
when sentence is being considered, then the court is duty bound to hear evidence concerning the
previous conviction in order to make a finding as to whether or not the accused person has had a
previous conviction in respect of a relevant offence.

In Kalobwe V the People (1968) Z.R. 97 (H.C.) the Court held that:

A record of past convictions is a reason for the magistrate to deny leniency to the accused, but the
length of the record should not result in a correspondingly harsh sentence, for that in effect would
be to punish the accused again for his prior convictions.

Daniel Mubita Situmbeko v. The People (1977) Z.R. 133 (H.C.)

It is a serious irregularity and fatal to the prosecution case to inform the court of the previous
convictions of an accused person before the commencement of the trial.

Summary
When a party‟s general character is in issue there should be proof of what that general character is.
Where evidence of character of a party is tendered to prove or disprove some issue – it is excluded
even if it is relevant. This position applies to both criminal and civil cases. In criminal cases the
general rule is that evidence of character and previous convictions of parties and witnesses are not
relevant and therefore not admissible. Check footnote… 79

The admissibility of evidence of character is subject to the following limitations:

77 This position seem to be a confirmation of the position given by Archbold inter alia
78 There is a plethora of cases on this principle but most of them including the ones cited above are more relevant in Criminal
Procedure.
79 Character of the complainant is not relevant save in cases of rape where the accused can give or call evidence of the prosecutrix‟s

general bad reputation as to sexual morality.

53
 a. The evidence of character should refer to the general reputation, not specific items or
incidents nor the witness‟s own opinion
b. The character evidence should be relevant to the specific part of the character impeached.
c. The character evidence in contention should be proximate to the date of the offence

ILLEGALLY OBTAINED EVIDENCE

This refers to evidence obtained as a result of tricks or an illegal search (search without a warrant
inter alia). The type of evidence is explained well by case law which brings out the general rule that
such evidence is admissible provided it is a fact and relevant to the facts in issue.

In R v. Leatham (1861), 8 Cox CC. 498 at 501 the Court held that:

Provided real evidence is relevant, it is legally admissible however improperly it was obtained. The
person against whom it is tendered may have a civil remedy against the person who obtained it and
the latter may be liable to disciplinary, or even criminal proceedings. But the law is that if you steal
it even, it would be admissible in evidence.

In Jones v. Owen (1870) 34 J.P 759 Mellor, J., postulated that:

It would be a dangerous obstacle to the administration of justice if we were to hold that because
evidence was obtained by illegal means it could not be used against a party charged with an offence.
In the case of R v. Doyle (1888) it was held that:

Evidence obtained by execution of an illegal search warrant was admissible. Wilson, C.J., said, “I
think the evidence is admissible so long as the fact so wrongly discovered is a fact apart from the
manner it was obtained it is admissible against the party.

In Kuruma Son of Kaniu v. R (1955) A.C. 197 it was held by the Judicial Committee of the
Privy Council that:

Evidence of the accused‟s unlawful possession of ammunition discovered in consequence

of an illegal search was admissible.

The principle developed in a compendium of cases from different jurisdictions is that illegally
obtained evidence is admissible. The condition precedent for its admissibility being inter alia that
54
such evidence should be relevant to the facts in issue. While it is not strange for the reader of these
notes to discover that the position may be slightly different compared to other jurisdictions, it is
important to note that the above position represents the law as it is in Zambia, today. The
principle applies both to civil and criminal proceedings. The Courts of Zambia have had chance
to litigate issues touching on this topic and have upheld the foregoing principle.

In Liswaniso v. The People (1976) ZR 277 (S.C) the Supreme Court of Zambia held that:

Apart from the rule of law relating to the admissibility of involuntary confessions, illegally obtained
evidence e.g. as a result of an illegal search or seizure or as a result of an inadmissible confession is,
if relevant, admissible on ground that such evidence is a fact regardless of whether or not it violates
a provision of the constitution.

In distinguishing the rules applicable to the admissibility of involuntary confessions and illegally
obtained evidence – the Supreme Court postulated that the reason why involuntary confessions
were inadmissible or excluded is that they cannot be depended upon to be true. Further, the
rationale for exclusionary rule regarding confessions is that the accused must be protected as far
as possible against the danger of unjust convictions. Whereas property obtained in consequence
of inadmissible confessions or as a result of an illegal search was admitted as evidence because it
was a fact, a relevant fact. 80

In Liswaniso Sitali and Others v. Mopani Copper Mines Plc (2004) Z.R. 176 (SC) the Supreme
Court while averring that the principle on illegally obtained evidence outlined above applies to both
criminal and civil proceedings held that relevant evidence is admissible regardless of the manner in
which it is obtained.

EVIDENCE OF OPINION

Evidence of opinion is generally inadmissible on ground that it involves giving of inferences drawn
from facts perceived or experienced which is the exact duty of the court. However, there are
instances when opinion evidence will be admissible. Below are some of the said exceptions:

80 R v. Honan (1912) 26 Ont. L.R

55
 1. Opinion Evidence of Laymen or Ordinary Individuals
An opinion of a layman will be admissible if it relates to matters which cannot be verbalized
without expressing an opinion.

Blake v. The People (1973) ZR. 157 (H.C)

The Court held that laymen are not entitled to place their opinion before the court as to the effect
of a consumption of alcohol by him on an accused's ability to drive.

Mwale v The People (1975) ZR. 163 (SC)

Mwelwa v. The People (1975) ZR. 166 (H.C)

The court held in the two cases that witnesses who do not qualify as experts should not permitted
to give their opinion on the very issues which the court is called upon to decide; but in order to
arrive at its decision the court is allowed to rely on factual evidence given by non-expert witnesses.

Lambwe v. The People (1976) ZR. 48 (H.C)

The court held that a person who is not an expert can give evidence about the manner in which he
observed a vehicle being driven, but he is in no position to state his opinion that at the material
time the driver was incapable of controlling the vehicle because he was under the influence of
intoxicating liquor.

Expert Opinion

Experts are allowed to give an opinion on evidence falling within their expert. Felicity Kalunga
postulates that the requirement for expert evidence is only in matters which the court cannot make
its own inferences of the facts in issue; otherwise the experts will just introduce jargon and delay
proceedings. 81

Handwriting Experts
Sithole v. State Lotteries Board (1975) 106
The court held that the function of a handwriting expert is to point out similarities and differences
in two or more specimens of handwriting and the court is not entitled to accept his opinion that

81 Her Evidence Lecture Notes – p, 46

56
 these similarities and differences exist but once it has seen for itself the factors which the expert
draws attention, it may accept his opinion in regard to the significance of these factors.

The court went on to hold that where there is in fact documentary or pictorial evidence which
forms the basis of the expert opinion it is necessary for these documents to be properly proved and
for the court to see for itself the various points which the expert bases his conclusions.

Giraffe Bus Services Limited v. Abel Lwitikiko Mwandemwa (SCZ Judgment No. 4 of 2001)

The court held that the court is not required to blindly accept what handwriting expert asserts. The
court proceeded to hold that the function of a handwriting expert is to point out similarities and
differences in two or more specimens of handwriting and the court is not entitled to accept his
opinion that these similarities and differences exist but once it has seen for itself the factors which
the expert draws attention, it may accept his opinion in regard to the significance of these factors.

Chuba v. The People (1976) ZR. 272 (SC)

The court held that evidence of a handwriting expert is an opinion only and the matter is one on
which the court has to make a finding. In addition to his opinion the expert should put before the
court all the materials used by him in arriving at his opinion so that the court may weigh their
significance.

The court proceeded to hold that the opinion of a handwriting expert must not be substituted for
judgment of the court. It can only be a guide, to the court in arriving at its own conclusion on the
evidence before it.

Medical Experts
Lupupa v. The People (1977) ZR. 38 (SC)

Medical evidence while weighty, is only one of the factors a court should take into account when
deciding whether or not an accused person has acted of his own free will or not.

The court also went on to hold that it is perfectly valid to challenge medical opinion in trial court but
failure to do so is not a ground for contending that the same should not be accepted on appeal.

Jospeh Mutapa Tobo v. The People (1985) ZR. 158 (H.C)

The court held that the real value of the evidence of a medical expert consists of the logical
inference which he draws from what he has himself observed, not from what he has merely
surmised or has been told by others.

57
EVIDENCE OF IDENTIFICATION

In criminal proceedings most often the issue is not whether a crime has been commit ted but
whether the accused was the criminal. In such instances the identity of the accused becomes an
issue. Evidence of identification may take various forms; it may be visual identification or may be
effected by fingerprints, photographs, possession of incriminating articles inter alia. Strictly speaking
this type of evidence requires no corroboration save in practice there is great need to make sure that
a person is not wrongly convicted on false or mistaken evidence of identity.

In Sammy Kambilima Ngati and Others v. The People (SCZ Judgment No. 14 of 2003)
the court held that it is settled law that a court is competent to convict on a single identifying
witness provided the possibility of an honest mistaken identity is eliminated.

Phiri v. The People (1978) ZR 79 (SC)

It was held that albeit strict corroboration is not needed there should however be other evidence to
support the identification made by an accomplice in sexual offences.

a. Dock Identification
Dock identification can take place at the discretion of the court however, the weight of such
evidence is little or of no value particularly where there is no satisfactory explanation for failure to
hold an identify parade and there is no other evidence incriminating the accused. 82 Dock
identification can take place in instances where the accused refused to take part in the identification
parade.

b. Identification Parade
Identification parade usually takes place outside court. The object of identification parade is to test
the ability of the witness to pick out from a group the person, if he is present, whom the witness has
said that he has seen personally on a specified occasion. Once a witness has picked out a suspect in
this way he is allowed to identify the suspect in court. Thus the correct procedure for an
identification parade is that it should be held before the trial or preliminary examination, placing the

82 The People v. Zaloumis (1973) ZR 67 (HC)

58
accused with a sufficient number of other people, leaving the witness to pick him out if he can,
without assistance.

In the case of Musonda v. The People (1968) ZR 26 it was held that the tendency of allowing the
identifying witness to see the accused at police station before the identification parade was
deprecated.

In the case of The People v. Kamwandi (1972) ZR. 131 (H.C) it was held inter alia that when an
identification parade is conducted it must be shown by the prosecution to have been conducted
fairly and properly. Showing an accused person to the witnesses before the formal parade is
improper. The burden of proof as regards the identity of an accused person lies on the prosecution
and must be discharged beyond any reasonable doubt.

The holding in Kamwandi was later affirmed in the case of The People v. Toko (1975) ZR 196
(SC) and The People v. Lupupa Musongo and Another HP/64/2011.

R v. Dwyer (1925) 2 K.B 799

It was established in this case that where identification is to take place by the use of photographs the
fair thing to do is to give or show a series of photographs to the witness and see if the witness can
pick out the prospective defendant.

59
 CASE PRESENTATION

The Right to Begin

The Plaintiff, Prosecutor or their respective advocates open every case in the sense that they explain the
issues to the Court. The Prosecution will always have the right to start in Criminal proceedings where there is
a plea of not guilty because there will be some issues on which either evidential or legal burden will be borne
by the prosecution. In civil cases the Plaintiff will always start unless the defendant has the burden of proof
on every issue.83

Order of Calling Witnesses

In Civil cases the parties can call as many witnesses as are available to them and can examine them in any
order suitable to them. The Court can only call witnesses with their consent. In Criminal cases the
Prosecution can call witnesses whom it intends to examine and have others available to be called by the
Defence.84 In Criminal cases there is a restriction on the order of calling witnesses and the Court can call
witnesses without the consent of the parties. In Criminal Proceedings the accused should be examined and
cross examined first before any other witnesses he intends to call.

In R. v. Morrison (1911), 6 Cr. App. Rep 159 at p. 165 Lord Alverstone, CJ., said:
In all cases I consider it most important for the Prisoner to be called before any of his
witnesses. He ought to give his evidence before he has heard the evidence and cross
examination of any witnesses he is going to call.85

Examination in Chief

The essence of Examination in Chief is to obtain testimony in support of the version of the facts in issue or
relevant to the issues for which the party calling the witness contends. Generally, in Chief Examination a
witness is not to be asked leading questions. Leading questions are those which either suggest the desired
answer or assume the existence of disputed facts to which the witness is to testify. Example of leading
questions:
1. Did you see another car coming fast from the opposite direction?
2. What did you do after Mutale hit you?

To avoid asking leading questions of this nature a witness should instead be asked if they noticed any other
traffic, which direction the traffic was coming from, whether the traffic was fast or slow inter alia.

A party can call a different witness to contradict a witness who has given unfavorable evidence with regards
to the facts in issue or relevant to the facts in issue. A party may discredit a witness if the court considers the
witness as hostile.

83 Mercer v. Whall (1845), 5 Q.B.

84 This point is equally of relevance in Ethics.
85 Subject to rare exceptions which this work shall not delve into…..kindly look them up

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Refreshing Memory

In terms of refreshing memory of a witness it is important that the witness reads through the document
before trial. Their Counsel can take them through the document. While pre-trial sessions are important and in
most cases help coach a witness, the same should not be brought to the attention of the court as the court
will treat such evidence with the contempt it deserves.86 Refreshing memory while in court is only possible if
the document was made at the same time (contemporaneously) as the occurrence of the events to which the
witness is required to depose. The document must be made or read over and accepted as accurate by the
witness while the facts were still fresh in his memory. The document must be produced to the court or the
other side on demand. The courts are not over insistent on the exactitude of the copy provided they are
satisfied that the document by which memory is sought to be refreshed substantially produces what was said
in the original.
Cross Examination

The object of Cross Examination is twofold:

1. It aims to elicit information concerning the facts in issue or relevant to the facts in issue and in favor
of the party cross examining.
2. The other aim is to cast doubt upon the accuracy of the evidence given in chief against the party
cross examining.

The rules of admissibility of evidence apply in cross examination so that the prosecution cannot cross
examine the accused on the contents of an inadmissible confession. Leading questions may be asked in cross
examination. All witnesses are liable to cross examination with the exception of a witness called to produce a
document and one not examined in chief because he was called by mistake. All witnesses not falling within
the exceptions are liable to cross examination not only by the opposite party but by all the parties. 87 All
parties have the right to cross examine whether or not the witness in contention has testified against them or
not. It may seem irrelevant for a party against whom the witness has not testified to cross examine and
discredit the witness but in State v. Landa 1963 (4) S.A 941 it was held that:

It was held that an accused ought, if a fair trial is what is aimed at, to be at liberty to cross examine
a co-accused or any other witness not called by him who may not have inculpated him in any way
in order to establish facts which might tend to support an alibi.

Re-Examination

1. No leading questions
2. Re-examination should be confined to issues arising from cross examination and any new thing
cannot be introduced unless with leave of the court.

86 Refreshing of memory outside court

87 Allen v. Allen (1894) P. 248, at p. 254, Dryden v. Surrey County and Stewart (1936) 2 AII ER 535

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 END
ALL THE BEST

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