Anthony H.

Kabungo, LLB Dip (DSS) psc

EVIDENCE LECTURE NOTES

Lecture 1: Introduction

1.1. What is evidence?

The word evidence has no one definition but has been given several
definitions. The following are some of the definitions given by eminent
writers.
a) That which tends to prove facts in issue (Cross and Tapper)
b) Information which provides for belief that a particular fact or set of
facts is true (I.H. Dennis)
c) That which may be placed before the court in order that it may decide
issues of fact. (Phips on evidence)
Therefore, evidence may be defined as information, facts, objects which are
presented to court to inquire into the existence or not of facts in issue for
the determination of the court.

1.2. Sources of the Law of Evidence

There are several sources of law of evidence. The following is list of some
of the sources, come of which we will be reefing to in this course:
a) The Constitution
Article 18 of the constitution contains provisions on protection of the
rule of law and rights to a fair trial, which are relevant to the law of
evidence, including, presumption of innocence (Art 18 (2) (a)),
examination of witnesses (Art 18 (2) (e)), rule against retrospective
application of laws and the rule against giving self-incriminating
evidence.
b) Acts of Parliament
Several statutes prescribe procedural rules on commencement of
proceedings, burden of proof and so on. There are also statutes with
general provisions that are important to the law of evidence. In this
course, some of the statutes we will use include:
i) Criminal Procedure Code, Cap 88 of the Laws of Zambia;
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ii) Juveniles Act, Cap 53 of the Laws of Zambia;

iii) Evidence Act, Cap 43 of the laws of Zambia;
iv) Evidence ( Bankers Books) Act, Cap 44 of the Laws of Zambia;
v) Subordinate Courts Act, Cap 28 of the Laws of Zambia;
vi) High Court Act, Cap 27 of Laws of Zambia;
vii) Supreme Court Act, Cap 25 of the Laws Zambia.
c) Common Law
d) Judicial Precedents
e) Text Books or writings of eminent writers.

1.3. Principal items of judicial evidence

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

1.3.1 Facts in Issue

These are facts or information that a party needs to prove in order to
succeed in their case. The phrase refers to principal facts which are
necessary by law to establish the claim, liability or defence forming the
subject matter of proceedings. For instance, facts that the prosecutor (in a
criminal case) or Plaintiff (in civil case) must prove to secure a conviction or
defence. Also, those facts that the defence (in a criminal case) or defendant
(in a civil case) must prove to establish a successful defence.
There are two types of facts in issue, namely:
a) Facts in Issue as a matter of Law.
b) Facts in issue as a matter of Law of Evidence.
Facts in Issue as a Matter of Law
These are also called questions of law. They relate to substantive law
which governs the rights and liabilities of arties to litigation. Examples
include:
i) Elements of the crime of murder
ii) Elements of the tort of negligence

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 Anthony H. Kabungo, LLB Dip (DSS) psc

iii) Is seizure the correct way of terminating a tenancy of business

premises
These issues of law are properly governed or taken care of by rules of
pleading. For example, in pleading a case of negligence in a case
involving a road traffic accident, the plaintiff must plead that the
accident was caused by the negligence of the Defendant and that the
Defendant owed the Plaintiff a duty of care.

Facts in issue as a matter of law of Evidence

These are issues of fact. They are concerned with facts as evidence of
other facts. Examples include the credibility and reliability of
witnesses, weight to be given to evidence, burden and standard of
proof, and so on.

The law of evidence is concerned with these facts in issue. Therefore,

the remainder of the course will look at the rules governing
admissibility of objects of proof as such facts in issue.

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

Why the distinction?

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

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

in the appellate court. The appellate court will usually not overturn a
judgement based on a wrong finding of facts. It will however usually
fault a wrong finding of law. This is because the trail court will have
had the opportunity to listen to the testimony and observe the
demeanour of witnesses.

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 Anthony H. Kabungo, LLB Dip (DSS) psc

The role of a judge in finding facts in issue

When an allegation or claim is made, the judge must construct a true
reality of facts and experiences that have been observed by other
people in order to and the facts in issue. This task would be achieved
by listening to stories of those that had experienced the facts in order
to draw inferences of the existence of other facts. The court will reach
its best decision possible in conditions of uncertainty.

1.4.Objects of proof and Classification of Evidence

1.4.1 Objects of proof

Facts in issue can be proved by testimony, documents, things,
circumstantial evidence and other evidentiary facts.
a) Testimony
This is a statement of a witness offered as truth of what is stated. It
may be oral or by Affidavit. The general rule is that witnesses can only
testify on things that they have personally observed with their senses.
There are a number of rules and regulations that have been devised
to guard against witnesses giving evidence of things they have not
personally experienced and is reliable. Examples include the rule on
oaths, affirmations, competence of witnesses, cross examination, law
against perjury.The probative value of testimony is diminished when
the same is offered by a person who did not observe the facts deposed
to. (To be discussed more on the Rule against Hearsay)
b) Documents
Documents contain information that is relevant to prove facts in
issue. Documents can be offered as real evidence of things contained
in them (e.g. Terms of a written contract), or as hearsay (e.g. where a
letter is produced to attest to contents of a letter when offered by
someone who did not author it.)
c) Real evidence
These are actual objects produced in court. They are objects produced
as proof of facts in issue before court. Examples include a bicycle
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alleged to be the stolen bicycle found in possession of the defendant.

Objects or things are not reliable on their own unless they are
accompanied by testimony.
Another example of real evidence is a view, i.e. where the court is
invited to sit outside the courtroom to view a site or equipment. (Per
Parker LJ, in Buckingham v Daily News Ltd [1956]2 All ER 904.
Held, occurrences at a view are part of evidence as though the
machine had been brought in court.)
d) Circumstantial evidence
This is in also known as indirect evidence. It is evidence of facts from
which the court must infer evidence of facts in issue. It is not direct
evidence but the court can make inferences from it in making a
finding of fact.
Examples of circumstantial evidence
i) Prospectant evidence
The reception of evidence was premised on the argument that
occurrence of an act, state of mind or affairs in the past
justifies an inference that the act was done, state of affairs
existed at the moment of time into which the court is inquiring.
a) Continuance
Evidence of a state of affairs existing at a time before the
occurrence of a fact in issue could be admitted to establish
that the same state of affairs had continued at the time
inquired into. For example, evidence of the speed at which a
person is driving a few moments earlier than the moment
enquired into can be admitted as circumstantial evidence.
Relevant will vary form case to case.
b) Course of business
For example, evidence that a letter was delivered to the
registered address and duly acknowledged may be admitted
as circumstantial evidence to show that the company
director read a letter or document.
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c) Habit
In Joy v Philips, Mills & Co Ltd [1916] 1 KB 849, the
defendant was allowed to call evidence of the deceased boy’s
practice of teasing the horse as tending to negate the
plaintiff’s claim that the boy died in the course of
employment. The case involved a claim of compensation
following the death of a stable boy who was found holding a
halter which there was no occasion for him to use at the
time of day. This was admissible evidence to shed light on
the probable cause of death.
d) Motive, plan
Facts which supply motive are admitted as circumstantial
evidence. For example, a plan to kill someone for benefit,
buying of poison, forging a will etc.
e) Knowledge or capacity
E.g. a person’s knowledge of cutting up bodies may be
admissible in a murder case as to means of the use of such
skills.
ii) Concomitant Evidence
Based on the argument that evidence of circumstances existing
contemporaneously with transaction in which the court is
inquiring render facts in issue more probable.
a) Opportunity
Presence of accused at the place and time of the crime make
it probable that he/she could have committed the crime
iii) Retrospectant evidence
Subsequent occurrence of an act, state of mind or affairs justify
inference that act was done or state of affairs existed at the
time being inquired into. Examples include, the endorsement of
cheque as proof of payment, failure to give an explanation
following a certain event, odd coincidences, and so on.
Case Law on Circumstantial Evidence
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i) David Zulu v The People (1977) Z.R. 151 (S.C.)

The appellant was convicted of the murder of a woman in the
course of a sexual assault; the injuries found on the body
suggested that she had struggled with her assailant. The
evidence established that the appellant and the deceased had
been drinking beer together at a bar and were seen leaving the
bar together at about midnight; between 0600 and 0700 hours
the next day the deceased's partially undressed body was
found. The appellant was traced and when arrested was found
to have scratches on the neck and chest. He explained in
evidence that the scratches were caused by flying pieces of iron
at his place of work, an explanation which was not rebutted.
The trial court without any evidence to support the finding said
that the appellant had protective clothing at work and therefore
that the flying particles of iron could not penetrate such
clothing; the trial court consequently inferred that the
scratches on the appellant were sustained during the struggle
with the deceased.
Held:
(i) It is a weakness peculiar to circumstantial evidence that
by its very nature it is not direct proof of a matter at issue but
rather is proof of facts not in issue but relevant to the fact in
issue and from which an inference of the fact in issue may be
drawn.
(ii) It is incumbent on a trial judge that he should guard
against drawing; wrong inferences from the circumstantial
evidence at his disposal before he can feel safe to convict. The
judge must be satisfied that the circumstantial evidence has
taken the case out of the realm of conjecture so that it attains
such a degree of cogency which can permit only an inference of
guilt.

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 Anthony H. Kabungo, LLB Dip (DSS) psc

(iii) The appellant's explanation was a logical one and was not
rebutted, and it was therefore an unwarranted inference that
the scratches on the appellant's body were caused in the course
of committing the offence at issue. The circumstantial evidence
received at the trial did not succeed in taking this case out of
the realm of conjecture, and we are of the further opinion that
the danger of erroneous inference on the part of the learned
commissioner has not been dispelled Per Chomba, JS
ii) Khupe Kafunda v The People ( SCZ JUDGMENT NO. 5 OF
2005)
The appellant was sentenced to death following upon his
conviction for the offence of murder, contrary to section 200 of
the Penal Code, Cap 87 of the Laws of Zambia. The particulars
of the offence alleged that the appellant, on a date unknown,
but between 27th and 29th January, 2001 at Mufulira, in the
Mufulira District of the Copperbelt Province of the Republic of
Zambia, murdered William Hillier. The prosecution called eight
witnesses in support of their case. The salient evidence
connecting the appellant to the offence was adduced from PWs
1 & 7.
The summary of their evidence was that on 27th January,
2001, the appellant, then an employee of Lake Farm, owned by
the deceased, arrived at the farm around 22:00 hours, when
the deceases was about to retire to bed. After the two talked for
a while, the deceased went into the house and collected a coat,
thereafter; he went out with the appellant.
Pw1, the girlfriend of the deceased, heard two gun-shot sounds
shortly after the two left the farm. On that day, the deceased
and the appellant did not return from where they went. By
17:00 hours the following day, a Sunday, a search was
conducted at the deceased's farm by 32 workers who had
become concerned. At 18:00 hours the appellant appeared at
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the farm. When asked about the deceased, his response was
that he had left him in the bush because it was cold. A report
was made to the Police. Earlier searches conducted by the
Police did not yield any results. However, on the 30th of
January, 2001, after a tip off, PW7, a police officer, in a group
of other officers, were led by the appellant to a place where the
body of the deceased was exhumed from a shallow grave.
The appellant further led the Police to Kafue River Bridge,
where he alleged he had thrown the gun in the river. He also
led the police to the recovery of an empty cartridge in the grass
near Kafue River Bridge. The appellant's clothes were found in
a bedroom at Lake View Farm together with three live
ammunition for a Greener gun similar to the empty cartridge.
A post mortem examination report revealed that the cause of
death was gun-shot wounds.
The trial court reviewed the evidence and made the following
findings: that the circumstantial evidence against the appellant
was overwhelming; that the appellant was not only the last
person to see the deceased alive, but that he later led the Police
to a shallow grave where the body was exhumed; that the
medical evidence established that the deceased had been shot
at close range; that the appellant later led the Police to Kafue
River bridge to show them where he threw the gun; that an
empty cartridge was recovered in the grass near the bridge
area; and that three live bullets similar to the empty cartridge
were found in the appellant's slumber jacket. The court found
that the circumstantial evidence against the appellant was so
overwhelming that he had the opportunity and the time to
commit the offence.
The court concluded that the prosecution had proved the case
beyond reasonable doubt and convicted the appellant
accordingly.
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On appeal, the Appellant argued inter alia that he had been

wrongly convicted on the ground that there was no direct
evidence linking him to the crime and, that there was no eye
witnesses and that the police failed to show that he had led
them to the shallow grave where the body was exhumed. The
SC agreed that there was no direct evidence to link him with
the crime but found that there was strong circumstantial
evidence to link the accused to the crime. The SC upheld the
conviction and dismissed the appeal.
See also: Patrick Sakala v The People Supreme Court
Judgment of 1980

1.4.2 Classification of evidence

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

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 Anthony H. Kabungo, LLB Dip (DSS) psc

Lecture 2: Relevance, Admissibility and Weight of Evidence

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

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

2.3 Test for Relevance and admissibility of logical evidence

2.3.1 Test for relevance

Acts, declarations and incidents which constitute or accompany and explain
the fact or transaction in issue are admissible for or against a party as part
of res gestae. The rule stems from the obvious consideration that no
disputed event or transaction ever occurs isolated from all other events or
transactions. Where the line is to be drawn is always a difficult matter.
There are many differing opinions on where the line should be drawn. The
acceptable opinion is that where the evidential fact is in the particular
circumstances, either an integral part of the event or transaction itself or so
connected with it as to be of real value in determining its existence or its

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true nature, then such fact is admissible as part of res gestae. Evidence is
not a matter of mere logic. It is about ascertaining the truth of facts in
dispute in the most reasonable practical and fair manner.

2.3.2 Summary of Guides to Relevance

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

2.3.2. Admissibility of Logically Relevant Evidence

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

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

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These may vary from a single act to a variety of acts, declarations,

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

2.3.2.1 Prohibitions
a. Hearsay
Generally inadmissible to avoid danger of manufacturing evidence
b. Opinion
Witnesses generally are not allowed to tell court inferences made form
facts perceived but to stick to evidence of facts.
c) Character
Evidence of character is generally inadmissible. Public policy and
legal rule on presumption of innocence
d) Similar fact
This type of evidence is also generally inadmissible

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

2.4 Exercise
a) John, a local politician sues Alan for slander concerning words spoken at
a political rally. Allan is alleged to have made a statement that ‘I hear Allan
intends to contest for the 2011 local government elections. Has the council

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run out credible people that we should be getting candidates from Chainama
Hills Hospital?’ Peter, a witness who attended the rally and heard the words
complained of, is called to testify.
i) What testimony would the witness give that would be relevant?
ii) Is the witness testimony that ‘I heard John slander or defame Alan
admissible’ or inadmissible?

b) Joel supplies baskets to his customer. The customers sign contracts

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

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

2.3 Weight of Evidence

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

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b) Presumptions
c) Corroboration
d) What statement is evidence for what purpose or best evidence?

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Lecture 3: Burden and Standard of Proof

3.1. Burden of proof (Evidential and legal burden of proof)

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

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

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

Example: negligence- plaintiff

Contributory negligence- defendant.
The burden rests on the person who would not succeed if no more evidence
is called. The burden may be affected by statute and presumptions. Burden
of proof has 2 distinct meanings: legal burden and evidential burden.
1) Legal burden
This is the burden of proof that is discharged by pleading. The burden
of proof in this sense rests on the party, whether plaintiff or defendant
who substantially asserts in the affirmative of the issue. It is fixed by
either substantive law or pleading at the beginning of the trial by the
state of pleadings and it remains unchanged throughout the trial.
2) Evidential burden
This is the burden of adducing evidence that a party has. It may shift
constantly according as one scale of evidence or other preponderance.
The onus in this case rests on the party who would fail if no evidence at
all or no more evidence is called on the other side.

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Burden of Proof in Criminal cases

In criminal cases, the burden of proof rests entirely with the prosecution.
Where the accused introduces new things in his defence such as self-
defence, automatism and provocation, the burden does not shift to the
accused. It is up to the prosecution to disprove the defence raised.
Mwewa Murono v. The People SCZ JUDGMENT NO. 23 OF 2004
The Appellant was convicted of murder contrary to Section 200 of the Penal
Code, Cap 87 of the Laws of Zambia and was sentenced to suffer death. It
was alleged that on 19th July 2003 at Mansa he did murder one Francis
Mwewa. He appealed against both conviction and sentence.
1. In criminal cases, the rule is that the legal burden of proving every
element of the offence charged, and consequently the guilt of the accused,
lies from beginning to end, on the prosecution.
2. The standard of proof must be beyond all reasonable doubt.
3. A submission of no case to answer may properly be and upheld:-
(a) When there has been no evidence to prove the essential element of
the alleged offence.
(b) When evidence adduced by the prosecution has been so discredited
that no reasonable tribunal could safely convict on it.
4. The accused bears the burden of adducing evidence in support of
any defence after he has been found with a case to answer.

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

Procedure Code, Chapter 88 of the Laws of Zambia does not depend
on the defence making a no case to answer submission. The Court
has of its own motion to consider whether a prima facie case has been
made out or not.
2. If an accused person is convicted as a result of an error of the
trial Court in thinking that there is a prima facie case, the conviction
cannot stand. It must be quashed. An appellate Court has no
discretion.

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This is however regulated by statute (check provisions of the Penal

code on defences)
Kazembe and Zebron v The People (1969) Z.R. 22
"Automatism" is defined in the Concise Oxford Dictionary as
'Involuntary actions . . . actions performed unconsciously or
subconsciously'; and we agree that section 10 of the Penal Code does
let in automatism as a possible defence. [2] There would be no burden
on an accused person to establish that he was acting under the
influence of automatism. The burden would be on the prosecution to
negative it and to prove beyond reasonable doubt that the accused
was acting in the exercise of his will and not under the influence of
automatism. [3] But there is this important qualification. If the
automatism is due to any disease affecting the mind of the accused
person different considerations apply. By section 12 of the Penal Code
"Every person is presumed to be of sound mind, and to have been of
sound mind at any time which comes in question, until the contrary is
proved"; and by section 13.

The evidential burden is satisfied by establishing a prima facie case

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

Burden of Proof in Civil cases

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

Matrimonial Causes
The burden is the same as in civil cases.

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3.2 Standard of proof

The extent to which a party discharges burden of proof.
a) Criminal cases
Proof beyond reasonable doubt. It does not mean proof beyond a
shadow of doubt. Woolmington v DPP [1935] AC 462
If no evidence is called by defence, can prosecution succeed? Has
prosecution established a prima facie case? This can be established
during submissions on no case to answer.
The defence is not required to prove innocence. Standard of proof on
balance of probabilities.
b) Civil cases
Standard is on balance of probabilities. In Bater v Bater [1950] 2 All
E.R. 458, Denning, L.J., used words regarding the standard of proof in
both civil and criminal cases, which have been expressly approved in
subsequent cases. He said at page 459: 'It is true that by our law there is
a higher standard of proof in criminal cases than in civil cases, but this
is subject to the qualification that there is no absolute standard in either
case. In criminal cases the charge must be proved beyond reasonable
doubt, but there may be degrees of proof within that standard. Many
great judges have said that, in proportion as the crime is enormous, so
ought the proof to be clear.'
Castings Ltd v Wardlaw [1956] AC 613
Degree varies from case to case. E.g. higher standard involved on
allegation of fraud. Allegations of fraud even in a civil case must be
proved on a higher standard than balance of probabilities because they
are of criminal nature- Sable hand Zambia Limited v Zambia Revenue
Authority (SCZ JUDGMENT NO. 20 OF 2005)

c) Matrimonial causes
Like in civil cases.

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In divorce proceedings – proof of allegations of adultery should be on a

balance of probabilities but higher standard though not criminal
standard
C v C and H (1977) Z.R. 12 (H.C.)

3.3 Incidence on burden of proof

a) Statutes
Statutes affect the burden of proof. E.g.
i) Where statute casts burden of proof - statutes creating offences of
strict liability.
ii) Where statute give defence of facts within peculiar knowledge of a
party e.g. provocation and self-defence
Section 12(3) of the Penal Code, Cap 87 of the Laws of Zambia
Burden of proof of defence of diminished responsibility lies with
defence which it should discharge on a balance of probabilities.
R v Putland & Sonrell [1946] 1 All ER 85
Kazembe and Zebron v The People
iii) Provisos.
Burden of proving one falls within proviso lies with party alleging
but no legal burden on plaintiff to prove one doesn’t fall within
proviso.
b) Presumptions of law
Where rebuttable presumption of law exists in favour of party, it lies upon
the other party to rebut it.
i) Civil cases – fraud vitiates title
ii) Criminal cases- presumption of innocence casts burden of proof on
prosecution. Burden of proving non consent in rape lies with prosecution.
ii) Conflicting presumptions neutralise each other. Case must be determined
on evidence e.g. presumption of validity of marriage vs. presumption of
death.

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Lecture 4: Witnesses

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

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

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

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

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

If the prosecution exercises its discretion in calling witnesses improperly,

the court may itself call the witnesses.

Read also:
Dallison v Caffery [1964] 2 All ER 610
R v Olivia [1995] 3 All ER 116
Abel Banda v The People (1986) ZR 105
A prosecutor is under no duty to place before the court all the evidence
known by him, however where he knows of a credible witness whose

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evidence supports the accused’s innocence, he should inform the defence

about it.

4.1. Competence and Compellability

Competence relates to the qualifications of a witness to give evidence.
Compellability discusses whether or not a party may be forced to give
evidence in a given case. Competence is to be distinguished from
compellability. A person may be admitted to give evidence though in certain
cases he will not be compelled by the court to do so. Generally, all persons
are both competent and compellable.

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

The law however places certain further qualifications on certain special

types or categories of witnesses based on interest, prejudice and capacity
generally.

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

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

4.1.1.1 Witnesses with an interest in outcome of the case

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

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The People v Mushaikwa (1973) ZR 161

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

By statute, these rules of competence were removed.

c) Accomplice
Cautionary rule of practice is that such testimony should be corroborated
Katebe v The People (1975) ZR 14
Emmanuel Phiri & Others v The People (1978) ZR 79
Emmanuel Phiri v The People (1982) ZR 77

4.1.1.2 Competence by reason of capacity

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

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application may be made to court so that the testimony of such witness is

postponed until such a time when the incapacity has been removed.

b) Infancy
Evidence of children is taken with caution because of the special nature of
their testimony due to intellectual capacity. The degree of knowledge and
intelligence will vary from witness to witness. The competency of children
depends on their ability to understand the nature of an oath and the
consequences of falsehood.
It is important for a party who wishes to call a child witness to lay sufficient
ground for admission of their evidence or to satisfy the court of their
competence. This is established in what is known as a voire dire, which is a
preliminary examination conducted by the court to satisfy itself about the
competence of a child witness.

Some of the questions that may be asked include: “what becomes of a liar?”
or “is it good or bad to lie?”

Section 122 of the Juveniles Act, Cap 53 of the Laws of Zambia provides for
voire dire in assessing competence of a child of tender years i.e. below the
age of 14. (Read Provisions of the Juveniles (Amendment) Act No.3 of 2011)

Case law
Mwelwa v The People (1972) ZR 29
Tembo v People (1980) ZR 36
R v Campbell [1956] All ER 272
Kamanga v The People Appeal No 120 of 2008
Sinyanza v The People (2009) ZR 24

4.1.1.3 Competence in Criminal Cases

a) Prosecution Witnesses
Accused, spouse, co-accused and/or spouse of co-accused or person
indicted with accused generally not competent witness for prosecution.

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Crispin Soondo v The People (1981) ZR 302

Held: Where 2 or more persons are indicted jointly, the wife or husband of
any such defendant is not a competent witness against any co-defendant.

To render co-defendant or their spouses competent for the prosecution, they

must be acquitted or nolle prosecui entered in favour of them, have pleaded
guilty or are tried separately.

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

Certain rights may be waived where a party enters into a plea agreement
(Refer to Plea Negotiations and Agreements Act No. 20 of 2010) a clause
containing a statement that the accused person was informed of, and has
waived, the following rights:
a) the right not to be compelled to give self-incriminating evidence;
b) the right to confront and cross-examine any witnesses against the
accused person; and
c) The right to pursue pre-trial motions and appeal preliminary points.
b) Defence Witnesses
Accused person is a competent witness for the defence. In all cases, the
court has a duty to inform the accused of his right to give evidence in his
defence. Failure to give such warning may result in a conviction being
quashed. The accused must be informed of his right to remain silent.
Section 151 and 157 of the CPC Cap 88 of the Laws of Zambia

The People v Mushaikwa(1973) ZR 161

Spouse of accused may be competent on application by accused. Section
157(iii) of CPC
If a co-defendant gives evidence that implicates another co-accused, he may
be cross-examined by both the prosecution and the co-accused.

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4.1. 2.Compellability
All witnesses competent to give evidence are generally compellable to do so.
There is an exception on relation to privilege e.g. sovereign and legal
practitioners. The court may compel a witness to give evidence by ‘subpoena
duces tecum’ – to produce document or ‘subpoena testificandum’ – to testify.
(Read Part VII of the High Court Act and Part VIII of Subordinate Court
Act, Cap 28 of the Laws of Zambia)
Also ss. 143 – 148 of CPC, Cap 88
Where a person refuses to take oath and testify when summoned by court,
he/she shall be guilty of contempt of court. S28 High Court Act, Cap 27 of
Laws of Zambia. Also section 150 CPC, Cap 88

4.3 oath and affirmation

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

If it appears that a witness has a religious belief, he must either be sworn in

the usual way, and if he objects, to affirm

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

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

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

evidence, commissioners for oaths, notary public where it is made outside
the country.

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4.3.3. Witnesses who need not swear or affirm

Some witnesses are not by law required to swear or affirm. Evidence of
children can be admitted unsworn if the judge is satisfied that the child
does not understand the nature of an oath but posse’s sufficient intelligence
to justify reception of their evidences and understand the importance of
speaking the truth. Their evidence must however be corroborated by some
other material evidence in support.

Witnesses called to merely produce a document need not be sworn. E.g.

Lands officer to present a deeds printout.

Perjury

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

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

Corroboration relates to evidence of something more. Confirming or

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

When assessing testimony of certain categories of witnesses, courts should

warn themselves of the danger of convicting without corroborating evidence.

Statutory Provisions
s. 59 Penal Code for offences of sedition
s.140, cap 87

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Case Law
Emmanuel Phiri v The People(1978) ZR 79
Held: Court must warn self on convicting on uncorroborated evidence of an
accomplice.
Shamwana & 7 others v The People (1985) ZR 41
DPP v Hester [1972] 3 All ER 1056 at p 1059
Mwelwa v the People (1972) ZR 29 – Children
Nsofu v The People (1973) ZR 287.

Corroboration need not be independent evidence. It is supporting evidence

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

Evidence discussed under classification can be used to support other

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

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Lecture 5: Course of Evidence

5.0 Examination of Witnesses

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

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

During this stage of proceedings, a party is not allowed to ask leading

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

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

to introductory matters and facts on which there is no dispute.

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

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

5.2 Cross Examination

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

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

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

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

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

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

examination.

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5.4 Unfavourable and Hostile witnesses

5.4.1. Hostile Witnesses

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

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

statement at trial.

Jeffrey Godfrey Munalula v The People (1982) Z.R. 58 (S.C.)

The appellant was convicted of theft by public servant and was sentenced to
seven years' imprisonment with hard labour. He appealed to the Supreme
Court against conviction, submitting inter alia that the learned magistrate
erred in treating a prosecution witness as hostile and rejecting, his evidence,
since that witness' alleged inconsistency had not been demonstrated.
Held:
(i) Where on an application to treat a witness as hostile, the court after
sight of the inconsistent statement, decides to grant the application, it
should then direct itself not to place any reliance on the contents of the
statement and so record in the judgment.
(ii) Before, with leave of the court, adducing evidence to prove a witness's
inconsistency, the previous statement and its circumstances must be
mentioned to the witness so that he may say whether or not he has made
such a statement.

(iii) It is in the court's discretion to determine a witness's hostility in that he

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

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

as evidence of the truth of the facts stated therein.

There is no absolute rule that a hostile witness’ testimony must be

completely thrown out. One might be rehabilitated if they adopt the previous
inconsistent statement and explain it in the context of their testimony. (R v
Goodway[1993]4All ER 894)

5.4.2. Unfavourable Witnesses

Unfavourable witness on the other hand is one who fails to come to proof of
facts for which he is called to prove. There is no hostile intention or
deliberate move on his part.

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

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

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

The appellant was convicted in the subordinate court of indecent assault on
a female. The prosecution led the evidence of a witness who was completely
adverse to the prosecution case. There was no evidence on the record that
any attempt was made to treat him as a hostile witness or to challenge his
evidence.
Held:
It is not only when a witness is formally declared hostile by the court that
the party calling him is entitled to lead other evidence which contradicts the
unfavourable evidence, and it follows that even where the witness has not

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been declared hostile it is for the court to decide where the truth lies after
considering the whole of the evidence.

5.4.3. Refractory Witnesses

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Lecture 6: Exclusionary Rules

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

6.1.Facts Excluded on Grounds of Privilege

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

Bankers may be compelled to disclose account information where a court

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

6.2. Professional Privilege

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

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

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

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There are exceptions where communication is intended to facilitate

commission of crime or fraud. There are also statutory exemptions.

6.3. Other Relationships

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

6.4. Matrimonial communications

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

6.5. Incriminating information

A witness is protected from answering a question or producing a document
that makes him or her criminally liable. There is an exception if the time for
proceedings has expired, a penalty has been waived or a witness has been
convicted or acquitted. s.157 (vi) CPC Cap 88

6.6. Evidence of Similar Facts

The general rule is that it is not competent for the prosecution to bring
evidence tending to show that the accused has been guilty of criminal acts
other than those for which he/she is being tried leading to the conclusion
that the accused is a person likely, form his criminal conduct or character,
to have committed the crime for which s/he is being tried. On the other
hand, the mere fact that the evidence adduced tends to show the
commission of other crimes does not render it inadmissible if it be relevant
to an issue before the jury (Per Lord Herschell in Makin v Attorney General
for New South Wales [1894] A.C 232)

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The principle was restated in DPP v Boardman[1975] AC 421, evidence of

similar facts can be admitted if it is more than barely relevant to the guilt of
the accused.

Evidence of similar facts may be admitted. Instances where such evidence

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

It is an error to draw up a closed list of instances in which similar fact

evidence may be admitted. Circumstances differ from case to case.

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

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

Prejudicial force
i) the accused is painted as bad and prone to commit crimes (against
the presumption of innocence)
ii) Prosecutors are more likely to not investigate other possible
offenders but will rely on identification evidence of victims of
similar crimes.
Esther Mwiimbe v The People (1986) Z.R. 15 (S.C.)

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Mr Zulu raised two other subsidiary grounds, both of which are valid. One
was that the learned trial judge erred in admitting the evidence of an old
police docket in which an allegation of the attempted murder of the deceased
by the appellant had been investigated and dropped. Mr Sivakumaran
properly concedes that the docket was wrongly admitted but submits that
the irregularity occasioned thereby was not fatal. Evidence of an alleged
previous attempt by an accused on the life of a victim may in certain cases,
and if relevant, be admissible as similar fact evidence in proof or disproof of
a fact in issue. However, the admission of similar fact evidence is in the
discretion of the trial court which will no doubt, among other things,
consider whether its evidential value outweighs its prejudicial effect.
In this case, there is nothing on the record to indicate that the learned trial
judge had discussed the exercise of his discretion. That being the case, and
following the usual approach to criminal cases, we must assume in favour of
the appellant that had' he considered the question, he would have exercised
his discretion in favour of exclusion.
O’Brien v Chief Constable of South Wales Police[2005] 2 All ER 930
Held – The test of admissibility of similar fact evidence in a civil suit
was the test of relevance; such evidence was admissible if it was
potentially probative of an issue in the action. The test of
admissibility of similar facts in criminal proceedings required
enhanced relevance or substantial probative value because, if the
evidence was not cogent, the prejudice that it would cause to the
defendant could render the proceedings unfair. The test of admissibility
of evidence of bad character that a defendant wished to adduce against a
police witness required enhanced relevance in order to ensure that the
ambit of the trial remained manageable. The automatic application of either
of those tests as a rule of law in a civil suit would build into civil procedure
an inappropriate and undesirable inflexibility. However, the policy
considerations which had given rise to the complex rules of criminal
evidence were considerations which a judge with the management of
litigation would wish to keep well in mind. Similar fact evidence would
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not necessarily, but could, carry the risk of causing unfair prejudice;
evidence of impropriety which reflected adversely on the character of
a party could risk causing prejudice which was disproportionate to its
relevance. The judge would be astute to see that the probative
cogency of the evidence justified the risk of prejudice in the interests
of a fair trial, and when considering whether to admit evidence or
permit cross examination on collateral matters, he would have regard
to the need for proportionality and expedition.

6.7. Evidence of Character

Evidence of character relates to evidence that tends to show the tendency of
a person to act, think, or feel in a particular way. Disposition or propensity
of a person to think, feel act in a certain manner. Character may be revealed
by commission of other crimes or other discreditable conduct. Evidence of
character may be relevant to make inferences of facts in issue. Much as
such evidence may be relevant, there is sufficient research to show that it
equally tends to prejudice the judge before whom an accused person is
appearing. Prejudice would be in form of deciding while placing undue
weight or consideration to collateral issues as opposed to evidence before
court to prove facts in issue.

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

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

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

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

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

Furthermore, evidence of the accused bad character is generally

inadmissible. The exceptions are:

i) Where the Defence leads evidence of good character, in which case he/
she may be cross examined on that evidence to impeach such evidence.

ii) Another exception is where an accused person has attacked the character
of a prosecution witness in which case the accused will be said to have
removed his shield.

Where character is tendered to prove or disprove some other issue, it

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

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

The appellant was convicted of theft and sentenced to eighteen months'
imprisonment with hard labour. Under cross-examination the appellant was
asked questions which elicited the facts that during the two months
preceding his trial he had been in prison and that he had been released
from prison only two days prior to his arrest in connection with the present
case, that he had previously been in gaol for theft, and a denial that he was
a habitual criminal. The appellant appealed against conviction.
Held:
(i) Under s. 148 (f) of the Criminal Procedure Code questions relating to
the accused previous committals and convictions could only be admitted in
evidence where

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ii) It can be proved that his guilt in those offences show that he is guilty of
the present offences;
(ii) Where the good character of the prosecution witness has been put in
issue; and
(iii) Where the accused wants to establish his good character.
(iv) It was wrong for the prosecutor to cross-examine the appellant as to
his character since the prejudicial effect of the evidence extracted
outweighed its evidential value. The trial magistrate ought to have refused
the cross-examination or to have informed the appellant of his right to
refuse to answer those questions.

Witnesses
An opponent’s witness can be asked about his general character, previous
convictions for purposes of discrediting his testimony. The restrictions are
that the matter must be relevant to the credibility of the witness. It relevant
only to credit, evidence should not be brought to rebut witness’ denial.
Secondly, the court will not allow questions that are solely intended to
embarrass the witness or torture them.

Statutory provisions on previous convictions or other offences than those

inquired into.

Section 157(vi) CPC Cap 88

a person charged and called as a witness, … shall not be required to answer,
any question tending to show that he has committed or been convicted of, or
been charged with any offence other than that (with which) he is then
charged, or is of bad character, unless-
(a) The proof that he has committed or been convicted of such other offence
is admissible evidence to show that he is guilty of the offence wherewith he
is then charged; or
(b) he has, personally or by his advocate, asked questions of the witnesses
for the prosecution with a view to establishing his own good character, or

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has given evidence of his own good character, or the nature or conduct of
the defence is such as to involve imputations on the
Character of the complainant or the witnesses for the prosecution; or
(c) He has given evidence against any other person charged with the
Same offence

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Lecture 7:Hearsay Evidence

7.0.Formal oral or written statements of a person in or outside court may
not be tendered in evidence as truth of that state in the statement. The
rationales for exclusion are that:
1. The maker of the statement has not taken any responsibility to ensure
its truth. The statement is not made on oath nor is the maker
subjected to cross examination to test his/her credibility.
2. Truth depreciates in the process of repetition
3. Such information may protract litigation because it potentially invites
untruths
4. It would encourage substitution of weak evidence for best evidence.

Such statements are not admissible as evidence unless they fall under
exceptions under common law and statute.
MuvumaKambanjaSituna v The People (1982) Z.R. 115

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

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

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

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therefore, what PW5 narrated in court was not hearsay evidence and
was admissible.”

7.1.2.Res Gestae
The term means the transaction or story. It relates to statements that
are uttered contemporaneously or that explain the facts in issue. One
such example is the spontaneous utterances about an event or issue.
Ratten v R [1972] AC 378.
Statement made by a person in such circumstances where there is no
opportunity for concoction or error.
The conditions for admissions are
i) statement should be made by actor,
ii) must relate to the act in issue
iii) Must have been made contemporaneously with the act.
The People v John Nguni (1977) Z.R. 376
Held:
Evidence of a statement made by a person who is not called as a
witness may be admitted as part of the res gestae and can be treated
as an exception to the hearsay rule provided it is made in such
conditions of involvement or pressure as to exclude the possibility 20
of concoction or distortion to the advantage of the maker or to the
disadvantage of the accused.
Chisoni Banda v The People (1990-92) Z.R. 70.
Edward Sinyama v The People (1993 - 1994) Z.R. 16
The true test and the primary concern of the Court (as to whether a
statement may be admitted as part of the res gestae) must be whether
the possibility of concoction or distortion should be disregarded in the
particular case

7.1.3 Admissions and confessions

Admissions and confessions by a party to proceedings, when made
out of court are normally admissible as an exception to the hearsay

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rule. Admissions are usually express but may be implied by a person’s

silence.
An admission of a party that is adverse to him/her amounts to a
confessions. Different rules will apply and we will discuss this in more
detail later.

7.14 Dying declarations

In criminal trials for murder or any unlawful homicide, statement or
declaration by the deceased is admissible as an exception to the
hearsay rule. The rule is premised on the assumption that no better
evidence is available from the witness and also that the maker of the
statement is under a settled hopeless expectation of death when the
statement is made. No one wants to meet his maker with a lie on his
lips.

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

7.1.5 Declarations made in the course of duty

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

7.1.4 May also be admitted by tribunals that do not observe strict rules
of evidence.
e.g. industrial relations court is not bound rules of evidence.

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Lecture 8: Confessions
8.0.Confession is an admission made by the person charged with a crime
stating or suggesting that he committed that crime. Confessions are
generally not admissible against the person making them unless the person
wishing to rely of them shows they are make voluntarily, i.e. without they
have not been obtained from either fear of prejudice or hope of advantage
held out by the person in authority. This was formulated in the classic case
of Ibrahim v R [1914] AC 599 in the speech of Lord Summers

Involuntary confessions are not admitted because it is quite unsafe to

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

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

The question whether a confession has been made voluntarily must be

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

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

cross examined on it.

8.1. Person in authority

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

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

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

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

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

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

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

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8.2. Judges Rules

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

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

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

i) When the police are investigating a crime, they are entitled to

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

“You are not obliged to say anything unless you wish to do so

but what you say may be put in writing and given in evidence.”

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

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

Before admitting a statement obtained contrary to the Judges' Rules a trial

court should consider whether the prejudicial effect of the evidence
outweighs its evidential value.

8.3 Form of confession

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

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8.4 Evidence obtained in consequence of an unlawful act or

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

The rule against admission of involuntary confessions does not extend to

evidence found as consequence of the confession.

Liswanisov The People (1976) Z.R. 277

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Lecture 9: Evidence of Opinion

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

9.1. Lay opinion

Opinion evidence of a lay person may be admitted when it relates to matters
which cannot be verbalised without expressing an opinion. Examples
include:
Lay observation of state of a person who has been drinking
Blake v The People (1973) Z.R. 157

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

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

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

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

9.2. Expert opinion

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

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The requirement for experts is only on matters on which the court cannot
make its own inferences of the facts in issue; otherwise the expert will just
introduce jargon and delay the proceedings.

In Phillips and others v Symes and others [2005] 4 All ER 518, the
following were stated as the duties of an expert witness in civil proceedings:
i) Expert evidence presented to the Court should be, and should be
seen to be, the independent product of the expert uninfluenced as
to form or content by the exigencies of litigation (Whitehouse v.
Jordan ([1981] 1 All ER 267 at 276, [1981] 1 WLR 246 at 256–257)
per Lord Wilberforce).
ii) An expert witness should provide independent assistance to the
Court by way of objective unbiased opinion in relation to matters
within his expertise (see Polivitte Ltd. v. Commercial Union
Assurance Co. Plc. ([1987] 1 Lloyd’s Rep 379 at 386) per Mr Justice
Garland and Re J ([1991] FCR 193) per Mr Justice Cazalet). An
expert witness in the High Court should never assume the role of
an advocate.
iii) An expert witness should state the facts or assumption upon which
his opinion is based. He should not omit to consider material facts
which could detract from his concluded opinion (Re J).
iv) An expert witness should make it clear when a particular question
or issue falls outside his expertise.
v) If an expert’s opinion is not properly researched because he
considers that insufficient data is available, then this must be
stated with an indication that the opinion is no more than a
provisional one (Re J).
vi) If, after exchange of reports, an expert witness changes his view on
a material matter having read the other side’s expert’s report or for
any other reason, such change of view should be communicated
(through legal representatives) to the other side without delay and

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when appropriate to the Court. 7. Where expert evidence refers to

photographs, plans, calculations, analyses.

When dealing with the evidence of an expert witness a court should

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

ShawazaFawaz and Prosper Chelelwa v The People (1995)

S.J.S.C.Z./9/49/94

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

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

Where two experts give conflicting opinions, the court can call a third expert
if it so wishes but otherwise has to determine where the truth lies.

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Lecture 10: Public Policy

10.0.Relevant evidence must be excluded on the ground of public policy
when it concerns certain matters of public interest considered more
important than the full disclosure of the evidence in court.

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

The relevant guides for the court necessarily involve:

i) The public interest that harm shall not be done to the nation or public
service; and
ii) The public interest that the administration of justice shall not be
frustrated by the withholding of documents which must be produced if
justice is to be done.

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

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

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

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

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The grounds of privilege may also be by a minister as stated in section 25(3)

of the State Proceedings Act.

Parliament deliberations may not be produced without leave of the House (s.
8 of the National Assembly (Powers and Privileges) Act, Cap 12 of the Laws
of Zambia).

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

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

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

Daniel ChizokaMbandangoma and The Attorney- General (1977) Z.R.

334

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

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

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Lecture 11: Evidence of Identification

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

11.1. The problems of eye witness evidence of identity.

It is now trite that evidence of identification of eye witnesses carries a high
risk of miscarriage of justice. There are a number or reasons that have been
put forward for this proposition including the following:
a)Observation
Identification by witnesses with defective vision is not reliable. The defect
may be as a result of a perceptual disorder, bad eyesight, and colour
blindness among others.

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

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

Further, there is a tendency of bias by witnesses in relation to race, sex and

gender of the accused person or association of such persons with a gang etc.
Members of a particular racial group are better at identifying persons of the
same race than another.

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

neutral features.
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b) Storage and retrieval of memory

Research by psychologists has shown that a number of post-event factors

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

Research has also shown that retrieval of memory can be strongly

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

Further, suggestive identification may very likely influence a witness. For

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

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

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

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

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police officers conducting identification parades ought to show the highest

standard of fairness and impartiality.

Evidence of identification based parades which have been unfairly

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

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

Held:

(i) The Police or anyone responsible for conducting an identification

parade must do nothing that might directly or indirectly prevent the
identification from being proper, fair and independent. Failure to observe
this principle may, in a proper case, nullify the identification.

(ii) If, therefore, any irregularity committed in connection with the

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

c) Evaluation of eye witness accuracy.

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

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

11.2. Problems of adducing identification evidence at trial.

Dock identification has a potential of prejudice to the accused. If the witness
is identifying the accused for the first time, it is probable that the witness is
probably that the witness has forgotten the person he/she saw at the

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relevant time. If a witness has identified a witness before, there are still risks
that he witness is remembering the witness form the last identification.

Evidence of previous identifications is more reliable because the witness is

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

11.3. Evidence of previous identification by witness

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

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

The Court laid the following guidelines for courts when evaluating
identification evidence:
i) Whenever a case against an accused person depends wholly or
substantially on the correctness of one or more identifications of the
accused which the defence alleges to be mistaken, the judge should warn
himself of the need for caution before convicting the accused in reliance on
the correctness of the identification(s).
ii) The judge must closely examine the circumstances in which the
identification by each witness came to be made. Factors to consider include;
the length of time the witness had the accused under observation, the
nature of the light, whether the observation was impeded in any way e.g. by
passing traffic, people, fear, and so on. Whether the witness had seen the
accused before, how often? How long had passed between the observance
and the identification?
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All these factors go the quality of identification.

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

These guidelines are applicable in all cases where identification of an

accused person is alleged to be mistaken.

MuvumaKambanjaSituna v The People (1982) Z.R. 115

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

Held:
(i) The evidence of a single identifying witness must be tested and
evaluated with the greatest care to exclude the dangers of an
honest mistake; the witness should be subjected to searching
questions and careful note taken of all the prevailing conditions
and the basis upon which the witness claims to recognise the
accused.
(ii) If the opportunity for a positive and reliable identification is poor
then it follows that the possibility of an honest mistake has not
been ruled out unless there is some other connecting link between

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the accused and the offence which would render mistaken

identification too much of a coincidence.
(iii) PW4 had stated that he had seen the appellant entering the shop
as he himself was rushing out for safety. It is quite clear on these
facts, therefore, that PW4 could only have had at best a momentary
glimpse of the appellant. In these circumstances there is a great
deal of merit in the ground appeal which attacks the quality of
identification in this case

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

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

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

Where the court is invited to identify an accused person, either by looking at

pictures or a video footage taken at the scene of crime or a voice or
handwriting. They may do so with the help of experts.

11.5. Supporting evidence

Need not be corroboration within the strict terms. It may sometimes be
supported by a fake alibi, forensic evidence and other circumstantial
evidence.

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Lecture 12: Documentary Evidence

12.0.The evidence act, cap 43 of the laws of Zambia defines "document" as
includes any device by means of which information is recorded or stored,
and books, maps, plans and drawings. As a general rule, a party who
wishes to rely on contents of a document and that of identifying it must
adduce primary evidence of its contents. This is spoken of as the most
important survival of the best evidence rule. Read sections 3 and 4 of the
Evidence Act, Cap 43 of the laws of Zambia.

12.1. Primary evidence of contents of a document

a) The original
The primary contents of a document are the original.
b) Copy of document requiring enrolment
There are certain private documents which must be filed in court or other
public or office and when filed as such, a copy is issued by the court or such
public office may be treated as the original. E.g. probate of will, lease
registered at Ministry of lands.
c) An informal admission by one party to litigation constitutes primary
evidence against him of the contents of the document. The opponent is
dispensed from the necessity of producing the original or showing that the
case comes within the rule requiring this to be done.

12.2. Secondary evidence

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

12.3 Exceptions to the general rule requiring production of original

document
a) When document is in possession and control of opponent who fails to
produce it after a notice has been served on him/her.
When a notice to produce is served on a party, it provides a foundation for
reception of secondary evidence.

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

power.
b) When original has not been found after due search.
c) When production of original is, for practical purposes, impossible.
d) When production of an original document would be highly inconvenient
owing to the public nature of the document.
e) Bankers Books

12.4. The person to adduce documentary evidence

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

12.5. Proof of attestation and execution of private documents.

When a party wishes to rely on executed document, the court will require
evidence that the document was properly executed.
The court requires proof that the document was signed by the person whom
it is said to have signed. In terms of execution, the court must satisfy itself
that the document was duly executed. There are a number of ways in which
the court will establish the handwriting or signature in question.
a) Proof of handwriting

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i) Handwriting can be proved by testimony of a person whose handwriting is

to be proved. It could also be proved by the testimony of a person who saw
the document being executed.
ii) The opinion of a person who is sufficiently familiar with the handwriting
or signing of the person whose handwriting is in question. For these
purposes, the witness need not see the witness write. It is sufficient that the
witness possessed or has received documents purporting to have been
written or signed by person whose writing is in question. What is important
is the witness has had sufficient opportunity knowledge of the handwriting
in question.
iii) Expert opinion of a handwriting expert following comparison of the
disputed writing with proved to have been written or signed by the person
whose writing or signature is in question.
b) Proof of attestation
i) Section 6 of the Evidence Act, attestation may be proved in the ways
discussed above but there are documents requiring special proof of
attestation.
ii) Wills and testamentary documents – one of the attesting witnesses. If the
witnesses are not available, evidence must be shown that they are dead,
insane or outside the jurisdiction. Secondly, evidence of their handwriting or
signature to prove attestation must be called. If evidence of handwriting
cannot be obtained, evidence of those who saw the will being executed or
any other evidence of due execution will be called.
c) Presumption relating to documents
Attestation like handwriting would not be easily proved in a case of an old
document. The practical difficulties of this are negated by the presumption
of due execution of a document purporting to be not less than 20 years old,
provided it is produced from proper custody. What is proper custody will
vary from case to case. Read Section 7 of the Evidence Act, Cap 43 of the
laws of Zambia.
Another presumption is the presumption that a document was executed on
the date which it bears.
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Alterations in a deed are presumed to have been before execution, otherwise

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

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evidenced by other means from which such person’s intent or other

statement can be inferred.

12.6 Admissibility of extrinsic evidence

Documents are admissible as exclusive evidence of things stated therein.
Flowing from this rule, extrinsic evidence is generally not admissible when,
if accepted, it would have the effect of varying, contradicting, constituting a
transaction required by law to be in writing or document constituting a valid
and effective contract or transaction. (Bank of Australia v Palmer [1897] AC
540)

However, pre-contractual statements may be admissible if they retain a legal

significance. This however depends on the nature of the contract or
agreement. In conveyance for example, the rule is stricter than in a contract
for sale of gods.

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

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Lecture 13: Judicial Notice

13.0.In an a legal system such as ours, each party must prove the facts in
issue by bringing evidence in support of a fact in order to satisfy the burden
of proof to a required standard. The court will not normally make a finding
of fact absence evidence in support of that finding. Judicial notice declares
that a court can make a finding of fact even though not adduced in evidence
of certain facts which are so notorious and of a general nature or where
statute declares that certain facts must be taken judicial notice of.

13.1 facts judicially noticed without inquiry

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

13.2 Facts judicially noticed after inquiry.

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

13.3 Statutory provisions

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

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

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13.4. Personal Knowledge

Judges can only take judicial knowledge of personal knowledge which is of a
general nature and public notoriety. The judge is not entitled to collect
evidence of facts privately no matter how interested the judge is in the
subject of inquiry.

The rationale for judicial review is to provide expediency to the trial process.
Secondly, there are matters that are too notorious that requiring proof
thereof would end to insult the intelligence of the judge.

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

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

On Appeal, it was held as follows:

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

“It is trite law that judicial notice is the cognisance taken by the court itself
of certain matters which are so notorious, or clearly so established, that the
need to adduce evidence of their existence is deemed unnecessary. This is
simply a common sense device by which the court's time and the litigant's
expenses are saved. It is important, however, that, in taking judicial notice
of (notorious) facts, courts should proceed with caution. Thus, if there is

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room for doubt as to whether a fact is truly notorious, judicial notice should
not be taken of it.”

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

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

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

Apart from personal experiences of the judges in the course of their duties
one may note and apply to this country the view expressed in R. v Aspinall,
13 Cox's C.C., 563 at 571 - 'But judges are entitled and bound to take
judicial notice of that which is the common knowledge of the great majority
of mankind....' Although the learned trial Judge took a view of their evidence
to be mentioned in a moment, there lies in the record also the evidence of
the appellants themselves, which evidence was considered, and which sets
out their views as to a threat from members of the UNIP and as to their
beliefs that the police were making war upon them
Mwape v The People (1976) ZR 160 (SC)
The question of judicial notice has been canvassed by the State. A court
may, and in some cases must, take judicial notice of various matters. It will,
for instance, take judicial notice of matters of common knowledge which are
so notorious that to lead evidence in order to establish their existence may
be unnecessary and could, as Phipson puts it in his Manual of the Law of
Evidence, 10th Edition at page 21 be "an insult to the intelligence to require
evidence". In Clinton v Lyons & Co. Ltd [1] the King's Bench Division
recognised that cat and dog may fight. Nokes in his Introduction to
Evidence, 3rd Edition, summarises the point well when he says at page 55
that "this is merely notice of a general characteristic and should not make
inadmissible evidence that a particular dog was of a timid nature"
The People v Fred M’membe, Masautso Phiri and Bright Mwape (1997)
S.J. 63 (H.C.)

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The three accused were employees of The Post, an independent newspaper.

In issue number 401 of the newspaper, the accused carried a story in which
they revealed a devious plot by the government to hold a secret referendum
on the proposed constitutional amendments.

The accused are charged with an offence under section 4 (3) of the State
Security Act, Cap 110 of the Laws of Zambia. Leaving out what is not
necessary, section 4 (3) aforesaid provides thus: “Any person who receives
… Any information knowing or having reasonable grounds to believe at the
time when he receives it that the same information has been communicated
to him in contravention of the Provisions of this Act … shall be guilty of an
offence”.

Police conducted a search of the premises on that day and found, in Bright
Mwape’s (Accused three) Office, the document Programme of work on
Constitutional Reform Activities (Ex P1) under a table calendar. The
document Ex P1 (a hand written document substantially similar with Ex P3)
was not and is not marked secret. The document contained nothing more
than what its title suggests and the projected costs for the activities to be
undertaken in the Provinces. Information contained on EX P1 came from Ex
P3 (a schedule to a cabinet memorandum) which was a classified document.
The issue whether Ex P 3 was a classified document for purposes of the
state Security Act was a matter of fact on which the court had to
determine.Justice Peter Chitengi in making a ruling on a case to answer
stated thus:
“In fact reading through Ex P3 one finds that it contains nothing new
and secret but matters that were publicly discussed during the
constitutional reform debates, which matters are common knowledge
and which I take judicial notice. The document Ex P3 contains no
matter which if it fell into the hands of the enemy or the general
public would imperil or prejudice the interest of the State.”

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Lecture 14: Presumptions.

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

14.1 Differences Between Presumptions of Fact and Presumptions of

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

14.2 Examples of Presumptions of Law

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

14.3. Presumptions of Fact

These are logical inferences that the mind naturally draws. There is
therefore no list that may be drawn in this case. They are inferences or
presumptions which render circumstantial evidence admissible.
For example, inMwansaMushala and others) Z.R. 58 (S.C.)v The People
(1978
The failure by the police to take fingerprints from the car the third appellant
was alleged to have been driving leads to the presumption in his favour that

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his fingerprints were not on or in that car and therefore that he may not
have been the one who was driving that car.

14. 4. Effect on burden of proof

b) Presumptions of law
Where rebuttable presumption of law exists in favour of party, it lies upon
the other party to rebut it.
i) Civil cases – fraud vitiates title
ii) Criminal cases- presumption of innocence casts burden of proof on
prosecution. Burden of proving non consent in rape lies with prosecution.
ii) Conflicting presumptions neutralise each other. Case must be determined
on evidence e.g. presumption of validity of marriage vs. presumption of
death.

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Lecture 15: Estoppel

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

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

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

15.1 Estoppel by record

The chief of these are judgements. The estoppel on this ground is founded
on the premises that:
i) There should be an end to litigation
ii) No one should be sued twice on the same ground
Flowing from these, judgments are binding and no evidence may be
admitted to contract or vary them.

A judgement of a competent court is conclusive against all persons of the

existence of the state of things. E.g. a judgment of a criminal court
acquitting an accused person is conclusive evidence of the acquittal in a
case of malicious prosecution.

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

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

When an issue has been decided upon by a court of competent jurisdiction,

neither party is allowed to adduce evidence on the issue.
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This estoppel must be pleaded where there is an opportunity otherwise they

may be deemed to have been waived.

15.2 Estoppel by Deed

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

15.3 Estoppel by conduct

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

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