THE UNIVERSITY OF ZAMBIA

INSTITUTE OF DISTANCE EDUCATION

BACHELOR OF LAWS

MODULE

LPU 3911: LAW OF EVIDENCE

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without the permission of the University of Zambia, Institute of Distance Education. All rights
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addressed to:

The Director
Institute of Distance Education
The University of Zambia
P.O. Box 32379
Lusaka
Zambia.
Tel: +260 978772249
E-mail: [email protected]
Website: www.unza.zm

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Contents
MODULE STRUCTURE ........................................................................................................................... 11
INTRODUCTION ...................................................................................................................................... 12
Aim ............................................................................................................................................................. 13
Objectives ................................................................................................................................................... 13
Assessment.................................................................................................................................................. 13
Prescribed Readings .................................................................................................................................... 13
Recommended Readings ............................................................................................................................. 14
Time frame .................................................................................................................................................. 14
Study Skills ................................................................................................................................................. 14
Need help? .................................................................................................................................................. 16
UNIT 1 ........................................................................................................................................................ 17
INTRODUCTION TO THE LAW OF EVIDENCE .................................................................................. 17
1.0 Introduction ........................................................................................................................................... 17
1.1 Unit Aim ............................................................................................................................................... 17
1.2 Objectives ............................................................................................................................................. 17
1.4 Definition of Evidence .......................................................................................................................... 18
1.5 Why do we study the Law of Evidence?............................................................................................... 19
1.6 Sources of Law of Evidence ................................................................................................................. 19
1.6.1 The Constitution of Zambia, Chapter 1 of the Laws of Zambia .................................................... 19
1.6.2 Acts of Parliament.......................................................................................................................... 20
1.6.3 Common Law................................................................................................................................. 20
1.6.4 Judicial Precedents ......................................................................................................................... 20
1.6.5 Text Books or writings of eminent writers .................................................................................... 21
1.7 Principal items of judicial evidence ...................................................................................................... 21
1.7.1 Facts open to proof or disproof ...................................................................................................... 21
1.7.1.1 Facts in Issue ........................................................................................................................... 21
1.7.1.3 Relevant Facts ......................................................................................................................... 23
1.7.1.4 Collateral Facts ....................................................................................................................... 23
1.7.2 Rationale for distinguishing the three facts.................................................................................... 24
1.8 Judicial Discretion ................................................................................................................................ 25
1.10. Unit Summary .................................................................................................................................... 26

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1.11 References and suggested Readings ................................................................................................... 26
UNIT 2 ........................................................................................................................................................ 28
OBJECTS OF PROOF/CLASSIFICATION OF EVIDENCE ................................................................... 28
2.0 Introduction ........................................................................................................................................... 28
2.1 Unit Aims .............................................................................................................................................. 28
2.2 Unit Objectives ..................................................................................................................................... 28
2.4 Objects of proof .................................................................................................................................... 29
2.4.1 Testimony ...................................................................................................................................... 29
2.4.2 Documents ..................................................................................................................................... 29
2.4.3 Real evidence ................................................................................................................................. 29
2.4.4 Circumstantial evidence ................................................................................................................. 30
2.6 Unit Summary ....................................................................................................................................... 33
2. 7 References and Recommended Readings ............................................................................................ 33
UNIT 3 ........................................................................................................................................................ 34
RELEVANCE, ADMISSIBILITY AND WEIGHT OF EVIDENCE ........................................................ 34
3.0 Introduction ........................................................................................................................................... 34
3.1 Unit Aims ........................................................................................................................................ 34
3.2 Unit Objectives ..................................................................................................................................... 34
3.4 Relevance .............................................................................................................................................. 35
3.5 Admissibility ......................................................................................................................................... 35
3. 6 Weight of Evidence.............................................................................................................................. 36
3.7 Unit Summary ....................................................................................................................................... 36
3.8 References and Recommended Readings ............................................................................................. 36
Unit 4 .......................................................................................................................................................... 38
BURDEN OF PROOF AND STANDARD OF PROOF ............................................................................ 38
4.0 Introduction ........................................................................................................................................... 38
4.1 Unit Aims .............................................................................................................................................. 38
4.2 Unit Objectives ..................................................................................................................................... 38
4. 4 Burden of proof .................................................................................................................................... 39
4.4 .1 Legal burden ................................................................................................................................. 40
4.4 .2 Evidential burden .......................................................................................................................... 40
4.5 Incidence of burden of proof ............................................................................................................... 41

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 4.5 .1 Criminal cases ............................................................................................................................... 41
4.5 .2 Civil cases ..................................................................................................................................... 42
4. 6 Standard of Proof ................................................................................................................................. 43
4. 6 .1 Criminal cases .............................................................................................................................. 43
4.6 .2 Civil cases ..................................................................................................................................... 43
4.7 Factors affecting burden and standard of proof .................................................................................. 44
4.7 .1 Statutes .......................................................................................................................................... 44
4.7 .2 Presumptions ................................................................................................................................. 44
4.8 Unit Summary ....................................................................................................................................... 44
4.9 References and Recommended Readings ............................................................................................. 45
UNIT 5 ........................................................................................................................................................ 46
WITNESSES............................................................................................................................................... 46
5.0 Introduction ........................................................................................................................................... 46
5.1 Unit Aims .............................................................................................................................................. 46
5.2 Unit Objectives ..................................................................................................................................... 46
5.4 Choice and order of calling witnesses................................................................................................... 47
5.5 Competence, Compellability and privilege of witnesses ...................................................................... 48
5.5 .1 Competence................................................................................................................................... 48
5.5 .1.1 Competence by reason of capacity......................................................................................... 48
5.5 .1.2 Witnesses with an interest in the outcome of the case ........................................................... 50
5.5 .2 Compellability............................................................................................................................... 51
5.6 Privilege ............................................................................................................................................ 52
5.6 .1 Sovereign Immunity.................................................................................................................. 52
5.6 .2 Public Policy ............................................................................................................................. 53
5.6 .3 Bankers ..................................................................................................................................... 55
5.6 .4 Legal Professional privilege...................................................................................................... 55
5.6 .5 Without prejudice communication ............................................................................................ 56
5.6.6 Matrimonial communications .................................................................................................... 57
5.6 .7 Incriminating information ......................................................................................................... 57
5.8 Unit Summary ....................................................................................................................................... 58
5.9 References and other Recommended Readings .................................................................................... 58
UNIT 6 ........................................................................................................................................................ 61

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COURSE OF EVIDENCE IN COURT ...................................................................................................... 61
6.0 Introduction ........................................................................................................................................... 61
6.1 Unit Aim ............................................................................................................................................... 61
6.2 Objectives ............................................................................................................................................. 61
6.4 Swearing of Witnesses .......................................................................................................................... 62
6.4 .1 Oaths and Affirmation .................................................................................................................. 62
6.5 Examination of Witnesses ..................................................................................................................... 63
6.5 .1 Examination in chief ..................................................................................................................... 63
6.5 .2 Cross examination ..................................................................................................................... 65
6.5 .3 Re- examination ........................................................................................................................ 65
6.6 Unfavourable and Hostile witnesses ..................................................................................................... 65
6.6 .1 Hostile witnesses ........................................................................................................................... 66
6.6 .2 Unfavourable witnesses ................................................................................................................ 66
6.6 .3 Refractory Witness........................................................................................................................ 67
6.8 Unit Summary ....................................................................................................................................... 68
6.9 References and prescribed readings ...................................................................................................... 68
UNIT 7 ........................................................................................................................................................ 70
CORROBORATION AND CARE WARNINGS ...................................................................................... 70
7.0 Introduction ........................................................................................................................................... 70
7.1 Unit Aims .............................................................................................................................................. 70
7.2 Objectives ............................................................................................................................................. 70
7.3 Corroboration ........................................................................................................................................ 71
7.4 Care warnings ....................................................................................................................................... 71
7.4 .1 Evidence of identification ............................................................................................................. 71
7.5 Supporting evidence.............................................................................................................................. 74
7.6 Unit Summary ....................................................................................................................................... 75
7.8 References a Recommended Readings ................................................................................................. 75
UNIT 8 ........................................................................................................................................................ 77
EVIDENCE OF CHARACTER AND DISPOSITION .............................................................................. 77
8.0 Introduction ........................................................................................................................................... 77
8.1 Unit Aim ............................................................................................................................................... 77
8.2 Objectives ............................................................................................................................................. 77

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8.3 Evidence of Character ........................................................................................................................... 77
8.3 .1 Parties to Proceedings ................................................................................................................... 78
8.3 .2 Witnesses ...................................................................................................................................... 79
8.4 Evidence of similar facts ....................................................................................................................... 80
8.5 Unit Activity ......................................................................................................................................... 82
8.7 References and Recommended Readings ............................................................................................. 83
UNIT 9 ........................................................................................................................................................ 85
OPINION .................................................................................................................................................... 85
9.0 Introduction ........................................................................................................................................... 85
9.1 Unit Aim ............................................................................................................................................... 85
9.2 Objectives ............................................................................................................................................. 85
9.3 Evidence of opinion .............................................................................................................................. 85
9.3 .1 Expert opinion............................................................................................................................... 85
9.3 .2. Lay opinion .................................................................................................................................. 87
9.5 Unit Summary ....................................................................................................................................... 88
9.6 References and Recommended Readings ............................................................................................. 88
UNIT 10 ...................................................................................................................................................... 90
THE RULE AGAINST HEARSAY ........................................................................................................... 90
10.0 Introduction ......................................................................................................................................... 90
10.1 Unit Aim ............................................................................................................................................. 90
10.2 Objectives ........................................................................................................................................... 90
10.3 The rule against hearsay ...................................................................................................................... 90
10.4 Exceptions ........................................................................................................................................... 91
10.4.1 A statement tendered not as truth of what is said but that the statement was made. .................... 91
10.4.2 Res gestae..................................................................................................................................... 91
10.4.3 Admissions and confessions ........................................................................................................ 92
10.4.4 Dying declarations ....................................................................................................................... 92
10.4.5 Declarations made in the course of duty ...................................................................................... 92
10.5 Unit Summary ..................................................................................................................................... 93
10.6 References and recommended reading ............................................................................................... 93
UNIT 11 ...................................................................................................................................................... 95
CONFESSIONS .......................................................................................................................................... 95

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11.0 Introduction ......................................................................................................................................... 95
11.1 Unit Aim ............................................................................................................................................. 95
11.2 Objectives ........................................................................................................................................... 95
11.4 Definition of a confession ................................................................................................................... 96
11.5 Admissibility of confessions in criminal trials.................................................................................... 96
11.6 The Trial within a Trial ....................................................................................................................... 97
11.7 Admissibility Test ............................................................................................................................... 97
11.7.1 Inducement ................................................................................................................................... 98
11.7.2 Admissibility and Discretion ....................................................................................................... 99
11.7.3 The Judges’ Rules ........................................................................................................................ 99
11.8 Implications of the Confession on Co- accused ................................................................................ 100
11.9 Evidence obtained in consequence of an unlawful act...................................................................... 100
11.10 Unit Summary ................................................................................................................................. 101
11.12 References and recommended readings .......................................................................................... 101
UNIT 12 .................................................................................................................................................... 103
DOCUMENTARY EVIDENCE............................................................................................................... 103
12.0 Introduction ....................................................................................................................................... 103
12.1 Unit Aim ........................................................................................................................................... 103
12.2 Objectives ......................................................................................................................................... 103
12.3 Definition of document ..................................................................................................................... 103
12.5 The person to adduce documentary evidence ................................................................................... 105
12.6 Proof of attestation and execution of private documents. ................................................................. 105
12.7 Presumptions relating to documents ................................................................................................. 106
12.8 Admissibility of extrinsic evidence................................................................................................... 106
12.10 Unit Summary ................................................................................................................................. 107
12.11 References and recommended readings .......................................................................................... 108
UNIT 13 .................................................................................................................................................... 109
PROOF OF FACTS WITHOUT EVIDENCE.......................................................................................... 109
13.0 Introduction ....................................................................................................................................... 109
13.1 Unit Aim ........................................................................................................................................... 109
13.2 Unit Objectives ................................................................................................................................. 109
13.4 Presumptions. .................................................................................................................................... 110

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 13.4 .1 Rebuttable Presumptions of Law .............................................................................................. 110
13.4.2 Irrebuttable Presumptions of Law .............................................................................................. 111
13.4.3 Presumptions of Fact.................................................................................................................. 111
13.4.4 Differences between Presumptions of Law and Presumptions of Fact ...................................... 111
13.5 Judicial notice ................................................................................................................................... 112
13.5.1 Facts judicially noticed without inquiry..................................................................................... 112
13.5.2 Facts judicially noticed after inquiry ......................................................................................... 112
13.5.3 Statutory provisions ................................................................................................................... 113
13.5.4 Personal knowledge ................................................................................................................... 113
13.6 Estoppel............................................................................................................................................. 113
13.6.1 Estoppel by record ..................................................................................................................... 114
13.6.2 Estoppel by Deed ....................................................................................................................... 115
13.6.3 Estoppel by conduct ................................................................................................................... 115
13.8 Unit Summary ................................................................................................................................... 116
13.9 References and recommended readings ............................................................................................ 116
MODULE SUMMARY ............................................................................................................................ 118

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ACKNOWLEDGEMENTS

The University of Zambia (UNZA), Institute of Distance Education (IDE) wishes to thank MS
FELICITY KAYUMBA KALUNGA for writing this module, LPU 3911: Law of Evidence.

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MODULE STRUCTURE

 Introduction
 The Aim of the Module
 Module Objectives [Learning outcomes]
 Assessment
 Prescribed and Recommended Readings
 Time frame
 Study skills [Learning tips]
 Need help [Studying at a distance]

The module is divided into thirteen (13) units. Each unit addresses some of the learning outcomes.
You will be asked to complete various tasks so that you can demonstrate your competence in
achieving the learning outcomes.

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INTRODUCTION

Welcome to the Module on the Law of Evidence (LPU 3911).

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

The information presented to court in order to support one’s claim is what is called evidence. The
law of Evidence equips you with theoretical founding knowledge that assists you to respond to the
following questions such as: what evidence is admissible in court? What rules govern admissibility
of evidence? What would amount to sufficient evidence?

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

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

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

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Aim

The aim of this module is to assist you to familiarise with the usual fundamental questions of
evidence and the admissibility of evidence in courts of law. It will also equip you with sufficient
knowledge to help you analyse the basic principles of burden and standards of proof in civil and
criminal proceedings.

Objectives
By the end of this course, you should be able to:
 Explain various legal rules of admissibility of evidence in the courts of law.
 Explain how relevant and admissible evidence is presented and assessed
by the courts in litigation.
 Apply principles of law of evidence in civil and criminal litigation.

 Identify relevant evidence and know which evidence can be admitted in court in
accordance with rules of evidence.

Assessment
The work in this module will be assessed in the following three ways:
 One test worth 25%
 A written assignment worth 15%.
 A written examination set by the University of Zambia at the end of the module (worth 60
per cent of the final mark). In summary, you will be assessed as follows-
Continuous Assessment: 40%

1 test 25%
1 written assignment 15%
Final Examination: 60%

Prescribed Readings

 R. Cross & C. Tapper 1985 Cross on Evidence, 6th Edition London: Butterworths & co.

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

Recommended Readings

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

Apart from this module, you are expected to read widely around all the topics covered in the
module. You may find the references provided at the end of each unit useful. You could also
explore other sources of information, particularly the Laws of Zambia and the law reports. In
addition, Laws and law reports from other jurisdictions, information from Journals and Internet
sources are invaluable sources of information.

Time frame

You are expected to spend at least 75 hours of study time on this module. In addition, there shall
be arranged contact with University lecturers from time to time during the course. You are
requested to spend your time judiciously so that you reap maximum benefit from the course.

Study Skills

Recognising that you may not have studied by distance education before, here are some simple
tips that you can follow which will assist you better your learning experience and help keep you
focused:

 Set goals such as: I will succeed in this course. At the beginning of the module, break the
lessons into manageable segments. You might not have time to do a full lesson in one night,
so plan how much you can do, then stick to it until you are done.

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 Establish a regular study/learning schedule.
 Determine what time is best for you to study.
 Have a dedicated study place with all the supplies you may need.
 Tell people what you are doing because only then will you be more likely to stick to a
course.
 Ask someone to proof read your work before you submit.
 Reward yourself for the work you accomplish to achieve along the way.
 If you do not understand something ask your local learning centre or your tutor, who will
be able to offer assistance.
 Search for the meaning of principles and concepts instead of just memorizing.
 Apply the principles you have learnt into practical exercises and activities given in the
module.

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Need help?

In case you have difficulties during the duration of the course, please get in touch with the Director
of Institute of Distance Education, or the resident lecturer in your province.
All enquiries in connection with the payment of fees should be directed to the Director of the
Institute of Distance Education:

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

IDE E-mail: [email protected]

http://www.unza.zm

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 UNIT 1

INTRODUCTION TO THE LAW OF EVIDENCE

1.0 Introduction
Welcome to Unit 1 of this module on the law of Evidence. In this unit, you learn the definition of
evidence and sources of law of evidence. You will gain an appreciation of the importance of
studying the law of evidence in your training as a lawyer. You will require at least 90 minutes to
study this unit.

1.1 Unit Aim

1. To clearly grasp fundamental aspects in the law of evidence.
2. To understand the sources of the law of evidence.
3. To have a clear perspective of the rules considered admissible.
4. To recognise the important concepts such as judicial discretion and the role that they play in
the law of evidence.

1.2 Objectives

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

1. Define evidence.

2. Appreciate the various sources of the law of evidence in Zambia.

3. Explain the value of the law of evidence.

4. Identify different types of evidence that can be presented before court.

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Reflection

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

I imagine that in your definition, you focused on oral presentations made by a witness in the courts
of law. This is a type of evidence known as testimony. I also imagine that you wrote down some
of the sources of law in general as you learnt in your module in legal process. We appreciate that
you could have had difficulty recognising how some of the sources of law you identified could be
applied to evidence.

In this unit, you will learn that the term evidence means much more than testimony. We will build
upon the definitions and discuss the various forms that evidence takes. We additionally hope you
will have a clearer understanding of the term 'evidence' and examples or the types of evidence at
the end of this unit.

1.4 Definition of Evidence

As we have earlier stated, in your critical reflection section, the word evidence does not have one
definition. It has been given several definitions. The following are some of the definitions given
by eminent writers:
 R. Cross and C. Tapper in their book, Outline of the Law of Evidence, define "evidence as
that which tends to prove facts in issue."
 I.H. Dennis, in his book The Law of Evidence defines Evidence as "information which
provides for belief that a particular fact or set of facts is true."
 Professor Phips defines it as that "which may be placed before the court in order that it may
decide issues of fact."

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Based on the above descriptions, evidence may therefore be defined as information (facts,
documents, objects) which are presented to court to inquire into the existence or not of facts in
issue for the determination of the court.

1.5 Why do we study the Law of Evidence?

The law of evidence is that body of law which regulates the means by which facts may be proved
in courts or tribunals that follow strict rules of evidence. It is procedural law, which deals with
procedure for enforcing rights and obligations of parties under the law, as compared to substantive
law, which defines rights and obligations of parties under the law.

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

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

1.6 Sources of Law of Evidence

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

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

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

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innocence (Art 18 (2) (a)), examination of witnesses (Art 18 (2) (e)), the rule against retrospective
application of laws and the rule against giving self-incriminating evidence, among other
provisions.

1.6.2 Acts of Parliament

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

1.6.3 Common Law

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

1.6.4 Judicial Precedents

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

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1.6.5 Text Books or writings of eminent writers
Commentaries from eminent writers are also an important source of the law of evidence as they
explain principles of law. They also provide the theoretical basis for advocating for law reform
and implementation.

1.7 Principal items of judicial evidence

Under this section, you learn what is meant by facts that ought to be proved in court to succeed in
your case. You will also understand what evidence suffices to be proof of a fact in court. The law
of evidence is concerned with a number of exclusionary rules on what may or may not be admitted
as evidence in court during a trial. It also looks at relevance and probative value of evidence. At
the end of this module, you will learn that not all issues require production of evidence and that
not all information can be admitted in court as evidence.

1.7.1 Facts open to proof or disproof

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

1.7.1.1 Facts in Issue

By facts in issue, we mean facts or information that a party to the proceedings needs to prove in
order to succeed in their case. The phrase refers to principal facts which are necessary by law to
establish the claim, liability or defence forming the subject matter of the proceedings. They are
also known as principal facts (factum probandum) which must be proved.

Examples of facts in issue include the following:

 facts that the prosecutor (in a criminal case) must prove to secure a conviction;
 facts that a plaintiff (the person who brings a claim to court in a civil matter) must prove
to get a judgment in their favour;
 facts which the defence (the accused person in a criminal case) must prove to successfully
escape criminal liability; and

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  facts which a defendant (a person against whom a claim is made in a civil case) must prove
to establish a successful defence.

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

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

Further, rules of pleading guide practitioners on what facts must be included in what claim. (This
is a subject of Practical Civil and Criminal Procedure taught at ZIALE for those of you who wish
to practice as Advocates on the Zambian Bar).

Here is a practical example of what facts are in issue in a case of personal damage as a result of
negligence in a road traffic accident:
The plaintiff must, in a statement of claim, state facts that show;
 That the accident happened;
 the date and time when it happened;
 sufficient description and identification of the motor vehicle involved with reasonable
certainty;
 that the accident was caused by the negligence of the defendant;

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  that the defendant owed the Plaintiff a duty of care and that the duty of care was breached
by the Defendant.

Unit Activity

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

1.7.1.3 Relevant Facts

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

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

1.7.1.4 Collateral Facts

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

23
  Facts affecting credibility of witnesses. Examples include, evidence of identification of an
observation in the dark, a witness who makes conflicting statements in examination in chief
and cross examination among others.
 Preliminary facts which must be proved as a condition precedent to the admissibility of
evidence tendered to prove a fact in issue or a relevant fact. For example, the law of
evidence requires that producing copy of a document should only be allowed after showing
proof that original has been destroyed or cannot be found after due search.

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

1.7.2 Rationale for distinguishing the three facts

The above distinction of facts in issue, relevant facts and collateral facts is fundamental when it
comes to exercise of judicial discretion. This approach is taken when an appellate court is asked
to overturn findings of fact by the trial court. The appellate court will usually not overturn a
judgment based on a wrong finding of facts or evidence. This is the category under which relevant
facts and collateral facts fall. It would however overturn a wrong finding of law or where the
finding or exercise of judicial discretion is not supported by the evaluation of evidence properly
shown on record. The rationale for the reluctance in overturning findings of facts is based on
collateral and relevant facts is that these matters arise as the case progresses and are regulated by
the law of evidence and not the substantive law. Because they arise as the matter progresses, the
trial court is better placed to exercise discretion as they would have had an opportunity to receive
evidence hear and observe witnesses which the appellate court has no opportunity to do.

24
The above proposition has been stated in a number of decided cases including:

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

1.8 Judicial Discretion

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

The role of the judge is to include otherwise inadmissible evidence or exclude otherwise
admissible evidence unless otherwise limited by statutory law. The inclusionary discretion is
virtually non-existent while the exclusionary discretion is exercised in civil matters in favour of
either party and in criminal matters in favour of the accused person. In civil matters, the court has
the power to exclude marginally relevant evidence, peripheral material as well limit cross
examination in terms of the type of questions asked and time taken.

In criminal matters, exclusionary discretion is based on the judge’s power and overriding duty to
ensure that the accused person receives justice. In the exercise of this discretion, a judge has
authority to exclude legally admissible evidence if in the judge’s opinion such evidence’s

25
prejudicial effect outweighs its probative value. This discretion also includes discretion to exclude
admissible evidence that is obtained from the accused illegally.

The exercise of judicial discretion is subjective and is decided on a case by case basis. The guiding
principle is to ensure fair trial. Another guideline on the exercise of discretion is that the discretion
is only exercisable in relation to the prosecution’s evidence and not that of an accused person.
Therefore, there is no discretion to exclude evidence of an accused person that tends to implicate
a co-accused.

In terms of appeals, an appellate court will normally not overturn an exercise of discretion by
reason only of the fact that it would have arrived at a different decision. The appellate court will
normally uphold the holding, provided that there is material, on the record, on which the trial court
properly exercised its discretion.

Unit Activity
i. What is judicial discretion and what is its rationale?
ii. What are the limits of judicial discretion?
ii. Cite a case that shows the above.
iii. What is the rationale of distinguishing facts in issue?

1.10. Unit Summary

Unit 1 has given you an introduction to the law of evidence. It first began with various definitions
of evidence from eminent writers. Thereafter, the reasons to study evidence were laid out for you
have an understanding of its importance as a branch of law. The sources of the law of Evidence
were then given. The facts to prove or disprove were espoused soon after, these included facts in
issue, relevant facts and collateral facts were also given in this unit. The rationale of distinguishing
these three facts was shown in this unit. Finally, the doctrine of judicial discretion was given.

1.11 References and suggested Readings

Case Law

26
Mbinga Nyambe v The People SCZ Judgment No. 5 of 2011
Wilson Masauso Zulu v Avondale Housing Project Limited (1982) Z.R. 172
(S.C.)
R v Sang [1980] AC 402.
Books
Tapper, Collin. Cross and Wilkins Outline of the Law of Evidence, 6th ed.
London: Butterworths, 1786. (Chapter 1)
Cross, Rupert and Collin Tapper. Cross on Evidence, 6th ed. London:
Butterworth & co Publishers Ltd, 1985 (chapter 1 pages 16 to 49)
Keane, Adrian. The Modern Law of Evidence, 6th ed. New York: Oxford
University Press, 2006. (Chapters 1 &2)

27
 UNIT 2

OBJECTS OF PROOF/CLASSIFICATION OF EVIDENCE

2.0 Introduction
Welcome to unit 2 of this module. In unit 1, you were introduced to the law of evidence. In this
Unit you will learn about the different objects of proof or types of evidence and some useful
classifications of evidence. This information is important in that helps you know what type of
foundation or conditions that you should fulfil before the court can successfully admit a particular
object into evidence. This unit will also help you understand and determine the weight that the
court attaches to particular evidence as well as avoid unwarranted objections to the evidence. You
will require at least 60 minutes to successfully complete this unit.

2.1 Unit Aims

The aims of this unit are to:
1. To introduce you to the various types and classes of evidence.
2. To introduce you to the basic principles on the relevance and admissibility of evidence.

2.2 Unit Objectives

By the end of this unit, you should be able to:
1. Identify objects of proof and classify it in various classes of evidence.

2. Explain various requirements for sufficiency of proof for each class of evidence.

3. Explain the fundamental principles of relevance and admissibility of evidence.

Reflection
Try to identify what objects or information can act as proof of facts in issue? Why do you think
it is important to classify evidence in different types and categories? Write down your answers
and compare them to the discourse below.

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

2.4.1 Testimony
This is a statement of a witness offered as truth of what is stated. It may be in oral or written form.
The general rule is that witnesses can only testify on things that they have personally observed
with their senses. There are a number of rules and regulations that have been devised to guard
against witnesses giving unreliable evidence or evidence of things they have not personally
experienced. Some of those rules include the requirement to take oaths or affirmations, assessing
the competence of witnesses, cross examination and the law on criminal conviction for perjury.

2.4.2 Documents
Documents contain information that is relevant to prove facts in issue. Documents can be offered
as real evidence of things contained in them (for example. terms of a written contract), or as to
explain something that is contained in a document. Section 2 of the Evidence Act, Cap 43 of the
Laws of Zambia, defines documents as to include maps, etc. on which information is stored. This
definition covers both hard forms and electronic information. Different rules are required to lay
foundations for the admission of different types of documentary evidence.

2.4.3 Real evidence

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

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

Examples of circumstantial evidence include:

1. The Continuance of a state of affairs
This is evidence that tends to show that a state of affairs existing at a time before or after
the occurrence of a fact in issue could be admitted to establish that, the same state of affairs
had continued at the time inquired into. For example, evidence of the speed at which a
person is driving a few moments earlier than the moment enquired into can be admitted as
circumstantial evidence. The relevance that the court would attach to the evidence will vary
from case to case.
2. Motive, intention and plan
Facts which supply motive are considered to be admitted as circumstantial evidence. For
example, a plan to kill someone for one’s own benefit, buying of poison, forging a will,
etc. could be used as indirect evidence of an accused person’s mental element for
committing a crime.
3. Knowledge or capacity
Knowledge and capacity can be considered as one’s expertise or awareness on a subject.
For instance, a person’s knowledge of cutting up bodies may be admissible in a murder
case to prove that the persons used those skills in the case under trial.

4. Opportunity
This can be considered as a possibility created due to a favourable combination of
circumstances. For example, the presence of the accused at the place and time of the crime
makes it probable that the accused person could have committed the crime. This evidence

30
 is received on the premise that evidence of circumstances existing contemporaneously
(during the same period of time) with a transaction in which the court is inquiring into
renders the facts in issue more probable.
5. Identity
Facts which help establish the identity of a person are admitted as circumstantial evidence
of the fact that the person is in fact the one who did something. For example, fingerprints
and DNA samples can prove that the accused was present at the scene of the crime.
6. Odd coincidences.
For example, if a person begins running upon seeing the police near a scene of a crime, the
running could supply circumstantial evidence of the person’s guilt.

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

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

In the above case, the appellant was convicted of the murder of a woman in the course of a sexual
assault. The injuries found on the body of the deceased suggested that she had struggled with her
assailant. The evidence established that the appellant and the deceased had been drinking beer
together at a bar and were seen leaving the bar together at about midnight. Between 06:00 and
07:00 hours the next day, the deceased's partially undressed body was found. The appellant was
traced and when arrested, he had scratches on his neck and chest. The appellant explained in
evidence that the scratches were caused by flying pieces of iron at his place of work, an explanation
which was not rebutted by the prosecution. The trial court without any evidence to support the
finding said that the appellant had protective clothing at work and therefore, 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.

On appeal to the Supreme Court, it was held that:

31
 1. A weakness peculiar to circumstantial evidence is that by its very nature, it is not direct
proof of a matter at issue but rather, it 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.
2. It is incumbent on a trial judge to 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 a degree of cogency which can permit only an inference of
guilt.
3. The appellant's explanation was a logical one and was not rebutted. It was therefore an
unwarranted inference that the scratches on the appellant's body were caused in the course
of committing the offence at issue.
Based on the above principles, the court found that the circumstantial evidence received at the trial
did not succeed in taking the case out of the realm of conjecture. The court was of the opinion
that the danger of drawing an erroneous inference had not been dispelled by the trial court. On that
basis, the court upheld the appeal and acquitted the appellant.

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

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

Unit Activity
Answer the following questions:
i. List the various classes or types of evidence that you have learnt from this unit
ii. In your opinion, can a testimony from ‘A’ who overheard ‘B’ talk about an incident that
occurred that is now up for trial be admissible in court?
iii. Would your answer in (2) above be the same if it was ‘B’ who gave a testimony during trial?
iv. What is circumstantial evidence?
v. Explain the rules that govern the admissibility of circumstantial evidence?
vi. State the brief facts, holding and principle of the case of Khupe Kafunda v The People?

32
2.6 Unit Summary

In this unit, you have learnt the different types of evidence or objects of proof that can be submitted
to court. You have also learnt, briefly, the different legal requirements that should be fulfilled for
each type of evidence to be admitted. This is dependent on what you seek to prove with that
evidence. We spent some time discussing circumstantial evidence which has special rules of
admission, namely that the court should only convict on it (in a criminal offence) when the
evidence is so overwhelming as to eliminate the danger of drawing a false inference from it. In the
next Unit, we look at the concepts of relevance and admissibility which was briefly introduced
when we looked at circumstantial evidence.

2. 7 References and Recommended Readings

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

33
 UNIT 3

RELEVANCE, ADMISSIBILITY AND WEIGHT OF EVIDENCE

3.0 Introduction
Welcome to unit 3 of this module. The previous unit addressed the objects of proof and the
classification of evidence. In this unit, you will be introduced to the fundamental concepts of
relevance, admissibility and weight of evidence to build upon what you have learnt so far. You
will require at least 60 minutes to successfully complete this unit.

3.1 Unit Aims

The aims of this unit are:
1. To introduce you to fundamental concepts of relevance, admissibility and the weight of
evidence.
2. Using the concepts of relevance, admissibility and weight, identify the best evidence a
lawyers should present to a court.

3.2 Unit Objectives

By the end of this unit, you should be able to:
1. Explain what is meant by relevant and admissible evidence.
2. Identify the guidelines that the court uses in evaluating evidence once it has been admitted by
court.
3. Identify the best possible evidence that should be produced to a court in order to ensure that
litigation is conducted in the most effective and least expensive way.

Reflection

What do you understand by best evidence? In what circumstances would a trial court exclude
evidence from court?

34
3.4 Relevance
Relevance in the law of evidence relates to logical relevancy of evidence to the fact in issue or
connection between the two facts of which, in the ordinary course of events, the existence of the
former makes the latter probable. The rules of evidence 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 are considered logically irrelevant.

The main guide in determining the relevance of evidence is remoteness. Remoteness refers to how
closely or distantly connected the evidence sought to be admitted is to the fact requiring proof. The
court must draw a balance between the probative value of the evidence and the external pressures
vitiating its use. These include the time taken to resolve collateral issues, the danger of
manufacturing evidence and public policy. The probative value of evidence is a determination of
how probable it is that ‘A’ did something that is alleged, by looking at the evidence adduced. For
instance, to prove that ‘A’ stole ‘B’s car, how probable is it to infer that ‘A’ stole the car, by
examining a document purportedly signed by ‘B’ showing that ‘A’ had in fact hired the particular
vehicle from ‘B’ on the day it is alleged to have been stolen?

3.5 Admissibility
Admissibility relates to the legal relevance of evidence. While relevance depends on logic and
human experience, admissibility is founded on law, policy and precedent. Evidence which is
relevant may be excluded from admission by rules of law that aim at protecting the fundamental
rights of the parties to litigation. For example, the law excludes self-incriminating statements from
admission unless those statements are made freely and voluntarily.

Based on rules of the rules of admissibility, not all relevant evidence would be admitted in a court.
Exclusionary rules of evidence exclude certain types and categories of evidence from admission,
on grounds of precedent and public policy. In the following units, you will look at some of the
exclusionary rules of evidence in much more detail. Some examples include the rule against
hearsay, special rules on admissibility of evidence of character and evidence of opinion among
other things.

35
3. 6 Weight of Evidence
Unlike admissibility, weight, credibility and sufficiency of evidence depend on common sense,
logic and human experience. The weight of evidence may affect its admissibility. There are various
guides that are provided to assist the court in assessing the weight of evidence. The guides include
burden and standard of proof, presumptions and corroboration. We will look at these guides in
more detail in the following chapters.

Unit Activity
Answer the following questions:
John, a local politician sues Alan for slander concerning words spoken at a political rally. Allan is
alleged to have made a statement that ‘I hear Allan intends to contest for the 2011 local government
elections, has the council run out credible people that we should be getting candidates from
Chainama Hills Hospital?’ Peter, a witness who attended the rally and heard the words complained
of, is called to testify.
i) What testimony would the witness give that would be relevant?
ii) Is the witness testimony that ‘I heard John slander or defame Alan admissible’ admissible?

3.7 Unit Summary

In this unit, you have been introduced to the fundamental concepts of relevance, admissibility and
weight of evidence. You have learnt that relevance relates to logical relevancy of the evidence to
the facts in issue. You also learnt that the test for relevance is remoteness, that is, how closely
related the evidence sought to be adduced is to the fact being inquired on. You also learnt that
admissibility relates to the legal relevance of the evidence founded on law, policy and precedent.
Admissibility is determined by rules of evidence. We also established that the law of evidence is
also concerned with the weight that a court would attached to evidence once it has been received
in court. The courts depend on depend on common sense, logic and human experience in
determining the weight that it would attach to evidence.

3.8 References and Recommended Readings

Case Law
Buckingham v Daily News Ltd [1956]2 All ER 904

36
David Zulu v The People (1977) Z.R. 151 (S.C.)
Joy v Philips, Mills & Co Ltd [1916] 1 KB 849
Khupe Kafunda v The People (SCZ JUDGMENT NO. 5 of 2005)
Mbinga Nyambe v The People SCZ Judgment No. 5 of 2011

Books
Tapper, Collin. Cross and Wilkins Outline of the Law of Evidence, 6th ed.

London: Butterworths, 1786. (Chapter 8)

Cross, Rupert and Collin Tapper. Cross on Evidence, 6th ed. London:

Butterworth & co Publishers Ltd, 1985 (chapter 1 pages 16 to 60)

Keane, Adrian. The Modern Law of Evidence, 6th ed. New York: Oxford

University Press, 2006. (Chapters 2)

37
 Unit 4

BURDEN OF PROOF AND STANDARD OF PROOF

4.0 Introduction
Welcome to Unit 4 of this module. The previous unit dealt with the fundamental concepts of
relevance, admissibility and weight of evidence. In this unit, you will be introduced to the
fundamental evidential principles of burden of proof and standard of proof. You also understand
the differences in obligations to prove a case between civil proceedings and criminal proceedings.

You will require at least 90 minutes studying this unit.

4.1 Unit Aims

The aims of this unit include:
i. To introduce you to evidential principles of the burden of proof and standard of
proof which are fundamental to understanding the law of evidence.
ii. Enable you appreciate the different standards and obligations used to prove facts
in civil and criminal proceedings.
iii. To analyse the courts’ interpretation and stance of the burden and standards of
proof.

4.2 Unit Objectives

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

38
 2. Explain how burden and standard of proof determine the sufficiency of evidence that you
should produce to prove a fact requiring proof in any given case.

Reflection
Imagine that you bring a claim against your neighbour for nuisance. What extent do you have
to show the court to prove that your neighbour is actually liable? What sort of evidence must
you bring and how much? What principle of law of evidence would guide you in responding to
the above questions? Write down your answers.

You may have listed one of more of the types of evidence we considered in Unit 2 of the Module.
In terms of how much evidence and would bring the evidence to court, the principles on burden
and standard of proof are directive. let us examine these principles in further detail below.

4. 4 Burden of proof
The phrase “burden of proof” refers to the obligation on a party to court proceedings to satisfy the
court to a specified standard that certain facts are true. The relevant facts for this particular purpose
are facts in issue. As a general rule, the burden of proving facts in issue lies on a party who asserts
in the affirmative. This is based on the common sense assumption that it is easier to prove
something in the affirmative than the negative. For example, in a tort of negligence in which the
defendant claims contributory negligence, the obligation to prove negligence lies with the plaintiff
while the defendant has the burden of proving contributory negligence if alleged.

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

1. It can determine the eventual outcome of the proceedings. This would be a
determination of whether the party has successfully discharged the burden of proof to
the required standard to warrant a judgment in the party’s favour after analysis of all
evidence produced in court.

2. It helps determine which party has the right to begin adducing evidence in court. As a
general rule, the person on whom the burden lies to convince the court of a fact in issue

39
 has the right to call their evidence first. In civil cases, it would have to be the plaintiff
and in criminal cases, the prosecution.
3. Another important occasion in which the principle comes to play is in determining the
circumstances under which a defendant, in a criminal matter, may make a successful
submission of no case to answer at the close of the prosecution’s case.
4. This principle is also important when it comes to summing up of the case for purposes
judgment. The court will have to evaluate the evidence to determine whether or not it
is sufficient to prove facts in issue. Only when the prosecution establishes a prima facie
case would the court put the accused on his/her defence.
The question whether or not a party has discharged the burden of proof is only considered at the
close of the case after the parties have given their evidence. The phrase burden of proof has come
to be understood in two distinct ways, namely, legal burden and evidential burden. Let us consider
each of them below:

4.4 .1 Legal burden

This is the obligation imposed on a party by a rule of law to prove a fact in issue. In civil matters,
this burden of proof is discharged by pleading in a statement of claim or defence. The burden of
proof in this sense rests on the party, whether plaintiff or defendant who substantially asserts in
the affirmative of the issue. It is fixed by either substantive law or pleading at the beginning of the
trial by the state of pleadings and it remains unchanged throughout the trial.

4.4 .2 Evidential burden

This is the burden that a party has to discharge by adducing evidence to prove a fact requiring
proof. In other words, it is the obligation to show that there is sufficient evidence to find the
existence or non-existence of a fact in issue in accordance with the required standard. Some writers
have argued that this should not strictly be referred to as a burden of proof as it can be discharged
by production of evidence that falls short of proof. This burden is discharged when there is
sufficient evidence to justify a favourable finding. The onus in this case rests on the party who
would lose if no evidence at all or no further evidence is called on the other side. See the case of
Mohamed v Attorney General (1982) Z.R. 49 (SC)

40
4.5 Incidence of burden of proof
Under this section, you will learn that the party who bears the burden of proof substantially differs
in civil and criminal proceedings.

4.5 .1 Criminal cases

In criminal cases, the burden of proof rests entirely with the prosecution. The prosecution has the
legal and evidential burden to prove all elements of the crime regardless of the accused person’s
defence. This principle was explicitly stated in the case of Woolmington v DPP [1935] AC 462.
In this case, the accused was charged with the murder of his wife. He claimed that he had shot his
wife by accident. The trial judge directed the jury that once it had been established that the accused
had shot his wife, the accused bore the burden of disproving malice aforethought. The House of
Lords held that this to be misdirection. Lord Viscount Sankey LC, formulated the classic principle
that ‘throughout the web of English criminal law, one golden thread is always to be seen, that it is
the duty of the prosecution to prove the prisoner’s guilt. In his own words, Lord Visount Sankey
stated the following:

Subject to what I have already said as to the defence of insanity and subject also to any
statutory exception. If, at the end of and on the whole of the case, there is a reasonable
doubt, created by the evidence given by either the prosecution or the prisoner, as to whether
the prisoner killed the deceased with a malicious intention, the prosecution has not made
out the case and the prisoner is entitled to an acquittal. No matter what the charge or where
the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the
common law of England and no attempt to whittle it down can be entertained. When
dealing with a murder case the Crown must prove (a) death as the result of a voluntary act
of the accused and (b) malice of the accused.

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

41
In Mwewa Murono v The People, SCZ Judgment NO. 23 of 2004, the Appellant was convicted
of murder contrary to Section 200 of the Penal Code, Cap 87 of the Laws of Zambia and was
sentenced to suffer death. It was alleged that on 19th July 2003 at Mansa he did murder one Francis
Mwewa. He appealed against both conviction and sentence. The Supreme Court held that:

1. In criminal cases, the rule is that the legal burden of proving every element of the offence
charged, and consequently the guilt of the accused, lies from beginning to end, on the
prosecution.
2. The standard of proof must be beyond all reasonable doubt.
3. A submission of no case to answer may properly be and upheld: -
(a) When there has been no evidence to prove the essential element of the alleged offence.
(b) When evidence adduced by the prosecution has been so discredited that no reasonable
tribunal could safely convict on it.
4. The accused bears the burden of adducing evidence in support of any defence after he
has been found with a case to answer.

Another case in which the principle was discussed is Kazembe and Zebron v The People (1969)
Z.R. 22. In this case, the court stated, in reference to the statutory defence of "automatism," that
there would be no burden on an accused person to establish that he was acting under the influence
of automatism. The burden would be on the prosecution to negative it and to prove beyond
reasonable doubt that the accused was acting in the exercise of his will and not under the influence
of automatism.

The prosecution also bears the evidential burden to satisfy the court that the accused person should
be put on their defence at the close of the prosecution’s case. The evidential burden is satisfied by
establishing a prima facie case against the accused. If no evidence is called by the accused, the
judge should be satisfied that the prosecution has proved its case beyond reasonable doubt. This is
at the stage of submissions on a case to answer.

4.5 .2 Civil cases

In civil cases, the burden of proof lies with the party who alleges in the affirmative. The burden is
satisfied when that party has established a prima facie case against the other. Where the plaintiff

42
establishes a prima facie case against the defendant, the burden shifts to the defendant to establish
its defence.

4. 6 Standard of Proof
Standard of proof can be defined as the extent to which a party discharges the burden of proof.
Again, there are differences in the extent of proof required in a civil and criminal matter.

4. 6 .1 Criminal cases
In criminal cases, the standard set by law is “proof beyond reasonable doubt”. In. Woolmington
v DPP [1935] AC 462, it was held that proof beyond reasonable doubt does not mean proof beyond
a shadow of doubt. The relevant test is whether or not the court can convict the accused based on
the evidence produced on the record even if no evidence is called by the defence. The standard is
satisfied when the prosecution by its evidence has proved all elements of the offence and that
evidence has not been discredited by cross examination or that no reasonable doubt is created in
the mind of the judge after hearing evidence of the accused in defence. In criminal offences, the
defence has no obligation to prove their innocence. All that the defendant’s counsel needs to do is
to create reasonable doubt in the evidence produced by the prosecution.

4.6 .2 Civil cases

In civil cases, the standard is on “balance of probabilities” or “preponderance of proof”. In Bater
v Bater [1950] 2 All E.R. 458, Denning, L.J., used the following words regarding the standard of
proof in both civil and criminal cases, which have been expressly approved in subsequent cases.
He said at page 459:

It is true that by our law there is a higher standard of proof in criminal cases than in civil
cases, but this is subject to the qualification that there is no absolute standard in either case.
In criminal cases the charge must be proved beyond reasonable doubt, but there may be
degrees of proof within that standard. Many great judges have said that, in proportion as
the crime is enormous, so ought the proof to be clear.

The degree varies from case to case. For example, a higher standard is expected in allegations of
fraud. Allegations of fraud even in a civil case must be proved on a higher standard than balance

43
of probabilities because they are of criminal nature- Sablehand Zambia Limited v ZRA (SCZ
JUDGMENT NO. 20 of 2005)

4.7 Factors affecting burden and standard of proof

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

4.7 .1 Statutes
Statutes affect the burden of proof by shifting the burden to a party who would not, under the
common law general rules, bear the burden of proof. Some examples include, statutes creating
offences of strict liability and statutes which give defences of facts within the peculiar knowledge
of a party such as provocation and self-defence. See section 12(3) of the Penal Code, Cap 87 of
the Laws of Zambia.

4.7 .2 Presumptions
Presumptions of law in favour of a party give the burden on the party against whom they operate
to rebut it. For example, in a claim for land which is on title, there is a presumption that issuance
of a title deed is prima facie evidence of ownership. The burden is therefore on a party who wishes
to rebut the presumption to bring evidence to show that the title deed may have been wrongly
acquired by proving fraud. A good example of the operation of presumptions in a criminal offence
is the presumption of innocence which casts burden of proof on the prosecution to prove an accused
person’s guilt beyond reasonable doubt.

Unit Activity
In your own words, explain what the standard of proof required to prove a case in both
civil and criminal cases.

4.8 Unit Summary

In this unit, you have been introduced to the fundamental concepts of the burden and standard of
proof. You began by learning about the practical importance of the concept of the burden of proof.
We also spent some time discussing the burden of proof in both criminal and civil cases. In the
criminal cases, the burden of proof rests entirely with the prosecution. In Civil cases, the burden

44
of proof lies on the party who alleges the affirmative. Thereafter, we defined standard of proof as
the extent to which as party discharges the burden of proof. In criminal matters the standard of
proof is beyond reasonable doubt. In civil cases the standard of proof is on the balance of
probabilities. This unit also outlined the factors affecting the burden of proof.

4.9 References and Recommended Readings

Case Law

Bater v Bater [1950] 2 All E.R. 458

C v C AND H (1977) Z.R. 12 (H.C.)
Castings Ltd v Wardlaw [1956]AC 613
Kazembe and Zebron v The People

Mwewa Murono v The People, SCZ JUDGMENT NO. 23 of 2004

R v Putland & Sonrell [1946] 1 All ER 85

Robins v National Trust Co. [1927] AC 515.

Sablehand Zambia Limited v ZRA (SCZ JUDGMENT NO. 20 of 2005)
Woolmington v DPP [1935] AC 462
Books
Tapper, Collin. Cross and Wilkins Outline of the Law of Evidence, 6th ed.

London: Butterworths, 1786. (Chapter 8)

Cross, Rupert and Collin Tapper. Cross on Evidence, 6th ed. London:

Butterworth & co Publishers Ltd, 1985 (chapter 3 and 4)

Keane, Adrian. The Modern Law of Evidence, 6th ed. New York: Oxford

University Press, 2006. (Chapters 4)

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 UNIT 5

WITNESSES

5.0 Introduction
Welcome to Unit 5 of this module. In the previous unit, you learnt about the burden and standard
of proof. In this unit, you learn about witnesses as a source of evidence known as a testimony.
Witnesses are the major media by which evidence is brought to court. A testimony is an assertion
of a witness in court offered as evidence of the truth of that which is asserted. A discussion on
witnesses helps you understand the weight that the court will attach to evidence adduced by
witnesses as well as identify and prioritise the witnesses that you want to present to court and in
what order. Some of the important considerations you will learn in this unit include: competence
and compellability of witnesses, the nature and importance of oaths and affirmations, credibility
and reliability of witnesses as well as the instances when the court must decide whether or not
corroboration of evidence will be necessary by law or practice. You will require at least 180
minutes to successfully complete this unit.

5.1 Unit Aims

The aims of this unit are to:
i. Discuss the competence of a witness.
ii. Discuss compellability of witnesses and its exceptions.

5.2 Unit Objectives

By the end of this unit, you should be able to:
1. Explain competence and compellability of witnesses.
2. Explain the special classes of witnesses’ testimonies which require some condition
precedent before admission of their testimony or which witnesses’ testimony must be taken
with caution.

3. Explain authentication of testimonies and explain the importance and the value of oaths
and affirmations.

4. Explain the process of examining of witnesses in court.

46
 5. Explain the legal principles of corroboration and care warnings.

Unit Activity
i. What do you understand by the term witness?
ii. Who can be a witness?
iii. Describe the processes through which witnesses go through when giving evidence
in court.

5.4 Choice and order of calling witnesses

There is a general rule that respects the autonomy of parties in an adversarial system. The party
before the court has the autonomy to call whichever witnesses the party decides and in whatever
order the party pleases. However, this rule only holds true for civil cases. In criminal cases, on the
other hand, the prosecutor’s autonomy to call whichever witnesses the prosecutor wishes may be
limited by the court. The prosecutors’ duty is to do justice to the case. Therefore, in executing that
duty, the prosecutor may be compelled to make available any evidence which they come across
that could support the accused person's innocence. The court can also demand which witnesses
can be called.

In the case of Fraser v The People (1968) ZR 93 (H.C), the court held, inter alia, that:
In trial the prosecution has discretion in whether to call certain witnesses, but that discretion
must be exercised in a manner calculated to further the interests of justice and to be fair to
the defence. If the prosecution exercises its discretion in calling witnesses improperly, the
court may itself call the witnesses.

The court in that case upheld the holding of Lord Denning M.R. in the case of Dallison v Caffery
[1964] 2 All ER 610, where he stated, at page 618 that:
The duty of a prosecuting counsel or solicitor, as I have always understood it, is this: if he
knows of a credible witness who can speak to material facts which [tend to] show the
prisoner to be innocent, he must either call that witness himself or make his statement
available to the defence…It would be highly reprehensible to conceal from the court the
evidence which such a witness can give. If the prosecuting counsel or solicitor knows, not
of a credible witness, but a witness whom he does not accept as credible, he should tell the
defence about him so that they can call him if they wish.

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Further, the Supreme Court of Zambia in Abel Banda v The People (1986) ZR 105 restated the
autonomy of the prosecutor in the following words:
A prosecutor is under no duty to place before the court all the evidence known by him,
however, where he knows of a credible witness whose evidence supports the accused’s
innocence, he should inform the defence about it.

5.5 Competence, Compellability and privilege of witnesses

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

5.5 .1 Competence
Competence relates to qualification of a witness to give evidence. Generally, all persons are
competent to testify either for or against a party to proceedings. The law, however, places certain
restrictions on some categories of witnesses based on interest, prejudice and capacity. At common
law, objections on competence of a witness are usually taken by the judge at the time the witness
is being sworn. In modern practice, however, objections may be taken before a witness is sworn
or they can be taken during cross examination. If a witness’ incompetence appears objectionable,
his/her evidence may be excluded from the record.

5.5 .1.1 Competence by reason of capacity

a) Defective intellect
A witness who is described as being of unsound mind or under the influence of alcohol is
considered not competent enough to testify in a court of law. This is under the consideration that
the defect of mind or drunkenness prevents the witness from understanding the nature of an oath
and giving rational evidence. Although a person has a disease of the mind, he or she can be a

48
competent witness if the court is satisfied that the disease of the mind does not affect the witness’
ability to tell the truth. The relevant time for consideration is the time of giving testimony. For
example, a drunkard when sober is competent to testify before a court. The question is generally
one of degree and weight. Further, depending on the nature of disability, an application may be
made to court so that the testimony of such witness can be postponed until such a time when the
incapacity has been removed.

b) Infancy
Evidence of children is taken with caution because of the special nature of their intellectual
capacity. The degree of knowledge and intelligence will vary from child to child. The competency
of children depends on their ability to understand the nature of an oath and the consequences of
falsehood. The child must be questioned to establish that the child understands the obligation
imposed by an oath to tell the truth above the ordinary requirement. The child should also possess
intelligence to understand that lying on oath attracts criminal liability. It is important for a party
who wishes to call a child witness to lay sufficient ground for admission of the child’s evidence or
to satisfy the court of the child’s 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 in a viore dire 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, as amended by the Juveniles
(Amendment) Act No.3 of 2011, provides for a viore dire in assessing the competence of a child
of tender years, that is, a child below the age of 14.
The Act provides that where a child below the age of 14 is proposed as a witness, the court shall
take the evidence on oath if, in the opinion of the court, the child possesses sufficient intelligence
to understand the nature of oath and the duty of speaking the truth. If the court is not satisfied of
the two conditions set out above, the court should not receive the testimony of such child. Further,
if such evidence is tendered by the prosecution, the court must not convict on such evidence unless,
it has been corroborated by other material evidence implicating the accused.

You should take note, as you read Zambian cases older than 2011 that the common law position
before the amendment to the Juveniles Act, did not prescribe the age of a child of tender years.
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Further, the Common Law permitted the admission of an unsworn testimony of a child. This
position has since been amended by statue. R v Campbell [1956] All ER 272

5.5 .1.2 Witnesses with an interest in the outcome of the case

a) The Accused in criminal proceedings
The accused person is an incompetent witness for the prosecution, whether prosecuted alone or
jointly with other accused persons. An accused person is a competent witness for the defence. This
is stated in Section 157 of the Criminal Procedure Code, Cap 88 of the Laws of Zambia.
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.

In the case of The People v Mushaikwa (1973) Z.R. 161, it was held that:
1. 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.
2. Generally, all competent witnesses are compellable; but 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.

3. Failure by the court to give such a warning renders the evidence given by the spouse totally
inadmissible.

By Section 157 of the Criminal Procedure Code, the accused person’s spouse is a competent
witness for the defence on application by the accused. The section also emphasizes that a spouse
is not a compellable witness with regards to matrimonial communications. Another statutory
provision that has changed the common law provision on the competence of a spouse is the
Juveniles Act, Chapter 53 of the Laws of Zambia, which makes a spouse a competent witness with
regards to certain scheduled offences against children.

The rules restricting competence of a spouse also apply to a spouse of a person jointly charged
with the accused person. This position of law was affirmed in Crispin Soondo v The People

50
(1981) Z.R. 302, where it was held, inter alia, that where 2 or more persons are indicted jointly,
the wife or husband of any such defendant is not a competent witness against any co-defendant.

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

To render the co-defendant or their spouses competent for the prosecution, the co-defendant or
accomplice must be acquitted or have a nolle prosecui entered in their favour, or, they should have
pleaded guilty or 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 them being influenced by the fear
of probable sentence. Certain rights may be waived where a party enters into a plea agreement
(Refer to Plea Negotiations and Agreements Act No. 20 of 2010), which is a clause containing
a statement that the accused person was informed of, and has waived, the following rights as
follows:
1. The right not to be compelled to give self-incriminating evidence;
2. the right to confront and cross-examine any witnesses against the accused person; and
3. The right to pursue pre-trial motions and appeal preliminary points.

5.5 .2 Compellability
Compellability refers to the power of the court to compel a witness to testify in court and attach a
sanction where such a witness refuses to testify. All witnesses competent to give evidence are
generally compellable to do so. There are however, exceptions on grounds on privilege and public
policy. The court may compel a witness to give evidence by subpoena or witness summons. A
‘subpoena duces tecum’ compels a witness to attend court to produce documents while a
‘subpoena testificandum’ compels a witness to attend court to give testimony. For more

51
information on the operation of these subpoenas, with regards to civil cases read provisions of
Part VII of the High Court Act, Cap 27 of the Laws of Zambia and Part VIII of Subordinate
Court Act, Cap 28 of the Laws of Zambia. For Criminal offences refer to, sections 143 – 148 of
Criminal Procedure Code, Cap 88 of the Laws of Zambia.

Where a witness does not comply with a witness summons or subpoena, the court may issue a
warrant for the arrest of such a witness. This is upon proof of due service of the subpoena. The
court can also issue a warrant of arrest without issuance of a subpoena where the court is satisfied
that the person will not attend as witness unless he/she is compelled to do so.
There are also penal sanctions of a fine up to 600 penalty units or default imprisonment of 15 days
for failure to attend court as a witness without a reasonable excuse as provided by section 148 of
the Criminal Procedure Code of the Laws of Zambia. Even after being compelled to attend
court, the law empowers courts to compel witnesses to take oath and testify. Where a person
refuses to take oath and testify when summoned by court, he/she shall be guilty of the contempt
of court. Read Section 28 of the High Court Act, Cap 27 of Laws of Zambia. Also section 150
Criminal Procedure Code, Cap 88 of the Laws of Zambia, provides for this.

5.6 Privilege
There are certain classes of witnesses who cannot be compelled to give evidence on the grounds
of privilege. The privilege extends to a compellable witness who can lawfully refuse to answer
certain questions on grounds of privilege. Privilege may also relate to the witness himself/herself
or the evidence proposed to be given. A witness is privileged when the witness cannot be
compelled to answer questions or present certain documents. Let us discuss further these special
categories of witnesses and information to which privilege applies.

5.6 .1 Sovereign Immunity

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

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5.6 .2 Public Policy
Relevant evidence must be excluded on the ground of public policy when it concerns certain
matters of public interest considered more important than the full disclosure of the evidence in
court. The interests will vary from case to case and from time to time. The considerations for
excluding evidence are similar to the rules governing privilege, the main differences being:
1. Where a person successfully claims privilege, he/she is entitled to refuse to answer
questions or disclose a document. There is no question of weighing the claim of privilege
against the value of the evidence at trial.

2. The heads of privilege are upheld for the benefit of clearly identified people. If these people
choose to waive the privilege or fail to claim it, no one else can claim it.

3. A successful claim of privilege successfully prevents certain people from being compelled
to give evidence of particular matters, but there will be no objection to those matters being
proved by other evidence, if available. On the other hand, if a claim to public interest
immunity succeeds, it will not be possible to prove the excluded facts by any other means.

4. Privilege may be waived while public interest or policy is an absolute rule as the public
policy consideration is owed to the state with an overriding consideration.

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

2. 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.

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

The scope of the rule is unlimited. Many areas evolve as law and policy develop. Some of the most
classic ones involve documents by the State, discussions or proceedings in parliament, police
sources, among other categories. Other examples are included in section 25(1) of the State
Proceedings Act, Cap 70 of the Laws of Zambia, which provides for the protection of state
documents on grounds of public policy during the discovery and inspection of the documents to
be adduced as evidence in court; section 25(3) of the State Proceedings Act which provides that
the minister may order that a document be withheld from production on grounds of privilege; and
section 8 of the National Assembly (Powers and Privileges) Act, Cap 12 of the Laws of Zambia,
which states that Parliament deliberations may not be produced without leave of the House.

The governing principle is that of 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. This was stated in the case of
Asiatic Petroleum Co. Ltd v Anglo-Persian Oil Co. Ltd [1916] 1 KB 822, Swinfen-Eady L.J. S

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

54
Other public interest considerations may be based on the character of the source of information.
However, the claim for public interest must be weighed against the public interest in the
administration of justice, such that information should not be excluded if it tends to establish the
innocence of an accused person.

5.6 .3 Bankers
Bankers are generally not compellable witnesses with regards to account information where the
bank is not a party to proceedings. The law, however, provides an exception where bankers can be
compelled to disclose account information following a court order. (Refer to the Evidence
(Bankers Books) Act, Cap 44 of the laws of Zambia. Sections 6 and 7).

5.6 .4 Legal Professional privilege

A lawyer cannot be compelled or allowed, without express consent of their client, to disclose oral
or documentary communications passing between the lawyer and a client made in professional
confidence. The rule is for the protection of the client and is intended to facilitate free
communication between the advocate and the client. The privilege may be waived by the client
and not the advocate. No formal retainer needs to exist for so long as the client has consulted a
professional lawyer. This privilege is of an infinite period and the protection is not lost after
litigation.

This is based on the common law doctrine which enables a client to maintain the confidentiality
of:
1. Communications between lawyer and client - Protected material includes legal advice to client,
that is in oral or written form.

2. The communication must have been made in the course of lawyer-client relationship or with the
view of establishing one.

3. Communications between the lawyer, and the client or potential witnesses, drafts of documents,
or anything else used in preparation for litigation.

55
4. Items enclosed or referred to in such communications - A lawyer cannot be compelled or
allowed without express consent of their client to disclose oral or documentary communications
passing between them in professional confidence.

The protection does not, however, extend to:

1. Facts observed by a lawyer even if done in the course of the relationship. For example, the
handwriting of the client, the condition in which client was, or even the identity of a convicted
client in another matter;

2. Pre-existing documents that were not prepared for purpose of litigation, even if a client had
sought advice on them; and

3. Advise intended to commit a crime;

The obligation is a continuing one even after termination of the retainer. Privilege also extends to
staff in a law firm such as secretaries and orderlies, although such privilege will not apply to a
person who overhears a conversation or obtains a copy of a document. Such person may be
compelled to produce the document or testify. A client is entitled to waive this privilege. After
waiving it, one cannot reclaim the privilege back.

5.6 .5 Without prejudice communication

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

The rationale is to encourage out of court settlements at which parties should be allowed to make
concessions, at times without admitting liability. A party to civil proceedings cannot be compelled
to produce communications marked “without prejudice’ in court proceedings.

Communications between opposing parties to litigation does not attract privilege. To facilitate
alternative dispute resolution or negotiation, there is a rule of law that allows parties to make
concessions without prejudice to the maker of the concession, should the settlement attempt fail.
The communication remains privileged even after a settlement is reached unless the privilege has

56
been waived by the party wishing to produce them. They are inadmissible in any subsequent
litigation.

In Lusaka West Development Company Limited, B.S. K. Chiti (Receiver), Zambia State
Insurance Corporation V Turnkey Properties Limited S.C.Z. Judgment No. 1 Of 1990, the
Supreme Court of Zambia stated that as a general rule, without prejudice communication or
correspondence is inadmissible on grounds of public policy to protect genuine negotiations
between the parties, with a view to reach a settlement out of court. The same rule applies where a
matter is being resolved by court in annexed mediation. (Read Order 31 rule 10 of the High
Court Rules, Cap 27 of the Laws of Zambia.)

5.6.6 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. Section 157(iv) of the Criminal Procedure
Code Cap 88 of the Law of Zambia.

5.6 .7 Incriminating information

A witness is protected from answering questions or producing documents that makes him or her
criminally liable. There is an exception, if the time for proceedings has expired, a penalty has been
waived or a witness has been convicted or acquitted. According to section 157 (vi) Criminal
Procedure Code Cap 88 of the Law of Zambia:
A person charged and called as a witness, in pursuance of this section, shall not be asked,
and, if asked, shall not be required to answer, any question tending to show that he has
committed …any offence other than that wherewith he is then charged.

This exclusion is quite clear in criminal cases and also shows the object of the law to prevent abuse
of powers by police to interrogate persons in their custody in cases for which they have no proof.
It also reinforces the Constitutional rights on the presumption of innocence until proven otherwise,
as provided under Article 18 of the Constitution of Zambia, Cap 1 of the Laws of Zambia.

The challenge, however, comes with civil proceedings. In civil matters, documents may be
declared by parties during discovery and claims of privilege can be made at that stage. The claim
can also be made by a witness who has been subpoenaed to give testimony or produce a document.
In Blunt v Park Lane Hotel [1942] 2 KB 253, Goddard LJ stated that “the rule is that no one is

57
bound to answer any question if the answer thereto would, in the opinion of the court, would have
a tendency to expose him to any criminal charge, or forfeiture which the judge regards as
reasonably likely to be preferred or sued for.

Unit Activity
i. State a reason why the prosecution is compelled to make available any evidence which they
come across that may be favourable to the accused? Which case established this legal principle?
iii. It is said that generally all persons are both competent and compellable. What is meant by this?
What are the exceptions to both these concepts?
iv. What is a voire dire?
v. Why is a spouse considered to be an incompetent witness? What are the exceptions to this rule?
vi. What is privilege? State some of the groups that are not compellable witnesses because of
privilege?

5.8 Unit Summary

In this unit, you have been introduced to the fundamental rules regarding witnesses. You began by
learning about the how the adversarial system works in the calling of witness in both civil and
criminal matters. From our discussions we have learnt that generally, all persons are both
competent and compellable witnesses. However, there are various exceptions to this rule, which
this unit elaborated upon. Competence refers to the qualification of a witness to give evidence,
whilst compellability refers to the power of the court to compel as witness to testify in court.
Thereafter, you learnt about privilege, which is regarded as a class of witnesses that cannot be
compelled to give evidence on the grounds of public policy, sovereign immunity and legal
professional privilege amongst others. This unit then gave examples of these classes of witnesses.
In addition, this unit highlighted aspects of credibility and reliability of witnesses in discussing the
above principles. A number of cases were also discussed in order to fully understand the legal
principles on the subject of witnesses.

5.9 References and other Recommended Readings

Statutes

Criminal Procedure Code, Cap 88 of the Laws of Zambia, 143 – 148; 150; s.157 (vi)

58
High Court Act, Cap 27 of the Laws of Zambia, Part VII; Order 31 rule 10 High Court Rules.

Juveniles Act, Cap 53 of the Laws of Zambia (as amended by The Juveniles (Amendment) Act
No.3 of 2011), Section 122

State Proceedings Act, Cap 70 of the laws of Zambia, Section 25(1)

Subordinate Court Act, Cap 28 of the Laws of Zambia, Part VIII

Case Law

Abel Banda v The People (1986) ZR 105

Asiatic Petroleum Co. Ltd v Anglo-Persian Oil Co. Ltd [1916] 1 KB 822

AT & T Istel v Tully & Others [1992] 3 All ER 523

Attorney-General v Mwaba (1975) Z.R. 218 (S.C

Blunt v Park Lane Hotel [1942] 2 KB 253

Dallison v Caffery [1964] 2 All ER 610

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

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

Heuff v Mbewe (1965) Z.R. 111 (S.C.)

Fraser v The People (1968) ZR 93 (H.C)

Katebe v The People (1975) ZR 14

R v Goodway [1993] 4 All ER 894)

R v Kemble [1990]3All ER 116

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

59
The People v Mushaikwa (1973) ZR 161Manyepa v The People (1975) Z.R. 24 (S.C.)

Books

Black’s Law Dictionary, 8th Ed

Tapper, Collin. Cross and Wilkins Outline of the Law of Evidence, 6th ed.

London: Butterworths, 1786. (Chapter 8)

Cross, Rupert and Collin Tapper. Cross on Evidence, 6th ed. London:

Butterworth & co Publishers Ltd, 1985 (chapter 13)

Keane, Adrian. The Modern Law of Evidence, 6th ed. New York: Oxford

University Press, 2006. (Chapter 20)

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 UNIT 6

COURSE OF EVIDENCE IN COURT

6.0 Introduction
Welcome to unit 6 of this module. In the last Unit, you looked at witnesses in general. The specific
aspects covered included, competence and compellability of witnesses. You also looked at the
grounds of privilege as exceptions to the general rule on compellability. In this unit, you look at
what happens in court when a witness has been called. You will start with the taking of an oath
and affirmation and proceed to look at the procedure of giving evidence. The last section looks at
what you ought to do if a witness is not cooperative, unwilling to give testimony that supports your
client’s case or is simply hostile. You will require at least 60 minutes to successfully study this
unit.

6.1 Unit Aim

The aims of this are to:
i. Introduce you to the various stages of examination of witness.
ii. Explain ways in which testimony is authenticated.

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

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

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

3. Evaluate your witness and identify what courses of action to ensure that their testimony is
reliable and helpful to your client.

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Reflection
Have you ever observed a court hearing or perhaps a courtroom drama? Why do you think
witnesses are asked to swear on the bible before they start giving evidence? What type of
questions can you ask your witness? How do you challenge the evidence of your opponent’s
witness? Write down the answers to the above questions and rate yourself after completing this
unit

6.4 Swearing of Witnesses

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

6.4 .1 Oaths and Affirmation

A witness who is called to testify may give evidence under oath or affirmation. Subject to
exceptions, all oral evidence must be given on oath or solemn affirmation. Sworn evidence is that
given on oath or solemn affirmation. If it appears that a witness has a religious belief, the witness
must either be sworn in the usual way, but if they object or it is not reasonably practical without
inconvenience or delay to administer the oath in the manner appropriate to a person’s religious
belief, to affirm them.

The manner in which the oath is taken is provided under section 36 (1) of the High Court Act,
Cap 27 of the laws of Zambia. Whether an oath has been administered in a lawful manner does
not depend on the intricacies of the religion which is relied on by the witness but whether the oath
is one which the witness himself considers binding on his conscience. R v Kemble [1990]3All ER
116. In this case, a Muslim had taken oath using the New Testament, whereas under the strict
tenets of Islam, no oath that is taken by a Muslim is valid unless taken on a copy of the Koran in
Arabic.

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The form and manner in which an affirmation should be taken regulated by Part VII of the High
Court Act, particularly section 36 (1). Words such as ‘I …….do solemnly and sincerely affirm that
the evidence I shall give to the court shall be the truth and nothing but the truth.’

Oaths are administered by the court, arbitrators or persons empowered to take evidence as well as
commissioners for oaths. Notary public administers oaths which are made outside the country.

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

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

6.5 Examination of Witnesses

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

6.5 .1 Examination in chief

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

The questions are relevant to guide the witness into narrating relevant facts. Your knowledge on
relevance will assist you in selecting the appropriate questions to ask during examination in chief.
The questioning can be done by either asking open ended questions to allow the witness to narrate
the story freely or by asking specific questions. Asking general questions is favoured as it allows
the witness to tell the story from their memory without counsel appearing to be guiding the

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narration or possibly concocting the story. However, the danger with this method is that the witness
may refer to material that is legally inadmissible or dwell on irrelevant material. The best way is
to combine general questions with specific ones at intervals to allow the witness to stick to relevant
and legally admissible testimony. What is important is for counsel to assess the witness before
trial, in order to guide the witness on what not to say and how to follow the chronology of the
events. If the witness’ story is not flowing smoothly or the case involves complex material, the
better style is to ask specific questions.

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

During this stage of proceedings, the party or lawyer who called the witness is not allowed to ask
leading questions. Leading questions are questions that tend to suggest answers. Some writers
have argued that a question that requires a ‘yes’ or ‘no’ answer is ipso facto a leading question.
Although, one may tell a leading question by its form, like the one requiring a yes or no answer,
one can also tell a leading question by its content and context. For example, if one describes one
alternative in a concrete manner and another alternative in a vague manner, the natural inference
by the respondent is to assume the first alternative is suggested.

The rationale for restricting leading questions in examination in chief is that a witness must not be
influenced in the manner in which they narrate facts perceived by them. There is a probable
assumption that the witness owes a duty to the party that called the witness to respond in a certain
way to help that party’s case. It is probable that a witness will simply agree with the statements or
suggestion by a party who called them 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.

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Leading questions may be allowed in the interest of expediency in relation to introductory matters
and facts on which there is no dispute. A witness may use a document to refresh memory, but is
restricted to documents written at the time that the facts on which a witness is testifying are still
fresh. Different rules apply in different jurisdictions when a witness gives an inconsistent statement
from one previously made. Documents used to refresh memory are normally not admitted as part
of evidence but may be admitted to help the credibility and consistency of a witness.

6.5 .2 Cross examination

This is the stage when a witness is asked questions by the opposing party or the opposing party’s
counsel. The object is to try and discredit the evidence of the witness and test the witness’
credibility. During this stage, counsel is generally allowed to ask any question but must be guided
by the principles of relevance, admissibility and fairness. There is no restriction on the asking of
direct or leading questions during this stage. The court may, however, interfere when cross
examination is not proceeding in a fair manner, including where counsel bullies the witness
unnecessarily. A witness may be asked questions that are intended to cast doubt on the witness’
credibility, establish bias on the part of the witness and disability in terms of their competence as
a witness.

6.5 .3 Re- examination

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

6.6 Unfavourable and Hostile witnesses

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

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6.6 .1 Hostile witnesses
A hostile witness is a party’s own witness who is not desirous of speaking the truth in favour of
the party who called him or her. Where this is the case, the party who called the witness may cross
examine the witness. This can be seen from the witness’ testimony and sometimes from the
witness’ hostile demeanour. Once a witness turns hostile, the party that called the witness should
apply to court so that the witness is declared hostile. Once the court has made the ruling that the
witness is a hostile witness, the party who called the witness may cross examine the witness.

In the case of Jeffrey Godfrey Munalula v The People (1982) Z.R. 58 (S.C.), the Supreme Court
held that:
(i) Where on an application to treat a witness as hostile, the court after sight of the
inconsistent statement, decides to grant the application, it should then direct itself not to
place any reliance on the contents of the statement and so record in the judgment.
(ii) Before, with leave of the court, adducing evidence to prove a witness's inconsistency,
the previous statement and its circumstances must be mentioned to the witness so that he
may say whether or not he has made such a statement.
(iii) It is in the court's discretion to determine a witness's hostility in that he does not, give
his evidence fully and with desire to tell the truth; he is not hostile simply because his
evidence contradicts his proof or is unfavourable to the party calling him. Much is
dependent on the stature and extent of the contradiction; but, under common law the court
may treat as hostile, even a witness who has not made a prior inconsistent statement, on
the basis of his demeanour.
(iv)The inconsistent statement of a hostile witness is completely inadmissible as evidence
of the truth of the facts stated therein.

There is no absolute rule that a hostile witness’ testimony must be completely thrown out. The
testimony may be rehabilitated, if the witness adopts their previous inconsistent statement and
explain it in the context of their testimony. (R v Goodway [1993] 4 All ER 894)

6.6 .2 Unfavourable witnesses

An unfavourable witness is one who fails to prove the facts for which he is called to prove. There
is no hostile intention or deliberate move on his part. In certain circumstances a party is permitted
to contradict a witness whom he himself has called. A party producing a witness is not allowed to
impeach the witness’ credibility by general evidence of bad character. If, however, the witness
proves to be 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.

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In Manyepa v The People (1975) Z.R. 24 (S.C.), the appellant was convicted in the subordinate
court of indecent assault on a female. The prosecution led the evidence of a witness who was
completely adverse to the prosecution case. There was no evidence on the record that any attempt
was made to treat him as a hostile witness or to challenge his evidence. The Supreme court held
that It is not only when a witness is formally declared hostile by the court that the party calling
him is entitled to lead other evidence which contradicts the unfavourable evidence, and it follows
that even where the witness has not been declared hostile it is for the court to decide where the
truth lies after considering the whole of the evidence.

6.6 .3 Refractory Witness

A refractory witness is a witness who, after being called to give testimony refuses to take oath,
gives a testimony or is otherwise not co-operative without any reasonable excuse. Section 150 of
the Criminal Procedure Code provides that where a person is a refractory witness, the court may
adjourn the case and order that the witness be remanded in custody until he/she consents to do
what is required of them by the court. The period for which the person may be committed to prison
should not exceed 8 days. If at the expiry of the 8-day period, the person is brought to court but
still refuses or neglects to do what is required of him/her, the court may again commit them to
prison for the like period. The power given under section 150 of the Criminal Procedural Code is
in addition to the court’s inherent jurisdiction to punish a person for contempt of court.

Unit Activity
Answer the following:
Ezra is called into the Subordinate court to give evidence for James, who is the accused in suit of
assault occasioning actual bodily harm; on the basis that Ezra saw and overheard James’ plan to
physically assault Aaron in a local bar in Kanyama Township. Ezra, a friend of James and even

67
though giving evidence for him, deep down knows that what he did was wrong and should not be
have been condoned. He feels a sense that justice must prevail and it is in his hands to do so.
i. Ezra quickly decides whilst giving evidence that he will give evidence against James instead.
What kind of witness is Ezra?
ii) In the process of giving evidence, Ezra realizes the weight of responsibility on his shoulders
and begins to give an inconsistent account of what happened, especially after counsel reminds him
that he is a witness for James and not for Aaron. What kind of witness is he now?
iii) After many inconsistencies and to the frustration of the court and counsel alike, court is
adjourned. On the next time court is in session, the court orders that Ezra takes the stand and
continues to give evidence, to assess his credibility. This time Ezra completely refuses to take oath
and give his testimony. What kind of witness is he? What is the court permitted to do at this stage?

6.8 Unit Summary

In this unit, you have been introduced to the course of evidence in court. The unit began with
discussing swearing of witnesses and this unit stated that this could be done by taking oath and
affirmations, provided under section 36 of the High Court Act, Cap 27 of the Laws of Zambia.
You then learnt about the three staged process of a witness giving oral evidence. The first being
examination in chief. This is where the witness is asked by the party who called them to narrate
the facts that they perceived with their senses. The second stage is cross examination. This is the
stage when a witness is asked questions by the opposing party or their counsel. The last stage is
re-examination. The object of this stage is to rehabilitate the credibility of the witness which may
have been discredited during cross-examination. We also spent some time discussing the various
classes of witnesses that may be encountered during this three staged process. These are
unfavourable witnesses, hostile witnesses and refractory witnesses. In addition, this unit also
discussed a number of cases in order to understand the legal principles on this subject.

6.9 References and prescribed readings

Statutes
Criminal Procedure Code, Cap 88 of the Laws of Zambia, section 150
Penal code, Cap 87 of the Laws of Zambia
Case Law

68
R v Kemble [1990]3All ER 116
Manyepa v The People (1975) Z.R. 24 (S.C.)
Jeffrey Godfrey Munalula v The People (1982) Z.R. 58 (S.C.)
Books
Tapper, Collin. Cross and Wilkins Outline of the Law of Evidence, 6th ed.
London: Butterworths, 1786. (Chapter 8)
Cross, Rupert and Collin Tapper. Cross on Evidence, 6th ed. London:
Butterworth & co Publishers Ltd, 1985 (chapter 13)
Keane, Adrian. The Modern Law of Evidence, 6th ed. New York: Oxford
University Press, 2006. (Chapter 20)

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 UNIT 7

CORROBORATION AND CARE WARNINGS

7.0 Introduction
Welcome to unit 7, you are slightly halfway through to completing this module. The previous unit
discussed the course of evidence in court. In this unit, you will learn about the requirement for
corroboration or caution that the court must take when evaluating evidence of witnesses. In other
words, what would the court consider as sufficient evidence to make a judgment of the issues
presented. As a general rule, the court can make a finding based on the testimony of one witness
or duly proved documentary evidence. This general rule of law holds true for civil cases. In
criminal cases however, the court may require supporting evidence, or treat certain testimony with
caution, in instances where reliability or capacity of a witness is questioned. For this unit, 120
minutes will be required for its completion.

7.1 Unit Aims

The aims of this unit include:
i. Building upon your knowledge of the various classes of witnesses, assess which ones
in particular will need corroboration.
ii. By this understand what corroboration entails.
iii. Analyse the legal principles interpreted through the courts of law on corroborating
evidence and care warnings.

7.2 Objectives
By the end of this unit, you should be able to:
1. Explain corroboration.
2. Identify evidence which requires corroboration as a matter of law.
4. Distinguish the requirement of corroboration as a matter of law and instances where the
court requires to warn itself against convicting on uncorroborated evidence.
5. Explain what evidence amounts to corroborating evidence.

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7.3 Corroboration
Corroboration can be defined as evidence which confirms or supports other evidence. If the
evidence given is not sufficient to support a conviction, then the court must seek additional
evidence. In order to support or confirm other evidence, corroborating evidence must be
independent evidence. The requirement for corroboration may be provided by statue or common
law principles. Examples of statutory provisions include: section 59 of the Penal Code for offences
of sedition and section 122 of the Juveniles Act on testimony of a child below the age of 14 years.

7.4 Care warnings

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

7.4 .1 Evidence of identification

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

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

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 2. Accuracy of identification by a witness, who had a poor opportunity to observe is
not reliable. A person who sees a person in a few seconds may not have sufficient
opportunity to observe that person properly.
3. There is a tendency of bias by witnesses in relation to the race, sex and gender of
the accused person or association of such persons with a gang, amongst other
things. Members of a particular racial group are better at identifying persons of the
same race than other members of different racial groups.
4. Research by psychologists has shown that a number of post-event factors affect the
accuracy of identification of the accused by witnesses. It is common sense that
memory tends to fade after some time of 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.
5. Research has also shown that retrieval of memory can be strongly influenced by the
conduct of identification procedures. For example, a witness may pick out a person
from an identification parade having previously identified that person from the
police photos of convicted people while honestly believing that the person is the
one the witness saw committing an offence. In such a case, the memory may be
assisted by the picture that they saw at a later stage at police.

Commenting on suggestive identification, the court in Charles Lukolongo and Others v

The People (1986) Z.R. 115, held that police officers conducting identification parades
ought to show the highest standard of fairness and impartiality. Evidence of identification
based on 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.

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

72
 1. 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.
2. If the identification is weakened then, of course, all it would need is something
more, some connecting link in order to remove any possibility of a mistaken
identity.

The other problem associated with evidence of a single identifying witness is that a judge relying
on common sense to evaluate an eye witness’s testimony may be tempted to attach undue weight
on top of irrelevant factors such as the confidence of the witness and the educational qualifications
of a witness, amongst others. Because of the above problems associated with testimony of a single
identifying witness, there is a common law rule requiring judges to warn themselves against
convicting solely on evidence of a single identifying witness where there is a possibility of honest
mistake.

In R v Turnbull and Another [1976] All E.R. 549, the court of Appeal held that evidence of
identification ought to be treated with caution before it can be relied on as founding a criminal
conviction. If the quality is not good, there is need to look for supporting evidence to rule out the
possibility of honest mistake in identification.
The Court laid the following guidelines for courts when evaluating identification evidence:
1. 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).
2. The judge must closely examine the circumstances in which the identification by each
witness came to be made. Factors to consider include; the length of time the witness had
the accused under observation, the nature of the light, whether the observation was impeded
in any way e.g. by passing traffic, people, fear, and so on. Whether the witness had seen
the accused before, how often? How long had passed between the observance and the
identification? All these factors affect the quality of identification.

3. When the judgment 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

73
 place weight on that evidence unless there is other evidence which goes to support the
evidence.

These guidelines are applicable in all cases where identification of an accused person is alleged to
be mistaken. These principles have been applied in a number of Zambian cases. You will do well
to read those cases to appreciate more on how the guidelines are applied by courts.

The warning is however, unnecessary where the accused does not deny being at the scene and
there was no possibility of mistaken identity. The question in such instances should then be what
was the accused doing at the time? The warning will also not be necessary if the witness has not
made a mistake but is merely lying. In this case, the court will just disregard the testimony for
being unreliable. Where the court is invited to identify an accused person, either by looking at
pictures or a video footage taken at the scene of crime or a voice or handwriting, there would be
no need for the caution.

7.5 Supporting evidence

Strictly speaking, for corroboration to amount to supporting evidence must come from an
independent source and it must be in support of the evidence requiring corroboration in a material
particular. In the case of Mwelwa v The People (1972) ZR 29, the court held that evidence is not
corroboration unless it implicates the accused in a material particular. In that case, the sworn
evidence of a child whose oath was improperly taken was not admissible as corroborating evidence
as it was required to be corroborated by law.

The standard however, seems to be differently applied in different cases. In Nsofu v The People
(1973) ZR 287, the court held that corroboration need not be independent evidence. It is supporting
evidence that tends to confirm the truth of the evidence of the witness on which evidence the
conviction is based. It should not be used as substitute for evidence lacking credibility. See also
the case of Emmanuel Phiri and Others v the People (1978) Z.R. 79 (S.C.)

For supporting evidence of a single identification witness, it need not be corroboration within strict
terms. It may sometimes be sufficiently supported by a fake alibi, forensic evidence and other
circumstantial evidence.

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Unit Activity
i. What I the issue with evidence of a single identifying witness?
ii. What is the legal principle associated with evidence of identification?
iii. What was held in the case of Mwelwa v The People (1972) ZR 29?
iv. Compare and contrast the above case with the case of Nsofu v The People (1973) ZR
287. What were the legal principles upheld in both cases?

7.6 Unit Summary

In this unit, you have been introduced to corroboration and care warnings. Corroboration can be
defined as confirming or supporting evidence. That is if the evidence is not enough to support a
conviction. Corroboration is a requirement by statute and it is based on common law principles.
The unit then went on to discuss care warnings. It is defined as the court warning itself against
convicting based on evidence of certain classes of witnesses. You then learnt about evidence of
identification and the various aspects why a single identifying witness’s account cannot solely be
relied upon. This unit concluded on the note that supporting evidence must come from an
independent source and this could be seen to be applied by different cases. Supporting evidence
tends to confirm the truth of the evidence of the witness, but it should not be used as a substitute
for evidence lacking credibility. Additionally, this unit also outlined a number of cases in order to
understand the legal principles on the subject of corroboration and care warnings.

7.8 References a Recommended Readings

Cases

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

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

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Musonda v The People (1968) Z.R. 98
Muvuma Kambanja Situna v The People (1982) ZR 115
Nsofu v The People (1973) ZR 287
R v Turnbull and Another [1976] All E.R. 549,

Books

Tapper, Collin. Cross and Wilkins Outline of the Law of Evidence, 6th ed.

London: Butterworths, 1786. (Chapter 4)

Cross, Rupert and Collin Tapper. Cross on Evidence, 6th ed. London:

Butterworth & co Publishers Ltd, 1985 (chapters 6,7 and 8)

Keane, Adrian. The Modern Law of Evidence, 6th ed. New York: Oxford

University Press, 2006. (Chapters 5 to 8)

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 UNIT 8

EVIDENCE OF CHARACTER AND DISPOSITION

8.0 Introduction
Welcome to unit 8 of this module. In the previous unit you were introduced to corroboration and
care warnings. In this unit, you will be acquainted with the rules of law governing admissibility of
evidence of disposition. As we established in unit 1, the functions of the law of evidence are to
ensure that the rights of the parties’ are protected during legal proceedings. The law therefore,
generally excludes evidence of character or disposition from admission into evidence subject to a
number of exceptions that will be addressed later in this unit. The time required for this module to
be sufficiently completed is 120 minutes.

8.1 Unit Aim

The aims are to:
i. Introduce to rules governing admissibility of evidence of character from the basis of
the various classes of witnesses you have learnt about.
ii. Enable you to analyse the legal principles relating to admissibility of evidence of
character and disposition.

8.2 Objectives
By the end of this unit, you should be able to:
1. Explain the general rule evidence of character;
2. Discuss the circumstances when evidence of character or disposition may be admitted
in criminal matters;
3. Explain the factors that assist the court in deciding to exclude evidence of character or
disposition.

8.3 Evidence of Character

Evidence of character relates to evidence that tends to show the tendency of a person to act, think,
or feel in a particular way. It is evidence of the disposition or propensity of a person to think, feel
or act in a certain manner. Character may be revealed by commission of other crimes or other

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discreditable conduct. It may be proved by evidence of general disposition or by testimony of
people who know the person.

Evidence of character may be relevant to make inferences of facts in issue. As much as such this
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 before. Prejudice would be in the form of
placing undue weight or consideration to collateral issues (character) as opposed to evidence
before court to prove the facts in issue.

The conflict of likely prejudice and relevance of evidence of character is resolved in favour of a
party, so that evidence of character is generally not admissible. Where such evidence is admissible,
its admission should depend on the court’s finding after weighing the prejudicial effect of the
evidence against its probative value.

8.3 .1 Parties to Proceedings

Following the above test, evidence of character is generally admissible, in civil cases, where
character is in issue. Examples include, defamation cases (character may be necessary to justify a
defence of justification or fair comment), matrimonial cases (divorce on based on the fact that the
Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live
with the Respondent. In such cases, the general character of the Respondent must be proved. Even
in those cases, evidence of good character of a party generally need not be led as the law presumes
that a party is of good character until the contrary is proved. (Zambia Publishing Company Ltd v
Pius Kakungu (1982) Z.R. 167). In civil cases, evidence of bad character of a party may be
relevant to prove facts in issue and is admissible. In deciding whether or not to admit such
evidence, emphasis is placed more on probative value than on prejudicial effect.

In criminal cases, evidence of the accused’s bad character is generally inadmissible. The
exceptions are: i) Where the defence leads evidence of good character, in which case the accused
may be cross examined on that evidence to impeach such evidence.
ii) Another exception is where an accused person has attacked the character of a prosecution
witness in which case the accused will be said to have removed his shield. Even in such a case, the
prosecution will only be allowed to call evidence of the general disposition of the accused.

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iii) The other exception to the rule is when dealing with evidence known as “similar fact” which
is discussed in more detail below.

Where character is tendered to prove or disprove some other issue, it is 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 the propensity to commit crimes. Furthermore, if a person has been tried and
convicted of a previous crime, it is against public policy that all future crimes should refer to
previous crimes.

In Melody Chibuye v The People (1970) Z.R. 28 (H.C.), the appellant was convicted of theft and
sentenced to eighteen months' imprisonment with hard labour. Under cross-examination the
appellant was asked questions which elicited the facts that during the two months preceding his
trial he had been in prison and that he had been released from prison only two days prior to his
arrest in connection with the present case, that he had previously been in jail for theft, and a denial
that he was a habitual criminal activity. The appellant appealed against the conviction.
The court held that:
(i) Under section. 148 (f) of the Criminal Procedure Code, questions relating to the accused
in previous committals and convictions could only be admitted in evidence where it can be proved
that his guilt in those offences and also show that he is guilty of the present offences; Where the
good character of the prosecution witness has been put in issue; and where the accused wants to
establish his good character.

8.3 .2 Witnesses
When it comes to witnesses, the opponents’ witnesses can be asked about their general character
or previous convictions for purposes of discrediting their testimony. The restrictions are that the
matter must be relevant to the credibility of the witness. The relevance of this testimony is only to
discredit evidence of a witness. As such, where a party is seeking to bring such evidence, it is not
allowed to bring evidence to rebut the witness’s denial of the evidence of bad character. Further,
the court will not, during cross examination, allow questions that are solely intended to embarrass
the witness or torture them.

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Section 157(vi) of the Criminal Procedure Code, Cap 88 of the Laws of Zambia provides that:
a person charged and called as a witness, … shall not be required to answer, any question
tending to show that he has committed or been convicted of, or been charged with any
offence other than that (with which) he is then charged, or is of bad character, unless-
(a) The proof that he has committed or been convicted of such other offence is admissible
evidence to show that he is guilty of the offence wherewith he is then charged; or
(b) he has, personally or by his advocate, asked questions of the witnesses for the
prosecution with a view to establishing his own good character, or has given evidence of
his own good character, or the nature or conduct of the defence is such as to involve
imputations on the
Character of the complainant or the witnesses for the prosecution; or
(c) He has given evidence against any other person charged with the
Same offence.

8.4 Evidence of similar facts

Admission of evidence of similar facts is governed by rules of law governing admissibility of
evidence of disposition. Similar fact evidence may be tendered to show that a person is of a certain
kind of disposition or tendency to act in a particular manner. It is also referred to some as a method
of proffering to prove character of a party.

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

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In Hales v Kerr [1908] 2 KB 601, evidence of previous customers who had contracted ringworms
after being shaved by the Defendant was admitted to prove negligence in a matter in which the
Plaintiff alleged he had contracted ringworms from a dirty razor used by the Defendant.

In Joy v Phillips, Mils & Co Ltd [1916] 1 KB 849, evidence of previous incidences showing that
the deceased stable boy was in a habit of teasing horses with a halter was admitted to negative a
claim under the workers’ compensation and that the accident did not occur in the course of
employment.
That notwithstanding, the court has overriding authority and discretion to ensure that trial is
conducted in the most just, fair and efficient manner.
This includes limiting the time spent on proving collateral matters that may arise in cross
examination and protecting litigants from unfair practices.

In criminal cases, the general rule is that it is not competent for the prosecution to bring evidence
tending to show that the accused has been guilty of criminal acts other than those for which he/she
is being tried, leading to the conclusion that the accused is a person likely, from his criminal
conduct or character, to have committed the crime for which she/he is being tried for. On the other
hand, the mere fact that the evidence adduced tends to show the commission of other crimes does
not render it inadmissible if it is to be relevant to an issue before the jury (Per Lord Herschell in
Makin v Attorney General for New South Wales [1894] A.C 232). The principle was restated
in DPP v Boardman [1975] AC 421, evidence of similar facts can be admitted if it is more than
barely relevant to the guilt of the accused.

Evidence of similar facts may be admitted. Instances where such evidence may be admitted
includes evidence to show if acts alleged were designed or accidental or to show identity of the
person or to 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 if it is not
substantially relevant to facts in issue. In exercising 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 section 157 Criminal Procedure Code are a directive in this regard.

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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 weighing should be that of probative force vs.
prejudicial effect.
Probative force refers to:
4. the cogency (strong or clear to warrant belief) of the evidence showing accused person’s
bad disposition;
5. the extent to which such disposition supports an inference sought to be drawn from it; or
6. The degree of relevance of such inference to some fact in issue in the proceedings.

Prejudicial force on the other hand looks at:

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

In Esther Mwiimbe v The People (1986) Z.R. 15 (S.C.), the Supreme Court stated that ‘the
admission of similar fact evidence is in the discretion of the trial court which will no doubt, among
other things, consider whether its evidential value outweighs its prejudicial effect.’ In conclusion
therefore, the test for admission of evidence of similar facts in civil cases is that of relevance. The
stakes are high when it comes to criminal offences in which case the court should only exercise its
discretion after determining that the evidence’s probative value outweighs its prejudicial effect.

8.5 Unit Activity

Explain the rule on admissibility of evidence of character. What is the justification for the strict
rules on evidence of character in criminal cases?

8.6 Unit Summary

In this unit evidence of character and disposition have been discussed. Evidence of character
relates to evidence that tends to show the tendency of a person to act, think or feel in a particular
way. This unit stated that evidence of bad character is generally inadmissible in criminal cases. In

82
civil cases on the other hand, it is generally admissible where the accused person’s character is in
issue. It may be relevant to make inferences of the facts in issue but research shows that this may
prejudice the accused, who is appearing before the court. In administering this type of evidence
the probative value must be weighed against the prejudicial value. Additionally, this unit also
outlined a number of legal principles in order to fully understand the subject of evidence in
character and disposition.

8.7 References and Recommended Readings

Statutes

Section 157 Criminal Procedure Code, Cap 88 of the Laws of Zambia

Case Law

DPP v Boardman [1975] AC 421

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

Makin v Attorney General for New South Wales [1894] A.C 232)

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

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

Zambia Publishing Company Ltd v Pius Kakungu (1982) Z.R. 167

Books
Tapper, Collin. Cross and Wilkins Outline of the Law of Evidence, 6th ed.

London: Butterworths, 1786. (Chapters 9 and 10)

Keane, Adrian. The Modern Law of Evidence, 6th ed. New York: Oxford

University Press, 2006. (Chapters 15 to 17)

83
84
 UNIT 9

OPINION

9.0 Introduction
Welcome to Unit 9 of this module. You are a few units closer to completing this module. In Unit
8 you learnt on evidence of character and disposition. In this unit, we look at special rules
governing admissibility of opinions in court proceedings. You will require at 60 minutes to
successfully complete this unit.

9.1 Unit Aim

The aim of this unit is to explain the rules regarding admissibility of opinions into evidence.

9.2 Objectives
By the end of this unit, you should be able to:
1. Explain the rules on admissibility of lay opinion;
2. Explain the rules on admissibility of expert witnesses;
3. Properly display a legal foundation for admissibility of opinion evidence.

9.3 Evidence of opinion

Evidence of opinion is generally not admissible. This is because telling of an opinion involves
giving inferences drawn from facts perceived or experienced, which is the function of the court.
Also, there is likelihood that the judge may tend to believe those inferences without making its
own inference. There is a general rule of law that witnesses must give testimony of facts which
they have perceived with their own senses. This exercise does involve expression of opinion. There
are however exceptions to the rule.

9.3 .1 Expert opinion

The first exception to the rule relates to expert opinion. Experts are allowed to give an opinion on
evidence falling within their area of expertise, for evidence requiring such expertise. The
requirement for experts is only in matters on which the court cannot make its own inferences of
the facts in issue; otherwise the expert will just introduce jargon and delay the proceedings. The

85
expert witness must give evidence within their expertise. The court may decide to regard a witness
as a non-expert following an examination so that the witness limits himself/herself to facts. Experts
may be by training or experience.

There is no mandatory requirement that the witness must have acquired the expertise
professionally. In R v Silverlock [1894]2QB 766, the court held that a solicitor who had studied
handwriting for ten years, mostly as an amateur, had properly been allowed to give his opinion as
to whether certain disputed handwriting was that of the accused.

The obligations of an expert witness were aptly set out in Phillips and others v Symes and others
[2005] 4 All ER 518, as follows:
1. 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).
2. An expert witness should provide independent assistance to the Court by way of
objective and 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.
3. An expert witness should state the facts or assumption upon which his/her opinion
is based. He/she should not omit to consider the material facts which could detract
from his concluded opinion (Re J). This is important for purposes of reliability of
the evidence. It must be founded on objective and reliable processes.
4. An expert witness should make it clear when a particular question or issue falls
outside his expertise.
5. 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).

86
 6. If, after the 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 the legal representatives) to the
other side without delay and when appropriate to the Court.

When dealing with the evidence of an expert witness the court should always bear in mind that
the opinion of an expert is the expert’s own opinion only, and it is the duty of the court to come
to its own conclusion based on the findings of the expert witness. The opinion of an expert
must not be substituted for the judgment of the court. It can only be used to guide, albeit a very
strong guide to the court to arrive at its own conclusion on the evidence before it. The same
thing applies to the opinion of other expert witnesses.

Like other unfavourable witnesses, a party who is not satisfied with the opinion of his expert
may call another expert. That is if the court is satisfied that the expert had modified their
opinion for reasons that could not fairly support his/her revised opinion. Further, where two
experts give conflicting opinions, the court can call a third expert, if it so wishes, but otherwise
has to determine where the truth lies. When assessing the weight of the evidence, the court will
be guided by the same rules as when assessing non-expert evidence. Some guides will be on
the reliability of the methods of research or scientific criteria if you like, circumstances of the
case, the expert’s qualifications and how they were acquired, the overall credibility of the
witness and the relevance of the opinion to deciding ultimate facts. (Per Stallwood v David
and another [2007] 1 All ER 206)

9.3 .2. Lay opinion

Opinions of a lay people may be admitted when they relate to matters which cannot be verbalised
without expressing an opinion. Examples include, lay observation of the state of a person who has
been drinking, the identity of a witness, speed, time, voices, handwriting, temperature, amongst
other things. See the following cases: Blake v The People (1973) Z.R. 157; Mwale v The People
(1975) Z.R. 163

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In both cases, the Court affirmed the position that non-expert witness is competent to give evidence
as to his impressions of drunkenness based on facts. The cardinal factor when admitting opinions
is to ensure that the opinions are based on observed facts which cannot properly be verbalised by
the witness.

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

9.5 Unit Summary

In this unit, you have been introduced to opinion. You have learnt that as a general rule, evidence
of opinion is generally not admissible. This unit however, espoused exceptions to this rule. These
are expert witnesses and the opinion of lay people. The former is in regards that an expert witness
can give their expertise on matters which the court cannot make its own inference on the facts in
issue. Opinions of lay people may be admitted when they relate to matters which cannot be
verbalised without expressing an opinion. Additionally, this unit also outlined a number of cases
in order to fully understand the legal principles on the subject of opinion. Soon after, the unit drew
to a conclusion.

9.6 References and Recommended Readings

Cases

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

Chuba v The People (1976) Z.R. 272

R v Silverlock [1894]2QB 766

88
Phillips and others v Symes and others [2005] 4 All ER 518

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

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

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

Whitehouse v. Jordan ([1981] 1 All ER 267 at 276, [1981] 1 WLR 246 at 256–257

Books
Cross, Rupert and Collin Tapper. Cross on Evidence, 6th ed. London:

Butterworth & co Publishers Ltd, 1985 (chapter 14)

Keane, Adrian. The Modern Law of Evidence, 6th ed. New York: Oxford

University Press, 2006. (Chapter 18)

89
 UNIT 10

THE RULE AGAINST HEARSAY

10.0 Introduction
Welcome to the unit 10 of this module. In the previous unit you looked at the rules regulating
admissibility of witness’ opinion into evidence. In this unit, you will be introduced to the rule
against hearsay. You will require at 90 minutes to successfully complete this unit.

10.1 Unit Aim

The aims of this unit are to:
i. Introduce to the rule against hearsay.
ii. Identify the exceptions relating to this rule.
iii. Analyse case law to assess how courts have applied the exclusionary rule against
hearsay.

10.2 Objectives
By the end of this unit, you should be able to:
9. Explain the exclusionary rule against hearsay;
10. Identify admissible hearsay and justify its admissibility to evidence;
11. Explain the guidelines that guide the courts’ discretion to admit admissible hearsay
evidence.

10.3 The rule against hearsay

Formal oral or written statements of a person made outside court are not admissible as evidence of
truth of that statement. The rationales for exclusion are that:
1. The maker of the statement has not taken any responsibility to ensure of the statement’s
truth. The statement is not made on oath and the maker of the statement is not subjected to
cross examination to test the maker’s credibility.
2. Truth depreciates in the process of repetition.

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 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.

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

10.4.1 A statement tendered not as truth of what is said but that the statement was made.

Hearsay statements tendered not as truth of the statement but to show that the statement was made
are admissible. In Shamwana and 7 others v the people (1985) ZR 41, the court stated that
“evidence of an out-of-court statement made in the absence of the accused to a witness is hearsay
and inadmissible when the object of the evidence is to establish the truth of what is contained in
the statement. It is, however, not hearsay and it is admissible when it is proposed to establish by
the evidence, not the truth of the statement, but the fact that it was made.” The deterring factor is
therefore the purpose for which the evidence tendered to court.

10.4.2 Res gestae

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

The Zambian courts have had occasion to define what amounts to res gestae. In the case of The
People v John Nguni (1977) Z.R. 376, the court held that evidence of a statement made by a
person who is not called as a witness may be admitted as part of the res gestae and can be treated

91
as an exception to the hearsay rule provided it is made in such conditions of involvement or
pressure as to exclude the possibility of concoction or distortion to the advantage of the maker or
to the disadvantage of the accused.

In Chisoni Banda v The People (1990-92) Z.R. 70 and Edward Sinyama v The People (1993 -
1994) Z.R. 16, the court emphasized that what is important is not how much time may have passed
or distance the actor may have moved from the transaction. The true test and the primary concern
of the Court (as to whether a statement may be admitted as part of the res gestae) must be whether
the possibility of concoction or distortion should be disregarded in the particular case

10.4.3 Admissions and confessions

Admissions and confessions by a party to proceedings, when made out of court are normally
admissible as an exception to the hearsay rule. An admission of a party that is adverse to him/her
amounts to a confession. Different rules will apply in this context, but we will discuss this in more
detail in Unit 11.

10.4.4 Dying declarations

In criminal trials for murder or any unlawful homicide, statements or declarations made 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. In order for it to be admissible, it must be established that the
victim must have given up all hope of living or thought that death was eminent. It is not necessary
that the death should be expected immediately, provided the deceased had no hope of recovery
when the statement is made. The deceased should actually die.

10.4.5 Declarations made in the course of duty

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

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Unit Activity
Answer the following questions:
i. What is the rationale of the rule against hearsay?
ii. State and explain at least three exceptions to this rule?
iii. What is res gestae?
iv. State a Zambian case that analysed the above principle of law.

10.5 Unit Summary

In this unit, you have been introduced to the rule against hearsay. Formal oral or written statements
of a person made outside court are not admissible as evidence of truth of that statement. This is on
the basis of a number of rationales, such as that the truth depreciates as time passes and that this
will encourage weak evidence to be substituted for the best evidence. However, there are some
exceptions to the rule of hearsay such as res gestae, admissions and confessions, declarations made
in the course of duty, dying declarations and a statement tendered not as truth of what was said but
that the statement was indeed made. Additionally, this unit also outlined a number of cases in order
to understand the legal principles on the subject of the rule against hearsay.

10.6 References and recommended reading

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

Books

93
Cross, Rupert and Collin Tapper. Cross on Evidence, 6th ed. London:

Butterworth & co Publishers Ltd, 1985.

Keane, Adrian. The Modern Law of Evidence, 6th ed. New York: Oxford

University Press, 2006.

94
 UNIT 11

CONFESSIONS

11.0 Introduction
Welcome to unit 11 of this module. You have nearly completed all the units of this module. In the
last unit, you were introduced to the rule against hearsay under which we learnt that confessions,
although made outside the court, are admissible as an exception to the rule against hearsay. In this
unit, we will discuss the rules of evidence governing admissibility of confessions. You will require
at least 60 minutes to successfully complete this section. You also learn the rationale for the strict
rules on admissibility of confessions in criminal proceedings.

11.1 Unit Aim

The aims of this unit are to introduce you to the rules of evidence governing admissibility of
confessions.

11.2 Objectives
By the end of this unit, you should be able to:
1. Explain the rights of a suspect in criminal investigations.

2. Identify objectionable evidence of confessions in criminal trials.

3. Appropriately respond to objections against lawfully obtained confessions in criminal

prosecution.

4. Explain the admissibility criteria of confession statements in criminal proceedings.

Activity
Write down your answers to the following and assess your answers after completing the unit.
i. What is a confession?
ii. Is a confession admissible in a criminal trial?

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

11.5 Admissibility of confessions in criminal trials

Before a confession can be admitted into evidence in criminal cases, the prosecutor must show that
the confession was made voluntarily, that is, without fear of prejudice or hope of advantage held
out to the accused by a person in authority. This principle was formulated in the classic case of
Ibrahim v R [1914] AC 599 in the speech of Lord Summers.

Involuntary confessions are not admitted into evidence mainly for two reasons:
1. A statement made out of fear of prejudice or promise of reward would most likely be false.

2. Those charged with investigating crimes must be discouraged from using improper
methods of investigation by depriving them of the advantage of using confessions to obtain
a conviction.

The judge exercising the discretion to admit a confession statement, may still exclude a statement,
even after finding that it was obtained voluntarily, if it is irrelevant or if its prejudicial effect
outweighs its probative value. A confession statement may also be excluded if the authority who
obtained the confession misconducted themselves, including a failure to caution the accused
person (R v Bass [1953] 1 QB 480).

Where the admissibility of a confession has been challenged on the ground that it was involuntary,
the court must conduct a trial within a trial in order to establish voluntariness or the circumstances
under which the confession was obtained.

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11.6 The Trial within a Trial
The question as to whether a confession has been made voluntarily must be determined by the
judge in a trial within a trial. Where it is proposed by the prosecution to adduce a confession
statement and the defence is of the view that the statement was never made, or that the statement
has been forged, there is no need for the court to conduct a trial within a trial as the question
whether or not a statement was made becomes an issue for determination in the main trial.
(Tapisha v The People (1973) ZR 222). A trial within a trial is a trial that is specifically conducted
to establish the voluntariness of a confession statement that is sought to be admitted into evidence.

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

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

11.7 Admissibility Test

During the trial within a trial, the judge or magistrate determines two issues: firstly, whether or not
there was an element of inducement, and secondly if the inducement is such that the accused was
deprived of the exercise of the accused person’s own free will.

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

Threats and promises may take various forms. In R v Richards [1967] Cr. App. R 266, the words
“I think it would be better for you if you made a statement and told me exactly what happened”
were held to be capable of constituting a threat. If the threat or inducement has been removed by
passage of time or a by a person more superior to the person making a threat, the statement would
be admissible. In R v Harz [1967] 1 AC 760, the House of Lords held that where a statement has
been induced by threat or promise, it is inadmissible even though the threat or promise relates to
some other matter not connected to the charge with which the accused is being investigated.

Fear alone will not exclude the confession nor will a threat or promise to one suspect influence
another suspect. The person exerting the fear or making a promise to the suspect, should be of the
effect that the suspect fails to exercise free will. The inducement must be made by a person in
authority. The following have been held to be persons in authority; a police officer having custody
of the accused, an employer, a lawyer among others. 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.

In Abel Banda v The People (1986) Z.R. 105, the Court held that a village headman is not a
person in authority for purposes of administering a “warn and caution” before interrogating a
suspect, since his normal duties do not pertain to investigating crime. This position of law was
affirmed in Mbomena Moola v The People, SCZ Judgment No. 35 OF 2000 in describing a
village committee that did not comply with the judges’ rules discussed in 11.7.3 below.

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

If a confession is found to be inadmissible, the accused person will not be cross examined on it.
Even after a confession is found to have been voluntarily made, the court still has direction to
exclude it if the police improperly conducted themselves. Improper conduct on obtaining a
confession statement may be evidenced by failure to comply with the judges’ rules. The court may
also exclude a confession statement where its prejudicial effect outweighs its evidential value.

11.7.3 The Judges’ Rules

These are rules formulated in 1912 by judges for their guidance. They are not law but are
administrative directions for the observance of the police in order to aid them in fair administration
of justice. The judges’ rules applicable to Zambia are the judges’ rules of 1930 stated in Achbold
paragraph 1118 (Zondo and others v The Queen [1963-1964] Z. and N.R.L.R., 97; Chileshe v
The People (1972) Z.R. 48 (H.C.)). One of the principles under the Judges’ rules is that, a person
who gives a statement or answer to a question by a person in authority must do so voluntarily.
Within that principle, the following rules should be followed:
1. When the police are investigating a crime, they are entitled to question anyone whether or
not suspected.

2. As soon as soon police have reasonable cause to believe that an offence has been
committed, they shall caution a person before putting any question relating to the
offence suspected. The caution shall be in the following terms; “You are not obliged
to say anything unless you wish to do so but what you say may be put in writing
and given in evidence against you.”
3. The warning should again be given when a person has been charged with the offence and
the police wish to ask the accused person questions relating to the offence.

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Breach of the Judges’ rules does not automatically render the confession, inadmissible. However,
before admitting a statement obtained contrary to the Judges' rules, the trial court should consider
whether the prejudicial effect of the evidence outweighs its evidential value. Read the below cases:
Shamwana & Others v The People (1985) Z.R. 41 (S.C.)
Charles Lukolongo and Others v The People (1986) Z.R. 115

11.8 Implications of the Confession on Co- accused

A confession made out of court when admitted will only be admitted as evidence against its author.
R v Gunewardene [1951] 2 Kb 600. The exceptions are:
1. Where a co-accused is convicted on his/her confession and the conviction is used as
evidence against the accused.

2. Where the co-accused by words or conduct adopts or accepts the truth of the confession
as his/her own.

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

11.9 Evidence obtained in consequence of an unlawful act

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

Unit Activity
i. What is the law regarding admissibility of confessions in criminal trials?
ii. Why does the law restrict admissibility of confessions?
iii. What is the process of determining admissibility called?
iv. Can a court exclude confession after finding it was made voluntarily?

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 v. What is the status of evidence or facts discovered in consequence of an inadmissible
confession?

11.10 Unit Summary

In this unit, you have been introduced to confessions. A confession is an oral or written statement
made by a person charged with a crime stating or suggesting that they had committed that crime.
A confession made outside court is generally admissible and this is an exception to the rule against
hearsay. A confession is however only admitted once the court is satisfied that the confession was
made freely and voluntarily. An involuntary confession is generally not admitted to court based
on two main reasons. Firstly, a statement made out of fear or prejudice or promise of reward is
mostly untrue and secondly, the police must be discouraged from using improper methods of
investigations. The question as to whether a confession was obtained voluntarily must be
determined by the judge in a trial within a trial. During this procedure two issues must be
determined. Firstly, the element of inducement and secondly admissibility. The unit further
discussed the implications of a confession on a co-accused and the consequence of breach of
statutory procedure.

11.12 References and recommended readings

Case Law
Abel Banda v The People (1986) Z.R. 105
Charles Lukolongo and Others v The People (1986) Z.R. 115
Chigowe v The People (1977) ZR 21
Chileshe v The People (1972) Z.R. 48 (H.C.)
Hamfuti v The People (1972) Z.R. 240 (H.C.)
Ibrahim v R [1914] AC 599
Liswaniso v The People (1976) Z.R. 277
Mbomena Moola v The People, SCZ Judgment No. 35 OF 2000
Muwowo V The People (1965) Z.R. 91 (C.A.).
R v Gunewardene [1951] 2 Kb 600.
R v Bass [1953] 1 QB 480

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R v Harz [1967] 1 AC 760
R v Jones [1977]2 Cr App R 173)
R v Priestley [1965]51 Crim App R 1
R v Richards [1967] Cr. App. R 266
Shamwana & Others v The People (1985) Z.R. 41 (S.C.)
Tapisha v The People (1973) Z.R. 222
Zondo and others v The Queen [1963-1964] Z. and N.R.L.R., 97;

Books

Chanda, A.W. “The Role of the Lower Courts in the Domestic Implementation of Human Rights,”
Zambia Law Journal, 2001 Vol. 31 Pages 1-17 at P9
Cross, Rupert and Collin Tapper. Cross on Evidence, 6th ed. London:

Butterworth & co Publishers Ltd, 1985

Keane, Adrian. The Modern Law of Evidence, 6th ed. New York: Oxford

University Press, 2006

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 UNIT 12

DOCUMENTARY EVIDENCE

12.0 Introduction
Welcome to unit 12 of this module. In this unit, you will be introduced to rules of law governing
admissibility of documentary evidence in courts of law. You require at least 60 minutes to
complete the unit.

12.1 Unit Aim

The aim of this unit is to introduce you to rules regulating admissibility of documentary evidence.

12.2 Objectives
By the end of the unit, you should be able to:
1.Explain the admissibility requirements for documentary evidence.

2. Identify and explain the procedures for admitting documentary evidence in civil and
criminal cases.

Activity

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

Now that you have made attempts to define the term document, compare your responses to the
information below.

12.3 Definition of document

The Evidence Act, Chapter 43 of the Laws of Zambia defines "document” as ‘includes any device
by means of which information is recorded or stored, and books, maps, plans and drawings.’ As a

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general rule, a party who wishes to rely on contents of a document must adduce primary evidence
of its contents. This is spoken of as the most important survival of the best evidence rule. Read
sections 3 and 4 of the Evidence Act.
Examples of primary documentary evidence include the following:
1. The primary contents of a document that are in its original form.
2. A copy of document requiring enrolment: There are certain private documents which must
be filed in court or other public office and when filed as such, a copy is issued by the court
or such public office. Such copy may be treated as primary evidence of the original.
Examples include probate of will, lease registered at Ministry of Lands.
3. An informal admission by one party to litigation constitutes primary evidence against that
party of the contents of the document. The opponent is dispensed from the necessity of
producing the original or showing that the case comes within the rule requiring this to be
done.
4. Secondary evidence of documents that may be admitted as primary evidence are such as
certified copies, examined copies (especially in civil matters following discovery and
inspection of documents), office copies and other public documents such as statues, etc.

There are instances when the general rule requiring primary documentary evidence may not apply.
Exceptions include:
1. Where a document is in possession and control of opponent who fails to produce it after a
notice has been served on him/her. When a notice to produce is served on a party, it
provides a foundation for reception of secondary evidence. It does not compel a party to
produce a document in their possession or power.
2. When the original has not been found after due search.
3. When the production of the original is for practical purposes, impossible.
4. When the production of an original document would be highly inconvenient owing to the
public nature of the document.
5. Bankers Books

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12.5 The person to adduce documentary evidence
To be admissible, a document must be produced from good custody. This requirement ensures that
documents that are produced in court are not corrupted or destroyed due to breaks in storage and
transmission to court. A person cannot testify on contents of a document that have not been
admitted to court. However, the person who can lawfully produce a document to court must have
been:
1. The author or maker of the statement except where the author is dead, or unfit by reason of
bodily or mental condition to attend as a witness, or if they are outside Zambia and it is not
reasonably practicable to secure their attendance, or if all reasonable efforts to find the
witness have been made without success;
2. The person who has personal knowledge of the matters dealt with by the statement; or
3. Where the statement was taken (in so far as the matters dealt with thereby are not within
his personal knowledge) in the performance of a duty to record information supplied to
him by a person who had, or might reasonably be supposed to have, personal knowledge
of those matters.

12.6 Proof of attestation and execution of private documents.

When a party wishes to rely on an executed document, the court will require evidence that the
document was properly administered. The court requires proof that the document was signed by
the person whom it is said to have signed it. In terms of execution, the court must satisfy itself that
the document was duly executed. There are a number of ways in which the court will establish
proof of signing or attestation which we discuss in detail below. The most obvious way under
common law is by proof of handwriting with the exception of certain special documents as
provided by section 6 of the Evidence Act.

Handwriting can be proved by the:

1. Testimony of a person whose handwriting is to be proved;
2. Testimony of a person who saw the document being executed;
3. Opinion of a person who is sufficiently familiar with the handwriting or signing of the
person whose handwriting is in question; or

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 4. An expert opinion of a handwriting expert following comparison of the disputed writing
with proved to have been written or signed by the person whose writing or signature is in
question.

The special documents requiring special proof of attestation under section 6 of the Evidence Act
are wills and testamentary documents which require calling at least one of the attesting witnesses.
If the witnesses are not available, evidence must be shown of their unavailability such as in the
instance that they are dead, insane or outside of the jurisdiction. After satisfying the court that the
witnesses are unavailable, evidence of their handwriting or signature to prove attestation must be
called. If evidence of handwriting cannot be obtained, evidence of those who saw the will being
executed or any other evidence of due execution will be called.

The Authentication of Documents Act, Chapter 75 of the Laws of Zambia outlines the
requirements for authenticating documents that are executed outside Zambia.

12.7 Presumptions relating to documents

There are a number of presumptions of law relating to documentary evidence that make help make
the production of this kind of evidence efficient. Section 7 of the Evidence Act provides for a
presumption of due attestation in relation to documents that are not less than 20 years. This is
provided that they are produced from proper custody. The presumption is justified on grounds that
there may be practical difficulties in proving handwriting of a document that is very old. What
amounts to proper custody will vary from case to case. Read Section 7 of the Evidence Act, Cap
43 of the laws of Zambia. Another important presumption is the presumption that a document was
executed on the date which it bears. Alterations in a deed are presumed to have been before
execution; otherwise the entire document would be void. This presumption does not apply to wills
because alterations made after execution will not invalidate the entire will and can be validated.

12.8 Admissibility of extrinsic evidence

Documents are admissible as exclusive evidence of things stated in them. Flowing from this rule,
evidence outside the document is generally not admissible when, if accepted, it will have the effect
of varying, contradicting, and constituting a transaction required by law to be in writing or a

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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 transactions
relating to land for instance, the rule is stricter than in a contract for sale of gods.

Other exceptions to the rule on extrinsic evidence include:

1. Evidence to question validity or effectiveness of a contract or document
2. Evidence to prove consideration of a contract. Absence of consideration invalidates a
simple contract in writing. This is usually proved by extrinsic evidence.
3. Evidence admitted to establish the real nature of the transaction

4. Capacity of parties: whether one signs as landlord, tenant or agent.

5. Collateral undertakings also known as contracts that are partially oral and partially written.
It includes oral warrantees as to condition and quality.

6. Aids to interpretation.

Unit Activity

i. Give three reasons why primary evidence is a requirement for the adducing evidence
in court.
ii. Give examples of the special documents that require proof of attestation?
iii. What can be considered as the presumptions relating to a document?
iv. What is extrinsic evidence? Give a reason why it is not admissible to court?

12.10 Unit Summary

The focus of this chapter was on documentary evidence. Documents are admissible as exclusive
evidence of the contents that are stated therein. In order to adduce documentary evidence into
court, the best evidence rule is generally considered. This rule means that primary documentary
evidence must be adduced. That is a person adducing documentary evidence must admit it from
good custody and it must incorruptible, in order for it to be admissible. However, they are some

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exceptions to this rule. These were substantially espoused in this unit. Also, there lies a
presumption that documents 20 years and older may be difficult for its contents to be proved,
therefore, other ways to probe its truth proof may be used. As a general rule, extrinsic evidence
will not be admissible to court. However, there are number of exceptions in relation to the
admissibility of extrinsic evidence that have been espoused in this unit. Additionally, a number of
cases were highlighted to fully understand the legal principles in line with this subject.

12.11 References and recommended readings

Evidence Act, Chapter 43 of the laws of Zambia.

Bank of Australia v Palmer [1897] AC 540

Cross, Rupert and Collin Tapper. Cross on Evidence, 6th ed. London:

Butterworth & co Publishers Ltd, 1985

Keane, Adrian. The Modern Law of Evidence, 6th ed. New York: Oxford

University Press, 2006

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 UNIT 13

PROOF OF FACTS WITHOUT EVIDENCE

13.0 Introduction
Welcome to the final unit of this module. In the previous unit you were introduced to documentary
evidence. In this unit, you will learn that the law permits the court to make findings of some facts
without requiring evidence to be adduced on them. The particular principles that you will study in
this unit are judicial notice and presumptions. As a starting point, we noted earlier that facts in
issue and relevant facts are proved only by producing evidence. This rule of proof by evidence is
however not absolute as there are certain instances when a party does not need to adduce evidence
to prove the facts in issue or relevant facts. The exceptions include; facts on which presumptions
of law or fact operate, facts judicially noticed and facts formally admitted (under the doctrine of
estoppel). You need atleast120 minutes to successfully study this unit.

13.1 Unit Aim

The aims of this unit are to:
i. Introduce you to presumptions and their effect on the obligation to adduce evidence in a
trial.
ii. Introduce the concept of Judicial notice and what it entails.
iii. Discuss the concept of estoppel in the context of the law of evidence.

13.2 Unit Objectives

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

1. Explain judicial notice and instances where courts can take judicial notice of facts.

2. Explain the presumptions and their effect on parties’ obligations to adduce evidence.

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Activity
Answer the following questions:
i. What facts require to be proved by evidence in a court of law?
ii. Explain what is meant a burden of proof and what is required to discharge the burden in both
civil and criminal matters?
iii. In your own words, what are presumptions?
iv. What matters can a court take judicial notice of?

Congratulation on attempting to answer the above questions. A number of the questions asked you
to relate what you have already studied about evidence and the need for proof. Let us now look at
exceptions to the absolute requirement for proof of facts n issue and relevant facts.

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

13.4 .1 Rebuttable Presumptions of Law

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

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

13.4.2 Irrebuttable Presumptions of Law

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

13.4.3 Presumptions of Fact

These are sometimes referred to as circumstantial evidence. They are logical inferences that are
drawn by the court once a party has proved a basic fact and there is no evidence to the contrary.
Their strength varies from case to case. Unlike presumptions of law, they do not place a burden of
proof, legal or evidential, on the other party. However, if a court makes a finding against a
presumed fact in civil cases, that could form basis for reversal of the decision on appeal.
For example, in Mwansa Mushala and others v The People (1978) Z.R. 58 (S.C.), the failure
by the police to take fingerprints from the third appellant alleged to have been driving the car,
leads to the presumption in his favour that his fingerprints were not on or in that car and therefore
that he may not have been the one who was driving that car.

13.4.4 Differences between Presumptions of Law and Presumptions of Fact

The following are the major differences between presumptions of law and fact:

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 1. Presumptions of law draw their force from law while presumptions of fact derive from
logic.
2. Presumptions of law apply to conditions which are fixed and uniform while presumptions
of fact apply to individual cases and conditions which are inconsistent and fluctuating.
3. Presumptions of law are conclusive in the absence of evidence to the contrary while
presumptions of fact may sometimes be disregarded.

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

13.5 Judicial notice

In a legal system such as ours, each party to proceedings must prove the facts in issue by bringing
evidence in support of a fact in order to satisfy the burden of proof to a required standard. The
court will not normally make a finding of fact in the absence evidence in support of that finding.
Judicial notice declares that a court can make a finding of fact even though no evidence has been
given to support it. The power is limited to certain facts which are so notorious and of a general
nature or where statute declares that certain facts must be taken judicial notice of. The court can
take judicial notice of a fact with or without an inquiry.

13.5.1 Facts judicially noticed without inquiry

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

13.5.2 Facts judicially noticed after inquiry

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

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13.5.3 Statutory provisions
Statute provides certain facts that a court can take judicial notice of. For example, the court will
take judicial notice of the signature of certain officials such as the DPP (see section 84 of the
Criminal Procedure Code, Cap 88 of the Laws of Zambia).

13.5.4 Personal knowledge

Judges can only take judicial notice of personal knowledge which is of a general nature and public
notoriety. The judge is not entitled to collect evidence of facts privately no matter how interested
the judge is in the subject of inquiry. The rationale for judicial notice is to provide expediency to
the trial process. Secondly, there are matters that are too notorious that requiring proof thereof
would end to insult the intelligence of the judge. In Gastove Kapata V The People (1984) Z.R.
47 (S.C.), the Supreme court stated, in reference to personal knowledge, that:
“Insofar as the utilisation of personal knowledge is concerned, the general rule is that a
judge may, in arriving at his decision in a particular case, act on his personal knowledge of
facts of a general nature, that is, notorious facts relevant to the case.” Per Silungwe CJ

Another authority on the subject is Mutambo and Five Others V The People (1965) Z.R. 15
(C.A.), where the court stated that: Apart from personal experiences of the judges in the course of
their duties one may note and apply to this country the view expressed in this same case R. v
Aspinall, 13 Cox's C.C., 563 at 571 was cited stating - 'But judges are entitled and bound to take
judicial notice of that which is the common knowledge of the great majority of mankind....' The
same case continued to state that ‘Although the learned trial Judge took a view of their evidence
to be mentioned in a moment, there lies in the record also the evidence of the appellants
themselves, which evidence was considered, and which sets out their views as to a threat from
members of the UNIP and as to their beliefs that the police were making war upon them…’

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

13.6 Estoppel
Estoppel is rule that precludes a party from denying the existence of some state of facts which
he/she has formerly asserted or admitted. These admissions are distinct from informal admissions
that we earlier discussed to be an exception to the hearsay rule. In civil cases, formal admissions
are in form of pleadings. They may also be admitted by default where a party does not traverse an

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averment in a statement of claim when so required. A party who does not admit certain undisputed
facts may be condemned to pay costs if a judgment is made on application.

A fact that is formerly admitted ceases to be in issue. Evidence on that fact is not necessary nor is
it admissible. When an estoppel binds a party to litigation he/she is prevented from relying on or
denying the existence of certain facts.
To this extent, estoppels are regarded as something that makes it unnecessary for production of
evidence. The whole notion of estoppel is primarily important in civil cases.

In criminal matters, formal admissions are done in court e.g. a plea of guilt that is not withdrawn
by the accused. It also extends to facts established by order or decree of the court and cannot be
overturned in subsequent proceedings. In criminal cases, the rule against double jeopardy plays an
equivalent role as estoppel in civil cases. The doctrines of autrefois acquit and autrefois convict
provide that a person who has been tried by a competent court and has been acquitted or convicted
cannot be tried of the same charges again.

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

13.6.1 Estoppel by record

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

Flowing from the above, judgments are binding and no evidence may be admitted to contradict or
vary them other than through the formal processes of law. A judgment of a competent court is
conclusive against all persons of the existence of the state of things. an example is that of a
judgment of a criminal court acquitting an accused person is conclusive evidence of the acquittal
in a case of malicious prosecution. When an issue has been decided upon by a court of competent
jurisdiction, neither party is allowed to adduce evidence on the issue.

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13.6.2 Estoppel by Deed
This is more of a subject of contract and is a special kind of admission. It is more useful in
construction of contracts. When a person enters into a certain engagement by deed, he/she is not
permitted to deny the facts under such deed. The exceptions are where there is fraud, duress,
infancy or any other illegality.

13.6.3 Estoppel by conduct

This is yet another principle on interpretation of contracts. A party that acts or makes a statement
on which the other party relies believing that a certain state of affairs exists, are stopped from
disputing the existence of the state of affairs. There must however, be a duty of care on the recipient
of the statement in the face of negligence or the conduct consists wholly of omissions. In order to
be effective, the following should be satisfied:
1. Estoppel must relate to the existing fact or state of facts.
2. It must be unambiguous
3. The result must be legal or it would not be binding if giving effect to it would be something
prohibited by law.

Unit Activity

Reflect and answer the following:

i. From your legal knowledge you have accumulated so far, give three examples of a
rebuttable presumption, stating who the burden of proof falls upon in each instance.
ii. What do you think is the basis of an irrebuttable presumption? Other the example
expressly stated in text, give examples of these types of presumptions.
iii. The presumption of fact and circumstantial evidence are interlinked. What is your
reasoning on this inference?
iv. What is the basis for the court taking into account notorious facts?
v. What is the importance of the rule of estoppel?
vi. What is the difference between the rule of estoppel in criminal matters and civil
matters?
vii. State 5 differences between the presumption of law and fact

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13.8 Unit Summary
Providing proof of evidence is not absolute; there are certain instances when a party does not need
to adduce evidence to prove the facts in issue or relevant facts. This unit espoused on the principles
of judicial notice, presumptions and estoppel. Presumptions can be defined as the assumed position
of the state of affairs existing as a matter of law or fact. There are three conventional classifications
of presumptions namely, rebuttable presumptions of law, irrebuttable presumptions of law and
presumptions of fact. This unit established that there are certain facts which are so notorious and
of a general nature that the court can make a finding of fact without evidence been given to in
support, this is called judicial notice. The rule of estoppel is considered to be principle that
precludes a party from denying the existence of some facts which a person has formerly asserted
or admitted to. This rule of estoppel is divided into estoppel by record and estoppel by deed.
Additionally, this unit also outlined a number of cases in order to fully understand the legal
principles on the subject of presumptions.

13.9 References and recommended readings

Penal Code, Chapter 87 of the Laws of Zambia, section 14

Lands and Deeds Registry Act, Chapter 185 of the laws of Zambia, section 33 Gastove Kapata V
The People (1984) Z.R. 47 (S.C.)

Kazembe & Zebron v The People (1969) Z.R. 22

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

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

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

Cross, Rupert and Collin Tapper. Cross on Evidence, 6th ed. London:

Butterworth & co Publishers Ltd, 1985

Keane, Adrian. The Modern Law of Evidence, 6th ed. New York: Oxford

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University Press, 2006

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MODULE SUMMARY
This module was developed for students under the Institute of Distance Education by the
University of Zambia taking the Law of Evidence. The Law of Evidence is defined as the branch
of law that looks at the information that is presented to court in order to support one’s claim and
to prove facts in issue. This module outlined the sources of the law of Evidence as well as the facts
open to prove or disprove. The module outlined the classes, relevance, admissibility and the weight
of evidence. The aspect of the burden of proof and standard of proof were also substantially
established by unit 4. Other aspects advanced by this module were that of the competence,
compellability and privilege of witnesses under unit 5 as well as the course of giving evidence in
court was established under unit 6. The concept of corroboration and care warnings were also
postulated by this syllabus under unit 7. Further unit 8 looked into evidence of character and
disposition. In addition, opinion, the rule against hearsay, confessions and documentary evidence
were also considered by this module, in the subsequent units. Finally, the proof of facts without
evidence concluded the module under unit 13 of this program of studies. Having successfully
studied this module, you should be able to identify relevant evidence that is admissible in court as
well as object to evidence that offends rules of practice.

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