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Tutorial 1

Mr. Banda was charged with defilement of his 12-year-old niece, Kapata, but was acquitted due to lack of corroborated evidence, as the judge found her testimony discredited. The prosecution's attempts to introduce photographic evidence were blocked, and Kapata's credibility was undermined by her admission of hallucinations caused by medication. Additional testimonies from his wife and an employee suggested Mr. Banda's promiscuity, but ultimately, the prosecution failed to establish a strong case against him.

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7 views2 pages

Tutorial 1

Mr. Banda was charged with defilement of his 12-year-old niece, Kapata, but was acquitted due to lack of corroborated evidence, as the judge found her testimony discredited. The prosecution's attempts to introduce photographic evidence were blocked, and Kapata's credibility was undermined by her admission of hallucinations caused by medication. Additional testimonies from his wife and an employee suggested Mr. Banda's promiscuity, but ultimately, the prosecution failed to establish a strong case against him.

Uploaded by

thoko
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Question one

On the 12th of December 2013 Mr Banda was charged with three counts of defilement
contrary to s138 of the Penal Code cap 87 of the Laws of Zambia. Mr Banda is a
director of Banda Limited, a company limited by shares incorporated under the
Companies act cap 388 of the laws of Zambia.

Mr Banda and his wife Jenna are currently separated; the order for Judicial Separation
was made on the 13th of May 2013.

The statement of facts indicated that on diverse dates unknown but between the 10 th
of June and the 15th of November, Mr Banda repeatedly defiled his niece Kapata who
was 12 at the time in question.

At trial the prosecution sought to adduce as evidence, a photograph of Kapata that


was found in Mr Banda’s bedroom, the defence Lawyer Mr Phiri objected stating that
the evidence lacked relevance. The judge sustained the objection and the prosecution
were not permitted to adduce the evidence.

The prosecution called Kapata as a witness, on the date of the trial Kapata was 13
years old. Immediately Kapata walked into the witness box the prosecution proceeded
to examine her. Kapata testified to the effect that her Uncle entered her room on
various dates and had carnal knowledge of her. She stated to the court that he often
promised to give her K200 after every encounter. During cross examination Kapata
changed her statement a couple of times, she further admitted to the fact that at the
time in question she was on medication of which side effects caused her to hallucinate
in which case she could not distinguish between her dreams and reality.

The prosecution called Jenna as their second witness, she testified that Mr Banda and
she had been experiencing problems in their marriage, she told the court that she had
a miscarriage in July 2010 and since that date Mr Banda persistently refused to be
intimate with her. She told the court that their marriage was a mere façade and that is
why she decided to file for Judicial Separation in 2013.

The prosecution further call Monica an employee at Banda Ltd. Monica testified that
she and Mr Banda had an on-going affair until the date that his niece Kapata moved
into the house. Monica further told the court that Mr Banda was a promiscuous man
and was seen on many occasions with girls who looked to be below the age of 16.

The prosecution further call Mr Kapaso, a public prosecutor who testified to the effect
that Mr Kapaso was charged with one count of defilement in 2009 although the
charges were subsequently dropped. Mr Phiri objected to the testimony on grounds of
relevance, the judge dismissed the objection stating that it was in the discretion of the
bench to admit any type of evidence.

At the close of the prosecution’s case the Judge stated that:


‘Section 206 of the Criminal Procedure Code provides that if at the close of the
evidence in support of the charge it appears to the court that a case is not made out
against the accused person sufficiently to require him to make a defence, the court
shall dismiss the case and shall forthwith acquit him.’ The Judge went on to state that
‘the evidence adduced by the prosecution has been discredited and by large I find that
the testimony given by Kapata is uncorroborated.’

Mr Banda was found with no case to answer and subsequently acquitted.

Critically analyse the evidential issues pertaining to the case

(40 Marks)

Question 2

“The judge has got a wide discretion to exclude relevant evidence”.

To what extent do you agree with the above statement?

Cite authority

(30 Marks)

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