1.

Introduction
Your approach at ZIALE is that of a problem solver. It's all about the practical. Try to approach
this course as a practical course. The challenge is applying the principals of law that you have
learnt to solve real life problems. Remember that the concepts don't change, the facts change
but the concepts don't. Pay attention to detail....express yourself correctly

What is evidence?
Evidence is the means employed for the purpose of proving an unknown or disputed
fact. It may be judicial or extra-judicial. Judicial evidence, is that which is used at trials or
tribunals before courts, judges, commissioners etc. extra-judicial evidence is that which
is used to satisfy privates persons that the facts requiring proof

2. Nature of Evidence
It is such that it is not confined to one thing. It can be a combination of a number of
things. The various evidence brought before court include:

• oral evidence: consists of statements made in court by witnesses whether they are
direct assertions of fact or assertions of hearsay and whatever category of
admissible facts they may concern. They may concern facts in issue, facts relevant
to the issue, facts relevant to the credibility of a witness or the admissibility of an item
of evidence. Simply put, oral evidence is what is said by a competent witness in
court.

In all things in evidence...understand the following:

• Relevance

• Custody

• Authenticity

• Competence

Have these in mind when looking at issues to do with evidence. These are the 4 pillars
of evidence.

The following are the forms of evidence brought before court:

Direct evidence
Consists either of the testimony of the witnesses who perceived the fact or, in the case
of documentary evidence, the production of the document that constitutes the fact. It is
the first thing the courts look for.

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Circumstantial evidence
This is evidence which, although not directly establishing the existence or non-existence
of the fact required to be proved, is admissible in order to enable the court to decide
whether the fact did or did not exist. The court will rely on evidence around the crime in
order to decide if the fact did or did not exist. In law, the fact to be proved is called
factum probandum. And the fact sought from logical inference is called facta probantia.

- David Zulu v The People (1977) ZR 151 SC: the appellant was convicted of a murder
of a woman in the course of a sexual assault; the injuries found on the body
suggested that she had struggled with her assailant. The appellant was found to have
scratches on the neck and chest. He explained in evidence that the scratches were
caused by flying pieces of iron as his place of work, an explanation which was not
rebutted. The trial court inferred that the scratches on the appellant were sustained
during the struggle with the deceased. Held:

- that it is a weakness peculiar to circumstantial evidence that by its very nature it is

not direct proof of a matter at issue but rather is proof of facts not in issue but
relevant to the fact in issue and from which an inference of the fact in issue may be
drawn.

- It is incumbent on a trial judge that he should guard against drawing wrong

inferences from the circumstantial evidence at his disposal before he can feel safe
to convict. The judge must be satisfied that the circumstantial evidence has been
taken out of the realm of conjecture so that it attains such a degree of cogency
which can permit only an inference of guilt.

- The appellants explanation was a logical one and was not rebutted, and it was
therefore an unwarranted inference that the scratches on the appellants body were
caused in the course of committing the offence at issue.

- Saidi Banda v The People (2015) Appeal no. 30, SC: the appellant was tried and
convicted of murder by the Lusaka High Court solely based on circumstantial
evidence. All the grounds of evidence snowballed into one key issue; whether or not a
conviction of the appellant based on circumstantial evidence in the present case, was
competent. Held:

- circumstantial evidence notwithstanding its weakness as we alluded to in David

Zulu case, is in many instances probably as good, is not even better than direct
evidence.

- Three tests to satisfy circumstantial evidence; (i) the circumstances from which the
inference of guilt is sought to be drawn, must be cogently and firmly established, (ii)
the circumstances taken cumulatively, should form a chain so complete that there is

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 no escape from the conclusion that, within all human possibility, the crime was
committed by the accused and none else.

- Read from p799 onwards

- Ruth Banda case currently in the HC.

Real evidence
These are independent species of evidences as their production calls upon the courts to
reach conclusions on the basis of their own perception and not that of the witnesses
directly or indirectly reporting to it. If a witness swears that he saw a knife and that it had
blood stains on it, the court is asked to assume that both statements are true.

Real evidence usually covers the production of material objects for inspection by the
judge. Evidence becomes good evidence when you substantiate it. Whatever type of
evidence it is.

Secondary evidence
In exceptional circumstances, the court will accept secondary evidence of real objects
rather than requiring their physical production. For example, photographs of aeroplanes
or trains, when the real thing cannot be brought in court. If an object is exchangeable,
replicas may be examined but must be identical in all relevant respects. Real evidence
may be used as a means of proving facts in issue. It may also be used in an endeavour
to establish relevant facts.

Appearance of persons
A persons physical characteristics are frequently included among the possible items of
real evidence. And these may often serve as a valuable means of proof. For instance,
the fact that the accused is left handed, tall, short, strong or weak, or has a distinct
voice, may render it less probable that he committed the crime charged. A physical
deformity such as a rapture may lead almost inevitably to the conclusion that a man is
not guilty of rape. And the resemblance of a child produced to the court bears to its
alleged father, may be some, although very weak evidence of parentage.

Demeanour of Witnesses
If a witness gives his evidence in a forthright way unperturbed by cross examination, the
court will no doubt be more disposed to believe him than would be the case with a
halting or shady witness.

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View
This is an observation undertaken out of court during the course of a trial. When that
which is shown to the court at the view, is something that might have been produced as
an exhibit, had it been convenient to do so, the court will go out to see that exhibit.

Chrismar Hotel v Cavmont Capital Insurance (2006): the basic facts are that the parties
entered into a contract of insurance for the insurance of the Plaintiff's fleet of buses and
also to indemnify the Plaintiff in the event of an accident, loss and/or damage to the
insured buses. After an accident, the plaintiff filed a claim with the defendant for
indemnification. The plaintiff's claim was denied by the defendant on the ground that the
bus was being driven by an unlicensed person. This is what triggered this action.

Tameshwar v R (1957) 2 ALLER 263: at the trial of two prisoners in British Guinea on
charges of robbery with aggravation. The jury requested a view of the scene of the
robbery and asked that five witnesses should attend. The view was held in the presence
of the accused, a superintendent of police, counsel for the prosecution and counsel for
one accused. The judge did not attend the view. Although there may be nothing wrong in
a simple view, viz, a view of something without witnesses being present, being taken
without the judge present, yet a view with witnessed demonstrating was part of the
evidence and of the trial and the absence of the judge was a defect which vitiated the
trial.

Karamat v Reginam (1956) 1 ALLER 415: in a criminal case, a view at which witnesses
give demonstrations, is part of the evidence. And according to fundamental principles of
fair trial, every piece of evidence given by a witness must be given in the presence if the
tribunal which tries the case; and the tribunal is not the jury alone, but the judge and jury.

Documentary Evidence
This simply means any evidence introduced at a trial in the form of documents. This
begs the question; what is a document? There appears to be no exact definition of a
document. But for present purposes, a document may be described as any substance in
which writing, figures or other symbols are marked. It is immaterial what substance is
used [R v Daye (1908) 2 KB 333: a document can be defined as everything that contains
the written or pictorial proof of something. It does not matter much of what the material is
made], [Evidence Act on the definition of document].

Civil Hearing
In a civil matter, the documents come with the bundle of documents all to be relied on.
The attorney will ask the witness to confirm the identification of the document.

Criminal Trial

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In criminal matters, documents are introduced through the witness identifying the
document by its features and thereafter, the prosecutor will say: may the document be
marked for identification purposes. The second step is the prosecutor asking the witness
what they want the document to be used for. The witness will say the document can be
used as part of his evidence.

Types of Documents
There are two types of documents; private documents and public documents.

Private Documents: these are documents that are not official, public or judicial. The
general rule is that a person relying on the words used in a document must produce
primary evidence of its contents. Typical example of primary evidence is:

(i) The original document

(ii) Copies of certain private documents required to be filed in court or other public
office eg a will filed to obtain probate. The probate is conclusive evidence of the
words of the will in respect of which the grant was made. McDonald v Evans
(1852) 11 CB 930.

Primary evidence rule does not apply where a party does not intend to rely on the
words used in a document or where a party does not seek to prove the contents of a
document. It is important to note that the primary evidence rule come into effect
whenever it is necessary to refer to the contents of a document. Clearly, the
intended use of a document will determine whether the primary evidence rule is
applicable or not.

Exceptions to the General Rule

(i) When the original is in the possession or control of the opponent of the party wishing
to rely on the document. What do you do if the other party refuses to produce a
document that you want to rely upon? In the Industrial Relations Act there is
provisions for applying for a notice to produce the documents. If they refuse the
notice to produce, you can subpoena.

(ii) When the document is in the possession of a stranger who lawfully refuses to
produce it even after the service of a subpoena upon him. A stranger would be
someone not involved in the case before the court. For example a diplomat who
enjoys diplomatic immunity.

(iii) When the original cannot be found after a search. Contents can be proved by
secondary evidence, however, you'll have to satisfy the court that all efforts have
been made to try and locate the original but you have not succeeded.

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(iv) When, though it is known to be in existence, the production of the original is, for
practical purposes, impossible to produce before curt.

Proof of Due Execution of Private Documents

Hand in hand with the rule requiring primary evidence of documents to be made, is
the requirement of proof of due execution. The general rule in both criminal and civil
proceedings is that a document is only admissible upon proof of due execution.

Handwriting and Signature

These may be proved by the following evidence

(a) Evidence of the writer: the person comes to court and says they are the author of the
document.

(b) Evidence of a witness who saw the document being signed.

(c) Evidence of a witness who has acquired a knowledge of the writing in some way.

(d) Comparison of the document in dispute with others proved to be genuine

(e) The admissions of the party against whom the document is tendered.

Public Documents: any other document that can be described as official, public or
judicial is a public document. The word public sometimes indicates public interest in the
subject matter of the document, sometimes public or official authority for the document
and sometimes the availability of the document to the public. However, generally a public
document should relate to a public matter, have been made in pursuance of the public
duty of a public officer and be available for consultation by members of the public.

Examples of the Usual Types of Public Documents

1. Legislative Documents: these include Acts of parliaments a legislative journals

2. Administrative documents: these may be divided into public registers and reports of
official inquiries. Example of registers include roll of legal Practitioners, engineers,
doctors etc.

Admissibility of Public Documents

Public documents are admissible as an exception to the rule against hearsay. The
statements of facts in them are admissible against the world at large, though subject to
rebuttal by the party against whom they are adduced. A public document is admissible to
prove the facts stated in it. The mode of proving a public document is often by an official
copy. The government gazette in Zambia, and any gazette of any commonwealth
country may be proved by the bare/mere production of the document in court (Order 5,
Rule 3 of the High Court Act). Similarly proclamations, acts of state- whether
legislative or executive, appointments and other official communications of the

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government appearing in any gazette may be proved by the production of such gazette
(Order 5, Rule 5 of the High Court Act).

Local Statutes in Relation to Documentary Evidence

1. Evidence Act: concentrate and read s3.

2. Evidence (Bankers Books) Act: look at sections 3,4 and 5

3. Authentication of Documents Act: this Act deals with matters as to how documents
can be executed outside Zambia, for use in Zambia (Lumus Agriculture Services Co
Ltd and Another v Gwembe Valley Development Ltd (in receivership) (1999) ZR 1 it
held: if a document in Zambia is authenticated under the Authentication of
Documents Act for use in Zambia (s2-4), then it is deemed to be valid for use in this
country and the opposite is true ie if it is not authenticated as per under the Act, it is
not valid for use in this country).

Facts to be Proved by Evidence

The essence of judicial evidence is the proof of certain facts ie

1. Facts in issue: these are facts a plaintiff must prove in order to establish his claim
and those facts, which the defendant must prove in order to establish a defence set
up by him, but only when the facts alleged by one party it not admitted by the other.

2. Facts relevant to the issue: these are facts which render probable the existence or
non existence of a fact in issue or some other relevant fact. For example, to prove
that the force used by John was no more than what was needed, Brian would be
proved to be abusive, refused to leave etc.

Extrinsic Evidence to Prove the Terms of a Document

The general rule is that a document is both exclusive and conclusive as evidence of its
terms. Extrinsic evidence is generally inadmissible;

a) To prove the contents of an agreement.

b) To add value or contradict the terms of a document.

c) To prove the meaning intended by the author of the document.

Extrinsic evidence may be admissible to show that a written contract or other transaction
embodied in a document is void for mistake or illegality or to show the nature of the
consideration or capacity of the signatory (Holmes Ltd v Bildwell Construction Co Ltd
(1973) ZLR 97).

Competence of Witnesses

In general a witness is competent if he meets four requirements:

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1. He must, with understanding, take oath or a substitute to an oath (affirm). What is
the legal basis in Zambia for administering oaths prior to taking evidence in court?

• s43 of the Subordinate Court Act: If, in any suit or matter, any person, whether
appearing in obedience to a summons or brought up under warrant, being required
to give evidence, refuses to take an oath, or to answer any question lawfully put to
him, or to produce any document in his possession or power, and does not excuse
his refusal to the satisfaction of a Subordinate Court, he shall, independently of any
other liability, be guilty of a contempt of court, and the court may, by warrant,
commit him to prison, without hard labour, there to remain for not more than one
month, unless he, in the meantime, consents to take an oath, or to answer duly, or
to produce any such document, as the case may be; and he shall also be liable to a
fine not exceeding seven hundred and fifty penalty units.

• A similar can be found in s28 of the High Court Act.

2. He must have personal knowledge about the subject of his testimony: in other words,
the witness must have perceived something with his senses that is relevant to the
case.

3. He must remember what he perceived.

4. He must be able to communicate what he perceived.

Attendance of Witnesses before Court

Generally and usually, a witness who is testifying on his own behalf, whether a plaintiff or
defendant, does so voluntarily. However a person testifying on behalf of another may do
so voluntarily or by compulsion. An unwilling witness can be compelled to appear before
court with a sub poena ad testificundum (subject to penalty if you do not come). This is
provided for in:
- s41 Sub Court Act
- S27 High Court Act
- S143 Criminal Procedure Code

3. Judicial Notice

Introduction
These are certain facts that are so notorious or clearly established that no formal
evidence therefore is required. In the case of Mwape v The People (1976) ZLR 160,
Silungwe CJ held that a court may, and in some cases must, take judicial notice of
various matters. It will for instance take judicial notice of matter of common knowledge

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which are so notorious that to need evidence in order to establish their existence may be
unnecessary and could as Phixon put it in his manual on the law of evidence, be an
insult to the intelligence to require evidence.

Hubert Shankombe v The People (1977) ZLR 127: the appellant was convicted of
unlawful wounding. At trial and on appeal the defence had an alibi, the appellant was in
Mindolo Township in Kitwe while the assault was in Kalulushi and that he could not have
covered the distance in the 5 hours. At trial both the Court and Counsel proceeded on
the assumption that the distance between Kalulushi and Mindoro township was known o
them, the judge taking judicial notice even thought he did not say so. Held on appeal: the
distance between clearly defined geographical locations such as a town is a matter of
which judicial notice can and should be taken.

Kaniki v Jairus (1967) ZLR 71: the application of a custom known as 'Akamutwe' which
relates to certain consequences which ensue upon the death of a spouse was
considered by the court. One question was whether the court could take judicial notice of
customary law. Held: the magistrate could not take judicial notice of African customary
law.

Fatyela v The People (1966) ZLR 135: compare it with Edward Jack Shamwana and 7
others v The People (1985) ZLR 41 it overruled the Fatyela case.

What will the court take Judicial Notice of?

• Matters of common knowledge

• Statutory instruments

• Acts and British Acts in terms of s6(1) of the Interpretation and General Provisions Act,
Cap 2

• Defence Act, s98(3), cap 106

4. Presumptions

Definition
A presumption may be defined as a conclusion which may or must be drawn until the
contrary is proved. Sometimes the presumption only arises if some certain basic fact is
first proved. Sometimes it arises in all cases without proof of any particular fact. The
effect of presumptions is to establish a fact without any complete proof. No evidence is
required of a fact which is presumed in a party's favour eg the presumption of
innocence.

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How do Presumptions Operate?
1. Once a presumption is countered, it disappears like a bursting bubble, thus if the
opponent establishes a prima facie case to disprove the presumed fact, the
presumption disappears and the case is determined on the evidence before court
without reference to the presumption. This is commonly called the presumption
Thayer Wigmore doctrine.

2. Proof of particular facts imposes on the opponent, the legal burden of disproving the
presumed facts and thus the court must make finding that the presumed fact is true,
unless sufficient rebutting evidence is adduced. If sufficient evidence to rebut is
adduced, the court must find the presumption to be untrue.

Irrebuttable presumptions of Law (Conclusive Presumptions)

It is important to note that these are not presumptions in the general sense but are
rather, rules of substantive law. No evidence is admissible to rebut them except proof
that the basic facts underlying and giving rise to the presumption are not true. For
example, a male person under the age of twelve is presumed to be incapable of having
carnal knowledge as provided under s14(3) of The Penal Code. A characteristic of a true
presumption, is that it is subject to rebuttal.

1. Presumptions not Based Upon Proof of any Basic fact

a) Presumption of innocence

b) Presumption of innocence in the case of a child between the age of 8 and 12.
Such a child is dolly incapax. This presumption is rebuttable by proof of
mischievous discretion ie the knowledge that he was doing something wrong

c) Presumption of sanity: every person accused of a crime is presumed to be sane

until the contrary is proved s11 of Penal Code. The operation of this presumption
is to cast the burden on the prisoner or accused to show that he is not as fully
responsible of his acts as a normal person. This presumption equally operates in
civil cases.

2. Presumptions Depending Upon Proof of Basic Facts

In many cases, upon proof of basic facts, the law prescribes what other facts shall be
inferred in the absence of further evidence. In other cases, upon proof of a basic fact,
the law allows, but does not require other facts to be inferred in the absence of further
evidence. For instance,

(i) Presumption of Marriage: a prima facie presumption in favour of the validity of a

marriage is raised upon proof of either of two sets of circumstances;

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 a) that the parties went through an apparently regular ceremony of marriage and
afterwards lived together as man and wife;

b) that the parties cohabited and were treated as married by those who knew them.

(ii) Presumption of Legitimacy: it is presumed that proved to have been born during
lawful wedlock or during the period of gestation after its termination. This
presumption can only be displaced by string distinct satisfactory and conclusive
evidence that such an intercourse took place between a wife and her husband at any
time when, by such intercourse, the husband could by the laws of nature, be the
father of such a child.

(iii) Presumption of Death: this presumption will be made of a person if he is missing for
a continuous period of not less than 7 years. To prove this presumption, one has to
show that,

(a) There are persons who are likely to have heard of that person during that period

(b) That these persons didn't hear from him

(c) All due enquiries have been made in the circumstances

5. Corroboration

Corroboration as a word means to support, confirm or strengthen. It is independent

evidence which supports the evidence of a witness in a material particular. Nsofu v The
People (1973) ZR 287: the appellant was convicted on three counts of defilement. The
provision to s138 of the Penal Code was not explained to him. There was certain
evidence which it was argued was corroborative of the evidence of the three girls but
which was not conclusive in itself. Held:

(i) Corroboration must not be equated with independent proof; it is not evidence which
needs to be conclusive in itself.

(ii) Corroboration is independent evidence which tends to confirm that the witness is
telling the truth when she says that the offence was committed and that it was the
accused who committed it.

(iii) Where the evidence of a witness requires to be corroborative it is nonetheless the

evidence of the witness in which the conviction is based, the corroborative evidence
serves to satisfy the court that it is safe to rely on that of the witness.

Corroboration is credible evidence which is both relevant and admissible from an

independent source which tends to support or confirm a credible evidence which too has

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to be relevant and admissible that has been given or is yet to be given before a court
and that it implicates the accused who has committed a crime. Shamwana and Others v
The People (1985) ZR 41; R v Baskerville (1916) 2 KB 658 at p678: we hold that
evidence in corroboration must be independent testimony which affects the accused by
connecting or intending to connect him to the crime. In other words, it must be evidence
that implicates him which confirms in particular not only the evidence that the crime has
been committed but also that the accused did it.

The evidence produced for corroboration must be relevant and admissible for it to
support the evidence to be corroborated. Any evidence that is not relevant and
admissible will not corroborate.

Corroboration demanded by Statute

Instances where corroboration is required include

(i) Perjury: according to s107 PC a person can not be convicted of perjury solely on the
evidence of one witness on the falsity of any statement alleged to be false

(ii) Procuration: in the PC, in s140 one cannot be convicted of procuration unless there
is corroborative evidence to that effect

(iii) Evidence of a child under s122(1) Juveniles Act: unsworn evidence of a child
needs to be corroborated

(iv) Affiliation Proceedings: the evidence of a mother as to the putative father requires
corroboration (Legitimacy Act, cap 214)

In all these cases, lack of corroboration could be fatal.

Cases where Corroboration Warning is Necessary

1. Sexual Offences: it is a well established rule of law that in cases involving sexual
offences, the court is required to warn itself of the dangers of convicting on the
uncorroborated evidence of the complainant. This is because, by nature of the
offence, complainants are sometimes motivated by spite, sexual frustration or
unpredictable emotional responses. Also because defending an allegation
concerning a sexual offence is hardly as easy as making the allegation. Offences
such as indecent assault, often leave no visible traces. In rape cases, the alleged act
of sexual intercourse by the accused and the question of consent by the complainant
sometimes depends entirely upon the word often victim as against that of the
accused. Ackim Zimba v The People (1980) ZR 259: the appellant was convicted of
rape. On appeal the court considered whether the fact that the complainant was
crying when she was seen by the independent witness, could amount to

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 corroboration. Held: it is necessary for the trial court to warn itself that evidence of
distress at the time of the making of the complaint may not be enough to amount to
corroboration as it may well be simulated; Katebe v The People (1975) ZR 13. The
magistrate warned himself carefully of the danger of convicting in the uncorroborated
evidence of the complainant. However, he believed her evidence and convicted in
spite of the absence of corroboration. Held: if there are special and compelling
grounds, it is competent to convict on the uncorroborated testimony of the
prosecutrix. Question to consider: what about where evidence of corroboration exists
and the court does not warn itself of the dangers of convicting without corroboration,
can that conviction be held on appeal or will it be overturned. Read Emmanuel Phiri
v The People (1982) ZR 77: in that case held a conviction may be upheld in a proper
case notwithstanding that no warning as to corroboration has been given if there in
fact exists in the case corroboration or that something more as excludes the dangers
referred to.

2. Evidence of Accomplices: the court is under a legal duty or obligation to warn itself
that although it may convict on the evidence of an accomplice, it is dangerous to do
so unless it is corroborated. Look at Machobane v The People (1972) ZR 101; the
appellant was convicted in the HC of the offence of stock theft. The material
evidence was based on the testimony of the appellant's brother in whose kraal were
found cattle which belonged to the complainant. Held: while a conviction on the
uncorroborated evidence of an accomplice is competent as a strict matter of law, the
danger of such conviction is a rule of practice which has become virtually equivalent
to a rule of law, and an accused should not be convicted on the uncorroborated
testimony of a witness with a possible interest unless there are some special and
compelling grounds; Muhango v The People (1975) ZR 275;

3. Sworn Evidence of Children: the court has to warn itself when convicting on
uncorroborated evidence of children.

6. Character Evidence

Osborne's concise law dictionary defines character evidence as evidence relating to the
good/bad character of a witness. It may also mean the reputation of a witness. But in a
few cases reputation may bear little relation to true character. What this means is that in
practice, it is not always possible to confine character evidence to reputation. In different
circumstances, evidence affecting a party's character may relate to reputation or to
character in a wider sense. The character of a witness is certainly not confined to his
reputation. Both his conduct and any convictions recorded against him may be relevant
when his credit is attacked.

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The Relevance of Character Evidence
1. The law assumes that there is a link between character and credibility. A person's
character can therefore influence a court's decision.

2. Character evidence helps the court to gage the credibility of a witness.

3. On the side of an accused, good character, if adduced will seek to convince the court
that the accused is unlikely to have committed the offence because it is not in his
disposition or reputation. On the other hand, evidence of bad character will, if
adduced in court, try to convince the court that it is in the accused's character to
commit such a crime.

The general rule is however, evidence of character is excluded in court. This includes
evidence of previous conviction. That comes in as evidence when sentencing.

Characters of the Parties

The character of parties to litigation is often irrelevant and inadmissible. See Scott v
Samson (1882) 8 KB 491.

(a) Character of the Defendant: the character of the defendant in civil proceedings is not
usually in issue or relevant. The fact that the defendant in a civil action has been
convicted of a criminal offence cannot normally be adduced as evidence for the
plaintiff. Look up Hollington v Hewthorn and Co Ltd (1943) 1 KB 587.

(b) Character of an accused in a criminal matter: the character of a person accused of a

crime may sometimes be introduced at his trial by either side. If character is
restricted to reputation, the first step may be taken by the defence who assert the
good character of the accused but then the prosecution may attempt to prove his
bad character. When an accused person calls witnesses to testify to his reputation,
this gives the right to the prosecution to give evidence as to the accused's bad
reputation.

Types of Character Evidence

There are two types of character evidence that are relevant to character evidence.
These are good and bad character evidence

Good Character Evidence

Evidence of good character may be given by witnesses for the prosecution in cross
examination or by witnesses called by the defence or by the accused. R v Rowton
(1865) 34 LJMC 57 pg 157 in the book (Ndulo on evidence) CJ Hobbs judgment.

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Bad Character Evidence
Subject to numerous exceptions, it is not permissible for the prosecution to adduce
evidence showing or tending to show the bad character of the accused. This rule covers
evidence of previous convictions. R v Butter Wasser (1948) 1 KB 4.

Character of Witnesses
Bad character is admissible on the ground that the statement on oath of a person of bad
character should not be believed.

7. Hearsay Evidence

Oral or written statements made by persons who do not actually testify in a courtroom.
Evidence of a statement made by a person who is not called as a witness, may or may
not be hearsay. It is hearsay and inadmissible when the object of the evidence is to
establish the truth of what is contained in the statement. It is not hearsay and is
admissible when it is proposed to establish by the evidence, not the truth of the
statement but the fact that it was made. The purpose for which the evidence is tendered
will determine its admissibility. The moment the person is talking about things he did not
himself see, you rise and object.

Many reasons exist as to why hearsay is not admissible, but the essential ones are:

1. That there was no opportunity for his opponent to test his statement by cross
examination.

2. That the original author was not on oath when he made the statement.

3. The court had no opportunity to examine his demeanour when it was made. The
statement could have been made in jocular vein. Mutambo v The People (1965) ZR
15:

Exceptions to the Hearsay Rule

1. S3 Evidence Act

2. Res gestae (The People v John Nguni). There are 3 conditions for admissibility of res
gestae (the 3 must be met):

i. An occurrence sufficiently startling to produce a spontaneous and unreflective

statement

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 ii. An absence of time to fabricate

iii. The statement made must relate to the circumstances of the occupancy.

8. Trial within a Trial

In what Instances is a Trial Within a Trial held

Usually a trial within a trial is held when the court is called upon to determine the
admissibility or otherwise of a confession statement. A confessions statement is an
incriminatory statement by an accused person and therefore the court is called upon to
determine whether that confession statement should be admitted into evidence. The
main issue firstly for determination is whether the statement was obtained or was given
by the accused voluntarily or not (R v John Kayata (1963-64) NRLR 84). When the issue
of voluntariness arises, the court will halt the main trial and will conduct a trial within a
trial (Ndakala v The People (1980) ZR 180; Zulu v The People (1983) ZR 326). The
burden of proving that the confession was made voluntarily is on the prosecution and the
trial within a trial should be conducted at any time the issue of the voluntariness of the
confession statement is made even after the prosecution has closed its case.

9. Opinion Evidence

An opinion is a view, a judgment, or an appraisal formed in the mind about a particular

matter. Opinion evidence is therefore evidence of what the witness thinks, believes or
infers in regards to the facts in dispute as distinguished from personal knowledge of the
facts themselves. It is important to distinguish between facts and opinions. A witness'
views of what another would do in a certain circumstance is a matter of opinion. But his
view of what he himself would do, is a matter of fact. Statements concerning speed,
temperature or the identity of persons, handwriting, are however indistinguishable
between fact and opinion. The general rule is that opinion evidence is inadmissible. This
is because:

i. It could be hearsay evidence.

ii. If the witness is giving a false opinion, he cannot be subsequently prosecuted for
perjury.

iii. Opinions are irrelevant because they lack adequate probative force or value.

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The law however recognises that so far as matters calling for special knowledge or skills
are concerned, judges are not necessarily equipped to draw inferences from facts stated
by witnesses and therefore there are special category of witnesses that may be allowed
to render opinion. And these are expert witnesses. An expert is a person having skill or
experience or particular knowledge on a certain subject or in certain professions. He
may be a person who is so qualified by reason of his training or experience. The opinion
given by an expert is just an opinion, it should not be conclusive. The experience should
be linked to the issue at hand. Chuba v The People (1976) ZR 272; Sithole v State
Lotteries Board (1975) ZR 106; Order 38, Rule 38 of the Whitebook.

10. Illegally Obtained Evidence

This is evidence that is obtained without compliance or following the provisions of the
law. It is admissible as long as it relates to the issue that is before court (see Liswaniso v
The People (1976) ZR 277: apart from the rule of law relating to admissibility of
involuntary statements or confessions, evidence illegally obtained eg as a result of an
illegal search and seizure or as a result of an inadmissible confession is, if relevant,
admissible on the ground that such evidence is a fact regardless of whether or not it
violates a provision of the constitution). Liswaniso Sitali and Others v Mopani Copper
Mines: the court said that the rule governing admissibility of illegally or unfairly obtained
evidence in civil cases is the same as that in criminal cases, namely, the relevant
evidence is admissible regardless of the manner it was obtained.

11. Privilege

Simply stated, privileged information is a confidential communication between properly

related parties made during the course of the relationship. The term communication is
broadly defined for purposes of privilege and extends to matters conveyed orally and in
a written form. Confidentiality entails two elements, ie physical privacy and an intention
on the part of the holder of the privilege to maintain secrecy.

Professional Privilege
Legal advice privilege protects confidential communication between the client and lawyer
in the context of a professional legal relationship for the purposes of giving or receiving
legal advice. Professional privilege also extends to litigation privilege which protects
information prepared or gathered by the lawyer in preparation for litigation. A client

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cannot be compelled and a lawyer will not be, without the consent of the client, to
disclose communications or to produce documents passing between them in
professional confidence. When litigation is pending, communication between the lawyer
and prospective witnesses are privileged as are reports by experts enabling the lawyer
to decide how a claim should be pursued or resisted.

3 Rivers District Council and Others v Governor and Company of the Bank of England
(2005) 2 All ER 948:

Mpongwe Farms v Dar Farms and Others (2013) ZR Vol 1, 40: issue had to do with a
privileged document communicated to a third party as the lawyer was advising the client.
The third party produced the document and an application was made as to whether the
third party could rely on that information.

Wella v Le Ma (1881):

12. Presentation of the Case

Open Court Matters

An open court matter will usually be heard in open court. It is irrelevant that an open
court matter is heard in chambers. Such a matter remains an open court matter. In an
open court matter, you have an automatic right to appeal. A matter in chambers, you
need leave of the court to appeal. If a matter is commenced by writ, it is an open court
matter and after judgement you can file in an appeal within 30 days.

The Right to Begin

The plaintiff, prosecutor or their respective advocates open every case. In criminal
cases, where there's a plea of not guilty, the state always has the right to begin calling
witnesses because there must be some issue upon which the evidential burden of proof
is born by the prosecution. In civil cases, the plaintiff has the right to begin if he bares
the evidential burden in any issue raised by the pleadings including quantum of
damages. And so it is not always automatic that the plaintiff will begin. (Mercer v Whall
(1845) 5 QB 447)

Examination in Chief
You start with asking their name, age, residential address, current occupation. This is
where the plaintiff, defendant, prosecutor or accused, as the case may be offers direct
evidence after being sworn or affirmed. The object of examination in chief is to obtain

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testimony in support of your version of the facts in issue or facts relevant to the issue, for
which the party calling the witness contends.

Leading Questions

A leading question is one which

(a) suggests the answer desired; or

(b) Assumes the existence of disputed facts

You can't assume the establishment of a fact. Ask questions that build towards the fact.

Exceptions to leading questions include:

• Formal introductory part of testimony.

• Identification of items during trial after proper foundation has been laid

Refreshing Memory

A witness may not give evidence by reference to anything in the nature of a prepared
statement. A witness however, may refresh his memory by any writing made or verified
by himself concerning and contemporaneously with the facts to which he testifies.

Cross Examination
When a witness has been intentionally called and sworn by either party, the opposite
party has a right to cross examine. But a witness called merely to produce a document
or to be identified. If a witness dies after examination in chief but before cross
examination, his evidence will be admissible although its weight may be impaired.

Cross examination is a valuable and powerful weapon for the purposes of testing the
veracity of the witness and the accuracy and completeness of his story. It is entrusted to
the hands of counsel in the confidence that it will be used with discretion and with due
regard to the assistance rendered by it to the court not forgetting at the same time, the
burden that is imposed on the witness. It must display a due measure of curtesy to the
witness which is by no means inconsistent with a skilful yet powerful cross examination.
Hamworth MR cited by Sankey IC in Mechanical etc Inventions v Austin (1935) AC 346
at p349

It is not confined to matters proved. Leading questions are not only allowed but
encouraged during a cross examination. The object of cross examination is:

i. To weaken, qualify or destroy the case of the opponent; and

ii. To establish the party's own case by means of his opponent's witnesses

Does the rule against hearsay apply to cross examination?

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Yes it applies as much in examination in chief as it does in cross examination.

Compound Question

Several questions rolled into one. Rather there should be one question at a time.

Re-examination
Whenever there has been cross examination even upon admissible matters, the right to
re-examine exists. This must however be confined to an explanation on matters arising
in cross examination and no new facts may be introduced. And so where parts of the
conversation had been elicited on cross examination, distinct matters though occurring
in the same conversation, may be rejected on re-examination. This rule prevents a party
from introducing inadmissible evidence on the pretext of dealing with matters raised by
the cross examination. The rules in examination in chief are the same rules in re-
examination.

Electronics Documents
The Electronic Communications Act was enacted to solve the problem of producing
computer generated documents in court. For the purpose of this class, we will mainly
deal with Part II of the Act. S2 defines a data message as a message that is generated
sent, received or stored by electronic means. Emails are included in data messages

S4 (1) provides that a data message is given legal efficacy. S8 provides that if any legal
proceeding, a data message will not be excluded or the admissibility of the data
message will not be denied on the mere ground that it is a data message. This section
produces another exception to producing a document that is not primary evidence. S8(1)
(b) as long as it is best available evidence that can be produced at the time, data
messages can be produced in court. S8(3) discusses how the weight of such evidence is
supposed to be accessed by the court. This includes,

(a) the reliability of the manner in which the data message was generated, and stored
communicated; and

(b) the reliability of the manner in which the integrity of the data was maintained.

(c) the manner in which the originator is identified

Where one wants to rely on a data message as evidence in a court of law, and where
the court requires the document to be executed, notarised or witnessed...that
requirement shall be met by ............

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3 things to know about admissibility
1. Data messages are admissible in court if it is the best evidence that one has got at
that particular time

2. The admissibility weight is determined by the manner in which it is generated, stored

and maintained.

*for exams know about spouse witness

OTK Ltd v Amanita Zambiana Ltd: it was revealed that the Plaintiff filed its bundle of
documents containing emails purportedly exchanged by it and the First Defendant's
representative. The defendants objected to the production of the said emails into
evidence on the gerund that they have not undergone the normal procedure of a
foundation being laid before their production into evidence. Further, that the emails have
not been authenticated and in the absence of the Plaintiff showing that the integrity of
the purported emails was maintained, the Defendants will be unfairly prejudiced and they
requested for the exclusion of the alleged emails from evidence in the interests of
justice. Held: in respect of emails, the relevant statute is the Electronic Communications
and Transactions Act which provides for the production of a document or information
under s8. The Evidence Act also provides for production of documents in s3. It is clear
form the authorities that it is a condition precedent that certain conditions should be met
before a document is produced. These conditions are akin to laying a foundation, which
invariably leads to the authentication of the document. S8(4) of the ECT Act allows for
receipt and admission by the court of a data message from a person other then

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