INTRODUCTION

The aim of this paper is to look at the case of David Zulu v the people and pay a particular
attention to the facts in issue and circumstantial evidence and then On the question of admissible
evidence, it will try to see whether the court decided the case justly or not, and again relation to
the preceding question it will look at what argument can be extended for an answer so given.

The brief facts of the David Zulu v the people1 case is that on a particular day the deceased was
seen leaving in the company of the defendant after a drinking spree around midnight. The next
thing that happened was that at about 0600 or 0700 hours of 9th May, 1976, her partially
undressed body was found. After investigations the defendant was arrested but denied that he
had anything to do with the death of the deceased. In his statement on arrest, he in fact gave an
alibi to the effect that the only bar he visited on the material date was Chitupi Bar, where he
drank beer up to 21:30 hours when he went home to sleep. It was reported that the deceased may
have been raped by the one who had killed her and when it was discovered that he had some
scratches on his neck and chest the commissioner of the trial court inferred that it was obvious
that the scratches on the neck and chest of the defendant were as a result of the struggle that the
he had with the deceased and he was convicted based on circumstantial evidence. The defendant
was found guilty of rape and murder and sentenced on the basis of circumstantial evidence. An
appeal was made and it was granted by the higher court.

Thinking of the issue to do with admissible evidence and how the trial court decided the case one
can conclude that the case was not decided justly. Firstly, in the book practical guide to evidence
law2 it says that for evidence to be admissible it must first be relevant and must carry weight.
And unfortunately, this wasn’t so in this case for the court relied merely on circumstantial
evidence which is not admissible but for some few legal requirements which were palpably not
satisfied.

Evidence is said to be relevant if it is logically probative or disapprobative of some matter which

requires proof. In the case of R v A3 it was said that evidence is relevant if it has some tendency

1
Davis Zulu v the people
2
4th edition p. 7
3
(No.2) [2002] 1 AC 45 par. 31 per Lord Steyn
in logic and common sense to advance or defeat the proposition in issue. One thing to note is that
it is important to be able to establish by argument the relevance of a contested piece of evidence.4

Circumstantial evidence is said to be admissible if an element of an inference of the facts in issue

can be done. This is in tandem with the view of professor Nokes5 (whom the judge when hearing
an appeal quoted) who stated that circumstantial evidence 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. He continued by saying that the judge in our view
must, in order to feel safe to convict, be satisfied that the circumstantial evidence has taken the
case out of the realm of conjecture so that it attains such a degree of cogency which can permit
only of an inference of guilt.

Circumstantial evidence can be admitted in the absence of direct evidence. A conclusion of

guilty will not inevitably follow from either the direct evidence from the eyewitness or from the
circumstantial evidence. There are three possibilities of error where the proof is based on
circumstances that is to say it may be that a witness may be mistaken, lie against the defendant
and a mistaken inference on the part of a judge.6

In R v Exall Pollock CB stated that there may be a combination of circumstances, no one of

which would raise a reasonable conviction, or more than a mere suspicion; but, the whole, taken
together, may create a strong conclusion of guilt, that is, with as such certainty as human affairs
can require or admit of. In R v Taylor, weaver and Donovan7 Lord Hewart CJ emphasized that ‘it
is no derogation of evidence to say that it is circumstantial.’

On the issue of admissibility in the book of practical guide to evidence law8 it says that it is
possible to have a piece of evidence which is clearly relevant but which is nevertheless
inadmissible because of some legal rule. In particular, any argument based on a previous judicial
decision is foolhardy unless an advocate is satisfied that the analogy between their own case and
the earlier one is proper. In order to asses admissibility a judge must consider that the parties are

4
R v Turner (1975) QB 834, p. 841
5
"An Introduction to Evidence" 2nd Edition at p. 467.
6
Practical guide to evidence law 4th edition at p. 23
7
(1928) 21 Cr App R 20, p.21
8
4th edition p. 22, par. 1
trying to prove in the case and note the relevance of the particular item of evidence to one or
more of those objectives.

Coming to the case in question. The evidence of circumstance was not that too strong to convict.9
In the first place, it is granted that the learned commissioner's finding that the appellant was with
the deceased until midnight on the relevant date, it is by no means easy for someone to agree
with the inference that the appellant was the murderer. But, the time lag between midnight, when
the appellant was last seen with the deceased and the discovery of the deceased's body was at
least six hours. In that time, it is quite possible that the appellant might have parted with the
deceased and that while the deceased was alone on her way back home, she was attacked and
killed by unknown people.

Secondly, the learned commissioner inferred, as already mentioned, that the appellant's scratches
on the neck and chest evidenced his involvement in the struggle resulting in the deceased's death.
The appellant in his defense testified that the scratches were caused by flying pieces of iron at his
place of work. This was a logical explanation of his injuries and if it was in any way doubted
either the prosecution ought to have adduced evidence in rebuttal or the court exercising its
powers should have called evidence from someone at the appellant's place of work to disprove
the appellant's claim. Neither of these two alternatives was done. The commissioner purported to
demolish this defense by stating that the appellant had protective clothing at work and therefore
that the flying particles of iron could not go through such clothing. Nowhere in the record of the
evidence at the trial is there any mention of protective clothing and we wonder why the
commissioner referred to it. In the event it was an unwarranted inference that the scratches on the
appellant's body were caused in the course of committing the offence at issue.10

The circumstantial evidence received at the trial did not succeed in taking this case out of the
realm of conjecture, and we are of the further opinion that the danger of erroneous inference on
the part of the learned commissioner has not been dispelled. We therefore find the conviction in
this case to be unsafe and unsatisfactory and consequently we quash it. The sentence is set aside
and we direct that the appellant be set at liberty forthwith.

9
Anderson. T, Schum. D, Twining. W. (2005) Analysis of Evidence 2 nd edition p.246
10
Anderson. T, Schum. D, Twining. W. (2005) Analysis of Evidence 2nd edition p. 290
In practice, circumstantial evidence can have an advantage over direct evidence in that it can
come from multiple sources that check and reinforce each other.11 Eyewitness testimony can be
inaccurate at times,12 and many persons have been convicted on the basis of perjured or
otherwise mistaken testimony.13 Thus, strong circumstantial evidence can provide a more reliable
basis for a verdict. Circumstantial evidence normally requires a witness, such as the police
officer who found the evidence, or an expert who examined it, to lay the foundation for its
admission. This witness, sometimes known as the sponsor or the authenticating witness, is giving
direct (eyewitness) testimony, and could present credibility problems in the same way that any
eyewitness does.

This means that the commissioner should have put into consideration all the matters raised which
unfortunately he did but, he only focused on the fact that he was seen leaving with the deceased
and that he had scratches on his neck which he said they could have been as a result of him
struggling with the deceased of which the defendant refuted and attributed the scratches to be the
result of the nature of his work which the they never corroborated and neither did the prosecution
argue against. Because of this then it can be said that circumstantial evidence is not relevant
therefore inadmissible.

CONCLUSION

The evidence of circumstance was not too enough so as to make it possible for him to draw an
inference of facts in issue that are not questionable hence it had no weight and it wasn’t relevant.
The commissioner purported to demolish this defense by stating that the appellant had protective
clothing at work and therefore that the flying particles of iron could not go through such
clothing. Nowhere in the record of the evidence at the trial is there any mention of protective
clothing hence no need to mention it. In the event it was an unwarranted inference that the
scratches on the appellant's body were caused in the course of committing the offence at issue.

BIBLIOGRAPHY

11
Massachusetts courts, jury instructions, direct and circumstantial evidence
12
Eye witness evidence; a guide for law enforcement
13
Warden, R (2001) A report: how mistaken and perjured eyewitness testimony put 46 innocent Americans on
death row.
BOOKS

Practical guidance to evidence law 4th edition

Eye witness evidence; a guide for law enforcement

A report: how mistaken and perjured eyewitness testimony put 46 innocent Americans on death
row.

An Introduction to Evidence" 2nd Edition

Analysis of Evidence 2nd edition

CASES

Davis Zulu v the people (1977)

R v Turner (1975) QB 834, p. 841

R v Taylor, weaver and Donovan (1928) 21 Cr App R 20

R v A (No.2) [2002] 1 AC 45
 ROCKVIEW
UNIVERSITY

SCHOOL OF LAW

STUDENT: RICHARD MUTAKILA

STUDENT ID: 18400663
PROGRAMME: LL. B
COURSE: LAW OF EVIDENCE
LECTURER: Mss. kAYABWE
INTAKE: JUNE I8
YEAR: TWO
TERM: TWO
Assignment No. TWO
DEAD LINE: 18TH, OCTOBER, 2019.
QUESTION: Find and read the case of David Zulu v The
People on facts as evidence of facts in issue and circumstantial evidence:
On the question of admissible evidence, would you hold the court to have decided
The case justly, what argument do you extend for your answer.