Law of

Evidence Notes

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INTRODUCTION TO EVIDENCE
Evidence means the facts, testimonies and documents which may be legally received in order to
prove or disprove the facts under inquiry or the facts in issue. It may also include all the facts,
documents, material objects, statements and any other legal means that can be used to establish a
matter in issue. In other words, evidence broadly means all things that tend to prove or disprove a
fact in issue. According to black's law dictionary, evidence means something including
testimony, documents and the tangible objects that tend to prove or disprove the existence of an
alleged fact.

Sources of Law of Evidence in Zambia

 The Common Law
 Case Law/Precedents
 Statutes/Legislation - Evidence Act

TYPES/CATEGORIES OF EVIDENCE

1.) Direct Evidence

This type of evidence refers to evidence of facts that are actually perceived by a witness using
one or more of the witness' five (5) senses. Evidence is direct when it is given by a witness
according to what that witness saw, heard, smelled, felt and/or tasted. In practice, this category of
evidence is referred to in order to distinguish circumstantial/indirect evidence. That is to say,
direct evidence, in practice, is comparable to circumstantial evidence.

Direct evidence requires no mental process on the trier of fact in order to draw the conclusion
sought by the proponent of the evidence. In practice, direct evidence is regarded as the best
evidence one can adduce. However, it is not devoid of flaws, for example: someone’s senses may
be impaired due to intrinsic factors such as disability and trauma and extrinsic factors such as the
environmental conditions e.g. darkness, noise and resemblance of people. As such, in some

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cases, it may not be possible to prove facts in issue by direct evidence. This is where it may be
necessary to use circumstantial evidence.

2.) Circumstantial Evidence

Circumstantial evidence is that which is based on an inference and not on personal knowledge or
observation. It may also be described as evidence of facts from which a fact in issue can be
deduced. For example, in a road traffic offence, evidence of the presence of the tires' skid marks
made by the accused's car on the wrong side of the road can lead to an inference that the accused
drove in the wrong lane just before the accident occurred.

In David Zulu v The People, the Supreme Court considered the use of circumstantial evidence.
The court pointed out the dangers/weaknesses associated with circumstantial evidence. It was
stated that;

"...it is competent for a court to convict on such evidence as it would convict on any other type of
admissible evidence. However, there is one weakness peculiar to circumstantial evidence, that is,
by its very nature, circumstantial evidence is not direct proof of a matter at issue but rather is
proof of facts not in issue but relevant to the facts in issue and from which an inference of the
facts in issue can be drawn"

That is the major weakness of circumstantial evidence according to the Zambian Supreme Court.
In the David Zulu case, the Supreme court went on to state that;

"...it is therefore incumbent upon a trial judge to guard against wrong inferences from [the]
circumstantial evidence at his disposal before he can feel safe to convict. 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/guesswork so that it attains such a degree of cogency which
can permit only an inference of guilt."

In this case, the Supreme Court further cited Professor Knox's "An Introduction of Evidence"

where the learned author stated that;

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"...the possible defects in circumstantial evidence may include not only those which occur in
direct evidence such as falsehood, bias or mistake on the part of witnesses but also the effect of
erroneous inferences."

Additionally, in Naweji v The People, the Supreme Court stated that;

"....in every case where the evidence is purely circumstantial [as in the present one], conviction
may be recorded only if the inference to be drawn as to the guilt is the only inference reasonably
possible"

The Nawedji case highlights the point that the test is not whether or not there is strong
circumstantial evidence but whether or not the inference of guilt is the only one reasonably
possible. That is to say, the test is whether from the inferences made from the facts, the inference
of guilt is the only one reasonably possible.

See also;

Patrick Sakala v The People - Circumstantial Evidence. (Dangers of convicting on

circumstantial

evidence) SC

3.) Real Evidence

Real evidence refers to the material/tangible objects that can be produced before court for
inspection during trial. This may include:

 the murder/assault weapon,

 the victim's bloody clothes,
 the allegedly stolen goods.

4.) Best/Original Evidence

This type of evidence refers to original and authenticated documents, video and audio tapes as
opposed to photocopies or carbon copies, duplicates and pirated video and audio tapes. Original
and authenticated documents as well as other original forms of evidence fall under the ambit of
superior evidence while photocopies and carbon copies fall under inferior evidence.

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In practice, there is a rule known as the best evidence rule according to which, the best evidence
must be adduced at trial. Under this rule, original evidence like an original birth certificate will
be treated by the courts as superior or primary evidence and the photocopy of that certificate will
be treated as inferior or secondary evidence.

5.) Hear - say Evidence

This refers to evidence of a witness who relates what he or she was told by another person who
may have experienced/perceived the event him/herself or who may have obtained the
information from another source. As a general rule, hearsay evidence is inadmissible in court.
This is because, by providing hearsay evidence, the witness is merely saying what he or she was
told by someone who is not before court. Examples include:

 “Jeff told me he robbed the bank with his brother”

 “I never saw the fight myself but Antipas witnessed it and told me about it”

CASE LAW
David Zulu v The People (1977)

The appellant was convicted of the murder of a woman in the course of a sexual assault; the
injuries found on the body suggested that she had struggled with her assailant. The evidence
established that the appellant and the deceased had been drinking beer together at a bar and were
seen leaving the bar together at about midnight; between 0600 and 0700 hours the next day the
deceased's partially undressed body was found. The appellant was traced and when arrested was
found to have scratches on the neck and chest. He explained in evidence that the scratches were
caused by flying pieces of iron at his place of work, an explanation which was not rebutted. The
trial court without any evidence to support the finding said that the appellant had protective
clothing at work and therefore that the flying particles of iron could not penetrate such clothing;

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the trial court consequently inferred that the scratches on the appellant were sustained during the
struggle with the deceased.

Held

(i) It is a weakness peculiar to circumstantial evidence that by its very nature it is not direct
proof of a matter at issue but rather is proof of facts not in issue but relevant to the fact in
issue and from which an inference of the fact in issue may be drawn.
(ii) It is incumbent on a trial judge that he should guard against drawing; wrong inferences
from the circumstantial evidence at his disposal before he can feel safe to convict. The
judge must be satisfied that the circumstantial evidence has taken the case out of the
realm of conjecture so that it attains such a degree of cogency which can permit only an
inference of guilt.
(iii) The appellant's explanation was a logical one and was not rebutted, and it was therefore
an unwarranted inference that the scratches on the appellant's body were caused in the
course of committing the offence at issue.

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End.

BURDEN AND STANDARD OF PROOF

The burden of proof refers to a party’s duty to present evidence and prove their case. The
standard of proof refers to the degree to which a party must prove their case in order to succeed.
The burden and standard of proof are different in civil and criminal matters.

Civil Case/Matter

Here, the burden of proof is borne by the plaintiff. The general rule is that he who alleges must
prove. That is to say, he who alleges that the other party was liable for negligence, nuisance,
trespass etc. must prove their case and adduce evidence against the other.

The appropriate standard of proof to be met in order to succeed in a civil case is on a

preponderance or balance of probabilities. This mean the standard is met when there is a greater
than 50% chance that the plaintiff’s claims are true based on the reasonable evidence shown. If
the court decides that the appropriate standard of proof has not been met, the party bearing the
burden of proof will not succeed.

Criminal Matter

Here, as a general rule, the burden of proof is borne by the prosecution. There exists an exception
where the issue of insanity arises. “He who alleges must prove” is still at play here because it is
up to the prosecution [who alleges that the defendant is guilty] to prove that guilt. An exception
arises where the issue of insanity arises. In such an instance, the burden of proof shifts to the
accused. He/she must prove that they were insane at the time they committed the offence and
that they are unfit to plead. Apart from insanity, the burden of proof can also shift because of a

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statute. A statute may shift the burden from the prosecution to the defendant/accused by
expressly stating so.

In a criminal case, the standard of proof is proof beyond reasonable doubt. Here, the standard is
higher because the accused's liberty is contingent on the outcome of the deliberations. The court
must be satisfied beyond reasonable doubt that the accused in fact committed the offence
alleged. The standard in criminal matters is higher than in a civil case because the accused’s
liberty is contingent on the outcome of the deliberations.
End.

PRESUMPTIONS
A presumption in the law of evidence may be described as an inference or conclusion of fact
which may be drawn from certain other established facts. There are two types of presumptions;
rebuttable and irrebuttable presumptions. Rebuttable Presumptions are those that can be rebutted
by contrary evidence. Irrebuttable presumptions are those that cannot be rebutted by contrary
evidence (usually created by statute). Presumptions may exist at common law or in statutes.

Presumptions Created by Statutes

1.) Presumption of Sanity. - Rebuttable

This presumption is set forth by Section 11 of The Penal Code. The presumption is that any
person charged with a criminal offence shall be presumed to be sane until proven otherwise. By
doing this, section 11 shifts the burden of proof from the prosecution to the person claiming to be
to have been insane. In other words, the implication of this presumption is that when one claims
to have been insane, the burden is shifted to them to prove so. It is not the duty of the prosecution
to prove that the defendant was sane, this is already presumed by the law.

2.) Age of Criminal Liability - Irrebutable

This presumption is set forth in Section 14 of the Penal Code. The section provides the
irrebuttable presumption that a child of less than 8 years cannot be guilty of an offence.

3.) Presumption of Innocence - Rebuttable

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This presumption is found in Article 18 of the Constitution. This provision provides for, among
other things, the presumption that a person charged with a criminal offence is innocent until
proven guilty. Article 18 burdens the prosecution to prove, beyond reasonable doubt, the guilt of
the accused. Until then, the law will presume the accused as innocent.

Common Law Presumptions.

1.) Presumption of Legitimacy
This is the presumption that a child born within wedlock/marriage is presumed to be legitimate.
Usually applies where the paternity of the child is in issue. This shifts the burden of proof to the
man who brings the legitimacy of the child in issue. He has to prove that the child is not his by
adducing evidence of lack of the means and ways to make a child on his part. See Francis v
Francis and Preston Jones v Preston Jones

2.) Presumption of Death After 7 years

This is the presumption that a person is dead if they have been missing for a period of 7 years or
more and all efforts of finding them are unsuccessful. Anyone who would want to dispute the
death will have to adduce evidence to the contrary to show that the person is / could still be alive.
Read Chard v Chard. Section 166 of the Penal Code where the offence of bigamy is provided
for states that 7 years of absence is a defence which can be relied on for a charge in bigamy. This
means that one can rely on their spouse’s 7-year absence as a defence for entering into another
lawful marriage while still in a lawful marriage.

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End.

RELEVANCE, ADMISSIBILITY AND

WEIGHT OF EVIDENCE
The general rule is that all evidence that is relevant to a fact in issue is admissible while all that
is irrelevant is excluded. In the law of evidence, relevance denotes something which renders the
existence of a fact probable or improbable. It was stated in DPP v Kilbourne that evidence is
relevant if it tends to prove or disprove the fact in issue.

Admissibility signifies compliance with all the exclusion rules. As a general rule, the evidence
has to be relevant for it to be admissible. Evidence is admissible if it may be lawfully adduced at
trial Relevance and admissibility are two totally different concepts which should not be used
interchangeably. Admissibility of evidence is a matter of law for the judge. That is to say,
whether the evidence is admissible is determined or ascertained through the use of statutes, rules,
court decisions and interpretation of legal principles.

The concept of weight of evidence refers to the value attached to evidence by the trier of fact. It
refers to the degree/probability attached to the evidence to the trier of fact after it has been
established to be relevant and admissible in law. The amount of weight which should be placed
on evidence is a question of fact. Generally, evidence first has to be relevant and admissible
before the courts decide how much weight to place on it. This means that relevant evidence may
be thrown out due to insufficient weight. There are many factors that affect the weight of
evidence. these factors may include;

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1. Age of the witness - evidence provided by a child may carry a different weight from that
which is presented by an adult. Similarly, evidence provided by a senile or elderly witness is
likely to carry less weight than that which is produced by a young or middle aged adult.

2. Reliability - the more reliable the evidence, the more weight it will carry. This is where issues
of the witness’ reputation come into play.

3. Demeanor of the Witness - the appearance / general demeanor of the witness on the stand
may affect the weight which their testimony will carry. Their emotions, ques and have a bearing
on the effectiveness of their testimony.

No evidence which is irrelevant to a fact in issue is admissible. All relevant evidence is prima
facie admissible. Read the leading HOL decision of Dpp v Killborne (1973) wherein the HOL
tried to analyze these three (3) concepts including corroboration.

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End.

COMPETENCE AND COMPELLABILITY OF

WITNESSES
The concept of competence refers to the general ability of a witness to testify. It denotes one’s
capacity or proficiency to provide the courts with the required evidence. The concept of
compellability is concerned with whether or not the witness can be compelled or obliged by a
court order or a subpoena to give evidence. Generally, most witnesses who are competent are
compellable to give evidence but for some exceptions.

As a general rule, all sane adults, not subject to sovereign or diplomatic immunity are competent
and compellable to give evidence. In other words, anyone who is sane is both a competent and
compellable witness in any proceedings, although, such a person may refuse to answer questions
on the grounds of privilege or public policy.

1. The Accused
In criminal cases, the accused is deemed to be an incompetent witness for the prosecution.
However, he/she is competent to give evidence on his/her own behalf. This means, in the eyes of
the law, an accused person is not capable of testifying against himself and is therefore not
compellable. However, he or she is competent to give evidence/testify on his/her own
behalf/defence. Article 18(7) of the constitution provides that a person who is tried in for a
criminal offence shall not be compelled to give evidence at trial.

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2. The Co-Accused
A co accused is also not a competent witness for the prosecution. This is because his/her
testimony may have an exculpatory motive behind it. This was the position in Naweji v The
People and Shamwana v The People. However, in Shamwana v The People, the courts
provided some exceptions to this general rule. These exceptions arise from an instance where
one is no longer an accused. That is to say, a co accused becomes a competent witness when:

 The accused takes a guilty plea

 The accused is acquitted. This means the co accused seizes to be a co accused and becomes a
competent witness.
 The case enters nolle prosequi
 The accused is admitted from the indictment

3. The Accused's Spouse

The general rule, as per The People v Mushaikwa is that the accused's spouse is an incompetent
witness for the prosecution. However, a spouse will be a competent witness for the defence.
Section 157 of the Criminal Procedure Code states that;

“every person charged with an offence, and the husband or wife, as the case may be, of that
person so charged, shall be a competent witness for the defence at every stage of the
proceedings, whether the person is charged solely or jointly with any other person”

The implication of this provision is that the accused and the accused’s spouse are not competent
and compellable witnesses for the prosecution but are perfectly competent and compellable for
the defence. Additionally, in Crispin Soondo v The People, the court held that where two or
more persons are charged jointly, the wife/husband of any such defendant is not a competent
witness against any co-defendant (of their spouse).

4. Children
S.122 of The Juvenile Act (as amended in 2011) regulates the taking of evidence from
Children of tender age. Before the 2011 Amendment of s.122, the section merely referred to "a
child of tender years". There was no age stipulated. It was up to the court to determine what

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tender age was in each particular case. In Sakala v The People and David Zulu, the courts
determined what tender age entailed. It differed from case to case.

However, after the 2011 Amendment, the section provided that a child of tender years is one
below the age of 14. This means that if a child below 14 is testifying/giving evidence, the courts
will have to comply the provisions of s.122 of The Juvenile Act. One of which is carrying out a
voir dire, that is, a preliminary process of questioning the child and recording/ taking note of the
answers so as to conclude whether or not the child;

 can give evidence at all,

 can give unsworn evidence,
 can give evidence on oath,
 can be cross-examined.
The Supreme Court in Zulu v The People stated that the voir dire conducted must satisfy the
provisions of s.122 of the Juvenile Act which provides guidelines on carrying out voir dire. This
position was reaffirmed in Sakala wherein the court held that where voir dire is conducted, the
child’s responses need to be taken note of and where voir dire is not conducted, the courts will
disregard the evidence of the child.

5. Persons of Defective Intellect

The unsound in mind are only competent to give evidence if they understand the duty of telling
the truth under oath. Whether a person does understand the duty is determined by the judge who
questions the witness. There has to be some preliminary discussion known as voir dire which is
French for speak the truth. It is through these preliminary discussions that the courts will
determine whether or not the witness understands the said duty. If they do, they will competent
and therefore compellable. It was held in R v Hill that before such a witness can testify, there has
to be some preliminary discussion.

6. The President
As a witness, the president is competent but not compellable to testify. This means that he or she
cannot be ordered or obliged by the courts to give evidence. For the President, testifying is a

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matter of choice e.g. former President Michael Sata chose to testify in the High Court against the
daily Nation Newspaper. This is because Article 98 of The Constitution protects the President
from civil and criminal proceedings being brought against him during his term of office in both
his official and private capacities. This is known as Presidential Immunity.

7. Diplomats
In Zambia, foreign diplomats enjoy extensive immunity from the jurisdiction of the courts under
the Diplomatic Immunity and Privileges Act which is derived from the Vienna Convention
on Diplomatic immunity. As witness, foreign diplomats are competent but not compellable
witnesses because of that diplomatic immunity. Also, foreign diplomats cannot be arrested in
Zambia until the sending state waves the immunity of the diplomat. In order to bring a foreign
diplomat to book, the host country has the option to declare the diplomat a persona non grata.
This gives the diplomat 7 - 12 days to leave the country.

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End.

JUDICIAL NOTICE
As a general rule, all facts in issue as well as the facts relevant to the issue in a given case must
be proven by evidence. This general rule however does not apply to facts which the court takes
judicial notice of. Judicial notice may be defined as the knowledge which is attributed by law to
the courts, judges or magistrates and which does not need to be given to them in particular case
by evidence. Courts will take judicial notice of notorious facts which require no evidence.
Judicial notice allows certain notorious or well known facts to be introduced or taken note of by
the courts without evidence because they are so authoritatively arrested that they cannot be
doubted.

The effect of the requirement that the facts of which judicial notice is taken should be of public
notoriety is that judges and officers of the court cannot act on information acquired in their
private capacity. See Reynolds v Lanley.

EXAMPLES OF CASES WHERE JUDICIAL NOTICE WAS TAKEN

1. Preston Jones v Preston Jones (1951)

Here, the House of Lords took judicial notice of the fact that the duration of the normal period of
gestation is about 9 months. There was no need for evidence to be adduced to confirm this fact.
However, the court was not entitled to take judicial notice of the fact that a child born 360 days
after the last coitus between a husband and a wife was not a child of the marriage.

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2. Mwape v The People (1976)
This was an aggravated robbery case wherein the Supreme court of Zambia had to take judicial
notice the fact that the ZCBC shops in question, like most supermarkets, were customarily
guarded by a watchman. The court stated that:

"...a court may take judicial notice of various matters such as those of common knowledge
which are so notorious as not to require evidence.”

3. Hebert Sankombe v The People

Here, the judge took judicial notice of the distance between Kalulushi and Mindolo in Kitwe.
The principle in this case was that the courts can take judicial notice of the distance between
towns.

4. Kaniki v Jairos
One of the issues that arose was whether or not the court should take judicial notice of customary
law. Particularly the Lala custom of akamutwe. It was held that the court cannot take judicial
notice of African Customary law. What happens instead is that, when customs are in issue, the
courts sit down with assessors who provide evidence of the custom.

5. Kapata v The People

This was the trial of a road traffic offence wherein the issue was whether or not Hebert Stanley
drive in Kitwe was a public road. It was tried by the magistrate who was based in Kitwe and
definitely knew the road. The court took judicial notice of the fact and held that it was indeed a
public road.

Conclusion

Judicial notice is the cognizance taken by the court itself of certain matters which are so
notorious or clearly so established that the need to adduce evidence of their existence is deemed
unnecessary. Where there is room for doubt as to whether a fact is truly notorious, judicial notice
should not be taken.

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End.

CORROBORATION
Corroboration may be defined as independent evidence which supports the evidence of a witness
in a material particular. The general rule in civil and criminal cases is that the court may act and
convict based on the testimony of one witness. However, there are occasions where the need for
corroboration must be considered by the court. This is because experience has shown that in
certain types of cases or with certain types of witnesses, it is dangerous to convict in the absence
of corroboration/independent evidence. Lord Morris in DPP v Hester said the following:

“the accumulated experience of courts of law, reflecting accepted general knowledge of the ways
of the world has shown that there are many circumstances and situations in which it is unwise to
found settled conclusions on the testimony of one person alone. The reason for this are
diverse…they may in some cases be motives of self-interest, or of self-exculpation or of
vindictiveness, in some situations the straight line of truth is diverted by the influences of
emotion or of hysteria or of alarm or of remorse. Sometimes it may be that owing to
immaturity or perhaps to lively imaginative gifts there is no true appreciation of the gulf that
separates truth from falsehood. It must therefore be sound policy to have rules of law or of
practice which are designed to avert the peril that findings of guilt may be insecurely based”

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The judge went on to consider that as a result, statutory law has been enacted which requires that
for certain types of offences there may be no conviction without corroborated evidence whilst in
other instances the courts have adopted guidelines which have become rules over time requiring
that although there may be conviction on the uncorroborated evidence of a particular witness
such the judge must first warn the jury (or itself) of the dangers of convicting solely on such
evidence examples being the evidence of children (sworn), sexual offences, accomplices etc.

In Shamwana v The People, the Supreme Court, citing the case of R v Baskerville, pointed out
that:

“evidence in corroboration must be some independent testimony which affects the accused by
connecting or tending to connect him to the crime.”

This means that for evidence to be said to corroborate or support a testimony against an accused,
it must confirm, in some material particular, not only the evidence that the crime has been
committed but also that the accused committed it. Corroboration is either a matter of Law or a
matter of practice. It must implicate him.

Corroboration Required by Statute

Corroboration is a matter of law where it is required by statute. Corroboration is required by
statute when the law requires that the person should not be convicted without some independent
implicating evidence that supports the testimony adduce against him or her. When corroboration
is a matter of law, it is mandatory or mandated by statute. The following are examples of statutes
that require that a witness’ evidence be supported by some independent evidence.

1. The Unsworn Evidence of a Child

According to s.122 of the Juvenile's Act (as amended in 2011), the sworn evidence of a
child requires corroboration. It is dangerous to convict based only on the sworn evidence of a
child. The statute requires that the accused shall not be liable to be convicted of an offence
unless that evidence [given by a child] is corroborated by some other material evidence in

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 support thereof which implicates him/her. Without such supporting evidence, no conviction
can be secured.

2. Evidence in Cases of Perjury and Procuration

Section 107 of the Penal Code is concerned with the offence of perjury. As a general rule,
convicting someone for perjury requires corroborated evidence. Pursuant to the said section,
there must be some independent evidence to support that evidence which has been given
against the accused.

Additionally, Sections 140 and 141 of the Penal Code deal with the offence of procuration.
According to these two sections, in order to convict anyone of these two offences,
corroborated evidence is required.

3. Evidence Relating to the Offence of Over speeding

Section 192(3) and (4) of The Roads and Road Traffic Act provides that a person
commits an offence if they drive over the speed limit specified for that class of vehicle
and on that road, however the court may not convict solely on the basis of one witness’s
evidence to the effect that in their opinion the accused was driving above the speed limit.
There ought to be some independent evidence to support that evidence.

4. Evidence Relating to Legitimacy

Section 6(2) of the Affiliation and Maintenance of Children’s Act requires that a woman’s
testimony that a child belongs to a man requires corroboration.

Corroboration as a Matter of Practice

Corroboration is a matter of practice in instances where it is not necessarily required but rather
comes up as a safety measure when the court recognizes that it would be dangerous to convict in
the absence of corroboration. All the forms of evidence that require corroboration as a matter of

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practice belong to the category of Suspect Evidence. That is, evidence that is usually prone to be
wrong. The court warns itself that although it might convict the accused based on one witness’
testimony, it would be dangerous to do so in the absence of corroboration. For this reason, this is
also referred to as corroboration by warning. Some of the categories of evidence that require
corroboration as a matter of practice are:

1. Evidence Produced by Accomplices

Section 21 of the Penal Code defines an accomplice as any party to a crime who has been
charged, be it the principal offender or the accessories. Uncorroborated evidence of an
accomplice is admissible in law and it is perfectly competent. However, it has been a rule of
practice at common law for the judge to warn himself on the danger of convicting based
uncorroborated testimony/evidence of an accomplice against the other. This rule exists because
evidence provided by an accomplice is suspect evidence. This means that it belongs to a category
of evidence that usually tends not to be true. Therefore, because evidence adduced by an
accomplice against another is likely to implicate another, additional evidence is required as a
matter of practice.

Put differently, while a court may convict an accused based on the uncorroborated testimony
of his/her accomplice, as a matter of practice, in order for the conviction to be secure, it is
and requirement for such testimony to be corroborated. The following cases are relevant to
the position of the law on the uncorroborated testimony of an accomplice

The People v Shamwana

Here, the judge considered the importance of corroborated evidence which is mainly needed
where there is a fear of unreliability of the evidence given so that the court may not solely
rely on that evidence to convict and it will then be needed that some other evidence be
adduced to compliment that evidence or rather to make the evidence in the first instance
reliable. This is so where the evidence is provided by a co-accused or an accomplice who
would in most cases have their own interests to protect.

R v Baskerville

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The court held that; as a rule of practice, a judge must give a warning of the dangers of
convicting solely on the basis of uncorroborated evidence of an accomplice or of a witness
with their own interest to serve, this has been stated to now be a rule of law. It was stated that
the jury would rarely convict based on such evidence solely and thus the test is much higher
stating that there should not be a conviction based on the sole uncorroborated evidence of an
accomplice unless there is special and compelling reason.

The that failure of such a warning would lead to the quashing of a conviction unless there is
special and compelling grounds for such a conviction. In this case, there was a conviction
based on the evidence of the father and son, both whom were found to be witnesses with a
possible motive to exculpate themselves by putting the blame on the accused. The court held
that the honesty of the witness did not amount to special and compelling grounds and thereby
overturned the decision.

Machobane v the People 1972 ZR 101:

The appellant was convicted of stock theft. Two beasts were found in the possession of his
brother who told the court that it was the accused that stole them. The brother’s son also gave
evidence to that effect. The court held that although the two had an interest to serve the
evidence was corroborated by their demeanour.

On appeal the decision was overturned it was held that as a rule of practice now recognised
as a rule of law the court must not convict on the uncorroborated evidence of an accomplice
unless it is shown that there is special and compelling reason on which to convict. Further the
court held that the demeanour of the accomplice is not special and compelling reason. In
absence of other evidence on which it can be shown that the judge would have convicted
despite the irregularities the court quashed the conviction.

Emanuel Phiri v the people 1978 ZR p79

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 It was clarified in that case that as a matter of law, special and compelling reasons must
consist of something more than a belief in the truth of the evidence of the accomplices based
simply on their demeanor and the plausibility of other evidence considerations which apply
to any witness. If there is nothing more the court must acquit.

The rationale in these decisions best explains why it is a requirement, as a matter of practice, for
the evidence/testimony of an accomplice be corroborated. They also provide for the
consequences of failure by the court to warn itself of the need of corroborative evidence when
dealing with accomplices. The bottom line is because such evidence is suspect evidence, it may
not be safe to convict based on it alone.

2. The Evidence of Witnesses with Possible Self Interest

This category of witnesses was interpreted in George Musupi v The People to include people
that may fall short of being an accomplice but have a motive to fabricate

Kambaranje Kaunda v The People

Given the fact that these witnesses have a possible self-interest to serve, their evidence is also
suspect and therefore requires some form of corroboration. Convicting based on their
evidence alone may be dangerous. The court therefore ought to warn itself of this danger.

3. The Sworn Evidence of Children

If after conducting voir dire, the court is of the view that the child should give evidence on
oath, then the child will give what is known as a sworn testimony or sworn evidence. The
rule is that the sworn evidence of a child is suspect evidence and thus requires corroboration
in practice.

Chisha v The People

The Supreme Court, citing Knox observed that evidence of young children is always subject
to doubt. Very young children live largely in a world of imagination and their powers of
observation, understanding, memory and experience are rudimentary. Most children are
influenced by what they hear from adults not necessarily by way of deliberate suggestion or
instruction but by their naivety.

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R v Campbell

This case determined two things; First, that the sworn evidence of children can corroborate
the evidence of another child and secondly, that the unsworn evidence of a child can
corroborate the evidence of an adult. Another case that aids in the understanding of why the
sworn evidence of a child needs to be corroborated is Dpp v Hester.

4. Evidence Provided for in Trials of Sexual Offences

As a matter of practice, a judge in a trial concerning a sexual offence is required to warn
him/herself of the dangers of convicting based on the uncorroborated evidence of the
complainant or the prosecutrix. As per Ndulo and Hatchard, there are a number of reasons
why a judge must do this. Some of these are;

 First, a complainant, motivated by spite, may accuse another of having raped her
 Secondly, an allegation that a sexual offence was committed against one is very easily
made but not nearly as easy to defend/refute. As such, additional independent evidence
from that of the complainant is required. Ndulo and Hatchard observed that in rape cases,
it is one's word against the other. Therefore, independent evidence is needed to support
that which is provided by the prosecutrix. See the following cases
Ackson Zimba v The People

The appellant was convicted of rape. The evidence against the appellant was that he was
alleged to have seized a woman in the bush and to have raped her, and the woman was
thereafter seen to be crying by an independent witness. The complainant stated that during
the course of her alleged rape she sustained scratches on her legs and a third party asked her
how she got those scratches on her legs. The witness (third party) did not corroborate the
evidence as to the scratches, nor did the medical report refer to any external injuries to the
complainant at all. In the circumstances, there was a complete lack of corroboration in this
case.

Held; We have considered whether the fact that the complainant was crying, when she was
seen by the independent witness, could amount to corroboration. Although the distress of the
complainant could have been regarded as corroboration, on the authority of Knight v R, it is
necessary for the trial court to warn itself that evidence of distress at the time of the making

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 of the complaint may not be enough to amount to corroboration as it may well be simulated.
No such warning was given to himself by the magistrate in this case, and we agree with the
learned State Advocate that this conviction cannot be supported. The appeal is allowed, the
conviction is quashed, and the sentence is set aside.

Katebe v The People

Although the cautionary rule of practice has long since become virtually a rule of law, if, as we
said in Machobane v The People, there are special and compelling grounds for so doing, it is
competent to convict on the uncorroborated testimony of a witness with a possible interest to
serve. But the general principle of the cautionary rule applies equally in sexual cases. The
reasons for this caution in such cases are legion and it is unnecessary for us to repeat them at
length; obviously there are circumstances in which a woman will make false allegations - in
order to protect a boy-friend, or in circumstances where she may fear the anger of a husband or a
father.

In the present case there is nothing to suggest that any of these factors is present. We can see no
motive for the prosecutrix in this case deliberately and dishonestly making a false allegation
against the appellant. This case is in practice no different from any other in which the conviction
depends on the reliability of the evidence of a complainant as to the identity of the culprit, and
this is a "special and compelling ground" which would justify a conviction on the uncorroborated
testimony of a prosecutrix. We are satisfied that the learned magistrate was right, firstly when he
said there was no corroboration as to the identity of the culprit, and secondly when he considered
that this was a case when he could convict on the uncorroborated testimony of the complainant if
he believed her.

See also:

R v Sabenzu

Zimba v The People

These cases are concerned with why there is need for corroboration of evidence in sexual offence
trials. That is, why it would be very dangerous to convict based on uncorroborated evidence.

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End.

Evidence of Character
The word character in its colloquial sense refers to personality, moral qualities distinctive to the person in
question. It also denotes one’s reputation. Character evidence is evidence that relates to whether an accused
is of good or bad character. The criminal courts have been very careful not to admit evidence of character
unless it's probative value is so strong that it should be received in the interest of justice and its admission
will not operate unfairly to the accused.

The General Rule and its Exception

At common law, it is settled the bad character of the accused can be adduced or enlisted by the
prosecution but only when the accused has put his character in issue. The fact that the accused
attacked the character of the prosecution’s witness will not suffice. This means, if the accused
claims to be of good character, evidence in rebuttal can be adduced. This also means that if the

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accused attacks the prosecution’s witness or the prosecutor himself (as was in the case of R v
Butterwasser) then the accused has put his/her character in issue and it can be rebutted.

The leading case of R v Rowton relates to the type of evidence that could be adduced in rebuttal
of good character. In that case, a party adduced evidence of his good character and evidence to
rebuttal that was adduced. The majority held that;

“The accused is allowed to speak to evidence of his good character. However, a witness to the
good character to the accused could speak only to the accused's reputation (among the people
who know him) and not to his/her opinions to the accused's disposition (his inherent
characteristics).”

According to this leading decision when evidence of good character has been given in favor of
the accused, evidence of his general bad character can be called in reply.

In the other leading case of R v Butterwasser, appellant, in cross examination, attacked the
character of the prosecutor and his wife who were prosecution witnesses. He put a question to
them relating to the number of previous convictions they had. The court allowed evidence of the
appellant's bad character to be read out by the prosecution because he had put his character in
issue.

In short, it is only when the accused has put his character in issue can the court allow evidence in
rebuttal to be admissible. Otherwise, evidence of bad character does not have much relevance but
if one attacks the character of others he has put his character in issue and it can be rebutted by
adducing evidence of his bad character.

The Criminal Procedure Code in Zambia has provisions relating to the character of the accused
and the character of witnesses. This is found under s.157. Particularly in s.157(vi)(b) The
Criminal Procedure Code states that:

(vi) 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 or been convicted of, or been charged with any offence other than that wherewith he
is then charged, or is of bad character, unless:

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(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.

This reiterates the common law position with regards character evidence which is that - when

evidence of good character has been given in favor of the accused, evidence of his or her
general bad character can be called in reply.
Section 157 of the CPC ought to be complied with when it comes to introducing character
evidence lest the character evidence adduce will be stricken/disregarded. In Melody Chibuye v
The People, evidence of the bad character of the accused was introduced by the prosecution
during cross examination. This was done even if the accused did not bring his good character in
issue. The court disregarded the cross examination. Their reasoning was that;

“Where the accused has not brought in issue his good character, the court will not admit the
evidence from the prosecution showing that the accused is of bad character because its
prejudicial value exceeds its probative value.”

HEARSAY EVIDENCE
In common parlance, the phrase hearsay refers to unverified or unofficial information acquired
from another source which is not part of one's direct knowledge. It is evidence not perceived by
one's 5 senses. It is basically repeating what one told you. Hearsay evidence refers to evidence
of a witness who relates what he or she was told by another who may have perceived the event
themselves or who may have obtained the evidence from another source. An example of hearsay
evidence would be a witness testimony in which the witness claims, "My mother told me she saw
the accused at 3pm". Here, the witness did not see the accused with his or her own five senses.
They are repeating what they were told by their mother.

This type of evidence is not restricted to oral testimony. It can be found in letters, documents or
opinions expressed by non-expert witnesses. In the law of evidence, there is an exclusionary rule
against hearsay evidence. As a general rule, hearsay evidence is inadmissible. In other words,

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oral, formal or written statements that are made outside court are not admissible as evidence in
court. The rule against hearsay evidence requires witnesses to testify only from their personal
knowledge/experience. That is, what they perceived using one of their 5 senses. According to the
rule against hearsay at common law, a statement other than one made by a person while giving
oral evidence in a proceeding is inadmissible as evidence of any fact stated.

This rule is a technical rule. The classic exposition of the rule against hearsay evidence is found
in the case of;

Subramaniam v The Public Prosecutor (1956).

In this case, it was stated that

"evidence of a statement made to a witness by a person who is not himself 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 evidence) not the truth of the statement but the fact that it was
made.”

This is a very crucial distinction. This is the distinction that was overlooked by the trial judge in
the above mentioned case.

The Rationale Behind the Rule of Hearsay Evidence

i. They are Unsworn Statements: Firstly, these statements emanate from people who are
neither under oath nor subject to cross examination. The makers of the original statement
are not before the court and thus, the veracity of the statement cannot even be tested.
ii. Demeanour: Secondly, the court has no opportunity to look at the demeanor of the
person who made the original statement.
iii. No opportunity to Challenge: Third, an accused is entitled to confront or challenge
his/her accuser in a face to face encounter in front of the trier of fact. However, when the
person is not before court, the accused has no opportunity to challenge the statement.

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iv. Danger of Inaccuracy: Also, there is a danger of inaccuracy through repetition. There is
a risk of exaggeration and inaccuracy where hearsay evidence is allowed.
v. May Add to Complexity: any relaxation of the hearsay rule would considerably expand
the scope of admissible evidence. This would increase the length of many trials and add
to their complexity. E.g. collateral issues may be raised.

Exceptions to the Hearsay Rule

1. Dying Declarations
In an instance where one makes a declaration and dies afterwards, the person who heard
that declaration (if any) is a competent witness in court. Such evidence is an exception to
the general rule against hearsay evidence because it becomes admissible.
In the case of R v Perry, it was stated that;
“the general principle on which this specie of evidence is admitted is that the declaration
is made in extremity; when the party is at the point of death and when every hope of
continuing their life is gone; when every motive of falsehood is silenced and the mind is
induced by the most powerful consideration to speak the truth; a situation so solemn and
so awful is considered by the law as creating an obligation equal to that which is
imposed by a positive oath administered in a court of justice.”

In R v Perry, the expression "at the point of death" is used to mean "where there is a
settled, hopeless expectation of immediate death. The death must be eminent. Also, the
circumstances of the death must be the subject of the declaration. Only then will a dying
declaration be admissible as an exception to the rule against hearsay. The solemnity of an
occasion is what makes those dying declarations to be admissible. The basis of this rule is
the assumption that no one would want their final act in life to be that of telling a lie.
It must be noted that dying declarations are only admissible where;
 the charge is that of murder or manslaughter as was held in R v Mead; and
 the circumstances of the death are the subject of the dying declaration.

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See also:

 R v Mumenga

2. Declaration Against Interest

These are statements of fact which work against one's interest. The hearsay rule is admitted in
such an instance. The basis of admission is that it is unlikely that a person would lie if it would
work against his or her own interest.

The learned scholars Ndulo and Hatchard shed more light on the exceptions to the hearsay rule.
Some of the requirements mentioned are: on page 259 of Ndulo. Some are listed below

 The declarant must be dead

 The declaration must be against the interest of that declarant
 The declaration must be of facts which were immediately cognizable by the declarant
personally.
 The declarant must have had no probable motive to forcify the facts declared. See US
v Goodlaw.
3. Res Gestae
Res gestae is a Latin phrase which means things done. This exception refers to spontaneous
declarations, exclamations or utterances which may be received in evidence even though the
person making them does not take the stand. In the case of The People v John Nguni, a fight
ensued and the deceased, with a stab wound, was pushed down the stairs while saying "John
Nguni has killed me"
The statement was held to be admissible because it fulfilled the three elements. Those are:
 There must be an exciting event (the stab and the push)
 No time for the orator/victim to fabricate
 The statement must be connected to the occassion.
In Keith v The State, it was held that a spontaneous statement is one made immediately after
some exciting occassion by a participant or a spectator who says the circumstances of that event.

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Other exceptions to the general rule include:
 Declaration in Public Documents
 Declaration as to Pedigree
 Declaration by a testator as to their wills
 Declaration in the course of duty (pages 260 to 261)

End.

IDENTIFICATION EVIDENCE
Identification evidence is relevant where the issue is about the identity of the accused person. As
a general rule, it is competent for the courts to convict based on the evidence of a single witness
provided that evidence is clear and satisfactory in every respect. However, where the evidence in
question relates to identification, there is an additional risk of an honest mistake and it is
therefore necessary to test the evidence of a single witness [in this instance]. That is to say, when
it comes to identification evidence, the honesty of a witness is not sufficient. The court must be
satisfied that he/she is reliable in their observation.

In Chimbini v The People, Barron JP observed that the case against the appellant rested
entirely on the evidence of the complainant. Although it is always competent to convict on the
evidence of a single witness, where the evidence in question relates to identification, there is an

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additional risk of an honest mistake and it is therefore necessary to test the evidence of a single
witness with particular care. The honesty of the witness is not sufficient. The courts must be
satisfied that he is a reliable witness.

The Chimbini case also sets out the factors that must be taken into account where identification
evidence is concerned. These are:

I. Whether the appellant was identified at day or night time: This is important because
the state of the light in daytime differs from the state of the light in the night time. The
state of the light may alter the witness’ identification of the appellant.
II. The opportunity of the witness to identify the appellant: This refers to how much
chance was accorded to the witness to see the appellant. It includes factors like angles
and how good a look the witness had at the appellant.
III. The circumstances in which the identification was alleged to have been made: This
refers to the circumstances surrounding the identification. This factor is concerned with
whether there was a confused fight or a scuffle, whether the parties were comparatively
stationary; whether the identification was made under duress; whether the entire situation
was charged with panic, stress, fear, confusion or not.
IV. Whether the witness knew the accused prior to the incident: This is the most
important factor because there is a great difference in identifying an individual who one
has seen before [prior to an incident] and identifying an individual who one is seeing for
the first time at an incident which was, no doubt, charged with stress and other
surrounding circumstances.

In Bwalya v The People, the Supreme Court emphasized that the identification must be reliable.
The factors considered in the Chimbini case were also taken into account. Basically, the
principle in this decision was that the possibility of an honest mistake must be ruled out and that
can be best done by taking into account the various factors mentioned in Chimbini v The
People.

Further, in The People v Siwillah, the accused was identified as being one of the robbers by 3
witnesses. It was determined, in this case, that the witnesses' opportunity to observe was good

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but the witnesses were terrified and the lighting was poor. The High Court therefore cited the
COA decision of Nyambe v The People and stated that;

" there is perhaps no area in which there is a greater danger of honest mistake than in the area
of identification, particularly where the accused was not known to the witness prior to the
occasion on which he is alleged to have been seen. The question is not one of credibility in the
sense of truthfulness but of reliability and the greatest care should be taken therefore to test the
identification. It is not enough for the witness to say the accused is the person who committed the
offence. The witness must be asked to specify what features or unusual marks (if any) he alleges
to have recognized, the clothes the accused was wearing, the build of the accused, the
circumstances under which the accused was observed, the state of the light, the opportunity for
observation, the stress of the moment."

In addition to this, the courts also cited Bwalya v The People and the English case of R v
Turnbull and Others which dealt with 5 appeals. Those appeals turned on the quality of the
identification evidence. Guidelines were given on how evidence relating to identification must be
evaluated by the courts. They came to be known as the Turnbull Guidelines. This decision also
brings to light the dangers of miscarriage of justice and the risks of identification evidence. The
case of R v Turnbull was referred to in the case of Hamwenda v The People.

See also: Kateka v The People.

End.

Identification Parades
An Identity/Identification Parade is a lineup of suspects shown to the witness so as to determine
if the accused is among the suspects on the parade. There are guidelines relating to identification
parades to ensure accuracy because if an identification parade is unfair or inconclusive, there is a
risk that the identification will be nullified. The leading case with regards to identification
parades is Toko v The People [1975] SCJ. In that case, the SC stated that;

"It is necessary to point out that it is improper for a witness who has identified a suspect
at an identification parade to be brought into contact with the witness who is there to

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 visit the parade. The police or anyone conducting the parade must do nothing that
directly or indirectly prevents the identification from being proper fair and independent.”

In simpler terms, the identifying witnesses must not be in contact with each other once the
process begins. For example, Witness A should not be taken back to the same room as witnesses
B and C after he or she has made their identification. Other practices to ensure fairness are the
exchanging of numbers and positions by the suspects to avoid any chance of malpractice by the
witnesses. To ensure fairness, the parade also takes into consideration the race of the suspects,
height, build, hair color, similar clothing and so on. This is to make sure the witness is certain in
his/her selection.

The case of Lungu v The People emphasizes on the need to conduct a proper identification
parade. The High Court in this case stated that;

"It seems to me that this parade was virtually useless and it was certainly unfair in that the two
appellants were apparently dressed up in completely different clothes from the rest of the
suspects on the parade. Alternatively, it would have been equally fair if the two appellants and
the rest of the suspects on the parade had been dressed in similar nondescript clothing. On the
evidence as I read it, it is inevitable that the two persons dressed as had been described to the
police would be picked out by the complainant. Without the evidence of the identification parade
before me, it is doubtful whether the magistrate would have been satisfied that the accused
persons in the dock before him were those who had been seen on the night in question. Because
of the unsatisfactory nature of this identification parade, I consider that this appeal should be
allowed, more particularly as there is nothing else with which to connect the accused person
with the crime.”

The last part of the above excerpt confirms that the courts will readily convict where the
identification that is as a result of the parade is accompanied with some independent evidence
that links the accused/identified suspect to the crime e.g.: possession of the goods alleged to have
been stolen, DNA of the missing girl etc. The identification becomes stronger or more reliable
when accompanied by independent evidence linking the accused to the crime.

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End.

OPINION EVIDENCE
There is a difference between and opinion and a fact. While facts refer to the truth about events
as opposed to interpretation, opinion refers to any inference from perceived facts. Witnesses are
generally witnesses of fact. This means that they normally testify on what they may have
perceived with at least one of their 5 senses.

The General Rule

It is a general rule at common law that a witness is not allowed to give their opinion when
testifying. The law requires that the witness merely state the facts and it is for the courts to

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decide how to deal with those facts. For example, if a witness saw the accused staggering, they
are allowed to say to the court only what they saw and nothing else. They are not allowed to
render their opinion that the accused was drunk because they are not qualified to derive a
conclusion like a medical expert.

The Exception to the General Rule

The exception arises where there are matters calling for special knowledge or skill. Here, the
court is not equipped to draw inferences from facts stated by witnesses. As such, a witness is
allowed to state his opinion in such matters provided he is an expert in those matters. This is
known as expert opinion evidence. Put differently, sometimes the law recognizes that in some
instances the court may not have the requisite specialty or ability to draw inferences on a
particular matter that lies within a certain field, in which case the court will allow an ‘expert’ to
provide opinion evidence i.e. draw an inference from it. This expert opinion however does not
determine the conclusion of the case. They only state their much needed expert opinion on the
matter at hand and it will then be up to the court to attach whatever weight or value to such
evidence. The court will, in all instances, determine the conclusion of the case.

Reasons for Excluding Opinion Evidence.

 Its reception is usually of no assistance and has potential to even mislead the court.
 lay witnesses are not experts (to the question in issue) whose opinion can be merited.
They should only be allowed to give evidence of facts. R v Harden – The jury were not
experts to determine whether the handwriting was genuine or not.

Case Law on the General Rule

1. Mwelwa v The People

This case involved a non-expert witness. It involved a charge of causing death by dangerous
driving. The judge said

"it is true that witnesses who do not qualify as experts should not be permitted to give their
opinion on the very issues which the court is called upon to decide. However, in order to arrive
at its decision, the court is entitled to rely on the factual evidence given by the non-expert

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witness. The court is simply supposed to rely on the factual evidence given by the non-expert
witness."

The principle that emanates from this case is that a lay person/witness must only give factual
evidence. The courts will draw the inferences from those facts. The witness need not give his
opinion or draw inference from the facts he perceived. Non expert witnesses cannot give
evidence as to the unfitness of a person to drive but may give evidence of the fact that the
accused was drunk in their opinion as long as they do not state that they were so drunk that it
made it unfit for them to drive.

2. Blake v The People

This case involved dangerous driving under the influence of intoxication liquor and failing to
submit to a medical examination. It also relates to non-expert witness. The here stated that,

"but in any event, it did not offend the principle involved that lay persons are not entitled to
place their opinion before the court as to the effect of consumption of alcohol by him on an
accused's ability to drive”

Exceptions to the General Rule

The exception arises where there are matters calling for special knowledge or skill. Here, the
court is not equipped to draw inferences from facts stated by witnesses. As such, a witness is
allowed to state his opinion in such matters provided he is an expert in those matters. This is
known as expert opinion evidence. Put differently, sometimes the law recognizes that in some
instances the court may not have the requisite specialty or ability to draw inferences on a
particular matter that lies within a certain field, in which case the court will allow an ‘expert’ to
provide opinion evidence i.e. draw an inference from it.

This expert opinion however does not determine the conclusion of the case. The experts only
state their much needed expert opinion on the matter at hand and it will then be up to the court to
attach whatever weight or value to such evidence. The court will, in all instances, determine the
conclusion of the case. The Supreme Court in Chansa v The People stated that;

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 "it is for the court to come to a finding. The expert’s evidence is merely there to assist the
court in coming to a conclusion. The court is not bound. It may or may not agree with the
expert evidence. The final decision is up to the court to come to a finding.”

The following are examples of expert opinions and the rules incidental to them.

1. Opinion Evidence of a Handwriting Expert.

The opinion of such an expert may assists the court in arriving at a conclusion in cases where a
handwriting is in dispute. In cases of forgery for example, the courts may rely on the expert
opinion of a handwriting expert. Handwriting evidence unlike that of thumb prints is not
conclusive, thus, evidence merely needs to establish the degree of similarities or distinctions
between the handwriting in question and that of the accused.

This is what was held in the case of Chuba v The People – a case which involved a charge for
forgery on a cheque. Another notable thing about that case is, the handwriting expert failed to lay
down all the materials relevant to establish that the handwriting on the false check was similar to
that of the accused. The court held that the evidence showed clearly that the whole of the
material available was not put before the court. In consequence, the (lower) court was persuaded
to accept the opinion of the expert without having the materials before it upon which its own
opinion could be based. As such, it would be dangerous to allow this conviction to stand. The
appeal was allowed and the conviction was quashed.

In summary, two things can be established from that case;

i. Because handwriting evidence is not conclusive, the evidence produced by the expert merely
needs to establish the degree of similarity and/or difference between the handwriting in issue
and that of the accused.
ii. A handwriting expert needs to lay down/produce all the materials which are relevant in
establishing that the handwriting is similar to that of the accused.
R v Harden

The accused was convicted of obtaining money by false pretenses as a result of a series of false
hire purchase agreements. The chairman during the trial invited the jury to compare the
handwriting on a number of documents. No handwriting expert had given evidence and the

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accused was convicted. On appeal, the courts held that the deputy chairman erred in inviting the
jury to reach their conclusions without the assistance of expert evidence. The appeal was
allowed.

The ratio in this case is that the jury were not experts in handwriting to determine that the
authenticity of the handwriting. As such, it was wrong to convict the accused based on their
examination of the handwriting.

2. Medical Evidence
A medical doctor may be called to court to give expert evidence. In murder cases for example, it
is usual to have a post mortem examination taken by an expert called a pathologist. They always
come to testify to assist the court on what could have caused the death of the deceased. For
instance, in a case where X was murdered by strangulation, the pathologist’s conclusion will
assist the court in deciding whether or not the suspect who was found with a bloody knife was
responsible for the death.

The courts have emphasized the importance of the presence of the medical expert so that he or
she can explain their findings. In Lupupa v The People, the court elaborated that

“whenever the evidence in question is more than merely formal, the expert witness must be in
court to testify on his report.”

The court stated that it is highly desirable in any case where the contents of the report go to the
root of the charge for the maker of the report actually to give verbal evidence so that he can be
questioned on it and explain it.

The court further added that although s. 191 A of the CPC makes provision for the report to be
presented without the expert, this was only intended for purely formal aspects such as to
establish a fact of death in order to complete a chain of events. The section makes provision to
call for the expert but the expert [it was stated] must be there where the evidence in question is
more than purely formal.

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Additionally, in Sipalo Cibozu and Chibozu v The People, the appellants were convicted of
murder. One issue for the court concerned a post-mortem report on the deceased which had been
made by a Government medical officer who was not called as a witness.

The court held that medical reports usually require explanation not only of the terms used but
also of the conclusions to be drawn from the facts and opinions stated in the report. It is therefore
highly desirable for the person who carried out the examination in question and prepared the
report to give verbal evidence. It was stated that;

“It must only be in ‘the simplest of cases’ that a judge in the exercise of his discretion under s
191A would decide not to call the medical officer. The present does not fall within that category.
In view of the failure to call the medical officer, we did not see that it was proved beyond
reasonable doubt that the aged victim had not died from natural causes before her house,
whether accidentally or by being burnt to death. For the above reasons, we considered it was
unsafe to allow the convictions to stand. We allow both appeals, quash the convictions and set
aside the sentences.”

On the authority of Chisampala v The People (unreported) medical evidence must be as full
and detailed as possible. Furthermore, evidence by a medical expert can also assists the court in
determining the age of someone in cases where proof of age is required e.g. in Kapwepwe v R,
where the appellant was convicted of defilement. Proof that the prosecutrix was below the age of
16 was required and a medical expert was employed.

3. Ballistic Evidence
Ballistic experts are usually relevant in aggravated and armed robbery cases. They give their
expert opinion on questions of linking firearms to casings and cartridges. However, the ballistic
expert ought to support his/her opinion with specimens, materials and findings from his/her tests.
In the case of Chansa v The People, a ballistic expert gave evidence that the used round was (in
his opinion) fired from that very gun. However, he did not support his opinion by any test
material or photographs before the court. He had to present specimens, materials and test results.
The Supreme Court held that the failure by the expert to produce the test materials before the
courts was fatal to the prosecution’s case.

MBOLELA, 2021
End.

MBOLELA, 2021