Evidence 1 Lecture Notes

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Evidence 1 Lecture Notes
Law (University of Zambia)
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Lecture Notes by Rose Samakayi
1. INTRODUCTION TO THE COURSE

The Law of evidence is about rules regulating the presentation of
matters that may be considered in proving facts, what value or weight
they have. The large part of the rules consists of exclusions of relevant
and often important information. Evidence is the proof or testimony
that is adduced by a party in court. In criminal cases evidence is
required only when an accused pleads not guilty. If the accused’s plea
is of guilty the Court convicts then proceeds to sentence the accused
and no trial takes place. The evidence of a fact is that which tends to
prove the facts existence. It is on proven facts that the courts
pronounce the rights, duties and liabilities of parties.
SOURCES OF LAW
In Zambia the sources of law are:
(a) Customary law
This is the first and indigenous law of the tribes. It is not uniform
and consists of variant laws with similar and broad principles in all the
various tribal systems. Because the application of customary law is
restricted to customary law disputes like small claims in tort and
matrimonial cases it is not very important to lawyers. In customary
procedure all evidence inclusive of hearsay is admissible and the
importance lay in the weight attached to each particular item of
evidence.
(b) Common Law of England
The Zambia legal system is a product of its history. As a former
British protectorate Zambia inherited the common law system by
virtue of several laws that refer to the law of England especially the
English Law (Extension of Application) Act Chapter 11 of the Laws of

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Zambia which came into effect on 8 th March, 1963. This provides for
application of:
i. Common Law;
ii. Doctrines of Equity;
iii. Statutes which were in force in England by 17 th August,
1911; (being the Commencement of the Northern
Rhodesia Order in Council 1911) and
iv. Any later statutes applied to Zambia.
The practice by the courts in Zambia was to refer to decisions in
English and other common law jurisdictions. Such decisions are not
binding but have been followed as authoritative statements of the law.
c. Books of authority, i.e. Archibald, Cross and Jones, Hatchard and
Muna Ndulo, Kulusika, and Smith and Hogan, etcetera.
d. statutes Evidence Act CAP 43, Bankers Evidence Act CAP 44,
Penal Code CAP 87 Criminal Procedure Code CAP 88, especially
sections 151, 157, 158 and 159; The juvenile Act CAP 53 sections 118,
122, 126, 128, 129 and 131; and the Constitution CAP 1.
e. Zambian case laws
i. NATURE AND CLASSIFICATION OF EVIDENCE:

- Evidence of a fact is what tends to prove it, something which
may convince an inquirer of the facts existence. Proof of facts
will enable the legal establishment of the rights duties and
liabilities of parties. This has become a principle of “natural
Justice.”
Ridge v Baldwin (1964) AC 40
- The principal of oral testimony is dominant
- The burden of proof generally rests on the person who positively
asserts facts.
The general rule is that a party must establish proof of every
material fact he intends to rely on by sufficient evidence.

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However not all facts relating to a matter may be presented in

evidence.
- In order for evidence adduced in relation to the facts in issue to
be received in court of law it must not only be relevant to the
fact(s) in issue. (Read: Boldron v Widdows (1824) Car & P 65)
but must also be admissible. It must not be excluded by any
exclusionary rules of evidence.
Read:
R v Quinn and Bloom (1962) 2 QB 245
Joseph Constance Steamship v Imperial Smelting Co Ltd. (1942)
AC 154
Woolmington v DPP [1935] AC 462
The principles of evidence in civil and criminal cases are
generally the same except:
- In criminal cases proof is beyond reasonable doubt an in civil
cases proof on a balance of probabilities may suffice.
- In criminal proceedings dying declarations may be admissible in
trials of murder and manslaughter while in civil cases such
declarations are inadmissible.
- The good character of the accused is only admissible in criminal
but not in civil cases
- Admissions are admissible only if they are made voluntarily while
in civil proceedings they are almost always admissible.
- In criminal cases un-sworn evidence may be admissible. In civil
cases evidence is received only when given on oath.
- In criminal cases the spouse of the accused is competent but not
always compellable. In civil cases the parties’ spouses are almost
always compellable.
ii. RECEPTION

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The reception of evidence is generally on oath or by sworn

affidavit in an adversarial manner.
The mode of proof recognised is oral and particular kinds of proof
other than documents by documentary and oral evidence.
 oral evidence
The testimony is the statement a witness given by word of mouth
in the witness box and is usually on oath or affirmation.
 documentary evidence
Documentary evidence is any evidence introduced at a trial in
the form of documents. Although this term is most widely understood
to mean writings on paper (such as an invoice, a contract or a will), the
term actually include any media by which information can be
preserved. Photographs, tape recordings, films, and printed emails are
all forms of documentary evidence.
Evidence is derived from inspection of some document for example a

map, graph or drawing tape, sound track etcetera.
In Grant v Southwestern and County Properties (1974) 2 ALL E R

465, tape recording was held to be a document.
Section 2 of The Evidence Act CAP provides that a document

includes “any device by which information is recorded or stored and
includes books marks and drawings.”

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In Fabrics v Taylor (1985) FRS 75, invoices, records of stock and

other documents were documents for purpose of use as evidence to
support of or to dispute a litigant’s case.
Authentication
Documentary evidence is subject to specific forms of

authentication, usually through the testimony of an eye witness to the
execution of the document, or to the testimony of a witness able to
identify the handwriting of the purported author. Documentary
evidence is also subject to the best evidence rule, which requires that
the original document be produced unless there is a good reason not to
do so.
 Public Records
A client may have a right to access public records containing
information relevant to his case. A party is entitled to call for Court
records, judicial documents, police records, information from the
Director of Public Prosecutions (DPP) or statements made by witnesses
or suspects even though they may be dead. Statements may also be
obtained from witnesses abroad. The court may take the as primary or
secondary evidence.
Documentary versus physical evidence
A piece of evidence is not documentary evidence if it is

presented for some purpose other than the examination of the
contents of the document. For example, if a blood-spattered letter is
introduced solely to show that the defendant stabbed the author of the
letter from behind as it was being written, then the evidence is
physical evidence, not documentary evidence. However, a film of the
murder taking place would be documentary evidence (just as a written
description of the event from an eyewitness). If the content of that

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same letter is then introduced to show the motive for the murder, then
the evidence would be both physical and documentary.
In Woods v Martins Bank (1959) 1 QB 55 the court held that a

lawyer owed a duty to court to ensure there was no destruction of a
document even if it was in the best interest of his client to do so.
 real evidence
Its object is demonstrative. Educe evidence straight from
examination of objects other than documents.
The term “real evidence” covers material objects the general
appearance of persons, the demeanour of witness, and a view.
Oral evidence is required to introduce or explain real evidence.
The non production of physical object by a party who could produce it
may lead to its being discredited. However, if it may be inconveniently
produced, its non production will not render inadmissible oral evidence
relating to it.
Whether a document is considered documentary or real evidence
will depend on if it is produced as evidence of its existence or of the
matter contained therein. The term “real evidence” covers material
objects the general appearance of persons, the demeanour of a
witness, and a view out of court, i. e. an inspection by a judge of some
object or place constitute facts from which facts in issue may be
inferred. For example:
“I think a view is part of the evidence just as much as an exhibit ” per
Lord Denning in Goold v Evans & Co. (1745) 1 Atk. 21.
 primary (or best) evidence
In general primary (or best) evidence which by its nature does
not suggest the existence of better evidence is admissible, e.g. original
Cheque is first hand evidence in its original form. The evidence act
allows only certified true copies to be tendered in evidence.

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“There is but one general rule of evidence, the best that the nature
of the case will allow.” per Lord Harwicke in Omychund v Barker. (1951)
2 TL R 1189.
In MacDonnell v Evans, (1852) 11 CB 930 Maule J stated that:
“If you want to get at contents of a written document, the proper
way is, to produce it, if you can. That is the rule in which the common sense
of mankind”
The best evidence rule has but all disappeared in practice save
as a “counsel of prudence” as in Hocking v Ahlquist Bros Ltd [1944] KB
150 [1943] 2 ALL ER 722, where the question was as to the condition
of a manufactured article.
Survival remains in strict proof of marriage as in Bigamy and
proof of age in trial on charge of unlawful intercourse with a girl under
the age of sixteen.
 Secondary evidence
However, courts have discretion to admit a copy or secondary
evidence where no better evidence is available because the original is
lost or cannot be found. For example, the fact in issue is the contents
of a letter written by X and a copy of it is produced in court.
Read R v Nowaz [1976] 3 ALL ER 5
For example the contents of A’s will are in question and a
daughter gives oral evidence of its contents.
Read Brown v Woodman (1834) 6 Car & P 206
 Opinion
Normally a court of law does not convict on opinions but facts.
However, expert witnesses’ opinion is accepted in evidence. Medical
doctors, handwriting experts are allowed to give opinion evidence.
 Hearsay
The general rule is that hearsay evidence is not admissible in court.

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Other classifications
 Insufficient evidence
Evidence is insufficient if it is so weak and unsure that it would not
support any issue to be decided in favour of the party adducing it.
Hawkins v Powell’s Tillery Steam Coal Co. [1911] KB 988.
The fact that an issue was decided on insufficient evidence is a ground
for appeal as a matter of law. In criminal proceedings if evidence is so
weak or insufficient the accused is entitled to an acquittal.
 Prima facie Evidence
Evidence in support of a fact in issue, necessitating acceptance of that
fact in the absence of further contradictory evidence (for example, a
share certificate is prima facie evidence of good title. Read the case of
Smithwicke v N.C.B. (1950] 2 K.B. 335
In criminal cases the evidence of a fact is said to be prima facie if it
necessitates a finding that it has been proved if the evidence is not
contradicted. (Read: Machobane v TP (1949) IV NRLR
T P v Japau (1967) Z.R. 95 (H.C.)
A submission of Case to answer can only be upheld if there is prima
facie evidence
1] In short the test is: there is a case to answer if the prosecution evidence
is such that a reasonable tribunal might convict upon it if no explanation
were offered by the defence. [2] A submission of no case may properly be
upheld:
(a) if an essential element of the alleged offence has not been proved;
and
(b) when the prosecution evidence has been so discredited by cross-
examination or is so manifestly unreliable that no reasonable tribunal could
safely convict on it.
 Conclusive Evidence
Some statutory provision obliges the court to accept as
conclusive proof of a fact and reject evidence adduced in an attempt to

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disapprove it; i.e. the irrebuttable presumption of ignorance of the law.

Read: Kerr v John Motham Ltd (1940) Ch 657.
That a boy under the age of 12 years cannot commit rape is taken by
the law to be conclusive.
 Judicial Notice
The court will take judicial notice of facts where evidence need
not be given. In order to be judicially noticed the facts must be
notorious facts or facts of common knowledge, for example it is
common knowledge that Christmas day is on 25th December, every
year. It would be unnecessary to call a witness to swear that Christ’s
birth is celebrated on 25th December, as this is a matter that is
judicially noticed.
 Estoppel
Estoppel applies to evidence or a statement of fact which a
person is estopped from denying if he had not denied it earlier or he
had conducted himself in such a manner that he would be taken to
have condoned certain behaviour.
THE KEYSTONE OF EVIDENCE:

 Parties should be treated fairly throughout the proceedings
and must be heard (audi alteram parteni).
Read: Ridge v Baldwin (1964) AC 40
Zinka v AG (1990/2) ZR 73; S.C.Z. Judgment No. 9 of 1991
This is a principle of natural justice that a party shall not be
condemned unheard.
 The principal of oral testimony is prevalent.
 The burden of proof is on the person asserting the facts.
 Matters that a party elects to adduce must be relevant to the
facts in issue,
(See Boldron v Widows (1824) Car & P 65)
and must be admissible.

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Read: R v Quinn & Bloom (1962) 2 QB 245

Joseph Constance Steamship Line v Imperial smelting Co ltd.
1942 AC 154
Woolmington v DPP (1935) AC 462
The burden of proving facts is on the prosecution.
R v Windle (1952) 2 QB 826
In general a party must prove every material fact upon which he
intends to rely by sufficient evidence.
Not all facts relating to a matter may be presented to the Court
as proof of facts in issue and facts relevant to the issue are allowed.
iii. ADMISSIBILITY
The term admissibility in the law of evidence refers legally
receivable evidence whether logically probative or not. In order to be
received the evidence must not be excluded by the exclusionary rules
of evidence. In DPP v Kilbourne [1973] AC 729, the issues that their
lordships had to decide on were (a) relevance; (b) admissibility (c)
corroboration (d) weight. Lord Simon of Glaisdale said,
“The first two terms are frequently; and in many circumstances
legitimately, used interchangeably; but I think it makes for clarity if they
are kept separate, since some relevant evidence is admissible and some
admissible evidence is irrelevant…. Evidence is relevant if it is logically
probative or disprobative of some matter which requires proof…. Evidence
is admissible if it may be lawfully adduced at a trial. Weight of evidence is
the degree of probability (both intrinsically and inferentially) which is
attached to it by the tribunal of fact once it is established to be relevant
and admissible in law….
Exceptionally evidence which is irrelevant to a fact which is in issue
is admitted to lay the foundation for other, relevant, evidence (e.g.
evidence of unsuccessful search for a missing relevant document, in order
to lay the foundation for secondary evidence of the document) Apart from
such exceptional cases no evidence which is relevant to a fact in issue is
admissible.”
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Further readings:
Banda v The People (1990/92) ZR 70
Ndakala v The People (1980) ZR 180
Mbewe v The People (1983) ZR 59
Lusaka West Development Co. v Turnkey Properties (1990/2) ZR 1
The evidence must be either relevant or indirectly relevant to poof of
the fact(s) in issue.
To be admissible evidence must be relevant to the fact in issue or
relevant to facts relevant to the issue. However not all evidence
relevant to the fact in issue is admissible.
Facts in Issue
Facts in Issue refer to all those facts (main or principal) which require
to be proved by the party alleging them in order in order to succeed
and for defendant or accused all facts that need to proved in order to
establish a defence. They become known from the pleadings or from
substantive law.
Fact in issue may be proved by direct or circumstantial evidence.
Facts Relevant to the Issue

Facts relevant to the issue also known as evidential or logically
probative facts refer to facts from which the fact in issue or relevant
facts may be inferred. These facts are so related to the facts in issue
that the render the facts in issue either probable or improbable.
Testimony
Testimony is the assertion of a witness tendered/offered in court
as evidence of the truth of what is asserted. It is a statement of a
witness in court usually made on oath or affirmation.
R v Hangumba (1963/4) ZR 55
Mvula v T P(1990/2) ZR 54
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Kambarage Mpundu Kaunda v TP(1990/2) ZR 215

Joseph Mutaba Tobo v T P(1990/2) ZR 149
(a) Direct (or original) Evidence
 Direct Evidence is the testimony of a fact actually in
issue perceived by a witness with one of his senses. Direct evidence
requires acceptance of the truth of the fact asserted.
(b) Hearsay (or indirect or second-hand) evidence
 Hearsay evidence is indirect or second hand evidence of
some fact not actually perceived by a witness with one of his senses
but proved by him to have been staged by some other person.
Direct and circumstantial Evidence
Evidence is said to be direct when it consists of testimony
concerning the perception of facts in issue. Evidence is circumstantial
when it consists of number evidential facts from which an inference is
drawn pointing to the same and only reasonable conclusion i.e. that
the accused committed the offence alleged.
Circumstantial evidence
This is evidence of some fact not actually in issue, but relevant to
the fact in issue, from which a fact in issue may be inferred. It is
evidence which requires mental process on the part of the jury or
where there is no jury the judge to accept the fact and draw an
inference sought by the proponent of the evidence. Circumstantial
evidence is not inferior to direct evidence if the inference required is so
obvious and compelling. It has two weaknesses:
- The witness may be lying or mistaken as to the facts;
- If the witness tells the truth the inference drawn may be an
incorrect one.
Per Pollock C.B. in R v Exall: (1866) 4 F & F 22 at page 929
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“It has been said that circumstantial evidence is to be considered as

a chain and each piece of evidence is a link in the chain, but that is not so
for then if any one link breaks, the chain would fall. It is more like a case of
rope comprised of several cords. One strand of the cord might be
insufficient to sustain the weight but three stranded together may be quite
of sufficient strength. Thus it may be in circumstantial evidence – there may
be a combination of circumstances, no one of which would raise a
conviction or more than a mere suspicion, but the whole, taken together
may create a strong conclusion of guilt, that, is with much certainty as
human affairs can require or admit.”
Where circumstantial evidence is the evidence tendered to prove
the commission of the offence intent is proved by the acts committed
for example from the evidence of planning and preparations made; and
from evidence of avoidance of detection, that is, destruction of
evidence or flight from the scene of crime.
Circumstantial evidence requires particular Attention in order to
make correct inferences.
In David Zulu v TP, [1977] ZR 151 the accused was convicted of
murder in the course of sexual assault. The injuries found on the body
of the deceased suggested that she had struggled with her assailant.
Circumstantial evidence was heard at the trial that the accused had
earlier been seen drinking beer at a bar and that they had been seen
leaving together at midnight. The partially undressed body of the
deceased was found between 06.00 to 07.00 hours in the morning. The
accused was found with scratches on the neck and chest. His
unchallenged excuse for having the scratches was that they had been
caused by flying pieces of iron at his work place. The trial court found
that the pieces of iron could not have penetrated the protective
clothing accused wore at work and inferred that the scratches were
sustained during the struggle with the accused. His unchallenged
excuse brought the case into a realm of conjecture so that it was
probably him or probably some other person committed the murder. It
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was this doubt which led the Supreme Court to acquit him of the
murder.
In Naweji v TP, [1981] unreported the facts of the case were that
on October 16/17, 1977 the appellant and a Muke Mutondo were
charged with murder of his wife Rozaria Lubeleto the deceased. The
appellant and Muke, who was acquitted of murder were seen together
that evening of the fatal night. At about midnight the appellant went to
Eunice Kachiwena’s house identified himself and asked for food. After
he was told that there was no food, he asked for the deceased who was
looking after Eunice who was sick to come out to meet her husband.
Both ladies came out and immediately the appellant left with the
deceased. The following day the deceased was found dead. The
appellant told Detective Sergeant Mate and in his unsworn statement
said that Muke had hit the deceased twice with an iron bar. The police
recovered the iron bar in an open space near a derelict motor vehicle.
The learned trial commissioner found that there was ‘strong
circumstantial evidence’ upon which he convicted the appellant and
acquitted Muke. The issue was whether the inference of guilty that the
learned trial Commissioner made was the only one reasonably
possible. Silungwe CJ found that that inference was not the only one
possible. While the deceased was last seen in the appellants company,
and the appellant led the officer to recover the iron bar the explanation
given by the appellant to the sergeant and in unsworn statement
portrayed that Muke was the culprit. The honourable Chief Justice said
it seemed that Muke was present at Eunice’s house behind a lavatory
to avoid being seen by Eunice. Secondly that the iron bar was not
‘hidden’ as on photographs tendered by police it was found in an open
space near a disused vehicle. This showed that appellant did not hide
the bar. Thirdly that at the trial Commissioner blamed the appellant
rather improperly for remaining silent in the face of very incriminating
and strong evidence against him and that led to the conviction. The
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appeal was allowed. The Chief Justice quoted Chomba JS from Zulu v
TP, [1977] ZR 151 at pp 152 and 153 as follows:
“It is … incumbent on the 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 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 degree of
cogency which can permit only an inference of guilt.”
In R v Taylor, Weaver and Donovan, [1928] 21 Cri.App.R.20 the Lord
Chief Justice stated that;
“it has been said that the evidence against the applicants is
circumstantial; so it is, but circumstantial evidence is very often the best. It
is evidence of surrounding circumstances which, by an undesigned
coincidence, is capable of proving a proposition with the accuracy of
mathematics. It is no derogation of evidence to say that it is
circumstantial”.
In Kuyewa v TP [1995/7] ZR 126; SJZ No 8 of 1996 (SC), Green
Musheke Kuyewa, the appellant was convicted of murder. The brief
facts of the case are that the appellant was the last person seen with
the deceased after she knocked off from school. He attempted to flee
from the police and he effectively played his part in leading police to
the badly mutilated and decomposing body of the child. The court held
that the circumstantial in the case had attained such a degree of
cogency the inference could not be resisted that the appellant was
guilty of murder. The appeal against the conviction was unsuccessful
and it was held that the learned trial judge in the court below had
amply described and relied upon very strong circumstantial evidence.
In an Indian case of Faddi v State of Madhya Pradesh, [1850] Cr.
L. J., 744 the circumstances established were sufficient to prove the
guilty of the accused beyond any reasonable doubt. The accused was
the last person in whose company a murdered boy was seen alive, he
knew where the dead body lay below the waters in a well in a lonely
place, and he gave an untrue explanation in the report lodged by him
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about his knowledge as to where it was lying. The Supreme Court of

India held that in the circumstances, the High court was justified in its
conclusion that the circumstances established in the case were
sufficient to prove the guilt of the accused for the murder of the
deceased beyond any reasonable doubt.
Read: Mutale and Phiri v TP (1995/7) ZR 227.
The Only reasonable inference possible
In Patrick Sakala v TP (1980) ZR 205 the appellant was convicted
of murder of Rute’s four-year-old son. The facts were that after
travelling with Rute for two hours he proposed making love to her and
upon her refusal he assaulted severely and left her unconscious. Eight
hours later she regained her consciousness to find her suitcase gone
and her son dead. There was no dispute as to the accused’s identity
and that he assaulted Rute. On appeal the appellant argued that there
was no direct evidence connecting him to the death of the boy. The
question was whether the boy could have met his death by unnatural
causes. The Supreme Court upheld a conviction on the basis of
circumstantial evidence and held that where there is no eye-witness to
the killing, circumstantial evidence must once again be called in aid.
The court quoted with approval that the learned Commissioner in
Patrick Sakala v TP(1980) ZR 205 at page 208,had directed himself
properly on the issue as follows:
“I am bound to assume that natural causes have not been ruled out
unless there are compelling facts to the contrary when it would be totally
unacceptable so to assume. In fact, I find such compelling facts to exist.
The child was no doubt alive before the mother lost consciousness. It was
dead when the mother found it at about 1600 hours when she recovered
consciousness. There were bruises on its neck and suboccipal haematoma.
There was a belt wound tightly around its neck. It would be madness to talk
about natural causes in such circumstances: In the event, even though the
medical evidence as to cause of death is uncertain, I am certain, not to the
cause of death in medical language, but of the type of death the child met,
namely that it was unnatural and certainly not at his own hands.”
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On the issue of the possibility of the child having been killed by the
third party the Supreme Court ruled this out on the facts that the police
recovered a dress identified by Rute as hers which the appellant gave
to a member of the public and which dress had been in the suitcase
stolen by the appellant as found by the trial court. The Court concluded
that:
“…the circumstantial evidence implicating the appellant with the crime
charged is overwhelming. He had the opportunity and the motive. It seems
probable to us that baring beaten up the child's mother and left her for
dead the appellant must have decided to take the child's life in an effort to
eliminate the chances of his being later identified by the child.”
D.P.P v Nieser (1958) 3 All E.R. 662; at page 669 cited with approval in
Chabala (1976) Z.R. 14 (S.C.):
"The inference appropriate to the particular facts proved is not a
presumption of law, it is merely an inference of fact drawn by applying
common sense to the proved facts, and there is no 'doctrine' that in a
receiving case where recent possession on the part of the accused is
proved he is presumed, in the absence of evidence to the contrary, to have
known the true facts of the way in which the goods were obtained. "
The court also quoted from R v Fanwell (1959) 1 R. & N. 81per Clayden,
F.J., at page 84, as follows:
"That case was a case of receiving. But what was said is of course
equally applicable to any other case in which, guilt may be inferred in such
circumstances.”
In Chabala the court said:

“Involved in this statement of the law are matters concerning the
general principles applicable to inferences in the criminal law. The
inference 'may' be drawn; not must. Such a case must be treated as any
other case in which guilt is found by inference. The inference must be the
only reasonable inference. And if a person is in possession of property
recently stolen and gives no explanation the proper inference from all the
circumstances of the case may be that he was the thief, or broke in to steal
and stole, or was a receiver, or even, despite no explanation, cannot be
said beyond reasonable doubt to be guilty. And if explanation is given,
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because guilt is a matter of inference, there cannot be conviction if the

explanation might reasonable be true, for then guilt is not the only
reasonable inference. It is not correct to say, as was said in this case, that
the accused must give a satisfactory explanation. Absence of an
explanation which can be regarded as reasonably possible is one of the
facts on which the inference of guilt may be based. Mere possession of
property recently stolen is not enough, for there may always be a
reasonable explanation of such possession, and, until it appears that one is
not given, the extra fact to dispose of that possibility is not present to
found a finding of guilt by inference.” per Hughes, J S in Chabala V The

People (1976) Z.R. 14 (S.C.), at page 16.
The Court cited from Maseka the following:
“This passage requires no elaboration. I would only emphasize one
point which is all too frequently not appreciated; even in the absence of
any explanation, either at an earlier stage or during the trial, the inference
of guilt cannot be drawn unless it is the only reasonable inference to be
drawn from all the circumstances." per Baron J P , as he then was,

Maseka v TP (1972) ZR 9 at page 13.
It was also held in R V Onufrejczyk [1955] 2 QB 388 on a charge of

murder that:
“At the trial of a person charged with murder, the fact of death is
provable by circumstantial evidence, notwithstanding that neither the body
nor any trace of the body has been found and that the accused has made
no confession of any participation in a crime .”
In Banning V United States, 317 US 695 it was held that

generally, that evidence is relevant where it shows that the accused
owned, possessed or had access to any weapons with which the crime
was committed or might have been used. The theory is that such
possession is some evidence of the probability of the commission of
the act in question by the possessor.
In R v. Woodman [1974] Q.B.754 it was held that a person in
control of a site, excluding others from it, is prima facie also in control
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of articles on that site, it being immaterial that he was unconscious of

their existence.
Cumulative Effect of the Circumstantial Evidence

Edwin Conrad, in his book ‘Modern trial evidence,’ 1956 on page 795
writes that:
“Circumstantial evidence is like a wire cable, composed of many
small associated but independent wires. The strength of the cable depends
upon the number of wires which are combined, but some of the wires may
be broken and yet sufficiently strong to uphold the structure. The probative
force of circumstantial evidence is increased in proportion to the number of
circumstances”.
In Towell’s case [1854] 2C & K 309 Baron Park stated that;
“But it is equally true with regard to circumstantial evidence, that
the circumstances clearly proved may often be so closely connected with
the crime that the mind may be as well convinced by them as if the crime
were proved by eye-witnesses”.
The total cumulative effect of all proved facts combined, each

one of which reinforces the conclusion of the appellant’s guilt upon
evidence which is purely circumstantial, are of such a decisive nature
that taken as a whole they do not admit of any other inference except
the inference of guilt of the appellant. In effect they create a network
through which the appellant has no escape.
Archibald, Criminal pleading, Evidence and Practice, 1997 ed., Chapter
19 page 1577 paragraph 19.9 state that:
“If the combined effect of all those facts taken together is conclusive
in establishing the guilt of the accused, conviction would be justified even
though it may be that any one or more of those facts by itself is not
decisive.”
2. BURDENS AND PRESUMPTIONS

i. BURDEN OF PROOF
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The 'presumption of innocence', is the concept that underlies law

on the burden of proof. A person is presumed innocent until proven
guilty.
The concept of proof in law of evidence is no more than the
aggregation of facts and the circumstances that convince a tribunal of
the truth of some allegation, or to put it in another way, it is those
methods by which the existence or non existence of facts is
established to the satisfaction of the court.
There is a difference in the meaning attached to the phrase
‘Burden of Proof’: general burden, specific burden and evidential
burden.
The general burden is known as the persuasive burden, the
burden of establishing the case, the burden of proof on pleadings and
the fixed burden of proof is the onus of proving a criminal charge
beyond reasonable doubt against the accused and it always rests upon
the prosecution to i.e. he who alleges must prove. This is also known
as the legal burden. The accused is innocent until proven guilty,
Article 18 (2) (a) of the Constitution CAP 1 of the laws of Zambia.
However, in exceptional circumstances the law requires the accused to
prove his assertions i.e. where accused pleads insanity but proof in this
case is on a balance of probability.
The Specific Burden is an expression by some writers to refer to
the specific obligation on a party to prove some individual issue or
some fact relevant to the issue. The general and specific burdens
comprise the legal burden of proof, according to other writers.
Concept of Proof
In general the burden or onus of proof is the obligation of proving
facts arising during the hearing. In both criminal and civil cases the all
encompassing maxim that regulates the legal system is “He who
alleges must prove”. Usually the burden of proof is on the plaintiff in
civil matters or on the prosecution in criminal proceedings. This
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burden is also known as the ‘legal or persuasive burden’ of proof. This

burden does not shift but remains on the proponent of facts, i.e. the
prosecution throughout the proceedings. However, in certain instances
the statute lays the burden on the defendant i.e. when accused raises
a defence of insanity under section 11 of the Penal Code CAP 87 he
must prove that he is insane. This is because every person is presumed
to be sane or mentally composed until the contrary is proven. In such
cases the accused must prove on a balance of probabilities.
In Woolmington v DPP, 1935 AC 462, the accused was convicted
of murder of his wife. His defence was accident.
Viscount Sankey LC said:
“if there was reasonable doubt created by the accused person that
the shooting was accidental there was no malice aforethought, then the
accused must be acquitted”
“….But while the prosecution must prove the guilt of the prisoner, there is
no such burden laid on the prisoner to prove his innocence and it is
sufficient for him to raise doubt as to his guilt.; he is not bound to satisfy
the jury of his innocence.
[W]here intent is an ingredient of the crime there is no onus on the
defendant to prove that the act alleged was accidental…that it is the duty
of prosecution to prove the prisoner’s guilt subject to what I have already
said as to the defence of insanity and subject also to any statutory
exception. If, at the end of and on the whole of the case, there is a
reasonable doubt, created by the evidence given by either the prosecution
or the prisoner, as to whether the prisoner killed the deceased with a
malicious intention, the prosecution has not made out the case and the
prisoner is entitled to an acquittal.”
Under section 25 of the Penal Code the law makes it an offence

for any person who is found with an article, e. g. crowbar or hammer,
which may be used for theft or burglary when not in his place of abode
at night or in the early morning hours.
Read:
TPv Mbewe (1980) ZR 246
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The burden of proof does not shift in the course of a trial.
A charge, claim or defence has certain essential elements that

have to be proved for the success of the party asserting it. For instance
in a claim for negligence, the plaintiff has to prove that:(1) the
defendant owed the plaintiff a duty of care; (2) that the defendant by
an act or omission was in breach of that duty of care; (3) that as a
result of that breach the plaintiff suffered injury or damage for which
the law allows him to seek recovery. These elements of negligence
constitute the ‘facts in issue’ or ‘ultimate facts’ derived from the
substantive law. To prove these facts in issue he has to prove the
evidential facts that the defendant drove while drunk, too fast on the
wrong side of the road, and knocked the claimant down, breaking his
leg.
Successful discharge of the burden of proof ensures that the

party successfully proves the fact in issue. The standard that must be
reached is known as the 'standard of proof'.
ii. STANDARD OF PROOF

The Standard of Proof in criminal cases is proof beyond
reasonable doubt and in civil cases it is proof on a balance of
probabilities. The Standard of Proof refers to the degree to which the
Burden of Proof is discharged. In criminal cases the Standard of Proof is
higher than in civil matters because sanctions under criminal law are
heavier than those under civil cases.
There are no absolute standards. There are varying degrees of

proof which will tend to differ in relation to the seriousness of the facts
to be proved. Lord Denning in Bater v Bater (1951) P. 51 stated that:
“the difference in opinion about the standard of proof in recent years

may well turn out to be more a matter of words that anything else. It is of
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course true that by our law a higher standard of proof is required in

criminal cases than in civil cases. But this is subject to qualifications that
there is no absolute standard in either case. In criminal cases the charge
must be proved beyond reasonable doubt, but there may be degrees of
proof within that standard. A civil court, when considering a charge of
fraud will naturally require for itself a higher degree of probability than
that which it would require when asking if negligence is established. It
does not adopt so high a degree as in criminal court, even when
considering a charge of a criminal nature, but still it does require a degree
of probability which is commensurate with the occasion”
STANDARD OF PROOF IN CRIMINAL CASES

In criminal cases the standard of proof is proof beyond
reasonable doubt.
R v Winsor (1865) 4 F & F
Woolmington v DPP (1935) AC 462
In Miller v Minister of Pensions, (1947) 3 ALL E R 372, the
Denning M R set out the following standard;
“The degree of cogency required in a criminal case before an
accused person is found guilty…is well settled. It need not reach certainty,
but must carry a high degree of probability. Proof beyond reasonable
doubt does not mean proof beyond the shadow of doubt. The law would fail
to protect the community if it admitted fanciful possibilities to deflect the
course of justice. If the evidence is so strong against a man as to leave only
a remote possibility in his favour which can be dismissed with the sentence
‘of course it is possible, but not in the least probable,’ the case is proved
beyond reasonable doubt.” And nothing shot of this will suffice”
Therefore, according to Miller’s case, if there is more than a
remote possibility of accused innocence he should be acquitted. R v
Summers (1952) 1 ALL E R 1059 states another way of expressing the
standard of proof to the jury that the jury must be “ satisfied so that
they feel sure” of accused’s guilty.
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The Exceptions to the General Rule on the Burden of Proof in

Criminal Cases:
Given the presumption of innocence and the rule that he who
asserts must prove the burden of proving the guilt of the accused rests
with the prosecution. The prosecution must prove the commission of
the offence, any requisite intent, and identity of the offender.
The Incidence of the Burden of Proof
a) The burden of proof rests on the prosecution even where it involves
proof of a negative, for example, the absence of consent on a charge
of assault.
Read: R v Horn, (1912) Cr. App. Cases 200.
b) In a few exceptional cases the general burden lies on the accused:
(i) Proof of special plea in bar, proof relating to special plea in bar,
such as autrefois acquit or autrefois convict is on the accused.
(ii) Insanity where the issue is raised by the accused
The Legal burden on accused on plea of insanity or where a
statute places it on the accused is on a balance of probabilities. Read:
R v Carr- Briant (1943) K B 607.
The presumption of innocence is not violated in the exceptional
circumstances where the statute imposes a legal burden of proof upon
the accused is proportionate (R v Lambart (2001). This is a fair balance
between the public interest and the protection of human rights of the
individual; and the legislatures view concerning what is public interest.
Read: R v DPP Exp Kebilene (2000) 2 AC 346. Thus in R v Ali; R v Jordan
(2000) the Court of appeal held that statutory imposition of legal
burden of proving the defence of diminished responsibility on the
accused under S.2(2) of their Homicide Act 1957 was not in violation of
Article 6 (2) of the European Convention on Human Rights. Contrast
this with the Holding in R v Lambert (2002) 2 AC 545where the defence
concerned an essential element of the offence with which the accused
was charged that is his knowledge of the matters alleged against him.
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The English law expressed in Woolmington recognised the right

of the accused to the presumption of innocence and the imposition of a
legal burden of proof on the accused was in no way derogation from
the prosecutor’s onus “of proving every element of the offence
charged.”
Section 11 of the Penal Code, CAP146 (now CAP 87) states that:
"Every person is presumed to be of sound mind, and to have been of
sound mind at any time which comes in question, until the contrary is
proved."
In Joseph Mutapa Tobo v TP, (1985) Z.R. 158 (H.C.) at page 159,
160 & 162, the Issue was whether every disease of the mind can
sustain a defence of insanity. It was held that:
“(i) It does not follow that just because an accused suffers from disease
of the mind, his actions should be dismissed as those of lunatic. The kind of
disease of the mind which is relevant to the defence of insanity is that
which produces the kind of act or omission complained against.”
The Court after quoting section 11 of the Penal Code said that:
“It then becomes the accused's burden to prove that he was insane
at the time he committed the offence in order for him to rebut the
presumption of intention.”
“It therefore becomes necessary to show, on the part of the accused,
systematic course of conduct, propensitively leading to the act or omission
in question. It ought, for instance in this case, to be demonstrated by
evidence that the accused's disease of the mind had rendered him acquire
the propensity to assault women sexually or to terminate the lives of living
things or even to resort to ordinary physical violence against a class of
persons or all and sundry.”
“It is not an action of a man who believes to be in immediate
physical danger of death at the hands of woman to concentrate on forcible
sexual intercourse as a means of self defence before finally killing the
woman by strangling her. This and the absence of any evidential data to
show any systematic course of conduct pointing to a propensity to rape
women or cause or involvement in violence of any kind as product of the
mental disease, completely makes the defence of insanity faked and
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therefore unacceptable. This is why I concluded that Tobo was guilty

without making any reservations.’’
Evidential Burden of proof

This is known also as a particular or the burden of adducing
evidence. In the civil or criminal courts, each and every fact in issue
must be proved by the party bearing the evidential burden of proof in
respect of it. This is achieved by that party calling evidence, (oral,
documentary or real) and seeking to persuade the fact-finder to
determine the fact in issue as that party asserts it to be. If the fact-
finder is satisfied to the required standard of proof the fact is proved
the evidential obligation may shift the similar burden so that tit rests
on the other party.
This burden shifts as soon as evidence in support of some fact in
dispute adduced justifies a finding in favour of that party asserting it.
The incidence of the burden of proof generally rests upon the
person asserting affirmative of an issue.
(1) The general rule is stated in the maxim ‘ei qui affirmat non ei qui
negat in cumbit probatio’ which means ‘the burden of proof lies upon
he who affirms, not on the person who denies’.
(2) “It is an ancient rule founded on consideration of good sense and it
should not be departed from without stronger reasons” per Viscount
Maughan J. in Joseph Constantine S. S Line Ltd v Imperial Smelting
Corp., (1942) AC 154
(3) Plaintiff must prove all those positive allegations necessary to
rebut.
(4) Plaintiff must prove all those facts which constitute elements in his
cause of action, that is, he must prove facts in his statement of claim.
(5) Defendant must prove any particular defences raised by him on a
balance of probabilities.
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(6) The general burden of proof does not usually shift from the party
on whom it was placed as a result of substantive law or pleadings.
Despite the shifting of the evidential burden the legal burden of proof
does not shift. Through out the proceeding, in criminal cases, the legal
burden of proof always remains on the prosecution.
iii. PRESUMPTIONS
A presumption is merely an assumption of the truth of a fact. The
essence of presumptions is that if particular facts are proved or
admitted then no evidence is required to establish certain presumed
facts. For instance, in the absence of any evidence to the contrary, a
person who has not been heard of for seven years by those who would
be likely to have heard of him will be presumed dead.
Chard v Chard (1956) P 259
An alternative way in which a fact in issue can be established is
by the operation of a presumption. A presumption essentially means
that a fact in issue is considered by the Court to be established simply
upon the proof, (either by evidence or agreement in the normal way) of
another, different fact. The fact in issue is thus presumed
There are three kinds of presumption: irrebuttable presumptions
of law, rebuttable presumptions of law and presumptions of fact.
PRESUMPTIONS OF LAW: rebuttable and irrebuttable

1. IRREBUTTABLE PRESUMPTIONS OF LAW (Praesumptiones juris
et de jure)
These are also called conclusive presumption. No evidence is
admissible to rebut them except proof that the basic facts underlying
and giving rise to the presumption are not true. They are, in effect
rules of substantive law couched in terms of adjective rules rather than
rules of evidence. They necessitate the drawing of conclusions; they do
not allow rebutting evidence.
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a) Presumptions concerning children s. 14 of the Penal Code CAP 87

Thus a male person under the age of 12 years is presumed
incapable of having carnal knowledge Section 14 (3) Penal Code. The
law is that a child under the age of 8 years cannot commit a criminal
offence and is considered to be Doli incapox Section 14(1) of the Penal
Code CAP 87. These are conclusive presumption. Once the age is
proved the presumption becomes operative.
b) Ignorancy of the Law (Ignorantia Jures Nomien Excusat)
Everyman is taken to be cognisant of the law otherwise there is
no knowing to the extent to which the excuse might be carried, No
rebutting evidence is admissible.
c) Bankruptcy Act CAP 82 ss 123-125

The production of a copy of the gazette containing details of a
receiving order is conclusive evidence in all legal proceedings duly
made, and of its date.
REBUTTABLE PRESUMPTIONS OF LAW (praesmptiones hominis vel

facti)
The evidentiary effect of rebuttable presumptions of law may be
displaced by a contrary inference from additional facts. The
presumption is an assumption of fact.
There must be a primary fact proved upon which some other fact
must in law be presumed.
Once the basic fact had been established the appropriate
conclusion must be drawn if there is no evidence to the contrary.
In effect, a presumption of this kind affords only prima facie
evidence of the fact presumed.
a) Presumption of innocence
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Presumption of innocence, under Article 18 of the Constitution -

An accused person is generally innocent until the prosecution has
proved the case against him beyond reasonable doubt. Woolmington v
DPP [1935] AC 462
- The rule also applies in civil disputes.
Joseph S S line v Imperial Smelting Co. [1942] AC 154
- The presumption arises without proof of other facts.
- It may also apply to an allegation of criminality in civil cases.
There is an added presumption of innocence in the specific case pf a
child between 8 and 12 years. The presumption is that he is doli
incapax (that is, incapable of a crime) but can be sown capable of
discriminating between good and evil, so that the presumption may be
rebutted by proof of “mischievous discretion” that is knowledge that he
was doing a wrong. “Malitia supplet aetatem”
R v Owen [1830] 4 C& P 236
b) Presumption of sanity
Under Section 11 of the Penal Code CAP 87 every person is
presumed sane unless he proves on a balance of probability that he
was (non compos mentis) not mentally composed.
 In criminal cases the presumption holds until the contrary is
proved.
R v McNaghten [1843] 10 CL & F 200
 In some civil cases, for example that relating to wills, where
the sanity of the testator is in dispute, if a will is shown to
have been duly executed and attested and, on the face of it,
appears to be rational, there is a presumption of the testator’s
sanity. Testamentary capacity is presumed until the contrary
has been shown.
Sutton v Sadler [1857] 3 CB NS 87
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c) Presumption of Marriage
- There must be proof of a marriage ceremony upon which a valid
marriage is presumed.
Piers v Piers (1849) 2 HL Car 331, there was no evidence of a special
licence needed for marriage in a private house having been obtained.
The marriage was presumed valid.
- Where there was evidence of a marriage having been by
cohabitation of the parties, the validity of the marriage will be
presumed in the absence of decisive evidence to the contrary. Russell v
A-G [1949] P 391
- There is also a presumption that the marriage was
monogamous if contracted under statute. Cheni v Cheni [1965] P 85
In Tweeney v Tweeney [1946] P 180, it was stated that a
marriage remains valid until some evidence is adduced that the
marriage was in fact, a nullity.
In Re Taplin (1937) 3 ALL E R 105, it was shown that X had lived
with Y as his wife for 20 years in Rockhamton. The children’s birth
certificates made reference to a marriage in Victora, but there was no
record of the marriage of X & Y in Victoria. It was held that the parties
must be presumed validly married, since the presumption of validity of
marriage could be rebutted only by very cogent evidence. Elliot v
Totnes Union (1892) 7 TLR 35; Morris v Miller (1767) 4 Burr 2057
- Where a man and a woman are proved to have lived together as
man and wife, the law will presume, unless he contrary is proved, that
they were living together in consequence of valid marriage and not in
the state of concubinage. Sastry Velaiden Aronagary v Sembecutty
Vaigailie (1881) 6 App Cas 364
- The presumption is in favour of a marriage duly celebrated casts
upon those who deny it the burden of producing reasonable evidence
of the fat which renders the marriage void, example, per Dickson J in
Axon v Axon (1937) CLR 395
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The production a marriage certificate may be rebutted by poof beyond

reasonable doubt that there was no valid marriage. However to rebut
capacity of any party to any marriage proof is on a balance of
probabilities.
d) Presumption of death
- Presumption of death after 7 years of absence without being
heard in relation to the offence of Bigamy. There must proof of proof of
three facts:
- That the person for 7 continuous years and there was no
confirmation of his being alive during those 7 years or more:
- that there are persons who would likely to have heard of him,
and;
- That those persons have not heard of him, and
- that all appropriate/due inquiries have been made without
success
 There arises a presumption that the person died during that
period.
Case authorities:
Chard v Chard [1956] P 259
Prudential Assurance Co v Edmonds [1877] 2 AC 487
In the case of Chard v Chard (1955) P 259 the brief facts were that the
a wife who was a party to a marriage in 1909 was last heard of in 1917
as a normally healthy woman would, in 1933,have attained the age of
44. She had reasons for not wishing to be heard of by the husband and
his family and it was possible to trace anyone who, since 1917, would
normally have heard of her. No trace of the registration of her death
could be found so the husband remarried in 1933. He and the 1933
wife sought decrees of nullity. In this case Sachs J indicated that upon
the facts stated, the case was one where the court cannot accept the
1933 marriage certificate as necessarily binding, but must examine the
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possibility of the 1909 wife still being alive. At the time this case was
decided, the Matrimonial Causes Act 1973 had not yet been enacted.
Sachs J held that:
“My view is thus that in matters where no statute lays down an
applicable rule, the issue of whether a person is, or is not to be presumed
dead, is generally one of fact and not subject to the presumption of law.”
The court held that the correct inference in the case from the facts is
that the 1909 wife was living on 15 May, 1933, and not dead.
 There is no presumption as to the date of death
 There arises no presumption that the person died at any particular
time
Case authorities:
Re Phene’s Trusts [1870] LR 5 CH App 139
Chipchase v Chipchase [1939] P391
 There is no presumption that a person who has not been heard of
less than 7 years ago is still alive.
 Any married person who alleges that reasonable grounds exist for
supposing that the other party is dead may present a petition to the
court to have it presumed that the other party is dead and to have
the marriage resolved. And the court may, if satisfied that such
reasonable grounds exist, grant a degree of presumption of death
and dissolution of the marriage.
Gallacher v Gallacher [1963] 168 SJ 523
The presumption operates as a defence to bigamy.
Under section 166 of the Penal Code the proviso provides for
a defence as follows:
“Provided that this section shall not extend to any person whose
marriage with such husband or wife has been declared void by a court of
competent jurisdiction, nor to any person who contracts a marriage during
the life of a former husband or wife, if such husband or wife, at the time of
the subsequent marriage, shall have been continually absent from such
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person for the space of seven years, and shall not have been heard of by
such person as being alive within that time”.
Proviso, gives a continuous absence for seven years as a defence to

the offence of bigamy.
Section 38 of the Marriage Act CAP 50 of the laws of Zambia also has a
proviso which provides a defence for liability of an offence under this
section stating that,
“Provided that this section shall not extend to any person who
contracts a marriage during the life of a former husband or wife, if such
husband or wife, at the time of the subsequent marriage, shall have been
continually absent from such person for the space of seven years, and shall
not have been heard of by such person as being alive within that time.”
Similarly, in section 19 of the Matrimonial Causes Act 1973 the
proviso indicates that continuous absence for seven year is a defence
to the offence of bigamy.
All three statutory provisions require a person to have been
continually absent for a period of seven years. Hence the presumption
of death also arises where there is no acceptable affirmative evidence
that a person was alive at some time during a continuous period of
seven years or more, then if it can be proved first, that there are
persons who would likely to have heard of him over that period.
Not hearing of a person for a continuous period of seven years or

more, by the people who would likely have heard of him, and due
inquiry by those people is a basic requirement for the presumption of
death to operate.
- A petitioner has to prove that he had no reason to believe that
the other spouse had survived the past seven years.
e) Presumption of Legitimacy
A child born within wedlock is presumed legitimate- Gardener v
Gardener (1877) 2 AC 723
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The presumption extends to children born shortly after marriage even

though conceived before marriage; and, to children born after the
termination of marriage due to death or divorce who were conceived
during marriage. The onus is upon the person alleging illegitimacy to
prove the contrary.
Re Lehman W.T [1946] 115 LJ Ch 89
1) At common Law the presumptions might be rebutted by evidence
that is strong, distinct, satisfactory and conclusive.
Morris v Davies (1836) % CL & F 163
Aylesford Peerage Case [1885] AC 1
2) The presumption could be rebutted by the husband showing that, he
could not have had intercourse at the relevant time, example, because
he was abroad, or that he was sterile.
3) Where a couple is living apart under the terms of a decree of
judicial separation or order, a court will draw the inference that the
couple in question had not had intercourse during the time in question.
Ettenfield v Ettenfield [1940] P 76
Even where intercourse did not take place during the time in question
it might be possible, example, by blood test, to establish that the
husband was not the father of the child.
4) The presumption of legitimacy now merely determines the onus of
proof.
S v Mc C [1972] AC 24
T (H) v T (E) [1971] 1 ALL E R 570
5) Any presumption of law as to the legitimacy or illegitimacy of any
person may in any civil proceedings be rebutted by evidence which
shows that it is more probable than not that that person is illegitimate
or legitimate as the case may be. It shall not be necessary to prove
that fact beyond reasonable doubt in order to rebut the presumption.
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OTHER REBUTTABLE PRESUMPTIONS OF LAW

a) Ominia Praesumutur rite et Solemite esse acta –All things are
presumed to be done correctly and solemnly.
This is the so called presumption of legality. When offical ats
are in question, there is a rebuttable presumption that all necessary
conditions had been complied with. The presumption should be applied
in criminal cases very carefully.
Read:
Scott v Baker [1967}
Eaglehull v Nathan Ltd (1973
Campbell v Wallrel Shipping (1977)
Rebutted the Presumption in Woolett v Minister of Agriculture &
Fisheries [1955] 1QB 103
b) Res Ipsa Loquitur -The thing speaks for itself

In some action for injury’ the mere fact of an accident occurig wil
raise the inference of negligence so that a prima facie case exists. You
may presume negligence from the mere fact that it happens.
Bullard v British Rly [1903] 5 LT 219
Byrne v Boadle [1803] 2 H & C 722
Motram v Osborne [1939] 2 KB 14
Ward v Tesco [1976]
In Scot v The London Dock co. (1865) 3 H & C 60, LCJ said:
“Where the thing is shown to be under the management of the
defendnt or his servants and the accident is such as in the ordinary course
of things soes not happen if those who have the management use proper
care. It affords reasonable evidnce in the absence of explanation by the
defendants that the accident arose from want of care”
Examples:
(a) Barrel has fallen out of the window of the premises occupied by the
defendant
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Byrne v Boadle [1803] 2 H & C 722

(b) A car has mounted the pavement; Ellor v Selfridge Co Ltd [1930] 46
TLR 236.
(c) A swab has ben left in a patient’s body after an operation; Mahon v
Osborne [1939] 2 KB 14.
(d) Two trains belonging to the same company have been in a collision.
Skinner v London Brighton & S E Rly Co [1850] 5 Ex Ch 787
Res Ipsa Loquitur as a Presumption of Fact

It is a provisional burden cast upon the defendant, in other
words such presumption as is involved is merely a presumption of fact
or provisional presumption.
Green LJ in Longham v Govenors of Wa Broa School & Frier [1932]
101 LJ KB 513, though the maxim was only a branch of a large rule
namely,
“Where the proved facts render it reasonably probable,
in the absence of explanation, that there was negligence on
the part of the defendant and that the damage was done by
that negligence, it is for the jury, the tribunal of fact, to say
whether the case is or is not estblished.”
Res Ipsa Loquitur as Evidential Presumption

An evidential burden is cast upon the defendant as a mtter of aw
so that he will lose on the issue of neglignce unless he adduces some
evidence; Longton J in ‘The Kite’ [1933] P 154.
A barge under the control of the defendants collided with a bridgeaand
his Lordship said,
“What defendantsss have to do here is not to prove that th
negligence did not cause the accident. What they have to do is to give
reasonable explanantion which, if accepted is an explanantion showing that
it happened without their negligence. They need not even go so far as that
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because, if they give a reasonable explanationwhich is equally consistent

with the accident happening without their negligence they have again
shifted the burden of proof back to the plaintiff to show as they always
have to show from the beggining that it was the negligence of the
defendant that caused the accident.”
Res Ipsa Loquitur as a Pesuasive Presumption

That a legal burden of disproving negligence is cast upon the
defendant, in which case res ipsa loquitur refers to the basic rule of
persuasive presumption of law.
Asquith in Barkway v South Wales Transport Co Ltd [1948] 2 ALL E R
460
A case where an omnibus had fallen over an embarkment owing to a
tyre burst and the case was treated as one of res ipsa loquitur in the
Court of Appeal. The House of Lords decided that the maxim does not
apply where there is adequate evidence of the cause of the accident.
AsquithLJ summerised the position with regrd to the onus of proof in
the following prepositions:
“1) If the defendant’s omnibus leaves the route and falls down an
embarkment, and this without more is proved, then res ipsa loquitur, there
is a presumption that the event is caused by the negligence on the part of
the defendants. And the plaintiff succeeds unless the defendants can rebut
this presumption.
2) It is not a rebutted for the defendants to show again without more that
the immediate cause of the omnbus leaving the road is a tyre burst, since
tyre burst per se is neutral event consistent dnd equally consistent with
negligence on the part of the defendants. When a balance had been titled
one way you cannot redress it by adding an equal wight to each scale. The
depressed scale will remain down”.
3) To displace the presumption the defendant must go farther and
prove (or it may emerge from the evidence as a whole),
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(a) that the burst was due to a specific cause which does not
connote negligence on their part but points to absence as a more
probable or
(b) if they can point to specific cause, that they used all
reasonable care about the management of tyres.
Woods v Duncan [1946} AC 401
Moore v Fox {1956] 1 QB 516 approving Asquith.
Possessions
Where the question rellates to several occupiers are in legal
poseesion there is a presumption that the one with the legal title is its
legal possessor.
Ramsay v Margret [1884] 2 QB 18
Lawful Origin
Where asserted rights have been exercised without interruption
for such a period of time they might be taken fairly to have had a
lawful origin. There is a presumption of such lawful origin.
Johnson v Barnes (1873) LR ScP 527
I do not think we should be justified in giving this effect to
documents if the result would be to set aside a right which has been so
long exercised in fact. It appears to me that we are bound in accordance
with one of the best established principles of law, to presume a legal
origin, if one were possible in favour of a long and interrupted enjoyment
of a right,” per Kelly C.B.
c) Presumption of seniority
Death - Where two or more person have died in circumstances
rendering it uncertain which of them survived the other or others, such
that shall (subject to any order of the court), for all purposes affecting
the title to property be presumed to have occurred in order of seniority,
and accordingly the younger shall be presumed to have survived the
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elder or it is presumed that the eldest person died first. In cases of

inheritance for purposes of distribution of property under section 19 of
the matrimonial causes Act 1973.
Re Bates [1947] 2 ALL E R 418
Re Rowland [1963] Ch 1
PRESUMPTIONS OF FACT - Known also as provisional

presumptions.
These are inferences which may be drawn but there is no
compulsion as to this. They may be divided further into: -
 strong presumptions which shift the burden of proof and
 Slight presumptions which do not shift the burden of proof.
(a) Presumptions of facts are circumstantial evidence of act.

Where a person conceals or destroys evidence, the Court
assumes that the evidence was unfavourable to that person.
Intention
There is a presumption that a person intends the natural
consequences of his act. Note however, that a court in determining
whether a person has committed an offence –
(a) shall not be bound in law to infer that he intended or foresaw a
result of his actions by reason only of its being unnatural and
probable consequence of those actions.
(b)shall decide whether he did intend or foresee that result by
reference to all the evidence drawing such inferences from the
evidence as appear proper in the circumstances. What used to
be a presumption of law in criminal cases has thus become a
presumption of fact. In the words of Lord Sankey in Woolmington
v DPP [1935] AC 462:
“If it is proved that the conscious act of the prisoner killed a man
nothing else appears in the case, there is evidence upon which the court
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may not must find him guilty of murder. Although there are many
statements in civil proceedings suggesting that the presumption of
intention is one of law, it is best regarded as one of fact. As in the case of
seaworthiness the tribunal of fact may be virtually obliged to find in favour
of the presumption when there is nothing to suggest a contrary
conclusion”.
DPP v Smith [1961] AC 290
Presumption of continuance
The existence of a state of affairs in the past justifies an
inference that it continued to exist down to the moment into which the
court is inquiring. Evidence has been received of person’s theological
opinions four years before the time at which their nature was in issue.
A – G v Bradlaugh [1885] 14 QBD 667 at page 711
The presumption weakens with remoteness of time, and, of course, can
be rebutted by the evidence to the contrary, or by any contrary
presumption arising from the nature of the case. Moreover, if the
passage of time since the previous state of persons, minds or things
existed has so weakened the presumption that no reasonable jury
would act on it, the judge will exclude evidence of such state. A – G v
Bradlaugh [1885] 14 QBD 667
The fact that a person was alive and in god health on a particular date
is admissible to prove that he was alive some years later or even
considerable later date.
Re Forsters Settlements [1942] Ch 199
Phipson’s meaning –
The presumption of continuance means that when states of
persons, minds or things at a given time are in issue, their previous or
subsequent existence may be relevant, there being a probability that
certain conditions and relationships continue; e.g. human life,
marriage, sanity, opinions, title, partnership, official characters,
domicile.
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A party is not allowed to make self-serving declarations of this

nature for his defence.
3. THEORIES FOR PROTECTION OF THE ACCUSED

i. CORROBORATION
Corroboration refers to fresh, independent and admissible
evidence that strengthens confirms or supports the evidence already
given by another a particular witness. Corroboration evidence tends
to confirm, support or strengthen other evidence. The witness giving
corroborating evidence must be credible. The content of corroborative
evidence will necessarily vary according to the circumstances of the
offence alleged, but it must go to show that the account of the witness
to be corroborated is true tending to connect the accused in some
material particular. The need for corroboration arises because
experience has shown that in certain types of cases with particular
categories of witnesses it is dangerous to convict in the absence of
corroboration. For instance, a child’s evidence must be confirmed by
an adult’s independent evidence.
Corroboration need not consist of direct evidence. Corroboration
is sufficient even if it is circumstantial evidence connecting the
defendant to the offence. Corroboration can be in form of medical
reports and police reports as long as it is independent and can support
the evidence of a witness tending to connect the accused in some
material particular.
Corroboration may be defined as independent and credible
evidence which is offered to support or confirm evidence of a
particular witness and tends to incriminate the accused in a material
particular in situations where the statute creating the offence requires
corroboration of certain witnesses. In such cases the court will not
convict unless the evidence is corroborated. In The People v
Shamwana and Others (1983) ZR 123; the Supreme Court quoted R v
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Baskerville [1916] 2 KB 658 653 at page 667 in which Lord Reading CJ

as he then was stated:
: “We hold that the evidence in corroboration must be independent
testimony which affects the accused by connecting or tending to connect
him to the crime. In other words, it may be evidence which implicates him,
that is the evidence that the crime has been committed but also that the
prisoner committed it.”
In Hester v DPP (1973) AC 296; 3 ALL E. R.1056 Lord Borthygest stated
that:
“The essence of corroborative evidence is that one credit worthy
witness confirms what another witness has said.”
In some cases corroboration is mandatory. The Judge must warn
himself or the jury of the danger of convicting the accused on
uncorroborated evidence. The Judge must point out what evidence or
in such cases the judge must warn himself of the danger of convicting
on uncorroborated evidence. Sections 107 on Perjury and 140-141on
procurement require corroboration. Sexual offences require
corroboration because the prosecutrix may be motivated by spite,
sexual frustration or unpredictable emotional responses. Corroboration
is also required to avoid conviction on false allegations.
In R v Sabenzu (1946) NRLR; the accused was charged with rape
but convicted of defiling a girl under the age of 16 years. The girl,
Mwaka was in a group of school children and the accused is said to
have called Mwaka by the side then grabbed and took her into a
nearby bush where he defiled her. One of the children claimed that
Mwaka left on her own volition and was not grabbed. The kids said
when that happened they all run away so they could not be sure as to
what happened afterwards. On appeal the court found that there was
no evidence to implicate the accused. There being no corroboration
that it was the accused that defiled the complainant the conviction was
set aside and the accused acquitted.
Kilbourne (1979)
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Maulla (1980) ZR 119 (SC)

Chililumba
Mutale (1973)
Njovu (1978) ZR
Katebe v TP (1975)
Machobane v TP (1972)
Phiri v TP (1982) ZR 77
Tembo v TP (1980) ZR 218
Ndala v TP (1980) ZR 183
Muwowo v TP (1965) ZR 91
Enotiades v TP (1965) ZR 144
Complaints in sexual offences

In Ndakala v TP [1974] Z R 19 (SC); the complainant had been in
the presence of another woman and after the incident the two women
went to a club and said nothing. The appellant came to the club and
asked for the return of certain articles he had allegedly given to the
complainant to bribe /entice her. The appellant was convicted of
attempted rape. On appeal it was held that the accused be acquitted.
Doyle C.J. found it extraordinary that no complaint had been made until
the appellant came to the club demanding the articles back. The
behaviour of the complainant was not consistent with rape. The Court
held that:
“The corollary to the principle that evidence of early complaint is
admissible to show consistency is that the failure to make an early
complaint must be weighed in the scales against the prosecution case.”
Evidence of disability affecting reliability

In Toohey v Metropolitan Police Commissioner [1965] 1 ALL E R
506; the appellant was charged with two others of assaulting a youth
with intent to rob. Their defence was that they had come across the
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youth apparently looking the worse for drink and had tried to help him
but he had become hysterical and accused them of hitting him and
trying to take his money. A Police surgeon examined the complainant
at the police station and testified that the youth was in a state of
hysteria at the time.
Held that the accused should have been allowed to call in the
police surgeon to swear that the boy was in a state of hysteria and that
he smelled of alcohol or drink and to show that the drink exacerbated
the hysteria and the sum total of these would have shown that the
boy’s statement should not be believed but none of these were done.
The appeal was allowed.
CORROBORATION AS A MATTER OF LAW

Where a statute requires corroborating evidence it is essential for a
trial judge to address his mind to this fact.
Unsworn Children
Corroboration is required as a matter of law when receiving the
unsworn evidence of children. According to section 122(1) of The
Juveniles Act Chapter 53 of the Laws of Zambia
“Where, in any proceedings against any person for any offence or in
any civil proceedings, any child of tender years called as a witness does
not, in the opinion of the court, understand the nature of an oath, his
evidence may be received though not on oath, if, in the opinion of the
court, he is possessed of sufficient intelligence to justify the reception of
his evidence and understands the duty of speaking the truth; and his
evidence though not given on oath but otherwise taken and reduced into
writing so as to comply with the requirements of any law in force for the
time being, shall be deemed to be a deposition within the meaning of any
law so in force:
Provided that where evidence admitted by virtue of this section is given on
behalf of the prosecution, the accused shall not be liable to be convicted of
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the offence unless that evidence is corroborated by some other material
evidence in support thereof implicating him”
In Mwewa v T P (1978) ZR 277,it was held that unsworn children

cannot as a matter of law corroborate each other, the principle that
Lord Diplock equally endorsed in the case of D PP v Hester (1976) AC
296; (1972 ALL E R 1056.
Corroboration as a matter of law is mandatory.
Sworn Children
In Bernard Chisha v TP, [1980] ZR 36 the case was decided solely
upon the evidence of a boy aged fourteen years. The issue was
whether this sworn evidence was to be treated like that of any other
witness. The court held in that case that the sworn evidence of a child
required corroboration as guided by the statutory definition of a ‘child’
in Zambian criminal jurisdiction means a child below the age of sixteen
under Section 2(1) of The Juvenile Act CAP 53 of the Laws of Zambia.
The court also referred to R v Campbell [1956] 2 ALL ER 272 in which it
was held that sworn children cannot corroborate each other but an
unsworn child can corroborate adults.
The evidence of children is considered suspect because:
1. Being young, they are susceptible to influences from both
adults and children. For example, leading questions from the
police or parents can confuse a child as to what actually
occurred as answers are by implication suggested by the
questions.
2. Children do not have the maturity to understand the moral
duty to speak the truth.
3. Children may not appreciate the need for accuracy in
evidence. Important evidence may simply being forgotten.
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4. Children are given to fantasy and may deliberately tell lies.

For example, a boy may agree to a sexual act against him and
later deny that he gave consent.
CORROBORATION AS A MATTER OF FACT

As a matter of practice judges have mostly in criminal matters
for many years over the last hundred years warned juries in certain
classes of cases that it is dangerous to found a conviction on evidence
of a particular witness or classes of witness unless that evidence is
corroborated in a material particular implicating the defendant to the
offence or confirming the disputed items in the case. One such
instance is when the evidence given is that of an accomplice.
Accomplice
‘Accomplice’ is any party to the crime charged, whether he is a
principal or someone who merely aids and abets its commission. In
Zambia the duty is on the judge to warn himself that it was dangerous
to convict on the evidence of an accomplice, unless it is corroborated.
In Emmanuel Phiri and Ors v T P [1978] ZR 79 SC the appellants
were convicted of aggravated robbery. Two of them both wearing
stocking masks, robbed a Securicor guard of a large sum of money at
gun point. The sole issue was whether the appellants were proved to
have been the robbers. The only evidence against them was that of the
two accomplices. The main ground of appeal was that the trial judge
erred in convicting on the uncorroborated evidence of accomplices and
in the absence of any special and compelling grounds. The Supreme
Court of Zambia, for the first time consisting of five judges held that a
judge (or magistrate) sitting alone or with assessors must direct
himself and the assessors, if any, as to the dangers of convicting on
uncorroborated evidence of an accomplice with the same care as he
would direct a jury and the judgment must show that he has done so.
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No particular form of words is necessary for such a direction. What is

necessary is that the judgment shows that the judge applied his mind
to the particular dangers raised by the nature and facts of the
particular case before him. Fellow accomplices (in one transaction)
cannot corroborate each other.
Suspect Witness
In Chimbo and Others v TP, [1982] ZR 20 (SC) the Supreme Court
held that the evidence of a suspect witness cannot be corroborated by
another suspect witness unless the witness is suspect for different
reasons.
Reasons for Corroboration:

Baron DCJ, in Phiri & Ors v TP [1978] ZR 79 (SC) “An accomplice may be
so familiar with the circumstances of the offence that he is in a position to
fabricate a very plausible story that in the circumstances be difficult if not
impossible to discredit in cross-examination. For this reason, it is
dangerous to convict on the uncorroborated evidence of an accomplice .”
Zoonde & Ors v T P(1981) ZR 337

It is enough for the Court to suspect a person who may have his own
interest to serve.
Corroboration Must Implicate the Accused in a Material

Particular
In criminal cases, corroboration must confirm, in some material
particular, not only that the crime has been committed, but also that
the prisoner committed it.
“Evidence in corroboration must be independent testimony which
affects the accused by connecting or tending to connect him with a crime.
It is sufficient if there is confirmation as to material circumstances of the
crime and the identity of the prisoner. The corroboration need not be direct
evidence that the accused committed the crime, it is sufficient if it is
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merely circumstantial evidence of his connections with the crime” as per

Lord Reading in R v Baskerville (1966) 2 KB 658.
In R v Knight (1966) 1 ALL E R 647; evidence of Y’s distressed
condition soon after X was seen with Y may constitute corroboration of
evidence identifying X as the assailant of Y.
In R v Longstaf (1977) Crim L R 216, failure to direct the jury
that corroboration must implicate the accused.
Corroboration may be constituted by the conduct of the person
against whom it will operate.
Evidence is not corroboration unless it implicates the accused in
a material particular as held in the case of Mwelwa v TP [1972] ZR 29.
In Tembo v T P, [1966] ZR 126 (HC) the court allowed an appeal and
quashed a conviction because of the lack of corroboration. Similarly, in
the case of R v Smith, [1924] 18 Cr App Rep 19, it was held that the
court may quash a conviction if matters which are not corroborated
have been referred to as corroboration. Corroboration is hence a very
important principle in the law of evidence.
An appellate court may quash a conviction if the judge or
magistrate had not sufficiently warned himself of the necessity of
corroboration, unless the court is of the opinion that no miscarriage of
justice has occurred.
For example:
 Accused running away R v Knight (1966) 1 ALL E R 647;
 Giving False Alibi when questioned: Credland v Knowler (1951) 35
Cr. App. R. 48;
 or similar conduct on his part may corroborate evidence against
him; R v Tragen (1956) Crim. L Rev. 332;
R v Clynes (1960)44 Cr. App R 158
R v O’Reilly (1967) 2 QB 772
R v Anslow (1962) Crim. L R 101
R v Goddard (1962) 3 ALL E R 582
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R v Price (1969)1 QB 541
The rules relating to corroboration:

Content:
Corroboration must consist of admissible evidence. Irrelevant
evidence will not cease to be inadmissible simply because it seems
corroborative.
No form Prescribed:
In general corroboration need not involve the testimony of a
second witness. In a few cases, however, statute may necessitate the
evidence of two or more credible witnesses.
There can be no Self Corroboration

Corroboration must be extraneous to the witness who is to be
corroborated; per Lord Hewart C.J. in R v Whitehead (1929) 1 K B 99
R v Lillyman (1896) 2 QB 167
(a) In a case of a complaint by a person alleging a sexual offence, that
complaint is soon made, may be capable of constituting corroboration
of the person’s testimony.
(b) A statement which is admissible in evidence by virtue of Civil
Evidence Act shall not be capable of corroborating evidence given by
the maker of the statement.
(c) Corroboration can only be afforded to or by a witness who is
otherwise to be believed.
“ if a witness’ testimony falls off its own inanition, the question of
his needing, or being capable of giving corroboration does not arise” per
Lord Hailsham in DPP v Kilbourne (1973) 1 AALL E R 440 AC 729
“The essence of corroborative evidence is that one credit worth
witness confirms what another credit-worth witness has said” per Lord
Morris in DPP v Hester (1973) AC 296.
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ii. SELF INCRIMINATION

As a general rule an accused has a right against self
incrimination.
He also throws away his shield if he attacks the character of the
prosecution witnesses.
iii. THE RIGHT TO SILENCE

The accused has a right to remain silent
Out of Court Silence
R v Christie [1914] AC 545,[1914-15] ALL E R 63 (HL)
Hall v R [1971] 1 ALL E R 322 (PC) ?
(a) Silence as consent
Hall v R [1971] 1 ALL E R 322 (PC)
(b) Silence evidencing a conscious guilt

R v Christie [1914] AC 545,[1914-15] ALL E R 63 (HL)
(c) Silence as strengthening inferences from the opposing case

R v Seymour [1954] 1 ALL E R 1006 (CCA)
Inferences from silence in court
McQueen v Great Western Rly Co (1875) LR 10 GB 569 at page
574
R v Adams [1957] (Sybille Bedford, The Best We Can Do [Collins,

(1957) at page 249
(a) Silence as amounting to consent
(b) Silence evidencing a conscious guilt
(c) Silence as strengthening inferences from the opposing

evidence
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iv. CONFESSIONS
A confession is a statement made orally, in writing or by conduct,
that is, video re-enactment, if is adverse to the interests of the maker.
The Police Communal Evidence Act 1984 ((PACE) of the British) define
a confession to include:
“…any statement wholly made or partly adverse to the person who
made it, whether made to a person in authority or not and whether made in
words or otherwise….”
 A confession, in criminal cases, is an admission made by accused to

someone ‘in authority’.
 A confession made in consequence of threats or inducements is
inadmissible.
 A confession obtained in contravention of the judges’ rules or by
means of other improper questions may be excluded by the court.
 A confession that is voluntary and admissible may be acted upon by
court even if it is uncorroborated. R v Sykes (1913) 8 Cr. App. R. 233
If the accused claims the confession was involuntary then a trial
within trial will be conducted. The burden rests on the prosecution to
prove beyond reasonable doubt that the accused’s confession was
voluntary.
The admissibility of a confession is determined ‘on the voire dire
in a trial within a trial (TWT). Where as voire dire is conducted in court
the accused cannot be asked about the truthfulness of his confession
and statements made during the voire dire cannot be made known to
the jury; and, inconsistencies between the accused‘s evidence and the
statements which form the confession cannot be made known to the
jury unless the confession is admitted; Per Privy Council in R v Wong
Kam Ming (1980). During the voire dire the magistrate or the judge is
concern with whether the statement was made voluntarily and
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therefore admissible or under coercion or duress and therefore not

admissible.
Admissibility of a confession
A confession is hearsay evidence. However, a confession is
admissible in evidence under the hearsay exceptions. The Prosecution
must prove that the confession was not obtained:
(a) by oppression of the person who made it
(b) in consequence of anything said or done.
In assessing its admissibility it is irrelevant whether the confession is
true or not. Oppression and unreliability may render the confession
inadmissible
Oppression
The Prosecution must prove beyond reasonable doubt that the
accused did not confess in consequence of the oppression to which he
was subjected to or that he was not subjected to oppression.
Unreliability
Banda v TP (1990/2) ZR 70
Joseph Mutaba Tobo v TP (1990/2) ZR 140
Zondo and Others v TP (1963/4) ZR 97
Mudenda v TP (1981) ZR 174
Chimbo and Ors v TP (1982) ZR 20
TPv B (1980) ZR 219
An informal admission by words or conduct of a party or those in privity
with him is admissible against him of the truth of its contents.
1. Distinguish Formal from Informal admissions:
(a) Unlike formal admissions, informal admissions are not made
expressly for the purpose of a particular trial.
(b)Formal admissions are conclusive and therefore not the subject
of evidence at the trial, and informal admissions are not
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conclusive and may be explained away at the trial, and they are
evidence.
(c) Unlike formal admissions Informal admissions are not confined to
statements in documents, they may be oral, written or even
implied from conduct.
(d)Informal admissions may be relied on in civil and criminal cases;
formal admissions are mostly relied on in civil.
(e) Informal admissions are an exception to the hearsay rule; formal
admissions are not.
2. Informal admissions and confessions

(a) A confession is an admission made to someone in ‘authority’; an
informal admission is not made to someone in authority.
(b)Confessions are only in criminal cases; informal admissions occur
in civil and criminal cases. R v. Simons ( 1834) 6 c & p 540
(c) A confession made in consequence of threats or inducements is
inadmissible, but threats or inducements may merely affect the
weight of an informal admission and not its admissibility.
(d)Confessions obtained in contravention of the judges rules or by
means of other improper questions, may be excluded by the
court. Informal admissions are not subject to the judges rules.
(e) A confession, if it is voluntary and admissible may be acted upon
by the court even though it is uncorroborated – R v Sykes (1913)
8 Cr App Rep 233. However it is desirable that there should be
further evidence against the accused. An informal admission is
regarded as less incriminating than a confession.
(f) If a confession is said to by the accused to be involuntary, there
will be a trial within trial, there is no trial within trial as regards
informal admissions.
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v. MANNER IN WHICH EVIDENCE IS OBTAINED - IMPROPERLY

OBTAINED EVIDENCE
vi. CHARACTER OF THE ACCUSED AND DISPOSITION

The accused past record of previous convictions or his tendency
to certain conduct in a totally different cases or circumstances should
not be brought up during the trial. He can throw away his shield or
protection if he starts talking about his character e. g. if he says that
he is morally upright and can not do anything wrong he is accused of
having committed.
Evidence of Character
When a party’s general character is in issue proof must necessarily be
received of what that general character is. Where, however, evidence
of the character of a party is tendered in proof or disproof of some
other issue, it is generally excluded.
Evidence of Character at Common Law

(a) When evidence of character is given in a criminal case it must
usually relate to the general reputation of the person whose character
is in question and not to the witness opinion of that person’s
disposition.
(b) In criminal cases although the prosecution may not adduce
evidence in chief of the accused’s bad character for the purpose of
proving his bad disposition, and that he is probably guilty of the crime
charged, the accused may adduce evidence in chief of his good
character for the purpose of proving is good disposition and hence that
he is probably innocent; it then becomes possible for the prosecution
to rebut the evidence of his good character with evidence of bad
character.
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In R v Rowton (1865) C C R ; the defendant was charged with

indecently assaulting a boy. He called several witnesses to testify of his
good character. In rebuttal, the prosecution called a witness who was
asked what the defendant’s general character of decency was. The
witness stated that D’s character was that of a man capable of the
grossest indecency and the most flagrant immorality. Cockburn CJ said:
“when evidence of good character has been given in favour of a
prisoner, evidence of his general bad character can be called in reply. It is
sad that evidence of good character raises only a collateral issue; but I
think that, if the prisoner thinks proper to raise that issue as one of the
elements for consideration, nothing could be more unjust than that he
should have the advantage of a character which may be the reverse of that
which he really deserves. Evidence of antecedent bad conduct would form
equally good ground for inferring the prisoner’s guilt, yet it is clear
evidence of that kind is inadmissible”
R v Butterwasser (1947)
‘Bad Character’
Criminal Procedure Code CAP 88
Section 157 (v) stipulates that:
“a person charged and being a witness in pursuance of this section
may be asked any question in cross-examination, notwithstanding that it
would tend to criminate him as to the offence charged;”
The Criminal Procedure Code provides that the accused shall not be
called as a witness except upon his own application, Section 157 (i). He
may be asked questions in cross-examination that tend to criminate
him as to the offence charged but he may not generally be questioned
to show that he has a bad character the effect of section 157 (vi) is
that it provides a shield against being cross-examined as to character
and previous convictions. However, the shield can be thrown away
under (a), (b) and (c) when the accused can then be cross-examined as
to his good character.. Section 157 (vi) stipulates that:
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(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-
(a) the proof that he has committed or been convicted of such other
offence is admissible evidence to show that he is guilty of the offence
wherewith he is then charged; or
(b) he has, personally or by his advocate, asked questions of the
witnesses for the prosecution with a view to establishing his own good
character, or has given evidence of his own good character, or the nature or
conduct of the defence is such as to involve imputations on the character of
the complainant or the witnesses for the prosecution; or
(c) he has given evidence against any other person charged with the
same offence;”
‘
‘Tending to show’
In Jones v DPP (1962), the appellant was convicted of the murder of a
girl guide. Shortly before his trial he was convicted of raping a girl
guide. At the murder trial, he claimed that he spent the night with a
prostitute and went on to detail his wife’s stormy reaction to his late
return. The account of his movements and the reaction of his wife were
almost exactly the same as the account given at his earlier trial for
rape. Counsel for the prosecution at the murder trial was given leave
by the judge to cross-examine the appellant with regard to the two
explanations with a view to showing the remarkable similarities
between them. Earlier, in the course of the cross-examination of a
police officer by Jones’s counsel and in the course of Jones’s own
evidence–in–chief, reference was made to the fact that the appellant
had been in trouble with the police. He appealed against his conviction.
It was held: that the cross-examination was proper on the ground that
at the time it was administered, the jury knew that Jones had been in
trouble and the question did not ‘tend to show’ bad character.
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Thus the phrase ‘tending to show’ was construed as meaning

‘tending to reveal’ or ‘tending to make known’. It would seem that
questions on matters already revealed to the court will not be excluded
under the section. In that case, the cross-examination of Jones tended
to show that ‘because he has been previously in trouble with the
police’ he was of bad character. But the fact of his previous convictions
was not mentioned. The court held that cross-examination did not tend
to show i.e. to ‘reveal’ that Jones had been in trouble with the police
since he had already revealed this at an earlier stage in the
proceedings.
‘Charged’, this means ‘charged in Court’: Stirland v DPP (1944)
AC 315. In that case it was held that the section did not let in evidence
that the accused has been questioned about a criminal case with which
he had never been formally charged. Further, ‘charged’ has no
reference generally to a previous charge resulting in acquittal.
In Maxwell v DPPAC 309, Maxwell was charged with
manslaughter by an illegal operation. He had given evidence of his
own good character and in cross-examination was asked about a
previous acquittal on a similar charge. It was held that the question
was not relevant to the present issue and was not relevant to credit.
“Bad Character”
‘Bad character’, ‘character’ in this expression seems to include
reputation and disposition. Malindi v R (1967) AC 439
Selvey v DPP (1970) AC 304
Under the section the accused maybe questioned about other
offences and convictions ‘when proof that he has committed them or
been convicted of them is admissible to sow that he is guilty of the
offence with which he has been charged:
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(a) It is not permissible under the exception in section 157 (vi) (a) to
question the accused in regard to some offence of which he has been
acquitted. R v Coker (1960) 2 QB 207
(b) A question which tends to show bad character is not admissible

under section 157 (vi) (a). In Malindi v R (1967) AC 439, the accused
was charged with conspiracy to commit arson. In cross-examination
questions were put to the accused concerning his private life of a year
earlier in which he had justified the use of violence. It was held that the
questions were improper: the accused had not thrown away his shield.
(c) R v Nightingale (1977) Crim. App R. 744
Section 157 (vi) is probably the most important. It refers to a

case in which the accused’s shield is thrown away: where the accused
has put his character in issue: and imputations cast on the character of
the prosecutor or witnesses for the prosecution.
a) “Character in issue” once the accused put his character in issue,
evidence intending to show his bad character, including previous
convictions is permitted. Not that “character” means “reputation” or
“disposition”. The shield was considered to have been thrown away:
(i) R v Baker (1912) 7 Crim App R 252 in which the accused had
stated that for a long period of time he has been earning an honest
living:
(ii) R v Samuel (1956) 40 Crim App Rep 8 in which the accused
charged with theft by finding had given evidence relating to previous
occasions on which he had returned lost property.
(iii) R v Beecham (1921) 3 KB 464 in which the accused, charged
with a road traffic offence had stated that he did not approve of
speeding and dislike travelling or diving fast.
b) Imputations on the character of the complainant or witnesses of the
prosecution. It should be remembered that character includes
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reputation and disposition. See R v Dunkley (1927) 1 KB 323 and that,

as soon as the exception is activated, what emerges in cross-
examination goes t credibility of the accused, R v Longman &
Richardson (1969) 1 QB 299. Attacks on the character of other
persons, for example, the deceased in a trial for murder do not activate
the exception.
Authorities relevant:
(i) R v Bishop (1974) 2 ALL E R 1206 the defendant was
charged with burglary and he explained his fingerprints in P’s room by
alleging a homosexual relationship between himself and P.
It was held that notwithstanding that such behaviour no longer in U K
constitutes an imputation on character so as t justify D being cross-
examined on previous conviction on honesty.
(ii) Selvey v DPP (1970) AC 304, the accused was charged with a
sexual offence against Y. It was put to Y that he was a male prostitute
who had had relations with another person earlier in the day in
question and that he was merely blaming the accused who had reused
to give him money. The prosecution cross-examined the accused on
previous conviction for indecent assault. It was held that accused’s
attack on Y’s character has resulted in his shield being thrown away.
There was no rule that judicial discretion is excluded merely because
imputations were needed to develop the defence properly. The words
of the section 157 (vi) (b) had to be given the ordinary natural
meaning.
(iii) R v Lee (1976) 1 WLR 71, The Defendant was charged with
theft from the bedroom of a house in which he had been living. It was
put to the owner of the stolen goods that two other persons who
visited the house (but who did not give evidence for the prosecution)
had convictions of dishonesty. The trial Judge ruled that the Defendant
was attempting to show that the two men by reason of their
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convictions were more likely to have committed the theft and

therefore, that the prosecution could cross-examine the defendant as
to his previous convictions. On appeal by the defendant, it was held,
allowing the appeal that the questions were put to establish the bad
character of the two persons, but nothing else. The questions had
nothing to do with the defendant’s character.
See also Gunner v Lye (1977) Crim. LR 217.
The accused should be warned by the prosecutor as soon as it
appears that he may be running the risk of being cross-examined
under section 157. Leave to cross examinee must be sought from the
magistrate or judge.
Section 157 (vi) (c): this exception is activated where the
accused has given evidence against any other person who has been
charged with the same offence. Thus stealing and handling or receiving
a television set are different offences; R v Lovett (1973) 1 ALL E R 744.
Successive possession of a forged bank note constitute one and the
same offence, thus bring them within the section. The criteria of giving
evidence “against any other person” is whether that evidence tends to
make the other person’s acquittal less likely: R v Hatton (1976) 64 Cr
App Rep 8.
The following cases should be noted:

(a) R v Davis (1975) 1 ALL E R 233, two persons who had visited a
house together were charged with theft from that house of a gold
cross and a Tureen. At the trial on a joint charge one of them (X)
denied the allegation in his examination-in-chief. When cross-
examined on the other’s (Y’s) behalf, he said, “I am not
suggesting Y took the cross. As I never, and it s missing,
he must have done it but I am not saying that he did”.
Evidence of X’s previous convictions was admitted under this
section and x was convicted. On the appeal which was dismissed
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it was held that in all the circumstances which were such that
one or the other must have committed the offence, X’s denial
had undermined Y’s defence and mounted evidence against Y
under the section.
(b) R v Hatton (1976) 64 Cri App R 88; X, Y and Z were charged with
stealing scrap metal. Y denied that there was a plan to steal the
scrap. X and Z agreed that there was a plan but denied
dishonest. The trial judge allowed counsel for Y to examine X on
the ground that X had given evidence against Y within the
meaning of the section since X’s evidence undermined Y’s story.
On appeal, X contended that the evidence was not necessarily
“against” Y. X’s appeal was dismissed; it was held that as X’s
evidence had supported a vital part of the prosecution’s case
which Y had denied it rendered Y’s conviction more likely, thus
reducing his chance of acquittal.
See also Mudock v Taylor (1965) AC 574.
R v Bruce (1975) 1 WLR 252
R v Rockman (1978) LR. 162
SIMILAR FACT EVIDENCE

The notion of similar fact evidence is concerned with a design or
pattern of behaviour relating to offences that have been committed.
Proof the accused on other occasions will nearly always have

some relevance to the question whether he committee the crime on
the instant occasion. It is not however, generally admissible. The
prejudicial effect which it will have is thought likely to outweigh its true
probative value and so it is extended.
Description of the Accused
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It may be important for the defence to know the first description

of the offender. There should be an administrative rule that the police
are to obtain description whenever practicable, and there should be a
legal duty to supply to the defence where one has been obtained.
Identification Parades
4. THE RULE ON HEARSAY AND ITS EXCEPTIONS
The Rule requires witnesses to testify only from what they
perceived with one of their own senses. Thus an assertion other than
one made by a person whilst giving evidence is inadmissible as
evidence of the facts stated. Hearsay is a testimony given by a witness
of a statement (representation) made by some other person on some
other occasion as the truth of what was stated.
i. The exclusionary rule
Hearsay evidence in its legal sense is evidence given by a witness
testifying of a statement made on some other occasion, when it is
intended as evidence of the truth of what was asserted. The general
rule is basically that evidence consisting of oral or written statements
of one who could have been called as a witness which are narrated to
the court by some other a witness or through a document for the
purposes of establishing the truth of what was asserted is hearsay and
therefore inadmissible. However the rule has always been subject to
exceptions. Perhaps some of the major exceptions are accused’s
confession and common law exceptions like res gestae. Apart from
common law exceptions reliance is placed on statutes.
Hearsay evidence is generally inadmissible. ‘Hearsay’ usually
refers to a statement made by person who is not called as a witness. It
is hearsay and inadmissible when the object is to establish the truth of
what is contained in the statement. It is not hearsay and admissible
when it is proposed to establish by the evidence, not the truth of the
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statement but that it was made. Mutambo and Five Ors v TP (1965) ZR
15 (CA) Held that:
“Evidence of statement made in the presence of a court witness is
inadmissible hearsay if offered to prove the truth of what is contained in
the statement but not if offered to prove the fact that the statement was
made.”
There are a number of reasons put forward to support the rule

against hearsay:
Hearsay statements emanate from persons who are neither under oath
nor subject to cross examination. That is, the statement was not made
under oath nor was it made in court and subjected to cross
examination. Furthermore, there is a danger of inaccuracy through
repetition. The more a story is passed on, the more likely it will be
distorted or misunderstood.
In Myers v DPP (1964) ALL E R; (1965) A C 1001, the appellant
was convicted of theft of motor cars. His practice was to buy wrecked
vehicles with their registration books and then steal a comparable
vehicle disguise it to correspond with the wrecked vehicle and finally
sell the disguised stolen vehicle together with the genuine registration
book of the wrecked car.
To prove the cars were stolen, the prosecution called an official in
charge of the records made by the manufacturer of the stolen vehicles
who produced microfilms of the cards filed in by workmen showing the
numbers moulded into the stolen cars’ cylinder block numbers of the
cars in question. The trial judge admitted the evidence.
Lord Reid stated that:
“The reason why this evidence is maintained to have been
inadmissible is that its cogency depends on hearsay. The witness could only
say that a record made by someone else showed that, if the record was
correctly made, a car had left the works bearing three particular numbers.
He could not prove that the record was correct or that the numbers which it
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contained were in fact the numbers on the car when it was made. It is not
disputed that to admit these records is to admit hearsay. They only tend to
prove that a particular car bore a particular number when it was
assembled.”
S. 4 (1) of the Evidence Act CAP 43 states that:

“In any criminal proceedings where direct evidence of a fact would
be admissible, any statement contained in a document and tending to
establish that fact shall, on production of the document, be admissible
evidence if:-
(a) the document is, or forms part of, a record relating to any
trade or business or profession and compiled, in the course of
that trade or business or profession, from information supplied
(whether directly or indirectly ) by persons who have, or may
reasonably be supposed to have personal knowledge of the
matter dealt with in the information they supply; and
(b) 1. the person who supplied the information recorded in the
statement in question is dead, or outside Zambia or unfit by
reason of his bodily or mental condition to attend as a witness
or cannot with reasonable diligence be identified or found.”
In the case of Situna v T P (1982) ZR 115 it was held that

hearsay which does not fall within the exceptions to the rule and which
does not come within the meaning of Section 4 of the Evidence Act is
inadmissible as evidence of the truth of that which is alleged.
In Mutambo v The People (1965), the accused was convicted of

murder. One of the issues raised on appeal was whether the trial judge
had rightly rejected evidence given by a kapasu as to the orders which
were given to certain Boma messengers.
Charles J: “That evidence was rejected as hearsay, in my judgment it was
clearly not hearsay. If A delivers a chattel to B, Both A and B can depose to
the fact of delivery and receipt of the chattel as can a third person who was
present and witnessed the delivery of and receipt.
What difference is there really between such acts and the giving of a
verbal order by a superior to a subordinate? Insofar as the order contains
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allegations of fact, the evidence as to the giving and receiving of the

orders is no more than hearsay as to the truth of the allegations and clearly
is not admissible.”
Edward Sinyama v T P(1993/4) ZR 16

Bwalya v T P(1995/7) ZR 168
In Banda Chisoni v T P (1990/2) ZR 70, the accused injured the
deceased's private parts with a knobkerrie after she refused his sexual
advances and murdered her. He appealed against conviction on
grounds that his confession at police and admission of deceased’s
statement just before she died to the effect that the accused had
injured her with a knobkerrie because she had refused his sexual
advances. It was held:
“Evidence of a statement made by a person who is not called as a
witness may be admitted as part of the res gestae and can be treated as an
exception to the hearsay rule provided it was made in such conditions of
involvement or pressure as to exclude the possibility or concoction or
distortion to the advantage of the maker or to the disadvantage of the
accused.”
The Court concluded on the confession that:
“…. We are satisfied that even had the learned trial judge excluded the
warn and caution statement recorded … he must have convicted in any
event on the remainder of the evidence .”
ii. HEARSAY EXCEPTIONS: CRIMINAL CASES

a) STATEMENTS OF DECEASED PERSONS
(1) Dying Declarations:
Dying declarations are admissible in murder cases to prove
circumstances of the offence. In order for the dying declaration to be
admissible as an exception to the hearsay rule it has to meet the
following criteria:
(1) It must be made under a “settled hopeless expectation of death”;
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(2) The declarant would have been a competent witness.
R v Osman ( )
Lush J laid down the principle in the following terms:
“A dying declaration is admitted in evidence because it is presumed
that no person who is immediately going into the presence of his Maker,
will do so with a lie on his lips. But the person making this declaration must
entertain a settled hopeless expectation of immediate death.”
The Principle
The reasons for its reception as an exception to hearsay rule are:
(1) ‘Death’
(2) ‘Necessity”
If the declarant was the only witness who could testify to the
commission of the offence then the effect of exclusion of the dying
declaration would be to defeat the ends of justice.
(3) The “sense of impending death; is binding like an oath”
“ the general principle on which this species of evidence is admitted
is that they are declarations made in extremity when the party is at the
point of death, and when every hope of this world is gone; when motive to
falsehood is silenced and the mind is induced by the most powerful
considerations to speak the truth; a situation considered by the law as
creating an obligation equal to that which is imposed by a positive oath
administered in a court of justice.” R v. Woodcock (1789) 1 Leach 500 at

page 502
R v Perry (1909) 2 KB 697
This is an exception to the rule against hearsay.
In R v Mead (1824) B & C 605 it was held that a dying declaration
was not admissible in trial for murder unless the declarant ‘must have
been in actual danger of death.’
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In R v Perry (1909) 2 KB 697 at pages 703,704; Lord Alverstone

CJ sad that a judge might have to consider whether:
“the death of the deceased was imminent at the time the declaration was
made and to determine from the language used by the deceased whether
the statement was made at the time when the deceased was ‘a settled
hopeless expectation of death’” (that is to say) “that the deceased had

abandoned all hope of living”.
The test is whether all hope of life has been abandoned so that
the person making the statement thinks that death must follow. In
determining whether a declaration is admissible in evidence the judge
at trial ought to consider whether the death of the deceased was
imminent at the time the declaration was made and to determine from
the language used by the deceased whether statement was made at
the time when the deceased had ‘a settled hopeless expectation of
death’.
Mental Condition of Declarant
 Settled hopeless expectation of death.
 Not qualified by any prospect of recovery, however slight.
 A belief of an instant and impeding death.
Inferences of the mental condition of the declarant may be made from:
(a) the declarant’s own statements
(b)his conduct
(c) the opinion of medical attendants and others.
(d)Serious nature of injury received and any other relevant
circumstance.
In Chandraserera v R [1936 2 ALL E R 865 the defendant was charged
with the murder of a woman by cutting her throat. Before she died and
in the presence of witnesses, in response to the question of who had
attacked her, she made signs that her assailant rode a horse cart and
pointed at a policeman in the crowd slapping her face. These were
interpreted to mean that the assailant drove an oxcart and had been in
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trouble before for slapping a policeman’s face. It was held that hearsay
evidence of her conduct was admissible against the accused
In the case of John Ng’uni the deceased just prior to her death
said “ Look what John Ng’uni has done to me”. This statement was
admissible as part of the evidence against the accused.
DECLARATION BY TESTATOR
The oral or written statements of a deceased testator made after
the execution of his will are admissible evidence of its contents. The
basis for exception lies in the fact that there is no reason for the
testator to lie about its contents.
b) DECLARATIONS IN PUBLIC DOCUMENTS

Mercer v Denne (1905)
A public document is a document that is made for the purpose of the
public making use of it, and being able to refer to it. It should be made
for the purpose of being kept public, so that the persons concerned
may have access to it and make use of it afterwards.
c) RES GESTAE
The phrase ‘Res Gestae’ means part of a story i.e. things done,
events which happened.
Spontaneous declarations, exclamations or utterances are
sometimes received in evidence even though the person making them
does not take the stand. Res Gestae entails that a facts may be
relevant to the fact in issue because it throws light on it by reason of
its proximity in time, place or circumstance. This principle is
concerned with the admisibility of statements made
contemporaneously with the ocurence of some act or event which the
court is enquiring into. This is so when evidence is received as part of
res gestae, that is, forms part of the story.
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The Court must clearly be satisfied that the statement was made
in circumstances of spontaneous or involvement in the event that the
possibility of concoction can be disregarded. A spontaneous
declaration was defined by Justice Lockwood in the American case of
Keefe v State ( ):
“…under certain external circumstances of physical or mental shock,
a stress of nervous excitement may be produced in a spectator which still
the reflective faculties and removes and removes their control, so that the
utterance which then occurs is a spontaneous and sincere response to the
actual sensations and perceptions already produced by the external shock..
Since this utter is made under the immediate and uncontrolled domination
of the senses rather than reason and reflection, and during the brief period
when consideration is of self interest is could not have been fully brought
to bear, the utterance may be taken as expressing the real belief of the
speaker as to the facts just observed by him.”
Chisoni Banda v T P (1991) SJ (SC)
Held:
exception to the hearsay rule provided it was made in such conditions of
involvement or pressure as to exclude the possibility or concoction or
accused.”
The Court said that:
“We respectfully agree with the decision in Ng'uni that evidence of a
statement made by a person who is not called as a witness (in this case
the deceased) may be admitted as part of the res gestae and can be
treated as an exception to the hearsay rule provided it was made in such
conditions of involvement or pressure as to exclude the possibility or
concoction or distortion to the advantage of the maker or to the
disadvantage of the accused. “
Halsbury's, 4th Edition, volume 3, note 11 of para 1137 the learned
authors wrote:
“whereas a confession of guilt is made to counsel before trial, he
could decline to take up the defence of the case; where a confession made
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to him during trial does not debar him from testing the prosecution case to
the full and setting up available defences so long as he does not set up an
affirmative case inconsistent with the confession.”
And at para 1195 of Halsbury’s 4th edition, Volume 3 that:

“the duty of non-disclosure by counsel of information confided in him
by his client which counsel is not entitled to communicate to anyone else if
it would be to the detriment of his client.”
T P v John Ng’uni (1977) Z.R. 376 (H.C.)
The accused appealed against a conviction on a charge of
manslaughter of one Knife Rive. The facts were that the accused and
the deceased were in the house of one William Phiri, where drinks were
being sold. At about 2200 hours there were some six persons in the
house, the wife of William Phiri, Esther Mawila the wife of Mr. Mankishi,
Knife Rice, the deceased, the accused and Mr. Phiri himself. The
deceased, who came from another village, said to Esther Mawila,
"Esther you are my cousin. I will marry your daughter." Apparently the
remarks made by the deceased annoyed the accused. He caught hold
of the deceased and pushed him outside the house. Three minutes
later, the deceased came back and fell outside the doorway of the
house crying "Look what John Ng'uni has done to me." The deceased
had a wound on the left forearm which was bleeding profusely. He died
the following morning.
There was no direct evidence of the wounding and the
prosecution relied upon the alleged utterance by the deceased relayed
by prosecution witness who said the deceased said, “Look what John
Ng'uni has done to me." "Look, John has stabbed me with a knife."
“John has stabbed me with a knife." which were admitted as it formed
part of the res gestae. The witnesses also gave a description that the
deceased bore a wound on the left forearm which was bleeding
profusely.
The Court held that:
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exception to the hearsay rule provided it is made in such conditions of
involvement or pressure as to exclude the possibility of concoction or
accused.”
Cullinan J, as he then was, said at p 381:

“The expression 'res gestae', like many Latin phrases is often used to
cover situations insufficiently analysed in clear English terms. In the
context of the law of evidence it may be used in at least three different
ways:
1. When a situation of fact (e.g. a killing) is being considered, the
question may arise when does the situation begin and when does it end. It
may be arbitrary and artificial to confine the evidence to the firing of the
gun or the insertion of the knife, without knowing in a broader sense, what
was happening. Thus in O'Leary v R [3] evidence was admitted of assaults,
prior to a killing, committed by the accused during what was said to be a
continuous orgy.
2. The evidence may be concerned with spoken words as such (apart
from the truth of what they convey). The words are then themselves the
res gestae or part of the res gestae, i.e. are the relevant facts or part of
them.
3. A hearsay statement is made either by the victim of an attack or
by a bystander - indicating directly or indirectly the identity of the attacker.
The admissibility of the statement is then said to depend on whether it was
made as part of the res gestae.”
There is no doubt what this reason is: it is twofold. The first is
that there may be uncertainty as to the exact words used because of
their transmission through the evidence of another person than the
speaker. The second is because of the risk of concoction of false
evidence by persons who have been the victim of assault or accident.
The first matter goes to weight. The person testifying to the words
used is liable to cross-examination: the accused person (as he could
not at the time when earlier reported cases were decided) can give his
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own account, if different. The possibility of concoction, or fabrication,

where it exists, is on the other hand an entirely valid reason for
exclusion, and is probably the real test which judges in fact apply.
.
Subramaniam v Public Prosecutor (1956) 1 W.L.R. 965 at p. 970,
"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 the evidence, not the truth of the
statement but the fact that it was made."
Fowkes “There is the Butcher!”
R v Roberts [1936] 1 ALL E R 23 (CCA)
R v Oyesiku
The admissibility of such explanation requires that certain
external circumstances of physical or mental shock, a stress of nervous
excitement may be produced in a spectator which stills their reflective
facilities and removes their control, so that the utterance which then
occurs is a spontaneous and sincere response to the actual sensations
and perceptions already produced by the external shock.
Three factors are necessary for res gestae to be admitted as an
exception to the hearsay rule:
 An occurrence sufficiently startling to produce a spontaneous and
unreflecting statement;
 Absence of time to fabricate;
 The statement must relate to circumstances of the occurrence
HEARSAY EXCEPTIONS: CIVIL CASES
vi. OPINION EVIDENCE AND PRIOR PROCEEDINGS:

Opinion and beliefs
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In general, a witness may testify only to the facts he Hs

perceived directly as a result his opinions that is, beliefs founded on
inference from facts or from expressions, are, in generally not
admissible as evidence. The reasons for this exclusionary rule are said
to include the following reasons:
(a) Opinion evidence is largely irrelevant
Harlington & Hawthorn & Co. (1943) 2 ALL E R 35
(b) The reception of opinion evidence has been considered as in
fact, a usurpation of court’s function. North Cheshire &
Manchester Brewery Co v Manchester Brewery (1899) A C 35:
“Upon the question which your Lordships have to decide, whether the
one name is so nearly resembling another so as to be calculated to
deceive, should be entitled to say that and for this reason; that that is
the very question which your Lordships have to decide….” Per Lord
Halsbury.
(c) A witness who speaks only to his private opinion may not be
prosecuted for perjury: Folkes v Chadd (1782) 2 Dong K B 157.
Opinion as a Fact
When an opinion is a relevant fact, it can be proved. “A question
of fact is one capable of being answered by way of demonstration; a
question of opinion is one that cannot be so answered. The answer to it
is one of speculation which cannot be proved by any available
evidence to right or wrong,” Salmond.
Exception
Opinion of Ordinary Witness:
(a) There are many cases of identification where the law would be
rendered ridiculous if positive certainty were required from
witnesses per Pollock C B in Foyer v Gathercole (1849) 4 Exch.
262.
(b)Handwriting
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A witness’ opinion may be given in proof of genuineness of a

party’s noncli. If he had seen the party write on the same occasion
or has corresponded with him
Doe de mudd v Suckermore (1837)
(c) Age
A witness may testify to his own age. In such a case the court
may form its own opinion, however, of the age of the witness. R v
Cooks (1898) 1 QB 179; Walworth v Ballimar (1966) 1 W L R 16.
Mental State
A witness may give an opinion on his own mental state. Harnet v
Bond (1924) 2 KB 157
Other Matters
The opinions of other witnesses have been received in relation to
questions concerning:
 value of article, R v Becketty (1913) 18 Crim. App. Rep. 204;
 Affection of spouse, Trelonomy v Coleman (1877) 2 Stark 191;
 Dislike of a child, R v Chard (1971) 56 Cr. App. R. 268
 Experience and field of study.
His profession does make him an expert e.g. a medical doctor and
psychiatrist.
R.v SilverLock (1894)
R. v Somers (1963) 3 ALL E R 808
Foreign Law expert witnesses can be given by a person who is
suitably qualified to do so. He need not be an advocate.
When two experts differ it is for the judge to decide which one to
take. DPP v A and BC Chewing Gum [1968] 1 QB 159, [1967] 2 ALL
E R 504
- Opinion Evidence and the Hearsay Rule

- Expert/Medical Evidence/Report
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Forensic sciences range over a wide range of matters of

particular significance in criminal cases. Matters such as the presence
and age of fingernails and blood stains; the comparison of specimen of
handwriting; the examination of weapons and ammunition and analysis
of samples of drugs, blood and other bodily fluids. This is according to
Murphy on Evidence, 5th edition 2000. In Folkes V Chadd [1782] 3
Doog 157, Lord Mansfield confirmed that the opinion of scientific men
upon proven facts may be given by ‘men of science within their
own science’.
In Buckley v Rice Thomas [1554] plowd 118,124; Saunders J as
he then was, expressed pride in the readiness of the law to accept
guidance from suitably qualified expert witnesses’ evidence.
In Folkes V Chadd [1782] 3 Doog 157, Mansfield LJ confirmed
that the opinion of scientific men upon proven facts may be given by
‘men of science within their own science’.
In such a case, it is logical and reasonable to draw an inference of

guilty against the accused.
Joseph Mutaba Tobo v T P (1990/2) ZR 140

Khumalo v TP(1981) ZR 136
Mutale v Crushed Stones Limited (1993/4) ZR 154
Mvula v T P (1990/2) ZR 54
Askan Das Batra v AG (1993/4) ZR 41
Oliver John Irwin v T P (1993/4) ZR 54
Patson Simbaiula v TP (1990/2) ZR 136
- Previous convictions evidence

Chibozu v TP (1981) ZR 28; 136
5. WITNESSES
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Usually an adult person is competent to testify in Court except

persons of unsound mind and children.
Competency
The general rule is that evidence must be given by legally
competent persons.
i. Types of witnesses:
(a) Adults:
Unfavourable Witness and Hostile Witness

A party calls a witness who he presents as credible and
favourable to testify to the truth of his assertions. Thus the general
rule is that a party calling a witness is not entitled to cross examine or
attempt to discredit his own witness.
An unfavourable witness is one called by a party to prove a
particular fact in issue or relevant to the issue who fails to prove such
fact or proves an opposite fact. A hostile witness is one who is not
desirous to tell the truth at the instance of the party calling him.
An unfavourable Witness
An unfavourable witness is a witness called to prove a particular
fact but who when called fails to prove such fact and says nothing of
importance or relevant that may be of use to prove such fact. Either he
does wish to provide favourable evidence but for some reason he
unable to do so i.e. because of memory loss.
In such a case the remedy lies in calling a different witness to
prove that which the witness failed to prove. For instance calling
another witness like in Ewer v Ambrose (!825) in which another witness
was called to testify to the existence of a partnership that the first
witness had failed to prove.
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It is not allowed to discredit an unfavourable witness by

attacking his character and credit. It is equally not permissible to put to
him an inconsistent previous statement.
Hostile Witness
A hostile witness is who shows animus against the party calling
him if it is apparent hat he does not wish to tell the truth on behalf of
the party that called him. This type of witness comes to court and tells
the opposite of what the party who summoned him expected him to
say. In such circumstances you can apply to court to have him declared
hostile.
The witness will not automatically be treated as hostile. You can
impeach your witness and ask the court to expunge the testimony if
you do not want his statement to remain on record; Hatchard John and
Muna Ndulo at p.113. You must first seek the permission of the court to
have him declared hostile. The Judge will consider the witness’s degree
of co-operation and the conduct in assessing whether to declare him
hostile or not. The court may consider being given the opportunity to
refresh the witness’s memory from any previous statement. He can
then be asked to explain why his present statement is inconsistent to
hi earlier statement.
Once a witness has been declared hostile it is open to the party
to:
a) To adduce evidence to contradict the witness.
b) With leave of the court to cross-examine him. He may also be
asked leading questions. He
cannot be asked questions about his bad character or previous
convictions that tend to
discredit him.
c) With leave of the court details of occasions on which previous
inconsistent statements were made may be given to the witness
and if he remembers making the statements he can be
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questioned to show that the witness had given previous inconsistent

statements.
Previous inconsistent statement must be relevant to the credit of
the witness and as evidence of the matter stated therein.
Competency of Accused Person

Under article 18 (7) of the Constitution of Zambia, a person
charged for a criminal offence is a competent witness for defence at
every stage in the proceedings but not compellable to give evidence at
his trial whether the person is charged solely or jointly with any other
person.
- The accused must be informed of his right to give evidence. R v
Villers (1927) 20 Cr, App. R. 150
- If the Co-defendant gives evidence in the course of a joint trial,
then what he says becomes evidence for all the purposes of the case
including the purpose of being evidence against the co-defendant per
Humphreys in R v Rudd (1948) 32 Cr. App. R. 138.
- The accused has a right at common law to make an unsworn
statement from the dock, without cross-examination.
Spouse
In criminal cases the general rule is that the accused’s spouse is
not a competent and compellable witness for the prosecution in any
criminal proceedings;
Read:
R v Deacon (1973) 2 ALL E R 1145.
Soondo v T P (1981) ZR 302 (SC)
It relates to matters occurring before, during marriage and after judicial

separation; Moss v Moss (1963) 2 Q B 799.
The exceptions to the general rule include the following:
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(1) At common law in a case for treason, or in cases involving

violence on the spouse
(2) Statutory exception, in cases of bigamy violence on a person
under the age of 16 or if it is a sexual offence committed against a
person under the age of 16.
The accused’s spouse is a competent witness for the defence
and may be compelled to give evidence unless he/she is charged with
an offence in the proceedings. Read: R v Boal (1965) 2 Q B 402.
The accused’s spouse is a competent witness for the defence
with the consent of the accused not compellable to give evidence for a
co-accused. The spouse is competent witness for co-accused without
consent of the accused in cases covered by chapter 15 of the Penal
code and with bigamy.
Accomplices
The accused as a general rule at common law is not a competent
witness for prosecution to give evidence against a co-prisoner. Even if
several persons are jointly charged, they are not competent witnesses
for the prosecution. If however, one has pleaded guilty and has already
been convicted or acquitted of the relevant charge or if the
proceedings have been discontinued against him he is competent and
may be compelled to give evidence for the prosecution.
Mumba v The People (1984) HC
There is a similar effect when the prosecution file a “nolle
prosequi” in respect of the accused R v Payne (1950) 1 ALL E R 122.
Compellability
(a) Competency does not mean compellability.
(b)The spouse is compellable where statute clearly states that
she is compellable.
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(c) Spouse is competent in cases involving violence against

spouse.
(d)
In general the accused is a competent witness for the defence.
Experts
Police Officers
(b) CHILDREN
ii. (a) COMPETENCE

Evidence must be given by legally competent witnesses and all
persons are competent (and compellable) as witnesses in judicial
proceedings.
The general rule is that all persons are competent to give evidence in
court. The general rule is also that a person who is competent to give
evidence is also compellable. There are persons who are not
competent or who cannot give evidence or others whilst competent,
are not compellable.
a) At one time the following categories of persons were
generally considered incompetent:
1. Non Christians
2. Convicts
3. Persons with propriety or pecuniary in the outcome of the
hearing.
These restrictions have been progressively abolished.
b) The Judge decides questions of incompetence or
competence, usually in preliminary examination (voire dire) in open
court, in jury’s presence where the case is tried by the jury
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(1) Where incompetence of witness becomes apparent, the judge will

exclude the evidence, R v Moore (1892) 66 Lt 125.
Persons of Defective Intellect
Insanity and drunkenness amounting to temporary loss of reason
will generally be held to have destroyed competency.
(2) However, an insane person may be competent during lucid
interval, pr where is insanity relates to one matter only and he
understands an oath, he may be considered capable of giving evidence
on other matters, R v Hill (1851) 5 Cox C. C. 252.
It is for the judge to decide whether a witness is incompetent because
of defective intellect, Toohey v Metropolitan Police Commissioner
(1965) A C 595.
For a competent witness to appear before court he is summoned.
If he is unwilling to appear the will subpoena the witness and the
witness has no choice but to attend court in order to avoid being cited
for contempt .An accused is privileged to as witness to make a sworn
statement, a statement not given on oath or to remain silent. If he
remained silent the Court may draw inferences from all the evidence
recorded. If he remains silent he may or may not cal witnesses.
(b) COMPELLABILITY
In general persons who are competent witnesses are also
compellable to give evidence in judicial proceeding
(c) OATHS AND AFFIRMATION
In general, evidence must be given on oath:
1) The oath was at one time taken on the gospel.
The case of Omychund v Baker (1745) 1 Atkyn 21, decided that
witnesses could give evidence on oath appropriate to their religions.
2) The Oaths Act 1838 allowed an oath to be administered in a fashion
which the person taking it declared to be binding on him. The Oaths
Act 1909 set out the words to be used that are still used today. The
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Oaths Act 1888 as amended by section 8(1) of the Administration of

Justice Act 1977 allowed affirmation The Oaths Act 1961 allows
affirmation where a Holy book necessary for the swearing of an oath is
unavailable.
3) In some cases unsworn evidence may be given.
Administration of the Oath

The general rule is that an oath may be administered by any
person who has the authority to hear evidence. In practice, it is
administered by the Clerk of Court or some other official.
1) The oath taking is accompanied by the holding pf the New
Testament (or in a case of persons of the Jewish faith, the Old
Testament).
2) The essence of the oath is its solemn appeal (usually to God)
to witness that statements which are to be made are true. It
takes the form “I swear by the Almighty God that the evidence
that I shall give shall be the truth and nothing but the truth. So
help me God.”
3) In Juvenile Courts the oath usually begins with the words “I
promise before Almighty God ....”
4) A person who objects to the oath as set out above may take
the form of oath which is binding on him in his conscious in
accordance to his religious belief.
Affirmation
Affirmation involves the making a solemn declaration that excludes
any reference to God under the Oaths Act 1888, Section 1 as amended
by section 8 (1) of the Administration of Justice Act 1977:
Any person who objects to being sworn shall be permitted to make
his solemn affirmation instead of taking the oath in all places and for all
purposes be required by law, which affirmation shall be of the same force
and effect as if he has taken the oath.”
a) Form of affirmation:
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b) Affirmation may be made by persons whose religious belief for

bid the taking of the oath like Quakers or by persons without
religious beliefs or by persons whose belief require an oath which
can not be administered in the circumstances.
c) It should be noted that evidence given on affirmation is not
“unsworn evidence,” since it is the affirmation is in fact the
equivalent of an oath.
It is contempt of court for a person to refuse to be sworn or to
affirm. Read Henegal v Evance (1806) 12 ves 201.
Elias Kundiona v T P (1993/4) ZR 59; (1993) S.J. 49 (S.C.)

“Before we come to the grounds of appeal and the arguments which
were argued before us on both sides, we consider it appropriate to say a
few words on the subject of contempt generally and to make some
preliminary observations on this case. It was not in dispute that wilful
disobedience to a summons to an accused to attend court is a contempt. It
was also clearly a contempt (subject to the arguments based on duress
which we will consider shortly) to attack the personal character of the
learned trial judge by alleging bias and lack of impartiality, and to such to
abort a trial in progress on such grounds. Such acts are, prima facie,
calculated to bring a court or a judge into contempt, or to lower his
authority, or to interfere with the due course of justice.”
Unsworn Evidence
Unsworn Evidence of children
In criminal Proceedings the unsworn evidence of children of
tender years is generally admissible where the Court is satisfied that
they do not understand the nature of an oath but they have sufficient
intelligence to justify the reception of evidence and understand the
duty of speaking the truth.
1) The judge determines whether the child has appropriate
intelligence and understanding.
Read R v Surgenor (1940) 2 ALL E R 249.
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2) A child’s unsworn evidence must be corroborated by sworn

evidence.
3) The child can be cross-examined on the evidence
4) In R v Hayes (1977) 1 W L R 234 it was held that in deciding
whether a child should be worn the vital consideration is whether he
has sufficient appreciation of the solemnity of the occasion and the
added responsibility to tell the truth which is involved in the tasking of
the oath.
Unsworn Statement of the Accused Person
iv. PRIVILEGE
Privilege is an extraordinary right of advantage attached to persons in
some very special circumstances. Those who possess this right are
exempt from some specific duty. Priviledge is spoken off as:
“the benefit derived from the absence of legal duties.”
An American definition speaks of privilege as:
A legal freedom on the part of one person as against another to do a
given act or a legal freeedom not to do a certain act”
CONCEPT OF PRIVILEGE IN THE LAW OF EVIDENCE

Although a witness may be both competent and compellable to give
evidence, he has the right nevertheless to decline to answer certain
types of questions on a number of grounds; e.g. that the answer
required relates to affairs of the state, disclosures of which would be
injurious to the public Interest. Beatson v Skene (1860) 5 H & N 838
Or the answer might subject him to criminal prosecution. R v Boyes
(1861) 1 B & S 311
The General result is that there exist a number of circumstances
in which a party will not be allowed to prove some fact even though
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the fact is relevant and proof of it may be given. Estoppel is one

ground for the refusal of proof privilege is another ground.
Examples:
1) Ducan v Commell Laird & Co. Ltd (1942) A C 624
In an action brought by the widows of persons drowned in a
submarine disaster, it was held by the House of Lords that a statement
by the first lord of the Admiralty that disclosure would be against public
interest had to be accepted by the court as final.
2) Paddock v Forester (1842) 3 M & G 903
The first of series of letters was headed “without prejudice.” It
was held that the privilege of non disclosure attached to the
correspondence in its entirety.
Point Underlying Concept of Privilege

A. The fact that a witness claims privilege does not in itself, give rise to
any inference adverse to his case. Wentworth v Lloyd (1864) 33 LJ Ch
688
B. Privilege attaches to a particular person hence it may be possible to
prove matters apparently shielded by that privilege through the
evidence of other witnesses.
(i) In Calcraft v Guest (1898) 1 QB 759 it was held that although
privilege was applicable to documents, they were admissible when
secondary evidence of them became available.
(ii) In Rumping v DPP AC 814 AC 814, part of the evidence
admitted at the trial for murder was a letter written by the appellant to
his wife on the day after the killing. The letter had been intercepted
and shown to the police. The question on appeal was whether the
letter was rightly admitted as evidence against the appellant. It was
held that the letter was properly admitted, there is no rule of law or
public policy preventing someone other than the spouse from giving
evidence of an intended communication between spouses.
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Privilege Arising on the Ground of Public Policy

General Principle:
In general relevant evidence will be excluded where its disclosure
would produce the public interest.
(a) The general public interest is paramount to the interest of
the suitor.; per Swinfun Early LJ in As tic Petroleum Co Ltd v Anglo
Persian Oil Co Ltd [1916] 1 KB 822
(b) “First the publication of a state document may involve danger to
the nation – an order for discovery might involve the country in war or
diplomatic embarrassment. Secondly the publication of a state document
may be injurious to servants of the state”. ; per Field J in Hennesy v

Wright (1888)21 QBD 509
The Law Restated
Conway v Reemer (1968) AC 910, prior to the decision in this case the
general rule was that a Minister’s decision on a question of public
interest was absolutely binding on the court.
Ducan v Cammell Laird & Co Ltd [1942} AC 624
But in Re Governor Hotel London (No. 2 ) (1965) Ch 1210, it was held
by the Court of Appeal that in some cases the judge had a residual
power to inspect documents even where a minister had objected to
their disclosure.
(a) Conway v Reemer (1968) AC 910, X, a former police probationer,
brought an action for malicious prosecution against a superintendent
who had caused a charge of theft to be brought against X, following
which X had been acquitted. The Home Secretary objected (contrary to
the wishes of the parties) to the production of the documents relating
to X’s conduct during his probation. The House of Lords ordered the
documents to be produced for inspection, after which they ordered
production to X. Technically it would be wrong to regard Ducan v
Cammell Laird & Co Ltd [1942} AC 624 as overruled because every
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member of the house was of the opinion that the actual decision that
the documents relating to the structure of the submarine should not be
produced was right, but the condemnation of Lord Simon’s exclusion of
the routine documents among those to which the Minister’s objection,
provide it was in the right form should be conclusive was unanimous.
(b) “In my view it should be made clear that whenever an objection is made
to the production of a relevant document it is for the court to decide
whether to uphold the objection. The inherent power of the court must
include the power to ask for clarification or amplification of an objection to
production. Though the courts would be more careful not to impose
production a requirement to which could be met by divulging the very
matters to which the objection was related . The power of the court must
also include a powere to examine documents privately – a power which I
think in practice should be sparingly used, but one which could operate as
a safeguard to the executive in cases where a court is inclined to make an
order for production where an objection is being pressed “, per Lord

Morris
Norwich Pharmaceutical Co Ltd v Customs and Exercise Commissioner
(1974) AC 133, the plaintiffs held the patent of a chemical compound
used in animal feeds which they discovered was being infringed by
unknown importers. The Commissioners knew the identity of the
importers. The Plaintiffs brought an action against the Commissioner
and asked for an order of the importer’s identity. The judge granted the
order but this was not upheld by the Court of Appeal. Plaintiffs’ appeal
to the House of Lords was allowed. It was held that the confidential
communication in the hands of the Commissioner could be produced;
the interest of justice outweighed any public interest in the confidential
nature of that information.
Law of Privilege and Privilege of Confidentiality

The privilege in law of evidence is the right of a person to insist
in their being withheld from judicial tribunal information which might
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assist to ascertain facts relevant to an issue upon which it is

adjudicating; the general rule is that all relevant evidence should be
brought before the court and therefore, privilege operates as an
exclusionary rule of evidence.
Medical Evidence/Report
Chibozu v T P (1981) ZR 28; 136
Joseph Mutaba Tobo v T P (1990/2) ZR 140
Khumalo v T P (1981) ZR 136
Mutale v Crushed Stones Limited (1993/4) ZR 154
Mvula v T P (1990/2) ZR 54
Askan Das Batra v AG (1993/4) ZR 41
Oliver John Irwin v T P(1993/4) ZR 54
Patson Simbaiula v T P (1990/2) ZR 136
IV. PUBLIC POLICY
6. COURSE OF THE TRIAL

THE TRIAL
- Testimony (examination of witnesses, cross examination and re-
examination)
7 DOCUMENTARY EVIDENCE
Documentary Evidence
8. MATTERS WHICH MAY NOT NEED TO BE PROVED BY

EVIDENCE
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The rules of exclusion here operate so as to facts as contrasted

with hearsay which operates so as to exclude a particular mode of
proof of facts.
i. JUDICIAL NOTICE
Judicial notice means the acceptance by tribunal of the truth of a fact
without proof. The court will take judicial notice of notorious facts or
common knowledge.
Mwape v T P(1976)
The appellant was convicted of aggravated Robbery. It was
alleged that the appellant together with others robbed Zambia
Consumer Buying Corporation ZCBC. During the robbery a watchman
was stabbed. The State Advocate argued that the trial court should
have taken judicial notice that shops are well guarded by watchmen
and consequently the appellant knew or ought to have known that
violence would be used against the watchman.
Held, that in this country the guarding of shops including ZCBC shops
has become a common phenomenon, and of this the court took judicial
notice.
However, the court was doubtful whether the appellant and
others had agreed to use violence against the guard hence allowing
the appeal.
Hubert Sankombe v TP ( )
The appellant was convicted of unlawful wounding. Both at the
trial and on appeal, the defence was one of alibi, namely that the
appellant was in Kitwe at the time the complainant was assaulted in
Kalulushi. The issue was whether it was feasible for the appellant to
have made his way from Kitwe to Kalulushi and back in the time
available, about five hours. At the trial both the court and the counsel
proceeded on the assumption that the distance between Kitwe and
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Kalulushi and back was known to all of them. The honourable judge
apparently took judicial notice of the distance between Kalulushi and
Kitwe albeit he did not say so. On appeal, it was held that the court had
taken judicial notice of the distance and rightly so. Further more, it was
feasible that the appellant could have travelled within five hours.
Cross on evidence at page 141 stipulates that: “ Within reasonable
and proper limits a judge may make use of his personal knowledge of
general matters.”
And at page 142:
“Much time would be wasted if every fact which was not admitted
had to be the subject of evidence which would, in many instances be costly
and difficult to obtain”
Thus it is expedient to take judicial notice of notorious facts.
An alternative mechanism by which a fact in issue may be
decided is by the tribunal of law 'taking judicial notice of it'. Although it
is decided or determined, the fact in issue is not 'proved' in the usual
legal sense of the word. Judicial notice can be said to assist the party
which would otherwise bear the burden of proof in relation to a fact in
issue because if the fact is judicially noticed it is established, without
that party having to call evidence and convince the tribunal of fact.
Judicial notice, and facts established under the doctrine of

judicial notice, referred to as "facts which need not be proved", it is
perhaps better to think of such facts as, "facts which have not been
proved, but rather, as facts established by judicial notice”. The tribunal
of law may 'take judicial notice of a fact', either with or without 'an
inquiry' into the fact
Derrick Chitala v AG (1995/7) ZR 91

The People v Shamwana and Ors (1982) ZR 123
Kapata v T P(1984) ZR 47
William David Cerlisle Wise v AG (1990/2) ZR 124
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Zambia National Holdings and UNIP v AG (1994/4) ZR 115

Mulundika and 7 Others v T P(1995) ZR 20
ii. Estoppels
Estoppel is an exclusionary rule of evidence, the application of
which may result in a party’s being prohibited from asserting or
denying some facts. ‘Estoppel’ comes from a French word ‘estoupe’;
from whence the English word stopped comes, and it is called an
estoppel or conclusion, because a man’s own act or acceptance
stoppeth or closeth up his mouth to allege or plead the truth; Cocke.
The effect of the rule is to render some relevant (evidence) facts
inadmissible as evidence.
Estoppel applies to evidence or a statement of fact which a
person is estopped from denying if he had not denied it earlier or he
had conducted himself in such a manner that he would be taken to
have condoned certain behaviour.
(a) In Greenwood v Martins Bank Ltd [1933] A. C. 51; a
husband and a wife held a joint account in the
defendant bank. The wife forged her husband’s
signature on cheques and withdrew money from the
account. The husband failed to inform the bank of the
forgeries and was thus estopped from claiming
repayment. The appellant’s silence amounted to a
representation that the cheques were not forgeries and
left the respondent bank in ignorance of the true facts.
 Estoppel by record
The court takes judicial notice of records that exists.
 Estoppel by conduct in civil cases
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Generally in civil matters when a person by words or conduct has

caused another to believe in the existence of a certain state of affairs
and to act upon that belief to his detriment he is estopped from
denying the existence of facts. This may be express or by implication.
For a representation to be an estoppel, it must have been made
in circumstances that a reasonable man would have thought that it
was intended that he should act on it, and it must have been acted
upon to the detriment of the person to whom it was made. When there
is a duty to disclose material facts deliberate silence with regard to
them may be equivalent to a misrepresentation. In Greenwood v
Martins Bank a husband’s failure to disclose his wife had been forging
his signature on the cheques was held to estop him from alleging the
forgery in an action to recover the amounts debited to his account.
92

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Evidence 1 Lecture Notes

Law (University of Zambia)

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Lecture Notes by Rose Samakayi

1. INTRODUCTION TO THE COURSE

Downloaded by Josias Sakala ([email protected])

i. NATURE AND CLASSIFICATION OF EVIDENCE:

Downloaded by Josias Sakala ([email protected])

However not all facts relating to a matter may be presented in

Downloaded by Josias Sakala ([email protected])

The reception of evidence is generally on oath or by sworn

Evidence is derived from inspection of some document for example a

In Grant v Southwestern and County Properties (1974) 2 ALL E R

Section 2 of The Evidence Act CAP provides that a document

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In Fabrics v Taylor (1985) FRS 75, invoices, records of stock and

Documentary evidence is subject to specific forms of

Documentary versus physical evidence

A piece of evidence is not documentary evidence if it is

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In Woods v Martins Bank (1959) 1 QB 55 the court held that a

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disapprove it; i.e. the irrebuttable presumption of ignorance of the law.

THE KEYSTONE OF EVIDENCE:

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Read: R v Quinn & Bloom (1962) 2 QB 245

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Facts Relevant to the Issue

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Kambarage Mpundu Kaunda v TP(1990/2) ZR 215

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“It has been said that circumstantial evidence is to be considered as

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about his knowledge as to where it was lying. The Supreme Court of

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In Chabala the court said:

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because guilt is a matter of inference, there cannot be conviction if the

found a finding of guilt by inference.” per Hughes, J S in Chabala V The

drawn from all the circumstances." per Baron J P , as he then was,

It was also held in R V Onufrejczyk [1955] 2 QB 388 on a charge of

no confession of any participation in a crime .”

In Banning V United States, 317 US 695 it was held that

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of articles on that site, it being immaterial that he was unconscious of

Cumulative Effect of the Circumstantial Evidence

were proved by eye-witnesses”.

The total cumulative effect of all proved facts combined, each

2. BURDENS AND PRESUMPTIONS

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The 'presumption of innocence', is the concept that underlies law

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burden is also known as the ‘legal or persuasive burden’ of proof. This

Under section 25 of the Penal Code the law makes it an offence

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