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 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 17th 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:

1 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
1 The principal of oral testimony is dominant
2 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. However not all facts relating to a matter may be presented in evidence.
3 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

1
 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:
4 In criminal cases proof is beyond reasonable doubt an in civil cases proof on a balance of probabilities may
suffice.
5 In criminal proceedings dying declarations may be admissible in trials of murder and manslaughter while in
civil cases such declarations are inadmissible.
6 The good character of the accused is only admissible in criminal but not in civil cases
7 Admissions are admissible only if they are made voluntarily while in civil proceedings they are almost
always admissible.
8 In criminal cases un-sworn evidence may be admissible. In civil cases evidence is received only when given
on oath.
9 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
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.

1 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.

2 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.”

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.
3 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.

2
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 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.
4 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.
5 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.
“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.

6 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
1 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.
2 Hearsay
The general rule is that hearsay evidence is not admissible in court.

3
Other classifications
3 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.
4 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.

5 Conclusive Evidence
Some statutory provision obliges the court to accept as conclusive proof of a fact and reject evidence
adduced in an attempt to 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.
1 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.
2 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:

1 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.
2 The principal of oral testimony is prevalent.
3 The burden of proof is on the person asserting the facts.
4 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.
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

4
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.”
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
Kambarage Mpundu Kaunda v TP(1990/2) ZR 215
Joseph Mutaba Tobo v T P(1990/2) ZR 149
(a) Direct (or original) Evidence
1 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
2 Hearsay evidence is indirect or second hand evidence of some fact not actually perceived by a witness with

5
 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:
1 The witness may be lying or mistaken as to the facts;
2 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

“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 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

6
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 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 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.”
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:

7
“…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, 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 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
8
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
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
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

9
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
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 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

10
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.

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.
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

11
as product of the mental disease, completely makes the defence of insanity faked and 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.
(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.

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)

12
 Everyman is taken to be cognisant of the law otherwise there is no knowing ot 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
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.
1 In criminal cases the presumption holds until the contrary is proved.
R v McNaghten [1843] 10 CL & F 200
2 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

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.
2 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
3 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

13
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
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
3 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 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.
1 There is no presumption as to the date of death
2 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
1 There is no presumption that a person who has not been heard of less than 7 years ago is still alive.
2 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

14
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 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
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.

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

15
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
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 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.

16
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),
(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
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: -
3 strong presumptions which shift the burden of proof and
4 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.

17
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 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.
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

18
convict unless the evidence is corroborated. In The People v Shamwana and Others (1983) ZR 123; the Supreme
Court quoted R v 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)
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 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

19
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 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.
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.

20
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. 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 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 Longstaff (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:
1 Accused running away R v Knight (1966) 1 ALL E R 647;
2 Giving False Alibi when questioned: Credland v Knowler (1951) 35 Cr. App. R. 48;

21
3 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
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.

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

22
 (b) Silence evidencing a conscious guilt

(c) Silence as strengthening inferences from the opposing evidence

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….”

1 A confession, in criminal cases, is an admission made by accused to someone ‘in authority’.

2 A confession made in consequence of threats or inducements is inadmissible.
3 A confession obtained in contravention of the judges’ rules or by means of other improper questions may be
excluded by the court.
4 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 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

23
 admissions are not 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.

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.
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

24
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:
(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.
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.

25
“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:

(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 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 convictions were more likely to have committed the theft and

26
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 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

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.

27
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
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 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

28
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 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”;
(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”

29
 “ 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.’
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
1 Settled hopeless expectation of death.
2 Not qualified by any prospect of recovery, however slight.
3 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 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

30
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.
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:
“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 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 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.

31
The Court held that:
“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 is made in such
conditions of involvement or pressure as to exclude the possibility of concoction or distortion to the
advantage of the maker or to the disadvantage of the 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 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:
1 An occurrence sufficiently startling to produce a spontaneous and unreflecting statement;
2 Absence of time to fabricate;
2 The statement must relate to circumstances of the occurrence

HEARSAY EXCEPTIONS: CIVIL CASES

vi. OPINION EVIDENCE AND PRIOR PROCEEDINGS:

Opinion and beliefs
In general, a witness may testify only to the facts he Hs perceived directly as a result his opinions that is,

32
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
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:
1 value of article, R v Becketty (1913) 18 Crim. App. Rep. 204;
2 Affection of spouse, Trelonomy v Coleman (1877) 2 Stark 191;
3 Dislike of a child, R v Chard (1971) 56 Cr. App. R. 268
4 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

1 Opinion Evidence and the Hearsay Rule

2 Expert/Medical Evidence/Report
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

33
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

2 Previous convictions evidence

Chibozu v TP (1981) ZR 28; 136

5. WITNESSES
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.
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

34
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 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:

(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.

35
Compellability
(a) Competency does not mean compellability.
(b) The spouse is compellable where statute clearly states that she is compellable.
(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
(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.

36
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 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:
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.
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

37
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 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.

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

38
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 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 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

39
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

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 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

40
Kapata v T P(1984) ZR 47
William David Cerlisle Wise v AG (1990/2) ZR 124
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.

5 Estoppel by record
The court takes judicial notice of records that exists.
6 Estoppel by conduct in civil cases
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.

41