Law of Evidence Training Manual

DIPLOMA IN POLICE STUDIES
LAW OF EVIDENCE
TRAINING MANUAL
[DPS 113]
COMPILING:
ChateukaTrynos
Nyoni Shamiso
Manduvi Farai
TYPESETTING:
RutanhaTakuranashe
REVIEW:
Mashaure Happy
LAW OF EVIDENCE ZIMBABWE REPUBLIC POLICE ACADEMY
MODULE OVERVIEW
This course explores the rules governing the admissibility of evidence as it

pertains to the Criminal Procedure & Evidence Act, Chapter 9.07. Emphasis
is placed on this legislation in order for police officers to prepare for a
successful criminal trial. The concept of case law and its relationship with
the relevant provisions in the Criminal Procedure & Evidence Act and the
Constitution of Zimbabwe will be examined. This module consists of nine
units. Unit one is just an Introduction to law of evidence, Unit two takes
readers through issues to do with Evidence from its definition to the types
of evidence, Unit three dwells on the relevance and admissibility of
evidence, Unit four outlines the competence and compellability of witnesses,
Unit five specifically talks about admissions, Unit six walks readers through
previous consistent statements, Unit seven illustrates on Corroboration of
evidence whilst Unit eight highlights on privileges. Unit nine wraps up the
module by walking readers through burden of proof.
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TABLE OF CONTENTS
MODULE OVERVIEW ............................................................................................. i

TABLE OF CONTENTS ...........................................................................................ii
UNIT 1: INTRODUCTION TO THE LAW OF EVIDENCE ......................................... 1

1.0. Introduction ......................................................................................... 1
1.1. What is Law of Evidence? .................................................................... 1
UNIT 2: EVIDENCE ........................................................................................... 4

2.0. Introduction ......................................................................................... 4
2.1. Definition of evidence ......................................................................... 4
2.2. Types of evidence.............................................................................. 4
UNIT 3: RELEVANCE AND ADMISSIBILITY OF EVIDENCE ................................... 6

3.0. Introduction ......................................................................................... 6
3.1. Relevance of evidence ........................................................................ 6
3.2. Admissibility of evidence ..................................................................... 8
3.3. Hearsay Evidence .............................................................................. 9
3.4. Similar facts evidence ...................................................................... 21
3.5. Opinion evidence ............................................................................. 29
3.6. Character evidence .......................................................................... 31
3.7. Circumstantial evidence .................................................................... 36
UNIT 4: COMPETENCE AND COMPELLABILITY OF WITNESSES ......................... 39

4.0. Introduction ........................................................................................ 39
4.1. General rule ................................................................................... 39
4.2. Competent and Compellable .............................................................. 39
4.3. Competent but not compellable .......................................................... 41
4.4. Incompetent and non-compellable ....................................................... 43
UNIT 5: ADMISSIONS..................................................................................... 45
5.0. Introduction ........................................................................................ 45
5.1. Formal admissions ........................................................................... 45
5.2. Informal admissions ......................................................................... 46
5.3. Vicarious Admission ......................................................................... 47
5.4. Confessions ................................................................................... 47
UNIT 6: PREVIOUS CONSISTENT STATEMENTS ............................................... 50
6.0. Introduction ........................................................................................ 50

6.1. Rationale for Exclusion ..................................................................... 50
6.2. Exceptions to the general rule ............................................................ 51
6.3. Refreshment of memory ................................................................... 54
UNIT 7: CORROBORATION OF EVIDENCE ........................................................ 57
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7.0. Introduction ........................................................................................ 57

7.1. Single Witnesses ............................................................................. 57
7.2. Accomplices ................................................................................... 58
7.3. Sexual offences .............................................................................. 60
7.4. Children ........................................................................................ 61
UNIT 8: PRIVILEGES ...................................................................................... 64

8.0. Introduction ........................................................................................ 64
8.1. Matrimonial.................................................................................... 64
8.2. Legal Profession Privilege .................................................................. 66
8.3. Self-Incrimination............................................................................ 66
8.4. State Privilege/Security .................................................................... 67
8.5. Without Prejudice Negotiations ........................................................... 68
UNIT 9: BURDEN OF PROOF............................................................................ 70

9.0. Introduction ........................................................................................ 70
9.1. Definition ...................................................................................... 70
9.2. Distinguishing the onus of proof from the evidentiary burden ..................... 70
9.3. The incidence of the burden of proof .................................................... 71
9.4. Degree ......................................................................................... 72
9.5. The Criminal Standard ...................................................................... 72
9.6. Verdict of not guilty ......................................................................... 73
9.7. The Civil Standard ........................................................................... 74
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UNIT 1
INTRODUCTION TO THE LAW OF EVIDENCE
1.0. INTRODUCTION
The purpose of this unit is to provide a brief outline of the key concepts that
are applied in law of evidence so that learners may have an appreciation of
what in contained in the module as a whole.
1.1. WHAT IS LAW OF EVIDENCE?
Law of evidence encompasses rules and legal principles that govern the
proof of facts in legal proceedings. It determines what facts have to be or
must not be considered in reaching a judicial decision. Reference to the law
of evidence also relates to the quantum, quality and type of proof needed of
such proof. Quantum refers to the amount of evidence needed while quality
refers to the reliability of evidence.
Evidence is however not confined to courts of law as it is also used in all

kinds of quasi-judicial bodies. It is for these reasons that we use the term
judicial evidence. Evidence is also any material which tends to persuade the
court of the truth or probability of the fact necessary to sustain a case. It will
be noted later that the bulk of law of evidence is centered on rules of
relevancy. In other words no court of law will ever accept irrelevant
evidence. Thus the rules of evidence are designed to regulate the manner of
proof of evidence which is properly brought before the courts.
The law of evidence falls under adjective law. Adjective law has two main
categories or heads which are Procedure and Evidence.
Procedure
Procedure is the part that deals with initiation of proceedings in an

appropriate court and the conduct of the proceedings while;
Evidence
The law of evidence lays down what may be used as proof, how such facts
may be proved and in certain cases what may be attached to the proof
adduced.
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In short the law of evidence is that part of the adjective law which specifies
what facts may be proved in a trial and how these facts may be proved. The
main function of the law of evidence is to determine what facts are
receivable [admissible] to prove facts in issue. It also determines in what
manner evidence should be adduced and also determines what rules should
be taken into account in assessing the weight or cogency of evidence.
The law of evidence entails the following in summation:-
1. Evidence can only be admissible if it deals with the problem in question

[relevance]
2. Burden of proof
3. Evidence concerning a prior statement by a witness which tends to

corroborate his or her statement in court is inadmissible [prior consistent
statements]
4. The mere fact that a person has previously done something wrong does
not mean he or she has done so again [similar fact evidence]
5. That evidence which merely deals with the character of a party rarely
bears on the question [character evidence]
6. That a witness must tell what he or she perceived not what he or she
was told [hearsay]
7. That a witness must not give commentary and conclusive evidence

usurping the function of the court [opinion evidence]
8. That people who incriminate themselves [through admissions and

confessions] have to do so absolutely freely and voluntarily otherwise
the statements may not be used against them
9. That some kinds of evidence are protected by some higher value and be
excluded [privilege]
10. That evidence illegally obtained though relevant may often have to be
excluded.
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READING MATERIAL
Statutes
Constitution of Zimbabwe, 2013
Criminal Procedure and Evidence Act (Chapter 9:23)
Civil Evidence Act [Chapter 8:01]
The Criminal Law [Codification and Reform] Act (Chapter: 23)
Magistrates‘ court [[Civil] Rules & Regulations
The High Court [Civil] Rules and Regulations
The High Court Act & Regulations
Magistrates‘ Court Act & Regulations
Books
Adrian Bellengere, Robin Palmer, Constantine Theophilopoulos, Benita

Whitcher, Les Roberts, Neville Melville, Elizabeth Picara, TheaIllsley,
MathobelaNkutha, Bobby Naude, Annette der Merwe, Shanta Reddy
(2013), The Law of Evidence in South Africa: Basic Principles, Oxford
University Press Southern Africa (Pty) Ltd, Cape Town, South Africa
Cross and C. Tapper, (1999), Cross and Tapper on Evidence, 9thed,

Butterworths, London
David T. Zeffertt, A. Paizes, Andrew St. Q. Skeen, Léonard Hubert Hoffmann,

(2003), The South African Law of Evidence, 6thed, Butterworths (or
current edition)
Dennis I.H, (2002), The Law of Evidence, 2nded, Sweet and Maxwell
Schwikkard and Van Der Merwe, (2000), Principles of Evidence, 2nded, Juta
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UNIT 2
EVIDENCE
2.0. INTRODUCTION
This unit defines evidence and then explains the key categories of evidence.
This will go a long way in assisting police officers in coming up with evidence
that will lead to successful prosecution of crimes.
OBJECTIVES
By the end of this unit, trainees should be able to:
1. Define evidence
2. Explain the types of evidence
2.1. DEFINITION OF EVIDENCE
Evidence is whatever is needed to prove a fact in issue or a fact relevant to

the issue to the satisfaction of the court of law. Evidence is about proving or
disproving facts the means by which such facts come to be proved and the
admissibility of such proof. In criminal cases facts in issue are those facts
which the prosecution or state must prove or establish so as to prove that
the accused committed the offence. Facts in issue are also the facts that the
accused denies.
2.2. TYPES OF EVIDENCE
2.2.1. Direct evidence
Direct evidence of a fact is the assertion of a person who claims to have

perceived it with his own senses. In other words direct evidence is evidence
directly proving a fact in issue, for example, when a witness claims he saw
the accused stab someone.
2.2.2. Indirect evidence
Circumstantial or indirect evidence but it must only lead to one escapable

conclusion. This is evidence that furnishes indirect proof.
In other words, circumstantial evidence is a fact from which a fact in dispute

may be inferred. Or for example, in a murder trial, that fact that the accused
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had a motive for killing the deceased and the fact that the accused was seen
running away from the deceased‘s house with a bloodstained knife is
circumstantial evidence.
The facts upon which indirect evidence is derived must in themselves be

proven facts. This is to say, the inference must be consistent with the
proven facts. Furthermore, the proved facts should be such that they
exclude every reasonable inference save for the one sought to be drawn.
The above two requirements were laid down in R v Bloom.
2.2.3. Real evidence
Real Evidence – an exhibit for example, a knife or assegai used in a murder

case, soiled panties of a woman in a rape case.These are tangible, material
objects produced in evidence in court for example a bloodstained knife. The
court is then in a position to reach its own conclusions based on its own
perceptions of the real evidence. Real evidence generally requires some oral
evidence either to introduce it or to explain it.
ACTIVITY 2.1
1. What is evidence?
2. Distinguish Direct evidence from Circumstantial evidence
3. Define real evidence using examples.
REFERENCES


current edition)
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UNIT 3
RELEVANCE AND ADMISSIBILITY OF EVIDENCE
3.0. INTRODUCTION
This unit is going to examine the aspects of relevance and admissibility of

different forms of evidence during judicial proceedings.
OBJECTIVES
By the end of this unit, trainees should be able to:
1. Distinguish between relevance and admissibility

2. Explain the rationale for exclusion of hearsay evidence in courts
3. Examine the exceptions to the exclusion of hearsay evidence
4. Analyse the relevance and admissibility of the following evidence
a. Similar fact evidence
b. Opinion evidence
c. Character evidence
d. Circumstantial evidence
3.1. RELEVANCE OF EVIDENCE
Relevance is the quality of evidence which must be possessed as a matter of

law before the court can admit and consider it. In Director of Public
Prosecution v Kilbourne 1973 Appellate court (AC) 729 – the judge indicated
that evidence is relevant if it is logically probative or disapprobative of some
matter which requires proof.
Relevant evidence is therefore evidence which makes the matter more or

less probable, for example, on a charge of speeding, evidence that the
accused‘s car had defective lights would not be relevant whereas on a
charge of driving without lights it is relevant.
All relevant evidence is admissible unless there is another law or principle

which excludes it for example, privilege. Evidence may also be relevant but
unreliable for example, a confession made as a result of torture.
The criterion of relevancy is applied to evidence in both a positive and

negative form that is, it is generally true that relevant evidence is admissible
and irrelevant is inadmissible.
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In R v Trupedo– Accused was charged with entering a dwelling house at

night with the intention to steal. Four footprints were found outside the
house. The police dog smelt the footprints and led the police to a nearby
room where the accused and seven others were sleeping. The dog sniffed at
the accused first and then all the others before going back to the accused
and barked at him. The evidence of this proof was admitted at the trial and
accused was convicted but the appellate Division quashed the conviction on
the ground that it should have been excluded as irrelevant.
It‘s important to note that the evidence was not totally irrelevant but that it
could have been given an exaggerated importance and hence dangerous to
admit. (Read Sections 252-256 of the Criminal Procedure and Evidence Act).
The basic criterion upon which admissibility is based is relevance, See sec.
252 Criminal Procedure and Evidence Act. Evidence which does not facilitate
the resolution of an issue is irrelevant for example, in a murder case the fact
that the accused‘s aim was known in the community is relevant as it helps to
establish his motive. Relevance is determined through common sense but
the common sense would be affected by a number of factors.
Evidence may be relevant but unreliable and for that reason it becomes
inadmissible for example hearsay evidence. Evidence obtained through
dishonorable or dubious circumstances would be relevant but inadmissible.
The notion of relevance has been outlined in the case of R v Trupedo 1920
AD 58.
Much of the law of evidence is concerned with the exception of these general
principles for example the exclusion of testimony on the grounds of hearsay
and remoteness but where its operation is not excluded must remain as a
fundamental test of admissibility.
Facts in Issue and facts relevant to the issue
Evidence relates to the proof or principles which govern the proof of fact in
issue which is a fact relevant to the determination of an issue before the
court. For example with paternity cases, if the defendant is denying
paternity, that is a fact in issue but the fact that he had sexual access to the
woman in question becomes a matter relevant to the fact in issue.
The rules of evidence are designed to regulate the manner in which facts are
receivable.
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If a particular item of evidence can properly be brought before the court, it

is admissible and if not then it is inadmissible.
The case of R v Trupedo 1920 AD 58 is a striking illustration of the latter

point: The accused was charged with entering a house at night with intent to
steal. Four footmarks, apparently made by the intruder, were found outside
the house, and a dog was allowed to smell them. The dog then went to a
nearby room where the accused and seven other people were sleeping,
sniffed at the accused and then at the seven others, and finally returned to
the accused and barked. The evidence of this performance was admitted t
the trial, but the Appellate Division quashed the conviction on the grounds
that it should have been excluded as irrelevant. Innes CJ said that an
inference from the dog‘s tracking activities lay ‗in the region of conjecture
and uncertainty‘. As a matter of common sense, it could hardly be said that
the evidence was totally irrelevant, but the court considered that its
reception would be dangerous because the jury might be inclined to give it
exaggerated weight on account of its dramatic and almost supernatural
qualities.
The criterion of relevance is applied to evidence in both a positive and

negative form. That is to say, it is generally true to say that relevant
evidence is admissible and irrelevant evidence is inadmissible. However,
each of these propositions is subject to qualification. Ordinarily, all relevant
evidence is admissible. There are exceptions to this general rule, eg in the
case of hearsay evidence which is frequently relevant but nevertheless
inadmissible. The above statements embody the inclusionary rule.
In contrast, s 252 of the CPEA and s 26 CEA embody an exclusionary rule.
3.2. ADMISSIBILITY OF EVIDENCE
Admissibility relates to whether the evidence that is intended to be used was

obtained in a proper manner in accordance with the rules of evidence and
without violating the individual‘s constitutional rights. Also consider whether
the court will accept the introduction of such evidence and take it into
account in arriving into a conclusion or verdict Section 252 CP&E Act 9:07.
Admissibility is a question of law whereas weight is a question of fact but it

has to be admissible first.Then the court will assess its depth and
persuasiveness.N.B.First and foremost, the evidence has to be inclusionary.
Evidence obtained through dubious means maybe relevant but inadmissible.
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‗No evidence as to any fact, matter or thing shall be admissible which is

irrelevant or immaterial and cannot conduce to prove or disprove any point
or fact at issue in the case which is being tried.‘Section 26 of the Civil
Evidence Act 26 Irrelevant evidence inadmissible Evidence that is irrelevant
or immaterial and cannot lead to the proving or disproving of any point or
fact in issue shall not be admissible.
3.3. HEARSAY EVIDENCE
Hearsay is evidence is an out of court, made in court to prove the truth of

the matter asserted. In other words hearsay is evidence of a statement that
was made other than by a witness while testifying at the hearing in question
and that is offered to prove the truth of the matter stated for example A
testifying that B told him that C killed D. The general rule of hearsay
evidence
3.3.1. Rationale for the exclusion of hearsay
Section 253(1) of CPEA-
No evidence which is of the nature of hearsay evidence shall be admissible in

any case in which such evidence would be inadmissible in any similar case
depending in the Supreme Court of Judicature in England.
When evidence of a statement, oral or written, made in the ordinary course

of duty, contemporaneously with the facts stated and without motive to
misrepresent, would be admissible in the Supreme Court of Judicature in
England if the person who made the statement were dead, such evidence
shall be admissible in any criminal proceedings if the person who made the
statement is dead or unfit by reason of his bodily or mental condition to
attend as a witness or cannot with reasonable diligence be identified or
found or brought before the court.
One of the longest established principles of the law of evidence is that, in

order to be admissible, any proposed evidence must be relevant to the
issues being determined in a civil or criminal case; in other words, it must
have what is called probative value, because the purpose of evidence is to
build up the necessary basis on which to provide proof of the issues in
dispute in a civil or criminal case (Thomson Round Hall, 2005).
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Another key principle is that, in general, evidence should be capable of being

tested in court under oath, notably through cross-examination; so that if a
specific piece of evidence is not capable of being tested in this way, it is
likely to be deemed inadmissible, even if it appears to be relevant, that is,
has probative value. In some respects the hearsay rule involves the
competing application of these two principles. The leading decision of the
Supreme Court on the hearsay rule, Cullen v Clarke, [1963] IR 368, at 378
summarizes the position as follows.
The hearsay rule is a general rule, subject to many exceptions, that

testimony given by a witness concerning words spoken, statements made or
documents generated by a person who is not produced in court as a witness
is inadmissible if the testimony is presented to prove the truth of the facts
which they assert.
The two main reasons given for this generally exclusionary approach are:
the out-of-court statements cannot be tested by cross-examination and they
are not made under oath. As the Supreme Court noted there are, however, a
number of inclusionary exceptions to the hearsay rule, so that in some
instances evidence may be admitted even where it is not subjected to cross-
examination. The Supreme Court also emphasised that there is no general
rule preventing a witness from testifying as to such out-of-court words,
statements or documents if the testimony is not being presented to prove
the truth of their content.
3.3.2. Admissibility of hearsay evidence [exception to the hearsay rule]
There are six statements by deceased persons that are included in the
exceptions. These are statements against interest, statements in the course
of duty, statements in the case of murder or culpable homicide, statements
concerning pedigree, statements as to public and general rights, and
statements as to the contents of wills by testators.
Declarations by deceased persons – involve a number of scenarios namely;
a. Declarations as to public or general rights
b. Declarations against interest
c. Declarations in the course of study
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d. Dying declarations
e. Declarations pertaining to pedigree (lineage/ancestry/family tree)
f. Declarations by testators concerning their wills.
g. Res Gestae
a. Declarations as to Public or General Rights
An oral or written declaration made by a deceased person concerning

matters of a public nature is admissible if it was made before a dispute
arose and if the declarant was competent to make the declaration. A
general right is a right that affects a class of persons for example grazing
rights whereas public rights affect the public as a whole for example use
of a public road.
Requirements
1. Declarant must be dead
2. Declaration must have been made before the dispute arose
3. Declaration should relate to a dispute over the existence or non-

existence of a public or general right.
4. Declarant should have been a competent witness at the time the

declaration was made.
In the matter of DuToit v Lindenberg 1909 TS 527 it was held that

boundaries of the town lands were proved by the evidence that a
deceased and resident who had known the beacons which signified the
boundaries for at least ½ a century had pointed them out to his son
before his death and this evidence was held to be admissible.
b. Declarations against Interest
The oral or written statement of a person who had since died of a fact
which he knew to be of his proprietary interest at the time of the
declaration was made is admissible as evidence of that fact provided that
the declarant had personal knowledge of that fact.A declaration against
interest must be contrary or disadvantageous to the declarant.
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Nobody in their right senses would make a statement which is contrary to

their interests unless it is true for example admitting to paternity;
acknowledging receipt of money/property/debt indebtedness to someone
else. The declarant must be dead and he must have known/deemed to
have known at the time he made his statement that it was contrary to his
pecuniary interests.
In the matter of Williams v Eaglestar Insurance 1961 (2) SA 631 the

Court admitted a statement by a passenger who had fallen off a bus and
died in which he blames the fault on himself and completely exonerated
the driver.
In Ward v Pitt [1913] (2) KB 130 the Court of Appeal also held that an
acknowledgement by deceased that he was responsible for a woman‘s
pregnancy coupled with a promise to marry her was not necessarily
against interest particularly in a working situation where wife is expected
to prop up the husband in their joint efforts. Another reason was that a
declaration by a man that he is the author of a woman‘s pregnancy is not
something within his definite knowledge.
c. Dying Declarations
Section 254 of the Criminal Procedure and Evidence Act [Chapter 9:07]
relate to cases involving murder or culpable homicide.Oral or written
declarations of a deceased person are admissible in order to show what
caused the death of a declarant provided the following requirements are
satisfied:
1. That declaration refers to deceased‘s death
2. That at time declaration was made, deceased was under a settled,

hopeless & definite expectation of death
3. That the declaration was a complete representation of his thoughts on

the matter. If death intervenes before a complete declaration it
becomesinadmissible
4. That declarant was a competent witness at the time of declaration.
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Rationale
Argument relating to necessity that relevant evidence would be

completely lost to the court. From a spiritual point of view that no person
would be untruthful on his deathbed. Death (apprehension of) brings a
total change in human behaviour.
In R v Woodcock 1789 court held that the general principle on which this
type of evidence is based is that declarations are made in extremity when
party making them is at the point of death and every hope of living is
gone and every motive to falsehood is silenced and mind is induced by
the most powerful considerations to speak the truth; a situation so
solemn which in the eyes of the law almost creates an obligation equal to
that which is imposed by the oath. Declarant must have died eventually
but at the time of declaration he must have had a settled, definite and
hopeless expectation of death (given up all hope of recovery).
In S v Hine 1910 CPD 371 the accused was charged with the murder of
one Dora by performing an illegal abortion on her.Two days before Dora‘s
death, a Magistrate recorded Dora‘s hope of recovery make the following
statement; I am going to die; Mrs Hine is the cause of it. I want her to
go to the blackwaters.‖The statement was received in evidence because
declarant knew she was going to die. Said the Court; if under a
conviction of impeding death and who at the time are in actual danger of
death are admissible in evidence. R v Abdul 1905 TS 119summarizes the
requirements held in order that a dying declaration be admitted in
evidence, three things must have occurred.
1. Person must have been in danger of death
2. Person must have realized the extent of his danger so as to give up all
hope of living.
3. Death must have occurred.
Reliability of evidence is given by eminence of death and the consequence

lack of motivation to tell anything other than the truth. It is not
necessary that person must have died immediately but he must have lost
all hope of living.
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In R v Nzobi 1932 WLD 98thedeceased said ―I feel so weak that I don‘t

think I will succeed in getting well.‖Court held although wards were
pessimistic, they did not exclude all hope of living. Such declarations are
admissible whether they are favorable or unfavorable. In one case,
deceased confessed that he would not have been beaten up by the
accused if he had not provoked him.
1. Declaration must have been complete.
In Waugh v R 1950 AC 203 the deceased, whilst referring to the

appellant said ―the man has an old grudge for me simply because ….‖
Then he fell into a comma and died shortly afterwards. Court held
statement was incomplete and therefore inadmissible.
2. Declarant ought to have been a competent witness.
In R v Pike 172 ERit was held that dying declaration of a child of 4

years was held to be inadmissible because the child could not properly
appreciate the nature of the oath.
d. Declarations in the Course of Duty
Involve statements made by somebody who has since died that were
recorded contemporaneously with the occurrence of an event at a time
when the motive to misrepresent has been for example a nurse who
completes a patient‘s chart. These are matters that pertain to the
declarant‘s duties (maters of a routine nature).
Requirements for Acceptability
1. there must have been a duty by declarant to record or report
2. the duty must have related to acts by the declarant in his official
capacity for example as an employee
3. recording must have been done contemporaneously with act itself to

ensure accuracy
4. there must be the threat of sanctions that if recording is done

inaccurately, the declarant would have been subjected to some
disciplinary action for example dismissal, demotion and others.
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In Nolan v Bernard 1908 TS 114entries made the deceased farm manager

in his diary in the course of duty were admissible to prove that strange
cattle had made an appearance at the farm.
e. Pedigree Declarations
Pedigree declarations relate to a person‘s ancestry. Are admissible both in

civil and criminal cases if the issue relates to somebody‘s genealogy.
Statement may be written or oral but it must actually relate to the
pedigree of the person under discussion.Declarant must be a blood
relation or the spouse of a blood relation to the person whose
ancestry/pedigree is in question.Examples are to be found in family
literature, inscriptions or tombstones or even condolence messages.
Requirements
1. Declarant must have died
2. Declarant must have been spouse or blood relation
3. Matter must relate to a person‘s ancestry.
In Ex parte Lottering 1936 TPD 29 an application was made to the

Registrar of Births and Deaths to issue a birth certificate and register the
birth of the applicant. Applicant‘s case depended on an entry relating to
his birth in his mother‘s bible and the mother has since died.Courts
refused to accept the birth entry since this had nothing to do with
pedigree.Court said, according to the law of evidence, unless a matter of
pedigree be in debate, the entry in the family bible is not admissible. No
question of succession or descent or legitimacy has been raised.
f. Declarations by testators as to the contents of their wills

spontaneous exclamations
Oral or written statements by a deceased testator were admissible to

prove the contents of the deceased testator are admissible to prove the
contents of the will if made after its execution. The declaration is
admissible to prove the execution of the will, its alteration or destruction
animorevocandi.
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g. Spontaneous exclamations
If a sudden event had assumed such intensity and pressure that the
utterances can safely be regarded as a true reflection of what was
actually happening then it ought to be admitted. This does not require the
absence of the declarant as statement made during the events in
question carry more weight than the same statements being repeated in
court by the same person who would have now composed themselves and
will not be under any nervous excitement.
1. Startling occurrence
There must have been an occurrence startling enough to produce a

stress of nervous excitement. Typical examples are assaults, collisions,
explosions or even a robbery. There is no closed list of what
constitutes a startling occurrence and as such it‘s a case by case
approach.
2. Spontaneity
It is required that the statement should have been made while the
stress was still so operative upon the speaker that his reflective
powers may be assumed to have been in abeyance.
See R v Qolo 1965 (1) SA 174 – A saw a man covered in blood and
immediately went to his assistance. He asked him what the matter
was. The man pointed a finger at a tree which was hardly ten metres
away and uttered a word ―Lotsotsi‖. Through the foliage A saw the
accused who was then apprehended and brought to the dying man.
The dying man, using his last ounce of strength, slapped the man on
the face and died. There was no evidence as to when the stabbing had
taken place and therefore the utterance ―Lotsotsi‖ was held not to be
part of the Res Gestae
3. No reconstruction of past events
The statement must not amount to a reconstruction of a past event.
4. Narrative parts excluded
Purely narrative matter will be excluded from a spontaneous

exclamation. The rationale of this rule is also obvious, any narration is
16
a strong indication that reflective powers were not in abeyance; that

the declarant had sufficient time to think or reason and that the
statement was therefore not made spontaneously.
h. Res Gestae
Means part of the story/part of the transaction. Whilst most rules of

evidence are exclusionary. ResGestae is inclusionary. Under it evidence
may be admitted although it infringes the rule against hearsay, opinion
rue a rule against similar fact evidence. It has been criticized for its lack
of specificity that it is too all-embracing. What ―part of the transaction‖
means is that the issue is so closely related to the matter under
discussion? The safeguards are spontaneity and contemporaneity. The
most common example of resgestae involves spontaneous exclamations.
These are excited exclamations made by people when they are in the
thick of things at a time when fabrication is highly unlikely.
The chief justification behind the ResGestae doctrine is the guarantee

affordedby the fact that the event to which it relates is an excited one;
that the utterance is a natural reaction invoked by intense participation
and nervous reaction that its unlikely to be false.
See R v Taylor 1961 (3) SA 616 – the accused was charged with culpable
homicide, allegation being that he had unlawfully caused the death of his
wife by beating her with a leather cash/strap.Neighbours said that they
heard sounds of a struggle and the wife said ―John, please don‘t hit me
n‘more otherwise you will kill me.‖This statement was admitted as part of
the Res Gestae.
Requirements
In S v Tuge 1966 (4) SA 565 the Court said that there must have been an
occurrence which could produce nervous excitement or stress and
statement must have been made whilst the stress was still so operative
upon the speaker that his reflective powers must be assumed to have
been in abeyance.The statement must not amount to a reconstruction of
past events.Event must have been so unusual or starkly extraordinary or
dramatic as to dominate the mind of the victim.
The victim‘s utterance must have been a natural, spontaneous and

instinctive reaction so much that there is no reason for reasoned
17
reflection. In Ratten v R [1971] 3 ALL ER 801 the accused‘s wife

telephoned the operator and said in a hysterical voice ―Get me the police
please‖. Moments later she was short dead. Court said that although
statement was hearsay, since it implied when taken with the rest of the
evidence that accused was attacking deceased, statement made was part
of the ResGestae because of the nervous stress under which wife was
speaking.
In R v Bedingfield [1879] the accused was charged with the murder of a

woman by cutting her throat. His defence was that she committed
suicide. Apparently deceased had come out of a room in which prisoner
had been found with her throat cut and had immediately cried, ―Look
what Bedingfield has done to me,‖ whereupon she died. Question was
whether or not this was part of the Res Gestae. Rather incredulously
Court held utterance was not part of the Res Gestae.
This decision has since been rejected in latter cases for example in Ratten
v R 1972 AC 378 Lord Wilberforce observed that there could hardly be a
case where the words uttered carried more clearly the mark of
spontaneity and intense involvement [than the Bedingfield case].
In R v Qolo 1965 (1) SA 174 ―Lotsotsi‖ was held not to be part of the
ResGestae.
In R v Andrews 1987 AC 281 the seriously wounded victim of a robbery

told police officers that he had been robbed by two men one of whom was
A. Victim subsequently died in hospital some two months later. Trial
Judge permitted prosecution to adduce evidence of statement made by
victim naming defendant and on the basis accused was convicted. On
appeal A argued that the statement was inadmissible hearsay. Court
noted that it was not acceptable as a dying declaration as there was not
settled and hopeless expectation of death but could only be admissible
under the ResGestae doctrine. On the basis of the Bedingfield case it was
argued that ResGestae did not apply because of the passage of time. The
House of Lords categorically stated that Bedingfield no longer represented
the law. The test is one of substantial spontaneity and not exact
spontaneity.
18
i. Statement which accompany and explain a relevant act
Statements made by someone whilst during an act relevant to the issue

are admissible to explain the act even though the speaker does not give
evidence and therefore hearsay (technically).
In Lensen v R 1906 TS 154 the accused was charged with keeping a

gaming house. Police witnesses who kept watch/vigil upon the house
were allowed to give evidence of what they heard people say as they
entered or left the premises. These statements were taken as part of the
ResGestae in that they related to the goings on in the house so they were
statements which accompanied and explained a relevant act.
Requirements
1. Statement must be made by the actor
2. Statement should be more or less contemporaneous with the act.
In Teper v R 1952 AC 480 the accused was convicted/ charged with arson
of a shop belonging to his wife. To identify accuse or the arsonist,
evidence was given by a police constable that he heard an unidentified
woman shouting ―Your place is burning and you are leaving‖, and that he
then saw a few meters away a car in which there was a man resembling
the accused. This was about half an hour after the event. Declining to
treat evidence as part of the ResGestae, Court said that to be admissible,
it is essential that the words sought to be proved by hearsay evidence
should, if not absolutely contemporaneous with the action or event, at
least so clearly associated with it in time, place and circumstance that
they are part of the thing being done.
j. Statements concerning makers contemporaneous state of

mind
In Ex Parte May 1966 (2) SA 184 a statement by a testator made

immediately after destroying his will was admitted to show that he had
done so with an intention to revoke the will (with animusrevocendi).
19
3.3.3. Some statutory exceptions to the hearsay rule
Public documents are normally admissible as an exception to the hearsay

rule because of their reliability and also because of other safeguards like
sanctions and disciplinary measures for example maps, birth certificates.
Requirements
1. Documents must have been made by a public official/officer so that a

register kept by a private individual does not qualify. R v Corris 1931 TPD
47 – the Court noted that a baptismal certificate is not admissible to
prove the date of birth which it records because it is a document that has
been issued by a private organization.
2. Document must be preserved for public use in a public way.
3. It must be open to public inspection.
4. Entry must be made promptly after the event it purports to record.
5. Entry must be made by a person with a duty to record and to satisfy

himself as to the truth of the recorded facts.
6. There must be sanctions or disciplinary measures in the event of

erroneous recordings.
Subramanium v the Public Prosecutor 1956 (1) WLR 965 the accused was
charged with the unlawful possession of weapons of war under the laws of
Malaysia. His defense was that he acted under duress from terrorists who
had captured him in the Malaysian jungles. Trial court ruled that evidence of
his conversation with the terrorists was inadmissible unless the terrorists
themselves came to give evidence. Basis of the inadmissibility was that it
was hearsay. Said the court, the 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 then the purpose of the evidence is
to establish the truth of what is contained in the statements. It is not
hearsay and therefore admissible when it is sought to establish by the
evidence in question, not the truth of the statement but the fact that it was
made.
See International Tobacco Co. v United Tobacco Co. 1953 (3) SA 343 –
Plaintiff company sued the defendant for damages arising out of malicious
20
false statements that its cigarettes caused illness. Plaintiff attempted to lead
evidence from a commercial traveler who heard prospective customers
saying the cigarettes caused illness. Defendant then objected on the basis
that the statements were of a hearsay nature. Overruling the objection,
Court held evidence was admissible to show that rumours to that effect were
circulating and not to prove the truth of what was said.
There are many statutory and common law exceptions to the hearsay rule.
In dealing with material of a hearsay nature, a three legged enquiry is led;
a. Establish whether the material sought to be led falls within hearsay.
b. If evidence falls within the exclusionary rule, next question is, is it

rendered inadmissible by some common law exception. If so what are
therequirements.
c. Is it rendered admissible by statutory exception and if so what are the

requirements?
Reasons for Exception: Necessity
Relevant hearsay evidence would be lost to the Court if rejected altogether.

With certain classes of hearsay evidence, there is a high degree of reliability
and possibility of fabrication is minimal/negligible/minuscule for example
spontaneous exclamations uttered in the heat of the moment in response to
an exciting event where there is no premeditation.
3.4. SIMILAR FACTS EVIDENCE
Similar facts evidence [SFE] has been characterized as evidence of

character, evidence of propensity and disposition, evidence of the past.
Section 260 of the Criminal Procedure and Evidence Act [Chapter 9:07].
Similar facts evidence is evidence which pertains or refers to peculiar,
immoral or illegal conduct of a party on occasions other than those in
dispute but also which is of such a nature that it is logically connected with a
substantially similar to the conduct which forms substance to the dispute.
Similar facts evidence is admissible when it is highly relevant to the issue
before the court (if its probative value outweigh its prejudicial effect).
Makins v AG for New South Wales 1894 AC 57 accused pair were husband
and wife who were charged with the murder of a baby. Its body was found
21
buried in their garden and it was proved that they had agreed to adopt a
baby in return for payment of a small sum of money by its parents. The
defense of the accused was that the child had died of natural causes and
that their sole misdemeanor was to have buried the child irregularly. The
prosecution‘s case was that the child had been killed by the Makings
pursuant to a scheme by which they took charge of infants in return for
payments to be used for the infant‘s upkeep. They would then kill the child
in question and keep payments made.There was no evidence directly linking
Makings to the murder but there was common cause that there was a dead
body. In support of its case, prosecution was allowed to lead evidence that
12 bodies of other infants had been discovered in other places previously
occupied by the Makings. Several of the infants had been placed under their
care in return for payment of small sums of money. Upon being convicted,
accused appealed and the question which the court had to determine was
admissibility of evidence relating to the discovery of other bodies and the
fact that the children had been entrusted to the appellants. In pronouncing
a statement or proposition of the law which has been resonating ever since
Lord Herschell put it this way; ―it is undoubtedly not competent for the
prosecution to adduce evidence tending to show that the accused had been
guilty of criminal acts other than those covered by the indictment or charge
for the purpose of leading to the conclusion that the accused is a person
likely, from his criminal conduct, to have committed the offence in question.‖
3.4.1. Rationale for inadmissibility of similar facts evidence
a. Risk of prejudice is great
In R v Meyer 1953 (4) SA 26 a question was put to a witness; ―Do you

know the accused?‖ The answer was yes. Next question was ―From
where and how?‖ and the answer was ―from prison.‖ Court immediately
sought to disallow such evidence because of its prejudice.
There is an ever strong tendency to believe that the accused is guilty of

the charge merely because he is the likely person to do such acts and
also the tendency to condemn the accused, not because he has done
what he has been alleged to have done, but because he had escaped
unpunished and earlier occasion. Also such evidence involves collateral
or numerous issues which would sidetrack the court.There is a loss of
focus through investigation of collateral issues.
22
Holligham v Head 140 ER 1135, plaintiff had bought guono (some form of
manure) from defendant and was claiming defendant had given a
warranty as to the quality of the guano. Plaintiff then sought to call other
buyers to give evidence that they had also bought from the defendant
and been given similar warranties.The Court held evidence was
insufficiently relevant.
Character evidence consists of:
1. Similar fact evidence

2. Evidence of previous convictions.
b. Similar facts evidence is inadmissible because it is

potentially prejudicial.
Also there is real fear that if similar facts evidence were to be admitted in
an unregulated way, it would easily sidetrack the court from focusing on
the real issue by investigating collateral issues which court has no
business getting embroiled in. In law, in certain cases, similar fact
evidence is admissible on the basis of relevance. Relevance means there
must be striking similarities and that it would be an affront to common
sense to ignore them. The probative value of Similar facts evidence must
outweigh its prejudicial effect for admissibility (it would be a grave
miscarriage not to admit it). Similarities would include the substance of
the offence; modus operandi (mode of operation); time and place; the
motive or objective; the class of victims.
3.4.2. Admissibility of Similar fact evidence
a. Similar fact evidence has been used for purposes of

rebutting defense of accident or coincidence.
Cases in which justice cannot be done wont disclosure of prior conduct.R

v Bond [1906] 2 KB 389 - the accused was convicted of using
instruments with an intent to commit an abortion on a girl who used to be
his domestic worker. The trial court allowed evidence to be admitted to
the effect that the accused had performed a similar operation upon
another girl 9 months earlier. Both girls were servants of the accused
who apparently had become pregnant by him. (B) was a medical doctor
and his defense was that he was using the instruments to examine both
girls for VD. Court nonetheless, allowed evidence and proceeded to
23
convict him on the basis of the evidence. Said the court; ―that the similar
facts evidence was highly relevant in that they were striking similarities;
that the same accident should repeatedly occur to the same person is
unusual especially if it confers a benefit on him.‖
R v Smith 1915 CAR 229 the accused was charged with the murder of
one B a woman with whom he had gone through a marriage ceremony.
Antecedent evidence of the deaths of two other women to whom the
accused was married was held to have been rightly admitted. In each of
the cases, the deceased was found drowned in the bath-tub and in each,
the door of the bathroom would not lock and in each the accused has told
medical practitioners that the women in question suffered from epileptic
fits which defense he raised at trial. In each of the cases the women
were not insured. On appeal, said the court; ―to lose one wife under such
circumstances is unfortunate; to lose a second it is carelessness and to
lose a third is definitely murder‖.
b. To rebut the defence of Innocent Association
R v Bell 1911 AC 47 the two co-accused were brother and sister. They
were indicted quite appropriately under the Punishment of Incest Act of
1908. The allegation was that they had had sexual liaison with each
other during specific periods in 1910. Prior to 1908, incest was not a
crime. Evidence was then given on behalf of the prosecution to the effect
that at the ties specified in the indictment, the two lived together in the
same house. The house apparently had one furnished bedroom which
had a double bed which bore unmistakable signs of having been occupied
by two persons.
Prosecution then tendered evidence of prior sexual relations between the

two accused. Evidence was introduced to the effect that in November
1907, the male accused had rented a house to which he brought the
female accused and in that house they had lived as husband and wife for
more than a year. At the end of March 1908, the Bell she gave birth to a
child and upon registration, she described herself as a mother and the
male, Bell as the father. They were convicted and they duly appealed to
the Court of Criminal Appeal. One of the grounds of appeal was that SFE
had been properly admitted. In the House of Lords, held, that evidence
of prior sexual liaison between the two was clearly admissible in order to
24
show that the two Balls had a sexual passion for each other and that their
association could not have been innocent.
R v E 1960 (2) SA 691 the accused, a white farmer was charged and
subsequently convicted of rape. Complainant was a young African
woman who worked for him. His defence was a complete denial couched
in the following manner; ―I can‘t even have sexual intercourse with a
woman‖. To rebut this evidence, the prosecution led evidence which
showed that accused was suffering from VD contracted through sex with
other women. Court held similar facts evidence had rightly been
admitted to prove capacity. Innocent association overlaps with innocent
explanation.
R v Armstrong 1922 (2) KB 555 – the accused was charged with the
murder of his wife through cyanide poisoning. It was proved that he had
bought a quantity of cyanide or arsenic a short while before the wife‘s
death and had kept the poison in small quantities each containing a fatal
dose. His defence was he had bought the poison to kill weeds. He
suggested to the Court that probably the wife could have taken the
poison either accidentally or deliberately in order to commit suicide.
There was evidence that eight months after the death of the wife, the
accused who was a lawyer had administered the same substance to a
fellow lawyer. So evidence of the poisoning of the wife was used to show
that indeed his possession of the arsenic was for criminal purposes.
c. Similar facts evidence has been used to establish identity
Thompson v R 1918 AC 221 – the accused was charged with committing

acts of gross indecency with two boys. The acts in question, in respect of
which the charges were brought, were alleged to have occurred on March
16th of a given year and the person who committed them was alleged to
have made an appointment with the boys for March 19 th. Meantime, the
police were informed and they kept watch with the boys at the
rendezvous. At the appointed time, the accused duly arrived punctually
and was identified by the boys immediately as the man who had
indecently assaulted them. His defence was one of mistaken identity. At
trial prosecution tendered evidence that when arrested the male accused
was carrying powder puffs (beauty kit) to establish his identity and prove
his guilty. Apart from that, in his room, it was discovered that there was
a generous supply of indecent photographs of boys. Court held; it would
25
have been strange indeed that out of all the people the boys could have
identified, they picked on an avid homosexual.
d. Similar Fact Evidence has been used as part of Res Gestae
S v Banana 1998 (2) ZLR 533
The term Res Gestae means the transaction or part of the story. It is an
all embracing description for several types of reported statements most of
which are received as exceptions to the hearsay rule. In the United
States, the term is referred to as the Excited Utterance Rule.
The Res Gestae doctrine is used to refer to acts or events or statements

which from part of the transaction in issue and the underlying
principles/critical issues are contemporaneity and relevance. Certain
facts are inextricably linked or bound up in terms of time, place or
circumstances under enquiry so much that it is impossible to understand
that event which forms the subject matter of investigations on its own.
In other words, the res gestae principle is concerned with the
admissibility of statements which are made contemporaneously with the
occurrence of acts/events which the court is enquiring into.
R v Taylor 1961 (3) SA 616 – the accused was charged with culpable
homicide, allegation being that he had unlawfully caused the death of his
wife by beating her with a leather cash/strap. Neighbours said that they
heard sounds of a struggle and the wife said ―John, please don‘t hit me
n‘more otherwise you will kill me.‖ This statement was admitted as part
of the Res Gestae.The beating of the wife is part of the transaction (Res
Gestae).
O’Leary v the King 73 CLR 566 – case illustrates the concept of similar
fact evidence in the broader domain of Res Gestae. The accused and the
deceased were both employees at an isolated Timber Camp in Australia.
Together with fellow employees they took part in the drunken orgy. This
orgy commenced on Saturday morning until Sunday morning. At about
Saturday midnight, deceased retired to his cubicle, a short distance from
the accused‘s own cubicle. On Sunday morning, the deceased was found
in his cubicle in a dying state; badly injured; had been struck on the head
about 8 or 9 times after which paraffin was poured over him and he was
set alight. Nobody witnessed these events taking place. The question of
identity of accused became critical.
26
Prosecution was then allowed to lead evidence to the following effect:
 That at various times during the orgy, the accused had punched one H
on the head and knocked him down and continued to punch him whilst
he was prostrate
 He had grabbed on T by the throat and threatened ―to do him‖
 Accused had knocked one K and kicked him all over the body
 He had threatened to assault and shoot three other people.
All these events occurred prior to the incident relating to the deceased‘s
injuries and subsequent death. Using this evidence, the accused was
convicted of murder on the basis of the Res Gestae doctrine.
Reasoning of Court was that right from the moment of the orgy until the
death of the deceased a series of connected events of a violent nature
took place and the basis of the admissibility of the evidence was that it
consisted of circumstances earlier in point of time being the actions of the
accused which when taken with the offence charged formed a connected
series of events proof of which was essential for the proper understanding
of the accused‘s part in the crime charged and without which the facts of
that event, the incident would be meaningless.
The reception of Similar Facts Evidence reached its high watermark in the
case of DPP v Boardman [1974] 2 ALL ER 887– the argument covered the
whole spectrum, field and logic relating to the admissibility of SFE and the
court noted that there was a definite requirement for striking similarities.
Court noted that for such evidence to be admitted, the discreditable acts
of the accused on previous occasions must bear a striking resemblance to
the discreditable acts in question. The appellant was a headmaster at a
German School in England the catered mostly for foreign pupils,
predominantly from the Middle East. He was charged with two counts
involving 16 year and 17 year boys, both of whom were pupils at his
school. The counts involved the commission of acts of gross indecency or
burglary with each of the boys in question. Each of the boys gave
evidence to the effect that their headmaster would come to their
dormitories late at night. He would ask the boy in question to accompany
him to the school garden where he would then invite the boy in question
to join him in committing acts of homosexual nature. The boy would play
27
the active role while the headmaster took the role of woman (passive).
The judge ruled that each boy‘s evidence was admissible as corroborative
evidence of the other boy‘s story. Points of similarities noted by the court
were as follows:
1. the age of the boys (more or less the same
2. the nocturnal visits by the headmaster in the young hours of the

morning
3. venue/rendezvous was the school garden
4. modus operandi (boys played man while headmaster played woman)
Boardman‘s case was cited with approval in the Zimbabwean case of S v

Meager 1977 (2) RLR 327
In exceptional cases, evidence that the accused has been guilty of other
offences is admissible if it shows that those offences share with the
offence which is subject of the charge, common features of such an
unusual and striking similarities that it would be an affront to common
sense, to assert that the similarities are explicable on the basis of
coincidence. In such cases, the evidence is admissible if its probative
value outweighs its prejudicial effect and provide that there is no
possibility of collaboration between the witnesses.‖
Both cases were cited with approval in the case of S v Banana 1998 (2)
ZLR 533.
Similar Facts Evidence has also been used in civil proceedings more or
less on the same basis with criminal cases and S34 of the Civil Evidence
Act regulates the admissibility of Similar Facts Evidence. S34
consolidates the common law position in that in civil proceedings,
evidence of disposition is admissible provided that its not oppressive or
unfair to the other party and provided that the other party has due
notice.
See also Mood Music Publishing Co. v De Wolfe (Pvt) Ltd 1976 (1) ALL ER
763, and Hales v Kerr 1908 (2) KB 601
28
3.5. OPINION EVIDENCE
3.5.1. General rule
This deals with the question whether an opinion of a witness whether lay or
expert should be admitted for purposes of persuading the court to rely on it
in deciding the issue at hand. Relevance remains the fundamental test for
admissibility. It is therefore an enquiry that takes into account the issues at
hand. If the issue at hand is one were the opinion of an expert can assist the
court in deciding the matter such opinion will be relevant and admissible.
Such opinion will be admissible subject to other rules of evidence for
example hearsay.
3.5.2. Generally inadmissible (exclusionary)
Opinion evidence involves conclusions, interpretations, evaluations and

inferences derived from observed facts.
Witness is expected to narrate/recite events as he/she witnessed them.

He/she is not expected to give their opinion in court.
Put differently, the witness is not supposed to found/form an opinion on the

ultimate issue. The ultimate issue is what the court has to decide ton.
The witness narrates the facts as he perceived them and the court draws
conclusions. The underlying assumption is that it is possible to draw a
distinction between inferences or opinions, conclusions on the one had and
the facts on which they are based.
The drawing of the inference is the court‘s business (not brief of the
witness). On the other hand, the brief of the witness is to narrate the facts
upon which they are based.
Hollington v Hewthorne 1943 (2) ALL ER 35 – court said if frequently

happens that a by-stander has a complete and full view of an accident. It is
beyond question that while he may inform the court of everything that he
saw, he may not express an opinion on whether either or both of the parties
were negligent reason being that this is the precise question the court has to
decide (the Hollington rule).
29
3.5.3. Exceptions
1. Expert opinion evidence is admissible
2. Relevant lay opinion evidence also admissible.
a. Expert opinion evidence
Expert opinion evidence is admissible provided it is relevant. By reason

of their expertise and specialized knowledge, more often than not, there
are people who are better placed to assist the court in arriving at a
sensible decision than the court would have been able to do on its own
without such assistance. Expert evidence ordinarily falls outside the
competence of the average reasonable court.
The average judicial officer cannot be expected to be a heart surgeon,

funding in robotics and others things. Experts are expected to facilitate
resolution of the fact in issue. The expert has to be a credible witness.
Expert opinion evidence has been received in a variety of cases for
example matters relating to chemistry, economics, ballistics, banking,
engineering and others.
Requirements for Admissibility
A party who wishes to call an expert witness has to prove to the court the
qualifications of the expert; that he is an expert in the field under
consideration by the court. A physicist cannot give expert evidence on the
operation of the internal organs of the human body. Expertise could have
been acquired through formal training or experience.Experience on
occasion can be decisive. It is the function of the court to satisfy itself
that indeed the expert has got the necessary qualifications.
R v Silverlock [1894] 2 KB 766 – a lawyer who had extensively studied

people‘s handwriting but had no formal qualifications on the matter was
allowed to testify as an expert [The expert who is giving opinion is
required to give cogent reasons for that opinion]. An expert can as well
be cross-examined like other witnesses.
S v Lupien – L had been observed leaving a discotheque in another

person who looked like a woman but in fact was a man.L was
subsequently found by the police in a hotel bedroom in this
person.Evidence of police was to be the effect that the two were placed in
30
an intimate position in each other which justified the inference that an act
of intimacy had been committed or was about to be committed. L‘s
defence was that he had at all material times mistaken the person for a
woman. He sought to lead evidence from a psychiatrist which would
show that he had a sort of chemical which would make him react violently
to homosexual activities and that he wouldn‘t have knowingly engaged in
homosexual exploits. Majority (by a narrow margin) of the court held
that such evidence should have been admitted on basis of relevance.
b. Opinion Evidence of Laypersons
The distinction is only relevant for procedural purposes only as a party is

required to give notice of their intention to call an expert. A party also
has to (in criminal cases) furnish the other party with details of what the
expert witness will say. Basis yardstick is its relevance and in some cases
it is extremely difficulty for a witness to testify without giving an opinion.
But the witness may not express an opinion on a matter in which the
court is in as good a position as the witness to decide.
S v Actions 1983 (2) SA 577 – Court noted that in accident damages

case, for example a witness may say that the driver was intoxicated
because his breath smelt of liquor, that his speech slurred and that he
staggered as he walked but it‘s not for the mistress to say it is the
intoxicated driver who was at fault. Non-expert opinion evidence has
been used in a variety of situations for example identification of
handwriting, persons, talking about conditions of people; estimation of
speed.
3.6. CHARACTER EVIDENCE
Section 260 of CPEA
Except as is provided in section two hundred and ninety, no evidence as to

the character of the accused or as to the character of any woman on whose
person any rape or assault with intent to commit a rape or indecent assault
is alleged to have been committed shall, in any such case, be admissible or
inadmissible if such evidence would be inadmissible or admissible in any
similar case depending in the Supreme Court of Judicature of England.
31
3.6.1. Character of accused person
Character generally means a disposition to behave in a particular way or

simply reputation. The general rule is that evidence of character is
inadmissible.
An accused is entitled if character is in issue to adduce evidence of his good

character or reputation. This evidence is generally of little probative value
but nonetheless admissible and may cast doubts on the state case. The
accused can adduce this evidence personally or through a witness.
The state is not allowed to adduce evidence of character of the accused,

neither is the accused allowed to attack the character of the prosecutor
(adduce evidence of the character of witness).
Unless the accused puts character in issue, the prosecution is generally not
entitled to lead evidence of his bad character. There are however exceptions
in this general rule.
In R v Paluzcak 1938 TPD 427, Paluzcak was charged with homosexuality. In

trying to deny the allegations he led evidence of his good character. The
moment he did this the prosecution rebutted that evidence by leading
evidence that on several occasions he had been seen hanging around bars
wearing female clothing.
Once an accused has put the question of character in issue the prosecution
can set the record straight by doing any of the following things:-
i. The prosecutor may cross examine the accused on his character.
ii. If the evidence was adduced through a witness the prosecutor may also
cross-examine that witness on the accused‘s character.
iii. The prosecutor may put his witness on the stand and adduce evidence to
rebut the accused‘s evidence of good character.
3.6.2. Character of the complainant
The complainant‘s character is usually not a matter relevant to the issue,

however, in two instances the complainant‘s character is always of relevant.
32
a. Rape or indecent assault
Evidence of previous sexual intercourse is always relevant to the element

of consent.
b. Criminal insult
On this charge it is essential that the complainant‘s dignity be insulted.

Evidence that the complainant was not likely to be insulted by the kind of
words used or spoken is always relevant.
3.6.3. Character of witness
Character of witness- the accused may offer evidence of a pertinent trait of

character of the victim that is material to the crime. After the accused places
the victim‘s character in issue, the prosecutor may offer rebuttal evidence on
the same trait only as to the victim‘s character, not the defendant‘s. For
example in an Assault/self –defense case, the defense calls witnesses to
testify that the victim had reputation for violence, carrying guns and starting
fights. The prosecution can rebut with witnesses who say the victim was a
peaceful man, but not that the defendant also had a bad reputation for
violence, carrying guns and starting fights. Also in a homicide case in which
the accused offers appreciable direct evidence that the victim was the first
aggressor, the prosecution may in rebuttal prove the victim‘s good character
for peacefulness whether or not the accused offers character evidence
3.6.4. Previous convictions
In order to assess the credibility of evidence it is helpful to have the

knowledge of the past behaviour or character of the defendant. The question
is whether this is admissible as it could considerably damage the defendant
if he or she is of bad character. The same test also applies to the witnesses.
The key test as to whether evidence of character is admissible is relevance,
if the evidence goes to an issue in the case and tends to prove one of the
elements of the offence then it is relevant and admissible.
The court cannot exclude evidence of bad character on its motion after the
prosecution noted that it intends to adduce such evidence of bad character it
is the defendant who must object to the introduction of such character
evidence.
33
In such instance the court must not admit such evidence if it appears that its
admission would have such an adverse effect on the fairness of the
proceedings that it ought not to admit it.
Evidence of bad character refers mainly to defendant‘s previous convictions.

The rules relating to admissibility of evidence of character whether as a fact
in issue, as a fact in issue, as an evidential fact or as a mode supporting or
impeaching the truthfulness of the witness‘s statement, are but a small part
of the law of evidence.
These may not be disclosed during the accused‘s trial except where there is
a statutory exception or the disclosure may be exempt under the similar fact
evidence rule, e.g. where the accused pleads ignorance. However, previous
convictions are admissible after the verdict to guide the court in sentencing.
Previous convictions or the propensity to commit a crime is always a
relevant issue in bail applications.
3.6.5. The accused as witness
Previously the accused was not allowed to testify in his trial. The right was
only granted less than a century ago, however it was full of dangers. It was
dangerous because he could be asked any question without limit including
character evidence. Eventually the accused was accorded certain privileges
including the privilege against self-incrimination. Evidence cannot be
adduced to show that the accused is of bad character unless he introduces it
himself.
R v Malindi 1963 (4) SA 677, Malindi was charged with treason in that he
was plotting to overthrow the Rhodesian government by illegal means. To
prove the allegation, the prosecution introduced evidence to show Malindi
was a bad African. The evidence was in the form of notebooks entries made
by Malindi showing his anti-Rhodesian stance. The Appeal Court refused the
evidence as it only showed that he was of bad character and not relevant to
the charge.
3.6.6. Lifting the shield on character evidence
The law allows the shifting of the shield against character evidence,
however, only questions relevant to the issue may be asked. Anything
irrelevant may not be asked or if asked a witness will be protected from
answering it. Generally, a mere charge is not evidence of bad character, it
34
merely indicates a misfortune. The shield against character evidence may

only be lifted in the following circumstances:
a. When the accused has given evidence of his good character.
The state is thereafter entitled to cross examine him on his character.

However, character evidence must be distinguished from a mere
narration by the accused of his side of the story.
An accused may also not be penalized because one of his witnesses has
volunteered character evidence.
b. When the accused makes imputations on the character of

State witnesses.
An accused loses his shield against character evidence if he adduces

evidence that is irrelevant except to show that the state witnesses is of
bad character. In the case of S v V 1962 (3) SA 365, V was charged for
having unlawful sexual intercourse with a virgin below the age of 16. In
her evidence the complainant had said V was the first person with whom
he had had intercourse with. In rebuttal the accused led evidence to show
that the complainant was in fact not a virgin and had had sexual
intercourse with other man. The prosecutor claimed that the accused had
cast away his shield against character evidence.
The court ruled out that the shield had not been cast away because the
imputations against complainant were relevant, further the accused was
entitled to rebut the assertion of virginity and chastity lest he failed to
discharge evidential burden.
c. Where the accused gives evidence against co-accused
In respect of persons charged with the same offence, an accused person

may be cross examined on his character as credibility is always relevant
in this case.
d. Receiving stolen property
The prosecution is entitled to cross-examine on the credibility of the

accused as the defence absence of knowledge is always available to him.
35
3.7. CIRCUMSTANTIAL EVIDENCE
We may prove facts in issue either by direct evidence or by indirect

evidence. We also refer to indirect evidence as circumstantial evidence.
Circumstantial evidence is not provided by the direct testimony of
eyewitnesses, but from associated facts from which we may infer the facts in
issue. Circumstantial evidence is therefore often described as evidence that
requires a court to draw inferences or conclusions.
For example: A, B and C live in the same house. B is woken up by a loud

commotion coming from A‘s room. B hurries over to A‘s room and sees C
coming out of that room covered in blood and holding a knife. A is later
found to be dead.
In this situation, B‘s evidence about C carrying a knife and being covered in
blood will be treated as circumstantial evidence as B did not actually see C
killing A. It can only be inferred from this evidence that C killed A.
3.7.1. General Rule
As a general rule, the value of circumstantial evidence lies in its cumulative

effect, that is to say, while a single item of circumstantial evidence may only
slightly increase the likelihood that the accused is guilty, several items taken
together may carry enough probative force to justify a conviction.
In the case of MakungireMtani v. R, Makungire (the appellant) and one

another person (Muzungu) were jointly charged with murder of the
deceased. Muzungu, however, died in remand before the hearing started,
and so the trial proceeded in respect of the appellant alone. He was
convicted basing on circumstantial evidence of mysterious disappearance of
the deceased from the company of the appellant, silence of the appellant in
his defense during trial, blood stains of the deceased‘s blood group found on
the appellant‘s clothes, and incriminating circumstances in a murder charge.
He was then sentenced to death. The appellant‘s advocate contended among
other things that the prosecution evidence was highly circumstantial to
support a conviction, and that the learned trial Judge misdirected himself as
the burden of proof.
It was held that:
36
a. In the circumstances of the present case, there was more than

considerable suspicion against the appellant; for he refused to give an
explanation of how the deceased mysteriously disappeared from his
company.
b. We think that the evidence of the appellant‘s clothes bearing blood stains
of the sample blood group as the deceased but different from his own was
an incriminating circumstance which was properly taken into account in
establishing the appellant‘s guilt.
3.7.2. Exceptions
Though admissible, circumstantial evidence has to be approached with

caution because, as pointed out by lord Normand in the case of Teper v. R
(1952) AC 480, 489, ‗Evidence of this kind may be fabricated to cast
suspicion on another….it is also necessary before drawing the inference of
the accused‘s guilt from circumstantial evidence to be sure that there are no
other co-existing circumstances which would weaken or destroy the
inference‘. Thus, so long as the possibility of fabrication can be discounted,
circumstantial evidence may be more reliable than direct testimony.
ACTIVITY 3.1
1. Distinguish between relevance and admissibility

2. Explain the rationale for exclusion of hearsay evidence in courts
3. Examine the exceptions to the exclusion of hearsay evidence
4. Analyse the admissibility of the following evidence
a. Similar fact evidence
b. Opinion evidence
c. Character evidence
d. Circumstantial evidence
REFERENCES
Statutes
37
Books



current edition)
38
UNIT 4
COMPETENCE AND COMPELLABILITY OF WITNESSES
4.0. INTRODUCTION
This unit is going to examine the aspects of competence and compellability

of witnesses in court, clarifying on witnesses who are regarded at law as
competent and compellable, competent but non-compellable and
incompetent and non-compellable.
OBJECTIVES
At the end of this unit, trainees should be able to:
1. Define competence and compellability
2. Identify and explain competent and non-compellable witnesses and
incompetent and non-compellable witnesses
4.1. GENERAL RULE
Sec 244 of CPEA
No person to be excluded from giving evidence except under this Act. Every
person not expressly excluded by this Act from giving evidence shall be
competent and compellable to give evidence in a criminal case in any court
in Zimbabwe.
4.2. COMPETENT AND COMPELLABLE
The principal method of adding evidence is by the oral testimony of

competent witnesses. A witness may be competent if he may lawfully give
evidence in a court of law. He or she is compellable if he can be obliged or
forced to give evidence in a court of law. A non-compellable witness is a
witness who may refuse to take the witness stand. A non-compellable
witness must be distinguished from a witness who is obliged to take the
witness stand but is entitled to claim privilege in respect to specific
questions.
A compellable witness who refuses to be sworn or to answer certain

questions exposes himself to contempt of court proceedings. Refusal to
answer certain questions may only be entertained if a witness has a just or
legal excuse. In terms of Section 244 of the CP & E ACT Chapter 9:07, every
39
person is competent and compellable to give evidence in a court of law

unless expressly excluded by the Act. The onus of proving the competency
or compellability of witness rests on the person seeking to call that witness.
4.2.1. Spouse of Accused person
Section 247(2) of CPEA-the wife or husband of an accused person shall be

competent and compellable to give evidence for the prosecution without the
consent of the accused person where such person is prosecuted for any
offence against the person of either of them or any of the children of either
of them, or for any of the following offences—
a. rape;
b. aggravated indecent assault;
c. sexual intercourse or performing an indecent act with a young person;
d. sexual intercourse within a prohibited degree of relationship;
e. kidnapping or unlawful detention of a child;
f. bigamy;
g. perjury committed in connection with or for the purpose, of any judicial

proceedings instituted or to be instituted or contemplated by the one of
them against the other, or in connection with or for the purpose of any
criminal proceedings in respect of any offence included in this subsection.
4.2.2. Children
The CP&E ACT is simply silent on children, in other words every person in
Zimbabwe shall not be excluded from giving evidence (children included).
This means that children are competent and compellable. However the court
may exercise measure of discretion when dealing with children. The court
must be satisfied that the child knows what it means to tell the truth. In
terms of Section 249 of CP&E ACT it shall be unlawful to examine any
witness without first administering an oath and the oath must be
administered in such a manner it binds the witness in his conscience.
After the court has dealt with the question of whether the child understands
what it means to tell the truth, it must enquire whether the child
40
understands the religious significance of taking of the oath. Where a child

understands what it means to tell the truth but does not appreciate the oath,
the court will simply admonish the child to tell the truth and then proceed in
terms of Section 251 which allows a court in appropriate circumstances to
take unsworn evidence.
4.2.3. Judges and Magistrates in cases before them
The legal position in respect judicial officers is that they are competent and
compellable to give evidence; however as matter of policy, they do not give
evidence in matters from them. It is highly undesirable that they give
evidence and be exposed to cross examination. In any event, a subpoena
may be issued against the judge with the leave of the court upon
application. Prosecutors are also competent and compellable witnesses,
however for public policy reasons it is generally undesirable to put them in
the witness box in respect of matters before them because their impartiality
may be compromised. The same approach is also taken in respect of legal
practitioners because their professionalism may be compromised.
4.3. COMPETENT BUT NOT COMPELLABLE
Section 248 (1) Evidence of accused and husband or wife on behalf of

accused, (2) An accused person may elect to give his evidence from, or to
be questioned in, the dock or the witness box or other place from which the
other witnesses give their evidence or, with the consent of the judge or
magistrate, any other place in the court room. A competent witness is one
who may lawfully be called not to give evidence. He is compellable if he can
be forced lawfully to give evidence.
R v Creinhold 1926 OPD 151 – a magistrate became convinced that a

witness who had been testifying for some time was dead drunk. He stopped
proceedings, locked up the witness for the night and proceeded ―de novo‖
the following morning.
In respect of children, a child must understand the difference between telling

the truth and lies and if one cannot be sworn then they should be given an
admonition to tell the truth.
41
4.3.1. Judicial Officers
It would be irregular and contrary to the audialterm-partem rule to give

evidence in a case over which he is presiding. Same applies to prosecutors.
Accused himself can give evidence and can elect not to give evidence
(privilege against self-incrimination). This rule exists only on paper as Court
can draw adverse inferences from the accused‘s refusal to testify. An
accused person, in our law, can never be a competent witness for
prosecution of a co-accused whilst still an accused but he can become a
witness for the prosecution if he loses the status of accused. He loses this
status through a NP or through a separate trial or where he has already
been tried and convicted or where he has been acquitted. The spouse in a
marriage is not compellable to give evidence.
4.3.2. The Position of an Accused
The position of the accused is regulated under s 248 of the CPEA: ―Any
accused person ... shall be a competent witness for the defence at every
stage of the proceedings, whether the accused person is charged solely or
jointly with any other person: Provided that — an accused person shall not
be called as a witness, except upon his own application.‖
An accused person may therefore give evidence on his own behalf and on
behalf of his co-accused. Thus an accused person is therefore a competent
but non-compellable witness.If he does so, he will of course be liable to
cross-examination on his ownpart in the alleged offence.But as the accused
can be called only at his own request, there is noway in which a co-accused
can compel him to testify.The non-compellability of the accused will
disappear if for any reason he ceases to be an accused person in the same
proceedings.For instance, the trial may find the accused guilty or not guilty
or there may be a separation of trials following which the accused will
becomecompellable for his former co-accused.
Note that section 248 of CPEA affects the accused‘s position in relation to
the defence. The common law incompetence is left unchanged and the
accused istherefore not a competent witness for the prosecution against a co
accused.
Furthermore, section 247 of CPEA ―the wife or husband of an accused person

shall be competent, but not compellable, to give evidence for the
prosecution without the consent of the accused person where such person is
42
prosecuted for an offence against the separate property of the wife or

husband of the accused person.‖
4.4. INCOMPETENT AND NON-COMPELLABLE
Section 244 of CPEA - No person to be excluded from giving evidence except

under this Act- Every person not expressly excluded by this Act from giving
evidenceshall be competent and compellable to give evidence in a criminal
case inany court in Zimbabwe.
Section 246 of CPEA-No person appearing or proved to be afflicted with

idiocy or mentaldisorder or defect or laboring under any imbecility of mind
arising fromintoxication or otherwise, whereby he is deprived of the proper
use ofreason, shall be competent to give evidence while under the influence
ofany such malady or disability.
The whole point behind taking the testimony of witnesses in court is to prove
the truth of matters stated or to establish facts which prove matters stated.
However, some witnesses are incapable of assisting the courts achieve this
objective due to mental deficiencies. These people are either mentally
disordered or intoxicated. To lead evidence from such people becomes an
irregularity. (See also Section 246 of CP&E ACT 9:07)
In S v Thurston 1968(3) SA 284, a person escaped from mental institution

and was called to give evidence, in a case in which a Judge was aware that
he had escaped from a mental institution. On appeal the Appellate Division
ruled that accepting person’s evidence was an irregularity and the conviction
was quashed. They proceeded to say that the insanity of mind must be such
that it would render the witness’s evidence totally worthless.
As result a person who is an idiot/imbecile may still be capable of giving

coherent evidence. In R v K 1957 (4) SA 49, the trial Judge accepted
medical evidence that the complainant was imbecile, however because she
gave intelligent answers to questions posed, the court accepted her
evidence. This evidence was accepted because not withstanding her
imbecility, she was still capable because the proper use of reason.
In R v Creinhold 1926(OPD) 151, evidence was lead from a witness for about
two hours, thereafter it transpired that the witness was drunk. The court
adjourned the hearing and detained the witness until next day. On the
43
following day, the witness was asked to testify de novo. The evidence that
he had given the previous day was totally disregarded.
ACTIVITY 4.1
1. Define competence and compellability

2. Identify and explain competent and non-compellable witnesses and
incompetent and non-compellable witnesses
REFERENCES
Statutes
Books



current edition)
44
UNIT 5
ADMISSIONS
5.0. INTRODUCTION
This unit shall focus on the formal and informal admissions as well as
confessions.
OBJECTIVES
1. Define admissions
2. Explain the differences between formal and informal admissions
3. Identify types of confessions
An admission is a prejudicial statement made by a party to a civil action.A

confession is the equivalent in a criminal action.In a court of law, a
confession would amount to an unequivocal plea that one is guilty. Where an
accused person or any party to legal proceedings admits the contents of a
document, the contents of such document will be taken as primary evidence
against that party. However mere failure to challenge secondary evidence of
a document does not mean admission of its contents.
5.1. FORMAL ADMISSIONS
These are statements made expressly for the purposes of trial in pleadings
in order to save time. These are non-contentious issues. When an admission
of fact is appropriate for instance you may want to agree certain facts with
the defence so that these facts will not need to be proved at court. This
procedure is known as making formal admissions or making admissions of
fact. As stated above these are non- contentious issues in the sense that
neither party is disputing that particular fact. Parties or a party to a civil
proceeding may admit that particular fact formally in their pleadings to the
court.
Making a formal admission is particularly appropriate if it narrows down the

issues in contention at trial. It is suited for evidence that is unlikely to be
disputed by the defence the following facts may be suitable for formal
admission:
45
 The fact that an accident happened (in a claim for damages for loss of
consortium etc.)
 The fact that an injured person was employed by the defendant (in a
claim for compensation for work related injury).
 The fact the defendant was an occupier of the premises ( in a case based
on claim for arrear rentals)
5.2. INFORMAL ADMISSIONS
They are out of court admissions. A statement can be an admission no

matter how, when and to whom it was made.
Rumping v DPP 1964 AC 144 – a seaman wrote a letter to his wife

confessing to the murder of a colleague. Letter was intercepted and brought
to the attention of the police. Held to be a confession. In another case, a
man who committed a crime was overheard talking to himself and court said
that it was an admission.
An admission can also be by conduct for example; Van der Berg v Elizabeth
[1884] 3 SC 336 – an attempt by defendant in a seduction case to bribe a
policeman to persuade the girl‘s father to withdraw the action was received
as an admission of liability on the part of the defendant because it tended to
show a consciousness on his part of the unsoundness of his case.
R v C 1949 (2) SA 438 –accused on a sodomy charge had attempted to

commit suicide before trial and had run away at the approach of the police.
Usually silence does not amount to an admission except in an exceptional
and very extraordinary situation.
Jacobs v Henning [1927] TPD 324 – an action for seduction damages; the
plaintiff‘s father confronted the defendant and accused him of having
ravished his daughter resulting in a pregnancy at a certain party at which
the defendant made no reply but merely lowered his head presumably in
shame. Court said ―in my view, an innocent man, however unassertive or
meek or mild mannered he maybe, will deny the charge as soon as the
plaintiff‘s father made it‖. Held it was an admission.
46
5.3. VICARIOUS ADMISSION
The admission of one person may be binding on another party because they
is privity of interest between the two for example, employer/employee
relationship if this is something done within the scope of the employee‘s
authority/mandate.
S v Soncalles 1972 (1) SA 243 – accused who had very little knowledge of
English had made an admission to the effect that he had gone through the
red robot. He spoke in Portuguese and his daughter interpreted into English.
Accused‘s lawyer then argued that this was inadmissible hearsay. The Court
held that it was a vicarious admission.
Humphrey Van Rhyn [1953] (3) SA 392 – dispute in question concerned the
cause of a fire which had spread from the defendant‘s farm to the plaintiff‘s.
Defendant had authorized plaintiff to ask two of his employees on how fire
originated. Their statements were held to be vicariously binding on the
employer. Vicarious relationship can relate to husband and wife situation or
in partnerships.
5.4. CONFESSIONS
Secs 112 & 113 of the Criminal Procedure and Evidence Act (formerly S242].
An adverse statement relevant to the issue of guilt in a criminal trial S112 &
113 consolidate the common law position. The gist of the issue is that for a
confession to be admissible it must have been made freely and voluntarily
without undue pressure on the confession.
Rationale
To reduce the risk of prejudice to the accused person.(Improper tactics to

get confession by police). This policy consideration forms a fundamental
principle in our law.
Ibrahim v R 1914 AC 559 - Lord Summer said that it has long been
established that no statement by an accused person is admissible against
him unless it can e show to be a voluntary statement in the sense that it has
not been obtained for the accused person either by fear of prejudice or hope
of an advantage held out to the accused person.
Extra-curial statements made by an accused person for them to be

admissible have to be made freely and voluntarily without undue pressure
47
and influence. This is also in keeping with modern day trends in

International Human Rights Conventions, Treaties and Instruments e.g
Universal Declaration of Human Rights of 1948.
S v Slatter&Ors 1983 (2) ZLR 144 – airforce men who were suspected of
having carried out sabotage on aircraft, the damage running into millions of
dollars.Accused persons were taken from one station to another, blindfolded,
denied access to lawyers, one or two assaulted and it was on this basis that
Dumbutshena JP as he then was refused to admit the evidence on the basis
that the confessions were not free and voluntary.
In the USA there is a famous case ofState of Arizona v Miranda – an

improper elicitation of confession.
R v Murambiwa 1951 SR 271 – accused was suspected of murdering his

employer. He was kept in custody for two days and persistently questioned
and after a final round of interrogation which had lasted three hours, he
made a statement to the police which amounted to a confession. Court
refused to confirm the statement/confession (not freely or voluntarily given).
R v Edward 1966 (2) SA 359 – Court rule that depending on the

circumstances, even an hour‘s interrogation may be enough to vitiate a
confession. Also S v Tsvangirai
R v Michael & Martin 1962 R & N 374 – accused was convicted by a

magistrate of theft of a large quantity of goods belonging to his employer.
Conviction depended in large part on the confession of the accused made to
a manage of the company. According to evidence, accused had been
promised reinstatement after serving his prison term and that while he was
in prison, his family would be taken care of. Court held this was improper
inducement.
One anomalous evidentiary situation pertains to real evidence that has been
discovered as a result of an inadmissible confession. Such evidence in our
law is admissible. Also S v Guruve 1974 (1) SA 206
ACTIVITY 5.1
1. Distinguish between formal and informal admissions

2. Comment on the admissibility of admissions in court
48
REFERENCES
Statutes
Books



current edition)
49
UNIT 6
PREVIOUS CONSISTENT STATEMENTS
6.0. INTRODUCTION
This unit shall define previous consistent statements and examine their
admissibility in court
OBJECTIVES
1. Define Previous Consistent Statements
2. Examine the admissibility of previous consistent statements
A previous consistent statement is a written or oral statement made by a

witness on some occasion prior to testifying and which corresponds with or is
substantially similar to his or her testimony in court.
 Previous consistent statements are generally inadmissible, a witness

cannot as a result be asked in examination in chief if they had uttered
that statement previously.
 They cannot be proved by calling witnesses.
 It‘s excluded because it‘s irrelevant.
 Also referred to as rule against self-serving statements
 Previous inconsistent statements are admissible because they are

relevant to credibility.
6.1. RATIONALE FOR EXCLUSION
i. It is generally felt that previous consistent statements are insufficiently

relevant;
ii. There is a real danger that if previous consistent statements were to be

allowed, there could be fabrication easily;
iii. Evidence of previous consistent statements in most cases would be

superfluous sine at any rate a witness‘ testimony has to be consistent
with earlier statements.
50
iv. Proof in each and every case involving previous statements is time
consuming.
In Corke v Corke& Cook [1958] (1) ALL ER 224 – a wife who had left her
husband because of numerous acts of misconduct on his part and inorder to
support herself and her children let rooms in her house to lodgers. She was
then accused by her husband of committing an act of adultery with one of
the lodgers (correspondent). She immediately phoned her doctor so that he
could examine her and the lodger with a view to establishing her innocence.
The doctor would not come because he was of the opinion that such an
examination would be futile. In court, she sought to lead evidence of the
discussion she had had with the doctor and on appeal the court said that the
evidence of the phone conversation between the wife and the doctor
amounted to no more than a previous consistent statement. The court
observed that one of the reasons for the inclusion of previous consistent
statements in a court of law is to reduce risk of fabrication.
R v Roberts (1942) (1) ALL ER 187 – Accused charged with murder, testified
that the killing was an accident and wanted to call his father as witness that
he had told him the killing was an accident on the night of the deceased‘s
death. Was not permitted to call his father as a witness
6.2. EXCEPTIONS TO THE GENERAL RULE
a. To rebut an allegation or suggestion of recent fabrication.
If in cross-examination a witness‘s account of the story is challenged as a

recent fabrication that witness may support himself by evidence of earlier
statements/evidence by him (defensive shield rather than an offensive
weapon).See Flanagan v Fahy [1910] ER 41
Menday v ProteaAssurence Co Ltd 1976 1 SA 565(E). The party seeking

to use previous consistent statements can only do so if the other party
has alleged that their defense was fabricated recently. It is the defense
that should be alleged to be recent in relation to the trial.
b. Previous consistent statements had been used in cases

relating to prior identification.
An accused person being identified by the witness in court after being

identified earlier outside court at an identification parade, that evidence
51
of prior identification is admissible as an exception to the rule against

previous consistent statements.
c. Complaints in sexual cases.
Over the ages evidence of complaints made by witnesses in cases of

rape, indecent assault, sodomy etc. has traditionally been accepted in
courts and has its origins in English law.
d. Voluntary complaint
The complaint must be made voluntarily, any threats of violence against

the victim will render the complaint inadmissible. See S v T 1963 1 SA
484 (A)were the victim‘s mother threatened to hit her if she did not
disclose to her what the accused had done to her. similarly, leading
questions must not be asked. Questions like ―why are u crying?‖, ―what
happened to your clothes?‖ will not render the complaint inadmissible.
e. The victim must testify
It is required that the victim testifies to prove the consistency with her
version. See S v R 1965 2 SA 463 (W).
f. First reasonable opportunity
The complaint should have been made at the first reasonable opportunity.
See R v C 1955 4 SA 40 (N) the determination of what exactly would
amount to first reasonable opportunity depends on;
i. The presence or absence of person to whom a complaint could have

been made.
ii. Whether the victim realized the immoral nature of the act.
g. Safeguards
To guard against malicious reports or even an honest error that could be

made by the complainant in a sexual assault. Complain must have been
made at the first reasonable opportunity that presents itself. There must
not be undue delay. No hard and fast rule relating to the time frame.
Each case has to be decided on its own facts.
52
R v S 1955 (4) SA 40 – the charge involved rape in which the Court

admitted in evidence a complaint made to the mother of the victim 5
days after the commission of the crime and the Court had an opportunity
to make a pronouncement on the legal position and said to qualify for
admission the complaint must have been made voluntarily not as a result
of leading or suggestive questions or after intimidation. The complaint
must also have been made at the earliest opportunity to the first person
to whom the complaint is reasonably expected to report to. Court also
observed complaint was to young to understand the nature of the offence
that had been perpetrated upon her.
See also R v Gannon 1906 TS 114. In this case due regard was given to
the following considerations:-
 Age of the complainant – she was relatively tender of age
 That she was ignorant of the nature of the offence
 She was prevailed upon by the accused not to tell the mother and for
good measure given money.
See also R v Cummings 1948 (1) ALL ER 551, R v Petros 1967 RLR
For such complaints to be admissible, they must not be elicited by leading

questions. But the mere fact that the statement is made in answer to a
question is not it self-sufficient to make it inadmissible as a complaint.
Much will depend on the manner of question. A non-suggestive question
along the following lines, ―what is the matter?‖ would not render the
complaint inadmissible. On the other hand, if the manner of questioning
is of a leading nature, that would affect its admissibility.
R v Osborne 1905 1KB 551. The complainant in a rape case looked very
distressed and her statement was made upon the following question
being asked;―Why are you going home? The question was held not to be
suggestive. See also Gittleson v R 1948 SR.
In S v T 1963 (1) SA 484– the victim‘s mother threatened to beat her up

if she refuse to disclose what the accused had done to her. Court said
that a complaint made in this way was inadmissible and on appeal the
conviction was duly quashed.Complaints of such a nature are not
53
restricted to female complainants only but are equally applicable to males

as long as the complainant is a victim in an offence of a sexual flavour.
In R v Camelleri 1922 2 KB 122 – Court held, so far as its precedence is

concerned, there is no authority which states that the mere fact that the
complainant is male renders the particulars of the complaint inadmissible.
In fact, such cases are admissible irrespective of the sex of the
complainant.See also R v Burgess 1927 TPD 14.
Victims must testify in order to show consistency between particulars of

the complaint made in extra-curial circumstances and the statements that
are being made in a court of law.
6.3. REFRESHMENT OF MEMORY
Do‘s and Don‘ts on giving evidence in court
Giving a witness access to written memorandum which were recorded

contemporarily with the occurrence of the event.
a. Time lapse between occurrence of the event and the trial makes it
necessary
b. Complexity of the case might justify refreshment of memory
c. Some people because of the nature of their job find themselves in court
quite a lot and some of the cases might be similar.
Refreshment of memory involves revival of the memory but in fact case law
holds that it‘s not absolutely essential for the witness to remember after
having access to the record though it is desirable.
Cape Coast Exploration v Scholtz&Ano 1933 AD 56 it is not necessary for a

witness to have an independent recollection of the facts mentioned in the
document put to him in order to refresh his memory.
6.3.1. Conditions to be Fulfilled
The two main conditions are authenticity and contemporaneity and they
must exist contemporaneously. This idea is to ensure accuracy and
minimize the risk of fabrication. Authenticity means a witness must have
made the document or recording himself or alternatively the recording must
54
have been made on the specific instructions of the witness or a witness must
have read the recording by a third party and accepted its accuracy.
See R v O’Linn 1960 (1) SA 545. -held that the question of authenticity
should be taken together with contemparaneity which looks at the time lapse
between occurrence of the event under discussion and the recording i.e was
record made within a reasonable time which reasonableness is contextual
and situational. Apart from the physical time lapse, a lot will also depend on
the nature of the event under discussion and the impact the event has made
on the mind of the witness.See also Anderson v Whaley 175 ER 460, Jones v
Metcalfe 1967 (3) ALL ER 205
In Mabu Estates v Pembi Chase Farm, court highlighted that inorder for
refreshment of memory, two things must be present that is authenticity and
substantial contemporaneity. By authenticity, writing must be of witness
himself or must have been made at his instruction or he must have read it at
the relevant time and must have approve it. Entry must have been
made/recorded/read by the witness either at the time of occurrence of the
event or so shortly afterwards that it was still fresh in his memory. Question
of substantial contemporaneity is flexible. It depends on the nature of the
event and the impression that it has made on the mind of the other party.
The issue to resolve at the end of the day is whether or not event was still
fresh in the mind of the witness at the time he recorded it.
R v Isaacs 1916 (1) TPD 390 – the recording took place eight days after the
occurrence of the event. Court held in the ordinary scheme of things, one
would still be expected to remember.
The opposing party must be given an opportunity to cross-examine by being

given access to the statement recorded. The idea behind is to highlight to
the court the unreliability of evidence that has been tendered maybe
because of inherent bias on the part of the witness or because they might
not have perceived the events accurately as they unfolded or simply because
the witness is lying. Cross examination is a tool used to facilitate the further
distillation of synthesization of the evidence. This is a weapon which an
opposing party can choose not to invoke. It they decide not to cross-
examine when they ought to have done so, the problem will be theirs.
55
6.3.2. Evidentiary Value of Evidence
At common law, a document used to refresh memory does not give that
document independent value. It is not self-corroborative. Normally the
original record is preferred by the courts to make sure that opportunities for
fabrication are minimized.
ACTIVITY 6.1
1. Define Previous Consistent Statements

2. Examine the admissibility of previous consistent statements
REFERENCES
Statutes
Books



current edition)
56
UNIT 7
CORROBORATION OF EVIDENCE
7.0. INTRODUCTION
The essence of corroborative evidence is that one credit-worthy witness or

item confirms another. It means support or confirmation and in relation to
the law of evidence it means that certain evidence has to b confirmed by
other admissible and independent evidence. This unit shall examine
categories of evidence that require corroboration when presented in court.R
v Baskerville [1916] 2 KB 685
We hold that evidence in corroboration must be independent testimony

which affects the accused by connecting with the crime. It must be evidence
which implicated him in a material manner‖.
In a case where one item of evidence confirms or supports another,

corroboration takes place if both items of evidence are accepted by the
court. Both items must be admissible. The history of corroboration has come
a long way e.g in the Middle Ages, through the influence of the church, there
was a well-known legal principle termed ―testis uinis testis nullis‖ (one
witness is no witness). Now one witness is acceptable provided the evidence
has been given in a clear and satisfactory manner.
OBJECTIVES
1. Define corroboration
2. Examine the types of evidence that require corroboration
7.1. SINGLE WITNESSES
Secs 269 & 270 of the CP and E Act.
It is perfectly permissible for the court to convict on the evidence of a single

witness except for treason and perjury provided that the evidence is clear
and satisfactory in all material respects.
Ellis v R 1961 R & N 463 – Court said that there are certain situations or
cases when it is undesirable for the Court to rely on the evidence of a single
witness e.g where the single interest has a biased adverse to the accuse;
57
where he has made a previous consistent statement; where he has been

found guilty of an offence involving dishonesty in the past or where he has
not had a proper opportunity to observe.
Musonza& 3 Ors v S SC/217/88 - Supreme Court reaffirmed position that it

is inadvisable to convict on the basis of the evidence of a single witness in
certain cases. The case involved allegations of assault and there were
counter allegations of provocation and self defence. Court held complainant
had a motive to place himself in a favourable right and accused in an
unfavourable light.
7.2. ACCOMPLICES
Section 270 of the CPEA
Any court which is trying any person on a charge of any offence may convict
him of any offence alleged against him in the indictment, summons or
charge under trial on the single evidence of any accomplice: Provided that
the offence has, by competent evidence other than the single and
unconfirmed evidence of the accomplice, been proved to the satisfaction of
such court to have been actually committed.
The court has to warn itself of the danger of convicting upon the evidence of
an accomplice and show that it has heeded the warning by pointing to some
factor which can properly be regarded as reducing the risk of convicting an
innocent person.Thus in terms of our law, the court cannot convict on the
single evidenceof an accomplice unless other evidence to the satisfaction of
the court isled showing that the offence has been committed.
An accomplice in this regard relates to anyone who has committed an

offence in connection with the same criminal transaction which forms the
subject matter of the charge (wider meaning).Before the court can convict a
person upon the single evidence of anaccomplice, the court should find some
circumstance which can properlybe regarded as reducing the danger that it
might convict the wrongperson.These are the ways in which the evidence of
an accomplice can beconcluded to be trustworthy by a court:
i. The best way in which courts do this is by corroboration. However, this is

not the only way in which the court can find the evidence of a single
accomplice witness trustworthy. Where corroboration is used to
guarantee the accomplice‘s veracity, it is important for the corroborative
58
evidence to implicate the accusedsince the object of the rule is to avoid

convicting the wrong person.
ii. Another way in which the accomplice‘s evidence can be confirmed as

being evidence that can be trusted is if the accused chooses not todeny
the accomplice‘s evidence under oath.
iii. Where the accomplice is proved to be a convincing or satisfactory witness

beyond question, while the accused is the opposite, then the evidence of
the accomplice can be considered to be that which the court can rely on.
S v Lawrence 1989 (1) ZLR 29 (S) – In this case, the appellants, a husband
and a wife were convicted of nine counts of bribery. The husband was a
business man and his wife was employed in the Ministry of Trade and
Commerce. It was alleged that he had bribed another officer in the Ministry
to issue customs clearance for goods which the husband imported for his
business. This enabled the husband to import the goods without following
the proper procedure for obtaining No Currency Involved Licences, which
involved obtaining authority of the RBZ. The goods were allegedly sent by
foreign ‗donors‘.
The inducement included gifts of a motor car and a TV set, together with
cash as well as a promise of the percentage of the value of the import
licences issued. The only witness against the accused was Marechera, the
person they had allegedly bribed. His evidence was shown to be full of
contradictions, inconsistencies and prevarications. He had also been
promised by the Attorney-General a two year remission of his sentence if he
gave truthful and satisfactory evidence consistent with an affidavit he had
made to the police.
The court held that the then s 254 of the CPEA allows for a conviction based
on the single evidence of an accomplice, provided that the offence has been
proved by evidence aliundeto have been committed. This requires a two
pronged test. The court must first satisfy itself that theoffence with which
the accused is charged has been committed. Secondly, it must look for
corroboration. If there is no evidence aliundeof the commission of the crime,
there can still be a conviction ifthere is corroboration in a material respect
which convinces the courtthat the accomplice can be relied on. In this case,
the documents produced, the motor vehicle, the TV set and the probabilities
left no room for false implication of the appellants. However, since the is
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great risk of a false conviction where the accomplice has been promised
pardon in exchange of testifying, the court always has to be told where the
state witness hasbeen induced by some benefit to testify against the
accused.
7.3. SEXUAL OFFENCES
It is very dangerous to rely on the uncorroborated evidence of the victim in

sexual cases. This cautionary rule evolved from practice. The rule itself has
nothing to do with the trauma of the complainant ... even if it is done away
with, the complainant will still be subjected to cross-examination by the
defence and it is this that makes her feel that her word is being doubted.
Corroboration for sexual victims has been criticised for the following
reasons:
 The rule discriminates against the victim;
 It gives the accused adequate protection;
 The rule does not apply to other violent crimes;
 A high degree of caution reduces the conviction rate;
 There is inadequate empirical data to support the view that a large

number of false complaints are laid in rape cases
However, the cautionary rule is not an inflexible rule of evidence but a

practice tested by time and experience that is aimed at avoiding a possible
injustice to the innocent. The trier of facts has to show awareness of the
special dangers of convicting the accused upon the evidence of the
complainant in a sexual case. The rule does not apply to sexual offences
against women alone but also applied to sexual offences committed against
men and young boys.
The reasons why caution is exercised in sexual cases are:
 The accused is the usually the only one who knows what happened and it
is their evidence against that of the accused.
 The victim may have a motive to falsely implicate the accused
 There is a difficulty in refuting a charge of sexual immorality;

60
 Financial considerations when the victim is pregnant;
 The wish to protect a friend or implicate someone who is richer than him;
 Hysteria which can cause a neurotic victim to imagine things which did
not happen;
 Wounded vanity and spite against a person who has rejected one‘s
advances;
 The ability of a person who knows the facts to tell the story convincingly
the only falsity being the exchange of the real culprit with the accused.
Corroboration, false statements by the accused or the refusal of theaccused

to testify may all be used to show that the victim‘s story is true.Where
corroboration is used, it should be evidence that tends towardsconfirming
the guilt of the accused.Evidence that a report was made immediately after
the sexual offence does not corroborate the truthfulness of the victim‘s story
as it amounts toself-corroboration.The rule should never be applied in a
formalistic manner as it can lead toinjustices.
R v W – In this case was held that it is permissible for a court to convict in

these sexual cases even where there is no corroboration of the complainant
and even where the accused has given evidence and has not been proved to
be a lying witness. But that is the position only where the court is
appreciative of the risks involved and where the merits of the complainant
and the demerits of the accused as witnesses are beyond question.
7.4. CHILDREN
Young children are competent witnesses if the judge considers that they are
old enough to know what it means to tell the truth, however, it has been
frequently emphasised that their evidence should be scrutinised with great
care. The danger is not only that children are highly imaginative but also
that their story may be the product of suggestion by others. The cautionary
rule when dealing with the evidence of children is similar to sexual cases and
accomplices. The danger inherent in such evidence must be borne in mind
by the trier of fact, it does not matter whether the evidence has been sworn
or not. However, where the child‘s evidence is unquestionably true, there is
no reason why the prosecution cannot secure a conviction based on the
evidence of a single child witness. There is no requirement in law that the
61
evidence of the child should be corroborated. The degree of danger with the
evidence of the child will depend on varying factors such as age. Thus
caution has to be had depending on the circumstances of each case.
S v Ponder 1989 (1) ZLR 235 (S) – The appellant was 18 years old. It was
alleged that he had briefly fondled the private parts of two young girls who
were aged seven and nine while playing with them in a swimming pool. He
denied the allegations, claiming that if he had touched them, it was
accidental while he was picking the children up and throwing them in the
water. However, both children who got out of the pool separately, reported
to their parents that the appellant had touched them as alleged. The
appellant was convicted of indecent assault and sentenced to eight months
imprisonment with labour. It was held that there is no requirement in our
law that a child‘s evidence must be corroborated: ―There is no rigid
requirement in ourlaw that a child’s evidence must be corroborated. Where
the courtbelieves the child and applies its mind to the dangers inherent
infinding a conviction upon the child’s uncorroborated evidence, thecourt
may nonetheless convict.‖
S v Sibanda1994 (1) ZLR 394 (S)– The accused had been convicted and
sentenced for raping an 11 year old girl. He was a school teacher and the
complainant was one of his pupils. This case dealt with corroboration of
sexual victims and that of children. It was held that the reason why there is
a cautionary rule in relation to the evidence of children is due to the fact
that:
 Children‘s memories are unreliable;
 Children are egocentric in that children are so concerned with themselves

that they are unable to be objective concerning the truth and are unlikely
to take a balanced view of what has happened;
 Children are highly suggestible;
 They have difficulty distinguishing fact from fantasy;
 They make false allegations, particularly of sexual assault; and
 Children do not understand the duty to tell the truth.
62
However, it is not a rule of our law to have the evidence of children

corroborated.
ACTIVITY 7.1
1. Define corroboration
2. Examine the types of evidence that require corroboration
REFERENCES
Statutes
Books



current edition)
63
UNIT 8
PRIVILEGES
8.0. INTRODUCTION
Privilege is a personal right of a witness to refuse to disclose admissible

evidence.A witness may refuse to answer questions on the privileged topic,
but thisright is personal to him; he cannot stop other witnesses from
givingevidence on the matter. This unit shall focus on the categories of
privileges and explain why they are recognized in courts.
OBJECTIVES
1. Define privileges
2. Explain the types of privileges
8.1. MATRIMONIAL
The privilege may be claimed only by the spouse to whom the

communication is made. If the spouse is a competent witness and is willing
to disclose the communication made by the spouse then there is nothing the
other spouse can do to stop the spouse from disclosing the communication.
However, a communication between spouses may be proved by awitness
who overheard or intercepted it.
In Rumping v DPP [1964] AC 814, the accused was a Dutch sailor charged
with the murder of a woman in an English port. The principal evidence
against him was a letter which he had written to his wife containing what
amounted to a confession. He had given the letter to a shipmate to post, but
the man had handed it over to the police instead. The House of Lords held
that there was no rule which prevented the letter from being received in
evidence.
Section 291(2) of the CPEA extends the privilege to cover situations where
the marriage has been dissolved judicially.
Sections 291 & 292 of the CPEA
291 Privilege arising out of marital state
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1. A husband shall not be compelled to disclose any communication made

to him by his wife during marriage, and a wife shall not be compelled
to disclose any communication made to her by her husband during the
marriage.
2. A person whose marriage has been dissolved or annulled by a

competent court shall not be compelled to give evidence as to any
matter or thing which occurred during the subsistence of the marriage
or supposed marriage, and as to which he or she could not have been
compelled to give evidence if the marriage still subsisted.
292 No witness compellable to answer question which witness’ husband or

wife might decline
No person shall be compelled to answer any question or to give any

evidence if the question or evidence is such that under the
circumstances the husband or wife of such person, if under
examination as a witness, might lawfully refuse and could not be
compelled to answer or give
There are two competing interests:-
1. Court must have information to rely on so as to come to a determination.
2. Certain classes of witness or categories of evidence ought to be no go

areas in order to protect some common good or certain values for
example spouses living together should not leave in fear for each other
(marital privilege).
Requirements of Marital Privilege
1. Parties must be married
2. Privilege survives even beyond divorce – an ex-spouse is not compellable

to testify about matters that happened during the subsistence of a
marriage.
R v John 1966 (2) SA 66 – Court recognized privilege to extend to an

unregistered customary law situation.
The privilege is only specific to the spouses in question.Rumping v DPP 1964

AC 144 (supra)
65
The idea behind marital privilege is to encourage spouses to be free with

each other and enjoy the marital situation.
8.2. LEGAL PROFESSION PRIVILEGE
Section 294 of the CPEA– No legal practitioner duly qualified to practise in

any court, whether within Zimbabwe or elsewhere, shall be competent to
give evidence against any person by whom he has been professionally
employed or consulted, without the consent of that person, as to any fact,
matter or thing as to which such legal practitioner, by reason of such
employment or consultation and without such consent, would not be
competent to give evidence in any similar proceedings depending in the
Supreme Court of Judicature in England:
Provided that no such legal practitioner shall in any proceedings, by reason

of any such employment or consultation, be incompetent or not legally
compellable to give evidence as to any fact, matter or thing relative to or
connected with the commission of any offence for which the person by whom
such legal practitioner has been so employed or consulted is in such
proceedings prosecuted, when such fact, matter or thing came to the
knowledge of such legal practitioner before he was professionally employed
for or consulted with reference to the defence of such person against such
prosecution.
 Lawyer can only help on the basis of full knowledge
 The communication must have been made to enable the lawyer to give
his client advice. Communications made for the furtherance of illegal
objectives are not subject to privilege.
R v Cox &Railton [1884] 14 QB 156 – the two accused were charged with
the offence of conspiracy to defraud. The prosecutor called a lawyer to give
evidence to the effect that the accused persons had communicated their
plans to him. It was held that the information was not privileged [once
communication/documents are privileged, they remain privileged]
8.3. SELF-INCRIMINATION
The privilege against self-incrimination prohibits a person from being

compelled to give evidence that incriminates him or herself. The rule is part
of our common law; it is also reflected in certain statutory provisions and
66
enjoys constitutional protection. The right to remain silent, which can be

described as the absence of a legal obligation to speak, is necessary to give
effect to the privilege against self-incrimination.
The privilege against self-incrimination and the right to remain silent area
natural consequence of the presumption of innocencewhich places theburden
on the prosecution to prove the accused‘s guilt beyond areasonable doubt.A
further justification of the privilege is that it is necessary to encouragepeople
to come forward and give evidence.As with all other privileges, the witness
may not refuse to be sworn at all.The privilege must be claimed in respect of
each question, and if it isclaimed the court must consider and give a ruling
upon it.
The choice is left to the witness– even if it is obvious from the nature of the
question that the answer might be incriminating, the judge cannot disallow
it. However, the practice is for the judge to warn the witness that heneed
not answer an incriminating question. Before allowing a claim of privilege on
the ground that the witness may be exposed to a criminal charge, the court
must be satisfied ―from the circumstances of the case, and the nature of the
evidence which the witness is called to give, that there is reasonable ground
to apprehenddanger to the witness from his being compelled to answer.‖ (R
v Boyes (1861) 1 B & S 311 at 330)
Section 297 of the CPEA –No witness in any criminal proceedings shall,
except as provided by thisAct or any other enactment, be compelled to
answer any question which,if he were under examination in any similar case
depending in theSupreme Court of Judicature in England, he would not be
compelled to answer by reason that his answer might have a tendency to
expose him to any pains, penalty, punishment or forfeiture or to a criminal
charge or to degrade his character:
Provided that, notwithstanding anything to the contrary in this section, an

accused person called as a witness on his own application in accordance with
section two hundred and forty-eight may be asked any question in cross-
examination, notwithstanding that it would tend to incriminate him as to the
offence charged against him.
8.4. STATE PRIVILEGE/SECURITY
This relates to the affairs of the state such as issues of cabinet and issues
relating to state security or defence. However, the intention of the
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legislature in stipulating this privilege was to ensure that state security is

protected and not the abuses that the right is sometimes susceptible to.
The privilege is protected in s 296 of the CPEA which states that

notwithstanding anything in any other law, no one shall be compellable or
permitted to give evidence or furnish any information in any criminal
proceedings as to any fact, matter or thing or as to any communication
made to or by such person where the communication has been certified by
the Minister that in his opinion its disclosure would prejudicially affect the
security of the state. This includes any books and documents as well.
296 Privilege arising out of State security
1. Notwithstanding this Act or any other law, no person shall be

compellable or permitted to give evidence or to furnish any
information in any criminal proceedings as to any fact, matter or
thing or as to any communication made to or by such person and
no book or document shall be produced in any such proceedings if
an affidavit, purporting to have been signed by the Minister
responsible in respect of such fact, matter, thing, communication,
book or document, is produced to the court or magistrate to the
effect that the Minister has personally considered the said fact,
matter, thing, communication, book or document and that, in his
opinion, it affects the security of the State and disclosure thereof
would, in his opinion, prejudicially affect the security of the State.
2. Nothing in subsection (1) shall derogate from any law relating to

the matters referred to therein and that such law.
8.5. WITHOUT PREJUDICE NEGOTIATIONS
Out of Court negotiations between parties to a civil dispute in which one or

both parties have made admissions or offers of concessions or compromise.
Such offers cannot be brought to the attention of the Court without the
consent of the other party. Idea is to encourage settlement. If the one
party wants to bring it to the attention of the Court, he must get permission
from the other party. There is no privilege that obtains between a doctor and
his/her patient; priest and penitent/parishioner.
68
ACTIVITY 8.1
1. Define privileges
2. Explain the types of privileges
REFERENCES
Statutes
Books



current edition)
69
UNIT 9
BURDEN OF PROOF
9.0. INTRODUCTION
This unit shall define burden of proof and distinguish between the criminal
and civil standards of burden of proof.
OBJECTIVES
1. Define burden of proof
2. Explain the degree of burden of proof in criminal and civil proceedings
9.1. DEFINITION
The burden or onus of proof is the duty which a party has of finallysatisfying
the court that he is entitled to succeed on his claim or defencewhichever it
may be.In Pillay v Krishna 1946 AD 946 at 952, Davis AJA said:
―In my opinion, the only correct use of the word ‗onus‘ is that which I believe
to be its true and original sense ... namely that duty which is cast upon the
particular litigant, in order to be successful, of finally satisfying the court
that he is entitled to succeed on his claim or defenceas the case may be ....‖
In other words, the incidence of the burden of proof decides which party will
fail on a given issue if, after hearing all the evidence, the court is left in
doubt. For this reason, it is appropriate for some writers such as Wigmore,
to refer to the burden as ‗the risk of non-persuasion‘.
9.2. DISTINGUISHING THE ONUS OF PROOF FROM THE EVIDENTIARY

BURDEN
The evidentiary burden has two aspects:
1. Aduty to adduce evidence to combat a prima facie case made by one‘s

opponent and
2. The duty cast upon a litigant, who has to begin, of adducing evidence in
order to escape certain procedural consequences.
70
The onus of proof is fixed at the commencement of the trial once the issues
have been determined and does not shift during the trial.In contrast, the
evidentiary burden comes into existence when the risk offailure is cast upon
a party:
1. Because the pleadings, while casting the onus on one party, evoke an
inference that, as regards the other party, creates such a risk; orbecause
the risk of failure is created by virtue of the fact that the evidence,
2. That has been led, constitutes, by means of direct evidence, a prima facie
case, or has evoked an inference that has that effect.
The evidentiary burden may therefore shift in the course of the trial.
9.3. THE INCIDENCE OF THE BURDEN OF PROOF
The incidence of the burden of proof is a matter of substantive law. It

usually depends upon an examination of judicial precedent or other
authorities, or upon questions of statutory interpretation. It is a fundamental
principle of our law that in a criminal trial the burden of proof rests on the
prosecution to prove the accused‘s guilt beyond a reasonable doubt. This
burden will rest on the prosecution throughout the trial. At the outset of the
trial, in tandem with the burden of proof, the state must also discharge an
evidentiary burden.
It will do this by establishing a prima facie case against the accused. Once a
prima facie case is established the evidentiary burden will shift to the
accused to adduce evidence in order to escape conviction. However, the
burden of proof will remain with the prosecution. It is possible that even if
the accused does not adduce evidence, he will not be convicted if the court
is satisfied that the prosecution has not proved guilt beyond a reasonable
doubt.
Musanhi v Mount Darwin Rushinga Co-Operative Union 1997 (1) 120 (S) – A
co-operative organisation bought its fertilizer from a fertilizer company. It
entered into a contract with a transport company, in terms of which the
transport company would accept, on behalf of the co-operative, delivery of
fertilizer bought from the fertilizer company by the cooperative and would
then deliver that fertilizer to the co-operative. Acting under this contract, the
transport company collected 3700 bags of fertilizer from the depot of the
fertilizer company. The co-operative denied that it had received this delivery
71
and claimed either delivery or the value of the fertilizer. The transport
company argued that the cooperativehad failed to discharge the onus of
proving non-delivery toit. Held: that where the onus of proof lies is
essentially a matter of policyand fairness based on experience of different
situations. Where theincidence of the onus is uncertain, the court can have
regard, interalia, to matters of practical convenience and fairness such as
thesources of knowledge available to the respective parties.
9.4. DEGREE
The rules of the quantum of proof deal with the degree of conviction which
the court must feel before it can make a finding for the party who bears the
onus.
The law employs two different standards of proof:
1. the criminal standard which applies to all issues in a criminal trial upon
which the burden lies on the prosecution and
2. thecivil standard which applies to all issues in a civil trial and in criminal
trials in relation to those issues upon which the burden rests on the
defence.
9.5. THE CRIMINAL STANDARD
The criminal standard requires proof beyond reasonable doubt. Section 18 of

the Criminal Law Codification and Reform Act states:
18 of CPEA -Degree and burden of proof in criminal cases
(1) Subject to subsection (2), no person shall be held to be guilty of a crime

in terms of this Code or any other enactment unless each essential element
of the crime is proved beyond a reasonable doubt.Reasonable doubt cannot
be precisely defined.It can well be said that it is doubt which exists because
of probabilities or possibilities which can be regarded as reasonable on the
ground ofgenerally accepted human knowledge and experience.
The court does not have to believe the innocent account of the accused: it is
sufficient that it may be substantially true. However, fanciful possibilities
should not be allowed to deflect thecourse of justice.
72
S v Isolano1985 (1) 62 (S) – In my view the degree of proof required in a

criminal case [is] as follows: … and for that purpose the evidence must reach
the same degree of cogency as is required in a criminal case before an
accused person is found guilty. That degree is well settled. It need not reach
certainty, butit must carry a high degree of probability. Proof beyond
reasonabledoubt does not mean proof beyond the shadow of a doubt. The
law would fail to protect the community if it admitted fanciful possibilities to
deflect course of justice. If the evidence is so strong against a man as to
leave only a remote possibility in his favour which can be dismissed with the
sentence ‗of course it is possible, but not in the least probable‘, the case is
proved beyond reasonable doubt, but nothing short of that will suffice.
S v TsvangiraiHH-169-04 – Putting aside the above problems for a moment

the totality of the evidence in this case is such that one cannot say with
certainty that the overt act charged in respect of the first and second
meetings that is incitement has been proved beyond a reasonable doubt or
that it has been proved beyond a reasonable doubt that the discussion at the
third meeting was in furtherance of a previous plot. The law is settled that
where such doubt exists it must be resolved in favour of the accused. No
onus rests on an accused person to convince the court of any explanation he
gives. It is sufficient if a court thinks there is a reasonable possibility that it
may be true. Even if the explanation given is improbable the court must
acquit unless proof beyond a reasonable doubt is adduced.
9.6. VERDICT OF NOT GUILTY
In our system the State has to prove the guilt of X beyond reasonable
doubt.Proof beyond reasonable doubt cannot be subject to exact
measurement.For judges and magistrates it becomes a matter of experience
and intuition rather than analysis.It is a matter of degree.
Proof beyond reasonable doubt does not mean proof to an absolute degree
of certainty. It means than there should be such proof as leaves no
reasonable doubt in the mind of an ordinary man capable of sound judgment
and of appreciating human motivations.It means a high degree of
probability, not proof beyond a shadow of adoubt.
The State does not have to close every avenue of escape and fanciful or
remote possibilities can be discounted.To be a reasonable doubt the doubt
must not be based on pure speculation but must be based upon a
73
reasonable and solid foundation created either from the positive evidence or
gathered fromreasonable inferences not in conflict with or outweighed by the
provedfacts.
If X gives some explanation, he must be acquitted even if the court is not

satisfied that his explanation is true if, nonetheless, the explanation might
reasonably be true.
 The onus is not on X to prove that his story is true.
 Even if he gives an explanation that is improbable, X cannot be convicted

unless the court is satisfied beyond reasonable doubt that it is false.
 Again X must be acquitted even if his story is not believed in all of its
details, X must be acquitted if there is a reasonable possibility that his
story is substantially true.
9.7. THE CIVIL STANDARD
In civil cases, we must prove our case on a balance of Probabilities. In civil

cases the area of substantive law within which we are litigating usually
determines the incidence of the onus. For example, in a delictcase, the laws
of delict – as interpreted by case law and established in the body of
precedent – determine who bears the onus of proving the essential elements
of negligence, causation, wrongfulness and so on. If, however, this is not the
case, then we apply the general, fundamental principle that ‗he who asserts,
must prove‘. In other words, ‗the onus is on the person who alleges
something‘.
Thus, in any particular civil matter where either side makes several
allegations with regard to an element or elements, it may well occur that the
onus of proof in respect of each item falls on a different party. For example,
the plaintiff will bear the onus in respect of the issues or elements alleged in
the pleadings, but the defendantmay bear the onus in respect of a special
defence that he or she has raised.
ACTIVITY 9.1
1. Define burden of proof

2. Explain the degree of burden of proof in criminal and civil proceedings
74
REFERENCES
Statutes
Books



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DIPLOMA IN POLICE STUDIES

This course explores the rules governing the admissibility of evidence as it

MODULE OVERVIEW ............................................................................................. i

UNIT 1: INTRODUCTION TO THE LAW OF EVIDENCE ......................................... 1

UNIT 2: EVIDENCE ........................................................................................... 4

UNIT 3: RELEVANCE AND ADMISSIBILITY OF EVIDENCE ................................... 6

UNIT 4: COMPETENCE AND COMPELLABILITY OF WITNESSES ......................... 39

UNIT 6: PREVIOUS CONSISTENT STATEMENTS ............................................... 50

6.0. Introduction ........................................................................................ 50

UNIT 7: CORROBORATION OF EVIDENCE ........................................................ 57

7.0. Introduction ........................................................................................ 57

UNIT 8: PRIVILEGES ...................................................................................... 64

UNIT 9: BURDEN OF PROOF............................................................................ 70

INTRODUCTION TO THE LAW OF EVIDENCE

1.1. WHAT IS LAW OF EVIDENCE?

Evidence is however not confined to courts of law as it is also used in all

Procedure is the part that deals with initiation of proceedings in an

The law of evidence entails the following in summation:-

1. Evidence can only be admissible if it deals with the problem in question

3. Evidence concerning a prior statement by a witness which tends to

7. That a witness must not give commentary and conclusive evidence

8. That people who incriminate themselves [through admissions and

Constitution of Zimbabwe, 2013

Criminal Procedure and Evidence Act (Chapter 9:23)

Civil Evidence Act [Chapter 8:01]

The Criminal Law [Codification and Reform] Act (Chapter: 23)

Magistrates‘ court [[Civil] Rules & Regulations

The High Court [Civil] Rules and Regulations

The High Court Act & Regulations

Magistrates‘ Court Act & Regulations

Adrian Bellengere, Robin Palmer, Constantine Theophilopoulos, Benita

Cross and C. Tapper, (1999), Cross and Tapper on Evidence, 9thed,

David T. Zeffertt, A. Paizes, Andrew St. Q. Skeen, Léonard Hubert Hoffmann,

2.1. DEFINITION OF EVIDENCE

Evidence is whatever is needed to prove a fact in issue or a fact relevant to

2.2. TYPES OF EVIDENCE

2.2.1. Direct evidence

Direct evidence of a fact is the assertion of a person who claims to have

2.2.2. Indirect evidence

Circumstantial or indirect evidence but it must only lead to one escapable

In other words, circumstantial evidence is a fact from which a fact in dispute

The facts upon which indirect evidence is derived must in themselves be

2.2.3. Real evidence

Real Evidence – an exhibit for example, a knife or assegai used in a murder

Cross and C. Tapper, (1999), Cross and Tapper on Evidence, 9thed,

David T. Zeffertt, A. Paizes, Andrew St. Q. Skeen, Léonard Hubert Hoffmann,

RELEVANCE AND ADMISSIBILITY OF EVIDENCE

This unit is going to examine the aspects of relevance and admissibility of

1. Distinguish between relevance and admissibility

3.1. RELEVANCE OF EVIDENCE

Relevance is the quality of evidence which must be possessed as a matter of

Relevant evidence is therefore evidence which makes the matter more or

All relevant evidence is admissible unless there is another law or principle

The criterion of relevancy is applied to evidence in both a positive and

In R v Trupedo– Accused was charged with entering a dwelling house at

Facts in Issue and facts relevant to the issue

If a particular item of evidence can properly be brought before the court, it

The case of R v Trupedo 1920 AD 58 is a striking illustration of the latter

The criterion of relevance is applied to evidence in both a positive and

In contrast, s 252 of the CPEA and s 26 CEA embody an exclusionary rule.

3.2. ADMISSIBILITY OF EVIDENCE

Admissibility relates to whether the evidence that is intended to be used was

Admissibility is a question of law whereas weight is a question of fact but it