1.

The Demeanour of a Witness

a. Definition
i. Black's Law Dictionary 9th Edition at Page 496
Outward appearance or behavior, such as facial expression, tone
of voice, gestures, and the hesitation or readiness to answer
questions. In evaluating credibility, the jury may consider the
witness's demeanor;
ii. Black's Law Dictionary 9th Edition at Page 636
The evidence and appearance of a witness on the witness on the
witness stand, to be considered by the fact-finder on the issue of
credibility.1
b. The Law
Valuable inferences are often obtained from the demeanor of a witness
when giving evidence. From the way in which a witness gives his
evidence in chief and the way he stands up under cross-examination, a
court can infer whether he is a truthful witness or not. The Criminal
Procedure code provides specifically for the recording of remarks by the
magistrate respecting the demeanor of a witness.
Section 196 of the Criminal Procedure Code Act, Chapter 88 of the
Laws of Zambia• Remarks respecting demeanour of witness
L A magistrate shall record the sex and approximate age of each
witness, and may also record such remarks (if any) as he thinks
material respecting the demeanour of any witness whilst under
examination.
i. Kampafwile v The People (1972) 2.R. 242 (H.C.)
The learned Mr Justice Baron Judge President of the Court of
Appeal for Zambia, has this to say on the desirability of recording
observations which have a bearing on a witnesses credit
worthiness, 'Speaking of the appellant, the learned trial judge
said, "He did not impress me at all." This would appear to be a

1
Credible Evidence is that is worthy of belief; trustworthy evidence. BLD 9th page 636
 comment on the demeanour of the appellant. Demeanour is one
of the factors which should be taken into account when
deciding whether a witness is worthy of credit (others being
discrepancies in the witness's evidence, a previous
inconsistent statement, bad character, etc.) and an adverse
finding as to credit is in turn one of the consideration in the
decision whether to reject the evidence of the witness. But
demeanour is as much an item of evidence as anything else
observed by the court from which inferences or conclusions
are drawn. The learned author of Cross on Evidence 3rd
Edition, says this at page 8, "Professor Nokes includes the
demeanour of witnesses among the items of real evidence.
If a witness gives his evidence in a forthright way,
unperturbed by cross..examination, the court will no doubt
be more disposed to believe him than would be the case with
a halting and prevaricating witness. So far as its bearing on
the facts in issue is concerned this type of demeanour is
analogous to the answers given by a witness who is being
cross-examined as to credit, and may rightly be regarded as
evidence in the case." All evidence, whether heard or seen,
must appear either in the body of the record or at least in the
judgment. Thus, if the height or weight of a witness might be
material the court will record the relevant particulars; f the court
makes observations at an inspection of the locus an to it will
record the matters observed. Equally, if the court observes a
witness to be hesitant or uncomfortable when asked certain
questions, or unwilling to look the court or counsel in the eye,
these are items of evidence which must be recorded if
conclusions are to be drawn from them. On the face of the record
before us the adverse finding on demeanour has no evidence to
support it.'(See Make Machobani v The People, Judgment No.1
of 1972 CAZ). For the foregoing reasons the conviction of the appellant in the present case
cannot be sustained. I accordingly allow the appeal and set the sentence aside.

ii. Samson Mbavu And Others V. The People. {1963-1964\ Z.

And N.R.L.R. 164 (C.A.)
It is often very difficult to estimate correctly the relative
credibility of witnesses from written depositions; and when
the question arises which witness is to be believed rather
than another, and that question turns on manner and
demeanour, the court of appeal always is, and must be,
guided by the impression made on the judge who saw the
witnesses. But there may obviously be other circumstances,
quite apart from manner and demeanour, which may show
whether a statement is credible or not; and these
circumstances may warrant the court in differing from the
judge, even on a question of fact turning on the credibility of
witnessed whom the court has not seen.'"
iii. Yuill v. Yuill [1945]
We were reminded of certain well known observations in the
House of Lords dealing with the position of an appellate court
when the judgment of the trial judge has been based in whole or
in part on his opinion of the demeanour of witnesses. It can, of
course, only be on the rarest occasions, and in circumstances
where the appellate court is convinced by the plainest
considerations, that it would be justified in finding that the trial
judge had formed a wrong opinion. But when the court is so
convinced it is, in my opinion, entitled and indeed bound to give
effect to its conviction. It has never been laid down by the House
of Lords that an appellate court has no power to take this course.
 Puisne judges would be the last persons to lay claim to infallibility,
even in assessing the demeanour of a witness. The most
experienced judge may, albeit rarely, be deceived by a clever liar, or
led to form an unfavourable opinion of an honest witness, and may
express his view that his demeanour was excellent or bad as
the case may be. Most experienced counsel can, I have no
doubt, recall at least one case where this has happened to their
knowledge. I may further point out that an impression as to the
demeanour of a witness ought not to be adopted by a trial
judge without testing it against the whole of the evidence of
the witness in question. If it can be demonstrated to
conviction that a witness whose demeanour has been praised
by the trial judge has on some collateral matter deliberately
given an untrue answer, the
favourable view fonned by the judge as to his demeanour
must necessarily lose its value."

V, Machobane V The People (1972) Z.R.101 (C.A.)

Demeanour of a witness is an item of evidence which must
be included in the record or at least the judgment of the trial
court and the absence of any evidence to support an adverse
finding on demeanour in the record or judgment is a serious
irregularity.

iii. Stockdale V The Woodpecker Inn Limited And Spooner

(1967) Z.R. 128 (H.C.)
The second defendant gave evidence in a straightforward
and perfectly frank manner. I observed his demeanour with
the same care which I devoted to that of the plaintiff and
came to the definite conclusion that Mr Spooner was doing
his best to be quite fair to the plaintiff. He made several
 admissions which were contrary to his interests, and I have
no133 hesitation in accepting him as a substantial witness
of truth. The other defence witnesses were members of the
staff of first defendants and I saw nothing in their demeanour
while giving evidence which would justify me in coming to
the conclusion that they were all liars determined to conspire
together to concoct a series of false allegations against the
plaintiff.

iv. Nkhata and Others v Attorney General

In so far as the judge has relied on manner, and demeanour,
there are other circumstances which indicate that the evidence of
the witnesses which he accepted it is not credible, as for instance,
where those witnesses have on some collateral matter
deliberately given an untrue answer.

v. Nkongolo Farms Limited V Zambia National Commercial Bank

Limited Kent'Choice Limited {In Receivership) Charles
Huruperi (2007) SCZ 19 2007
The learned trial judge in this case made general statement
indicating that he did not accept that evidence without stating
reasons why. Even though we accept that he was in the best
position to assess the demeanour of the witness, nevertheless,
in our view the fact that there was acceptance by the 1st
respondent that there was such a deception, his dismissal of the
application of the doctrine non est factum was therefore not
supported by evidence. Using the case of Nkhata and Others v
The Attorney General (1), his court must interfere with these
findings.
vi. SHAMWANA AND 7 OTHERS V THE PEOPLE (1985) Z.R.
41(5.C.)
"This witness (PW6) is an accomplice witness and he was
indemnified by the State against prosecution for his complicity in
the alleged coup plot. In my ruling I did find Gen. Kabwe as an
honest witness having observed his demeanour and I have not
found anything in the evidence that can make me doubt his
honesty or credence. I do not think that he coloured his story in any
await because he agreed to turn State wiliness. In my ruling on no
case to answer I did say that I did not believe his reasons for not
reporting the plan to the authorities, I concluded that he did not
report because he was in it; and I still hold that view. In my view,
the reasons advanced are an afterthought after the plan was foiled
but I will not contradict myself to say that I do not believe his
reasons but at the same time say that I find him an honest witness.
The point where l have found him lying is not a material point."

We are of the view that the trial judge's basis for assessing the
evidence of PW6, to wit, that his lie as to the non-reporting of the
coup plot did not go to his credibility, was a misdirection. We are,
therefore at large to reassess PWS's credibility on the evidence
as a whole. ln so doing, we shall bear in mind what we said in
Tembo v The People (82) at page 226 lines 39 to:

"When considering the evidence of a witness, and particularly an

accused person, who is proved to have lied in material respects
it is essential to bear in mind that, unless the untruthful portions
of the evidence go to the root of the whole story to such an extent
that the remainder cannot stand alone, such remainder is entitled
to due consideration. The weight of the remainder is of course
 affected by the fact that the witness has been shown to be
capable of untruthfulness, but the remainder must still be
considered to see whether it might reasonably be true, it cannot
be rejected out of hand."

2. View
a. Definition
1. Black's Law Dictionary 9th Edition at Page 1704
A jury's trip to inspect a place or thing relevant to the case it is
considering; the act or proceeding by which a tribunal goes to
observe an object that cannot be produced in court because it is
immovable or inconvenient to remove.

2. Magistrate Hand Book at Page 540

The term view is used to descried the situation when an item of real
evidence cannot be brought into the court itself and the court is asked
to leave the courtroom and view the evidence either outside the
courtroom or at some other place.
The real evidence of view is like testimony of a witness.

b. Principles applicable to a View

i. Whenever a view out of court takes place, all parties should be
present. A view at which witnesses give demonstrations or
answer questions is part of the trial and of the evidence in the
case and must be recorded as such.
ii. Where witnesses at a view are asked to assis the court by
showing the positions in which they themselves or other persons
or things had been at the material times, such witnesses must be
recalled for cross-examination, if so required.
iii. At a criminal trial the absence of the accused at a view
(unless of his own choice or on the direction of the court
for good cause) is an irregularity which may, but does
not necessarily, vitiate the
trial.
a. KARAMAT V R {1956) 1 ALL ER 415
A view held on the course of a criminal trial is part of
the evidence. It is not a ground of objection to the trial
that a witness who has given evidence at the trial has
attended the view and taken part at it by indicating
places and positions, but the witness should make no
communication to the jury apart from demonstrating,
and should be allowed to be recalled to be cross-
examined, if that is desired.
lf an accused decline to attend a view which the court
thinks it desirable to hold in the interests of justice, he
cannot afterwards maintain that his absence rendered
the view illegal. It is desirable, particularly where an
accused declines to attend a view and the trial and
view takes place in a country where witness may be
illiterate, that the judge should be present at and
should take control of the view.
Christma Hotel v. Cavmont Insurance Corporation
Ltd 2006/HPC/0039
This case merely illustrates an instance where the
Zambian Court was invited for a view in order to help
arrive at the correct position. The main issue of
determination here was with respect to the person who
was driving the bus at the time when the accident
happened. The court concluded that according to its
observation the allegation that the driver survived the
accident was a mere sophistry because the nature of the
accident was such that a driver could not survive. In any
case how possible was it that the drive survived when a
person who sat right behind him died or when the engine
of the bus was pushed so much to the driver‟s seat.