QUESTION 1

Part (1)

(A)

Evidence is generally defined to include all the facts, documents, materials, objects, statements
and any other legal means that may be used to establish a matter in issue. In other words,
evidence broadly means all things that tend to prove or disprove a fact in issue or evidence is
information that’s provides grounds for belief that a particular fact or set of facts is true.

The first rule of evidence is called the relevance rule. This rule states that only matters that are
relevant to the case may be proved by evidence. In this connection, the first practical step in any
attempt to present evidence before a court is for counsel to determine the exact parameters of the
case and the issues that it raises. The facts in issue are always relevant. Facts that are regarded as
relevant to the facts in issue, i.e. facts that are collateral to the facts in issue can be relevant and
may be proved by evidence in appropriate cases. Generally, facts that an ordinary person may
consider relevant are often not legally admissible in evidence as they are regarded as being
unduly prejudicial to the accused in criminal cases or they unnecessarily widen the scope of the
case in civil actions. Collateral facts are actions, omissions, statements or declarations that
accompany the facts in issue to explain them. These collateral facts are admissible in evidence as
forming part of the events (res gestae). It does not matter if these collateral facts, statements or
declarations were authored by the witnesses themselves or by other persons. One test to be
applied (others are that the evidence must be logically and legally relevant) to such collateral
evidence is that such actions, omissions, statements or declarations must be substantially current
with the facts in issue so that there is no time to allow fabrication of evidence to occur i.e. the
issue of contemporaneity and spontaneity.

A typical example is a dying declaration made when the person is laboring under the compelling
pressure of fatal injury or a hopeless expectation of death. This type of hearsay evidence is
admissible as an exception against the hearsay rule, the common law principle being that dying
people never cheat or lie.
Admissibility

Admissibility has nothing to do with the probative or logical relationship between the evidence
tendered and the fact to be proved. Admissibility involves exclusively a determination of
whether the law of evidence permits relevant evidence of a particular kind to be received by the
court. Hearsay evidence or evidence of previous bad character (considerations of unfairness to
the accused and the danger of prejudice flowing from the court becoming aware of his record)
even though relevant is excluded.

Inadmissible evidence cannot be received by the court, whatever its relevance, and indeed
however cogent it might have been.

A question of admissibility is a matter of law in that evidence is admissible if it may be lawfully

Relevant evidence

This is evidence which makes the matter which requires proof more or less probable. Not all
relevant evidence is admissible and not all admissible evidence is relevant.

In the common law of evidence is the tendency of a given item of evidence to prove or disprove
one of the legal elements of the case or to have probative value to make one of the elements of
the case likelier or not. Evidence that is irrelevant has no bearing on any of the issues, and the
rules of evidence exclude it. Relevant evidence is that which has probative value in assisting the
court to determine the facts in issue- it is not directly in issue. Relevant evidence that should be
excluded relates to hearsay, opinion by witnesses (those that are not experts), character, and
conduct on other occasions. Irrelevant may be prejudicial against the party affected by it.
Weight of evidence

This is a question of fact. It is the degree of probability which is attached to the evidence by the
court of fact once it is established to be relevant and admissible in law.

Facts forming part of res gestae

These are facts surrounding an event. Other facts or circumstances may be so closely connected
with the fact in issue as to be, in reality, part and parcel of the same transaction.

The rule is not confined by any strict limits of time or place.

In criminal cases, it allows admitting evidence as an exception to the rule of hearsay and it
consists of statements made by those involved in or witnessing a fact or event, which are
tendered with a view to showing that the facts stated in them are true.

Opinion Evidence

Strictly speaking, opinion falls under the category of hearsay evidence and in some cases
circumstantial evidence for the simple reason that the opinion makers conceive them after the
event has been perceived by bothers with their own senses. E.g. evidence of an investigating
officer who tells the court after examining the evidence of others. Whatever an investigating
office does is “post facto”. When cross-examining such an officer, a skilled advocate will test his
opinion i.e. test the grounds upon which the officer formed the opinion to bring the charge. Other
opinion evidence and conclusions drawn by other witnesses are on their own inadmissible and
will fail as evidence and the case will flop if such evidence is not supported by some other
category of evidence.

Generally, the common law has doubts about the trustworthiness of opinions. There are historical
reasons for this position. For these reasons the common law prefers that witnesses restrict their
testimony to observed facts or date perceived by one or more of the witness’s 5 senses. The
courts will then draw inferences or conclusions from the given facts or data. These inferences
drawn by the court may agree or disagree with the witness’s opinion. The prohibition against the
admissible of opinion evidence is, like that of hearsay evidence, a general not an absolute rule.
There are a number of situations where the law permits various types of opinions as evidence.
For instances, a lay witness as opposed to an expert witness, may express an opinion on a subject
if that witness is not able to verbalize all the perceived data and communicate it to the court. i.e.
he sees or hears something but cannot fully explain what he saw or heard, he may be allowed to
express an opinion (e.g. he may not be able to say that the car/was travelling at a precise speed
but can express the opinion that it was too fast). Indeed, it is usual for an ordinary witness to fail
to articulate all the perceptions that led him to make a conclusion and it is in such situations that
the common law allows. Opinion Evidence can conflict e.g. two doctors may conclude that death
was by different causes.

The trial court itself often lacks the knowledge or skill to draw the proper inference from the
information or data given in evidence if the subject matter is technical or scientific. In such
situations the law allows the admission of the opinion of experts in the technical/scientific field
in issue. This is expert opinion evidence. Where there are two or more conflicting expert
opinions, the court is not bound by either of them and there are a number of options available.
The court may:

(a) Choose one opinion and reject the other

(b) Call for additional expert opinion evidence

(c) © Reject both conflicting opinions and arrive at its own opinion and decide the matter in
issue as a question of fact.

Formal Opinion Evidence

This type of evidence occurs in instances were by for example, police officers make conclusions
arising out of their investigations/interviews. These are opinions. In such criminal cases, such
opinions while admitted as evidence must be tested as the police can and do very easily
manufacture evidence and the freedom of the individual is at stake and the standard of proof is
higher. Cross examination of such formal opinion evidence is very important. Note: Whatever
should have been done but has not been done by the investigating officers (e.g. visiting the crime
scene, taking fingerprints etc.), will be interpreted by the court in favor of the accused. There is a
lot of advocacy work required when dealing with opinion evidence

The general rule on admissibility of evidence is that all evidence which is sufficiently relevant to
an issue before the court is admissible and all that is irrelevant, or insufficiently relevant, should
be excluded.

(B)

Confessions generally are not allowed because they are often not reliable. It is naturally desirable

that the state seeking to punish an individual produce evidence against the accused its own

scientifically obtained evidence through the state’s own labors, rather than from accused own

mouth. In the case of R.V. KAHYATA [1964] N.R.H.C there were three adduced evidence of

incriminating statements made by the accused which as a result of trial within a trial as a result of

inquiry on void dire, the said three statements were rejected by the court because they were

written statements made by the accused to a Police Officer after arrest and charge and caution.

The statements were taken after three days when the prisoner was taken to his village and a

statement was written by the Police Officer a week later. The court discovered that the accused

person was not given the necessary caution so that it would be his duty or would be of temporal

advantage for him to do so, or it would be of temporal disadvantage for him not to do so, or that

such words or acts proceed the incriminating statement, they did not induce the accused to make
it. In the Zambian case of ZONDO V. R. [1964] L.A.Z. the appellants were sentenced to death
by the High Court. The main ground of Appeal was that there had been a breach of the Judges
Rules (of 1912 of the M.O.N by the H M Judges of the King’s Bench Division) in obtaining of

statements from them and accordingly the statements were admitted as having been made freely

and voluntarily by the accused. The confessions were of a fact. The police acted fairly.

However, in the case of Muwowo V. The people [1965] C.A.Z that as the burden is to prove

negative and a negative of wide scope, the burden is initially discharged by adducing evidence

sufficient to show prima facie the statement was made voluntarily, such as it was made after a

caution. The police only and merely depose to an opinion on the question which the court has to

determine. The manner the police took two statements from the accused created a lot of

inconsistencies and the court gave a benefit of doubt to the accused, and especially that trial

within trial revealed that the police used excessive force and overstepped the Judges rules.

FORMAL OR JUDICIAL CONFESSIONS

Confessions may be formal or Judicial when made in court. Informal confessions may be

implied. Express confessions are given out of court, but induced by or made to person in

authority. In the case of CHINYAMA & OTHERS V. THE PEOPLE [1977] S.C.Z, the

appellants were convicted of murder. It was argued that, in spite of a finding that confessions

made by the appellants were free and voluntary, the trial judge should have exercised his

judicial discretion in favor of the appellants and excluded the statements, if the strict rules of

admissibility would operate unfairly against an accused.

INVOLUNTARY CONFESSIONS

The court will never, generally, admit involuntary confession. A confession is not to be regarded
as having evidential value when it is made involuntarily and such confession is not admissible. In
the case of JUSTIN CHIMBA V. Attorney General [1972]- the plaintiffs were subjected to the
most horrible inhuman degradation of removing clothing and taken to pictures of their naked
bodies, starvation, no water to drink and none to wash or bath their bodies. CHIMBA was one of
the first Cabinet Ministers, but made to suffer at the hands of the police when he formed a
Political Party U.P.P with the late Simon Mwansa Kapwepwe. The police brutality was designed
to principally to ascertain the source of the new party’s funds. Use of confessions necessarily
implies that evidence ‘equal or better is not available and that confessions are reliable. The police
are normally dangerously overzealous with burning desire to show the Public that they are being
effective. The police use deceptive strategies, sometimes, such as fake or false legal advice or
tricks or simply co join the accused out of exercising his Constitutional Rights.

CONFESSION BY INDUCEMENT

A confession is usually excluded if it was caused by any inducement of a secular or

religious nature, relating to the accusation and held out by a person in Authority. The most

common conventional reason for exclusion is that a confession so induced is unlikely to be true

or genuine, and the other equally important reason is one being the policy of preventing the

abuse of power by the Police. In the case Chigowe V. The People S.C.Z[1977] it was

stated that in effect the questioning for a considerable time must be such as to mount to an

inducement. And further illustrated in a case of Zondo and Others V.R. L.A.Z [1964] that

once the full scope of the word inducement is recognized, that prolonged police questioning may

amount to an inducement since it may excite the hope in the victim that it will be discontinued if

he makes a statement and the fear in him that it will continue if he does not make a statement.

The inducement must be the cause of the confession, so far as can be ascertained by the judicial

investigation. An obvious case of apparent cause and effect is the offer of a pardon followed by a

confession made in consequence of such an offer is inadmissible. The inducement must be

R.V. Thompson, when the accused was suspected of embezzlement, the chairman of the
company employing him told the brother of the accused that it would be the right thing for the
accused to make a clean breast of it. There was no evidence that the remark was communicated
to the accused but later he confessed and paid back part of the money with his brother’s help.
The court above held that the confession was induced by a promise of favorable treatment known
to the accused. Therefore, in the case of The People V. Hamaindi [1972] H.C.Z. the accused was
charged with Stock Theft. The evidence against him consisted mainly of a confession alleged by
the prosecution, to have been made by him. It was held that extra-Judicial confessions
uncorroborated by any other proof of the Corpus delicate which are of themselves sufficient to
justify conviction of the prisoner has been gravely doubted by the Courts.

CONSEQUENTIAL DISCOVERIES OF A CONFESSION STATEMENT

The rule of evidence states that an inadmissible confession may lead to the discovery of some
fact, such as the hiding place of stolen goods. Evidence of the facts discovered maybe given, and
whereas it shows that the discovery was made in consequence of information given by the
accused. There is authority in the case of R.V Gould, were the accused was charged with
burglary. The accused made a confession statement which included a statement of having thrown
a lantern in a particular pond. The empirical or physical evidence was admitted which was a part
of a confession, as well as the factual finding of the lantern in the pond. The rationale behind the
reception of the part of the statement is that the discovery in confirmation no part of an
involuntary confession would be admissible.

However, it can be said that, the court has legal discretion to admit or not to accept confessions.
That generally confessions are always excluded because they are strongly suspected to have been
taken under inducement.

That confessions can lead to consequential discoveries of legally acceptable physical evidence.

That voluntarily given confessions may be admitted in court but the court must warn itself.

Confessions made to persons in authority are admissible.

In law, the general rule is that evidence against an accused person does not need to be
corroborated and the court may act upon the uncorroborated evidence of a single witness
provided that the magistrate or judge is satisfied beyond all reasonable doubt of the accused
guilty. This simply means that the evidence of a single witness is sufficient to prove any issue
and the court may convict if such witness is competent

Corroboration is a common law requirement in all convictions where evidence of a fact

is not conclusive or self-confirmatory. In the case of Shamwana V. The People [1985] SCZ it

was held that evidence in corroboration must be independent testimony which affects the

accused by connecting or tending to connect him with crime. It may be evidence which

implicates him that is, which conforms in some material particular not only, evidence that the

crime has been committed, but also that the prisoner committed it. This requirement of

independent evidence to support is a requirement which guard against the danger of deliberate

false implication by simply or jointly fabricating a story against accused as it so happened in

SHAMWANA V. The People [1985] Z.R (SCZ).

IMPLIED CORROBORATION AND STATUTORY REQUIREMENT

With regard to informal admissions of prisoners, it has been shown that various admissions have

been implied from conduct, including silence in the face of an accusation and have been regarded

as corroborating other proof, though failure to give evidence does not have this effect. However,

failure to supply a specimen of blood, breath or urine may support the case for the prosecution in

some traffic offences Chapter 484-Roads and Road Traffic Act, Laws of Zambia uncorroborated

evidence either of a single witness or object will be treated as unreliable e.g. in estimating the

speed of a motor vehicle or level of drunkenness of a driver.

IN PERJURY
Corroboration in all cases of perjury is necessary. In line with Zambian Penal Code CAP 87 of

the laws of Zambia, a person cannot be convicted of committing perjury or of subordination of

perjury solely upon the evidence of one witness as to the falsity of any statement alleged to be

false.

PROCURATION CHAPTER 87 OF THE LAWS OF ZAMBIA

It is strongly stated that for the purposes of procuring girls or women for prostitution, it is a

requirement that no person shall be convicted of any offence upon the evidence of one witness

only, unless such witness be corroborated in some material particular by evidence implicating the

accused.

CHILDREN (JUVENILES ACT CHAPTER 217 OF THE LAWS OF ZAMBIA

Section 122 (1) stipulates that where in any proceedings against any person for any offence or in

any civil proceedings, any child of tender years called as a witness does not in the opinion of the

court, understand the nature of the oath, his evidence may be received though not on Oath, if in

the opinion of the court he is in possession of sufficient intelligence to justify the reception of his

evidence and understands the duty of speaking the truth, and his evidence though not given on

oath but otherwise taken and reduced into writing so as to comply with the requirements of any

law in force for the time being shall be deemed to be a disposition within the meaning of any

law so in force. In the case of MWELWA V. THE PEOPLE [1978] Z.R 277, it was held that

unsworn children cannot as a matter of law corroborate each other. Read also DPP V HESTER

[H.L] 1973. The phrase some other material evidence means evidence other than that of unsworn

children.

84

AFFILIATION
In affiliation proceedings, the evidence of the mother as to the putative father requires

Corroboration.

CASES WHERE CORROBORATION WARNING IS REQUIRED

Common law commands that Judges as a matter of prudence, should not convict a prisoner or

accused person on the uncorroborated evidence of some witnesses, particularly in the case of

accomplices. As a matter of practice, and not of law, is that in such cases corroboration is usually

required. accomplices are as follows:-

(i) Participants in the crime charged whether as principals of accessories before or after the

fact in felonies or persons committing, procuring or aiding and abetting in case of

misdemeanors.

(ii) Receivers in respect of the thieves from whom they received property believed to have

been stolen, on a trial of the principal offenders for theft.

(iii) Parties to crimes which may be proved as facts similar to the offence charged.

Whether a witness for the Prosecution is accomplice for the Prosecution is an accomplice is a

question of fact. In many instances this question is answered by the witness himself , who admits

participation in the crime or pleads guilty or by his record when he has been convicted. In other

cases the court may rule that there is no evidence that a witness was a participant or if there is

some evidence the court may direct that the witness was an accomplice or not. In short, the court

has an obligation or duty, as trier of fact, warn itself that although it (court) may convict on

evidence of an accomplice, it is dangerous to do so unless it is corroborated.

(iv) PHIRI V. The People (SCZ) 1978 in this particular case, it was held that the court

below had done a lot of homework, the supreme court had no doubt that the evidence
of corroboration had passed the test of manifest cogency that the conclusion was

irresistible to any common Law Judge.

There must be independent testimony which confirms the evidence of the accomplice

as to a material circumstance of the crime. It is not necessary that the whole of the

evidence of the accomplice as to the crime should be confirmed; In such a case the

evidence of an accomplice would be necessary. The corroboration may be

circumstantial. There must be independent evidence of the identity of the accused in

relation to the crime, it must be evidence which implicates him or her. As an

accomplice is familiar with the details of the offence; he/she may give accurate

evidence on such matters, but for base motives may substitute. When there are more

prisoners than one, to sustain convictions of the others, the corroboration must

implicate them also. Read R.V Jenkins[1845] ICOX C.C. 177 for illustrations.

SPOUSES OF DEFENDANTS

One accomplice cannot corroborate another. Read R.V Nooks [1832] 5 C& P. 326

also R.V Smith [1964] crim. L.R 818 C.C.A. The evidence of both accomplices is

admissible, but is ineffective as corroboration; that is to say, two witnesses for the

prosecution who are accomplices are no better than one. This rule has nothing to do

with corroboration of an accomplice by admission of accused, otherwise proved. If

the wife of an accomplice gives evidence in support of her husband, her evidence

may amount to corroborate but the court should warn itself to treat her evidence with

great care and caution. Read PHRI V. The People S.C.Z [1978] Z.R. In this case the

appellants were convicted of aggravated robbery. It was alleged that the two of them,

both wearing stocking masks, robbed at gun point a Securicor guard of large sums of
money and the sole issue was whether the appellants were proved to have been the

robbers. The only evidence against them was that of two accomplices. It held that the

corroboration was manifest cogent and abundantly sufficient to support the verdict of

guilty. That there was, no motive to implicate an innocent person. Read also

Mushaukwa V. The people Z.R for more illustration in the issue of spouse of accused

is competent witness but not compellable witness against accused in all serious cases.

WITNESS WITH INTEREST TO SERVE

READ: MUSUPI V. THE PEOPLE (S.C.Z) 1978 for illustrations.

There is of course a distinction between a witness with a purpose of his own to serve

and an accomplice. The accomplice may certainly have such a purpose, but the

converse is not true. A witness with a purpose of his own to serve is not necessarily

an accomplice. But this is an irrelevant distinction. The question in every case is

whether the danger of relying on the evidence of the suspect witness has been

excluded. The same principles must be used or applied to the approach to a witness

with a possible bias such as a relative or an employee. The danger the court should try

to avoid is not of deliberate dishonesty, but of honest mistake by a witness who may

have a purpose of his own to serve-by giving false evidence. Read even

MACHOBANE V. THE PEOPLE. The critical consideration is not whether the

witness does in fact have interest or a purpose of his own to serve, but whether he is a

witness who, because of the category into which he falls or because of the particular

circumstances of the case, but may have a motive to give false evidence. The danger

of false implication is present and must be excluded before a conviction can be held

to be safe. Therefore, one does not hold such witnesses to be accomplices, but one
approaches the evidence of such witnesses in the same way as one approaches that of

accomplices.

CORROBORATION IN SEXUAL OFFENCES.

Some sexual offences require corroboration by statute in Zambia it in the penal code

chapter 87 of the Laws of Zambia. In other cases, it is the practice to require

corroboration of the evidence of the prosecution as on charges of rape and related

offences. A warning is necessary even if the sole issue is identity. The rule that there

must be independent testimony implicating the accused also applies to sexual charges.

Read R.V Connor [1962] Crim. L.R 493, C.C.A. Such charges may be made falsely

from a diversity of motives, and the offences are not often alleged to have been

committed in circumstances which allow of independent testimony of the main fact.

And when these allegations are true, however, corroboration may be availed in

physical signs of resistances on the accused or the victim and other wise. The distressed
condition of the victim may be relevant, her complaint alone is not

corroboration. In some cases corroboration is necessary on other ground, as when the

victim is a child, or when she is an accomplice. Therefore, the courts are required to

warn themselves of the dangers of convicting on uncorroborated evidence of the

victim of sexual abuse. There are a number of reasons for this. First, victims are

sometimes motivated by spite, sexual frustrations or unpredictable emotional

responses. Secondly, an allegation concerning the commits of a sexual offence is easily made but

difficult to defend. Offences such as indecent assault often leave no visible traces. In

rape cases not only the alleged act of sexual intercourse by the accused but also the

question of consent by the victim sometimes depends entirely upon the word of the
victim as against that of the accused. In the case of R.V. SABENZU (C.R. N.R 1946)

the accused was charged with rape but was convicted in the lower court, of defiling a

girl under the age of 16 years. In the High Court on appeal it was stated that there

being no corroboration that it was the accused who had defiled the victim, the

magistrate should have reminded himself of the danger of convicting without it.

There was nothing on record to show that the magistrate did so reminded himself,

and accordingly the conviction was quashed and sentence set aside. Appeal allowed. Similarly in
the case of ZIMBA V. The people SCZ [1980]. The evidence against

appellant was that he alleged to have seized a woman in the bush and to have raped

her, and thereafter, the woman was seen to be crying by an independent witness. The

High court stated that to be seen crying by an independent witness could not amount

to corroboration. That the court below did not warn itself that evidence of distress at

the time of the making of complaint was not enough to amount to corroboration as it

could have been simulated. The appeal was allowed. Conviction was quashed and the

sentence was set aside.

EVIDENCE OF CHILDREN

When the unsworn evidence of a child of tender years is adduced by the prosecution against any

person for any offence , the accused shall not be convicted unless the evidence is corroborated

by some other material evidence in support thereof implicating him. In the case of CHISHA V.

THE PEOPLE (SCZ 1980), the case against the applicant rested solely upon the evidence of a

boy aged fourteen years. The issue was whether the sworn evidence was to be treated like any

other witness. It was stated that by reason of immaturity of mind of a child whether sworn or

unsworn, falls within the category of what may conveniently be called “suspect witness” whose
evidence must be treated of necessity be treated as suspect. A conviction which is founded on

suspect evidence cannot be regarded as safe and satisfactory unless such evidence is supported to

such an extent as satisfies the truer fact that the danger inherent in placing reliance upon suspect

evidence has been concluded.

Therefore, the sworn evidence of a child is suspect simply for the reason that it is the evidence of

a child, as the child’s mind is yet to mature, additionally, it may be suspect, for instance, where

the aspect of accomplice evidence of evidence in a sexual case arises. Children are possibly more

under the influence of third persons who could be their parents or older peer group persons.

Adults normally think independents with little influence. Children are apt to allow their

immature imaginations to run away with them and invent untrue or false stories. The courts have

observed that young persons or children when relating sexual incident implicating a given man,

the children may be indulging in fantasy.

However, children can have unsworn evidence can be corroborated with the adult evidence.

PART 2

(A)

The case of Joseph Mulenga v. the people and Platford Mwale v. the People the, appellants in
both cases will convicted of sexual abuse related offences. The appellants in the respective cases
we sentenced to prison by the lower court based on the evidence of witnesses who were on
appeal regarded as witnesses with an interest to serve and that, therefore, they could not
corroborate the prosecutrix's evidence.

The court’s decision in all the cases relayed on the case of Kambarage Kaunda v The People
were the Court held that:

“Prosecution witnesses who are friends or relatives of the Prosecutrix may have a possible
interest of their own to serve and should be treated as suspect witnesses. The Court should
therefore warn itself against the danger of false implication of the accused and go further to
ensure that the danger is excluded".

Counsel for appellants on appeal had raised the issue of the need for corroborative evidence that
can link the appellants to the alleged offences. The court’s decision in the case of Joseph
Mulenga v. the people, was of upholding the sentence. The court said the following; Having
perused the evidence before the trial court> we cannot fault the trial magistrate as the evidence
against the appellant was over helming and the prosecution proved their case beyond

reasonable doubt that it was the appellant who defiled the prosecutrix. We uphold the conviction
and the sentence of 20 years and dismiss the appeal for lack of merit.

The court’s decision in Pratford Mwale v The People was to allow for an appeal and set aside the

conviction and the sentence and set the appellant at liberty.

(B)

(C)

The law with respect to circumstantial evidence has been restated many times by the court, and it
is that, in order to convict based on circumstantial evidence, the exculpatory facts must be
incompatible with the innocence of the accused and incapable of explanation upon any other
hypothesis than that of the accused's guilt. The court in the case of David Zulu v. The People
held that- "It is a weakness peculiar to circumstantial evidence that by its very nature it is not
direct proof of a matter at issue but rather is proof of facts not in issue but relevant to the facts in
issue and from which an inference of the facts in issue may be drawn. It is incumbent on a trial
judge that he should guard against drawing wrong inferences from the circumstances evidence at
his disposal before he can feel safe to convict. The judge must be satisfied that the circumstantial
evidence has taken the case out of the realm of conjuncture so that it attains such a degree of
cogency which can permit only an inference of guilty. “It is unnecessary for us, in the present
case, to any further elaboration on how circumstantial evidence should and has been applied by
our courts. We, however, wish to restate the law as regards circumstantial evidence by adding
that this form of evidence, notwithstanding its weakness as we alluded to in the David Zulu case,
is in many instances probably as good, if not even better that direct evidence. Lord Heward
observed that “It has been said that the evidence against the applicants is circumstantial; so it is
but circumstantial evidence is very often the best. It is evidence of surrounding circumstances
which, by undersigned coincidences, is capable of proving a proposition with the accuracy of
mathematics." Where the prosecution's case depends wholly or in part o

In the case of David Zulu v The People, the appellant was convicted of the murder of a woman in
the course of a sexual assault; the injuries found on the body suggested that she had struggled
with her assailant. The evidence established that the appellant and the deceased had been
drinking beer together at a bar and were seen leaving the bar together at about midnight; between
0600 and 20 0700 hours the next day the deceased's partially undressed body was found. The
appellant was traced and when arrested was found to have scratches on the neck and chest. He
explained in evidence that the scratches were caused by flying pieces of iron at his place of work,
an explanation which was not rebutted. The trial court without any evidence to support the
finding said that the appellant had protective clothing at work and therefore that the flying
particles of iron could not penetrate such clothing; the trial court consequently inferred that the
scratches on the appellant were sustained during the struggle with the deceased. The following
were the holdings;

   (i)    It is a weakness peculiar to circumstantial evidence that by its very nature it is not direct
proof of a matter at issue but rather is proof of facts not in issue but relevant to the fact in issue
and from which an inference of the fact in issue may be drawn.

   (ii)   It is incumbent on a trial judge that he should guard against drawing wrong inferences
from the circumstantial evidence at his disposal before he can feel safe to convict. The judge
must be satisfied that the circumstantial evidence has taken the case out of the realm of
conjecture so that it attains such a degree of cogency which can permit only an inference of
guilt. 

   (iii)   The appellant's explanation was a logical one and was not rebutted, and it was therefore
an unwarranted inference that the scratches on the appellant's body were caused in the course of
committing the offence at issue

(D)
The burden of proof or onus of proof refers to the obligation on a party to prove a disputed
assertion or charge. One of these responsibilities or burdens obliges the party who desires the
court to give judgment as to any legal right or liability dependent upon the existence of facts
which he or she asserts, to produce evidence. This evidence must be sufficient to persuade the
court that the existence or non-existence of particular facts in issue is established to the requisite
standard of proof. Here the party is said to have the legal, probative, or persuasive burden of
proof. The other responsibility obliges a party to produce some evidence to enable the court
acting reasonably to find the existence or non-existence of particular facts in issue. Here the
party is said to have the evidential burden, the burden of adducing evidence, or the burden of
going forward. The general rule is that the burden lies on the party who asserts in the affirmative.
As was stated in Robins v National Trust Co. in the nature of things, the negative is more
difficult to prove than the positive. It is an ancient rule founded on consideration of good sense
and should not be departed from without strong reason. In criminal cases as the prosecution
asserts in the affirmative, the burden of proof rests entirely with the prosecution subject to the
defence of insanity and to any statutory exception. In Woolmington v Director of Public
Prosecutions, the appellant was convicted of murder. His defence was accident. At the end of his
summing up, the trial judge said: The Crown has got to satisfy you that the victim died at the
prisoner’s hands. They must satisfy you of that beyond any reasonable doubt. If they satisfy you
of that, then he has to show that there are circumstances to be found in the evidence which has
been given from the witness-box in this case which alleviate the crime so that it is only
manslaughter or which excuse the homicide altogether by showing that it was a pure accident.
The appellant appealed against his conviction arguing the summing up was wrong. The House of
Lords regarded the summing up of the trial judge as a wrong position of law. Viscount Sankey
LC stated that: If at any period of a trial it was permissible for the judge to rule that the
prosecution had established its case and that the onus was shifted on the prisoner to prove that he
was not guilty and that unless he discharged that onus the prosecution was entitled to succeed, it
would be enabling the judge in such a case to say that the jury must in law find the prisoner
guilty and so make the judge decide the case and not the jury, which is not the common law. It is
for the prosecution to establish the prisoner’s guilt, and the prisoner is entitled to the benefit of
the doubt. While the prosecution must prove the guilt of the prisoner, there is no such burden laid
on the prisoner to prove his innocence and it is sufficient for him to raise a doubt as to his guilt;
he is not bound to satisfy the jury of his innocence.8 The House of Lords made it clear that the
burden of proof lies entirely on the prosecution and placing that burden on the accused would be
asserting that the accused be presumed guilty unless he/she discharges the burden. The Supreme
Court in the case of Mwewa Murono v The People reiterated the principle that the burden of
proof in criminal cases rests with the prosecution. The Court held that in criminal cases, the rule
is that the legal burden of proving every element of the offence charged, and consequently the
guilt of the accused lies from beginning to end on the prosecution.