UNIVERSITY OF MALAŴI

CHANCELLOR COLLEGE
Faculty of Law

LAW – DIP 205 : EVIDENCE, ADVOCACY AND ETHICS

SECTION ONE:
LAW OF EVIDENCE

SECTION TWO:
ETHICS AND ETIQUETTE.

CLASS NOTES

By
MSAIŴALE CHIGAŴA (D.PHIL,)(OXON).
 UNIVERSITY OF MALAŴI

CHANCELLOR COLLEGE
Faculty of Law

LAW – DIP 205 : EVIDENCE, ADVOCACY AND ETHICS.

SECTION ONE: LAW OF EVIDENCE

I. DEFINITION, SOURCES AND CLASSFICATION.
A. Sources of the Law of Evidence
There are many sources of the law of evidence in Malawi. As evidence relates to rules
governing the admissibility and non-admissibility of matters relating to the fact in issue in a
particular case, it follows that when one speaks of sources of the law of evidence, one mean
those sources where rules and regulations governing such admissibility of non-admissibility of
evidence may be found primary amongst there sources in Malawi are statutes, rules of the
common law and, in the context of the subordinate courts, the relevant rules of customary law.
Rules of the common law are, however, mainly codified as statutory law and therefore much of
the law relating to this field is to be found in acts of Parliament.

The main statute governing the rules of evidence in this country is the Criminal Procedure and
Evidence Code, Cap 8:01 of the laws of Malawi. All the rules relating to evidence in criminal
proceedings and contained in Part VI of this code: as well as in the subsidiary rules that are made
under the provisions of this PART.

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Case law may be a source of the law of evidence in as much as it embodies specific rules of the
common law. Admissibility of rules embodied in case law is, however, subject to any express
statutory provisions in this country. Rules relating to the reception of res gestae evidence are
contained main in case law of some antiquity. Hence, reception of res gestae evidence in
Malawi, unless expressly prohibited by Acts of Parliament, may be permitted under the rules of
the common as contained in case law.

Textbook writers and other eminent publicists are not sources of the law of evidence. These
people, however, help to clarify and to articulate rules and regulations that govern the reception
of evidence in the courts. Reference to their works, therefore, is not barred by any rule of law of
evidence. However, not many published worked on evidence exists in respect of Malawi.

B. Definition of Evidence
Evidence as used in judicial proceedings has several meanings. The two main senses of the word
are, firstly, the means, apart from argument and inference, whereby the court is informed as to
the issues of fact as ascertained by the pleadings; Secondly, the subject matter of such means.
The word evidence is also used to denote that some fact may be admitted as proof and also in
some case that some fact may be placed before the court in order that it may decide the issues of
fact. In a real sense and the sense in which the term is commonly used “evidence” means the
testimony whether oral, documentary or real which may be legally received by the court in order
to prove or to disprove? Some fact in dispute. The criminal procedure and evidence code
acknowledges this definition of evidence in s.2 of the Code.

C. Classification of Evidence
Evidence is classified and contracted in a number of ways. This classification and contrasting is
important in that it affects the weight and credibility, which the court may attach to the evidence
in issue. Some of the classifications normally adopted, which are not exhausting, are no follows:

1 Direct Evidence as contrasted with Circumstantial Evidence.

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Direct evidence consists of either of the testimony of a witness who perceived of the fact to be
proved or the production of a document or thing, which constituted the fact to be proved.
Circumstantial evidence of a fact to be proved is the testimony of a witness who perceived, not
the fact to be proved, but in other fact from which the existence or non-existence of the fact to be
proved can be deduced; or the products of a document or thing from which the fact to be proved
can be deduced.

A fact in issue is defined in S 2 of the Criminal Procedure and Evidence Code as:
“…. Any fact from which, either by itself in connexion with other facts, the
existence, non-existence, nature or extent of any right, liability or disability,
asserted or defined in any proceeding, necessarily follows”.

The fact to be proved can be either a fact in issue or a fact relevant to the issue suppose a fact in
issue is whether John used a certain knife to kill James. A fact relevant to this fact in issue is
whether John had the knife in his possession, for if the court finds that he had it in his
possession, it may go on to find that he used it. If Thom says that he saw John use the knife to
kill James, he is giving direct evidence of a fact in issue. If Thom says he saw the knife in
John’s hand, but that he did not see him use it to kill James, Thom is giving direct evidence of a
relevant fact (possession), but only circumstantial evidence of John’s using, the knife to kill
James. If Thom says he saw the knife among John’s belongings he is giving circumstantial
evidence of John’s possession of the knife (a relevant fact) and circumstantial evidence of John’s
using the knife to James (….fact in issue). Of course, all witnesses necessarily give direct
evidence of whatever it was they perceived, and here, Thom is giving direct evidence of the
position of the knife, from which the court may deduce John’s possess of it and thus John’s use
of it.

Circumstantial evidence is also used, not by contrast to direct evidence, i.e. not in describing the
quality of the testimony given, but as a description of the facts prove if they are not directly in
issue, but logically related to fact in issue. Relevant facts constitute circumstantial evidence. For
instance, possession of recently stolen goods is circumstantial evidence of sound guilty
knowledge.

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2. Original Evidence is contrasted with Hearsay Evidence

Original evidence is the evidence of a witness who deposes to facts, which he perceived with one
of his own senses. If this information is derived from other persons and he himself has no
personal knowledge of the facts to which he deposes, then his evidence is said to be hearsay.
The general rule under S 184 of the criminal procedure and evidence code is that hearsay
evidence is not admissible. The person who saw, or heard or otherwise perceived the fact in
issue must be produced and not someone to whom he gave or wrote an account of what
happened. There are numerous exceptions to the rule against admitting hearsay evidence. It is
also true that it is not always, the case that if John is giving hearsay evidence. The fact of James
having said the words might be a fact in issue. For instance, where James is being sued for
slander, and John adduces in evidence that eh heard James say the slanderous words in issue,
then John is giving original evidence of that fact. It is only when the object of John’s testimony
is to persuade the court that some fact is as James said it was that John’s evidence is hearsay and
therefore inadmissible unless it can fall in one of the exception to this rule.

3 Oral Evidence is Contrasted with Documentation Evidence

Oral evidence consists of statements in court by witness’s documentary evidence consists of
documents produced for inspecting on by the court. The distinction is dictated by the fact that
special rules govern the proof of contents of documents, such as is the case in the ‘best evidence
rule’. In Rep v Chihana Crim Case No. 1 of 1992 HC (Unrep). In addition to the oral testimony
that was given by witnesses in that case, a large number of articles were produced to prove the
guilt of the accused person.

4 Best Evidence is Contrasted with Inferior Evidence

Inferior evidence is that which suggests that better evidence might be available for instance, a
copy of a document suggest that somewhere else the original exists on a description of an object
by a witness suggests that the object in question can be produced for inspection. The ‘best
evidence rule’ precludes the production of inferior evidence if the best evidence can be

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produced. This rule, which at one time was fundamental, has declined greatly in importance and
now it applies mostly to documents and copies of documents. Here, the terms usually used are
‘primary’ and ‘secondary’ evidence. This rule does not now prevent the description of an object
hen the object can be produced.

Hocking v Ahiquist [1944] KB 120

The above divisions of evidence are but different ways of dividing the same entity, evidence.
How an item is placed inside, one classification has no necessary consequences for how it is
placed in another classification. Thus an item of documentary evidence may be testimonial,
hearsay and circumstantial. An item of oral evidence may be direct and original and even real.
What really matters are whether or not an item or a piece of evidence is admissible in court. If it
is admissible, then it must be proved in order to enable the court to make a decision upon the
facts in issue.

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 UNIVERSITY OF MALAWI

CHANCELLOR COLLEGE
Faculty of Law

II. Relevance and Admissibility of Evidence

A. Relevance
The only facts, which may ordinarily be proved in judicial proceedings are facts in issue, facts
relevant to the issue and collateral facts, i.e. those which affect the admissibility of evidence.

1. Facts in Issue.
These are the facts which a plaintiff (or prosecutor) must prove in order to win the case or which
the defendant must prove in order to succeed in some defence which is open to him. These facts
in issue are determined by the substantive law or by the proceedings. Thus in an action for
murder, it is the law of homicide which prescribes the elements of the offence of murder; these
elements must be established by the prosecution if the defendant is to be convicted. The law of
homicide will also say what defences are available in an action of this kind, such defences as
provocation, self-defence, or some other defence. In civil cases, in addition to the substantive
law, the pleadings determine the facts in issue. The pleadings are the formal assertions and
formal denials, which are made before trial in order to narrow and focus the issue between the
parties. Narrowing the issue necessarily cuts down the number of facts in issue. All the facts in
issue are relevant before the court s 171(!) provides that:

Subject to any other law, evidence may be given in any proceedings of the
existence or non-existence of every fact in issue, and of such other facts as are
hereinafter declared to be relevant and of no others.

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This provision excludes from the courts consideration all irrelevant evidence because evidence of
this kind wastes the time of the court and, in some cases, it may cause confusion and prejudice
the accused’s case. Certain facts, which may not be directly in issue may also be relevant to the
case. The court may also consider these in order to reach an acceptable and just conclusion-upon
the facts in issue.

2. Facts Relevant to the Issue

(a) Res gestae: What is called a fact may consist of a series of facts or be the result
of one or more facts and so may be more conveniently called a transaction.
S.171(2) of the CP&E Code reads, in part, as follows:

Facts are relevant which –

(a) Though not themselves in issue are so connected with a fact in issue as to
form a part of the same transaction whether they occurred at the same time
and place or at different times and places.

The significance of this relevance of res gestae evidence is that since the statements or facts are
so contemporaneous with the facts in issue that no moment for deliberation or concoction was
available, these statements or facts must be true and hence admissible in court. The doctrine
dates as far back as 1693 when, in Thompson v Trevanion, (1693) skin 402, HOLT CJ is
reported to have admitted evidence of what the woman said immediately upon receiving the hurt,
because it was said before she had time to devise or contrive anything for her own advantage.
However, rules of evidence relating to the admissibility of hearsay evidence tend to exclude
many facts, which may, prima facie, appear to be relevant to the facts in issue.
R v Bedingfield 1879 14 Cox CC 341

(b) Circumstantial Facts and Evidence

These are relevant to the facts in issue under S 171(2) (b). Under this provision, facts are
relevant which are the occasion, the cause or the effect, immediate or otherwise, of relevant facts
or facts in issue, or which they happened; or which afforded an opportunity for their occurrence

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or transaction. It is basically under the provision that circumstantial evidence is said to be
relevant to the facts in issue and therefore admissible in court.
See Makindi v R [1961] EA 327
In civil cases, circumstantial evidence may be relied upon to prove facts in issue, It is said that
the matrimonial offence of adultery is rarely proved by reference to direct evidence. The tribunal
of fact has to rely on circumstantial evidence in order to prove the fact that adultery was
committed between the respondent and the co-respondent.
See, Chibweya v. Chibweya and another, Civil Cause No. of 1983 HC (unrep.).
Chilakolako v. Chilakolako and another, Civil Cause No. of 1983 HC (unrep.)

(c) Facts Showing Motive or Preparation

Facts which show or constitute a motive or preparation for any fact in issue or relevant fact are
themselves relevant under the terms of s. 272(3)(c) of the CP&E Code. It is true that under s 9 of
the Penal Code (Cap 7:01 of the Laws of Malawi), the accused motive for committing crime is
generally not relevant to his criminal liability. In the law of evidence, however, motive is always
a relevant fact. In some of the cases, the fact that the accused had a motive for committing the
crime may make it appear more likely that he committed the crime and he may be convicted on
circumstantial evidence only. On the other hand, the motive of the accused may negative a fact
in issue, such as the mens rea for the crime and may lead to his acquittal.
R v Streane [1947] KB 997.

Facts showing preparation to commit the alleged offence are relevant facts because thy help in
proving the case in court. This is more so in cases involving state security such as those of
treason.
See Mwakawanga v R 1968 ALR Mal 14

(d) Facts Explaining Facts in Issue:

A piece of evidence is relevant once it explains facts in issue. The terms of s.171 (2) (d) of the
CP&E Code are as follows:-
“171 ……
(2) Facts are relevant which - …

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 (d) in so far as they are necessary to explain or introduce a fact in issue or
relevant fact, or which support or rebut an inference suggested by a fact in
issue or relevant fact, or which establish the identity of anything or person
whose identity is relevant or fix the time or place at which any fact in
issue or relevant fact happened, or which show the relation of persons by
whom any such fact was transacted.”

In Mphumeya v R. 1923 ALR Mal 344, the accused was convicted upon evidence given by the
assessors that at customary law, a wife can be convicted of stealing the property of her husband;
this being the case because spouses to a polygamous marriage do not hold their property jointly.
The evidence of the assessors was relevant because it explained the facts in issue relating to theft
by husband and wife at customary law. In Kampila v Rep 1966 – 68 ALR Mal. 320, BOLT J
took judicial notice of the fact that in the month of September, dawn occurs 6:30 am so that any
theft committed an hour or so before that time could properly be called burglary. It was
important in this case to mention the time because this was necessary to rebut any evidence
tending to show that the offence was one of ordinary theft and not that of burglary.

(e) Conduct of any person in relation to the facts in issue

This is relevant under s 171(3) of the CP & E Code. For instance, it is said that running away
from the scene of the crime will be relevant to the facts in issue; which maybe that the accused
stole something from the premises. In Jailosi v Rep 1966 – 68 ALR Mal 494, the accused was
charged with murder contrary to s. 209 of the Penal Code. The odd manner in which he reported
the case to the sister of the deceased and his offer of compensation for the death were held to be
relevant facts to the facts in issue.
See also – R v York (1748) Fost 70
R v Gibbins & Proctor (1918) 13 Cr App Rep 134

There is a large number of other relevant facts under s. 171 of the CP & E Code but these are so
connected with circumstantial evidence that their relevance may as well be explained on this
ground alone.
Se in particular, s.171 (2) (f) of the CP & E Code

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B. Admissibility
Irrelevant evidence is admissible before the court of law. The terms of s.172(1) of the CP & E
Code provide as follows:

“When either party proposes to give evidence of any fact, the court may ask the
party proposing to give the evidence in what manner the alleged fact, if proved,
would be relevant and the court shall admit the evidence if it thinks that the fact,
if proved, would be relevant and not otherwise”.

However, it does not follow that all relevant evidence is admissible., To be admissible, relevant
evidence must also satisfactory all the other rules relating to the admissibility of evidence,
particularly exclusionary rules of evidence. As a general rule and subject to exceptions, the
following categories of evidence are rendered inadmissible even if the evidence in issue may be
sufficiently relevant to the facts in issue.

1. Opinion Evidence
2. Evidence of character
3. Hearsay evidence
4. Evidence which is privileged

It is for the court to decide whether or not a particular piece of evidence is relevant and
admissible. The court is under a duty to general against receiving inadmissible evidence,
particularly in those cases where the accused is unrepresentative. In James v Reg 1923-60 ALR
Mal 635, Spencer-Wilkinson, CJ said:

“On this point I would remind magistrates of the dictum of viscount Simon in the
case of Stirland v DPP … [1944] AC 315 at 327… It has been said more than
once that a judge when trying a case should not wait for objection to be taken to
the admissibility of the evidence but should stop such questions himself”.

This dictum refers, of course, to High Court Judges, but in my opinion, there is just as great, if
not a greater, duty laid upon resident magistrates to be constantly on the alert to exclude
inadmissible evidence; first, because police prosecuting officers cannot be expected to have as

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expert a knowledge of the law of evidence as qualified lawyers; and secondly because in the vast
majority of cases before magistrates the accused person is not represented by counsel, who, if
present, would object on his behalf. The duty of resident magistrates is not confined simply to
recording the evidence adduced and reaching a decision – it is their duty to try the accused and to
ensure that every accused person is brought before them is accorded a fair trial in accordance
with the law of evidence and the procedure laid down in the Code.

It should also be noted in this connection that admissibility of evidence and the weight which the
court is going to attach to it are two different issues altogether. In some cases, the evidence
under consideration may be relevant and admissible but the court may attach very little weight to
it in determining the case. In Attorney-General of Nyasaland v Adderley 1923 – 60 ALR Mal
840, SOUTHWORTH J, said:

I t appears that in this case the learned trial magistrate wrongly applied the
principle which he derived from Kenny and was mistaken in taking the view that
in the absence of medical evidence, he could not admit or accept the evidence of
lay witnesses to the effect that the accused person was under the influence of
liquor. It is important in this connection to keep in mind the distinction between
the admission of evidence and the acceptance of evidence. Thought he evidence
that has been discussed is undoubtedly admissible and though it was open to the
trial magistrate to accept this evidence, the magistrate may have good reasons
other than that which he ahs given, and which is mistaken, for finding himself
unable to accept it. Again, it must be kept in mind that when evidence has been
admitted and accepted, the further question remains to be considered, what weight
should be attached to that evidence. For the purpose of the present case it is
sufficient to say that the evidence which has been referral to was admissible and it
was open to the learned trial magistrate to accept that evidence”.

Mention should also be made of the fact that in circumstances where evidence is technically
admissible, the court may use its discretion to exclude it from consideration if its prejudicial
effect outweighs its probative value. This is very much so in those cases where the evidence in
question has been illegally obtained. Again, it should be remembered that an appeal or review
court will not necessarily reverse the decision of trial court just because some piece of evidence
was improperly admitted or rejected. In addition to the basic rule in s. 5 (2) of the CP&E Code,
s. 240 of the same statute is to the same effect on this point. The decision of the trial court will
be varied where (a) in the case of improperly admitted evidence the accused would not have been

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convicted had such evidence been disallowed; or (b) in the case of evidence that is wrongly
rejected, that it would have varied the decision had such evidence been received. It is therefore
pertinent to discuss the exclusionary rules listed above one by one.

1. Opinion Evidence
This type of evidence has a special kind of irrelevance. This arises from the legal position that it
is the tribunal of fact, not anyone else that is under a duty of reaching a conclusion on the issue
between the parties. If the conclusion involves forming an opinion on the facts, evaluating them,
drawing inferences from them, this is not the function of any other person other than the court
itself. In the case of a witness he must confine himself to stating the facts in his personal
knowledge. Thus if the question is whether the accused behaviour negligently or a certain
occasion, one who saw him act will say that he did; but the court will decide whether, if that
testimony is believed, what eh did amounts to negligent behaviour. The opinion of an eye-
witness, or indeed of any other person, even an earlier tribunal investigating the same matter is
strictly irrelevant.
See, Hollington v Hewthorn [1943] KB 587
North Cheshire and Manchester Brewery Co v Manchester Brewery Co.1899] AC 83.

The presiding judge or jury is as capable of forming an opinion as the witness, and it is the
present court on which the law casts the duty of doing so. However, there are some cases where
the opinion of a witness may be admissible. Amongst these cases are the following ones:

(a) Opinion Evidence of Ordinary Witnesses

There are some matters which are commonly thought of as matters of direct perception but
which are really matters of inference, or opinion by ordinary witnesses. For instance, if a
witness says that he saw the accused shoot the deceased, what he is really saying is that he saw
the accused point a gun at the deceased, then heard the gunfire and saw the deceased fall to the
ground. It is only matter of inference and opinion that the bullet left the gun and conferred the
body of the deceased. This inference, however, is so obvious that the witness is allowed to say
that eh saw the accused shoot the deceased.

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The preceding example is hardly describable as involving opinion at all. Other more clear
examples include testimony by a witness about speeding by the accused in driving offences. If a
witness says that eh saw the driver driving very fast, he is giving opinion evidence as to the
manner in which the vehicle was travelling; but he is nevertheless allowed in court to say so.
Identification of a person or thing is almost always opinion evidence. The witness is in reality
saying no more than that the person seen by him ‘resembles’, i.e., was in the opinion of the
witness, similar in features and build to, a person seen on another occasion. Handwriting is often
identified by someone who says no more than that the disputed handwriting resembles in its
general character the impression received from seeing other pieces of handwriting in the past.
More often a witness is asked how old a person appeared to be or whether he thought a person
had taken drink.
See R v Davies (No 2) [1962] 1 WLR 111

In Attorney General for Nyasaland v Adderley[1923 – 60 ALR Mal 840, the court agreed with
the following submission by crown counsel on the point of admitting opinion evidence from
ordinary witnesses:

“The opinions or beliefs of ordinary witnesses are admissible on such matters as

identity, condition, or age of persons or things, the genuineness of handwriting
and other miscellaneous matters. Thus a witness may speak to his belief that the
prisoner is the person he saw committing an offence, or that a photograph shown
to him is the likeness of an absent person or he may state whether a person was or
was not, in his opinion, drunk on an occasion when he saw him”.

In all these kinds of case the witness may well not be particularly skilled in evaluating the matter
on which he forms his opinion. Nevertheless, his opinion is received because in the nature of
things it is impossible to separate out the matters of perception on which it is formed, or because
the opinion is a sensible concise way of stating the matters perceived.
See s. 191 of the CP & E Code, Cap 8:01
See also – Mwalala v Rep Cr App Case No 69 of 1977, HC (Unrep); D Newman, p 175.
Kemwembe v Rep 1968 – 70 ALR Mal 283
Wright v Rep 1971 – 72 MLR 292

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 (b) Opinion Evidence of Experts
If the reason why opinion evidence is normally rejected is that the court is just as capable of
forming an opinion as the witness, it must be obvious that there are some cases where this is not
true. Judges, and especially jurymen are ordinary sensible persons and not medical doctors,
geographers, mathematicians or his brains. Hence where the matter in issue is one ‘art or
science’ which requires long study or experience, judges or jurymen cannot be expected to form
an opinion without the help of someone who has undergone long study or acquired the necessary
experience. In such a case, the opinion of such an expert is admissible. The matters fit for
expert evidence are numerous and include such things as causes of death, effects of poison,
genuineness of works of art, value of objects or land, genuineness of handwriting, proper
navigation of vessels, meaning of trade terms, accepted principles of accountancy and proof of
foreign law.
See, Limbani v Rex (1946) 6 NY LR
Rep v Andrea 1968 – 70 ALR Mal 158
Sesani v Rep 1961 – 63 ALR Mal 124

The judge decides whether the witness is suitably qualified to offer an opinion. He must be
skilled in the branch of knowledge involved, but he need not have acquired the knowledge in the
course of professional practice. In R v Silverlock [1894] 2 QB 685, a solicitor who had been an
amateur student of handwriting for ten years was allowed to give an expert opinion on the
similarity of two samples of handwriting. The need for special study and experience for an
expert was emphasised by Edwards J in Luwembe v Rep Cr App Cas No 58 of 1974, HC (Unrep)
See also DPP v Msosa 1971 – 72 MLR 128

The opinion of the expert must be reasoned so that the court understands the basis of the opinion.
In R v Daster 1923 – 60 ALR Mal 421, where the accused was charged, on the second count
with being in possession of one bottle of kachasu, the court said:

“I would add that in my opinion the mere statement by a native authority court
messenger or indeed by any other person, that ‘I found a bottle of kachasu in his
pocket’, is not sufficient evidence to prove the offence of possession of native
intoxicating liquor. There is nothing on the record in this case to show what the

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 contents of the bottle were, except the opinion of the messenger. These
messengers may well be experts on the subject whose opinion would be relevant
and acceptable – but even an expert must give some reasons for his opinion.
Although this point was not argued before me, I think the conviction upon the
second count was bad for this reason only”.

See also Wright v Rep 1971 – 72 ALR Mal 292

R v Jennion [1962] 1 ALLER 689

It is also perfectly in order for the court to reject expert evidence in preference to the evidence of
an ordinary eye-witness. Likewise, the court may accept the evidence of an expert witness and
yet give it very little weight in deciding the case. JERE J is quoted as having said the following
words in a case where the trial magistrate accepted the opinion evidence of a handwriting expert:

“If he is saying that whatever an expert witness says must automatically be

believed, then this is wrong. It is the duty of the court to evaluate the evidence of
any expert witness and come to its own conclusion as to what weight should be
put on the evidence. It is true that in most cases the court will place great weight
on the evidence of an expert, but that does not mean that such evidence is beyond
the scrutiny of the court”.
See Hauya v Rep Crim Case No 166 of 1977, that HC (Unrep)
The foregoing is some of the rules apply to the reception of expert evidence in this country.

2. Evidence of Character
The character of the party to a case is occasionally a fact in issue, the obvious example being the
character of the plaintiff (civil case) or the prosecution witness (criminal case) in a defamation
action. In such a case, evidence of the accused’s character is admissible and provable just like
any other fact in issue. However, there are cases where in effect it is sought to prove that a
person did a certain prohibited act by evidence that his character or disposition is such that he
would be more likely than not to do the act, therefore that he did it. A number of cases are to the
effect that evidence of character is insufficiently relevant to the facts in issue. Evidence of bad
character is additionally objectionable on the ground that its admission would prejudice the party
against whom it is offered by damaging the whole of his career, which he would not be prepared
to defend without notice. Hence, even if the evidence in question has some distinct relevance, it
may be rejected on that ground alone. This is especially so with evidence of bad character

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offered against a defendant in a criminal case, and only in far exceptional cases will this type of
evidence be allowed.

It should be noted, however, that in criminal cases, the accused is allowed to prove his good
character, either in examination in chief or by cross-examination. However, in so far as concerns
proof of the accused, good character by another witness, what must be deposed to is, not
particular good acts by him, but his general reputation in the community.
See s.192 (6) of the CP & E Code.
R v Rowton (1865) 10 Cox 25

Evidence of the good character of the accused is expressly stated to be relevant and hence
admissible under the terms of s, 192(1) of the CP &E Code.

Evidence of the accused’s bad character may be admitted only as an exception to the prohibition
against admitting this type of evidence. There are two main exceptions in this connection: (1)
where the accused’s character is in issue and (2) under the similar facts evidence rule.

The bad character of the accused may be adduced and admitted in order to rebut the prior
testimony of the accused’s good character, if this is in issue. Evidence may be given of
the accused’s general bad character and of his previous conviction for crime.
See s 192 (5) of the CP & E Code.
R v Redd [1923] 1 KB 104.

As far as evidence of bad character is concerned, it was deciding in the leading case at common
law, R v Rowton (1865) 10 Cox 25 that it must be of his general reputation, not of particular facts
or merely the opinion of the witness. However, the general rule which operates side by side with
the preceding proposition need not be confined to the particular kind of offence under
consideration. If the charge involves indecency towards females and evidence of bad character
is admissible, this may be directed towards showing that the accused is dishonest with regard to
the property of others.
R v Winfield (1939)) 26 Cr App Rep 139.

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In the above case, Humphreys J is quoted as having said stated that “there is no such thing in our
procedure as putting half a prisoner’s character in issue and leaving out the other half”. This
principle of the indivisibility of the accused’s character may be criticized as unfair to the
accused, since it may warrant the introduction of issues, which are unduly prejudicial to him.
The principle is also inconsistent with the rule that the accused himself can only adduce such
evidence of his good character as is relevant to the offence under consideration. It should also be
noted that once evidence of the accused’s bad character is allowed, it is not confined merely to
rebutting the earlier evidence of good character, it bears on the accused’s credibility generally.
See R v Longman of Richardson [1969] 1 QB 299.

It is sometimes possible to prove facts, which show that the accused has a bad character
or previous convictions under what is called the similar fact doctrine. The cases where
this is allowed are all exceptional, because the general rule is to the contrary. The
prosecution is not allowed to reveal in any way that the accused is of bad character until
after conviction. However, it is sometimes the case that the facts of one transaction are
relevant to the facts of another, disputed transaction. As a matter of logic, one may
deduce the facts of the latter from the facts of the former, if they are sufficiently similar
in some significant aspect. Provided the logical connection between the two transactions
is pronounced enough to compensate for the inconvenience of having to investigate a
transaction not actually in issue, the law allows proof of one transaction by evidence of
the other.
See R v Smith (1915) 11 Cr App Rep 229

The leading case on the subject is now DPP v Boardman [1975] AC 421. However, the law on
the topic was laid down by Lord Herschell LC in Makin v Attorney General for New South Wales
[18945] AC 57 when he said:
It is undoubtedly not competent for the prosecution to adduce evidence tending to
show that the accused has been guilty of criminal acts other than those covered by
the indictment, for the purpose of leading to the conclusion that the accused is a
person likely from his criminal conduct or character to have committed the
offence for which he is being charged.

18
On the other hand, the mere fact that the evidence adduced tends to show the commission of
other crimes does not render it inadmissible if it be relevant to an issue before the court. It may
be so relevant if it bears upon the question whether the acts alleged to constitute the crime
charged in the indictment were designed or accidental, or to rebut a defence, which would
otherwise be open to the accused.

The House of Lords in DPP v. Boardman [1975] AC 421 adopted this preceding reasoning in the
Makin case. According to the Law Lords in DPP v Boardman, similar fact evidence, to be
admitted, requires a strong degree of probative force. This force must arise because the evidence
as to the similar facts and the fact in issue is so strikingly similar that common sense makes the
similarity not explainable on the basis of coincidence. The relevance must be such that to
exclude it would be an affront to common sense. The general sense of all the speeches in the
above case is that admissibility of similar fact evidence depends on the evidence in question
being positively probative, that is, extremely cogent. This is matter for the judge to decide.
Unless there is a very high degree of relevance, he must exclude it. And, in deciding whether or
not there is a high degree of relevance, he must ask himself whether there is a real chance that
the witnesses to the separate incidents have put their heads together to adduce false evidence, if
yes, the similar fact evidence must be excluded.
See R v Scarrott (1977) 65 Cr App Rep 125

A number of other cases have applied the similar fact principle. In R v Ball [1911] AC 47, a
brother and sister were charged with incest between the passing of the Act which made incest
criminal and the date of their arrest. During that period, they lived in the same house and
occupied the same bed, but there was no direct evidence that they had sexual intercourse.
Similar fact evidence was admitted that prior to the period in question, they lived openly as
husband and wife and that the sister had had a child by the brother.
See also R v Straffen [1952] 2 QB 911

The law therefore concedes that the relevance of evidence of similar transactions can sometimes
be so strong that it outweighs the disadvantage of using it, namely the risk of prejudice to the
accused. Where this is so, the similar fact evidence must be admitted despite its prejudicial

19
effect. This in turn, is in the nature of an exception to the rule prohibiting the admission of
evidence of the bad character of the accused.

3. Hearsay evidence
Hearsay evidence is inadmissible for a number of reasons. First, the narration of events by a
witness about what was told to him by another person cannot be expected to be perfect. There is
bound to be some lack of precision in the story and if the court were to believe such a narration
and base its decision upon it, this may result in some kind of injustice to the other party to the
case. Secondly, the person who perceived or who has first hand information about the facts in
issue is normally not available for cross-examination in court. Hence, the truth of the statements
cannot be guaranteed, proof beyond reasonable doubt in criminal case, may not be reached.
Thirdly, the person who has first hand information is not available in court in order to see his
demeanour in the witness box. Fourthly, the statements in question may not have been made
under oath when they were being narrated by the person with first hand information to the person
giving this evidence in court. These are some of the reasons, which affect the admissibility of
hearsay evidence.

Hearsay evidence is not every statement that emanates from a person other than the one who has
first hand information about the facts under discussion. Evidence becomes hearsay if the object
of the testimony is to make the court believe the narration and to base its decision on the
testimony in question. In Subramaniam v Public Prosecutor [1956] 1 WLR 965, the court said:

Evidence of a statement made to a witness by a person who is not himself called

as a witness may or may not be hearsay. It is hearsay and inadmissible when the
object of the evidence is to establish the truth of what is contained in the
statement. It is not hearsay and is admissible when it is proposed to establish by
the evidence, not the truth of the statement but the fact that it was made
.
See also R v L’Estrange [1964] Crim LR 462.

An example of testimony in court by a person other than the person who said or heard the words
in issue occurs in defamation cases, the object of this testimony is not to establish the truth of the
slander in issue, but to indicate to the court that the words complained of were actually made by

20
the accused. This is also true in testimony the purpose of which is to prove the existence of an
oral contract or the oral repudiation of such a contract and in those cases where it is sought to
establish whether or not seditious words were actually uttered or not.

Evidence may also be admissible in court even if it is being adduced by a person other than the
one that perceived of the facts in issue, if the object of adducing such evidence is to show
consistency with the evidence that is directly relevant to the case. This rule is particularly
important in sexual offences. In cases of rape and some other sexual offences, for instance, the
fact that a complaint was made by the complainant woman shortly after the alleged occurrence of
the offence, and particulars of the complaint, so far as they relate to the charge, may be given in
evidence by the prosecution. The complaint is evidence of the consistency of the conduct and
assertions of the complainant woman, and as being inconsistent with her consent. The judge
ought to direct himself that the statement is not evidence of the facts complained of, and it must
not be so regarded by him.
See R v Lillyman (1896) 18 Cox CC 346.
See also s. 232 of the CP & E Code.

There are a number of exceptions to the general rule, which prohibit is admission of hearsay
evidence in court. The general rule underlying the reception of this type of evidence is that it is
likely to be credible and reliable. Sometimes, this type of evidence is admissible on the ground
that the person or persons who are able to give first hand information cannot be produced in
court. In this regard, (i) informal admissions (ii) confessions, and (iii) res gestae evidence are all
admissible as exceptions to the hearsay rule on the ground that this type of evidence is more
likely than not to be true. On the other hand, statements or other evidence of person who cannot
appear in court for one reason or another such as death, illness, incapacity to give evidence
which has occurred subsequent to the commencement of the case, or pre-occupation with some
other tasks such as ins the case with medical personnel, is admissible on the ground of
expediency only.

4. Evidence that is Privileged

21
The general rule is that evidence that is privileged is not admissible in court for a number of
reasons. Under the Criminal Procedure and Evidence Code, SS 220-227 regulated the
admissibility of privileged evidence in this country. Privileged evidence may be grouped in
three broad categories as follows
:
(a) Private Domestic Affairs.
Communications between spouses during the subsistence of marriage are all privileged under the
terms of s. 220 of the CP % E Code. These domestic communications can only be given in court
at the free will of the spouses in concerned. This is so because the confidentiality of marital
affairs must be respected by the law. The law should respect the integrity of the family and
family affairs. However, where any such communication falls into the hands of a third party; the
courts of law will admit the communication in evidence.
See Rumping v DPP [1962] 3 ALL ER 256.

(b) Public Affairs

Evidence which impinges on state affairs or on the administration of justice by the courts
is privileged from disclosure. The object of S 221 of the code, which relates to state
affairs is to protect state interests such as those relating to confidential international
communications and matters which may relate to state security. If this type of evidence
were not privileged, its production, would in certain cases, would prejudice Malawi’s
relation with other states in trade, commerce and security. This, it is submitted, is the
main reason why ministerial records are all privileged in the sense that they may only be
tendered in court with the permission of the head of the ministry concerned.

As far as the administration of justice is concerned judges and magistrates on the one
hand informers on the other hand are protected by the law, under S 223 of the code,
judges and magistrates can only be compelled to answer questions relating to their
conduct in court as such judges or magistrates by a special order of a superior court. The
reason for this privilege is to protect these officers from possible prejudice in the
administration of justice. A judge or magistrate should not fear possible arrest and
prosecution for what he said in court in the course of his duty as this may prejudice his

22
handling of some cases before him. A judge or magistrate may however, be examined on
other matters that happened in his presence while he was acting as such judge or
magistrate. Likewise, under subsection 2 of section 223, informers are protected by the
law. A magistrate or police officer may not be compelled to disclose the name of the
person that informed him. If it were not that informers are protected, they would stop to
inform and this would have negative impact on the effective investigation of many cases.

( c ) Professional Affairs
Confidential communications between the client and his lawyer re protected from
arbitrary disclosure by SS 224-226. Under S 224, the only exceptions to this rule is
where the object of the communication between the lawyer and the client is to further an
illegal act. The reason for this privilege is that the law profession must maintain its
repute and integrity. Clients should feel free and to brief their lawyers and they must feel
confident that what has been so disclosed to a lawyer will not be the object of testimony
in court without the consent of the client and lawyer concerned. As against these positive
arguments, the exceptions would appear to be safeguards against the law profession being
used for furtherance of illegal purposes, which may be prejudicial to the public or even to
the entire state.
See R v Cox and Railton (1884) 14 QBD 153

Just like at common law, the privilege, which is offered to counsel and their clients under
s 224 continues even after employment has ceased. It also extends to interpreters, clerks
and other persons assisting the lawyer in question.
See Cateraft v Guest [1898] 1 QB 759

However, this continuation of the privilege relates only to matters, which had passed
between the lawyer and his client during the period of retainer ship and not those before
of those after this relationship.
See Greenough v Gaskell (1833) 1 M & K 98.

23
The lawyer client relationship can, in some cases exist independently of any retainer.
Matters passing between them would equally be privileged on the basis of professional
confidentiality.
See Minister v Priest [1930] AC 558 at 568.

Finally, under S 227 of the code, if any person is in possession of privileged documents,
then such person shall not be compelled to produce such documents without the consent
of the person who has authority to waive the privilege in respect of these same
documents.

24
 UNIVERSITY OF MALAWI

CHANCELLOR COLLEGE
Faculty of Law

III. Proof of Judicial Evidence.

The law of evidence is mainly concerned with proving the matter in issue or relevant to the issue.
Proof of the facts in issue or of relevant facts may be done in a number of ways. The two
principal ways in which this is done is: - 1. by testimony, 2. by inspection of real evidence and 3.
by other methods...

A. Testimony.
Testimony: This is the chief method of establishing facts. It consists of giving oral
evidence upon oath in open court by a competent witness who has personal knowledge of
the fact eh is deposing to this rules out unsworn evidence, out-of-court evidence and the
evidence of incompetent witnesses. It also rules out the evidence of witnesses who have
no personal knowledge of the fact deposed to.

There are exceptions to all these exclusions but as far as testimonial evidence is concerned, the
general rules re as laid out above.

2. Inspection.

(a) Real evidence - Proof of real evidence may take the form of inspection of objects, other than
documents, produced for examination by a tribunal of facts. For instance, a dog whose
disposition is in issue may be produced so that the jury or judge may form its impression abut it.

25
Non-portable objects and places may be viewed out of court by the tribunal of fact. The real
evidence, which emanates from viewing, is as much evidence as the testimony of witnesses and
provided that the matter is not a technical one where the assistance of expert witnesses is
required, the tribunal is entitled to prefer the impression gained from a view to the testimony of
witnesses.
See Buckingham v Daily News Ltd [1956] 2QB 534

Demonstrations and reconstructions are sometimes staged by witnesses both in court and at the
locus in quo
See Karamat v R [1956] AC 256

However, these demonstrations and reconstructions are not strictly speaking real evidence
because they are more in the nature of testimonial evidence. Testimonial evidence must be given
in the presence of a judge (and jury where it exists) and both parties to the case. It follows that a
demonstration or reconstruction, which is done not in the presence of all the parties concerned, is
irregular and indeed a fatal defect to the whole litigation.
See Tameshwar v R [1957] AC 476.

The same is not true of a view properly so called, where the locus in quo is inspected without any
demonstration. Although this ought ideally to be done with all the parties present, it need not be.
See Salsbury v Woodland [1970]1QB 324

Indeed, there is nothing to stop any judge or jury during an adjournment going off and looking at
the scene of the events in issue.
Tameshwar v R [1957] AC 476 at 481 (per Lord Denning, M.R.).

3. Mechanical Recording of Events or Places

This takes the form of taking of photographs or tape recording of sounds. This type of evidence
is also admitted, subject to proper verification. This category is probably a species of real
evidence.
See, The Statute of Liberty [1968] 1 WLR 739

26
 See also, Republic v Muwalo Nqumayo and Focus Gwede Crim Case No 1 of 1977 S.R.
RTC (Unrep)
Chitalo v. Malawi Congress Party and another Civil Cause No. 532 of 1993, HC
(unrep.).

4. Demeanour of Witnesses
Valuable inference can also be drawn from the demeanour of witnesses in giving evidence.
Comparisons may be made between a disputed and an admitted sample of the handwriting of
some person; or between the features of a child and the person alleged to be his parent.
See C v. C and C [1972] 1WLR 1335

Both at Common Law in England and at Customary law in Malawi, it is permissible to make
these comparisons in evidence.
See R v Thorner [1910] 1KB 346
See also Wallworth v Balmer [1966] 1WLR 16

B. Facts that do not require Proof.

The court is sometimes able to treat as established, facts, which have not been proved. One such
fact is where something is presumed in a party’s favour. Other cases are facts, which are
formally admitted by one of the parties to the case, facts, which are confessed, and facts of which
the court takes judiciary notice. Let us look at these one by one.

1 Format Admissions
Formal admissions are those, which are made expressly for a particular trial in order to save the
other side the trouble and expense of proving matters about which thee may be no real dispute.
It should be apparent that for the particular trial involved a formal admission is normally
conclusive and at common law, the party making a formal admission is not allowed at the trial to

27
withdraw his admission or seek to explain it away or contradict it by other evidence. However,
under S 183 of the Criminal Procedure and Evidence Code, a formal admission may, in some
cases, be withdrawn by the party making such admission. This section reads in part as follows:

“183 – (1) subject to this section, any fact of which oral evidence may be given in
any criminal proceedings may be admitted for the purpose of those proceedings
by or on behalf of the prosecution or the accused, and the admission of any such
fact under this section shall be conclusive evidence in those proceedings of the
fact admitted.

(4) An admission under this section may with the leave of the court be withdrawn
in the proceedings for the purpose of which it is made or any subsequently
criminal proceedings relating to the matter”

The terms of s. 183 (4) of the Code are a modification of the Common law and this is copied
from s 10 of the Criminal Justice Act, 1967 of England. Under s 183 (3) of our Code, an
admission for the purpose of proceedings relating to any matter shall be treated as an admission
for any subsequent criminal proceedings relating to that matter including any appeal, review or
retrial. These admissions can not however, be used as proof many other proceedings which are
unconnected with the Litigation in which they were made. Moreover, a formal admission, in
criminal proceedings, relating to the guilt of the accused, which is made in writing, must be
signed by the accused concerned. In Regina v Amidu [1923 – 60] AIR Mal 577, Spencer –
Wilkinson CJ quashed the conviction of the accused because the learned Chief Justice was not
convinced that the thumbprint on the admission sheet was that of the accused.

It is also said that silence (giving no answer) to a question in court by the accused, where an
answer is expected, may constitute an admission of the facts deposed to.

R v Christie [1914] AC 545

See also R v Cramp [1880] 14 Cox CC 390

28
It is, however, not in all cases that silence by the accused amounts to an admission. In Chiwaya
v Republic, [1966 – 68] AIR Mal 64, the court doubled whether, in the circumstances of that
case, silence by the second accused could lead to a conviction upon his own admission.

In civil cases, formal admissions may be made in a number of ways, including the following
ones:

(a) By pleadings: This may happen for instance, in an action for breach of
contract. Here, the defendant may admit the existence of the contract and its
breach, but he may plead minority, fraud or other defence. The plaintiff, in
any such case, need not give any evidence of his own allegations, because he
is relieved from doing so by his opponent’s admissions.

(b) In answer to a notice under Order 27 of the RSC - This notice calls on the
party to whom it is addressed to admit any specific facts or documents
mentioned in the notice. Since unreasonable failure to admit matters may
make the party in default liable to pay the costs occasioned by proving them,
such admissions re often made, thereby saving time and money. These
admissions are only available for the particular person giving the notice and
the cause affected by the notice in question.

(c) In answer to interrogatories: under the provisions of Order 26 of the RSC - A

party may with the leave of the court or a judge, deliver written interrogatories
to the other party before the trial. These interrogatories must be answered by
affidavit and the answers may be used at the trial against the party making
them. These may not, however be used for any other purpose than the trial
concerned.

See Riddick v Thames Board Mills [1977] QB 88

29
 (d) In correspondence or at the trial - Letters written by a solicitor or barrister in
the scope of his authority to act on behalf of his client, may contain formal
admissions which will bind his client and may entitle the other party to sign
judgement. Order 27 r 1 of the.KSC. At the trial itself, the party himself or
his solicitor or barrister or in the Malawian Case, Legal Practitioner, may
admit facts and so preclude the necessity to adduce and to prove evidence on
the matter. However, an admission made by counsel in interlocutory
proceedings is in the nature of an admission in answer to a notice to admit
facts discussed above. This may be withdrawn subsequently, on terms agreed
upon between the parties, provided the other party has not acted upon the
admission in issue, when in certain circumstances, an estoppel would arise.

H Clark (Doncaster) Ltd v Wilkinson [1965] Ch 694

See also in relation to the other points stated above the following cases
Urguhart v Butterfield [1887] 37 ch D 357
Ellis v Allen [1914] 1 Ch 904
Wright v Pepin [1954] 1 WLR 635
Warner v Sampson [1958] 1 QB 404

2 Judicial Notice.
When a court takes judicial notice of a fact, it finds that the fact in question exists although no
evidence of that fact has been given. There are many cases where this is enforced by the express
provisions of a statute, as is the case in Malawi, or by the settled practice of the courts. The
reason for these instances is that the fact is easily demonstrable by reference to a readily
available and authoritative source and it would be time wasting (and in certain cases highly
awkward) to insist on evidence of the fact. In Kampila v Rep. 1966-68 AIR Mal 320, Bolt J said:

There was a discrepancy between two prosecution witnesses about the time when
the alleged offence occurred. The former, the complainant, says it was at dawn,
whilst another witness said it was about midnight. I am of the opinion that this
discrepancy is of no great importance and considering the whole of the evidence I
am satisfied that the appellant was rightly convicted on both courts. I think I can
take judicial notice of the fact that in the month of September, dawn invariably

30
 occurs before 6:30 am, which is the time specified as separating burglary from
housebreaking. In other words, to be burglary the breaking must occur at night,
which is defined at S 4 of the Penal Code (Cap 23) as being the interval between
6:30 in the evening and 6:30 in the morning.

Many of the facts of which the courts in this country must take judicial notice are outlined in s.
182 of the CP & E Code. This provision is in the following: -

182 – (1) No fact of which the court or jury, as the case may be, will take judicial notice
need be proved.
(2) A court or a jury, as the case may be shall take judicial notice of the following:
(a) all acts and ordinances enacted or hereafter to be enacted and all
Acts of Parliament of the United Kingdom now or heretofore in
force in Malawi;
(b) all orders in council, laws, statutory instruments or subsidiary
legislation now or heretofore in force or hereafter to be in force in
Malawi;
(c) the course of proceedings of Parliament and of the legislatives,
assemblies, councils or other authorities for the purpose of making
laws and regulations established under any law for the time being
relating thereto;
(d) the accession to office, name titles, functions and signature of the
President;
(e) the accession to office, names, titles, functions and signatures of
the persons filling for the time being any public office in any part
of Malawi, if the fact of their appointment to such office is notified
in the Gazette;
(f) the seals of all the courts of Malawi duly established and all seals
which any person is authorised to use by any act or other written
law;
(g) the accession and signature of the Head of Commonwealth;
(h) the territories of the Commonwealth;
(i) the existence, title and national flag of every state or sovereign
recognised by the Government;
(j) the divisions of time, the geographical divisions of the world and
public holidays;
(k) the commencement, continuance and termination of hostilities
between the Government and any other state or body of persons;
(l) the names of the members and officers of the court and of their
deputies and subordinate officers and assistants, and also of all
officers acting in execution of its process and of all counsel and
persons authorised by la to appeal or act before it;
(m) the rule of the road on land or water.

31
 3. In all such cases and also on matters of public history, literature, science
or art, the court or jury, as the case maybe, may resort for its aid to appropriate
books or documents of reference.

4. If the court or jury as the case may be, is called upon by any person to take
judicial notice of any fact, it may refuse to do so unless and until such person
produces any such book or document, as it may consider necessary to enable it to
do so.

It will be noted from the foregoing provision that it is not exhaustive of the facts, which a court
may take judicial notice. It follows therefore, that matters, which are within the courts common
knowledge, may be judicially noticed. The court in Malawi should take judicial notice of our
national’s currency and of certain national events, which are commonly undertaken such as the
Republic Day Celebrations. The courts here are also supposed to take judicial notice that may of
our roads do not have robots. This means, in turn, that it remains with the individual drivers
whether or not to stop at a certain place depending on the density of traffic at that part of the
road. The subordinate courts, it is submitted, are supposed to take judicial notice of the
customary law prevailing in the area of jurisdiction. This is important particularly in cases of
civil law – such as family law – where the requirements for the contraction of a valid marriage at
customary law should be judiciary noticed by the court in its area of jurisdiction. Foreign
customary law, however, must be proved in court and no judicial notice of this law is taken by
the courts in Malawi.
See Kamcaca v Mkhota, 1966 – 68 AIR Mal 509 (per Bolt J).

English law on the point is very similar to that of Malawi. English courts take judicial notice of
a number of matters, which are commonly grouped into three categories. These are (a) legal
matters (b) constitutional matters and (c) matters of common knowledge.
(a) Legal Matters.
Under legal matters, English courts take judicial notice of the law of England, but not,
generally, of the law of other parts of the United Kingdom, the Commonwealth and
colonies. Neither do the English courts take judicial notice of the law of foreign
countries. The House of Lords, on the other hand, takes judicial notice of the laws of
England, Scotland and Northern Ireland. The judicial committee of the Privy Council
takes judicial notice the law of the territories from whose courts it hears appeals.

32
 (b) Constitutional Matters.
Under constitutional matters, judicial notice is taken of the following matters of public
administration:
(i) The sovereign and officers of state – the judges naturally take notice of the accession
and death of the sovereign whom they represent. They also take judicial notice of the
royal seal and other state seals. A royal proclamation may be noticed, probably on
production of a copy of the Gazette in which it is published. The courts further take
notice of the sovereignty of foreign rulers.
See Mighell v Johore [1894] 1 QB 149.
Duff Development Co Ltd v Govt of Kelanton [1924] AC 797
Sayce v Ameer Bahawalput State [1952] 2QB 797.

Judicial notice may also be taken of ambassadors and the other great officers of the state. This
is, however, done usually as information supplied by the secretary of state.
See Engleke v Musmann [1928] AC 433.

(ii) Parliament - The law and custom of Parliament are part of the law of England.
Thus, parliamentary procedure is within the ascertainable knowledge of the courts; and
the extent of parliamentary privilege as a defence to an action for libel has been judicially
noticed. Stockdale v Hansard (1839) 9A & E 1 at pp 112, 113, 194, 195. Judicial notice
does not, however, extend to the propriety of internal parliamentary procedure.

(iii) War – The courts have not failed to take judicial notice of a state of war to which
the United Kingdom is a party, including an early invasion by a hostile aircraft.

See Re a Petition of Right [1915] 3KB 649 at 658.

However, the date of particular engagements in the field can not be noticed. The continuance of
a state of war after the cessation of hostilities maybe certified by the Secretary of State, and this
will then be noticed.
See R v Bottvill [1947] KB 41

33
The state of war with Germany was terminated by order on 9 th July 1951 – See Re Gratrian
[1955] Ch. 501.

( c) Matters of common knowledge.

Thes are also noticed by courts in the United Kingdom. The courts will take judicial
notice of the days in the calendar, but not necessarily that a particular hour is after sunset.
See, R v Dyer (1904) 6 Mod 41.
– Harvey V Broad (1705) 6 Mod 148 at 159, 196.
– Collier v Nokes (1849) 2 Car & Kir 1012.

The meanings of certain words may be judicially noticed, but a dictionary may be consulted. It
is submitted that words like apartheid, Ayatollah, etc. may be judicially noticed in England under
this rule.

See Kerr v Kennedy [1942] IKB 409 at 413.

See also Baldwin & Francis Ltd v Patents Appeal Tribunal [1959] AC 663 at 684, 691.

When it is necessary a judge may refresh his memory on any judicially noticed fact by consulting
any ordinary books of reference or history or by accepting written or oral statements of
witnesses.
See, McQuaker v Guddard [1940] 1KB 687.
It has also been argued that knowledge may be commonplace or facts notorious in one century
but not in another. In the seventeenth century judicial notice was taken of the truth of a
statement that God governs the world.
See, Dacy v Clinch (19661) 1 Sid 52 at 53.

In the present century, the courts have noticed that the streets of London are dangerous to
cyclists. Courts have also noticed the course of nature, such as the improbability of human
gestation being completed in fourteen days. However, the House of Lords has declined to take
judicial notice of the impossibility of gestation taking a much longer time than is usual.

34
See, Preston-Jones v. Preston-Jones [1951] AC 391. (360 days gestation)

Judicial notice has also been taken of the fact that cats and camels are domestic animals and that
money has depreciated in value over the years.

3 Presumptions:
A presumption may be defined as a conclusion, which may or must be drawn in the absence of
contrary evidence. There are a number of presumptions in the law of evidence. The are normally
grouped in two categories. The first category is that of presumptuous of law. The second
category is that of presumptuous of fact. Let us look at these two categories in turn.

(a) Presumptions of law.

There are a number of important presumptions of law including, in particular, those
relating to marriage, legitimacy, death, regularity possession and res ipsa lognitur.
(i) Marriage
Two different presumptions of marriage exist. The first one is that evidence of marriage
ceremony raises a presumption that the parties to the marriage were validly married. This
means, in effect that the ceremony was the proper one required by the law and that the
parties had the necessary capacity to contract marriage. It should be noted that this
presumption refers to a statutory form of marriage. Case law in the Traditional Courts is
to the effect that there is no such presumption at customary law in Malawi.

See Khembo v Khembo, Civ App Cas No 16 of 1979 NTAC (unrep.

See also Manchichi v Manuel, Civ App Cas No 1 of 1979 NTAC (unrep)
Grant v Nyerere Civil App Case No 65 of 1973 NTAC (unrep)
See esp Tembo v Chirwa Civ App Case No 96 of 1977 NTAC (unrep).

35
The case of Piers v Piers (1849) 2HLC 331 illustrates the operations of this presumption at
common law. In this case, a marriage, which was celebrated in a private house without a licence,
was presumed to be valid. The case involved the formal validity of a marriage, but it is
established that the rules also apply to essential validity (i.e. capacity of the parties).

Rebutting this presumption, in civil cases requires proof of invalidity beyond reasonable doubt,
particularly where formal validity is concerned.
Mahadervan v Mahadervan [1964] P. 233.
As to essential validity, it maybe that a lesser standard is required and that some evidence of in
capacity, even if it is prima facie evidence only, will suffice to rebut the presumption.
Tweney v Tweney [1946] P.180.
For instance, if it is shown that a prior marriage was apparently valid and that it did not and
judicially, then this will be sufficient evidence to rebut the presumption of the present marriage’s
validity.
Gatty and Gatty v Att Gen. [1951] P. 444.
However, if the prior marriage is of doubtful validity, the presumption that the present marriage
is valid is left intact.
See Taylor v Taylor [1967] P.25.
In criminal cases, however, especially in bigamy prosecutions, where the crown is alleging a
valid first marriage, it seems clear enough that the accused need do no more than raise doubts as
to the validity, essential of formal of the earlier marriage.This is because he has the presumption
of innocence on his side.

The second presumption of marriage arises out of cohabitation. If a man and a woman live
together openly as man and wife, the law will presume that at some stage they went through a
valid marriage, i.e. that they are not living in a state of concubinage.

See Sastry Velaider Aronegary v.Sembecutty Vaigalle (1881) 6 App Cas 364

This is a strong, presumption, only to be rebutted by evidence of the most cogent kind. Thus in
Re Taplin [1937] 3 ALL ER 105, a man lived with a woman for 19 years. The birth certificates

36
of their children referred to a marriage in Victoria. That Australian State required registration of
a marriage for it to be valid, but no registration of any marriage could be found. It was
nevertheless presumed that the parties were validly married. In Elliott v Totues Union (1982) 57
JP 151, a man resisted a claim for maintenance for his children on the ground that he never
married their deceased mother. The presumption of a valid marriage was applied against him in
the face of his evidence, which was disbelieved.

Despite the fact that this presumption is strong, it does not work in the face of the presumption
of innocence. In a prosecution for bigamy, the prosecution can not use this presumption to prove
the earlier valid marriage in establishing the crime. The prosecution must bring evidence of an
apparently valid ceremony and that may rely on the presumption of the validity of marriage
considered above.
See Morris v Miller (1762) 4 Burr 2057.

(ii) Legitimacy.
At common law, there is a presumption that a child, proved to have been born during lawful
wedlock or during the period of gestation after its termination be death or divorce is legitimate.
The presumption applies although the husband and wife are living apart at the time of birth.
See, Ettenfield v Etterfield [1940] P.96.

It also applies even if proceedings for divorce have commenced. In Knowles v Knowles [1962]
p 161, the presumption of legitimacy was applied to a child who was born in the period between
decree nisi and decree absolute. However, where conception and birth takes place when thee is
force an order of judicial separation, the presumption does not arise. This is so because in this
case, the presumption is that the parties obeyed the order of the court and that they did not
cohabit in which case the child is illegitimate
Inter the Parishes of St George and St Margaret, Westminster (1706) 1 SALK 123

This presumption can only be displaced by strong, distinct, satisfactory and conclusive evidence
that no sexual, intercourse took place between the husband and wife at any time when, by such
intercourse the husband could have made her pregnant. The reason for this is that as much as

37
possible, it must be avoided to hold that the child is illegitimate except on the clearest possible
evidence. This is still the position in Malawi. However, by s. 26 of the Family Law Reform Act,
1969, the standard of proof required to rebut this presumption in England has been reduced. It is
now sufficient to show proof on the balance of probability that the child is illegitimate.

It is submitted that customary law in many parts of Malawi does recognise this presumption of
legitimacy. However, it is thought that a lower standard of proof will suffice to rebut this
presumption at customary law.
See, Mwangobola v. Mwangobola Civil Appeal Case No. 4 of 1980, NTAC (Unrep.).
Sandalamu v. Sandalamu

(iii) Death
The presumption of death arises where along period of time, normally seven years, passes
without seeing roe haring from the person who is presumed dead. The principles involved before
this presumption can be involved were stated in S v. Mc C [1972] AC 24. In this case, Lord Reid
said:

“Where as regards A there is no acceptable evidence that he was alive at some

time during a continuous period of seven years or more, then if it can be proved,
first, Act there are some persons who would be likely to have heard of him during
that period, secondly, that those persons have not heard of him and thirdly, that
all due inquiries have been made appropriate to the circumstances, A will be
presumed to have died at some time within that period”.

Under s.14 of the Divorce Act Cap 25: 24, it is recognised that a spouse may ask the court to
dissolve the marriage on the presumption that the other part is dead. In any such proceedings for
divorce, the fact that for a period of seven years or upwards the other party to the marriage has
been continually absent from the petitioner and the petitioner has no reason to believe that the
other party has been living within that time, shall be enough evidence that he or she is dead until
the contrary is proved.

The law under s.162 of the Penal Code also recognises the presumption of death after seven or
more years of continuous absence. This provision creates the felony of bigamy where a spouse

38
purports to contract a marriage while the previous marriage under the Marriage Act cap 25:01 is
still subsisting. The proviso to this section is in the following terms:
162 …

Provided that this section shall not extend to any person whose marriage with
such husband or wife (see first spouse) has been declared void by a court of
competent jurisdiction, nor to any person who contracts a marriage during the life
of a former husband or wife if such husband or wife at the time of the subsequent
marriage, shall have been continually absent from such person for the space of
seven years and shall not have been heard of by such person as being alive within
that time.

It follows from the above provision that a person who contracts a second marriage in the above
circumstances can not be convicted of bigamy. This is more than a mere presumption since it
enables the accused to be acquitted even if there is conclusive evidence that the former spouse
was alive at the relevant time as for instance, where he or she actually gives evidence at the trial.
See, R v Tolson (1889) 23 QBD 168
The law under s 20 of the Wills and Inheritance Act, (cap 10:02) should also be noted in this
respect. Where two or more persons have died in circumstances rendering it uncertain which one
of them survived the other one or others, there is no common law presumption, which would
resolve this uncertainty. However, for all purposes affecting title to property, there is a
presumption imposed by s.20 of the Wills and Inheritance Act, that the persons died in order of
age, the eldest dying first. The only exception to this presumption is as between spouses where,
for the purposes of succession, neither spouse is presumed to die first.

(iv) Regularity
The presumption of regularity applies mainly to judicial and official appointment and acts.
These appointments are presumed to be regular until the contrary is proved. This presumption,
however, is rebutted by quite slight evidence or irregularity. Nevertheless, this presumption is
very important because it removes the necessary for much formal evidence relating to the
appointment of personnel in public offices.

In this connection, judges, police officers and persons acting in the public service, in the
performance, of their duties in this country, are presumed to be validly appointed. It is also

39
submitted that as far as civil service appointments are concerned, publication of appointment in
the Government Gazette is in itself enough to bring into operation the presumption of regularity.
Therefore in any such case it would require strong evidence to rebut the presumption.

(v) Possession
The presumption here extends to possession of both real property and personal chattels. In cases
where it is doubtful which of the several occupiers or de facto possessors is in lawful possession,
it is a presumption of law that the one with the legal title is the one in lawful possession.
See - Ramsay v Margrett [1894] 2QB 18
Re Cohen(deceased) [1953] Ch 88

There is also a similar presumption that chattels found on land belong to the person with legal
possession of the land concerned.

See – South Staffordshire Water Co v Sharman, [1896] 2 QB 44.

It is submitted that these two common law presumptions would be acceptable to the courts in
Malawi.

(vi) Res Ipsa Loquitur

This presumption arises in tort cases, particularly in cases of negligence. In these cases, where
the plaintiff shows that he has suffered damage as a result of something which was under the
exclusive control of the defendant and that the event which caused the damage was something
which would not ordinarily have happened if proper care had been taken, than in the absence of
an adequate explanation by the defendant, the maximum res ipsa loquitur applies. This maxim
relieves the plaintiff from the necessity of offering further proof of negligence. The reason for
this is, realistically, that the fact of exclusive control of the operation by the defendant means that
in most cases it will be impossible for the plaintiff to show exactly how the accident occurred.
See McGhee v National Coal Board [1973] 1WLR 1 especially the judgement of Lord
Wilberforce
It has been said that res ipsa loquitur is not so much a doctrine of law, which dictates a particular
result to an action, but merely a phrase to describe what is no more than common sense.

40
 Lloyde v. West Midlands Gas Board [1971] 1WLR 749
Common sense says that it would be entirely unfair to fail to find negligence in this sort of case
in the entire absence of evidence in rebuttal.

(vii) Confessions.
Confessions that are made voluntarily by the accused in criminal cases are presumed to be true
until the contrary is proved. The mark rationale for this presumption is the belief that no person
will wilfully make a statement against his interest unless it is true. All confessions which are
voluntarily made are taken to be true as against the defendant himself and these will be accepted
by the court without any need for further proof.
See, R v Turner [1910] 1KB 346

It is however, important for the prosecution to show that a confession was made voluntarily by
the accused. At common law, confessions that are made involuntarily are not even admissible in
evidence at all. In Commissioner of Customer and Excise v Harz and Power [1967] 1 AC 760
Lord Reid said:
“As there is no statutory provision making these statements admissible in
evidence against the accused, I must now consider whether they were admissible
at common law. The appellant’s first argument was that relevant evidence is
always admissible, even where the prosecution obtained it by illegal means.
There is authority to that effect where the evidence is real evidence - some object
like a blood-stained knife which was only discovered because the accused was
compelled by illegal means to say where it was hidden. But that has no
application to confessions which for some three centuries have been held to be
inadmissible unless they are free and voluntary.

See also Ibrahim v R [1914] AC 599

The law under s.176 of the CP&E Code affects the weight to be attached to the evidence
(confessions) that is unlawfully obtained, It does not affect its admissibility in court. In this
regard therefore, it is submitted that in this country, the presumption that a confession voluntarily
made will be admitted by the court without proof is of even greater validity.

2. Presumptions of Fact

41
These are merely frequently recurring examples of circumstantial evidence. Where one fact
stands in such a relation to a second, that as a matter of logic, the second fact can be deduced
from the existence of the first, the first fact is said to be circumstantial evidence of the second.
Some of these fact situations occur over and over again, resulting in a tendency to list them in
books and to describe then 95 presumptions of fact. For example, it is said, that possession of
stolen goods is evidence of guilty knowledge. The law under s 329 of the Penal Code (Cap 7:01)
is as followa:-
‘Any person who is brought before a court charged with having in his possession
anything which may be reasonably suspected of having been stolen or unlawfully
obtained, and who does not given an account to the satisfaction of such court of
how he came by the same, shall be guilty of a misdemeanour.
The presumption of innocence does not arise in this case; it is upon the accused himself to prove
his innocence otherwise he is presumed to be guilty.
See Often Mgogodo v Rep Crim App Cas No 6 of 1989 HC (Lilongwe), (Unrep)
See also, R v Nulu [1923 – 60] AIR Mal 582 R
R v Hepworth of Fearnley [1955] 2 QB 600

It is also said that breakdown of a vehicle shortly after putting it on the road is evidence that it
was not roadworthy and that the destruction or concealing by a party of evidence is proof that
such evidence was unfavourable to him.

Another presumption of fact is that which states that a legally normal adult intends the natural
consequences of his acts. This presumption works to impute mens rea (guilty knowledge) where
the accused seems having had the intention to commit the crime alleged.
See, DPP v Smith [1961] AC 290

3. Rules of Law expressed as presumptions.

There are rules of law, that are known as presumptions such as those which state that every man
is presumed to be sane until the contrary is proved; or that a male person below the age of
fourteen years cannot commit the felony of rape. For example, s, 11 of the Penal Code provides
as follows:-

42
 “Every person is presumed to be of sound mind and to have been of sound mind
at any time which comes in question until the contrary is proved.

In R v Waite [1892] 2QB 600 the court said:

The rule at common law is clearly laid down by Lord Hale that in regard to the
offence of rape, a boy under fourteen is under a physical incapacity to commit the
offence.

These are rules of substantive law and not rules of evidence at all. They neither fall under rules
of evidence that are described as presumptions of law nor those that are described as
presumptions of fact. In as much as they are rules of substantive law, the courts in this country
are supposed to apply them just like any other rule of law may be applied.

43
 UNIVERSITY OF MALAŴI

CHANCELLOR COLLEGE
Faculty of Law

IV. Means of Proof of Judicial Evidence.

A. Oral Testimony.
1. Summoning of Witnesses.
This type of evidence is given by witnesses who must appear in court to testify. In criminal
cases, the complainant becomes the prosecution witness on behalf of the state. Other witnesses
may also be called to testify on behalf of the state if their evidence is necessary and relevant to
the case before the court. The defence is also entitled to call witnesses who may also testify on
behalf of the accused. The state ahs general powers to summon witnesses to court to testify
under the provision of s.195 of the C P & E Code,. This provision is in the following terms:-

“195. If it is made to appear that evidence material to any criminal cause or

matter before, or pending before, any court can be given by or in the possession
of, any person, it shall be lawful for a police officer of the rank of Assistant
Superintendent or above, or the Registrar of the High Court, or the Magistrate
having cognisance of such cause or matter, to issue a summons to such person
requiring his attendance before such court in requiring him to bring and produce
to such court for the purpose of evidence all documents and writings in his
possession or power which may be specified or otherwise sufficiently described in
the summons”.

The summons for this purpose is issued in the prescribed FORM XVII which is in the following
terms:

44
 REPUBLIC OF MALAWI
Resident Magistrate’s

In the Court at …………………………..

………………………………………………………………Grade Subordinate
Case No …………………………………. of …………………. 20 …………….

The Republic versus …………………………………………………

SUMMONS TO A WITNESS
(SECTION 195 OF THE CRIMINAL PROCEDURE AND EVIDENCE CODE)

To: …………………………………………………………………………………
Whereas complaint has been made that ……………………………………… of
……………………...............has committed the offence of ……………………….
You are hereby summoned to appear before this court on the …………………….
Day of …………………………………. Next at ……………………….O’clock
In the ……………………………………………….. noon to testify what you know
concerning the matter of the said complaint, and so on, from day to day until the trial be
concluded.

Given under my hand and the seal of the court, this …………………….. day of
…………………. 20 ……………………………………………………………

(Seal) (Resident) Magistrate

Police Officer

 Only Police Officers of the rank of Assistant Superintendent or above may issue a
summons to a witness

45
A witness who does not come to court in answer to the summons specified above may be
compelled to do so under the provisions of s.196 of the CP & E Code. This provision is in the
following terms:
196. If, without sufficient excuse, a witness does not appear in obedience to the
summons, the court, on proof of the proper service of the summons
reasonable time before, may issue a warrant to bring [ ? ] and place as shall
be therein specified.

This warrant is issued in form XVIII and is in the following terms:

REPUBLIC OF MALAWI
Resident Magistrate’s
In the ……………………………………………………………. Court at ………
……………………………………………………….. Grade Subordinate
Case No ……………………………………………. of ………………. 20 ……...

WARRANT TO COMPEL ATTENDANCE OF A WITNESS

(SECTION 196 OF THE CRIMINAL PROCEDURE AND EVIDENCE CODE)

To all Police Officers of the ………………………………………… District

Whereas ……………………………….. of ……………………… was duly
Summoned to appear before this court on the ………………….. day of ……….
20 ……………………….. to give evidence at the trial of the above-mentioned case, but
has failed, without sufficient excuse shown to the court, to appear in obedience to the
summons.

This is to authorise you to arrest the said ………………………………. And bring

him/her before this court on the ……………………………. Day of ……….
Next to be examined regarding the said case. Given under my hand and the seal of the
court, this …………………………. Day of ……………………. 20 …………. ……..

(Seal) (Resident) Magistrate

46
If the witness is arrested under the above warrant, the same may be detained for production at the
trial or he may be released on bail, (s.198). The court has also powers under s 197 of the Code to
issue a warrant of arrest without first issuing a summons. The law provides as follows:

197. If the court is satisfied by evidence on oath that such a person will not attend
unless compelled to do so, it may at once issue a warrant for the arrest and
production of the witness before the court at a time and place to be therein
specified.

This production of a witness is done following the terms of Form XIX which is in the following
terms:-
REPUBLIC OF MALAWI
Resident Magistrate’s

In the ………………………………………….. Court at …………………………

…………………………..…………………………. Grad Subordinate
Case No …………………………………….. of 19 ……………………………

The Republic versus …………………………………………………….

WARRANT TO COMPEL ATTENDANCE OF A WITNESS

(SECTION 197 OF THE CRIMINAL PROCEDURE AND EVIDENCE CODE)

To all Police Officers of the ………………………… District

Whereas complaint has been made that ………………………………………. of
………………………… has committed the offence of ………………………….. and it
has been made to appear that …………………………. of ……………….
can give evidence concerning the said offence;

And whereas the court is satisfied by evidence on oath that the said ……………...
will not of his/her own accord attend as witness on the hearing of the said complaint.

47
This is to authorise you to arrest the said ………………………………. And bring
him/her before this court on the ……………………………. Day of ……….
Next to be examined regarding the offence complained of. Given under my hand and the
seal of the court, this …………………………. Day of ……………………. 20 ……..

(Seal) (Resident) Magistrate

The court has additional powers, under s.199 of the Code, to issue a production order in respect
of a person required to testify if such person is currently serving a prison sentence. This order
will be forwarded to the officer in charge of the prison requesting him to deliver the required
person for examination.

The terms of s 200 of the Code provide penal sanctions in respect of a witness who fails to attend
the court to testify without reasonable excuse. The sanction extends to a witness who, having
attended the court, departs without having obtained the authority of the court. This section
provides as follows:

200(1)-Any person summoned to attend as a witness who without lawful

excuse, fails to attend as required by the summons, or who, having
attended departs without having obtained the permission of the court, or
fails to attend after adjournment of the court after being ordered to attend,
shall be liable by order of the court to a fine of £20.
(2) Such fine shall be levied by attachment and sale of any movable
property belonging to such witness.
(3) In default of recovery of the fine by attachment and sale, the
witness may, by order of the court, be imprisoned as a civil prisoner for a
term of fifteen days unless such fine is paid before the end of the said
term.
(4) For good cause shown, the High Court may remit or reduce any
fine imposed under this section by a subordinate court”.

However, before this penal provision is applied, evidence to establish the fact that the summons
was issued and served and the subsequent failure by the person to attend is required. This is not
the case where the person admits that he failed to attend without good reasons. At any rate,

48
before the court makes its order in this respect, the witness should be given a hearing to show
why he should not be punished for his failure to attend the court as a witness after being
summoned.
See, R v Mafiyo 1971 – 72 ALR Mal 20.

2. Presence of Witnesses in Court

Once witnesses have been summoned to court and before they testify, the usual practice is that
they must be kept out of court until their turn comes to enter the court and give testimony. The
reason for this is to avoid the prior testimony of other witnesses to influence the testimony of
later witnesses. However, there is no rule of law requiring a witness to be outside the courtroom
before he testifies. Hence, his competence to testify is not affected once it is discovered that he
is actually inside the court before it is his time to enter a witness box. It is even said that one of
the advantages of allowing a witness to remain in court before testifying is that he can form his
own impressions abut the testimony of earlier witnesses. He can also give reactions to this
earlier testimony, which any affect the weight that the court is going to attach to the testimony in
issue. In Rep. v Biston 1973 MLR 47, the court quoted with approval a statement by Edmund-
Davies LJ in Moore v Lambeth Country Court Registrar [1969] 1 ALL ER 182 which is in the
following terms:
I deal first of all with the complaint that natural justice was violated by witnesses
being allowed to remain in court and thus in the sight and hearing of other
witnesses as they gave their evidence. Mr Moore says that that is so gross a
departure from natural justice that the finding ought to be quashed. But there is
no rule of law about this matter ….. No rule of law requires that in a trial the
witnesses to be called by one side must all remain out of court until their turn to
give testimony arises. This is purely a matter within the discretion of the court.
Indeed if the court rules that witnesses should be out of court and a witness
nevertheless remains inside, which the trial judge may well express his grave
displeasure over such disobedience, he has no right to refuse to hear the evidence
of such a witness. An authority not quite on those lines but nearly so, is to be
found in Rex v Briggs (1930) 22 Cr App Rep 68. Whether or not witnesses are to
remain in court being solely a matter of discretion, judges vary upon that as upon
many other matters. If I may be purely personal for one moment, my own
preference in cases which, if not actually arising under the criminal jurisdiction,
yet, like contempt proceedings are certainly on the fringe or savour of a criminal
prosecution, is for the witnesses to be out of court. But I know other judges who
take exactly the opposite view, they prefer the witnesses to remain in court so that
they may observe their reaction when they hear the evidence of other witnesses.

49
 It cannot rightly be said that, witnesses are allowed to remain in court, justice
cannot be done and I reject that ground of complaint”.

It is submitted that this is the position of the law and practice on this matter in Malawi as well.
In Rep. v Nzima 1966 – 68 ALR Mal 263, the court said:-
Where there has been exclusion of witnesses by order of the court the better
opinion now seems to be that the judge has no right to reject the testimony of a
witness who has remained in court after an order to withdraw …… This is subject
to observation as to his conduct, which could affect weight but not competence.
Moreover, in the absence of an order, it seems that a witness may remain in court.
The magistrate, therefore, exceeded the general practice in ruling that the witness
was disqualified. This could hardly prejudice the convict, the witness being for
the prosecution”.

It should be noted, however, that the in criminal cases, the usual practice is to order that
witnesses should remain outside the courtroom until it is the turn of the particular witness to
testify.

3. Oath and Affirmation

In judicial proceedings, the testimony of a witness is not admissible unless he has been sworn to
tell the truth before the court. The only exception to this rule is in respect of the unsworn
testimony of children, which is admissible notwithstanding the fact that no oath or affirmation
has been administered.

The power to administer oaths, affirmations and declarations is contained in the Oaths,
Affirmations and Declarations Acts, cap 4:07 of the Laws of Malawi. Under s 2 of this
Act, in addition to witnesses in the case, interpreters and assessors must also make an
oath of their functions in court. The terms of s. 4 of the Act stipulates that the following
persons shall be commissioners for oaths, i.e. may administer an oath for the purposes of
carrying out the functions under the Act:-
1. legal practitioners holding a practicing licence;
2. Magistrates;
3. Professional Officer or Administrative Officer;

50
 4. Persons appointed Commissioners for Oaths under any other
written law;
5. Persons who the minister may, by notice appoint to be
Commissioners for Oaths.
Under s.6 of the act, before administering an oath to a witness or other person, he must
be asked whether or not he believes in the Almighty God and if so whether or not he
agrees to take an oath. It is only when answers to these two questions are in the
affirmative that an oath shall be administered. The hand of the person making an oath
shall be uplifted. In all other cases, such a person may be required to affirm.

The form of an oath to be taken, which is in the Second Schedule to the Act, is in the following
terms:
“I swear by Almighty God that the evidence I shall give be the truth, the whole
truth and nothing but the truth”.
On the other hand, the form of an affirmation is in the following terms:
I do solemnly, sincerely and truly declare and affirm that the evidence I shall give
shall be the truth, the whole truth and nothing but the truth”.

The significance of swearing or affirming in judicial proceedings is that any person who makes a
false swearing or affirmation commits a criminal offence under s.106 of the Penal Code. In
addition to this, giving fake testimony in court having been sworn or having affirmed amounts to
perjury. This is an offence under s.101 of the Penal Code. It is punishable by seven years
imprisonment under s. 104 of the Penal Code..
See Rex v Kwangwala 1923 ALR Mal 184
Regina v Wisale 1923 – 60 ALR Mal 554

4. Competence and Compellability of Witnesses

Competence: this refers to physical and mental capacity to testify in court as a witness. As a
general rule, all persons are competent to give testimony as witnesses as so long as they are able
to understand right and wrong and then need to tell the truth. Hence, under s. 210 of the CP & E
Code, certain persons are not competent to give evidence in court on account of being prevented
from understanding the questions put to them or from giving rational answers to those questions

51
by reason by immature age or extreme old age, disease whether of mind or body or any other
cause whatsoever. In summary, it may be noted that children of tender years, persons or extreme
old age and insane persons or other persons affected by disease are incompetent to testify in
court. However, this observation is subject to exceptions, which must now be examined.

(a) Immature persons

It is said that persons who are of immature age are those that are less than 14 years old. The
court is interested to know whether such a person can give sworn whether such a person can give
sworn testimony and a voir dire examination is performed to establish the mental development of
the child. If the child gives rational answers and is able to testify as to his beliefs, then he may
be allowed to swear or to affirm as the case may be and then to proceed to give evidence on oath
just like any other witness. If, on the other hand, the child is unable to comprehend the world
around him in full but is rational enough to testify, he may be allowed to give unsworn testimony
in court. However, unless a voir dire examination is performed, the court cannot satisfy itself
that a child is competent to give unsown testimony.
See, Makhanganya v R .1961 – 63 ALR Mal 491.

In Rep. v Tarakinyu Conf. Cas No 213 of 1977, HC (unrep) the court doubted whether a child of
5 years was intellectually old enough to give testimony in court.

Where the court proceeds to record evidence from a child who is too young to be sworn or to
affirm, the magistrate must put it on record that despite immaturity, the child possesses enough
intellectual power to testify in court.
See R v Magombani 1964 – 66 ALR Mal 397.

The law under s. 6 (2) of the Oaths, affirmation and Declarations Act states that where evidence
is received from a child but who is intellectually under-developed to be sworn or to affirm, then
the court cannot convict the accused on this evidence alone unless there is corroborative
evidence implicating the accused.
See Jackson v Rep 1971 – 72 ALR Mal 440
See also Nyirenda v Rep 1973 MLR 182.

52
At common law, evidence on oath from a child need no corroboration before conviction. The
court should, however, record a warning of the danger of convicting on such evidence without
corroboration.
See, Idana v R [1964 – 66] ALR Mal 59.

(b) Persons Affected by Disease

If a person affected by disease or other infirmity is unable to give rational answers, then such a
person is not competent to testify in court. The law under s 211 of the CP & E Code makes dumb
persons competent to testify in that they may give testimony by way of signs or writing and the
court receives such evidence as oral evidence. This type of infirmity does not, therefore, affect
the competence of a witness to testify in court. On the other hand, the mental state of a witness
may affect his competence to give evidence. If a person is insane within the M’naghten Rules at
the time when material evidence may have been made available to him and at the time when he
is supposed to take an oath, then such a person is clearly incompetent to testify. In Reg v Samuel
Hill, (1981)52 Cox CC 251, the witness who was a lunatic, was allowed to testify at the
homicide trial. This was so because his delusions did not impair his competence to give
testimony. In this particular case, which was wholly dependent on the evidence of a Richard
Donnelly, a lunatic the foreword to the Report reads as follows:
“A lunatic is admissible as a witness if he have sufficient understanding to
apprehend the obligation of an oath and to be capable of giving a correct account
of the matters which he has seen or heard in reference to the question at issue.

Whether he has such sufficient understanding is a question to be determined by

the judge at the trial, upon examination of the lunatic himself, and any competent
witness who can speak to the nature and extent of his insanity.

It is submitted that the position is the same as above in Malawian courts subject to the important
requirement that the magistrate or other person administering the oath must satisfy himself that
the lunatic in question can rationally testify as to his beliefs and that he understands the nature of
an oath.

(c) Accused Persons:

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The accused person is a competent and compellable witness to testify on behalf of the defence
under the provisions of s.256 of the CP & E Code. This provision states, in part as follows:
When the court is satisfied that the defence should proceed then, after such
address if any as the accused or his counsel shall elect to make at the opening of
the case, the accused shall, from the witness box, or such other place as the court
may see fit to direct, and upon oath, give his evidence and answer any question or
produce anything lawfully put to or required of him by the court or in cross
examination.

It is in fact usual practice that where the accused is not represented by counsel, he has to enter
the witness box alone to testify on behalf of the defence. The accused is not suited to testify on
behalf of the prosecution because doing so would e testifying against his own cause.

(d) Accomplice
The terms of s.242 of the CP & E Code makes an accomplice a competent and compelled
witness to testify on behalf of the prosecution. The established practice, however is that where
such an accomplice is made a party to the proceedings, he should not be called to testify. If it is
sought to rely on the evidence of the co-accused in establishing the prosecution’s case, this
should only be done after the proceedings against him have finished or have been discontinued.
See, R v Conti [1973] 58 Cr App Rep 387
R v Tomey [1909] 2 Cr App Rep 329
R v Payne [1950] 1 ALL ER 102
Karim v Rep 1966 – 68 ALR Mal 601.
This is necessary in order to avoid the co-accused to colour his evidence in order to incriminate
someone else and in consequence avoid responsibility himself.
See, Banda v Rep 1966 – 68 ALR Mal 336.

(e) Married Persons

The rule at common law was that a spouse is not a competent witness for the crown. This was so
because of the unity of personality between spouses at common law.
See R v Mount (1834) 1 QB 279
R v Algar [1954] 1 QB 279

54
There were a few exceptions to this rule at common law. These related to treason, forcible
marriage and to cases of assault by the husband on his wife.
See, R v Lord Mayor of London (1886) 16 QBD 772
R v Wakefiled (1827) 2 Lew CC 279
R v Verolla (1963) 1 QB 285
The reason for these exceptions was that if it were otherwise, there would be no way in which
the crown would prove these offences once they were committed in secret between the spouses
alone. However, under s.194 of the CP & E Code here in Malawi, married persons are rendered
competent and compellable witnesses both for the prosecution and for the defence. This must be
held to be an afortion case in respect of spouses married at customary law in this country.

5. Compellability of Witnesses.
The general rule is that anyone who is competent is also compellable to testify. There are,
however, a few exceptions to this general rule. First, the sovereign is not compellable to testify
before his own courts as a witness in any proceedings. Likewise, foreign sovereigns are not
compellable to testify. Diplomatic agents in this country are not compellable to give evidence
under the provisions of Article 31 (2) of the Vienna Convention on Diplomatic Relations of 1961.
This is made law in Malawi by virtue of the Immunities and Privileges Act, Cap 16:01 of the
Laws of Malawi. It has also been held that an expert who has no knowledge of the facts in issue
cannot be compelled to attend and give his opinion on the facts on which an opinion to sought.
See, Seyfang v Searle & Co [1973] QB 148
Another important category of non-compellable persons are those that are covered by privilege.
The law under s.222 of the CP & E Code provides that a public officer is not compellable to
testify on matters that are within his knowledge if he considers that the public interest would
suffer by the disclosure. In Raichara Ltd v Sondhi [1967] EA 624, the court in East Africa which
was dealing with this same privilege stated that the privilege relates to official communications
made to a public officer from an official source. It was further stated that having claimed the
privilege, the officer may be required by the court to explain the circumstances in which the
claim is made. Likewise, judges and magistrates, lawyers and clients are entitled to marginal
privileges relating to their work. They cannot be compelled to testify in court once the privilege
is successfully claimed.

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 6. Examination of Witnesses
The trial as such involves examination of witnesses and this process takes three distinct steps.
These are (a) examination in chief, (b) cross examination (c) re-examination. The process of
examining witnesses is done after the preliminaries of calling and swearing in witnesses have
been completed. A witness who refuse to be sworn or, having been sworn refuses to answer any
question put to him or to produce any document or thing required of him, may be treated as a
refractory witness under s.202 of the CP & E Code. The magistrate is empowered to adjourn the
proceedings and to order that the said witness be committed to prison for up to eight days at a
time unless he sooner complies with what is required of him.
cf Rep v Mpando 1971 – 72 ALR Mal 326.
It would also be in order to treat such a witness as being in contempt of court and to prosecute
him for this offence under s.113 of the Penal Code. Contempt of court is also committed where
the behaviour of the witness in or outside court or indeed the behaviour of any other person is
calculated to lower the reputation of the Court.
See, Osman v Rep 1946 – 66 ALR Mal 1595
Such a person may be dealt with summarily under S 113 of the Penal Code and may be fined a
maximum amount of MK140 or in default of payment, six months jail without hard labour. All
these contempt proceedings will precede the rising again of the court in the main case in which
the contempt was committed and this second rising of the court may be done on the same day.
See, Chizumula v Rep Cr App Cas No 27 of 1974 HC (Unrep).
It should be noted that no every act of disrespect or dishonour to the court will amount to
contempt. Where the accused refused to plead to a charge of theft upon which the trial court
proceeded to convict him of contempt, the magistrate was held to have erred in so doing because
he was instead supposed to enter a plea of not-guilty and then to proceed with the trial.
See, Rep v Charley Conf Cas No 689 of 1981, HC (Unrep)

(a) Examination in Chief.

The law on this point is contained in S 214 of the Criminal Procedure and evidence Code. A
witness who is giving evidence may be examined by the party calling him and the subject of this
examination is to bring to light those facts that are within the personal knowledge of the witness

56
but which assist the case of the party calling him. The aim of a witness testimony is to tell the
court what that witness perceived with his own senses. Hence, on this basis, the general rule
under S 218 of the code is that leading questions in criminal cases may not be asked when the
witness is being examined in chief except where the court so permits. This is aimed at avoiding
the possibility of a witness giving affirmative or negative answers merely for the purposes of
satisfying the question, since the answer to the question is already suggested by the question
itself (s 217 of the code). Leading questions are also generally not allowed in order to check
collusion between the examiner and the witness on those matters, which the two may have
discussed and agreed upon before.

It may also happen that when a witness is testifying and before he is examined by the party (or
person) who called him, he the witness gives evidence is clearly biased against the person that
called him as a witness. He may also be unwilling to tell the truth in court as may occur when a
witness said one thing to a police officer outside the court (i.e. extra-judicially) and then he says
another thing in court that is inconsistent with what he had said to the police. Such a witness
may be treated as a hostile witness by the person that called him. Under S 230 of the code, the
court may allow the person who called the witness to ask the witness in question those questions
that are normally asked by the opposing party in cross-examination. These may be leading
questions such as: “Is it really true that Dalitso was at the scene of the crime? Or “Did you
really see me steal the maize in the garden? He may also be asked and challenged with regard to
this means of knowledge of the facts to which is deposing and his memory and perception may
be tested and challenged. The aim of these questions now is to impeach the credibility of the
witness and to show the unreliability of his testimony.

In English law, a person is not a hostile witness merely because he gives evidence which is
unfavourable to the person who called him. Bias in the testimony or prejudice in what he is
saying must be established.
See, Ewer v Dunbrose (1825) 3 B & C 746.

57
It must be stressed that where a party is granted leave to treat a witness as a hostile witness, the
object of the examination, which follows is not to prove the truth or falsity of the testimony of
the witness, but to show the court that the witness is one that cannot be relied upon.
Karuja v Rep Cr App No 125 of 1976 HC (Unrep)
R v Richard 1961 – 63 ALR Mal 1
Magomba and Phiri v Rep Crim App No 204 of 1980 HC (Unrep).
It is then up to the court whether to accept or to disregard the testimony of the witness.
See Karima v Rep 1966 – 68 ALR Mal 601.

(b) Cross-Examination.
This is the hostile questioning of the witnesses called by another party to the case. When a
witness has been called and sworn by any party, any other party ahs the right, if the examination
in chief has been closed, to cross-examine him. Failure to allow this cross-examination is a
substantial failure of justice.
See, Blaise v Blaise [1969] P. 54.
It is also said that the party has this right even if the witness has not given evidence against the
party cross-examining.
See, R v Hilton [1972] 1 QB 421.
It is not necessary that the evidence in chief should be given against the cross-examining party.
The principle is that any witness may be cross-examined by any party who did not call him.
See Murdock v Taylor [1965] AC 574 at p 584
See also Re Baden’s Deed Trusts [1967] 1 WLR 1457
R v Hilton [1972] 1 QB 421.
However, a witness called merely to produce a document or to be identified cannot be cross
examined, nor can one who has been called by mistake and whose examination has not
substantially begun.
See Clifford v Hunter (1827) 3 C & P 16
See also, Wood v Mackinson (1840) 2 M & R 273.

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Likewise, a witness called by the judge or recalled by the judge after he has testified can only be
cross-examined with the leave of the judge concerned. Unless the judge gives leave, cross-
examination follows immediately after examination in chief.
See Betagh v Betagh (1824) 1 Hog 98.
Cross examination is a powerful and valuable weapon for the purposes of testing the accuracy
and completeness of the witness story. It is not confined to matters proved in chief, but may
embrace all facts which are in issue or relevant to the issue. It may also extend to those matters,
which, though otherwise irrelevant, tend to impeach the credit of the witness. Leading questions
may also be asked but the witness must not be misled by indecent or scandalous questions. The
judge ahs a discretion to disallow any question, which he considers to be improper or oppressive.
See R v Flynn [1927] Crim LR 438
See also ss. 215(4) and 215(5) of the CP & E Code.
There are two main aims of cross-examination. These are to elicit evidence that is favourable to
the examiner’s case, and to cast doubt on the witness’s evidence-in-chief. These are two quite
separate objects and as far as the first object is concerned, the normal rules of evidence apply just
as in examination in chief. Just as a witness is normally not allowed to give hearsay evidence-in-
chief, so his is not to be invited to give it in cross examination.
See, R v Thompson [1912] 3 KB 19.
Likewise, as the prosecution cannot ask its own witness about an inadmissible confession made
by the accused. It cannot cross-examine the accused or his witnesses about such a confession.
See, R v Treacy [1944] 2 ALL ER 229
cf R v Rice [1963] 1 QB 857
R v Yoursry [1914] 11 Cr app Rep 13
R v Tompkins (1978) 62 Cr App Rep 181

In R v Treacy [1944] 2 ALL ER 229, the court said that: “It is a complete mistake to think that a
document which is otherwise inadmissible can be made admissible evidence simply because it is
put to the accused person in cross-examination”.

However, when pursuing the second object of cross-examination, which is to impeach the
witness’s credibility, relevance and hearsay are largely ignored. Questions may be put to him in

59
order to elicit his means of knowledge, opportunities of observation, reasons for recollection or
belief, and any special circumstances affecting his ability to speak to the particular case. The
witness may also be asked questions with the aim of exposing his errors, omissions,
inconsistencies or improbabilities in his story. He may also be asked to prove his character,
associations and mode of life. The only limitation placed on the power to examine a witness
under this second object is the discretion of the judge to exclude any questions, which he
considers improper or offensive. The judge should be in overall charge of the proceedings in
court and where the accused is being cross-examined, he has the right of silence in respect of
certain matters under s.193 (2) of the CP & E Code. This section provides in part as follows:
193 – (1)
(2) An accused called as a witness in pursuance of this section …..,
(a) may be asked any question in cross-examination
notwithstanding that it would tend to incriminate his as to
the offence charged;
(b) shall not be asked, and if asked shall not be required to
answer, any question tending to show that he has
committed or been convicted of or been charged with any
offence other than that therewith he is then charged, or is
of bad character…..

The right of silence is lost in a number of situations including where the accused has himself or
by his counsel asked questions of the witnesses for the prosecution with a view to establishing
his won good character, or has given evidence of his won good character, or the nature or
conduct of the defence is such as to involve imputations on the character of the complainant or
the witness for the prosecution. When this happens, the accused may be cross-examined on his
character generally and not necessarily on his character in respect of the offence charged.
See R v Winflied [1939] 4 ALLER 164
Stirland v DPP [1944] AC 315
R v Samuel [1956] 50 Cri App R 8.
The rationale for this type of cross-examination was outlined by Lord Pearce in Selvey v DPP
[1970] AC 304. According to him, the justification.
“…. Is the ‘tit for tat’ argument … if the accused is seeking to persuade the jury a
knave, then the jury should know the character of the man who makes the
accusations, so that it may judge fairly between them instead of being in the dark
as to one of them”.

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However, there is a judicial discretion to prohibit cross-examination under this exception even if
it is a rule of law.
See, Phiri v R 1923 – 60 ALR Mal 703.
The accused, particularly if he is unrepresented, should be warned by the magistrate as soon as it
is clear that he is asking questions of such a nature that eh may expose himself to the risk of
cross-examination as to character.

( c) Re-examination.
Whatever there has been cross-examination, even upon inadmissible matters, the right to re-
examine exists under s.214 (6) of the CP & E Code. Re-examination in general follows the same
rules as examination-in-chief. It must, however, be confined to an explanation of matters arising
in cross-examination, and no new facts may be introduced without the leave of the judge. For
this reason, distinct matters that are introduced for the first time in Re-examination are
inadmissible, without the leave of the court.
See, Price v Samo (1838) 7 A & E 627.
This rule is only subject to the overriding discretion of the court to permit new matters in re-
examination, in which case the other party can again cross-examine the witnesses on these new
matters.
See, s. 214 (6) of the CP & E Code

Asking leading questions is generally not allowed in re-examination. However, the court may
permit that these questions be asked. Re-examination follows the last cross-examination on the
witness where the same is cross-examined by more than one person.

B. Documentary Evidence
If a party wishes to rely on a document, the court will often need to be assured that the document
was made by the person who is alleged to have made it. Hence proof of its execution, will be
required. In most cases, the terms of the document will be relevant in that the proof of its
contents will be required. The normal rule is that production of the original document is
necessary although there are many exceptions to this rule. The meaning of the document may be
often in issue. This will raise the question of how far the court may use for this purpose any

61
evidence other than the document itself; .namely, extrinsic evidence. The rules of documentary
evidence apply mostly in civil cases as where parties are relying on the terms of the contract in
order to prove their case. In criminal cases, much of the law relating to documentary evidence is
contained in the Criminal Procedure and Evidence (Documentary Evidence) Rules made
under s.245 of the CP & E Code. Instead of the term ‘original document’, these Rules employee
the term ‘primary evidence’ to distinguish it from secondary evidence. Rule 3(4) states that
documentary evidence must be proved by primary evidence. This means that secondary
evidence, which is also defined under this rule, may be given as an exception to the general rule
stated above where primary evidence cannot be produced in court.
See Rule 3(5) of the CP & E (Documentary Evidence) Rules.

This may be because the original has been lost or destroyed. However, due execution and where
the document is lost, search, must first be proved to have taken place.
See, Brewster v Sewell (1820) 334 AC 296.
It may also be that the production of the original is physically impossible or highly inconvenient,
for instance, in the case of tombstones, inscriptions on walls, etc.
See, Mortimer v M’Callan (1840) 6 M & W 58
The original may be in the possession of a stranger who refuses to produce it, and he is
privileged to withhold it and so not compellable by law to produce it.
See, Mills v Oddy (1834) 6 C & P 728
R v Nawaz [1976] 1 WLR 830
This exception does not apply where the stranger unlawfully refuses to produce a document in
issue.

It may also happen that the original document is in the possession of the adversary, who refuses
to produce it after notice to produce has been served. In this case, secondary evidence may be
admitted in evidence.
See, Dwyer v Collins (1852) 7 EX 639.
The object of a notice to produce is to enable the adversary to have the document in court, and if
he does not enable his opponent to give secondary evidence thereof, so as to exclude the

62
argument that the latter has not taken all reasonable means to procure the original. If the original
is produced, the producing party can insist that it can put in evidence by his adversary.
See, Wharam v Routledge (1805) 5 Esp 235.
On the other hand, if the party called upon to produce a document fails to do so, so that
secondary evidence of its contents is allowed, he cannot afterwards put in the original.
See, Doe d Thompson v Hodgson(1840) 2 A& E 135.
Finally secondary evidence may be produced where the original is a public or judicial document,
within the meaning of Rule 7 of the CP & E (D. E.) Rules.

Documentary evidence in both civil and criminal cases are in the nature of exhibits. The witness
who has first hand information of the document is normally the one who produces it to the court
for inspection.
See, R v Suliasi 1923 – 60 ALR Mal 389.
It is important that all exhibits produced in court must be marked for proper identification.
See, Love c Rep Cr App Case No 27 of 1978, HC (Unrep).
Caution statements are in the nature of exhibits and these must be produced in court by the
prosecution.
See, Andrew v Rep [1971 – 72] ALR Mal 297.
See, Kawamba v Rep Cr App No 268/1980 HC (Unrep).

C. Extrinsic Evidence in Relation to Documents.

1. The Rule against Extrinsic Evidence.
Where the term extrinsic evidence is used in connection with documents, it means any evidence,
whether oral or documentary, other than the document concerned. The general rule is that
extrinsic evidence is not admissible to prove the terms of the transaction which the document
purports to effect, or the meaning which the maker of the document meant to give to the words
used in the document. The document is usually conclusive evidence of the terms of the
transaction effects and of the meaning to be given to the words used in the document. As regards
the terms of the transaction, the document is not only conclusive, but also exclusive, in that even
if a party does not challenge the evidence of the document as to the terms of the transaction, in
that he does not purport to contradict or vary the document, nevertheless he is not allowed to

63
adduce any evidence of the terms other than the document itself. In this sense, therefore, the
document is not only the strongest evidence of the terms of the transaction, it is also the only
permissible evidence thereof.

These rules of documentary evidence apply mostly to civil cases such as contract, grants and
other dispositions of property, which are normally reduced to writing. The rules do not so much
apply to documentary evidence in criminal cases where documents are given in the nature of
exhibits and upon which oral evidence must be given to prove the case to which the document
relates. The case under discussion is where the document itself is the basis of civil litigation and
there are several rule governing the admissibility of extrinsic evidence in these cases.

2. Exceptions to the General Rule – Substituting the Document.

Firstly, extrinsic evidence may be used as a substitute for a document in issue. The general rule,
however, is that once of the parties to a transaction have embodied it in a written document,
either by agreement or because the law requires it, the writing becomes the exclusive record of
the transaction. No evidence may be given to prove the terms of the document except the
document itself or secondary evidence of its contents where such is allowed.
See Rule, 24(1) of the CP & E (DE) Rules.

There are a number of exceptions to this general rule. Thus, if the execution of a document or its
authenticity is in issue, the parties must be at liberty to prove or disprove this fact. They should
be able to show that the transaction was not concluded. Moreover, extrinsic evidence is always
admissible to identify the persons and things to which the document refers.
See, Band of New Zealand v Simpson [1900] AC 182
Charrington v Wooder [1914] AC 71

Other exceptions to the general rule include the ones that follow below:-:
(a). If what is to be proved is the fact of the transaction, e.g. the fact that a named person
is a tenant in a certain parish or that a partnership existed between certain persons, rather
than the terms of the transaction, parole evidence is not excluded by the circumstances
that the transaction is embodied in a document..

64
 See, R v Holy Trinity: Hall (1827) 7 B & C 611.
Alderson v Clay 1816 1 Stark 405
(b). If it is sought to show that the transaction is contained in two or more documents,
extrinsic evidence is allowed to show the connection between them, but only if one refers
to the other or others, where in accordance with the usual role, parole evidence is
admitted to identify things or documents mentioned in the document.
See Rule 25 (a)
See also Long v Miller (1879) 4 CPD 450
Peace v Gardner [1897] 1 QB 688

However, if there is no apparent connection between the documents, i.e. no reference is made in
one, parole evidence that in fact they are connected is not admissible.
See Boydell v Drummond (1809) 11 East 142
Timins v Moreland Street Property Co [1958] Ch 110

(c). Where the law requires that all the terms of a contract be evidenced in writing, it is
permissible to use parole evidence to show that there are terms other than those contained
in a written document, so that the document does not comply with the requirements of the
law.
See Rule 25(a)
See also Beckett v Nurse [1948] 1 KB 535
cf Hutton v Watling [1948] Ch 398.

(d). Sometimes, in cases where the law requires the terms of a contract to be contained in
a memorandum in writing, the court will accept in lieu thereof part performance of the
contract by parole evidence. In this case, parole evidence of the contract is admissible.
See, Chaproniere v Lambert [1917] 2 CH 356.

(e). If the writing is not intended to form the transaction, but merely records it, the
existence of the writing does not exclude extrinsic evidence of the terms of the
transaction.

65
Sometimes the law requires that a document shall record the transaction, or it will appear from
the document that the parties intended it to constitute the transaction in question; but it is
competent for a party to show by extrinsic evidence certain incidental facts such as whether
payment made by cheque and acknowledged in writing was in fact made..
See Carmarthen Railway v Manchester Railway (1873) LR 8 CP 685.
Lee v. L & Y Railway (1871) LR 6 Ch App 527.

Evidence of a parole nature is also admissible that there were other terms in the transaction,
which were not recorded in the memorandum.
See, Allen v Pink (1838) 4 M & W 140.

3. Exception to the General Rule – Varying or Contradicting the Document.

Secondly, extrinsic evidence may be used to vary or contradict a document. When a transaction
has been reduced into writing either by the requirement of law or by agreement of the parties,
extrinsic evidence is, in general, inadmissible to contradict, very add to or subtract from the
terms of the document. The reason is that when the parties have deliberately put their agreement
in writing, it is presumed between themselves and their privies that they intended the writing to
form a full and final statement of their intentions, and one, which should be placed beyond the
reach of future controversy, bad faith or treacherous memory.

This general rule is, however, subject to a number of exceptions. These include the following
ones:
(a). Omitted terms
Where a contract, not required by law to be in writing, purports to be contained in a document,
which the court holds was not intended to express the whole agreement between the parties,
proof may be given of any omitted term expressly or implied by and agreed upon between them
before or at the same time, if is not inconsistent with the terms of the written document.
See, Robb v Green [1895] 2 QB 315.

66
Custom or usage is admissible to annex unexpressed terms, provide such are not inconsistent
with the written ones. In Wiggleworth v Dallinson (1979) 1 Dong KB 201, a local custom
relating to the relationship between the tenant and the landlord was admitted because it was not
contrary to any term of the leasehold tenancy.

(b). Collateral of the Leasehold Tenancy.

Although there may exist a contract purporting to be fully expressed in writing, whether required
by law to be so or not, proof may be given of a prior or contemporaneous oral agreement, or
warranty, which forms part of the consideration for the main contract and is not inconsistent with
the document.
See, Heilbut Symons and Co v Buckleton [1913] AC 30.
It is always possible to prove a collateral condition that the document will not come into force as
a contract unfit the condition is fulfilled. In this case, parole evidence maybe used to show that
an expressed condition has been fulfilled or waived.
See, Pym v Campbell (1956) 6 E & B 370
Pattle v Horni Brook [1897] 1 Ch 25
Griffiths v Young [1970] Ch 675.
The collateral contract must not be subsequent to the main contract, for it could not then form
part of the consideration.

(c). True Nature of the Transaction.

Where legal or equitable rules insist upon having regard to the true nature of the transaction,
regardless of its apparent nature, extrinsic evidence of the true nature may be given, even if the
transaction is one required by law to be in writing and even though the extrinsic evidence
contradicts the terms of the written transaction. Thus what is apparently a sale can be proved to
be a mortgage.
See, Re Duke of Marlborough [1894] 2 Ch 133

Likewise, what is apparently a beneficial gift in a will can be shown to be a secret trust.
See, Rochefoucauld v Boustead [1897] 1 Ch.196.

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 (d). Capacity of Parties
Where the capacity in which a person executes a document is unequivocal, he cannot
show that he executed it in some capacity other than the stated one; but where his stated
capacity is equivocal, he may show that he executed it as agent for an undisclosed
principal.
See Fred Dughorn Ltd v Rederiaktjebolaget Transatlantic [1919] AC 203
Young v Schuler 1883 11 QBD 651.

Apparently, the designations ‘charter’, ‘tenant’ and ‘landlord’ are equivocal whereas the terms
‘owner’, ‘occupier’, etc are not equivocal, since only one person can comply with the latter two
descriptions, whereas the expression tenant, for instance can be applied to a party to a lease
whether he executed it on behalf of himself or another.
See, Danziger v Thompson [1944] KB 654
Epps v Rothni [1945] KB 562
Humble v. Hunter [1848] 12 QB 310.

(e). Invalid Documents or Transactions.

Extrinsic evidence is admissible to prove any matter which, but e substantive law relating to the
document in question, affects the validity of the document, or entitles a party to any relief in
respect thereof, notwithstanding that such evidence tends in some cases to contradict the writing.
Extrinsic evidence here may be adduced to show conditional or defective, execution, contractual
incapacity, fraud, forgery, duress, undue influence, illegality of subject-matter, mistake, etc.
See, Dobell v Stevens (1825) 3 B & C 632,
Murry v Parket (1854) 19 Beav. 305.

(f). Consideration.
Since absence of consideration invalidates a transaction under seal, in such a case, such absence
may be shown by parole evidence, notwithstanding the fact that th document contains words to
the effect that consideration has been received.
See, Abbot v Hendricks (1840) 1 M & G 791.

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Similarly, evidence may be given of the legality or illegality of the consideration.
See, Collins v Blantern (1767) 2 Wils KB 341.
Woods v Wise [1955] 2 QB 29.

Normally consideration is irrelevant in the case of a deed; but if it is relevant and no

consideration is referred to there in, parole evidence may be admitted to show that the true
consideration was a valuable one.
See, Turner v Forwood [1951] 1 ALL ER 746.

(h). Subsequent Modification or Rescission of Transaction.

Written contracts not required by law to be in writing may, at any time before breach, be
modified or rescinded by oral agreement.
See, Goss v Nugent (1833) 3 B & Ald 58

A written contract required by law to be in writing may also be wholly rescinded by an oral
agreement.
See, Morris v Baron [1918] AC 1
Noble v Ward (1867) LR 2 EX 135.

The latter form of contract cannot be partially abandoned or varied by an oral agreement is not
enforceable since it is not in writing. If variation is thus attended, the original contract will still
be binding in its entirety. Contracts by deed could, at common law, neither be rescinded nor
varied by parole.
See, Steeds v Steeds (1889) 22 QBD 537.

The present position of the law, however, is that deeds, though they cannot technically be
released, maybe varied, or wholly discharged by parole agreement, if made for valuable
consideration.
See, Willliams v Stern (1879) 5 QB 409.
Berry v Berry [1929] 2 KB 316.

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Thirdly, extrinsic evidence may be used to interpret a document. Once the terms of a document
have been established in the ways mentioned in the previous discussion, the question may arise
as to what the authors of the document, such as parties in the case of a contract or the testator in
the case of a will, meant by the words used. In particular, the question will be how far may
extrinsic evidence be resorted to for the purpose of finding this meaning.

In one sense, any court attempting to give effect to a document cannot possibly act without
extrinsic evidence, because it will need to identify the person or thing which is the object or
subject of it. In a bequest which reads as follows: “My grandfather’s clock to my eldest son”,
could not be given effect to without evidence as to which clock was the one referred to and
which person is the beneficiary of the bequest. If the meaning of the writer is plain and the only
question is whether this is the clock owned by the testator or whether this person is the eldest son
of the person making the bequest, the question is not one of interpretation at all but one of
evidence only.

The sort of situation, which is in point here is where the controversy is essentially over what the
maker meant. If there are two grandfather clocks belonging to him, the question, is which one
did he mean to dispose. Additionally, the claimant may admit that he is not the eldest son of the
testator but insists that he is the person whom the testator meant to be benefit in the will. In this
case, the issues are resolved by appeal to any extrinsic evidence bearing on the document in
question.

D. Real Evidence.
Things produced in court for exhibition, including demonstrations and sketch plans, fingerprints,
blood tests and tape recordings are all called real evidence. Instead of demonstrations in court, a
magistrate may undertake an inspection tour of the locus in quo with the aim of seeing for
himself the scene of the accident or other place in issue in the litigation. These tours are, in the
law of evidence, a kind of real evidence just like objects produced in court. Oral evidence
relating to the scene in issue is still necessary in court and this evidence must be given on oath
before or after understanding the tour. In Maulidi v R 1964 – 66 ALR Mal 379, the court said:

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 “A visit to the locus in quo starts with the court, the accused, the witnesses, the
prosecutor and defence counsel, if any, visiting the place. It is not intended to
take the place of evidence that should be given in court but only to illustrate
certain points which may be obscure and not clear to the court”.

Later on in the judgement, Emejulu J, stated the correct procedure in taking this type of real
evidence. He said:-

The proper thing to do is to call these people to court and take their evidence if
the court is in any doubt about any point, such as the distance of material points
which have been given in evidence, or the location of any place, and so on, a visit
should be made but, in my judgement, not otherwise. At the scene the witnesses
should indicate clearly what they had previously told the court, and the court
should make a complete record of what happened there. When the court resumes
normal sitting these witnesses should be sworn and should repeat what they said
at the scene and be subject to cross-examination by the defence or prosecution, as
the case may be, depending on whose witnesses they are. Alternatively, the
witnesses may be sworn at the scene before they begin their identification of the
various places and points, which should be recorded by the court, and to give the
defence or the prosecution an opportunity of cross-examining the witnesses.

The approach to collecting real evidence in criminal cases is equally applicable to collecting real
evidence in civil cases, such as in tort, where a visit to the locus in quo may be necessary.

71
 UNIVERSITY OF MALAWI

CHANCELLOR COLLEGE
Faculty of Law

V. Burden of Proof and Standard of Proof.

A. Introduction - Civil and Criminal cases
Once the court has heard the testimony of the witnesses in a case before it, it has then to decide
the case on the merits of the evidence thereby adduced before delivering its judgment. The
courts decision will depend on which side it has decided to believe and this will in turn depend
on whether the required standard of proof has been discharged by the prosecution in criminal
cases and the claimant in civil cases. Rules relating to the burden of proof and the standard of
proof differ in criminal cases from civil cases. It is therefore necessary to study these two
categories of cases to study these two categories of cases separately.

1… Burden and Standard of Proof in Criminal Cases

In criminal cases, the indictment alleges that the accused has committed a certain crime contrary
to a certain law currently in force. It is therefore the duty of the prosecution to prove every
ingredient of the offence and this burden is case on the prosecution throughout the case
exception very few cases.
See s. 187 of the CP & E Code.

In cases of murder, the court must be satisfied that the prosecution ahs not only discharged its
burden as to proving the actual killing, but also that the accused had malice afore thought for
murder within the meaning of criminal mens rea. If the prosecution is unable to discharge this
burden as to show the cause of death and the mens rea on the part of the accused, the court must
acquit.
See, s.188(1) of the C P& E Code.

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 See also R v White (1910) 2 KB 124
There are two main categories of burden of proof known to the law. On every issue, there is an
obligation on one party to convince the tribunal of fact, whether on the balance of probability in
civil cases or beyond reasonable doubt in criminal cases of the truth of some proposition of fail
which is in issue and which is vital to the case. This obligation is normally referred to as the
legal burden. The party on whom it is case, known as the proponent has to discharge this burden
if he is to succeed in his case. The stage in the proceedings when the incidence of this burden is
seen as vital is when all the evidence on both sides has been given, because it then becomes the
duty of the judge to direct himself as to what his verdict should be after the material submissions
have been made.

On the other hand, there is also an obligation to adduce sufficient evidence on a particular fact to
justify a verdict in favour of the party who is under the obligation to adduce such evidence. This
obligation is normally referred to as evidential burden of proof. Failure to discharge the
evidential burden means that the judge will rule that there is insufficient evidence to justify a
conviction. If both the legal burden and the evidential burden have to be discharged by one side
to the case, as normally happens in many criminal cases the proponent has to satisfy the court
that he has adduced sufficient evidence to establish a prima facie case to answer and then he
must discharge the legal burden by proving every ingredient of the offence to justify the courts
verdict in his favour. On the other hand, if the evidential burden is on the opponent, failure to
discharge this burden does not automatically entitle the proponent to a verdict. He the proponent
has still to discharge the evidential burden according to the requisite standard before judgement
can be entered in his favour. However, failure by the opponent to discharge the evidential
burden will inevitably increase the chances of the proponent to discharge his legal burden of
proof. In Dunn v Dunn (1949) P. 98, a husband petitioned the court for divorce on the ground of
desertion. Denning CJ said:
“In this case, the legal burden throughout was on the petitioner to prove that his
wife deserted him, without cause. In order to discharge that burden the petitioner
relied on the fact that he asked her to join him and she refused. That is a fact
form, which the court might have inferred that she had deserted him without
cause, but it was not bound to do so. Once he proved the fact of refusal she might
seek to rebut the inference of desertion by proving that she had just cause for her
refusal, and indeed it is usually wise for her to do so. But there is no legal burden

73
 on her to that effect. Even if she did not affirmatively prove just cause the court
had still at the end of the case, to ask itself has the legal burden been discharged?

These two burdens of proof should now be discussed in some more detail, beginning with the
legal burden.

(a) The Legal Burden of Proof

The general rule is that eh who asserts must prove, whether the allegation be an affirmative or a
negative one and not he who denies the allegation. This rule is said to be an ancient rule, funded
on considerations of good sense, and that it should not be departed from without strong reasons.
See Joseph Constantine Steamship Line Ltd v Imperial Smelting Corporation Ltd [1942] AC 154

The effect of this general rule is that the obligation of satisfying the court on an issue rests upon
the party who, in substance, asserts the affirmative of the issue, that is to say, where a given
allegation, whether affirmative or negative, forms an essential factor of a party’s case, the proof
of such an allegation rests on him. In deciding which of the parties assets the affirmative, the
substance, rather than the grammatical construction, of the pleadings is the decisive factor. If a
landlord – plaintiff claims that the tenant – defendant did not repair the premises, and the tenant
asserts that he did repair, it is the landlord’s allegation which is in substance positive, although it
is cast in negative terms. His allegation could as well be phrasal so as to assert that the defendant
allowed the premises to fall into disrepair, thereby breaking the covenant of the lease. Hence, it
is for him, the landlord, to prove his allegations.
See, Soward v Legatt (1856) 7 C & p,613.
Howard v Borneman [1972] 1 WLR 863.

However, in most civil cases, the burden of proving the issues is divided, each party having one
or more burden cast upon him. For instance, if the defendant responds to a claim, not by merely
denying its existence, but by raising a defence to it, the burden of proving all the elements of the
defence will be on him. For example, in an action by the plaintiff against the defendant to
recover a loan, to which the defence is a denial of the loan, and in the alternative, that it has been
discharged, the onus of proving the debt is on the plaintiff and the onus of proving its discharge
is on the defendant.

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 See Seldon v Davidson [1968] 1 WLR 1083.

In cases of tortuous, the burden of proving the negligence is upon the plaintiff, but if the
defendant pleads contributory negligence, the burden is on him to prove this assertion.
Walkin v London & South West Railway (1886) 12 App. Cas. 41
Burgess v Aisha Osman (No.2) [1964] ALR Mal 500
NHW Dovey et al v KC Ngwenya et al Civ. Cause No. 254 of 1976 HC (Unrep.)

This incidence of the legal burden of proof is fixed as a matter of law at the beginning of the
trial, either by the substantive law or by the pleadings, which show whether any particular
allegations is admitted or denied. In cases of negligence, the substantive law casts the burden of
proving the issues on the plaintiff. It is however, the pleadings, which bring about the issues of
contributory negligence because the defendant may so allege in these pleadings.

The burden of proving the issues in civil cases never all any stage shifts. It remains on the party
on whom it was placed by the substantive law or the pleadings, which have fixed the issues.
Pickup v Thames & Mersey Marine Insurance C. Ltd (1878) 3 QBD 594.

However, where there is more than one issue in the same case, and the burden on one issue is on
the plaintiff, while the burden on the other is on the defendant, then only if the plaintiff
discharges his burden does the defendant have to discharge his. For instance, if the plaintiff is
suing the defendant for damages in negligence and the defendant pleads contributory negligence,
the burden of proving negligence is on the plaintiff and that of proving contributory negligence is
on the defendant. However, the defendant will only be required to discharge his burden of the
plaintiff succeeds in establishing negligence in the first place. Consequently, it is sometimes said
that by discharging his burden on the first issue, the plaintiff shifts the burden to the defendant.
See Medawar v Grand Hotel Co. [1891] 2QB 11.

However, the defendant’s burden is on a completely different issue. In respect of any one issue,
it remains true that the burden never shifts at all.

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In criminal cases, the burden of proving the guilty of the accused beyond reasonable doubt is on
the prosecution and remains there throughout the trial. A plea of “not guilty” puts in issue every
material averment in the indictment, other than those formally admitted which need no proof at
all. There averments, whether positive or negative, must all be proved by the prosecution. There
are no pleadings in which the defendant raises separate issues and so assumes the legal burden.
There are no separate issues involved, except certain defences such as insanity. The issue is
whether or not the accused is guilty as charged. The requirement that he who asserts must prove
is reinforced by the presumption that the accused is innocent, and if the whole of the evidence
against the accused leaves some reasonable doubt about his guilty, the prosecution has not
discharged its legal burden and the court must acquit.
See Woolmington v DPP [1935] AC 462
Mancini v DPP [1942] AC 1

The House of Lords laid down this rule in clear terms in Woolmington v DPP [1935] AC 462. In
this case, Lord Sankey LC said:
“Throughout the web of English Criminal Law one golden thread is always to be
seen, that it is the duty of the prosecution to prove the prisoner’s guilt, subject
…… to the defence of insanity and subject also to any statutory exception ……
No mater what the charge or where the trial, the principle that the prosecution
must prove the guilt of the prisoner is part of the common law of England and no
attempt to whittle it down can be entertained.

The accused has no legal burden to discharge. It is for the prosecution to prove their case and the
accused is entitled to an acquittal if the legal burden is not discharged by the prosecution.
See Chan Ka v R [1955] AC 206
R v Lobell [1957] 1 QB 547
R v Wheeler [1967] 1 WLR 1531
Bratty v Attorney General for Northern Ireland [1963] AC 389
R v Gill 47 Cr. App Rep. 166 (1963)
R v Bone 1968] 1WLR 983.

76
 UNIVERSITY OF MALAWI

CHANCELLOR COLLEGE
Faculty of Law

VI. Corroboration of Judicial Evidence.

A. Introduction
It is sometimes the case that once a witness has been called and has testified before the court of
law, his or her evidence may not be sufficient in itself to enable the court to enter judgement one
way or the other. In this case, corroborative evidence may be necessary in order to confirm or to
supplement the evidence already given by the witness. It should be noted in this respect that as a
general rule corroborative evidence is not necessary in many cases. The common law has never
required a plurality of witnesses. A court is entitled to act on the uncorroborated evidence of a
single witness only, even if such a witness is faced by contradictory evidence from more than
one witness. Credibility of the witness is the principle requirement. If the court believes the
evidence of the sole witness for the prosecution and disbelieves three or more witnesses for the
defence, its finding can not be challenged merely on the ground that there was only one witness
as to the material fact proved, or that there were fewer witnesses for the fact, than against the
same fact. There are, however, certain cases in which corroborative evidence is desirable or
even necessary. Almost all of these cases relate to the prosecution’s case against the accused in
criminal proceedings. The rationale for this requirement of corroborating evidence was well
explained by Lord Morris in DPP v Hester [1973] AC 296 at 309 when he said:
The accumulated experience of courts of law, reflecting accepted general
knowledge of the ways of the world, has shown that there are many circumstances
and situations in which it is unwise to find settled conclusions on the testimony of
one person alone. The reasons for this are diverse. There are some suggestions
which can readily be made but which are only with more difficulty rebutted.
There may in some cases be motives of self interest; or of self exculpation; or of

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 vindictiveness. In some situations, the straight line of truth is diverted by the
influences of emotion or of hysteria or of alarm or of remorse. Sometimes it may
be that owing to immaturity or perhaps of lively imaginative fits. There is no true
appreciation of the guilt that separate truth from falsehood. It must, therefore, be
sound policy to have rules of law or of practice, which are designed to avert the
peril that findings of guilt may be insecurely based”.

Before looking at these rules of law and practice relating to corroboration, it is necessary
to analyse the essence of this particular doctrine and the character, which it may take.

B. The Essence of Corroboration

Corroboration is any evidence, which confirms a witness’s statement and is extraneous to that
witness. This type of evidence could consist of the evidence of a second witness and this is the
commonest form of corroborative evidence. However, this is not the only case, any form of
independent testimony will do, provided that it confirms in some material particular the evidence
standing in need of corroboration and, if the identity of the defendant is in issue, this evidence
must implicate him. In Tinazari v R 1964 – 66 AIR Mal 184, the court quoted with approval a
passage from R v Baskerville [1916 – 17] ALL ER Rep. 38 which contains the essence of this
particular rule of law. Bolt J said:
Finally I think it would have been better, with respect, if the learned magistrate
had considered the question of corroboration from two points of view, now almost
sacrosanct in cases requiring it, which were expounded in R v Basherville….. In
that case, it was held that there must be evidence which confirms in some material
particular not only (a) that the crime has been committed but (b) that it was the
accused person who committed it. I feel I can do no better than set out the
classical passage in the judgment of Lord Reading CJ….

We hold that evidence in corroboration must be independent testimony, which

affects the accused by connecting or tending to connect him with the crime. In
other words it must be evidence which implicates him, that is, which confirms in
some material particular not only the evidence that the crime has been committed,
but also that the prisoner committed.
See also:- Thomas v Jones [1921] 1KB 22 at 32
Rep v Kapalepale [1971 – 72] AIR mal 150
James v R [1971] 55 Cr App Rep 299.

In this respect, corroboration may be found in articles or documents seized by the police or in
injuries suffered by the victim of an offence of rape.

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R v Trigg [1963] 1 WLR 305

Corroborative evidence may also be found in the actions or statements of the defendant himself.
His conduct on previous occasions, although not usually provable, may be proved in some cases
such as those based on similar fact-evidence. In this case, the evidence so proved may amount to
corroboration of the case against the accused concerned.
R v Chitson 1909 ZKB 945
R v Mitchell 36 Cr App Rep 79 (1952)
DPP v Kilbourne [1973] Ac 729

An admission out of court will be sufficient corroborative evidence. Likewise, the concoction of
a false story such as where the accused tells the police that he was not with the complainant on
the occasion in question may if proved to be false, be taken as confirming the complainants
account of what went on the occasion in issue.
Credland v Knowler 51 Cr App Rep 48 (1951)

However, this rule does not apply where the concoction of a false story is done by a third party in
favour of the accused or defendant unless it is proved that the accused or defendant incited him
to do so.
Cracknell v Smith [1960] WLR 1239

Corroborative evidence must be independent testimony because no corroboration is afforded by

mere re-interaction by the same witness who is complaining reiteration of the same story may
influence the court but it would be unsafe for the law to adopt this repetition as corroboration. A
liar could corroborate his lies merely by repeating them. Self-serving statements never
corroborate a witness’s evidence for fear that every person, when eh is in difficulty, may purport
to corroborate his own evidence.
Jones v South Eastern and Chathan Rly (1918) 87 LJKB 775;
Corke v Corke of Corke [1958] P 93
R v Hardy (1974) 24 How St Tr 199

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This is why it is insisted upon that corroborative evidence must be extraneous to the witness
whose evidence is sought to be corroborated.
R v Whitehead [1929] 1KB 99

However, it is recognised that in certain cases, evidence which itself requires corroboration may
corroborate some other evidence. Corroborative evidence of this kind is not without force and
the court may accept it as enough corroboration if there is no likelihood of collusion between the
two witnesses involved
Cf R v Bariley [1924] KB 300
R v Redpath [1962] 46 Cr App Rep 319

C. Corroboration Required by Statute

There are certain situations in which corroborative evidence is required as a matter of law. In
those cases where the law requires corroboration, if in the opinion of the judge, there is nothing
in the evidence against the accused, which is capable of being corroboration, he should stop the
case and direct an acquittal. If, on the other hand, there is material, which is capable of being
corroboration, he must warn himself that unless the corroboration required by the statute is found
to exist, he can not convict the accused.
R v Shillingford (1968) 52 Cr App Rep 188

There are a number of offences and other situations in which corroboration is required as a
matter of law in Malawi.

First evidence that is given by a child who is not sworn requires corroboration under S 6 of the
Oaths, Affirmations and Declarations Act, cap 4.07. It is said that in this particular respect,
evidence for another child not given on oath cannot suffice as corroborate evidence.
Rep v Banda (SJ) [1968 – 70] AIR Mal 9

Secondly, under S 244 of the Cpt E Code corroboration is required as a matter of law in cases of
sedition under S 51 of the penal code and perjury and corroboration of perjury under S 101 of the

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penal code. Thirdly, offences under SS 140 and 141 of the penal code which relate to
procuration require corroboration before a conviction may be entered against the accused.

Apart from the above mentioned provisions in which corroboration is required as a matter of law,
there are certain situations in which the common law requires corroborative evidence in that it is
unsafe to convict on the uncorroborated evidence of one witness only.

D. Corroboration Required by the Common Law

Since in some cases where evidence of one witness only may suffice to found conviction
evidence in corroboration in these cases is required as a matter of practice, which practice has, in
certain cases hardened into rules of the common law. Where experience has shown that it is
unsafe to found convictions on the evidence of certain classes of witnesses without
corroboration, a warning in suitable terms must be given and if it is not so given, a conviction is
liable to be quashed on appeal.
See Rep v Robert Kajawa Cont Case No 266 of 1989 HC (LL) (Unrep.)

If, after the warning has been issued the court nevertheless wants to proceed to convict he
accused, then it must put on record three essential points as follows (i) there is no corroboration;
(ii) that it is well aware of the danger of convicting in such circumstances and (iii) that despite
this lack of corroboration it is nevertheless satisfied beyond reasonable doubt that the evidence of
the complainant alone is true.
See, Tinazari v R [1964-66] AIR Mal 184.
But see Banda v Rep [1966 – 68] AIR Mal 316 in cases where there is no failure of justice.

It should be noted that the class of cases where a warning is thought desirable are not limited. It
is even said that the judge would be wise to give a warning about the evidence of any
prosecution witness who may reasonably be supposed to have some purpose of his own to serve
by giving false testimony.
R v Prater [1960] 2 QB 464.

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The following are some of the class of cases who the common law requires a warning to be
issued of the danger of convicting the accused on the sole evidence of the prosecution witness
alone.

1. Evidence of an Accomplice
The general rule under S 242 of the criminal procedure and evidence code is that a convicting
will not be quashed on appeal merely because it was founded upon the uncorroborated evidence
of an accomplice. However, practice ahs shown that accomplices have a well-founded motive in
playing down their own part in a crime and in the process exaggerating the part played by their
fellows. In Banda v Rep [1966-68] AIR Mal 336 at 331 -340, the court said:-

There is another important matter which should be mentioned, i.e. when a principal offender is
called as a witness for the prosecution it should be made clear either that he himself has been
brought to justice and has been sentenced for the offence, or alternatively that the state does not
intend to prosecute him. If this is not done, he may be tempted to colour his evidence in order to
incriminate someone else or to obtain a lighter sentence himself. This is most important and a
magistrate before whom such a witness appears should question him about these matters; i.e. if
this is not done by the public prosecutor.

The result is that courts of law are generally unwilling to convict on the in corroborated evidence
of an accomplice.
See Devoy v Rep [1971 – 72] AIR Mal 223
Rep v Robert Kajawa Conf. Cas. No 26 of 1989 (HC LL) Unrep
Zgambo v Rep Cr App No 30 of 1977, HC. (Unrep).

Under English law, this rule of practice has hardened into a rule of law. In R v Baskerville [1916
– 17] ALLER Rep 38 at 40 Lord Reading said:
“This rule of practice has become virtually equivalent to a rule of law and since
the court of Criminal Appeal Act came into operation this court has held that in
the absence of such a warning by the judge, the conviction must be quashed: Rex
v Tate [1908] 2 KB 680. If after the proper caution by the judge the jury

82
 nevertheless convicts the prisoner, this court will not quash the conviction merely
upon the ground that the accomplice’s testimony was uncorroborated. It can but
rarely happen that the jury would convict in such circumstances”.

In Davies V DPP [1954] AC 378, Lord Simonds LC outlined the category of persons fully may
be regarded as accomplices for the purpose’s of corroboration:

(a) Persons who are participes cirminis in the actual crime charged. These
include principal offenders, secondary parties and persons impending the
arrest or prosecution of the principal offender in an arrestable offence.
(b) Handlers giving evidence at the trial of the thief.
(c) Parties to other crimes of which evidence is admitted under the ‘similar facts’ rule.

The above list is good and may as well apply to Malawi. However, it is said to be somehow
restrictive in that it leaves out some categories of persons who may be genuinely interested in the
case as accomplices, such as a woman upon whose immoral earnings she accused is alleged to
have lived.

See R v King 10 Cr App Rep 117 (1914)

See also R v Mullins (1848) 3 Co CC 526
R v Bickley 2 Cr App Rep 53 (190..)
Sneddon v Stevenson [1967] /WLR 105
R v Cratchley 9 Cr App Rep 232 (1913)
R v Pitts 8 Cr App Rep 126 (1912)
R v Tatham 15 Cr App Rep 132 (1921)
R v Sidhu 63 Cr App Rep 209 (1976)
R v Robinson (1864) 4 F & F 43
R v Vernon [1962] Crim. App Rep 35.

2. Sexual Offences

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Since a charge of any kind in sexual offence is more easily made than refuted, it ahs long been a
rule of practice at common law to warn the jury that it is unsafe to convict the accused without
corroboration of the prosecutor’s evidence, even in cases other than those where statute requires
corroboration. This rule of practice seems to have become, for all practical purposes, a rule of
law. It ahs been stated by judicial authority that the absence of any warning on corroboration in
these cases is prima facie fatal to a conviction.

The corroboration necessary in these cases need not be and usually is not the evidence of a third
person who witnessed the act. More usually it is found in the state of the clothes or bodies of
either or both the parties.
See R v O’Reilly [1967] 2QB 722
Kagwa v Rep (rim App Vo 15 / 89 Hc (LL)

However, if consent is offered as a defence or the identity of the assailant is in issue, such
corroborative evidence must confirm in some material particular that the act complained of was
without consent and that the accused was the man who committed the crime.
James v R 55 Cr App Rep 299 (1971)
R v Kapalepale [1971 – 72] AIR Mal 150

Another general rule of importance is that the distressed condition of the complainant can not
often and her complaints to third parties can never amount to corroboration, because these are
not extraneous to the witness whose evidence is sought to be corroborated.
R v Knight [1966] 1WLR 230

However, certain cases have held that evidence of physical molestation such as where it is clear
that the victim of a sexual assault has been abused or some screams uttered by her shortly after or
contemporaneous with the sexual assault, may amount to corroboration in those cases where the
court is satisfied that the behaviour of the victim was genuine
R v Redpath 46 Cr App Rep 319 (1962)
Mariette v Rep [1966 – 68] AIR Mal 119

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Tinazari v Reg [1964 – 66] AIR Mal 184

3. Sworn Evidence of Children

Children may in some cases give evidence on oath. These are those how are old enough to take
an oath but so young that their comprehension of events and of questions put to theory of their
own powers of expression may be imperfect. A warning ought to be given of the dangers of
acting on the uncorroborated evidence of such children.
Nyirenda v Rep 7 182 [1972 - 73]
Idana v Rep [1964 – 66] AIR Mal 59

In this particular case, corroboration of the child’s testimony may be found in the sworn or
unsworn evidence of other children.
DPP v Hester [1973] AC 296
Rep v Banda (SJ) [1968 – 70] AIR Mal 96
Cf: Nyirenda v Rep 1976 – 73 (7) MLR 182

4. Matrimonial Offences
It is usual and desirable for a court to look for corroboration of the evidence of a complaining
spouse who alleges a matrimonial of offence. In cases in which a sexual offence, such as
adultery, is alleged, then by analogy with the rules for sexual offences generally and the rules
relating to accomplices in crime, the uncorroborated evidence of the victim or partner must not
be acted upon without the court expressly adverting to the dangers of acting on uncorroborated
evidence.
Galler v Galler [1954] P 183

In other classes of case, such as where cruelty is alleged, the absence of an express indication
that the desirability of corroboration was borne in mind will not of itself be ground for varying
the decision on appeal.
Alli v Alli [1965] 3 ALLER 480

5. Identification Evidence

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This is evidence by a witness who did not previously know the accused, but saw the incident at
issue and the person involved in it and now claims that he recognises the accused as being that
person. He will usually have made some prior identification of the accuses as at an identification
parade arranged by the police. He will often be certain of his identification, and will become
more certain the harder he is questioned, and yet will often by quite wrong. Courts of law have
noted that it is dangerous to the proper administration of justice to act on the uncorroborated
evidence of identification. See Cahpingasa v Rep 9 MLR 414 (1980). However, no rule of law
has developed in the courts requiring corroborative evidence in this area. In Arthurs v Att Gen
for Northern Ireland 55 Cr App Rep 161 (1970) Lord Morris said that even for cases where a
conviction would depend wholly or substantially on the visual identification of the accused, it
would be undesirable to seek to lay down as a role of law that a warning in some specific form or
in some partly defined terms must be given. The difficulty is that particular cases vary
enormously. This type of evidence may be quite poor in some cases but in others, it can be the
strongest of all evidence upon which the court can rely.

The Devlin Committee was set up to advise on the need for corroboration in identification
evidence. In its report of 1976 the Committee recognised the dangerous nature of identification
evidence, but it refused to recommend that corroboration, or even a warning about its
desirability, should be required. Since such evidence can be very strong, forbidding a conviction
without corroboration or a warning could result in many quite unjustified acquittals. But the
committee proposed that legislation should require the judge in an appropriate case to give
direction. That, save in exceptional circumstances, identification evidence alone should not be
enough. He should then point out any exceptional circumstances of the case, which might make
it enough, such as, that the witness was familiar with the accused.

In R v Turnbull [1977] QB 224, the court of Appeal gave guidance in general in accordance with
the Devlin committee’s recommendations but with changed emphasis, the court refused to use
the phrase ‘exceptional circumstances to describe situations in which the risk of mistaken
identification is reduced. The quality of the identification evidence is what matters. What is
required is a proper appraised of the quality of the evidence in each case and the guidelines laid

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down in R v Turnbull are designed to secure that appraisal. These guidelines can be summarised
as follows:

(a) Whenever the case against the accused depends wholly or substantially one one or
more disputed identifications of the accused the judge should warn himself of the
special need for caution. He should mention the reason for the need for a
warning, which is that in this area of evidence, a mistaken witness can appear
convincing. No particular form of words is required.

(b) The judge should direct himself to examine closely the circumstances, which the
disputed identification came to be made. How long did the witness have the
accused in sight? At this distance, did he see him? What was the state of the light
at the time? What time elapsed between observation and subsequent
identification to the police? Any material discrepancy between the description
first given by the witness and the accused’s actual appearance? Although
recognition of a known person may be more reliable than identification of a
stranger, the judge should bear in mind that mistakes in recognition of close
relatives and friends are sometimes made.
See also RV Cartwright, 10 Cr App Rep 219 (1914).

(c) All these matters go to the quality of the identification evidence being assessed. If
the quality is good, the court can be left to assess its value, even if there is no
other evidence in support, provided an adequate warning has been given. To hold
otherwise would not be in the interests of justice of the maintenance of law and
order.

(d) But if, in the opinion of the judge the identification evidence is of poor quality,
he ought to withdraw the case from further consideration, unless there is other
evidence, which goes to support the correctness of the observation. This need not
be corroboration in the strict sense of the term. f/or instance, the witness may
testify that after he saw a man whom he identifies as the accused commit the

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 crime, he saw that man run away into a certain house which turned out to be long
to the accused’s father. The judge should point out evidence, which can amount
to support and also that which can not amount to support, the accused’s testimony
such as the accused’s failure to give evidence.

A failure to follow the above guidelines is likely to result in a conviction being quashed on
appeal its any rate the appropriate tribunal will quash a conviction if having taken all the
evidence into account, the verdict of the lower court is either unsatisfactory or unsafe.
See R v Hunjan 68 Cr App Rep 99 (1978)

88
 UNIVERSITY OF MALAWI

CHANCELLOR COLLEGE
Faculty of Law
LAW – DIP 205 : EVIDENCE, ADVOCACY AND ETHICS
SECTION TWO:
ETHICS AND ETIQUETTE IN MALAWI

I. Introduction
There are certain rules of ethics and etiquette, which a practising lawyer in Malawi is expected to
abide by. A practicing lawyer in Malawi, or indeed any person who has been admitted to
Malawian bar is called a legal practitioner. Unlike in England, the legal profession is Malawi
does not distinguish between a barrister and solicitor, a legal practitioner acts as both barrister
and solicitor in this country. Therefore, there are no separate rules in this country, which apply to
barristers and solicitors. Rules of ethics and etiquettes in Malawi apply to all legal practitioners
alike. However, many of these rules are similar in substance to those that apply either to
barristers or solicitors in England and therefore case authorities from England on this point are
still of some value in Malawi. This particular some value in Malawi. This particular course will
look at the sources of the law of ethics in Malawi; it will also look at the duty which is imposed
on the legal practitioners towards not only his client, but also towards other, legal practitioners
and finally towards the court. Finally the course will look at the law relating to discipline in the
legal profession in Malawi and how the courts in this country have dealt with cases of
professional misconduct by some legal practitioners.

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II. Preliminary matters relating to Ethics and Etiquette
A. Sources of the Law
The Legal Education and Legal Practitioners Act, Cap 3.04 is the main source of the law relating
to ethics in Malawi. The whole of Part VI of this Act deals with discipline. Under S. 21 of this
part, a legal practitioner who has been found guilty of misconduct as stated in the section may be
admonished by the High court. In serious cases, he may be suspended from practicing and in
some cases, he may be struck off the Roll of legal practitioners in this country.
There are also a number of rules made under S. 36 of the act. These are:
1. Malawi Law society rules
2. legal practitioners accounts rules, and
3. legal practitioners practice rules
Apart from the above sources of the law, there are other provisions in other statutes such as the
criminal procedure and evidence code Cap 8.01, which touch on the law relating to ethics in the
legal profession in Malawi. These other rules mainly relate to the legal practitioner duty not to
disclose his clients.

Confidential information in court unless with the permission of the client concerned. All the
provisions will be looked at in some more detail below. But let us first look at the bodies which
are responsible for ensuring that rules of ethics are complied with in this country.

B. The Malawi Law Society

The above named society is established under S. 25 of the legal education and legal practitioners
act. It is a body corporate invested with all the attributes of personably in law. The functions of
the society are broadly outlined in S. 26 of the act. These include not only to represent, protect
and assist legal practitioners as regards conditions of practice but a also to protect and assist the
public in Malawi on all matters touching ancillary or incidental to the law. S. 37 of the Act
establishes be a disciplinary committee of the society, which consists of the Solicitor General
and two other members elected by the society. The functions of the disciplinary committee are
stated in sub-section 2 of the section 37. Under this provision, it is stated that the disciplinary
committee shall inquire into the conduct of the legal practitioners (a) at the request of the High

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court or (b) on a complaint made by any person, which indicated that there may be grounds on
which the High court could make an order under the S.21 against a legal practitioner. The results
of the inquiry may or may not disclose a prima fane case against a legal practitioner concerned.
If a prima facie case is made, the disciplinary committee this fact to the Attorney General who
shall then take up the matter with the High Court against the lawyer involved. It the result of the
inquiry is negative, the committee shall so report to the High court or if the complaint was
brought by an individual person it shall dismiss it outright. In some cases, the disciplinary
committee may be of the view that the complaint was frivolous and vexatious. In this case, it
may direct that the complainant should meet the costs of the inquiry including the expenses,
which were incurred by the legal practitioners against whom the complaint was made. The
Malawi Law Society has many other functions under the provisions of S.26 of the Act but as far
as disciplinary functions are concerned, the position is as outlined above.

C. The Office of the Attorney General and the High Court

The office of the Attorney General is the one, which is in normal cases, responsible for presetting
petitions to the high court alleging that a particular legal practitioners has a case to answer under
S. 21 of the legal education and legal practitioners Act. This petition is presented after receiving
a report from the Disciplinary committee of the Malawi Law Society under S. 37 (4) of the Act.
The High Court has dual functions in this respect under S. 37 itself, the court may request the
Disciplinary committee of the Malawi Law Society to inquire into the professional of the Act,
this court hears petitions alleging professional misconduct by lawyers and it may take any of the
disciplinary measures stipulated in this section. These petitions are heard normally after
appropriate inquiries have been made by the Disciplinary Committee of the Malawi Law Society
at the instance of the court itself or that of the Attorney General. It should be noted in this regard
that the general rule under S. 37 (4) of the Act all the costs indicated to the carrying out of the
inquiry by the Disciplinary Committee of the Malawi Law Society must be paid by the legal
practitioner concerned and the court is empowered to make an order to that effect.

D. The Malawi Council of Legal Education.

This body is established under S. 3 of the legal education and legal practitioners Act. It is not,
strictly speaking, concerned with enforcing discipline in the legal profession. It may possibly do

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so only incidentally. Under S. 4 of the Act its functions are mainly concerned with the making of
regulations for the syllabus of Legal Education in this country and for attendance at law schools.
It is also responsible for controlling law course and the holding of examination in law. The
council may advise and make recommendation to the Minister of Justice on maters relating to
requisite qualification for the admission and enrolment of legal practitioners here. It is possibly
as regards this last function that incidentally disciplinary matters may be handled by the council
in that recommendation for admission to practise will inevitably exclude lawyers of proven bad
behaviour.

III. Duties of a legal practitioners

Practicing lawyers in Malawi have a duty to ensure that the integrity of the legal profession is
maintained. This duty is owed not only do the client following the signing of the retainership, but
also to the court, and to other lawyers and to the public generally. These duties emanate from the
initial understanding that the legal profession is sui generi in that it requires a high standard of
integrity by those concerned. This point has been emphasised by the High court in an umber of
occasions, particularly during those occasions when lawyers are admitted to practice. For
instance, when Mr Highton Lewis Jiya was being admitted Civil cause No. 4 of 1986, the court
said:-
Now the profession of the law, as you are aware, has a code of honour which
demands its members to obey and a code which expects from its members strict
integrity and probity. It also requires from its members the fulfilment of their duty
of their clients and their duty of the courts.

A substantially similar points in stated in the petition for admission of Mr Kandako Eliah Mhone.
The courts said:-
As you very well know, the profession of the law has a code of conduct, which
demands its members to obey, and a code, which expects from its members strict
integrity and probity. It also requires from its members the fulfilment of duty their
duty to the clients and to the courts. Again, as you know, it will be during your
appearances in court that you will be required to discharge these duties. You must
remember that the right do audience that you enjoy before the courts and the
privilege which covers all that say and do, in the course of a trial lays a heavy
burden upon you. I therefore urge you that you will never abuse the occasion. You
decide what to say and what to ask. You should resist the temptation to ask
questions whose only purpose is to cause pain or annoyance or to trick.

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The court then went on to say as follows:-
There is another point on which I would like to say a word. The judicial system,
as you are aware enjoins that the case on each side should be heard. One will be
right and the other wrong and that, of course, the court decides. You should
therefore remember that you are an integral part of the judicial system, which is
therefore one purpose, with one objective only, which is to do justice accordingly
to the law.

These pronouncements, which reflect general and accepted principles of legal ethics, are as
important elsewhere in the world as they are in Malawi. They require a high standard of duty and
integrity from a lawyer. It is said that a lawyer is prima facie, lacking in integrity and probity if
he is subject to any or all of the following deficiencies in, that is to say.
1. He is convicted by a competent court of criminal jurisdiction of an offence
involving moral turpitude, that which reflects on his personally and personal
conduct.
2. Whether or not he is the subject of a criminal prosecution he commits, even in his
personal capacity, any act of fraud or dishonesty such as where he knowingly
makes a fraudulent income tax return or where he forges a bank document even
without fraudulent intent.
3. He commits any act of fraud or dishonesty against his client.
4. He makes any untrue representation to or conceals any material facts from his
client with dishonesty or improper motives.
5. He takes improper advantages of the youth, in experiences, lack of education, ill-
health or unbusiness like habits of a client.
6. He misappropriates his clients money or dishonesty pays any money held by him
for his client otherwise than to the client or on behalf of the client.
7. He fails, without the client’s consent to pay over for that intended purpose any
money received by him from or on behalf of a client expressing for a specific
purpose.
8. He charges against his client fees or expenses, which are unjustifiable or of such
excessive amount as to introduce the element of fraud or dishonesty.
9. He fails to disclose to his client any personal inters which he may have in his
client’s transaction.

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10. He gives to his client at any time an opinion, which is not a honest and candid one
on the facts submitted to him or on behalf of his client.
11. He knowingly assists, enables or permits any person to act fraudulently,
dishonesty or illegally/towards his client.
12. He knowledge attempts to deceive or mislead the court or enable, his client to do
so.
13. He gives or permits any client or witness to give evidence, which he knows to be
false.
14. He give to the court any information or advice which to his knowledge is contrary
to the law.
15. He knowingly assists, enviable or permits his client to do anything, which in his
opinion is dishonest or dishonourable. So, where he discovers in the course of
proceedings some illegality or gross irregularity committed by his client, which
by reason of the rule affecting privilege or confidentiality he is prevented from
disclosing, he should discontinue acting for the client.
16. He attempts or permits any other person to attempts, either directly or indirectly,
to influence the decision or action of any Judge or official of the court such as the
Registrar, with regard to any case or matter, whether by bribery, personal
approach or any means other than persuasion in pursuance of his duty advocate.
17. Subject only to not betraying his clients’ cause, he abandons his legal rights or
discloses his confidences to third parties; he is not absolutely frank and candid in
all his dealing with the court, his fellow lawyers and other parties to the
proceedings.
18. He dissuades or attempts to dissuade a material witness from giving evidence in
proceedings.
19. He abuses the process of the court by instituting for a client from motives of
malice or anger proceedings, whether or not they may legally be taken by the
client, which would to his knowledge unnecessarily injure the defendant.
20. When dealing professionally with a person who in not legally represental, he fails
to make proper disclosure of material facts. This may happen, for example where
he does not disclose the existence of a mortgage on properly being sold or by

94
 supplying false information to such person. it is immaterial in this respect whether
he is representing a client in the transaction or is concerned personally.
21. He fails to honour a written undertaking given by him or his firm to any person
unless on the face of the undertaking it clear that he was not accepting personal
responsibility.
22. However consented reference for any individual, he gives one, which is not true.

All these rule, which relate to the lawyers integrity on the profession tie very well with those
rules, which relate to his duty to the client, the court. Etc. let us now look some specific rules,
which relate to his duty.

A. Duty for the client

It is said that a lawyers primary duty is to his client. He has to serve the client with the best of his
skill and care and that he is under a duty to preserve the confidences of his client. As far as
financial dealings are concerned, he has to ensure that proper accounts are maintained for his
clients and he should avoid using clients money fro personal purposes.

Amongst the specific duties, which a lawyer is expected to discharge towards his client are the
following:
1. He must avoid negligence and delay in the handling of this clients business.
2. He should try as much as possible to reach a solution, in any given case, … of
court instead of dragging his client into an unnecessary litigation which may be
costly.
3. He must avoid bias in his dealings with his client. Professional independence
must be maintained and his involvement in any other business, occupation or
employing must not interfere with his impartial dealings with his client.
4. He should not with draw from a case in such a way that his client is embarrassed.
He should only do so for good reason shown and is such a way that the interests
of his client are protected even after his withdrawal.

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 5. In criminal proceedings he should do all he can to defend his client by putting
forward every available defence. He should not abandon the case just because he
knows that his client is guilty or because he fears personal involvement in the
mater.
6. He should not acquire any personal interest, such as a financial gain, in the subject
matter of his clients action. It may be otherwise in cases where he himself is a
party to the proceedings.
7. He should avoid the temptations of representing or acting on behalf of two or
more clients any proceedings without their express request made after a full
disclosure of the facts of the case. This is especially so where it is clear that
conflict of interests between the clients has arise or may arise in the future.
8. He must not disclose his clients confidential information made to him by his
client. This duty continues even after the termination of the retainership.
9. He must pay all the money belonging to his client into a separate clients account
and this money must be paid in this account as soon as it is received unless
instructed otherwise by his client. He must not mix his own money with that of
his client.
10. Proper written accounts must be kept in respect of all the money received from or
on behalf of his clients.

The above duties of lawyer to his client have received judicial recognition in a number of cases.
The best judicial pronouncement on this point appears to be that of Kennedy J. in Galbraith v
Elder (1839) 8 Watts (pa) 18 when he said.
The profession of a lawyer, when regulated by principles of sound morality and
mindedness as it ever ought to be, has at all times been regarded as one of great
honour and usefulness, but to render such profession… it is very obvious that
most scrupulous fidelity must be forever observed on the part of the lawyer
towards his client, so that he shall never betray or take advantage, either in word
or deed of anything that has come to his knowledge by means of any
communication from his client, or from papers or documents of the latter put into
his hands. In order that the interest of the client, may, in this respect, be protected
and made secure, good policy would seem to require, as well as every principle of
honour and fair dealing, that the counsel or attorney should not be permitted to do
anything that would tend to prejudice the interest of his clients, or occasion a loss
to him in reference to anything upon which he was consulted.

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A substantially similar observation was also made by Nelson J. in the United States Supreme
Court in Stockton v Ford (1850) 52 US 232. It may so happen that a lawyer fails to discharge
some of his duties to his client. This may result in the client in question being put at disadvantage
in the litigation. In Tratsel Supplies Ltd S.J. Mwakalinga Civ Cause No.19 of 1987 MSCA
unrep, failure on the part of the legal practitioner involved to discharge the duty of diligency led
to the time running out in which to appeal to the MSCA; with the result that the client had to pay
over K10,000 in satisfaction of the judgement of the court below.

B. Duty of the court

Legal practitioners owe a duty to the court to see to it that the administration of justice is
properly carried out. This duty means that a legal practitioners should, at all times, treat members
of the bench during litigation with respect. He should also ensure a good working relationship
with the lawyers for the other side. He should avoid exchanging personalities with the opposing
legal practitioners. Even witnesses for the other side must be respected and it is said that as a
general rule, he should address all this remarks to the court and not the layers for the other side
of the case.

It may also happen that the legal practitioner concerned will be called as a principal witness in
the case which is about to go to court. In this case, as part of his duty to the court, he should not
act as counsel in the same litigation because a conflict of interests may inevitably arise. It may be
otherwise if his only testimony as a witness will be to give some purely formal proof such as the
authenticity of name signature on a material document it sometimes may happen that the services
of wanted may be required in those cases where persons are assisted under he Legal Aid scheme.
It is said that a legal practitioner will be required in this case, he use the same skill and diligency
as he usually does with his own private clients. The rational behind this rule is that the ultimate
aim of a legal practitioner in both cases is to see to it that the court is assisted in reaching the
correct and just conclusion.

Every lawyer also owes a duty to the court not to decline to take up proceedings, on behalf of a
client, against another lawyer except on good reason shown where good reasons have been

97
shown, such as personal intimacy with the sued lawyer, he should try as much as possible to
ensure that the client is represented by another lawyer after he himself declines.

There are also a number of their duties which a lawyer, owes to the court. First, he should avoid
misleading the court as this may result in the failure of justice and it may reflect on the lack of
integrity of the lawyer concerned its and officer of the High Court in line with S. 39 of the
LELPA, a legal practitioner should try as much as possible to balance the interests of his client in
court and those of the court itself. In particular, he should avoid hiding material facts to the court
even if these facts may be unfavourable to his clients case. In Rondel v Worsley (1966) 3 AllER
657 Lord Denning MR said:-

As an advocate he is a minister of justice equally with the judge… He must

accept the brief and do all he can honourably can on behalf of his client. I say call
he honourably can because his duty is not only to his client. He has a duty to the
court which is paramount. It is a mistake to suppose that he is the mouthpiece of
his client of say what he want to his tool to do what he directs. He is none of these
things. He owes allegiance to a higher cause. it is the cause of truth and justice.
He must not knowingly conceal the truth. He must not unjustly make a charge of
fraud, that is, without evidence to support. He must produce all the relevant
authorities, even those that are against him. He must see that his client discloses,
if ordered, the relevant document, even those that are fatal his case. He must
disregard the most specific instructions his client, if they conflict with is duty to
the court. The code which requires a banister to do all this is not a code of law. It
is a code of honour. If he breaks it he is offending against the rules of the
profession and is subject to its discipline;

The High court in this country has time and again reminded lawyers that they owe a duty to the
court which must not be overlooked. This was emphasised by the Chief Justice during the
admission of Mr Lewish Jiya and also during the admission of Mr Gaffar Latif, Civ cause no.
374 of 1986 and civil cause no. 243 of 1987 respectively. In the former case, the courts said:-

Remember that an advocate has a duty to the judge. He is not called upon to
vouch his case but to argue it. Consequently, therefore you should avoid
expressing your personal confidence in the righteousness of your case.

The duty to the court requires that thorough research must be done before presenting ones case
in court. Capacity for hard work is essential. Once a legal practitioner has not prepared his work
well, the court knows this fact very well and adjournments may be ordered so that counsel goes
back to do research. This causes some delay and it reflect very badly on the legal practitioners

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concerned. In De Souza v. Wakotoka Civ Cause no. 521 pf 1986 H.C. (unrep), the learned Judge
(Mtegha J.) said.

This Cleary shows that that preparation of this case was not adequate by both
parties. It must be stated, and has been before by my brother judges, including the
chief Justice, that meticulous care should be taken in the preparation of pleadings.
Failure to do so results in injustice being occasioned to the parties to the cause.
Moreover it becomes extremely difficult for the court to discern what is at issue.
Pleadings must clearly set out the case for each party.

It is also important that the lawyer should look up the correct law and not to concentrate on those
authorities, which have not bearing on the case at all. Research which is done per incurian does
not pay dividends to the legal practitioners concerned. In Rodwell Securities v. I.R.C. (1968) 1
AIIER 257, the learned judge (Penny Chick J.) said:

It was referred to a number of cases, none of which, with all respect to counsel for
the securities company, appeared to come anywhere near beating out this
proposition

It is submitted that the duty for thorough research and proper preparation of the case goes to the
integrity of every and lawyer in the legal profession in Malawi.

C. Duty of the profession

Every legal practitioner owes certain duties to the legal profession of which he is a part. It is said
that a legal practitioner should treat other legal practitioners which courtesy and he must address
than honourably legal practitioners who represent the opposite sides of the case should also treat
each other fairly and frankly. They must remembers that they are not parties to the case and
hence they must avoid challenging each other on a personal level.

Duties to the profession carry with it the following obligations on the part of the legal
practitioner.
1. He must avoid scandalous behaviour such as appearing in court while drunk or
being excessively involved in immoral behaviour.
2. He must avoid advertising for his services directly or indirectly. A legal
practitioner is entitled to such incidental publicity as it necessary consequence of
the prosper exercise of his profession such as dispatching letters written on

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 headed papers. However, a legal practitioner who advertises outright such as by
causing to the published the period and cases in which he has acted as counsel or
who appears at television or film in court robes acts contrary to professional
etiquettes.
3. He must avoid the tendency of shaving the proceeds of litigation with persons
who are non-professionals with the aim of employing these persons in attracting
business to himself.
4. The letters, which he writes to his client or to others lawyers must be polite and
honourably written. The addressee must be respected throughout the letter.
5. He must avoid interviewing or otherwise communicating with any person who he
knows to be represented in the pending case by another lawyer unless this other
lawyer consents. All communications must be carried on between the lawyers
themselves unless if the lawyers for the other side does not reply in which case
direct contact may be made to the client for this other lawyer. In this last case, this
other lawyer must be informed that direct contact is being made to the client.
6. He must not accept instructions from a client who has been represented by
another lawyer unless this other lawyer is notified of the change, which his client
seeks to make.
7. When he employees an agents to act on behalf of his client, he must pay proper
fee to this agent whether or not he himself has received any pay from the client.
All in all, a legal practitioner must acquire a status of trustworthy amongst this colleagues in the
profession. He must be that type of a person who is sociable but who is always aware of his
special position in society.

D. Duty to the Public

The public is interested in the legal profession for the purposes of being represented in both
contentious and non-contentious matters. Every legal practitioner therefore owes certain duties to
the public, the chief one being to preserve the confidence and respectability of the profession. In
order to achieve this main duty, a legal practitioner should ensure that he does not provoke
litigation when there is no need to do so. He should not use the legal profession purely for gain
or personal advantage. A legal practitioner should not act in any proceedings where he would

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ultimately influence the decision of the tribunal by virtue of any other office held by him. The
public is interested in seeing to it that justice is done by the court and this will not be possible
where certain clients obtain preferential treatment because their legal practitioner has managed to
exert undue influence on the deciding tribunal.

In those circumstances in which a legal practitioner manages a firm or has a number of staff
under him, the public will inevitably come into contact with these other staff members. It is the
duty of the legal practitioner to ensure that he supervises his staff properly so that the public is
not misled by these other members of the firm. This duty also requires a legal practitioner to
delegate his law functions only to those persons who legally qualified or, I f not legally qualified,
those who can be supervised by him. the ultimate objective of this duty is to ensure that the
public is protected from dealing with those persons who may not be well acquainted with the
law.

A legal practitioner should also ensure that his name or, more especially, his firm’s name is not
used by any person or body corporate to practice the law when such legal person is not legally
qualified to do so. A practice of this kind would inevitably bring the profession of the law into
dis-repute. It is also important that a legal practitioners general disposition to the pubic in good.
He should try as much as possible to keep a low profile, without at the same time derogating
from his decency and integrity. He should avoid boasting in public and/or despising those who
are not lawyers by profession. He should, at all time aim at serving the public without causing
annoyance to anybody.

IV. Misconduct
The law relating to discipline in the legal profession in Malawi is contained in SS. 21 to 24 of the
legal Education and legal practitioner Act, Cap 3:04 of the Laws of Malawi. A legal practitioner
is expected to follow the legal practitioners practise rules, both of which are made under the
authority of S. 36 of the above named Act. Failure to follow these rules may be enough ground
for taking a disciplinary action against a legal practitioner under the provisions of S. 21 of the
Act.

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Specifically, it is provided in S.21 that the High court, either of its own motion and after inquiry
as it thinks fit. Or on application made by the Attorney General may make an order suspending
any legal practitioner, or striking any legal practitioner off the Roll, or admonish any legal
practitioner if he has failed in one or more of his duties to the client, the court, the profession or
the public. Let us look at the disciplinary actions one by one.

A. Striking off the Roll of the practitioners

This is disciplinary action is taken in the worst of the offences under the legal education and
legal practitioners Act or the rules made there under. There offences are usually those involving
a gross breach of the practitioners duty to his client. In Alt.Gen v. Mutuwawira Civ cause no.
158 of 1981 H. C unrep. The legal practitioner concerned had withdrawn money from clients
account and used it otherwise than it required by Rule 7 of the Legal Practitioners Accounts
Rules. He was convicted of theft and sentenced to 18 months imprisonment with hard labour by
the chief resident magistrate’s court at Blantyre. In the above application where the Attorney
General was seeking disciplinary action against the practitioner for professional misconduct, the
courts said:-
The offence of which the legal practitioner was convicted involved clients money.
It is not a case where a nominal penalty was imposed by the court. It was an
offence of dishonest and relation to one of his clients. No doubts if he has stolen
money from more than one clients his conduct would be even reprehensive but is
seems to us that a conviction for stealing one clients money is an offence of such
a nature as to bring the whole profession of the law into disrepute and to render
the offender unfit to be a member of that profession. We order that the name of
Mr Mutuwawira be struck off the Role of Practitioners.

Another case in which the legal practitioners concerned was struck off the Roll of legal
practitioners is that of Alt Gen. V. Munthali. Civ cause no. 386 of 1985 H.C. Unrep. This case
also involved a gross breach of the practitioner’s duty by his clients. The courts said:-
This court is of the view that what the legal practitioner did, in leaving the affairs
of the client in the care of nobody, brings the while profession of the law into
disrepute and it renders him unfit to be a member of the profession.

It should be noted that the fact that this disciplinary order is rarely used shows that only the worst
offences under the LELPA can attract this order.

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B. Suspension from Practising
This is another order which the High court may make against a legal practitioners also has been
found guilty of professional misconduct. Suspension is a less severe penalty when compared to
that of striking off the Roll of practitioners; hence, it will be ordered where the misconduct falls
short of that which would warrant striking off the roll.

There has been at least one case in which a legal practitioners has been suspended from practice
by the High court. In Attorney- General v. O.E. Chirambo Civ cause no. 444 of 1985 H.C unrep.
The legal practitioner concerned recovered K12,000 from the National Insurance Company on
behalf of his client, who had suffered personal injuries involving a government vehicle. The legal
practitioners concerned, however, only managed to release K5,000 withheld K7,000. He told his
client that some money would be given latter after had assessed all his fees and costs. It was later
on discovered that he was withholding K7000 and after being contacted by the nephew of his
client, he realised a further K3000 and stated that he was keeping K4000 as his costs. It was
stated by the court that theft had not been proved beyond reasonable doubt and therefore the
legal practitioner could not be struck off the Roll of practitioners. However, the legal practitioner
was found to have committed an act of deceit towards his client.
The court said:
We are however, satisfied that the legal practitioner deceiver the client by
deliberately out disclosing to him the actual amount of settlement. He deliberately
wanted to keep the chief in the dark yet this was the clients money. This conduct
was reprehensive and in our opinion was such as to bring the profession of the
law … disrepute

The legal practitioner was also found to be guilty of overcharging his client. On this point, the
court said:-
The legal practitioner recover K994.50 for party and party costs and the charges
of K4000 on top of this, bringing his total to almost K5,000, was in our view not
justified to have known that he could not justify such sum. In our judgement the
taking of such unjustified, grossly excessive fee and without any agreement with
the client was conduct tending to bring profession of the law into disrepute.
On the above facts, the legal practitioners concerned was suspended from practising for three
years. There was an additional order by the court requiring him to pay to the client the sum of

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K3000 within fourteen days. It is submitted that on the facts of this case, suspension was indeed
the correct order to make against Mr. O.E. Chirambo.

C. Admonition
This order is made by the court in those professional misconducts, which are less serous.
Situations where there is a lesser degree of negligence on the past of the practitioner of where the
misconduct is as a result of blameless in advertence may not be ideal fro the more stringent
disciplinary action of suspension from practicing.

Two cases may be cited to illustrate this point. In Attorney General v. Duggral (1966-68) Durmal
588, the respondent legal practitioner was admonished for having failed, inadvertently to attend a
court session on behalf of his client. Judgement in default of appearance was entered against his
client. In addition to this misconduct, he failed to satisfy the judgment debt on behalf of his
client, a debt which amounted to $12.05. 6d criminal proceeding for contempt of court were
commenced against the client because of this failure on the part of the practitioner. The court
said:-
In all the circumstances, it can not be doubted that the responded conduct,
whether it is judged by the standards of an ordinary reasonable man or by the
standards of the other members of the respondent profession, was such as must
inevitably tend to bring into disrepute the profession to which he belongs. He is
accordingly found guilty of conduct tending to bring the profession on the law
into disrepute, within the provisions of S.21 (1) (ii) of the Legal Education and
Legal Practitioners Act, 1965.
The court the addressed itself to the issue of the appropriate disciplinary action to take in the
circumstances. It said:-
As the Attorney General has conceded, the conduct of which the respondent has
been found guilty is not in any way of a criminal nature, and indeed involves no
element of deliberation. The Attorney –General accordingly does not seek the
suspension or striking off of the respondent such as course would not be justified.
It is clear, nevertheless, that the respondents conduct can not be condoned or
overlooked. He is accordingly hereby admonished.

Another case involving this disciplinary action is that of Attorney General v. Mgorozera Chiume
Civ. Cause No. 177 of 1984 H.C. unrep. The facts established were that the respondent had
employed two persons who indirectly solicited clients on his behalf. This was contrary to S. 21

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(1) (d) of the Legal Education and Legal Practitioners Act, 1965. Under this provision,
disciplinary action may be taken against a legal practitioners:-

(d) if he directly or indirectly has procured or attempted to procure the

employment of himself as a legal practitioners through or by the intervention
of any person to whom any remuneration of obtaining such employment has
been given by him or agreed or promised to be so given.

On the facts outlined above, the legal practitioners was admonished and he was ordered to apply
the cost of litigation.

V. Conclusion
The law relating to ethics and etiquette in Malawi is contained in the Legal Education and Legal
Practitioners Act of 1965. While it is true that the code of ethics in the legal profession
transcends national boundaries, this particular Act in Malawi is said to be unlike similar
legislation in other jurisdictions such as England. It is said that this Act must be interpreted in the
light of the circumstances prevailing here without too much reliance on authorities from
England. In Att Gen. V. Ouggal (1966 – 68). Airmail 588 Southworth is said:

Counsel for the respondent has endeavoured to interpret the law in the matter now
before the court in parallel terms to the opposite English law. The Attorney
General challenges the validity of this approach. The relevant law in England is
contained in the solicitors Act, 1957, and in rules made under the powers
conferred by that Act. With regard to barristers in England, the Benches of the
Ivins of Court have power to suspend or disbar. In Malawi, where the two
branches of the profession have been fused, the corresponding law is contained in
the Legal Education and Legal Practitioners Act, 1965 and the legal Practitioners
Practice Rules 1967, made in exercise of the power conferred by S. 35 (sic) of the
Act. A most searching perusal of the English and Malawian statutes and rules
does not disclose any correspondence between them sufficient to support the view
that the Malawian Act and Rules are in effect a rendering of the English Act and
Rules, or even to justify the inference that the Malawian Act and Rules are
derived from the English Act and Rules. It cannot be doubted that certain of the
provision of our Act and Rules are indeed derived from their English
counterparts, but some of them are not, and some of those so derived have been
substantially altered in their translation to Malawi. There is nothing in the English
Act and Rules corresponding to the phraseology of S.21 (1) (i) of the Legal
Education and Legal Practitioners Act, 1965…. If the legislature of the country
and the local Law society had been minded to follow the statutes end rule
applicable in England, then it is obvious that they would have done so in a move

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 explicit manner. It is clear from a perusal of the two statutes and the rules made
under them that it was the intention of the legislature and of the Law Society in
Malawi to enact a statute and to make rules peculiar to this country and suited to
the conditions here, that are intentionally different from the statute and rules in
force in England.

Many of the cases discussed above were in those concerning disciplinary proceedings against a
legal practitioner. However, there is dicta in many other cases that is of some relevance to the
practitioners duty to the client, the court or the profession. In Raselo v. R (1923-60) Air mal 996
at p. 1000 the court emphasised the duty of the practitioner to attend court sessions on behalf of
his client on the dates fixed by the court. The learned Chief Justice Spencer-Wilkison said:-
Whilst the courts in this country in practice have always given considerable
latitude – perhaps too much latitude – to legal practitioners in the matter of fixing
dates for the trial of cases because of the difficulties which counsel have in a
appearing of places very distant from their places of business, yet criminal cases
cannot, in my opinion, be properly adjourned for long periods (especially where it
is considered in advisable to release the accused persons on bail), merely for the
convenience of counsel. It a legal practitioner is unlikely to be alto appear on the
date when the trial of an accused person is likely to be fixed, he should in my
opinion, refuse to act for him; or if it subsequently turns out that he cannot appear
on the date fixed, he should make arrangements for some other legal practitioner
to appear in his stead, or failing this, he should return any fee paid to him and
inform the court that he is no longer acting for the accused.

It was further stated obiter dicta in In re Osman Hussein (1923-60) Air mal 276 at pp. 281-282
that a legal practitioner (or pleader) should not appear as a witness in a case in which he is
retained; except in those cases where it is absolutely necessary to do so in order to save costs or
because it was not possible to engage another lawyer. This is part of the lawyer’s duty to the
court aimed at checking the possibility of perverting the proper administration of justice. It
should be noted, however, that rules of ethics and etiquette in Malawi are well observed by legal
practitioners. This is evidenced by the fact that few cases reach the High Court for disciplinary
action against legal practitioners involving of the provisions of the Legal Education and Legal
Practitioners Act of 1965.

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EVEDENTIAL BURDEN

When a party to a case produces so much evidence of a fact in issue that, if the evidence

is believed, any reasonable man would infer that the fact exists, he is said to have produced

prima facie evidence of the fact in issue. The party concerned is said to have discharged the

evidential burden in the burden of adducing sufficient on a particular fact. The prosecution in

criminal cases or the plaintiff in civil cases has avoided the possibility of having his case

dismissed for want of sufficient evidence. Conversely, he has reached a position where if no

contrary evidence is adduced by his opponent, that failure will of itself increase the likelihood of

the court’s finding in favor of the proponent on that fact. It must be noted that this is only true if

the proponent has made out a prima facie case for the opponent to answer. If he has not, he

cannot hope to have his prima facie case made for him by the opponent’s failure to call evidence,

because unless and until there is a prima facie case to meet, the stage at which any explanation

by the opponent is called for has no yet arrived. However, prima facie evidence can be rendered

conclusive by a failure to meet it.

In R v. Bardett (1820) 4 B & Ald. 95, Abbott CJ said:-

‘’No person is to be required to explain or contradict, until enough has been proved to

warrant a reasonable and just conclusion against him, in the absence of explanation or

contradiction; but when such proof has been given, and the nature of the case is such as to

admit of explanation or contradiction, if the conclusion to which the proof tends to be

untrue, and the accused offers no explanation or contradiction, can human reason do

otherwise than adopt the conclusion to which the proof tend?

This observation applies both to civil and criminal cases.

Mc Queen v. Greater Western Rly (1875) LR 10 QB 569

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In a single issue, there are only two occasions when the judge has to rule on the evidential

burden. One is at the outset in deciding who must start, i.e. who must lose if no evidence is

adduced by either side. It is normally although not invariably the part under the legal burden (the

proponent) who is under an evidential burden and must therefore start. The second occasion is at

the conclusion of the proponent’s evidence, when a submission is made that no case to answer

has been made out. The judge will rule, either that the proponent has not made out a case, in

which even he will at once give judgment for the opponent, or he will rue that there is a case to

answer (i.e. the proponent has discharged his evidential burden) in which event the opponent is

faced with the desirability, but not the necessity of adducing evidence. If he does adduce prima

facie evidence, this is not an occasion for a further ruling by the judge; there is no casting of the

evidential burden back to the proponent. The tribunal proceeds to decision, and here, at this

stage, is the incidence of the legal burden important.

If the evidence leaves the tribunal of fact undecided, the proponent must fail in his case. Each

side is normally given one turn only to discharge the evidential burden; after which the judge

must proceed to the final decision on the merits.

The position in criminal cases is similar except that the very high standard of proof required of

the prosecution necessarily means that any burden resting on the defense is lighter than under

which a defendant is an civil case may find himself. Although the legal burden remains on the

prosecution throughout the case, it may discharge its evidential burden by adducing sufficient

evidence of the offence charged. When that happens the accused, like the defendant in a civil

case, is under the risk of an adverse verdict on sufficient evidence, and although he may decide

merely to await the outcome, which might not be adverse after all, he will be in a much better

position if he call evidence in defence. But any reasonable doubt at the end of the trial will mean

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that the prosecution has not discharged its persuasive (legal) burden of proof. Therefore all that

the accused needs to aim at is the raising of such reasonable doubt by his evidence, which may

well be enough for his limited purpose even if it is a long way short of sufficient evidence e in

itself.

The Incidence of the Burdens

The general rule has already been noted above. In the absence of some relevant presumption, the

legal burden is normally on the plaintiff in civil cases. It may be otherwise if all the issues

putting the burden on him have been formally conceded by the defendant. In criminal cases, the

legal burden is on the prosecution. The evidential burden is borne at the outset by him who has

the legal burden, because unless he produces sufficient evidence o his allegations or assertions,

the case will not go any further. The judge will record a verdict of no case to answer. However,

there are exceptional circumstances where the accused, or the defendant in a civil action, has the

burden cast on him by the law. Let us now look at some these exceptions:

Insanity

The defence of insanity is a special case. Strictly speaking, it is not a defence at all. It is rather a

separate issue, in which the legal burden is on the accused. The M’Naghten case of 1843

established the rule that the jurors ought to be told in all cases that every man is presumed to be

sane until the contrary is proved to their satisfaction. These rules have been codified in Section

11 and 12 of the penal code. Hence, it is upon the accused that retains the legal burden to satisfy

the court that he is insane.

See Section 188 (2) (c) of the CP & EC

See also R v. Proteziyo [1923-60] ALR Mal 200

Kachinga v. R [1923-60] ALR Mal 126

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Although the burden is not as heavy as that testing on the prosecution as to other issues in the

case, it remains on the accused throughout the trial. The judge may rule that he has not

discharged it if, in the judge’s view, there is not sufficient evidence to justify a finding of

insanity.

R v. Windle [1952] 2 QB 826 @ 831

Other exception:

There are many other statutory exceptions which place the legal burden on the accused, contrary

to the normal incidence of this burden of proof. First, on a charge under Section 81 (1) of the

Penal Code, once it is proved by the prosecution that the accused had an offensive weapon in his

possession, the accused bears the burden of proving lawful authority or reasonable excuse for

such possession. Secondly, where the accused is charged with the offence of public servant, the

legal burden of proof initially lies on the prosecution to establish the qualifying conditions for

the operation of the presumption in Section 283 (1) of the Penal code. Once this has been done

the legal burden is then placed on the accused to satisfy the court, on a balance of probabilities,

that he did not steal the property in question.

See Thompson v. Rep [1968-70] ALR Mal 264

Hill v. Rep 1971 -72 ALR Mal 180.

Thirdly under S 313 (c) of the Penal Code, which defines the offence of unlawful possession of

an instrument of housebreaking, the burden o f proof is initially place on the prosecution to

establish that the accused was in possession of the alleged housebreaking instrument at night.

The legal burden is then placed on the accused to show on the balance of probabilities, that he

has a lawful excuse for such possession. Fourthly, under Section 329 of the Penal Code, the

prosecution must establish, beyond reasonable doubt, that the accused had in his possession

something reasonably suspected of having been stolen, or unlawfully obtained. Once this has

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been done, the burden is then placed on the accused to satisfy the court that his possession is

lawful.

Rep v. Mongola [1966-68] ALR Mal 297

Standard of proof

There are different standards of proof for criminal cases and civil cases. It is therefore necessary

to looka tat these two separately.

Criminal cases: in these cases the standard required by the law to prove the guilt of the accused

is that beyond all reasonable doubt. One of the reasons why this is so is because the accused has

the presumption of innocence on his side and the prosecution must rebut this decisively. In

Miller v. Ministry of Pension [1947] 2 ALL ER 372, Denning J, speaking of this standard

said:-

That degree is well settled. It need not reach certainty, but it must carry a high degree of

probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a

doubt. The law would fail to protect the community if ti admitted fanciful possibilities to

deflect the course of justice. If the evidence is so strong against a man as to leave only a

remote possibility in his favor which can be dismissed with the sentence “of course it is

possible, but not in the least possible” , the case is not proved beyond reasonable doubt,

but nothing short of that will suffice.

The above passage was approved by the High Court herein Rep v. Banda (1968-70) ALR Mal

96. The standard mentioned above must still be discharged even if the accused offers no

evidence to be weighed against that of the prosecution.

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As far as the accused is concerned, he is entitled to succeed if his evidence does no more than

raise a doubt in the mind of the judge. This means that he is entitled to a verdict if he persuades

the court that, on the particular issue his evidence is more probably true than false.

R v. Carr- Briant [1943] KB 607

Sodeman v. R [1936] 2 ALL ER 1138.
The judge is normally supposed to remind himself that the criminal standard of proof does not

apply to the accused. Failure to remind himself in this respect may be enough ground for appeal

to the higher tribunal by the accused.

Civil cases: The general rule is that the party upon whom the persuasive (i.e. legal) burden of

proof rests is entitled to a verdict if his evidence establishes on the balance of probabilities that

what he is saying is more true than not. He has to persuade the tribunal of fact (judge or jury)

that his version of the story is more probable than that of his opponent.

Occasionally however, a party in a civil case is faced with a presumption, which casts on him a

higher standard than that on a mere balance of probability. For example, in cases where domicile

is in issue, the intention to abandon a domicile of origin must be clearly and unequivocally

proved.

Moorehouse v. Lord (1863) 10 HLC 272 @ 286

In the Estate of Fuld, deceased (No. 3) [1968] 675 at 685
Likewise, acquisition of domicile of choice cannot be inferred from words or actions which fall

short a clear and unambiguous desire to do so. Hence, ordinarily, proof that a person has

acquired a new domicile of choice may require a higher standard than that which obtains in

ordinary civil cases.

See In the Estate of Fuld, deceased (No. 3) [1968] 675 at 685

Re Flynn [1968] 1 WLR 103

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Matrimonial causes, particularly those alleging the offence of adultery, may need proof which is

higher than that in other civil cases. Far a considerable period of time, the offence of adultery

had to be proved beyond reasonable doubt just as the case in criminal cases.

Ginesi v. Ginesi [1948] 1 ALL ER 124

Preston Jones v. Preston Jones [1951] 3 ALL ER 124
Hornal v. Neuberger Products [1956] 1 ALL ER 970

Bearing in mind the fact that adultery is a civil offence, the courts in Britain began to question

the accuracy of demanding this high standard of proof in this particular offence. Lord Denning in

Blyth v. Blyth [1966] 1 ALL ER 524 rejected this higher standard of proof as far as cases of

adultery is concerned. At the same time, realizing that this particular offence is very much akin

to criminal offences and also because it touches on questions of legitimacy of issue and their

succession to property, the lower standard on the mere balance of probability was seen as

unsuitable for proving the offence. Illegitimacy of issue should not be lightly inferred. Hence the

case of Blyth v. Blyth establishes that adultery must be proved on the preponderance of

probability, which is a standard higher than that of the mere balance of probability but lower than

that required in criminal cases.

Bestable v. Bestable and Sandiers [1968] 1 WLR 1684

As far as customary law marriages are concerned, it is submitted that allegation of adultery in

these marriages should be proved on a mere balance of probability. This is so because adultery is

not a very serious offence at customary law and therefore, there is no justification at all to equate

adultery at customary law to a heinous criminal offence such as theft. In Luhana v Devis Civil

App Case No. 115 of 1975, NTAC, (unrep) the complainant husband preferred, on more than

one occasion, o sue for damages for his wife’s adultery instead of seeking a divorce decree. The

same was the case in Gondwe v. Chiju Civil App Case No. 43 of 1979 NTAC (unrep). These

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cases bear testimony to the fact that husbands to customary law marriages do not view adultery

cases as very serious matrimonial offences.

See also JWD Mwase v. Vaida Banda Civ App Case No. 59 of 1981, NTAC (unrep).

THE HAPPY ENDING!

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