SECTION 6 – RULES OF EVIDENCE

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Introduction

 

The defence lawyer must be fully conversant with the rules of evidence. Most criminal cases turn on the facts and the inferences to be drawn from those facts, rather than on points of law. The facts are therefore of key importance. The rules of evidence are also of primary importance as they lay down such things as which facts may be admitted, which persons are competent to give testimony, how the facts may be proved, when affidavit evidence may be introduced, when confessions are admissible and so on.

 

What follows in this section is a summary of the main rules of evidence which may be of assistance when a lawyer is defending clients in criminal cases. These rules are first described from the standpoint of how they are applied by the courts. They are then examined from the perspective of how they can be used in favour of persons charged with various crimes.

 

Proof beyond reasonable doubt

 

The State is required to prove the guilt of the accused beyond reasonable doubt. Proof beyond reasonable doubt requires more than proof on a balance of probabilities. It is not, however, proof to an absolute degree of certainty or beyond a shadow of a doubt. Where there is proof beyond reasonable doubt no reasonable doubt will remain as to the guilt of the accused. If a reasonable person would still entertain a reasonable doubt as to whether the accused is guilty, the accused is entitled to be acquitted. Fanciful or remote possibilities do not introduce a reasonable doubt: Isolano 1985 (1) ZLR 62 at 64-65.

 

Corroboration

 

The evidence of certain classes of witnesses is insufficient, standing alone, as proof the facts deposed to.  Such witnesses- for example, accomplices, young children and complainants in sexual cases - must usually be corroborated. 

 

By corroboration is meant evidence other than that of the witness which is consistent with the witness's version of the facts and which tends to show the guilt of the accused.

 

To be of evidential weight the fact or facts corroborated must be material ones. Corroboration of insignificant facts will not usually help to strengthen the State case.

 

From the standpoint of the State what is important is for there to be "implicatory corroboration". By this is meant evidence that implicates the accused in the commission of the offence.

 

The corroboration can come from the evidence of another witness or from the evidence of the accused. The confession of an accused can be used as evidence corroborating other evidence. Even the failure of the accused to tell the truth can sometimes be corroborative of other evidence:  Katerere S-55-91.

 

In certain situations dealt with below, a “cautionary rule” applies. In these situations, the courts have to be aware of the dangers which arise from accepting certain types of evidence, especially if that evidence is uncorroborated. It is not enough that the court should warn itself on a token basis of the dangers of accepting these types of evidence. This warning must be put into practice by the court exercising great caution before accepting the evidence. In these situations, where there is a basis for doing so, the defence lawyer will obviously stress the dangers of reliance on the testimony.

 

Single witness evidence

Approach of courts

 

Reid-Rowland 18-25; 21-4

 

Where there is only one single witness to the crime certain special evidential rules apply.

 

A single witness may or may not also be a “suspect witness”. If the single witness is also a “suspect witness” then the court must apply the special rules relating to single suspect witnesses. These rules are dealt with later. This present section deals with single witnesses who are not also suspect witnesses.

 

An accused can be convicted on the basis of the uncorroborated testimony of a single competent and credible State witness. However, the credibility and reliability of this witness must be very carefully assessed to see whether it is safe to convict on the basis of his or her testimony alone.

There is obviously a risk which attaches to convicting X on the basis of the uncorroborated testimony of a single witness. There is a scarcity of evidence in the case and the testimony of the witness is the sole proof of X’s guilt. In this situation the court must be particularly alive to the dangers of poor observation, faulty recollection, reconstruction of evidence after the event, bias and any other risk that the circumstances of the case suggest. The quality of evidence must make up for the lack of quantity.

The credibility and reliability of this witness must be very carefully assessed to see whether it is safe to convict on the basis of his testimony alone. In Nduna & Anor HB-48-03 it was held that where a conviction relies on the evidence of a single witness, discrepancies in the witness’s evidence are not necessarily fatal. The discrepancies must be of such magnitude and value that it goes to the root of the matter to such an extent that their presence would no doubt give a different complexion of the matter altogether. Discrepancies whose presence do not usher in that change should be regarded as immaterial and as such of no value in the determination of the truth or otherwise of the matter at hand.

 

In Zimbowora S-7-92, the appellant had been convicted of three counts of contravening the Labour Relations Act. The State case had rested entirely on the evidence of the complainant. On appeal, the Supreme Court said that although the trial court was entitled to convict the appellant on the single evidence of the complainant, it was necessary for such evidence to be clear and satisfactory in every material respect. As the complainant was a witness with an interest to serve, the trial court was not only required to approach her evidence with caution but should also have sought corroboration of her evidence. The conviction was set aside by the Supreme Court as the complainant’s evidence was not satisfactory in all material respects and no evidence was led to corroborate her assertions.

 

In Mandebvu HH-96-11 X was convicted of two counts of having illegal sexual intercourse with a minor. He appealed against conviction and sentence. The complainant and X were related and lived in the same house together. The complainant was a quiet and reserved person. Almost a year after the incidents in question, she reported the abuse to her former school teacher but did not disclose the perpetrator’s identity. The teacher in turn reported the matter to Police leading to the appellant’s arrest. The complainant was the only witness to the incidents complained of. X argued that the complainant was not a credible witness primarily because of the delay in making a report against X. He also cited inconsistencies in the number of times the complainant claimed to have been raped. The court held that it is permissible in terms of s 269 CPEA for a court to convict a person on the single evidence of a competent and credible witness. The trial judge must weigh his evidence, will consider its merits and demerits and decide whether it is trustworthy and whether, despite the fact that there are shortcomings or defects or contradictions in the testimony, he is satisfied that the truth has been told .The exercise of caution must not be allowed to displace the exercise of common sense. Of course, such evidence must be approached with caution and the merits thereof weighed against any factors which militate against its credibility. In essence, a commonsense approach must be applied. If the court is convinced beyond a reasonable doubt that the sole witness has spoken the truth, it must convict, notwithstanding that he was in some respects unsatisfactory. Where the evidence of the single witness is corroborated in any way which tends to indicate that the whole story was not concocted, the caution enjoined may be overcome and acceptance facilitated. But corroboration is not essential. Any other feature which increases the confidence of the court in the reliability of the single witness may also overcome the caution. The court confirmed the conviction.

 

In Nduna & Anor HB-48-03 it was held that where a conviction relies on the evidence of a single witness, discrepancies in the witness’s evidence are not necessarily fatal. The discrepancies must be of such magnitude and value that it goes to the root of the matter to such an extent that their presence would no doubt give a different complexion of the matter altogether. Discrepancies that do not affect the change should be regarded as immaterial and as such of no value in the determination of the truth or otherwise of the matter at hand.

 

In Chingurume HH-454-14 the court pointed out that there is a need to exercise extreme caution when one has to rely on the evidence of a single witness in order to guard against possible deception in the whole process. The right to convict on the evidence of a single credible witness, stated without qualifying words in s 269 of CPEA, should not be regarded as putting the evidence of one witness on the same footing in regard to the cogency as the evidence of more than one. Although the evidence of one witness may in any particular case be more convincing than of a number, it remains true that, given the same apparent quality in the witnesses, the more there are, the more reason there is to accept their story. It is not a mere rule of thumb: if there are two or more witnesses to the same facts their version can be checked against each other to see if they have given honest and accurate evidence. Elements of corroboration may of course appear from the circumstances; the fact that an accused person has given no evidence may be an element. The apparent reluctance to easily accept the evidence of a single witness is demonstrated by the proviso to the s 269, which renders it incompetent for the court to rely on such evidence in respect of certain offences specified therein. Even in other offences like assault, our courts have espoused the need to exercise caution when dealing with the evidence of a single witness. The courts should avoid the “boxing match” approach: the tendency, especially in assault cases, to throw the two protagonists into the ring with the magistrate as referee. At the end of the bout the magistrate awards points for demeanour and probability, and names the winner, who is usually the complainant.

 

In Mandebvu HH-96-11 X was convicted of two counts of having illegal sexual intercourse with a minor. He appealed against conviction and sentence. The complainant and X were related and lived in the same house together. The complainant was a quiet and reserved person. Almost a year after the incidents in question, she reported the abuse to her former school teacher but did not disclose the perpetrator’s identity. The teacher in turn reported the matter to Police leading to the appellant’s arrest. The complainant was the only witness to the incidents complained of. X argued that the complainant was not a credible witness primarily because of the delay in making a report against X. He also cited inconsistencies in the number of times the complainant claimed to have been raped.  The court held that it is permissible in terms of s 269 CPEA for a court to convict a person on the single evidence of a competent and credible witness. The trial judge must weigh his evidence, will consider its merits and demerits and decide whether it is trustworthy and whether, despite the fact that there are shortcomings or defects or contradictions in the testimony, he is satisfied that the truth has been told .The exercise of caution must not be allowed to displace the exercise of common sense. Of course, such evidence must be approached with caution and the merits thereof weighed against any factors which militate against its credibility. In essence, a commonsense approach must be applied. If the court is convinced beyond a reasonable doubt that the sole witness has spoken the truth, it must convict, notwithstanding that he was in some respects unsatisfactory. Where the evidence of the single witness is corroborated in any way which tends to indicate that the whole story was not concocted, the caution enjoined may be overcome and acceptance facilitated. But corroboration is not essential. Any other feature which increases the confidence of the court in the reliability of the single witness may also overcome the caution. The court confirmed the conviction.

 

The fact that the single witness is himself guilty of some unlawful conduct does not make him an accomplice in the crime which is charged. Where the accused, who were policemen, arrested and robbed a person who was crossing the border illegally, that person was not an accomplice.

 

In the South African case of Mokoena 1956 (3) SA 81 (A) at 85-86, it was laid down that the uncorroborated evidence of a single witness should only be relied upon if the evidence was clear and satisfactory in every material respect. Slight imperfections would not rule out reliance on that evidence but material imperfections would. The court stated that single witness evidence should not be relied upon where, for example, the witness had an interest adverse to X, has made a previous inconsistent statement, has given contradictory evidence or had no proper opportunity for observation. However, in the later case of Sauls & Ors 1981 (3) SA 172 (A) the South African Appellate Division stated that there was no rule of thumb to be applied when deciding upon the credibility of single witness testimony. The court must simply weigh the evidence and consider its merits and demerits. It must then decide whether it is satisfied that the testimony is truthful, despite any shortcomings, defects or contradictions in it. The approach adopted in the Sauls case was followed in the case of Nyabvure S-23-88. See also Worswick S-27-88; Mukonda HH-15-87; Nemachera S-89-86.

 

Judge Beck in his article in Prosecutors Bulletin Vol. 1 No 1 at p 18, advises that in assessing the quality of the single witness’ evidence in order to decide whether X should be convicted on the basis of this evidence, the court should take the most attentive note of the witness. It should take particular note of his apparent character, his intelligence, his capacity for observation, his powers of recall, his objectivity and things like that. The evidence should be carefully weighed against the objective probabilities of the case, and against all the other evidence which is at variance with it. The court must have rational grounds to conclude that the evidence of the single witness is reliable and trustworthy and is a safe basis for convicting X. In Worswick S-27-88, it was said that the evidence of an accomplice must be examined critically and with caution.

 

Judge Beck points out that proper investigation of criminal cases will usually uncover corroborating evidence and that it is seldom necessary to rest the entire State case upon single uncorroborated testimony. The police and prosecutors should be discouraged from being content with the production of only such evidence. In appropriate cases the court itself should use its powers to call other witnesses if it appears there are such witnesses.

 

Assault cases

 

In Muzonza & Ors S-217-88 the Supreme Court stated that as a general rule it is undesirable to rely solely and entirely on the evidence of the complainant, particularly in assault cases and more particularly where there are counter allegations of provocation, self-defence or justification in one form or another. The complainant in such cases has a clear bias and a reason to place himself in a favourable light and X in an unfavourable light.

 

In Tamba S-81-91, the Supreme Court stated that in assault cases where there are other witnesses to the incident in addition to the complainant, these witnesses should be called and the case against X should not be left to rest only upon the testimony of the complainant alone. It is wrong to deal with such cases as if they were a “boxing match” between the complainant and X. These two protagonists should not, as it were, be thrown into the ring with the magistrate as referee who, at the end of the bout, having awarded points for demeanour and probability, would name the winner who would usually be the complainant. It is even worse if the magistrate is, as often seems to be the case, a biased referee who works on the unspoken assumption that the police would not have charged X if he or she was not the guilty one. This approach, said the Supreme Court, was dangerous, especially in assault cases where almost invariably the parties give conflicting versions of what was the cause of the fight. Without evidence from bystanders, it was almost impossible to determine which version of the facts was the true one although often both versions are partially untrue or exaggerated.

 

Crimes of perjury or treason

 

With crimes perjury and treason, the court may not convict an accused on the basis of the uncorroborated evidence of a single competent and credible State witness: s 269 CPEA.

Approach of defence lawyer

 

As the court is permitted to convict an accused to convict an accused on the basis of the uncorroborated evidence of a single competent and credible State witness, the cross-examination of the single witness by the defence lawyer must be aimed at establishing that the witness is not credible and reliable. If there are major or material aspects of the testimony of that witness are unsatisfactory, this must be indicated in the defence address. Defence counsel should then submit that in the light of these unsatisfactory features, it would not be proper to convict the accused on the basis of the witness’s testimony. It is not enough simply to point to a few very minor defects or slight imperfections in the testimony, such as minor contradictions; despite these imperfections the court may still decide that overall the witness was a credible witness whose testimony is to be believed.

 

Where the testimony of the single witness was not corroborated by any other testimony, this point should be brought to the attention of the court, especially in assault cases involving so-called "boxing ring" type situations. The dangers of conviction on the basis solely of the uncorroborated testimony of the single witness should be emphasised.

 

Complainant evidence in sexual cases

Approach of courts

 

In rape and other cases of a sexual nature, such as aggravated indecent assault, indecent assault and sexual relations with a person under the age of 16, the courts used to adopt the approach that because of the danger of false incrimination in such cases, a cautionary rule applies. Essentially this cautionary rule meant that in sexual cases the court had not only to believe the complainant, but in addition it had to be satisfied, by an application of the cautionary rule, whether it might still not have been deceived by a plausible witness. It therefore must seek corroboration or evidence tending to exclude the danger of false incrimination. This was laid down in a series of cases: Mupfudza 1982 (1) ZLR 271 (S); Chitiyo 1989 (2) ZLR 144 (S); Chigova 1992 (2) ZLR 206 (S); Makanyanga 1996 (2) ZLR 231 (H); Zaranyika 1997 (1) ZLR 539 (H).

 

However, in the case of Banana 2000 (1) ZLR 607 (S) the Supreme Court ruled that the cautionary rule in sexual cases is based on an irrational and outdated perception, and has outlived its usefulness. It unjustly stereotypes complainants in sexual assault cases (overwhelmingly women) as particularly unreliable. There were no convincing reasons for its continued application. It exemplified a rule of practice that placed an additional burden on victims in sexual cases which could lead to grave injustice to the victims involved. It is no longer warranted to rely on the cautionary rule of practice in sexual cases. Despite the abandonment of the cautionary rule, however, the courts must still consider carefully the nature and circumstances of alleged sexual offences.

 

In the context of sexual cases, usually the strongest evidence which the State will be able to lead will be medical evidence. If the accused has admitted that he had sexual relations with the complainant but maintains that the complainant was a consenting party, medical evidence of injuries consistent with forced sexual relations will be cogent evidence of the complainant's allegation of rape. Where, on the other hand, the accused denies sexual relations, medical evidence indicating that the complainant was raped or at least that the complainant has had sexual relations with someone does not prove the identification of the accused as the culprit

 

In Musasa HH-52-02 the judge deals with the evidence of child complainants. He states that while the evidence of child witnesses must be approached with caution, such caution must be creative or positive caution, where a judicial officer uses knowledge of psychology or other relevant disciplines in order to maximise the value of such testimony. Psychological research has established that young children do not fantasize about being raped and other unusual, horrific occurrences but that their fantasies and play are characterized by their daily experiences.

 

Approach of defence

 

In defending a person who is accused of rape and who denies the allegation, The first line of defence in a rape case (or a case involving some other sexual offence) is to see whether doubt can be cast upon the credibility of the complainant. If the court finds that the complainant is not a credible witness the accused will be acquitted. The objective in the cross-examination of the complainant must therefore be to throw up unsatisfactory features of her testimony, which will lead the court to find that she is not a credible witness.

 

If the complainant gives evidence in such a manner that it is likely that the court will find that she is a credible witness, the defence lawyer should nonetheless probe during cross-examination to see whether she has some reason for falsely incriminating the accused. Where there is a basis for doing so, in summing up the defence lawyer should point out to the court that, although apparently the witness was plausible and credible, in the particular circumstances, there was a distinct danger that the complainant may have falsely implicated the accused in order to protect her lover or for some other reason (which should be stated).

 

Finally, where the complainant is an apparently credible witness and there seems to be no evident reason why she would falsely implicate the accused, the defence lawyer should carefully analyse the nature of her testimony and the other evidence advanced by the State and draw the attention of the court to any weaknesses and contradictions in that evidence.

 

Evidence from children

Approach of courts

 

Children often have vivid imaginations and have a tendency to fantasize. They may believe their fantasies and relate them as reality because they believe them. Immature children are also susceptible to suggestions made by others. In cases of sexual molestation of children parents may jump to wrong conclusions about the culprits and may prompt or intimidate their children into implicating the wrong persons. Alternatively, the persons prompting children may want maliciously to get other people into trouble. These risks are set out by Beck JA in his Legal Forum article at p 16.

 

In Musasa HH-52-02 the judge pointed out that while the evidence of child witnesses must be approached with caution, such caution must be creative or positive caution, where a judicial officer uses knowledge of psychology or other relevant disciplines in order to maximise the value of such testimony. Psychological research has established that young children do not fantasize about being raped and other unusual, horrific occurrences but that their fantasies and play are characterized by their daily experiences.

 

The child's mental development and maturity must be assessed very carefully. One has to be careful in applying the normal tests of credibility, such as demeanour, consistency and probabilities, to child witnesses. A seven year old cannot be expected to behave in the same rational way as an adult. When assessing the probabilities the court should take into account the child witness' age and maturity.

 

To overcome the dangers which are inherent in testimony from children, such as the danger arising out of their tendency to fantasize, the court is required to see whether from the evidence the events related by the child really did happen.

 

The courts will look to see if there is corroboration of the child's evidence implicating the accused. The existence of corroborative evidence is seen as being the safest assurance against wrong conviction. There is, however, no rigid requirement that a child's evidence must be corroborated. The court can convict on the basis of the uncorroborated testimony of a child witness, provided it is satisfied that the dangers inherent in founding a conviction on the child's uncorroborated evidence have been eliminated: Ponder 1989 (1) ZLR 255 (S); J 1958 (3) SA 699 (SR); Sikulite 1964(3) SA 151 (SR).

 

The court has the duty of ensuring that there is no unfair questioning aimed at overbearing, overpowering or confusing the child or trying to prompt the child unduly. The child should be allowed to respond naturally and spontaneously. When cross-examining a child witness the defence lawyer should display tact and sensitivity. If the defence lawyer tries to be savage in his questioning of such a witness, he is likely to be told to desist and will probably engender sympathy for the child which may impair the ability of the judicial officer critically to examine the nature of the child's testimony.

Approach of defence

 

When the State case hinges on the evidence of a child witness, the defence must carefully cross-examine that witness in order to try to discredit his or her testimony. The defence lawyer will not be permitted to engage in badgering and aggressive questioning of a witness of tender age. The defence lawyer is duty bound to probe and test the testimony of such a witness, but he must do so in a tactful and non-threatening manner. In any event, reducing a child witness to tears may well be counterproductive as this may simply to elicit sympathy for the witness from the judicial officer and may make the judicial officer less critical in his analysis of the testimony of this witness.

 

The vulnerable witnesses provisions may be invoked in respect of a child witness, particularly where a young child is the complainant in respect of an alleged sexual assault. When this happens the child may either give evidence through an intermediary or through a video link. This will obviously effect the nature of the cross-examination of the witness by the defence lawyer.

 

All the defects in the testimony of the testimony of the child witness must be highlighted in the summing up by the defence lawyer. If the testimony of the child witness is uncorroborated, the defence lawyer must emphasise the considerable dangers of reliance on the testimony of a young child, such as the tendency of children to fantasise and to believe their fantasies. If there is reason to suspect that the child has been influenced in his testimony by a parent or other adult, submissions dealing with this point should be made. Finally, based on these various factors, the defence lawyer will often have a very good basis for submitting that it would be completely unsafe to place reliance upon such testimony in order to convict the accused.

 

Accomplice evidence

Approach of courts

 

For a number of very cogent reasons the courts approach accomplice evidence with considerable caution.

What are accomplices?

 

An accomplice is a person who has participated or assisted in the commission of a crime, other than the perpetrator(s) and other than an accessory after the fact. However, for the purposes of the law of evidence, the word has a wider meaning.  It means any person who has committed an offence in connection with the same criminal transaction which forms the subject-matter of the charge; it can also mean a person who appears to know a good deal about the offence and has some reason of his own to serve in giving evidence. The reasons why the evidence of such a person is regarded with caution are set out below. The matter is dealt with in greater detail in Hoffman and Zeffertt South African Law of Evidence 4 ed at pp 575-6.

 

In the case of Mamoche HH-80-15 the court said that in the basic sense an accomplice witness means a witness to a crime who, either as principal, accomplice, or accessory, was connected with the crime by unlawful act or omission on his or her part, transpiring either before, at time of, or after commission of the offence, and whether or not he or she was present and participated in the crime. The word ‘accomplice’ has not been defined by the CPEA. However, a perusal of the case law appears to suggest that in Zimbabwe, an accomplice is one of the guilty associates or partners in the commission of a crime or who in some way or the other is connected with the commission of crime or who admits that he has a conscious hand in the commission of crime. It can also be said that an accomplice is one concerned with another or others in the commission of a crime or one who knowingly or voluntarily cooperates with and helps others in the commission of crime. An accomplice, in this sense, is a competent witness provided he is not a co-accused under trial in the same case. But such competency which has been conferred on him by a process of law does not divest him of the character of an accused. An accomplice by accepting a pardon under s 267 (2) CPEA becomes a competent witness and may, as any other witnesses, be examined on oath; the prosecution must be withdrawn and the accused formally discharged under s 267(2) before he can become a competent witness. Even if there is an omission to record such discharge an accused becomes a competent witness on withdrawal of prosecution.

 

 

An accomplice who is testifying against others may or may not be on trial himself. A person who is jointly charged with others may deny that he was involved in the crime at all. He may testify that he witnessed one or more of the other accused commit the crime. He may admit that he was involved but claim that his involvement was minor and that the major role was played by his fellow criminals. The other type of case is where an accomplice testifies after the authorities have dropped charges against him in return for his giving evidence against his fellow criminals.

Dangers of reliance on accomplice evidence

 

The reasons why the evidence of accomplices (in the wide sense of the term) are approached with caution are as follows:

 

Firstly, an accomplice is a person who is himself guilty of criminal conduct and might easily be a person of bad character who does not have a high regard for the truth.

 

Secondly, the accomplice may tell lies against another person in the hope that he will secure an indemnity from prosecution, that he will receive a lighter sentence or, if he has already been sentenced, that he will receive clemency if he testifies against the other person. He may have received promises from the police that they will go easy on him provided that he testifies against another person.

 

Thirdly, the accomplice may wish to implicate one person falsely to shield someone else. He may do this, for instance, because he is afraid of the real culprit or he may greatly exaggerate the role played by a fellow criminal in order to minimise his own role in the crime.

Lastly, the inside knowledge of the accomplice of how, when and where and by whom the offence was committed gives him a golden opportunity to engage in convincing deception when giving evidence. The only thing he has to change in what is otherwise an entirely true version of the facts is the identity of his accomplice. His inside knowledge puts him in a position where he is peculiarly equipped to convince the unwary that his lies are the truth: Ngara 1987 (1) ZLR 91 (S) and Mamoche HH-80-15

 

However, it should be noted that there are varying types of accomplices. Some are more culpable than others and thus are more dangerous to believe than others. In Moyo S-170-90, on the other hand, the Supreme Court found that the accomplice was simply a person caught up in an evil system and was not trying to shift the blame from his shoulders and therefore there was no danger in relying upon his testimony.

 

Because of these dangers of false incrimination, the courts must approach the evidence of accomplices with extreme caution. They must be satisfied that the evidence in question can safely be relied on and that the dangers of false incrimination have been eliminated.

Single accomplice evidence

 

Where the case against the accused rests on the evidence of a single accomplice s 270 [254] of CPE applies. This says that a court may convict the accused provided there is competent evidence other than the single and unconfirmed evidence of the accomplice which proves to the satisfaction of the court that the crime was actually committed.

 

The courts have interpreted this provision to mean that even where there is no proof aliunde of the commission of the offence the accused can still be convicted if there is corroboration in a material respect of the evidence of the accomplice. In Mubaiwa 1980 ZLR 477 (A) at 479H-480A this is stated as follows:

 

The purpose of this section is that the court must be satisfied that the crime to which the accomplice testifies has, in fact, been committed. If not, there can be no conviction at all. Even where there is no proof aliunde that the crime has been committed, the statutory requirement can still be satisfied if there is corroboration in a material respect which convinces the court that the accomplice can safely be relied on when he says the crime was committed, though it need not directly implicate the accused. In such a case the requirement is satisfied because, despite the lack of proof aliunde of the commission of the offence, the accomplice is no longer 'single and unconfirmed'.

 

In Lawrence & Anor 1989 (1) ZLR 29 (S) the Supreme Court laid down that with single accomplice testimony there should be a two pronged enquiry. The court must first satisfy itself that the offence with which the accused is charged has been committed. Secondly, the court must look for corroboration, for if there is no evidence aliunde proving the commission of the offence, then there can still be a conviction if the court is satisfied that there is corroboration of the evidence of the accomplice sufficient to satisfy the court that the witness is to be believed.

 

See also Moyo 1989 (3) ZLR 250 (S)

 

Thus, if the evidence of the accomplice is single and unconfirmed, there must be proof aliunde of the commission of the offence. If, on the other hand, there is material corroboration of the testimony of the accomplice, the evidence is no longer single and unconfirmed and there need not be proof aliunde of the commission of the offence.

Co-accused implicating one another

 

Where two or more persons are jointly charged with an offence and each gives evidence blaming the other for the offence, the evidence of each is admissible against the other, but the court must approach the evidence with care, since there is a risk that either or both may be seeking to protect himself by telling lies: Sambo S-22-90.

Warning to accomplices

 

It is obligatory for judges and magistrates to warn accomplices who are testifying in conformity with the direction given in Simakonda 1956 R & N 463 (SR) at 465B-C. See also Ncube & Anor 1975 (2) RLR 150 (A) at 151H-152A and Ngara 1987(1) ZLR 91 (S) at 96G.The court should warn the accomplice that what is expected of him is to tell the truth.

 

The warning that the accused must answer questions "to the satisfaction of the court" can be misleading when translated into the vernacular as it may give the impression to the accomplice witness that the evidence required of him to “satisfy” the court is evidence which incriminates the accused, even if this evidence is not the truth. The judicial officer, in warning the accomplice, must emphasise that the court is interested only in the truth, whether it incriminates or exculpates the accused.

 

As regards the accomplice who has already been convicted and who is presently serving his sentence, he should be advised that exaggerating the part allegedly played by the accused or minimising his own role will not affect the sentence in any way.

 

As regards the unconvicted accomplice, in terms of s 267 CPEA, he must be advised that:

  • he is not obliged to give evidence;
  • if he testifies, questions may be put to him which might incriminate him in regard to the specified offence;
  • he will be obliged to answer any question that may be put to him despite the fact that the answer might incriminate him in respect of the specified offence (or some other offence for which he could be found guilty on the basis of the charge relating to the specified offence);
  • if he answers frankly and honestly all questions put to him he will be discharged from prosecution in respect of the specified offence (or from any other offence for which he could be found guilty on the basis of that charge.)

 

See Hoffman and Zeffertt South African Law of Evidence 4th Ed p 239.

Reducing dangers

 

The safest way to eliminate the risk of false incrimination of another by an accomplice is to look for corroborative evidence implicating the accused.

 

The evidence of one accomplice can corroborate the evidence of another. The court, however, must be satisfied that the testimony of both accomplices is credible and that there has not been an opportunity for the accomplices to conspire together before testifying in order to concoct a false story to implicate the accused.

 

In Zata S-64-91 a visitor to Zimbabwe alleged that he had paid a bribe on demand to a junior customs officer who had handed it over to the appellant. The junior officer confirmed his story. As the visitor was a stranger to the customs official and they did not have the same interests to serve, their evidence could be given credence and could be used to corroborate each other's testimony.

 

It is usually dangerous to convict without corroboration of the accomplice's evidence. Thus in Machakata S-106-89 there was no corroboration and the court quashed the conviction. The appellant had been found guilty of stock theft. It was alleged that he had instructed two of his employees to go and steal cattle for him. One of these employees, P, gave evidence for the State and the entire State case rested on his testimony, which was not corroborated. The appellant denied that he had given such an instruction to the two employees and another of his employees, E, corroborated his testimony. The Supreme Court found that the trial court had only paid lip service to the cautionary rule. P's evidence had not been rigorously examined to ascertain whether or not he may have falsely implicated appellant. P's uncorroborated evidence was open to question.

 

Sometimes, however, even without corroborative evidence, the court can convict a person on the basis of the evidence of a single accomplice if the circumstances are such that the court can properly be quite satisfied that the accomplice is telling the truth. For example, if the accomplice gives convincing evidence against the accused and the accused adamantly refuses to give evidence and maintains his right to silence, there is a reduced risk of relying on the evidence of the accomplice in convicting the accused. If the accused were innocent one would have expected him to have vigorously denied the false testimony against him. So, too, there is a reduced risk of reliance on testimony by an accomplice against a person with whom he has a very close relationship and with whom he has been on good terms previously, because here it would be unlikely that the accomplice would implicate him falsely.

Imperfections in evidence of accomplice

 

Where there are imperfections in an accomplice's evidence and there is no corroboration of his evidence implicating the accused, the court must still consider whether there are other features which reduce the danger of false incrimination and, if there are, whether they reduce it to the point where there is no reasonable possibility that the accused has been falsely incriminated: Juwaki & Anor 1964 RLR 604 (A).

 

In Lawrence & Anor 1989 (1) ZLR 29 (S), it was held that, despite the imperfections in the accomplice's evidence, there was sufficient corroboration to eliminate the danger of false incrimination.

Disclosure of inducements to testify

 

In Lawrence & Anor, the Supreme Court stated that it is desirable that the court be informed of any inducement or promise made to an accomplice when the accomplice is called upon to testify, because the danger of the false incrimination is greater when an accomplice has been promised a pardon or remission. It further pointed out that is the court, not the Attorney-General, which should decide whether or not the accomplice has given satisfactory evidence justifying fulfilment of the undertaking to recommend remission.

 

Summary

 

The courts are obliged to approach accomplice evidence with extreme caution because of the dangers of false incrimination by the accomplice. Although it is not essential that the accomplice evidence be corroborated, the presence of corroborative evidence is usually the best safeguard against false incrimination. Slight imperfections in the accomplice's evidence do not necessarily discredit it, especially if the material portions of that evidence are corroborated. The evidence of one accomplice can corroborate the evidence of another, provided that the court is satisfied that the accomplices did not conspire together to give an agreed false story against the accused.

Where the evidence of a single accomplice is relied on, the judicial officer is obliged to consider whether there is material corroboration for the witness' testimony. If there is such corroboration, the court may convict even if there is no proof aliunde of commission of crime. If there is not, it may convict the accused only if there is evidence aliunde that the crime was committed.

Approach of defence

 

At the start of the testimony of an accomplice who is testifying against his client, the defence lawyer should ensure that the court has warned the witness in the terms required by the law. If the court omits to do this, the defence lawyer should ask it to do so before the witness starts to testify.

 

All State witnesses who are accomplices must be vigorously cross-examined to expose shortcomings in their evidence. If the accomplice giving evidence has been promised immunity from prosecution in return for testifying on a satisfactory basis against the accused, he should be closely questioned as to whether he is telling lies against the accused or exaggerating the role played by the accused in order to please those who offered him immunity and thereby receive such immunity. He should also be closely questioned as to whether he has received any instructions as to what he should say in his testimony. If the accomplice has already been tried and sentenced before he testifies against the accused, the defence lawyer should carefully probe what incentives have been made to him to testify and whether this may have led him to distort his evidence against the accused.

 

In his address the defence lawyer will obviously lay emphasis on the dangers of reliance on the evidence of the accomplice, especially if there has been no corroboration of his testimony. He will seek to persuade the court that it is not safe to rely upon the accomplice evidence in question and that the dangers of false incrimination have not been eliminated.

 

Where the State case rests on the evidence of a single accomplice and the State has produced neither any evidence which materially corroborates the evidence of the single accomplice nor any evidence which provides proof aliunde of the commission of the crime, then the defence must point these things out to the court and call upon the court to place no reliance on the accomplice’s evidence.

 

Lies by accused corroborating State case

 

The person you are defending may have told lies to the police during investigations. Under cross-examination by the prosecutor he may relate a story which is obviously false. The prosecutor may argue that these lies can corroborate the evidence given by State witnesses. The courts have laid down that for such a lie to be capable of amounting to corroboration of the testimony of a State witness:

  • The lie must be deliberate;
  • It must relate to a material issue;
  • The motive for the lie must be a realisation of guilt and a fear of the truth;
  • The statement must be clearly shown to be a lie by evidence other than that of the witness who is to be corroborated.

 

It has been stated that too much weight should not be attached to lies told by the accused. The court must guard against drawing an inference of the accused's guilt solely on the basis of lies told by him: Nyoni S-118-90.

 

Similar fact evidence

General rule

 

Similar fact evidence is evidence of similar acts done previously by the accused. Similar fact evidence is not admissible if its only relevance is to show that the accused is of bad character and is therefore likely to have committed the offence.  It is, however, admissible if it is relevant and is of sufficient probative force to warrant its reception despite its apparently prejudicial nature.

 

Previously the approach of the courts was that the similar facts had to bear a striking resemblance to the case in hand. See Mutsinziri 1997 (1) ZLR 6 (H); Ngara 1987 (1) ZLR 91 (S). However, in Banana 2000 (1) ZLR 607 (S) the Supreme Court said that the test for the admissibility of similar fact evidence used to be whether the similar facts were of such a striking similarity that it would be an affront to common sense to assume that the similarity was explicable on the basis of coincidence. However, the courts have moved away from this test. Striking similarity is not a pre-requisite to admissibility. What has to be assessed is the probative force of the evidence in question; there is no single manner in which this can be achieved. Like corroboration, this is a matter of logic and common sense.

 

This is in contrast to the position in South Africa. In the South African case of M & Ors 1995 (1) SACR 667 (BA) contains an exhaustive review of the authorities on the admissibility of similar fact evidence. In the course of its review, the court agreed with authorities which held that for such evidence to be admissible, the similar facts must bear a striking similarity to the evidence adduced in relation to the offence charged: “The use of the word ‘striking’ — strengthens the concept that the admission of similar fact evidence requires a ‘strong degree of probative force’, bearing in mind the basic principle that its admission is out of the ordinary and unusual.

 

In Mutsinziri 1997 (1) ZLR 6 (H) the court pointed out that where there are multiple counts, the fact that each one must be looked at separately does not prevent material which could be admissible under the rules relating to similar fact evidence from being received. Even evidence on one count which ultimately leads to an acquittal may be used, but for such evidence to be receivable and acted upon by a court of law, those discreditable acts of the accused must share with the discreditable conduct in issue features of such an unusual nature and striking similarity that it would be an offence to common sense to assert that the similarity was explicable on the basis of coincidence. Similar fact evidence may be admitted on one count in order to bolster evidence on another count, where there is an issue as to identity.

 

In Mupah 1989 (1) ZLR 279 (S) the court said that evidence of a previous offence is admissible to rebut a defence of accident or innocent intent and to show a systematic course of conduct by X. This is so whether or not X has been convicted of that offence. There must not only be similarity between the previous acts and those in issue, but such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations. The discreditable acts of X must share with the discreditable conduct in issue features of such an unusual nature and striking similarity that it would be an affront to common sense to assert that the similarity was explicable on the basis of coincidence. Where X has been acquitted in one case, it would be wrong, in order to obtain a conviction in a later case, to seek to show that X was guilty in the first case. This does not mean that evidence relating to the first case may not be called to show what X’s intent was in the second; it means that it is impermissible, in the second case, to rely on X’s guilt in the first if he has been acquitted in the first case.

 

Examples

 

In Mupah 1989 (1) ZLR 299 (S) the Supreme Court set out some situations where similar fact evidence was admissible. It stated that

  • Evidence as to previous conduct is admissible to prove that the acts alleged to constitute the crime charged were intentional or part of a systematic course of conduct or to rebut a defence of accident or innocent intent.
  • The conduct must demonstrate such an underlying unity or such a concurrence of common features that it would be an affront to common sense to assert that the similarity was explicable on the basis of coincidence.
  • The accused person need not have been convicted of an offence in relation to the previous conduct before it becomes admissible as similar fact evidence.
  • On the other hand, if the accused person has been acquitted of an offence in relation to the previous conduct, evidence as to that conduct is not admissible as similar fact evidence as its admission would require the court to assume that the accused was guilty of the offence of which he was acquitted; such evidence may be admissible, however, to show, for example, what the accused person's intent was in relation to his subsequent conduct.

 

There are numerous other examples.  See Hoffman & Zeffertt South African Law of Evidence 4 ed at pp 55-82.

 

Expert evidence

 

In order for a person to give expert evidence his special expertise must first be established. His professional qualifications and experience must be established: Makuni HH-75-84. If the prosecutor intends to dispute the qualifications and expertise of an expert witness for the defence, the defence should ensure that its expert comes to court armed with documentary proof of his qualifications and expertise.

 

In S v Machona HH-450-15 the court pointed out that the function of an expert is to assist the court to reach a conclusion on a matter on which the court itself does not have the necessary knowledge to decide. It is not the mere opinion of the witness which is decisive but his ability to satisfy the court that, because of his special skill, training or experience, the reasons for the opinions he expresses are acceptable. Any expert opinion which is expressed on an issue which the court can decide without receiving expert opinion is in principle inadmissible because of its irrelevance.

 

Identification evidence

Visual identification of persons

 

Human observation is very fallible and experience has shown that genuine errors can easily be made by witnesses who have identified culprits. In a number of cases in Britain and elsewhere it was later clearly established that the accused were wrongly convicted on the basis of mistaken identification evidence.

 

Whenever the State case depends wholly or mainly on evidence of visual identification, the courts are supposed to exercise special caution, especially if there is only a single witness who has made the visual identification. Even if the court decides that the witness is entirely honest and truthful in his testimony and he has asserted that he is completely certain that he has identified the correct person as the culprit, it must nonetheless ask itself whether there is a danger that the witness was mistaken: Mutters & Anor S-66-89 and Makoni & Ors S-67-89.

 

Defence counsel must particularly guard against the prosecutor asking leading questions in relation to identification. Defence counsel should be quick to object to any such questions.

 

Ordinary members of the public are not trained in accurate observation in the way policemen should be. The ability of different people to observe carefully and recollect later varies widely. Memories fade over time; accurate identification long after the event is difficult.

 

The defence lawyer who is cross-examining a State witness who is claiming that he saw the accused commit the crime must minutely probe the circumstances in which the identification was made. Questions which should be asked of the eye witness include these:

  • For what amount of time did the witness have the accused under observation?
  • What was the distance between the witness and the accused at the time of observation?
  • What were the lighting conditions at the time?
  • Were there were any objects in the way which would have prevented or obscured observation?
  • Does the witness have good or poor eyesight? Does he wear glasses and did he have them on at the time?
  • Did the witness see clearly the accused's face or only the rest of his body?
  • Had the witness known the accused previously and, if he had, how well had he known him;
  • If the accused has no distinctive facial or other features, how can the witness be certain of the identification?
  • Whether the person identified belonged to a different ethnic group to the witness because if he did there may be doubt that the witness was able to distinguish accurately between different persons in that other ethnic group.

 

See Mutters & Anor S-66-89.

 

In Nkomo & Anor 1989 (3) ZLR 117 (S) it was stated that broadly speaking, good identification does not need corroboration or support, but poor identification does. Examples of good identification include cases where the witness has observed the accused over a lengthy period or many times or where the accused was well-known to the witness. The identification will be unreliable if, for instance, the witness caught only a fleeting glimpse of a person from a considerable distance in poor light. The identification in these circumstances would be dubious, whether or not the person was a person he had known previously. On the other hand, close range observation for a reasonable period of time in good lighting conditions where the witness clearly saw and carefully studied the person's facial features will be far more reliable, particularly if the person was well known to the witness or had some very distinctive features which made him easy to identify.

 

The bald assertion by the witness that he is certain that he has identified the right person should not be accepted at face value. The objective basis of his identification must be properly probed. Witnesses should be asked by what features they made their identification. The witness should be questioned as to the height, build, complexion and apparel of the person observed. Where the accused is undefended, the court should carefully examine the circumstances of the identification and test its reliability.

 

Identification is obviously stronger if several witnesses independently identify the accused.

 

In Madziwa S-191-90 it was pointed out that weak evidence of identification is not made any more reliable by the mere fact that appellant was in the vicinity at the time and lied about this fact, as even an innocent person can lie out a sense of panic.

 

To sum up, as identification evidence can be very unreliable, the defence lawyer must carefully probe the details of the identification and highlight all factors which would make the identification unreliable in the circumstances.

Identification in court

 

In Mutsinziri 1997 (1) ZLR 6 (H) the court pointed out that a “dock identification”, where a witness is asked whether the person in the dock is the offender, suffers from considerable disadvantages. Everything about the atmosphere of the court proceedings points to the accused, and to him alone, as the person who is to be identified by the witness. These circumstances are inevitable unless one insists that any dock identification take the form of an identity parade. The manner in which a dock identification is elicited from witnesses by the prosecutor can be done the right way or the wrong way. The wrong way is one which makes it virtually impossible for the witness to say anything other than that the accused is the culprit. This way constitutes an irregularity. The better way is to get the witness to recount all the events without reference to the accused in the dock, and only when the witness has said all he has to say about the events should he be asked whether any person in the court is recognised. This form of identification still carries the defective feature of a dock identification, that the accused is obviously the person who is suspected of committing the offence, but it avoids leading questions and putting the identification into the witness’s mouth.

 

In the South African case of Maradu 1994 (2) SACR 410 (W) the court held that the danger of a dock identification is the same as that created by a leading question in examination-in-chief: it suggests the answer desired. As the latter type of question is inadmissible, there is no reason why a dock identification should also not be inadmissible, save in special circumstances. (The court found that the witness’s dock identification of the appellant was unreliable for a number of reasons.)

Identification from photographs

 

The police may sometimes ask a witness who saw the crime being committed to examine a set of photographs to see if the witness can pick out the culprit. The reliability of such an identification depends, firstly, upon whether the witness was able accurately to observe the face of the culprit at the time of the crime and to recall it accurately subsequently. Secondly, it depends upon whether the exercise to select the culprit from photographs was fairly conducted. The courts have said that for the identification process to be fair:

  • The witness should be asked to look at a reasonable number of photographs and should not be shown only one photograph and asked whether this is the culprit;
  • The names of the persons photographed should not be on the photographs and the photograph of a person whom the police already suspect should not be ringed or specially marked and that photograph should not be of an entirely different size from all the others;
  • The police should allow the witness to make his own independent selection and should not prompt the witness in the direction of selecting one particular photograph;
  • Only photographs of reasonable quality should be shown because there is an increased danger of wrong identification from poor quality photographs.
  • The identification process will not, however, be vitiated simply because the witness sees a label on cover of the album indicating that the photographs in the album are of persons convicted of crimes similar to those for which the culprit is presently being sought.

 

The State may want to produce the album to show that the identification process was a fair one and that the witness was asked to go through a large number of photographs. Because of the way in which the album is labelled its production to the court may have the effect of revealing that the accused has at least one previous conviction for the crime. If this is the case it cannot be produced because this would be prejudicial to the accused. Defence counsel can ask to see the album in advance of the trial in order to decide whether to ask for its production during the trial.

 

If, however, the defence alleges that the process was unfairly conducted, then the State is at liberty to produce the album to prove the fairness of the process. See 1978 Criminal Law Review 343.

 

See Nkomo & Anor 1989 (3) ZLR 117(S).

 

The courts have said that if the police intend to proceed on the basis of identification evidence, it is best to hold an identification parade to see whether the witness will pick out the same person originally identified from photographs: Nkomo 1989(3) ZLR 117(S).

 

If no such identification parade was held the defence lawyer should ask why it was not held.

 

The State is supposed always to disclose if the witness previously identified the culprit from police photograph, because this will have a bearing on the reliability of the witness' subsequent identification of the culprit at a parade or in court: Ndlovu S-3-88.

 

In  Mutsinziri 1997 (1) ZLR 6 (H) the court said that where identity is in issue and X is identified by means of a photograph of him in the possession of the police, it is not inevitable in all cases that the witness would thereby conclude that X is known to the police and has a known or suspected criminal record. The police may come by photographs of the suspect in perfectly innocent circumstances and it is not necessarily harmful to X, where a policeman does no more than say that he was able to identify the accused from a photograph or to say that he tried to locate X by distributing photographs.

 

 

 

Summary

The reliability of evidence of identification from photographs can be attacked either on the basis that the witness’ identification is unreliable or on the basis that the photographic identification exercise was unfairly conducted.

 

 

Identity parades

 

To produce reliable evidence an identification parade must be carried out fairly. They must be carefully carried out to obviate errors. These are the basic requirements for a fair parade:

  • It must be conducted by an officer who has had nothing to do with the investigations into the case;
  • The officer conducting the parade should not call the witness to the parade;
  • A sufficient number of persons, say ten, should form the parade;
  • The persons on the parade must be approximately the same build, height and complexion and they should all wear clothing similar to one another’s and, preferably, similar to that worn when the crime was committed;
  • The accused must be allowed to choose his own position at the parade and must not be forced by the police to stand in a particular place;
  • The witness must not have been allowed to see the prisoner and have been told he is the suspect between the time of the arrest and the time of the parade;
  • The witness must be kept some place where he cannot see the prisoner being guarded by police officers or the parade being assembled.
  • The witness should not be told that the suspect is on the parade but should only be asked if the person he saw commit that crime is on the parade;
  • The witness must be left to pick out the person he saw commit the crime, if he can, without out any form of assistance or prompting;
  • The police should not attempt to point out or suggest someone either before or during the parade. Especially where the suspect is a person who had previous convictions, the police must not show the witness a photograph of the suspect before the witness is called upon to see if he can pick the suspect out from the identity parade. (It is a worthwhile safeguard for the defence lawyer to ask the witness under cross examination whether he was shown any photographs before he attended the identity parade);
  • If there is more than one witness, the witnesses who have already made their identification should not be allowed to confer with those who have not. They must not be returned to the same room.

See Ndhlovu & Ors 1985 (2) ZLR 261 (S).

 

It is also important that the identification parade be held as soon after the commission of the crime as possible to avoid memory impairment occurring with the passage of time: Mavunga 1982 (1) ZLR 63 (S).

 

 

Summary

The defence lawyer should probe the reliability of the evidence derived from identification of a suspect at an identification parade. He should find out about how the parade was conducted.

Fingerprints and handprints

 

Where the State case rests exclusively or substantially on evidence that the prints found at the scene of the crime matched those taken from the accused, an expert must testify as to the basis upon which he reached his conclusion that the prints belonged to one and the same person.

 

In Mutsinziri 1997 (1) ZLR 6 (H) the court said that where fingerprint evidence is given by an expert, the court ought not insist on its own ability to make a fingerprint identification by study of a comparison chart between the latent print (that found at the scene) and the inked print (that recorded from the suspect). Nevertheless, the court is still faced with a decision as to whether or not to accept the expert’s evidence when he purports to find sufficient points of identity between the latent and the inked print. The court must take into account the witness’s experience and the apparent weight and reliability of his opinion. The court may, if it considers it necessary, insist on a study of the comparison chart; and where the court is in a position to make its own examination of the comparison, it may, to the extent which it considers proper, attempt of its own accord to confirm the validity of the expert’s opinion. In an appropriate case it may depart from the expert’s opinion, if it is unable to find on the chart the points of similarity which so impressed the expert.

Footprints and shoeprints

 

When dealing with the issue of identification, it is permissible for the court to rely on evidence relating to bare footprints (spoor, as opposed to footprints taken by the police). However, a number of precautions have to be observed before such evidence can be accepted. It is certainly not enough for a witness to make a bald assertion that the footprints were those of the accused, even if he says he had lived together with the accused in the same area for some time and he knew those prints well. The witness must be asked by what characteristics or peculiarities, marks or indications he recognised the footprints as being those of the accused. The ability to give a precise and detailed description and point to features of unique distinction will point in the direction of reliable identification.

 

In cases in which the identity of the footprints of the suspect forms a vital part of the State case, the police should, wherever possible, take a cast or other impression of the footprint at the scene of the crime and a comparative footprint from the accused. These should then be produced in court as exhibits so that comparisons can be made.

 

In respect of bare footprints, an expert in handprints may also have the expertise to conduct an expert comparison between the two sets of footprints.

 

Reliance on shoeprints is obviously fraught with considerable danger, especially where the shoeprint is from a type of footwear which is in widespread use: Mavunga 1982 (1) ZLR 63 (S).

Tyre marks and tool marks

 

Casts and photographic evidence should be produced and a scientific expert must testify as to the common features.

Voice identification

 

There is obviously substantial risk of error if identification is made on the basis of testimony that the voice of the suspect is the same as that of the culprit. This sort of evidence would need to be probed extremely carefully. The court should approach it in the same sort of way as it does visual identification evidence. Questions such as the following must be put to the witness:

  • What was there about the voice heard which made the witness sure that it was a particular person's voice?
  • Did the voice have a timbre or quality that set it apart from the voice of others and, if so, what was this quality?
  • Was the speaker speaking with a distinctive accent or did he have some sort of speech impediment?
  • Were the words spoken when the crime was committed spoken in a soft or loud voice and for how long did the culprit speak?
  • How good is the witness's hearing?
  • Were there other background noises at the time which would have made it difficult to hear the voice properly?
  • Did the witness know the accused previously and was he familiar with his voice?
  • In what language were the words spoken?

 

See Chitake 1966 RLR 251 (A); 1966 (2) SA 690 (RA).

Matching of blood, DNA, bodily secretions and hair fibres

 

Expert medical and scientific evidence is obviously required and non-expert evidence should not be accepted.

 

In Jesse v AG & Ors 1994 (2) ZLR 416 (H) the court pointed out that blood samples are valuable aids to criminal investigation. However, in terms of s 45(3) of CPEA the process of extracting a blood sample can only be instituted by the submission, by a police officer of or above the rank of superintendent, of a written request to a medical practitioner. The test had to be performed by a medical practitioner; the police were expressly excluded from doing so. The suspect has the right to be informed of who was to take the sample, where and when it was to be done and the purpose for which it was required. Where the taking of a blood sample is lawful, then reasonable force could be used to obtain it. The police can thus use reasonable force to compel a suspect to submit to the taking. Only the officials mentioned in s 45(3) are authorised to take blood sample, although they could delegate their duties to other persons. The accused cannot insist that other persons take the sample.

Identification of property

 

When assessing the reliability of a person's identification of property, the court does not look at each feature or point of identification in isolation but has regard to the cumulative effect of the various features by which the person has identified the property: Nyamaro & Anor 1987 (2) ZLR 222 (S).

 

Handwriting evidence

 

There is provision for handwriting evidence to be given in terms of s 246 CPE. A non-expert may identify handwriting familiar to him, but when two samples of handwriting are not known to the witness, an expert must give evidence. The expert usually called to give evidence is the Questioned Documents Examiner of the Police Forensic Science Laboratory. The expert will testify as to the results of the comparison between the handwriting on the questioned document and that of the accused.

 

It is desirable that the handwriting expert should produce photographs supporting his evidence to show points of similarity between the accused's handwriting and the handwriting on the questioned document. The expert should point out the similarities and their significance.

 

The vital question is whether the similarities are so strong as to exclude any reasonable possibility that the questioned handwriting is that of any one other than the accused.

 

It is the duty of the court to satisfy itself that the handwritings are those of the same person, the accused. In doing this, the court is entitled to take account of its own observations regarding the similarities and dissimilarities between the handwritings.

 

See Chidota 1966 RLR 178 (A), Chibi v Minister of Internal Affairs (GD) 1970 (1) RLR 88, Mayhele 1968 (1) RLR 133 (A), Sibanda (2) 1963 R & N 601 (SR). See also "Questioned Documents Examiners Evidence in Court" by E. Dzvairo in 1988 Vol 1 No 1 Legal Forum 16; Hoffman & Zeffertt South African Law of Evidence 4 ed pp 104-106.

 

 

Ballistics and tool marks

 

In 1987 Vol 1 No 3 Prosecutors Bulletin 12 there is a useful article by Chief Inspector Haley of the Police Forensic Firearms Identification Office entitled "Ballistics Evidence in Court". This article deals with the procedure for obtaining a ballistics report and also with the problems encountered when presenting ballistics evidence in a criminal case. The evidence is led to establish that only a particular weapon could have fired a bullet or that only a particular tool could have made the marks found at the scene of a crime. The reliability of such evidence has not been conclusively accepted by our courts. See Nyamayaro 1967 RLR 228(A); 1967(4) SA 263 (RA).  See also Hoffman & Zeffertt South African Law of Evidence p 109.

 

Circumstantial evidence

 

Where the conviction of an accused depends upon circumstantial evidence and the drawing of inferences from all the established facts, then the inference sought to be drawn must be consistent with all the proved facts and the facts should be such that they exclude every reasonable inference from them, save the one sought to be drawn: Blom 1939 AD 288; Edwards 1949 SR 30; Marange & Ors 1991 (1) ZLR 244 (S).

 

In Attorney-General v Benett 2011 (1) ZLR 396 (S) the court dealt with the probative value of circumstantial evidence. It pointed out that in assessing the probative value of such evidence the court must not take each circumstance separately and give the accused the benefit of any reasonable doubt as to the inference to be drawn from each one so taken. It must carefully weigh the cumulative effect of all the circumstances together. Only after it has done so is the accused entitled to the benefit of any reasonable doubt which the court may have as to whether the inference of guilt is the only reasonable inference which can reasonably be drawn. In the present case each of the circumstances relied on by the State had very little, if any, probative value. Taken together, the various circumstances did not make a case for the accused to answer.

 

A person can be convicted of murder even if no body is found, on the basis of circumstantial evidence if that evidence is consistent with no other reasonable inference than that the victim is dead and was murdered by the accused. See Shonhiwa 1987 (1) ZLR 215 (S) and Masawi & Anor 1996 (2) ZLR 472 (S).

 

In the Commonwealth Magistrates Book this advice is to be found on circumstantial evidence:

 

Means, motive and opportunity are all examples of what is called circumstantial evidence. Where direct evidence of a particular act or state of affairs is not available, one may, and indeed must, have resort to indirect means of establishing the facts... Since the direct evidence of a witness is open to all the weaknesses of observation and recollection, ... evidence of a circumstantial kind may be less contestable and more easily relied on. To show that a defendant had the means, a motive and the opportunity may go some way towards convincing us of his guilt. It may raise a prima facie case against him which he is called upon to answer.

 

Hearsay evidence

 

Hearsay evidence is testimony not of what the witness himself saw, heard or otherwise observed, but what he heard others say about the matter under investigation. The general rule is that hearsay evidence is not admissible to prove the truth of the matters stated. The reason for this is it is not the best evidence, in that the actual observer is not giving the evidence and therefore the credibility of his evidence cannot be tested by cross-examination. There is also the risk that a second hand report of what the actual observer said may be garbled or inaccurate.

 

There are many exceptions to the rule against hearsay and the relevant textbooks should be consulted if there is a dispute as to whether the case falls within a particular exception. Exceptions include statements made in the course of duty, dying declarations and statements made in the presence of accused. As regards statements made in the course of duty this is provided for in s 253 CPEA. The provision applies where the person who made the statement is dead or unfit to give evidence due to bodily injury or mental condition or he cannot, with reasonable diligence, be identified or found or brought to court and the person made the statement in the ordinary course of duty, contemporaneously with the facts stated and without motive to misrepresent.

 

See Hoffman & Zeffertt South African Law of Evidence 4th ed pp 623-649, "Hearsay Evidence in Outline" by W.A. Hope in 1961 R & N LJ 130.

 

Drawing adverse inferences from accused’s silence

Adverse inferences

 

In terms of the Criminal Procedure and Evidence Act the court may draw certain adverse inferences from the accused's silence at different stages. On the basis of such inferences, the accused’s silence may be treated as evidence corroborating any other evidence given against the accused.

Confirmation proceedings

 

Adverse inferences can be draw at the trial if, at proceedings to confirm a statement allegedly made by the accused to the police, the accused remains silent and does not mention any fact which, in the circumstances, he could reasonably have been expected to have mentioned. If at his trial he challenges the statement on the basis that he did not in fact make it or he did not make it freely and voluntarily, the court may draw adverse inferences from his earlier failure to mention the facts: s 115 CPEA.

Defence outline

 

Adverse inferences can be drawn if the accused pleads not guilty (or the magistrate enters a plea of not guilty because the accused refuses to plead) and, upon being called upon to give his defence outline, he fails to mention any fact relevant to his defence which, in the circumstances existing at the time, he could reasonably have been expected to have mentioned. Such adverse inferences can be drawn by the court from this earlier failure to mention these facts when it determines his guilt for the offence charged or any other crime which he may be convicted of on that charge: s 189(2) CPEA.

Giving evidence

 

If the accused gives evidence in his defence and refuses to answer any questions put to him without any just cause for his refusal (such as on the grounds of privilege), adverse inferences may be drawn by the court from his failure to answer the questions: s 199 CPEA.

Questions put by prosecutor or court

 

Even if the accused has declined to give evidence in his defence, he can be questioned by the prosecutor or the court. If, without just cause, he refuses to answer such questions adverse inferences may be drawn by the court from the failure to answer the questions: s 199 CPEA.

 

Note that in no case does the court have to draw an adverse inference. The accused’s failure to mention particular facts may be quite explicable. 

 

Previous inconsistent statements by State witnesses

Hostile witness

 

A State witness may have made a statement to the police which was against the accused. However, when the case gets to court, because of his relationship to the accused or for some other reason, he may depart from his statement and give evidence favourable to the accused and become a hostile witness against the State case. A defence witness may also become hostile in this fashion.

Impeachment of witness

 

When a witness has become hostile the party calling the witness has the option to apply to impeach this witness in terms of s 316 CPEA. The object of impeachment is not to persuade the judicial officer to accept the evidence he gave in the original statement, but to destroy his reliability as a witness for either side. To have one’s own witness impeached by the court the correct procedure is as follows:

  • The party calling the witness must first produce the previous apparently conflicting statement from the witness and the prosecutor should give the witness sufficient particulars of the statement to identify the occasion on which it was allegedly made.
  • The witness must then be asked whether he made the alleged statement. If the statement is signed, he may be asked to admit to the signature.
  • If the witness admits to having made the statement on the specified occasion, the statement should be put to him and he should be asked to admit or deny using the words alleged.
  • If the witness denies using the words alleged, the party calling the witness may apply to adjourn the case so that he can call witnesses to prove that the statement was made by this witness.(Where the statement has been interpreted, the interpreter must be called.)
  • If the witness admits using the words alleged, the statement may be used without further proof.

 

The witness must then be asked to explain the discrepancies between the statement on the occasion specified and his present testimony and what the truth of the matter really is.

 

See Muhlaba & Ors 1973 (1) RLR 178, Chari 1989(1) ZLR 231(S), C. Goredema "Procedural aspects relating to the impeachment of witnesses" 1989 Vol 1 No 6 Legal Forum 8 and The Prosecutor’s Handbook pp 93-95.

 

The witness' explanation of the apparent conflict may be entirely acceptable. If it is not, it may be appropriate to impeach him in terms of s 316 CPEA. In Chari 1989 (1) ZLR 231 (S), after a State witness had given evidence inconsistent with a previous sworn statement, the prosecutor had produced his statement as an exhibit. Without further ado the magistrate summarily dismissed the witness and excused him from further attendance. The Supreme Court held this amounted to a gross irregularity. The prosecution should have laid a proper foundation for the impeachment and the defence should have had an opportunity to cross-examine the witness.

 

If the party calling a witness applies to have the witness declared hostile and the magistrate declares him to be adverse, the party can then proceed to cross-examine the witness. It is an irregularity for the party calling the witness to be permitted to cross-examine his own witness before the court has declared the witness to be hostile. Before the witness has been declared hostile the party may not go beyond putting the discrepancies and eliciting an explanation from the witness; he may not proceed with full blooded cross-examination of the witness.

 

Although the object of cross-examination of his own witness by the prosecutor may be to discredit all aspects of his testimony, the witness may say some things under cross-examination which in fact implicate the accused. As seen below, the State can then seek to rely on those portions of the testimony of this hostile witness which assist the State case.

Reliance on portion of evidence of impeached witness

 

Where a witness has been impeached after departing from his statement to the police and it is obvious that the witness is favourably inclined towards the accused, it is permissible to accept and rely on that part of his evidence that tends to incriminate the accused: Miller 1971 RLR 159 (A) and Mpofu and Anor S-150-89. In Miller at 160 it is stated that "it is quite illogical to say that, because the witness is trying to help the accused to the utmost extent, he must not be believed when he gives evidence which does not help the accused, but which tends to incriminate him... There is no ground in law... for rejecting out of hand those portions of evidence... which implicate him."

Inconsistent statements at another trial

 

In Mutters & Anor S-66-89 defence counsel had been allowed to put to State witnesses previous inconsistent statements they were alleged to have made in a previous trial. However, the magistrate had refused to admit as evidence the record of the previous trial. The Supreme Court held that by refusing to admit the record as evidence, the magistrate had precluded the defence from proving inconsistencies in the testimony of the witnesses, and had disabled himself from adjudicating on their credibility. The record was perfectly admissible and should have been admitted in evidence.

 

 

Summary

 

If a witness makes a statement which is apparently inconsistent with a previous statement made during investigations before trial, the party calling the witness may ask his witness if he made the previous statement and whether he had any explanation for the inconsistency.

The party calling a witness can only cross-examine its own witness if the court has on application first declared him to be hostile.

 

The entire testimony of an impeached witness does not have to be disregarded. The State may ask the court to take into account portions of the testimony which are prejudicial to the accused.

 

Previous consistent statements to police

 

A statement made by a State witness in a criminal case to the police, whether as an affidavit or otherwise, is not normally admissible in evidence unless he departs from it in a material respect and is impeached. A witness, as a rule, is not permitted to confirm or strengthen his evidence by testifying that he had made a similar statement on a previous occasion.

 

There are, however some exceptions to this rule.

  • If the accused puts to the witness under cross-examination that his story is a recent fabrication, the witness' previous statement becomes admissible in order to show that he had made a previous consistent statement at a time sufficiently early to be inconsistent with the suggestion that the present account was a recent invention.
  • Complaints in sexual cases are admissible to show consistency and to negative a defence of consent, but not to prove its content or to corroborate the evidence of the complainant;
  • Other previous statements which are admissible are statements forming part of the res gestae, statements relating to previous identification, to show consistency in the identification and previous statements by accused persons .

 

(The res gestae consists of the facts constituting and immediately accompanying the matter which is in issue. It includes facts leading up to, explaining and following continuously from the facts in issue. Thus evidence by a hearer of what the victim shouted when assaulted is admissible as part of the res gestae.)

 

Incompetent witnesses

 

Certain witnesses are not competent to give evidence according to the rules of evidence. For example, under s 246 CPE, “no person appearing or proved to be afflicted with a mental disorder or defect or labouring under any imbecility of mind arising from intoxication or otherwise, shall be competent to give evidence while under the influence of any such malady or disability”.

 

Where an allegation that a witness is mentally disordered is made during a criminal trial and the witness appears to be mentally disordered, the court must properly investigate whether the witness is incompetent in terms of this provision.

 

In Ndiweni S-149-89 the court failed to probe an assertion by the defence that a State witness was labouring under some mental disorder. The State did not challenge this assertion. The appeal court said that this was an irregularity.

 

Pre-conviction disclosure of previous convictions of accused and evidence of bad character

 

Normally it is totally impermissible for the State to prove the previous convictions of the accused before he has been convicted of the offence with which he is being charged. The prosecutor may not refer to the previous convictions of the accused prior to the accused being found guilty of the charge. Nor may the prosecutor ask the accused when he is testifying whether he has previous convictions: s 324 CPEA. The reason for this is obvious. The judicial officer should be solely concerned with whether the accused has committed the present offence. If he knows that the accused has a string of previous convictions, this might mean that the judicial officer will be biased against him and will find him guilty on the basis of his previous criminal tendencies rather than because his guilt on the current offence has been proved beyond reasonable doubt. For this reason, if the previous convictions are disclosed before the accused has been found guilty, this will constitute a gross irregularity which will lead to the proceedings being set aside.

 

It is also impermissible for the State to refer to the fact that the accused has been charged with a criminal offence on a previous occasion and was acquitted on a technicality.

 

There are, however, some exceptions to this general rule that evidence of previous convictions must not be introduced before the accused has been convicted. These are:

Where accused charged with receiving stolen property.

 

If the accused is charged with this offence, in terms of ss 305 and 307 CPEA the State is permitted at any time during the trial to lead evidence that the person was found in possession of stolen property within the period of twelve months preceding the time when the person was first charged with the current offence or and evidence that within the preceding five years he has been convicted of an offence involving fraud or dishonesty. The accused must be given three days written notice before such evidence is introduced.

 

This evidence can then be taken into account by the court by the court in deciding whether or not the accused knew that the property he had in possession on the present occasion was in fact stolen.

Evidence of bad character

Although evidence of previous convictions or bad character of the accused may not normally be introduced before conviction, in terms of s 290 CPEA such evidence can be introduced before conviction if

  • the accused has given evidence of his own good character or he or his lawyer has asked a witness questions to try to establish his good character;
  • aspersions are cast upon the character of the prosecutor or State witnesses by the defence;
  • The accused has given evidence against another person charged with the same offence.

 

In Jesse v Pratt & Anor 2001 (1) ZLR 48 (H) it was held that the magistrate had permitted a serious irregularity to take place, the adduction of evidence of the X’s bad character, even though X’s cross-examination of the complainant had not even exposed himself to cross-examination as to his character. Although s 290 CPEA allows the accused to be cross-examined as to his character, the scope of the section is limited. X must have some latitude to examine on credibility without exposing himself to the extremely damaging prospect of being examined on his character. He should only be vulnerable to such an attack where he has attacked the credibility of a State witness, by attempting to impeach character, on an issue not being an essential element of the charge or offence, and to a degree not adjudged warranted, and where the court in its discretion permits such an attack upon the accused.