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Evidence
Evidence and Practice
| Question | Answer |
|---|---|
| What is the definition of judicial evidence? | Evidence adduced at trials or in inquiries before courts, judges, commissioners, or referees, covering both admissible and inadmissible evidence. |
| What is extra-judicial evidence? | Evidence used to satisfy private persons as to facts requiring proof, such as evidence investigated by conveyancers to prove a vendor's property title. |
| When is evidence considered admissible in a court of law? | When it is acceptable in a court of law and permitted to be presented for consideration in deciding the case. |
| What is inadmissible evidence? | Evidence that is wholly or partially not permitted to be tendered before a court by virtue of the exclusionary rules of evidence. |
| What is oral evidence? | A witness's testimony tendered before court through word of mouth, comprising statements made whether direct assertions or hearsay. |
| What are facts in issue? | Disputed facts that a party bases their claim on, affirmed by one side and disputed by the other, bringing the issue to court. |
| What are facts relevant to the issue? | Facts that are not the basis of the dispute but surround the fact in issue and are necessary to prove or disprove it. |
| What does the credibility of a witness refer to? | The degree of a witness's truthfulness or trustworthiness when oral testimony contains facts to support or dispute it. |
| What is direct evidence? | Testimony from a witness who perceived a fact with any of their five senses based on what they saw, felt, smelled, heard, or tasted. |
| What is circumstantial (indirect) evidence? | Evidence from which logical inferences can be drawn to prove or disprove the fact in issue without directly establishing it. |
| What did the Supreme Court hold in *David Zulu v The People* regarding circumstantial evidence? | Circumstantial evidence must attain a degree of cogency that takes the case out of conjecture and permits only an inference of guilt. |
| What three-stage criteria did the Supreme Court establish in *Saidi Banda v The People* for circumstantial evidence? | Prosecution must establish basic facts; combined basic facts presuppose further facts of guilt; cumulative analysis leaves no other reasonable conclusion. |
| How did the judge liken circumstantial evidence in *R v Exall*? | To many cords creating a rope, where no single cord is sufficient alone, but a number of cords taken together allow a conviction. |
| What did the Supreme Court reiterate and apply in *Makasa Mazuba v The People*? | It followed the three-stage criteria from *Saidi Banda* to convict on circumstantial evidence, excluding any hypothesis of innocence. |
| What is real evidence? | Evidential material, physical objects, or personal appearances that the tribunal of fact (judge or magistrate) directly inspects or examines for itself during proceedings. |
| How is documentary evidence distinguished from real evidence? | Documentary evidence relies on written contents to prove facts, whereas a document produced solely as a material object (e.g., stolen property) acts as real evidence. |
| What is real primary evidence versus real secondary evidence? | Primary real evidence is the exact object in issue, while secondary real evidence comprises interchangeable, fungible replicas or photographs where the original cannot be produced (*R v Uxbridge Justices*). |
| What did the court hold in *R v Land* regarding inspecting the appearance of persons to determine a child's age? | The age of a child is a question of fact determined by judicial inspection, and expert evidence is inadmissible as it does not require special expert assistance. |
| What is a "view" in the law of evidence, as illustrated in *Chrismar Hotel Ltd v Cavmont Insurance Corporation Ltd*? | A procedure where the court moves to an off-site location to examine real evidence directly when it cannot conveniently be brought into the courtroom. |
| What two mandatory requirements must be met for a view to be legally valid (*Tameshwar v R*; *Karamat v R*)? | The view must take place in the presence of the presiding judge, and the accused must be present unless they explicitly decline to attend. |
| What happens if an accused person chooses to decline attending a judicial view (*Karamat v R*)? | The accused cannot later object that their voluntary absence rendered the view illegal, provided any participating witnesses are recalled for cross-examination if requested. |
| How must real evidence be formally admitted and authenticated in court (*The State v Warumn*)? | Through an admission or through oral evidence given under oath by a witness who properly identifies the object and links it to the case. |
| What is real evidence according to Gibson? | Evidential material that the court sees or examines for itself, consisting primarily of the inspection of objects other than documents. |
| What is the primary difference between real evidence and documentary evidence? | Real evidence is tangible objects examined for themselves; documentary evidence relies on written inscriptions or contents to prove facts. |
| When may a document be adduced as real evidence rather than documentary evidence? | When it is adduced merely as a material object and physical thing in possession rather than for the truth of its contents. |
| What is real primary evidence? | The actual, original object in question being presented in court for examination, such as the actual murder weapon. |
| What is real secondary evidence and when is it allowed? | Production of replaceable or interchangeable real objects, like photographs, when the original cannot be produced or is destroyed (*R v Uxbridge Justices*). |
| What did the court hold in *R v Uxbridge Justices* regarding secondary evidence? | Where you cannot produce the original object, you may rely on secondary evidence such as fair and detailed photographs. |
| What did the court hold in *R v Land [1998]* regarding expert evidence on age? | The age of a child is a finding of fact for the jury; expert evidence is inadmissible on the subject as it requires no expertise. |
| What is a "view" in the law of evidence (*Chrismar Hotel v Cavmont Insurance* object inspection)? | When a court moves out of court premises during a trial to inspect evidence or a location for better convenience. |
| What two strict requirements must be met for a court view to be valid under *Tameshwar v R* and *Karamat v R*? | The view must be taken in the presence of the judge, and in the presence of the accused unless the accused declines to attend. |
| What did the court rule in *Tameshwar v R* regarding the absence of the judge during a view? | It is entirely impermissible for a court viewing of a scene or evidence to take place in the absence of the judge. |
| What did the court hold in *Karamat v R* regarding an accused person's absence from a view? | If an accused declines to attend a desirable view, they cannot later object; participating witnesses testifying must be recallable for cross-examination. |
| How must a material object or real evidence be proven and admitted in a trial (*The State v Warumn*)? | Through an admission or oral testimony from a witness under oath identifying the object and linking it to the facts. |
| What did the court hold in *The State v Warumn* regarding witness testimony for real evidence? | Witnesses must give testimony under oath to identify objects like axes or knives to properly bring real evidence before the court. |
| What is a document under the Evidence Act and *Hill v R*? | Any device recording/storing information; form is immaterial (paper, stone, metal, skin) if relied on for recorded content. |
| What are the three stages of producing documentary evidence in a criminal trial (*OTK v Amanita*; *Kajimanga v Chilemfwa*)? | 1. Laying the foundation (discussing it); 2. Confirmation stage (identifying and confirming it); 3. Inclusion as part of evidence. |
| What must parties do during civil discovery and inspection (*OTK v Amanita*; *Kajimanga v Chilemfwa*)? | Inspect each other's intended documents; failure to comply does not waive a party's right to make a timely objection at trial. |
| How are public documents admitted under Order 5 Rule 9 of the High Court Rules? | Admissible on mere production as a hearsay exception; they are official public records open for public consultation. |
| What is the Best Evidence Rule under Section 3(1) of the Evidence Act and *Susan Nkunde v Cerzam*? | A party relying on a document's contents must produce the original document itself as the best primary evidence. |
| What was held in *Augustien v Challis* regarding testimony on a document without producing it? | Witness oral testimony about a lease's contents was held inadmissible because the written lease was not produced. |
| What was held in *McDonald v Evans* regarding cross-examination on document contents? | Questions loading assumptions about an unproduced document's contents were disallowed under the Best Evidence Rule. |
| What was held in *Forbes v Samuel* regarding duplicate signed documents? | Where duplicate copies are executed and signed by each of the parties, each duplicate is considered an original. |
| When does the Best Evidence Rule *not* apply under *McDonald v Evans*? | When a party does not seek to rely on or prove the actual words/contents of the document. |
| How do the ECT Act (Ss 8/10) and Bankers' Books Evidence Act (S 3) modify the Best Evidence Rule? | They allow secondary data messages and copies of bank book entries to be admissible prima facie evidence. |
| How is secondary evidence allowed when an opponent holds the original? | Issue a Notice to Produce; if unfulfilled, obtain a Summons for Court Order; if still unproduced, secondary evidence is admitted. |
| What was held in *Dwyer v Collins* regarding documents in the possession of strangers? | Where a non-party (like a lawyer or diplomat) lawfully refuses to produce an original, secondary evidence is allowed. |
| What three principles were established in *George Biyenga v The People* for lost original documents? | 1. Secondary evidence is admissible if lost; 2. Adequate search must be proved; 3. Search diligence depends on document value. |
| How does Section 3(2)(b) of the Evidence Act and *Access Bank v Upeo Zambia* treat original document production? | Secondary evidence is admissible where producing the original would cause undue delay or expense. |
| What four conditions from *D'sav v R* allow secondary summary reports of numerous accounts? | 1. Witness skilled in examination; 2. Witness personally examined them; 3. Documents too numerous for court; 4. Proves general result. |
| What is the general definition of judicial notice in *Shamwana & Others v The People*? | Cognizance taken by a judge of facts from general knowledge or proper inquiries without requiring formal evidence. |
| How did Silungwe CJ describe judicial notice in *Mwape v The People*? | Notice of common knowledge facts so notorious that requiring evidence would be unnecessary and an insult to intelligence. |
| What was held in *Preston Jones v Preston Jones* regarding judicial notice of pregnancy gestation? | Courts take judicial notice that normal gestation is ~9 months, but not that a child born 360 days post-coitus is non-marital. |
| What fact did the Supreme Court take judicial notice of in *Mwape v The People*? | That ZCBC shops, like most supermarkets, were customarily guarded by a watchman as a matter of common knowledge. |
| What fact was judicially noticed in *John Paul Kasengele & Others v ZANACO*? | That large commercial banks have branches across the country and are guarded by security personnel. |
| What did the court hold in *Hubert Sankombe v The People* regarding geographical distances? | Judicial notice can be taken of the distance between two geographically defined locations, such as Kalulushi and Kitwe. |
| What two key rules on judicial notice were established in *Gastove Kapata v The People*? | Courts must be cautious where doubt exists, but a judge may use personal knowledge of local general facts (e.g. public roads). |
| What did the court hold in *Reynhold Chanda Bowa v Puma Energy* regarding newspapers? | The courts can take judicial notice of local newspaper publications in the country. |
| What was held in *Kaniki v Jairos* regarding judicial notice of African customary law? | Courts cannot take judicial notice of customary law; they must sit with assessors and receive advice on customs. |
| How did *Shamwana v The People* alter the rule in *Fattaela v The People* on court records? | A judge has power to look at records of another judge and take judicial notice of contents without calling a witness. |
| What do Sections 6 and 18 of the Interpretation and General Provisions Act mandate? | All Zambian/applicable British Acts and Statutory Instruments in the Gazette must be judicially noticed. |
| What is a presumption in the law of evidence? | A conclusion that may or must be drawn from known facts until the contrary is proved, establishing a fact without complete proof. |
| What are the three general categories of presumptions? | 1. Irrebuttable presumptions of law (conclusive); 2. Rebuttable presumptions of law; 3. Presumptions of fact. |
| What is an irrebuttable presumption of law? | A rule of substantive law where no evidence is admissible to rebut the presumption once the underlying basic facts are proven. |
| Give a statutory example of an irrebuttable presumption of law. | Section 14(3) of the Penal Code: a person under the age of 12 is conclusively presumed incapable of having carnal knowledge. |
| What is a rebuttable presumption of law not depending on proof of any basic fact? | A mandatory legal conclusion drawn automatically without requiring proof of foundational facts unless rebutted by evidence. |
| What is the Presumption of Innocence under Article 18 of the Zambian Constitution? | An automatic rebuttable presumption that an accused person is innocent until proven guilty beyond reasonable doubt by the prosecution. |
| What is the Presumption of Innocence in favour of a child under Penal Code Amendment Act No. 13 of 2022? | A child under 12 years is presumed not criminally responsible for any act or omission (*doli incapax*). |
| What is the Presumption of Sanity under Section 11 of the Penal Code? | An accused person is presumed sane; the burden of proving insanity to rebut this presumption rests on the accused. |
| What three basic facts must be proven to establish the Presumption of Death? | 1. Missing for 7+ years; 2. No contact with likely persons; 3. Diligent but fruitless inquiries made. |
| How does the Zambian Supreme Court case of *Fenias v Sitale* affect the presumption of marriage from cohabitation? | It undermined the common law presumption by holding that mere cohabitation does not amount to a valid marriage in Zambia. |
| What was established in *Piers v Piers* regarding the presumption of formal validity of marriage? | Upon proof of a marriage ceremony, there is a strong presumption that all essential legal formalities and statutory requirements were met. |
| What is the Presumption of Essential Validity of marriage? | Upon proof of a marriage ceremony, the law presumes that parties had the legal capacity to marry and gave real consent. |
| What is the Presumption of Regularity regarding public officers and mechanical devices? | Official acts, appointments (judges/police), business transactions, and devices (speedometers/traffic lights) are presumed to operate correctly. |
| What basic facts give rise to the Presumption of Legitimacy? | Proof that a child was born or conceived during lawful wedlock, or within the normal gestation period following its dissolution. |
| What is a Presumption of Fact? | A permissive inference of circumstantial evidence where proof of a fact permits (but does not compel) the court to infer another fact. |
| What is corroboration in the law of evidence? | Independent, relevant, and admissible evidence that supports or confirms a witness's testimony in a material particular and implicates the accused (*Nsofu v The People*; *R v Baskerville*). |
| What three elements must corroborative evidence fulfill under *R v Baskerville* and *Nsofu v The People*? | 1. Must come from an independent/extrinsic source; 2. Must connect/implicate the accused with the crime; 3. Need only support the story in a material particular (*Credland v Knowler*). |
| What did the court hold in *DPP v Kilbourne* regarding independent corroboration? | Corroborative statements must be truly independent; if there is any real chance of collusion between sources, they cannot be accepted as corroboration. |
| What four statutory provisions in Zambia explicitly mandate corroboration before a conviction can be made? | 1. Perjury (S 107 Penal Code); 2. Procuration (S 140 Penal Code); 3. Speeding traffic offences; 4. Sedition (S 59 Penal Code). |
| What rule governs corroboration in sexual offences (*Emmanuel Phiri v The People*; *Part XV Penal Code*)? | Courts must warn themselves of the danger of convicting on the uncorroborated evidence of the complainant regarding the offence and the identity of the accused. |
| When may a court convict on uncorroborated evidence in sexual or accomplice cases (*Emmanuel Phiri v The People*; *Shamwana v The People*)? | Only if there is a "special and compelling reason" or "something more" (evidence falling short of corroboration that excludes the danger of false implication). |
| What was held in *Katebe v The People* regarding a special and compelling reason in a sexual offence? | Where the court warned itself, found no motive to lie, and noted clear identification by a witness who knew the accused, it constituted a special and compelling reason. |
| What did the Supreme Court hold in *Axon Zimba v The People* regarding crying as corroborative evidence? | Independent evidence that a victim was crying does not constitute a special and compelling reason to convict, as crying can easily be simulated. |
| Why must courts exercise caution when considering accomplice testimony (*Machobane v The People*)? | Accomplices often have a self-serving interest to exonerate themselves; thus, a witness found in possession of stolen property is presumed an accomplice unless proven otherwise. |
| Can the testimony of one accomplice corroborate the testimony of another accomplice? | No; as held in *Shamwana v The People*, one accomplice cannot corroborate another unless the possibility of collusion or false implication is completely eliminated. |
| What rules on uncorroborated accomplice evidence were set out in *Emmanuel Phiri & Others v The People*? | 1. Judge must warn and record reasons; 2. Demeanor or perceived honesty alone is not "something more"; 3. "Something more" must exclude false implication. |
| How is corroboration of a child's evidence handled under Section 79 of the Children's Code Act? | The court *may* require that the evidence of a child be corroborated, leaving the requirement to the discretion of the court. |
| What does character mean at common law under *R v Rowton*? | Reputation among people who know them, not specific good or bad acts or disposition. |
| What did the Court of Appeal hold in *R v Redgrave* regarding disposition evidence? | An accused cannot give evidence of specific facts or acts to show a lack of disposition to commit the alleged offence. |
| When is evidence of a plaintiff's character admissible in a civil suit (*Scott v Simpson*)? | Only when character is central to the cause of action (e.g., defamation) or directly affects the quantum of damages. |
| What was held in *Hollington v Hewthorn* regarding using criminal convictions in civil trials? | A prior criminal conviction is inadmissible in civil proceedings to prove negligence or civil liability (*res inter alios acta*). |
| What did the court hold in *Kabwe Transport Ltd v Press Transport* regarding criminal convictions in civil actions? | Evidence of a person's conviction in a criminal trial cannot be adduced as character evidence in a civil trial. |
| When can the prosecution adduce evidence of an accused's bad character at common law and under Section 157(vi)(b) CPC? | Only when the accused puts character in issue by giving evidence of good character or attacking prosecution witnesses (*R v Butterwasser*). |
| What restriction applies under *R v Rowton* when prosecution rebuts an accused's character? | Rebuttal evidence must be strictly confined to the accused's general reputation, not specific good or bad acts. |
| What did the court hold in *Melody Chibuye v The People* regarding improper character questions? | Accused persons must not be asked or required to answer bad character questions unless they put good character in issue under Section 157 CPC. |
| What discretion does a court retain regarding admissible bad character evidence (*Melody Chibuye v The People*)? | The court has discretion to exclude bad character evidence if its prejudicial effect outweighs its probative value. |
| When is bad character evidence of a witness admissible in civil or criminal trials? | Only when it bears directly on the witness's credibility through cross-examination as to credit. |
| What rule on cross-examination as to credit was established in *Chobbs v Tinoign & Co Ltd*? | Questions are proper only if answers seriously impair credibility; remote or frivolous matters amounting to badgering are improper. |
| What is hearsay evidence? | Oral or written statements made by persons other than the testifying witness, offering unverified info not acquired from direct personal knowledge. |
| What is the general legal rule regarding hearsay evidence (*Myres v DPP*)? | Hearsay evidence is inadmissible as a general rule because witnesses must testify only from personal knowledge and perception. |
| What are three primary reasons for excluding hearsay evidence? | 1. Maker was not under oath; 2. Court cannot assess the maker's demeanor; 3. Opponent cannot cross-examine the original maker. |
| What did the court hold in *CR Holdings Ltd v Mary Musonda & Others* regarding unverified affidavits? | Producing an affidavit without the deponent giving oral evidence to substantiate claims is inadmissible hearsay. |
| What did the court establish in *Mutambo v The People* and *Shamwana v The People* regarding out-of-court statements? | Not hearsay if adduced merely to prove *that* it was said; it is hearsay only when adduced to establish the truth of its contents. |
| What did the court hold in *The People v John Nguni* regarding res gestae? | Spontaneous statements made during an event under pressure or involvement excluding concoction are admissible as res gestae exceptions. |
| How did the Supreme Court expand res gestae in *Edward Sinyama v The People* and *Samuel Mutambalilo*? | Statements made after running 500m or in response to a question are admissible if the possibility of concoction is disregarded. |
| What is the primary rationale for admitting dying declarations under *R v Perry* and *R v Osman*? | The solemnity of impending death and absence of hope create an obligation equal to an oath, as no one dies with a lie on their lips. |
| What did the Supreme Court affirm in *Mirriam Chilosha v The People [2022]* regarding dying declarations? | Cardinal factor is whether the deceased had a settled hopeless expectation of death, making false implication improbable. |
| In what specific types of criminal charges are dying declarations admissible (*R v Mead*)? | Only in trials for the criminal charges of murder or manslaughter where the death circumstances are the subject. |
| How does Section 3 of the Evidence Act create an exception to hearsay for documents? | Allows a document to be spoken to by a witness who did not author it, provided the actual maker had personal knowledge of the matters dealt with. |
| What is a confession in law? | A statement made outside court, usually to a person in authority, which is adverse to its maker by being fully or partially incriminating. |
| What did *Tapisha v The People* establish regarding written statements as confessions? | Written statements, including signatures or marks of the maker, amount to confessions, and voluntariness is a condition precedent to admissibility. |
| Who is a "person in authority" according to *Abel Banda v The People*? | A person trained to investigate crimes and obtain evidence, such as law enforcement officers. |
| What did the court hold in *R v Z* regarding statements that become incriminating later? | A statement not incriminatory when made becomes a confession if it is partially or wholly incriminatory when tendered in court. |
| What are three key differences between confessions and admissions? | 1. Confessions incriminate (admissions acknowledge facts); 2. Confessions are out-of-court only; 3. Confessions exist only in criminal law. |
| What is the primary test for the admissibility of a confession (*Ibrahim v R*)? | The prosecution must prove beyond a reasonable doubt that the confession was made freely and voluntarily, without threats or promises. |
| What is a trial within a trial and when must it be held (*Wakilaba v The People*)? | A mini-hearing on confession voluntariness; the court must stay trial and hold it whenever voluntariness is challenged at any stage. |
| What was held in *Daka v The People* regarding when a trial within a trial is unnecessary? | When the accused outrightly denies making the statement at all, or when voluntariness is not in issue. |
| What did *Mwiya & Ikweti v The People* identify as the justification for a trial within a trial? | To protect against unfair admission and injustice due to the highly prejudicial nature of confession statements. |
| Who bears the burden of proof in a trial within a trial (*R v John Kahyata*; *Chigowe v The People*)? | The prosecution must prove voluntariness beyond a reasonable doubt. |
| What factors rendered confessions involuntary in *Chigowe v The People* and *The People v Boyd Kamizhi*? | Prolonged questioning (*Chigowe*) and severe beating, starvation, or physical abuse (*Boyd Kamizhi*). |
| What did *Zeko Chinyama v The People* hold regarding voluntary confessions? | Even if voluntary, the court retains discretion to exclude a confession if its admission would operate unfairly to the accused. |
| When is an incriminating statement to a person *not* in authority admissible (*Kopa v The People*; *Miyanda v The People*)? | When made voluntarily, coincides with other evidence, and no conflicting evidence disproves it (no trial within a trial needed). |
| What did the court hold in *The People v Chanda* regarding evidence found via involuntary confessions? | The involuntary confession itself is inadmissible, but physical evidence discovered as a result of it is fully admissible. |
| What rule was established in *Maketo v The People* regarding confessions implicating co-accused? | A confession is evidence only against its maker, not a co-accused, unless the co-accused explicitly adopts it as their own. |
| What did *Bornface Chola v The People* hold regarding a co-accused's silence to an incriminating confession? | Silence by a co-accused does not constitute adoption of a confession; adoption requires positive conduct or demeanor. |
| What is the general rule on opinion evidence in a court of law? | Opinion evidence is inadmissible; witnesses are witnesses of fact and must state what they perceived, leaving inferences to the court. |
| What did the court hold in *Mwelwa v The People* regarding non-expert witnesses? | Lay witnesses cannot give opinions on issues the court must decide; they give facts, though they may state an accused appeared drunk. |
| What was established in *Blake v The People* regarding lay opinion on alcohol consumption? | Lay witnesses cannot place their opinions before the court as to the effect of alcohol consumption on an accused's ability to drive. |
| When is expert opinion evidence admissible (*The People v Turner*)? | When a matter requires special study or skill to provide the court with information outside the judge's knowledge and expertise. |
| Who qualifies as an expert witness under *Sinclair v Joyner*? | A person qualified to express an opinion by reason of either academic training or considerable practical experience in a given field. |
| What core duties of an expert witness were set out in *The Ikarian Reefer*? | Expert evidence must be independent, objective, unbiased, within the witness's expertise, and disclose foundational facts or assumptions. |
| What did the Supreme Court hold in *Chansa v The People* and *Sithole v State Lotteries Board*? | Expert opinion assists the court but does not decide the case; the court is not bound by expert evidence and makes the final finding. |
| What is required when an expert witness relies on documents or materials (*Chuba v The People*; *Sithole v State Lotteries Board*)? | The expert must produce and exhibit all underlying materials, pictorials, or handwriting samples before the court. |
| How is opinion evidence admitted in defamation cases where fair comment is pleaded? | The author must give opinion evidence explaining why they verily believed their published comment was fair. |
| Why is identification evidence treated as an exception to the rule against opinion evidence? | Identifying a person or object is inherently an expression of subjective impression or opinion, yet it is admissible. |
| How may a non-expert witness give admissible opinion evidence on handwriting (*Sithole v State Lotteries Board*)? | By showing they have seen the person write or have conducted regular correspondence and business transactions with them. |
| What was held in *Chuba v The People* regarding non-experts with extensive practical experience? | An accountant's opinion on Toyota vehicles was admissible because long-term practical interaction provided sufficient experiential competence. |
| What did the Supreme Court hold in *Liswaniso v The People [1976]* regarding illegally obtained evidence? | Relevant evidence obtained illegally (e.g., via illegal search or seizure) is admissible on the ground that it is a fact, regardless of constitutional violations. |
| What is the sole exception to the admissibility of illegally obtained evidence in criminal trials (*Liswaniso v The People*)? | Evidence obtained via an involuntary confession remains inadmissible even if relevant. |
| What did the Supreme Court establish in *Liswaniso Sitali & Others v Mopani Copper Mines* regarding civil matters? | The rules governing illegally or unfairly obtained evidence in civil cases are identical to criminal cases: relevant evidence is admissible regardless of how it was obtained. |
| What is the general rule under Section 275 of the CPC and *Daniel Mubita Situmbeko v The People* regarding evidence of previous convictions? | Evidence of an accused's previous convictions is inadmissible before conviction because it would be highly prejudicial; it is relevant only during sentencing. |
| What exception is contained in the proviso to Section 275 of the Criminal Procedure Code? | The prosecution may adduce evidence of previous convictions during trial if the accused person explicitly puts their character in issue. |
| What is privilege in the law of evidence? | A right or immunity allowing a person in legal proceedings to refuse to answer questions or produce documents that would incriminate or expose them. |
| What is legal professional privilege? | The right of a client to keep all confidential communications between themselves and their legal adviser from being disclosed without consent. |
| What is the core test for legal advice privilege under *Three Rivers District Council v Bank of England [2004]*? | The communication must be made in confidence for the purpose of giving or receiving legal advice in a relevant legal context. |
| Does legal advice privilege apply only to communications made in connection with litigation? | No; legal advice privilege extends to non-litigious legal advice and applies to communications with both external and in-house lawyers. |
| What is litigation privilege? | Privilege covering communications between lawyers, clients, and third parties (e.g., experts or witnesses) made for pending or contemplated litigation. |
| What is the "dominant purpose test" for litigation privilege established in *Waugh v British Railway Board*? | Preparation for pending or contemplated litigation must be the sole or dominant purpose for which the document or communication came into existence. |
| What two criteria must documents referred to during legal advice or litigation meet to be privileged? | 1. Must come into existence in connection with giving legal advice or litigation; 2. Must be in the possession of a person entitled to possess them. |
| What is examination in chief? | The first examination of a witness by the party who called them to elicit direct testimony and give their account of events. |
| What is cross-examination? | The questioning of a witness called by the opposing party to test, challenge, or discredit their testimony. |
| What is re-examination? | The questioning of a witness by the party who called them, limited to clarifying or explaining matters raised during cross-examination. |
| What are three primary purposes of a pre-trial witness session? | 1. Prepare for examination in chief; 2. Anticipate and prepare for cross-examination; 3. Brief the witness on court etiquette. |
| Why must an advocate avoid coaching a witness during pre-trial preparation? | Witness testimony must be authentic; coaching leads to rehearsed answers that collapse under unexpected cross-examination. |
| What is a leading question and why is it prohibited during examination in chief? | A question that suggests or prompts the desired answer; prohibited in chief because it puts words in the witness's mouth. |
| What four personal details must always be elicited from a witness at the start of examination in chief? | The witness's full name, age, residential address, and current occupation. |
| How should counsel handle unwarranted judicial interference during examination in chief? | By requesting a sidebar or seeing the judge in chambers to politely raise the issue, preserving court decorum. |
| What is a trial objection? | A formal procedural protest raised by counsel asserting that a question, answer, or item of evidence violates the rules of evidence. |
| What six common grounds justify raising an objection during witness examination? | 1. Irrelevance; 2. Witness incompetence; 3. Leading question in chief; 4. Badgering; 5. Repetitive questions; 6. Exclusionary rule violation. |
| What procedure governs an objection raised in court? | Objecting counsel stands (other sits), states grounds, opposing counsel responds, objecting counsel replies, and the judge rules. |
| What does it mean when a judge sustains or overrules an objection? | Sustaining agrees with the objection and excludes the question/evidence; overruling disagrees and allows the question/evidence. |
| What is examination in chief? | The first examination of a witness by the party who called them to elicit direct testimony and give their account of events. |
| What is cross-examination? | The questioning of a witness called by the opposing party to test, challenge, or discredit their testimony. |
| What is re-examination? | The questioning of a witness by the party who called them, limited to clarifying or explaining matters raised during cross-examination. |
| What are three primary purposes of a pre-trial witness session? | 1. Prepare for examination in chief; 2. Anticipate and prepare for cross-examination; 3. Brief the witness on court etiquette. |
| Why must an advocate avoid coaching a witness during pre-trial preparation? | Witness testimony must be authentic; coaching leads to rehearsed answers that collapse under unexpected cross-examination. |
| What is a leading question and why is it prohibited during examination in chief? | A question that suggests or prompts the desired answer; prohibited in chief because it puts words in the witness's mouth. |
| What four personal details must always be elicited from a witness at the start of examination in chief? | The witness's full name, age, residential address, and current occupation. |
| How should counsel handle unwarranted judicial interference during examination in chief? | By requesting a sidebar or seeing the judge in chambers to politely raise the issue, preserving court decorum. |
| What is a trial objection? | A formal procedural protest raised by counsel asserting that a question, answer, or item of evidence violates the rules of evidence. |
| What six common grounds justify raising an objection during witness examination? | 1. Irrelevance; 2. Witness incompetence; 3. Leading question in chief; 4. Badgering; 5. Repetitive questions; 6. Exclusionary rule violation. |
| What procedure governs an objection raised in court? | Objecting counsel stands (other sits), states grounds, opposing counsel responds, objecting counsel replies, and the judge rules. |
| What does it mean when a judge sustains or overrules an objection? | Sustaining agrees with the objection and excludes the question/evidence; overruling disagrees and allows the question/evidence. |
| What is the primary purpose of cross-examination? | To challenge the witness's credibility, expose weaknesses/inconsistencies, test observation/recollection, and elicit favorable facts. |
| Are leading questions permissible during cross-examination? | Yes; leading questions are the primary tool in cross-examination to maintain control and elicit concise, predictable answers. |
| What restrictions apply to the questioning style and content during cross-examination? | Questions must have a truthful foundation, be relevant, and must not badger, yell at, or intimidate the witness. |
| Can a witness summoned via *Subpoena duces tecum* be cross-examined? | No; a witness subpoenaed solely to produce a document without giving oral evidence cannot be cross-examined. |
| Can cross-examination take place without prior examination in chief or a witness statement? | No; the right to cross-examine arises only when there is evidence in chief already on record. |
| What is the modern legal approach when a witness dies after examination in chief before cross-examination? | The evidence in chief is not expunged; it remains on record, and the court determines what weight to attach to it. |
| When is it advisable for counsel to abstain from cross-examining an opposing witness? | When the evidence in chief does not harm counsel's case or when the witness's testimony is completely airtight and unshakeable. |
| What is the "90% rule" strategy in cross-examination? | Counsel does most of the talking using leading questions that elicit short "yes/no" answers to maintain total witness control. |
| What is the purpose of re-examination? | To allow the party calling the witness to rehabilitate testimony or clarify ambiguous matters raised during cross-examination. |
| What are three fundamental rules governing re-examination? | 1. Limited strictly to matters raised in cross-examination; 2. No leading questions allowed; 3. Only permitted if cross-examined. |
Created by:
Eddard