LAW OF EVIDENCE

The law of Evidence deals with how facts may be proved in a

court of law and what facts may not be proved. In almost all
civil cases and in all criminal cases where there is a plea of not
guilty, the Prosecutor or Plaintiff has to prove a variety of facts
and the law of evidence tells him how he may do it.
1. The Plaintiff/Prosecutor may call witnesses to prove his
case. But the law of evidence also deals with who can be called
as a witness and the kind of questions that can be addressed to
the witness.
2. The law of evidence allows the courts to make use of
documents and other things which have been produced before
it as exhibits for a variety of things and reasons.
3. The law of evidence will also tell you that you can prove
one point by proving another point for example murder is not
always proved by the testimony of one witness but an inference
can be drawn from a variety of facts which would show that a
crime was committed and by the accused. These evidential
facts could be motive, concealment, proof of purchase of a
weapon etc
4. The law of evidence will also prohibit certain facts from being
proved – exclusionary evidence, i.e. hearsay evidence called to
prove the truthfulness of a fact will be excluded. The law tells
you what evidence should be put before the court and what
should not.
4. The law of evidence will also tell you what facts must be
proved and the rule of thumb is that the evidence must be
relevant to the issue before the court.

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 DEFINITION AND NATURE OF EVIDENCE
Evidence is “that which makes evident a fact to a judicial
tribunal”. Judicial evidence consists of
(1) Facts which are legally admissible; and

(2) The legal means of attempting to prove such facts. (See Knox in
Introduction to evidence).

The word ‘evidence “is derived from the Latin word evider, which means to show clearly; to
make clear to the sight; to discover clearly; to make plainly certain; to ascertain ; to prove. So
evidence is about proving or disproving facts in issue, the means by which such facts come to
be proved or disproved.

Black’s Law Dictionary has defined the evidence as something including testimony
(documents and tangible objects) that tends to prove or disprove the existence of an alleged
fact. E.g. the bloody glove is the key piece of evidence for the prosecution. Evidence is the
demonstration of a fact, it signifies that which demonstrates, makes clear or ascertains the
truth of the very fact or point in issue.

Moonir states that “The term evidence in its legal and general acceptation includes all means
by which alleged fact is proved or disproved to the satisfaction of the court”.

Phipson states that –Evidence means the testimony whether oral, documentary, real which
may be legally received in order to prove or disprove some fact in issue”

S.2 of the Criminal Procedure and Evidence Code (CP & EC) say
that “evidence means information of any description which
facts tend to be proved, and includes oral evidence; that is to
say all statements which the court permits or requires to be
made before it by witnesses in relation to matters of fact under
the enquiry”. S.2 of CP & EC also talks of documentary
evidence as all documents produced for the inspection of
courts. The definition in CP & EC would still apply in civil
matters Evidence may also be described as “that which turns to
prove the existence of a fact”. (See Cross on Evidence,
London Butterworth,1979). The evidence must satisfy the

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enquiry of the innocent third party i.e. Court. The evidence
must prove a fact in issue. The law of evidence deals with 3
basic matters;
(i) What facts may or may not be proved in a particular
case (ii) What sort of evidence must be given on a
particular fact which may not be proved.
(iii) By whom and in what manner the evidence must be
produced by which any fact is to be proved. (See Stevens in
The digest of the law on evidence)
Newman in his Manual on Criminal procedure and
Evidence says that “evidence is any material tending to show
the court that the facts in issue do or do not exist”. In criminal
matters the facts in issue are the elements of the alleged
offence. In civil matters facts in issue are set out in pleadings.
S.3 of CP & EC talks of the principle of substantive justice [not
to be undermined by technicalities] However, whether civil or
criminal the rule that “he who asserts must prove” cuts across.

CLASSIFICATION OF EVIDENCE
Evidence can be classified into several categories
(1) Oral evidence
(2) Documentary evidence
(3) Real evidence
(4) Direct and Indirect evidence
(5) Circumstantial Evidence
(6) Hearsay Evidence

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ORAL EVIDENCE
This is live evidence which a person gives in person. It is given
viva voce. The witness must physically appear before the
Court and under oath or affirmation. He must speak what he
knows of the matter in issue and he goes through the whole
process of examination – in chief, cross-examination and re-
examination. This is regarded as the best form of evidence
because the court is able to access the demeanour of the
witness as he goes through the examination process.
The Court will notice any inconsistencies, if any. It also notices
if he has been shaken on any point. It also notices where he
stood firm in his evidence. The Court will also notice if the
witness is becoming unreasonably adamant or pedantic. This
helps the court to see whether the witness is lying or is telling
the truth.

DOCUMENTARY EVIDENCE
This is that which arises out of documents i.e. letters, written
statements, deeds, photographs, maps etc. See S. 173, 175,
179 & 180 CP & EC on limitation on documentary evidence
Real Evidence Is anything produced in Court for it to be
examined for the Court’s own satisfaction on the matter under
enquiry. Here the Court is concerned with the substance and
not the content of the exhibit.

REAL EVIDENCE
This is evidence in form of objects produced for inspection in court
proceedings to aid a claimant in his claim or defendant in his defence. A
good example is a gun or knife suspected on being used in a murder. The

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jury or court may need to inspect such weapon to aid it in its conclusion.
Although real evidence may be extremely valuable as a means of proof,
the extent of weight attached to it depends on accompanying evidence.
See R v Tilley [1961]1 WLR 1309
Also see Anderson v R [1972] AC 100 PC
Real evidence is not only limited to objects, it can also be in form of
human beings and animals. For example in personal injury claims,
assessment is done through examining the injured claimant and the
claimant himself is real evidence. In Line v Taylor (1862) F&F 731 a
dog was brought to court as evidence of vicious disposition to be examine
by the jury.
In The statute of liberty [1968]1WLR 739 radar recordings of a ship
just like ordinary tape recordings were held to be admissible as real
evidence.
Also see Mpinganjira v Leman and another [2000-2001] MLR 295

DIRECT AND INDIRECT EVIDENCE

Direct Evidence is evidence perceived by the person giving it
in court. Normally direct evidence tends to prove facts in issue
as opposed to evidence that only proves matters which are
collateral to the facts in issue. We can also move from there
and say there is Indirect Evidence which is evidence
presented in court by a person who did not perceive it himself.
This indirect evidence which is caught by the hearsay rule is
acceptable by the court. It is called Circumstantial Evidence.

CIRCUMSTANTIAL EVIDENCE

Circumstantial evidence, in law, is evidence not drawn from direct observation of a fact in
issue. If a witness, for example, testifies that he saw a defendant fire a bullet into the body of
a person who then died, this is direct testimony of material facts in murder, and the only
question is whether the witness is telling the truth. If, however, the witness is able to testify
only that he heard the shot and that he arrived on the scene seconds later to see the accused
standing over the corpse with a smoking pistol in his hand, the evidence is circumstantial; the

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accused may have been shooting at the escaping killer or merely have been a bystander who
picked up the weapon after the killer had dropped it.

One can be convicted on circumstantial evidence. Most criminal convictions are based on
circumstantial evidence, although it must be adequate to meet established standards of proof.

Circumstantial evidence is also known as indirect evidence.

HEARSAY EVIDENCE
This is testimony based on what a witness has heard from another person rather than on direct
personal knowledge or experience.

OTHER CLASSIFICATIONS OF EVIDENCE

There is another classification called Primary Evidence which
mainly relates to documents and the term primary suggests no
better evidence i.e. if documents then you are talking if
Originals. Secondary Evidence suggests there is better
evidence somewhere. This would be photocopies of the original
documents in place of the original. A copy has to be certified as
a true copy of the original if the court is to accept Evidence may
also be classified as Insufficient Evidence. This is evidence so
weak & unreliable evidence which no reasonable tribunal ought
to rely on it. Prima facie Evidence is evidence which (on the
face of it) appears strong and reliable if uncontroverted.
Conclusive Evidence does not allow room for argument. Usually
it is in form of statutory provisions (strictly applied to statutory
provisions). This term will be used in appropriate cases of
statutory nature.

SOURCES OF THE LAW OF EVIDENCE IN MALAWI

1. Constitution of the Republic of Malawi

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2. Criminal Procedure and Evidence Code
3. Case law
4. Authoritative texts by Jurists.

BURDEN AND STANDARD OF PROOF

LEGAL BURDEN OF PROOF
In criminal cases the legal burden lies on the prosecution throughout the case it does not
shift to the accused see proviso to S.187 (1) CP & EC

WOOLMINGTON V DPP 1935 462

DIVERSON V R Criminal App 82 of 1976

The trial magistrate convicted the appellant of theft of cattle & recorded in
the judgement that the appellant “has therefore failed to convince this
court as to his innocence”. Jere J quashed the
“This is clearly a misdirection of the gravest magnitude. The burden of
proof lies on the Pros to prove the case against the accused beyond
reasonable doubt. It is up to the accused to prove his innocence.”

The burden of proof lies on the Prosecution to prove each and every element / ingredient
of the offence charged.

However, there are a few exceptions to this rule

(1) Insanity
S.11 of the Penal Code (PC) presumes all persons to be sane and to have been sane at all
times that come into question unless the contrary is proved. Consequently because of this
obligation the state is under no obligation to prove sanity.

R V PUMERO 1 ALR Mal 67 R V ROTEZIO ALR Mal 200

(II) Theft by public servant

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S.283 (1) PC – Initially saddles the State with the burden of proof, but once the state has
proved the necessary elements in that offence, then the accused shall be presumed to have
committed the offence unless he satisfies the court to the contrary

R V LEVULO 3 ALR Mal 494 LIKAKU V R 5 ALR Mal 83 THOMPSON V R 5 ALR

Mal 264

(III) Possession of house breaking implements

S.313 (c) PC makes it an offence for a person to have “in his possession by night without
lawful excuse, the proof of which lies on him, any instrument of house breaking”.

However [like any other case] the initial legal burden is on the prosecution, that is to say,
proof that the accused was with house breaking implements at night. The burden then
shifts to the accused to show that he had lawful excuse of the instruments.

(IV) Possession of suspected stolen property

S.329 PC – there is an initial legal burden on the Prosecution and then it shifts to the
accused to satisfy the court that the possession of the alleged stolen property was lawful.

R V MONGOLA 5 ALR Mal 297

Standard of proof to discharge this legal burden

When legal burden is on the prosecution, the standard of proof is beyond reasonable
doubt.

R V BANDA 5 ALR Mal 96

There is a distinction between “beyond unreasonable doubt” and “beyond a shadow of

doubt”

MILLER V MINISTER OF PENSIONS 1947 2 All ER 372

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Beyond reasonable doubt means there could be a doubt but as long as it does not require
a reasonable attention then you have discharged the burden where beyond a shadow of
doubt means [almost] 100% proof.

However, when the legal burden of proof lies on the accused i.e. S.11/283 PC the
standard appears to be less than placed on the prosecution.

For insanity look at;

KACHINGA V R 1 ALR Mal 126 R V LUFAZEMA 4 ALR Mal 355

Theft by public Servant look at;

HILL V R 6 ALR Mal 180

Possession of Stolen Property look at;

R V MONGOLA 5 ALR Mal 297

EVIDENTIAL BURDEN OF PROOF

S.188 CP & EC gives the accused the evidential burden to cause a reasonable doubt as to
the guilt alleged against him. This is sometimes called “the burden of adducing
evidence”.

Whereas the prosecution bears the burden of adducing evidence to support its case
beyond reasonable doubt, the evidence burden on the accused person merely consists of
raising evidence that would bring a reasonable doubt of his guilt in the court‟s mind.

The principle is demonstrated in a number of cases;

Self Defence
PAUL V R 2 ALR Mal
Spencer – Wilkinson C J

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 “It has been clearly laid down that in murder cases the burden of proof
is not on the accused to prove self – defence and I think the same must
apply in cases of unlawful wounding. If therefore the evidence leaves
one in doubt as to whether or not the accused person was acting in self
defence then the accused must have the benefit of doubt”.

Provocation
KAMIYATA V R 4 ALR Mal 375
Cram J
“The law is well settled that to prove murder even after proof of
intentional killing, the prosecution must be negative provocation”.

MANCINI V DPP 1942 AC 1

Automatism
R V ANDREA 5 ALR Mal 58 OSMAN V R 5 ALR Mal 225

In automatism the courts have insisted that before the defence can be accepted the
accused should lay some proper factual foundation.

Alibi
JAMADAR V R Criminal Appeal 113 of 1975
The trial magistrate when faced with the defence of alibi in the case of
forgery, uttering & obtaining money for false pretences said he would not
believe it because the appellant gave no reason for having gone to his
sister or his friend .After receiving the prosecution‟s case, the onus then
drifted on to the accused person. On appeal the conviction was quashed.
Makuta J quoting from an earlier case of R V JOHNSON 1962 46 Crim
App Rep 55 said :
“If a man puts forward an answer in the shape of an alike or in the
shape of self defence, he does not in law thereby assume any burden of
proving that answer”.

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 MWENEFUMBO V R Criminal Appeal 135 of 1976
The Judge said a defendant who put an alibi to a charge does not have a
burden of proving that answer & it is therefore a misdirection to refer to
burden in such a case.

BURDEN OF PROOF IN CIVIL MATTERS

In Civil Matters the legal burden of proof lies on “he who asserts”. This ordinarily
means the Plaintiff unless the Defendant filed a counterclaim. The legal burden of
proving the ingredients of a claim always rests on the claimant i.e. for negligence the
claimant has to prove
(I) duty owed to him
(II) breach of that duty
(III) Resulting damages / injuries

STANDARD OF PROOF IN CIVIL MATTERS

Is on a balance of probabilities

MILLER V MINISTER OF PENSIONS 1947 2 ALL ER 372 HAWALA V

SAWASAWA 3 ALR Mal 138

However in
KAMLANGIIRA V KAMLANGIIRA 4 ALR Mal 301
It was stated that;
“In matrimonial cases the standard of proof of matrimonial offences is
slightly above a balance of probabilities but lower than the standard of
reasonable doubt in criminal cases”1.

CORROBORATION
Under S.212 CP & EC it is stated that there is no fixed number of required witnesses for
the proof of any fact.

1 There has been debate whether this introduces another level of proof!

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This means a court can convict on the evidence of one witness only. It also means
generally speaking there is no need of the testimony of a witness to be corroborated.

Corroboration has been defined in the following case[s]

R V KAPALEPALE 6 ALR Mal 150

When you go through Kapalepale you get that corroborative evidence is that evidence
which confirms or supports other evidence that the offence was committed in the alleged
manner and it is the accused who committed it.

MWAKAWANGA V R 5 ALR Mal 14

It was held that it is not necessary that everything a witness says must be
corroborated by independent evidence.

To the general rule there are exceptions.

In some instances, the requirement is a matter of law and in others it is a matter of

practice.

Corroboration required as a matter of law

1. Unsworn testimony of a child witness

A child witness normally can neither be sworn nor affirmed [unless he would appreciate
the nature and sanction of an oath]. S.6 (1) Oaths and Declarations Act.

In a case where a child has testified without being sworn then as a matter of law his
evidence must be corroborated

R V DALAKIN Confirmation Case # 214 of 1977

The complainant was a girl of 5 who alleged that she had been defiled.
Her evidence was not corroborated but the trial court convicted the
accused.

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 On confirmation the conviction was quashed.
Chatsika J
„It follows therefore that even if the complainant‟s evidence was
properly given though unsworn then the accused person could not have
been convicted unless it was corroborated by some evidence implicating
him.”

PHIRI V R Criminal Appeal # 4 / 77

The complainant, a girl aged 10, gave unsworn evidence that the accused
had followed her into the bush where she had gone to attend a call of
nature, with threats he compelled her to lie down whereupon he lay on top
and put his penis on her vagina, ejaculated and ran away. There was a
witness who had seen the accused and the complainant together just
shortly before the events. And the complainant‟s mother discovered
bruises on the complainant‟s private parts. Having denied the offence
originally, the accused admitted in the next morning at the Police Station.
On appeal the appeal was dismissed because it was held that there had
been adequate corroboration.

R V BANDA 5 ALR Mal 96

When you read the case the courts held that unsworn evidence of a child
cannot be corroborated by another unsworn evidence of another child.
This also means the unsworn evidence of a child can be corroborated by
sworn evidence of another child.

2. Procuration a woman for immoral purposes - S.141 & S.140 PC

Under S.140 PC a person cannot be convicted for the office of procuring a woman or girl
for immoral purposes on the uncorroborated evidence of one witness.

3. Sedition S.244 (1) CEPC & S.51 PC and Perjury S.101 PC,
You need corroboration to convict

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Corroboration required by practice

Apart from cases where corroboration is required by law, a court is not obliged to seek
corroboration for the evidence of a witness S.212 CP & EC.

However there are certain species of evidence which are of a particular sensitivity . For
this type of evidence prudence demands great caution before reliance is placed on them.
In such cases the court is not bound to find corroborative evidence but it should warn
itself against the danger of convicting on uncorroborative evidence and if it does not find
it, it should either acquit or convict depending on whether in the absence of corroborative
evidence it is satisfied to the requisite standard of the accused‟s guilt or in civil matters
of the genuineness of the claim.

It is a ground of appeal to claim that the court convicted without taking into consideration
the absence of corroboration.

BANDA V R 4 ALR Mal 316 NKHATA V R 4 ALR Mal 52

COMPETENCE & COMPELLABILITY

What we can deduce from S.210 of CP & EC is that all persons

are competent and compellable witnesses. However a
competent and compellable witness can refuse to give
evidence where he is privileged; or where certain information
cannot be disclosed.
PRIVITY OF FACTS FROM DISCLOSURE
Privilege is a right not to disclose certain documents or
information before or during trial. Matters the disclosure of
which would injure the administration of public affairs or justice
fall under the head of public Privilege; rest are private privilege.

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 Aspatic Petroleum v Anglopersia (1916) 1 kb 822
“The general public interest is paramount to the interest
of the suitor”
Judicial privilege - S.223 CP & EC Generally speaking
whatever the Judge says or does in the course of the
proceedings is privileged.
Client privilege - S.224 CP & EC A Legal Practitioner is
prohibited from disclosing any communication made by client
to him in the course of his employment as a legal Practitioner
unless with the Client’s express consent. This includes
documents and oral information. This rule is aimed at
protecting full and frank dealings between the client and his
lawyer/legal practitioner
Minter v Priest (1930) AC 558 Causton v
Mann 1974 1 ALLER 453
Waiver on client privilege-S.225 CP & EC The client may
waive the privilege when he calls his Legal Practitioner as the
witness and by the former’s questioning of the Legal
Practitioner on matters which are privilege. The waiver relates
to only those upon which the questions are based S.226 CP &
EC deals with confidential communication by anyone and his
counsel Communication between spouses - S.220 CP & EC
No spouse can be compelled to disclose information received
from the other spouse during the marriage.
Runping v DPP 1964 AC 814
A spouse is competent but not compellable to witness
Without prejudice statements
Parties to an action who are trying to compromise an action will
engage in admissions relevant to the dispute but if they

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compromise facts, then litigation may follow. To avoid
detrimental use of such admission by the other party, these
admissions are made “without prejudice”
0rder 38 Rules of the Supreme Court (1999), deals with
this. The effect of making a letter “without prejudice” is to
exclude it from evidence tendered at a subsequent proceeding
against the client.
Paddock v Forrester (1842) 133 ex 1404.
Where a letter written by one of the parties is expressed to be
“without prejudice”, neither that letter nor the answer to it can
be given in evidence on the part of the writer of the 1st letter
although the answer is not expressed to be without prejudice.

RELEVANCE & ADMISSIBILITY

The rule of thumb is “all irrelevant evidence is

inadmissible but not all admitted evidence is relevant”.
It is not everything given as evidence which is admissible as
evidence. Facts given in evidence must be linked to the matter
in issue. There must be a logical nexus.
RELEVANCE
Relevance is not so much guided by law but by common sense
and the reasoning of the common man. Admissibility however is
a question of law. Once relevance has been established, the
next question is one of admissibility. It follows therefore that to
pass as evidence; a fact must be both relevant and admissible-
S.171 CP & EC. Steven says that “Relevance is connection
between one fact and another which renders the

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existence of the latter fact probable or improbable
according to the ordinary course of events” 1. He says the
word “relevance means that any two facts to which it is applied
are so related to each other that according to the common
course of events, one either taken on itself or taken with other
facts proves or renders probable the past, present or future
existence or non – existence of the other. The facts produced in
evidence must be related to the issue and to show this all you
need is common sense.
S.171 CP&EC also states of any facts related to facts in issue
to be relevant i.e. Res gestiae. These are facts forming part of
or accompanying or explaining facts in issue. S.171 (2) (a)
makes admissible facts that are so connected to the facts in
issue as to be part of the same transaction whether or not they
occurred at the same place or time as the facts in issue. For
such to be admitted as evidence, they must be closely
associated with the facts in issue. The evidence of res gestiae
consists of things done; said and other circumstances
surrounding the facts in issue i.e. a recording could be relevant
as res gestiae. Where an action consists of a series of events
or where the facts in issue are of a custom or a particular
usage. Let us take the example that there is a custom to
quarantine animals of the Lower Shire, if this was not done, it
becomes part of the evidence and is admissible as res
gestiae. Also where the sanity of a particular person is in issue,
say in a criminal matter, it is not enough to show that the
person was insane at the time the offence took place but you
must show continuity (backwards & forwards) and conduct
1 Digest to the Law on Evidence 4th Ed

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which is customary of insane people and such evidence will be
acceptable by the court. Res gestiae is admissible where the
action forms part (is part and parcel) of the fact in issue. Res
gestiae is therefore an exception to the rule against hearsay
evidence. Therefore statements and words so long as they
explain the facts in issue are admissible as res gestiae. They
include statements which are made spontaneously. These are
admissible as res gestiae because they are more likely to be
believable than not as they lack pre-meditation. Spontaneous
and immediate exclamations as a result of sudden pain or fear
are an obvious example. Such a person has no time to consider
as to what utterance will benefit which party i.e. someone being
murdered may make a cry heard by all and sundry which some
passers by may hear. Whether or not a statement is
contemporaneous with a fact in issue is a matter of degree and
cannot be ascertained with scientific certainty.
Teper v R 1952 2 Ell ER 447
In this case, the statement charging the accused with flight and
implicitly with arson was made 25 minutes after the fire, which
was the relevant event, not his flight. It was held that where
words are sought to be proved for identification in a criminal
trial, the action with which the words must be associated with
the commission of the crime and the evidence shall only be
admitted if it is satisfies the test of close association with the
offence in terms of time, place and circumstances.
R v Beddingfield 1879 14 cox cc 341
Sparks v R 1964 ac 964
In this case the words “it was a coloured boy” coming from the
mother was held to be hearsay as they did not associate with

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the indecent assault in terms of time, place and circumstance
(the words were not uttered where the crime and when the
crime took place)
Woolf v Woolf 1931 2 Ell ER 296
Here the court held that a letter accompanied by a hotel bill & a
signature in the hotel register be admitted as evidence as res
gestiae. Res gestiae widens the „cover area‟ for evidence as
opposed to direct evidence.
S.171 (2) (b) CP & EC - states facts are relevant which though
not themselves in issue are the occasion, the cause or the
effect, immediate or otherwise of the relevant facts or facts in
issue. The provision is saying background information which
would explain the facts in issue is relevant i.e. a passer-by
hears a heated argument between two brothers and a few days
later he hears that one of them was murdered, then the passer-
by’s evidence may provide a background to the crime (act)
Dowling v Dowling (1860) 1 CLR 236
Evidence of poverty was allowed to prove the improbability that
a party paid a certain amount of money to another.
Makindi v R (1961) EALR 327
This is where evidence of previous severe beatings of the
deceased by the accused was admitted for purposes of
rebutting the accused defence that the deceased had died after
an epileptic accident. A relevant fact or fact in issue which
confirms or opposes its inference or which identifies a relevant
thing or person or fix a relevant time and place or which shows
the relationship of the participants in a transaction is
admissible. Thompson v R (1918) AC 221

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In this case a man was charged with gross indecency with
several boys. In his rooms were found powder puffs and certain
pornographic photographs of boys. It was also shown that he
had dates with boys. The powder puffs and photos were
admitted in evidence.
R V Gordon 99 ER 372
Lord Gordon was charged with high treason by endeavouring to
compel the repeal of an act by inciting violence and
intimidation.
He said “The Scots had no redress till they pulled down mass
houses” – The State brought evidence to show that mass
houses were indeed pulled down in Scotland and such evidence
was admitted because it was showing what it was the accused
had referred.
ADMISSIBILITY
Admissibility is governed by rules of law. S.172 CP & EC deals
with how the court will admit evidence. As a general rule,
evidence which is given must be of genuine facts and
consequently opinion evidence is inadmissible. Admissibility
relates to what must be received by a court of law. It is a
question of law. S.171 CP & EC states that no evidence can be
given of any other facts except the facts in issue and the facts
declared relevant. Facts in issue are the elements of the
offence. For example in murder – unlawful killing and the mens
rea – it is therefore taken that the one with the mens rea
perpetuated the actus reus. An opinion is an inference held
from observed facts and opinion may be private or public. The
law takes the view that opinion view is irrelevant. A person is

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supposed to give evidence of facts perceived by him and not
his inferences or interpretation. The second reason why it is
excluded is usurpation. The person who gives opinion evidence
usurp the decision making power of the courts; for he usurps
what the court should be doing i.e. drawing conclusions There
are exceptions to the conclusion of opinion evidence. Where
opinion is a fact in issue i.e. a defendant in a libel suit will be
allowed to give his opinion where he raises the defence of fair
comment. When it comes to lay witnesses, these may be
allowed to give opinion evidence when it comes to say identity.
The witness will testify that in his opinion the person or thing
which he saw in one point in time is the same as the person or
thing which he has seen at another point in time. The other
area is that to do with age. Witnesses may be allowed to give
option evidence on the age of a person or document or thing
based on appearance. The third one is health. A witness may
testify on the health of himself or another. The other one is
intoxication. Lay witnesses may testify on the sobriety or
intoxication of another.
Attorney General of Nyasaland v Adderley 2
ALR(mal ) Kumwembe v R 5 ALR (mal)
283
Another exception is sanity. Where the question of sanity is in
issue a witness may testify as to whether a person in question
behaved queerly or not but he cannot give an opinion or
establish his state of mind.

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 Mangwaya v R 3 ALR (mal) 267
Another exception is Speed. This is common in road safety
matters. The witness can testify as to the speed of the driver
(how fast it was going).
Another exception is value. The value of common placed things
may be given by evidence of laymen as well as experts if
available.
Handwriting -A person who knows very well the handwriting of
another may give evidence that a document was authored by
that person. What is important is to show that the witness has
been in a long association with the alleged author so that he
knows the writing
Moyo v R 4 ALR (mal) 470 Mwalala v R, CA
No. 69
The appellant had been convicted of theft by servant and
fraudulent false counting. The case was based on certain
writing by him in the cash book. The handwriting in the cash
book was compared with other writings by the accused. On the
conviction the court appreciated that there was no handwriting
expert to compare the writings. The Court said “It is not
necessary for an expert witness to be called if as in the present
case if a witness is called who is shown by the opportunity of
working with a person whose handwriting is the subject for
consideration to have become sufficiently acquainted with that
person’s writing to be able to express an opinion on it. The
court is entitled to consider evidence on this point equally as it
could have that of an expert. The ultimate test as to whether or
not a witness has evidence to be believed, whether that witness

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be expert or otherwise is with the courts.” You can therefore
dispense with expert witness if you have acquaintance witness.
Custom rites - A person who the court believes has knowledge
on custom may give his opinion on the effect of that particular
custom although he is not an expert.
Limbani v R 6 nyasa law report 6

ADMISSIBLE OPINION OF EXPERTS

It is one of the earliest exceptions against the general rule
against opinion evidence but it is not unlimited in scope as an
expert is only allowed to give his evidence as to the extent of
his expertise
S.190 (1) CP& EC makes relevant only expert opinions if they
are on foreign law, science, art or any body of knowledge or
experience sufficiently organized or recognized as a reliable
body of knowledge or experience or as to the identity of
handwriting or fingerprints.
Who is an expert? It is a person who is specially skilled in a
particular field. Before the court can accept his evidence he has
to be accepted first; so you can ask him questions to
demonstrate to the court that he is indeed an expert in that
field. Before he testifies, the court must be satisfied as to his
expertise on the relevant field that he has come to testify on. It
is done by an inquiry into his educational background and
experience. However the special skill need not have been
acquired academically.
Gatheru v R 21 EACA 384.

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It was said that “We think that special skill is not confined
to knowledge acquired academically but would also
include skill acquired by practical experience” In other
words, you do not need someone with a degree but someone
with relevant experience
LIMITATION TO EXPERT EVIDENCE
The first limitation is that an expert witness must not give his
opinion on the ultimate issue for decision. This is based on the
principle that witnesses should not usurp the court’s power of
decision making
R v Anderson 1971 3 All ER 1152
In this case, it was held that the admission of expert evidence
on the issue whether or not the article was obscene was wrong,
this question was entirely one for the jury. Expert evidence was
only admissible on the issue whether, if the article was found to
be obscene, its publication was justified as being for the public
good.
Secondly an expert must also give reasons for the opinion he
holds.
R v Mandala 2 ALR (mal) 450
In this case, the accused was charged with unlawful wounding.
He had struck the complainant with a knife. A psychiatrist gave
evidence that in his opinion the accused was unaware of what
he was doing at the time of the assault, but that he was
sufficiently sane to understand the nature of the proceedings
against him. The witness gave no reasons for these opinions.
Upon this evidence, the learned magistrate found that the
accused was guilty of the assault charged, but was insane when

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he committed it. This was reversed by the High Court as the
witness was supposed to give reasons for his assessment.
Thirdly, expert evidence is just as good as any other evidence.
It is neither superior nor binding on the court.
Mazimanga v R 6 ALR (mal) 255 R v Lazalo
8 ALR (mal) 594
In this case, the accused was charged with rape. Evidence was
offered by an expert medical witness that the accused was a
juvenile. The magistrate accepted this evidence and after that
the proceedings which had until then been in the nature of a
preliminary inquiry were carried on as a trial in camera.
SpenserWilkinson CJ, stated, “The opinion of an expert is no
more than an opinion. Great weight may be attached to that
opinion but nevertheless it is for the court to decide upon all
the material before it, including the opinion of the expert, what
the proper answer to the problem is. In the present case, hardly
any reason was given by the medical witness for his estimate of
the age of the accused.

Haluya v R CA no.166 of 177.

Per Jere, “if he is saying that whatever an expert witness says
must automatically be believed then this is wrong. It is the duty
of the court to evaluate the evidence of any expert witness and
come to its own conclusion as to what weight should be put on
the evidence. It is true that in most cases the court will place
great weight on the evidence of an expert but that does not
mean that the evidence is beyond scrutiny by the court.
Evidence of handwriting experts is constantly challenged in
courts and in some cases quite successfully”.

HEARSAY EVIDENCE

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This is testimony based on what a witness has heard from another person rather than on direct
personal knowledge or experience.

Only evidence that includes what the witness said, saw or perceive is admissible. Second
hand evidence or evidence inform of statements that the witness heard
from another is inadmissible. In common parlance, hearsay is used to
describe statements that one hears and does not know to be true
In Malawi Savings Bank Limited v Malangowe Investments, [2016]
MWSC 134, the court describe hearsay as
“Evidence of statement made to a witness by a person who is not himself
called as witness may or may not be hearsay”
In Nico General Insurance v Chiwaya [2008] MLR 240 SCA the court
conclude that evidence recorded by a police officer cannot be given in
court by the officer himself orally
Tambala JA
“The police hear the story from a prospective witness and simply records
what the person says. Clearly what is recorded is hearsay. The policeman
who recorded the statement cannot go into court and tell the court orally
what he was told by the witness.”
In Republic v Phiri [1997]2 MLR 68, an accused was convicted of an
offence of armed robbery. The only evidence which appears to have
connected the accused to the offence was that of a policeman who said
that one of the items in respect of the robbery was recovered from a
person to whom the accused person pawned [Link] was held that the
policeman’s evidence was hearsay therefore not admissible
Also see Republic v Carton Mphande [2008] MLR 253
Msowoya v Republic [2008] MLR 184
Sakala and Lemani v Republic [2008] MLR 292
Exceptions to Hearsay
Generally, hearsay evidence is inadmissible, however there are few
exceptions to the rule. These include

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 a) Statements showing consistency -evidence of statements made at
the time of committing the alleged offence are admissible to show
consistency of the conduct of the witness; see section 232(2) CPEC
b) Statements to establish that a certain statement was actually made
or not
c) Statements of persons not called as witnesses because of illness,
death or not found: see sections 173,175,177 of CPEC
d) Medical reports whose authors are not able to attend court: section
180 CPEC and Nswana v Republic [2011] MLR 231
Also see Nico General insurance v Chiwaya [2008] MLR 240 on
further exceptions to hearsay
Malawi Savings Bank v Malangowe Investments [2016] MWSC 134

MATTERS THAT DO NOT REQUIRE

PROOF
The whole idea of calling witness is to prove a case. The
indictment, writ, pleadings are all allegations and the witnesses
are called to prove these allegations. However, it is not all
cases that evidence shall be required. There are certain cases
where evidence is not required. Facts are simply taken for
granted. The Common Law in certain cases has permitted
certain facts to be accepted without proof. There are 3
instances where proof is not necessary.
1. Formal admissions.
2. Judicial notice
3. Presumptions
FORMAL ADMISSIONS
In civil matters formal admissions are all those admissions
which are made before the action comes for hearing. An
admission is the acceptance of the truth of an alleged fact.
Such admissions enable the court to dispense with the hearing

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of the evidence on that matter. This does not only save time
but it also saves costs. (a) In civil matters, formal admissions
are found in pleadings (and anything that is not specifically
denied is deemed to have been admitted)
(b)Formal admissions may also appear in the process of
discovery of documents
(c) Formal admissions may also appear in interrogatories.
(d)Formal admissions may also appear in ordinary
correspondence between the relevant parties to the case but
there is an exception where the correspondence is headed
“without prejudice”
Ellis v Allen (1914 1) Ch. 909
Wright v Pepin (1954) 1 WLR 635.
(e) Correspondence from a legal practitioner to another legal
practitioner. Legal practitioners have a general authority to
admit certain things and once he has done that he binds his
client. Urquhart v Butterfield 1887 37 ch 357
In Criminal Matters, S. 183 CP & EC states that an admission
may be made in matters which could be covered by oral
evidence. Therefore a fact may be admitted by or on behalf of
the prosecution or accused and that admission shall be
conclusive of the matter in question. S.183 (2) lays down the
mode of getting the admission whilst S. 183 (4) provides for the
retraction of an admission with leave of the court S. 322 CP &
EC says that where an accused is convicted of a certain
offence, he may ask the court to take into account other such
like offences which he admits of committing for purposes of
sentencing (the advantage is that he will escape consecutive

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sentence but the court will have to consider certain questions
as well) The point therefore, is that where there is formal
admission before hearing, you do not need to adduce evidence
at all.
JUDICIAL NOTICE
The doctrine of judicial notice binds a judicial tribunal to accept
certain facts of certain matters to be accepted without proof.
The doctrine may be imposed by statute but in other cases it is
applied with public knowledge. Hence the doctrine may be
mandatory/obligatory or discretionary. The doctrine applies
both in criminal and civil proceedings.
Varcoe v Lee (1919) p 233
“…Judicial notice is a judicial shortcut, a doing away …
with the formal necessity for evidence, because there is
no real necessity for it…”
So far as matters of common knowledge are concerned, it is
saying there is no need of formally offering evidence, and there
can be no question about them
(A) MANDATORY JUDICIAL NOTICE.
S. 182 CP & EC outlines 13 instances the Court must take
judicial notice of certain facts.
(B) DISCRETIONARY JUDICIAL NOTICE.
This arises from public knowledge and because of this there can
be a classification in two categories:
(I) JUDICIAL NOTICE WITHOUT ENQUIRY.
The existence of facts is assumed from general knowledge -
if a matter is of such common knowledge that it would be an

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 insult to knowledge require proof of it, then it may require
judicial notice to be taken of it.
Bryant v Foot 1868 lr 3 QB 497.
“…That the value of money has fallen since 1189…”
Chinjoka v R CA No.143 of 1979 Chatsika,
J “…I hold the view and courts must take judicial notice it
is not common in In Malawian villages for people to live
their houses and go out on their usual daily chores leaving
their houses open. When the complainant and his wife
stated that when they returned home they found that the
house had been broken into, there is implied evidence
that the house had been secured on their departure…”
Priston-Jones v Priston-Jones (1951) AC
391 The court took judicial notice of the fact that an ordinary
human gestation period is 9 months.
However discretionary judicial notice should not be based on
court’s own knowledge but on public knowledge.
Ingram v Percivl 1969 1 QB 548.
“…Local justices may take into account their knowledge
of local conditions….”
(II) JUDICIAL NOTICE AFTER ENQUIRY
S. 182 (3 & 4) CPEC, the court may look into authoritative
books, documents etc. before taking judicial notice of certain
facts.
R V Gama 3 ALR (Mal) Sitikhala V R 3
ALR Mal
It is well-settled law that a court can take judicial notice of the
almanac but it did not in this case

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 PRESUMPTIONS
These are assumptions of the truths of the facts. There are 3
categories of presumptions
(1) Irrebuttable presumptions of law
(2) Rebuttable presumptions of law
(3) Rebuttable presumption of fact.
The effect of a presumption is to relieve the party the burden of
proof and at times even to shift the burden of proof to the other
party. On the establishment of one fact, the court may and in
some instances must find the existence of some other fact(s)
without evidence being required on those other facts.
1. IRREBUTTABLE PRESUMPTION OF LAW.
These irrebuttable presumptions of law are arbitrary
consequences expressively annexed by the law of particular
facts. These presumptions are conclusive and strictly speaking
therefore they can be called rules of law. (See Phipson
writing in the Law of Evidence)
Evans v Butler 1937 AC 473
Kiriri Cotton Co. Ltd v Dewani (1960)
AC 192.
These presumptions are imposed once the requisite basic facts
are established. In S. 170 (3) CP & EC you find these
presumptions. The Section says that on the proof of the basic
facts, the court shall take the presumed fact(s) as proved and
S.7 Penal Code (PC) states that ignorance of the law not an
excuse of an offence unless knowledge of the knowledge of the
particular law is declared an element thereof.
Nyuzi v R 4 ALR(mal) 249

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 Sayre v R ALR(mal) 10
Second example is in capacity. Under S.14 of PC provides that
someone under 7 years is not liable for a criminal act or omission.
Again a male under the age of 12 is incapable of committing a
sexual offence (presumed incapable of having carnal knowledge)
R V WAYTE 1882 2 QB 600 2. Rebuttable presumptions of law
Steven writing in the Digest on Law of Evidence says a
presumption means a rule of law that courts and judges shall
draw a particular inference from a particular fact or particular
evidence unless and until the truth of such particular inference is
disproved. These rebuttable presumptions of law are liable to
rebuttals. These presumptions are also prima facie. The
presumption works this way; once the basic material for a
particular presumption is laid and no evidence to the contrary is
proved, the fact that the presumption is laid is taken to be
established. S.170 (2) of CPEC provides for such rebuttable
evidence i.e.
(I) PRESUMPTION OF INNOCENCE
Woolmington v DPP (1935) ac 462
But while the prosecution must prove the guilt of the prisoner,
there is no such burden laid down on the prisoner to prove his
innocence and it is sufficient for him to raise a doubt as to his
guilt; he is not bound to satisfy the jury of his innocence. …
Throughout the web of the English criminal law, one golden
thread is always to be seen, that it is the duty of the prosecution
to prove the prisoner’s guilt

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 R v Machesi 1 ALR(mal) 102
See also S.42 of the Constitution. See also S.14, PC that a person
12 is not criminal liable
(II) PRESUMPTION OF SANITY
S.11 PC Every person is presumed to be sane and to have been
sane at all material times.
R v Lufazema 4 ALR(mal) 415
In a criminal case, where a defence of insanity (if it can be called
a defence) is raised, the onus is on the accused person to prove
such insanity
(III) PRESUMPTION OF THEFT BY PUBLIC SERVANT
- S.283 PC Once the Prosecution have proved that a person is a
public officer and in that capacity he had in his control some
public property or funds and he has failed to account for those
funds, theft will be presumed.
(IV) PRESUMPTION OF CONTINUITY OF LIFE
S.189 (1) CP & EC When someone is shown to have been alive
within the last 30 days, proof that he is dead is on the who asserts
the death.
Chard v Chard (1955) 3 ALLER 721
(V) PRESUMPTION OF DEATH
It arises if a person has not been heard from for 7 years by the
people that are expected to have heard from him. If there is no
evidence to the contrary he will be presumed dead
Chipchase v Chipchase (1939 3) ALLER 8393
COMMON LAW PRESUMPTIONS
(A) PRESUMPTION OF MARRIAGE

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There is a presumption that marriage formalities were followed.
This is a rebuttable presumption.
(B) PRESUMPTION OF LEGALITY
There is a presumption that official appointments are duly made
or that procedures were duly followed. If someone acts in an
official capacity there is presumption that he was rightly and duly
appointed.
R v Kafukilira 3 ALR (mal) 38
An analyst was presumed competent to give expert evidence on
the basis of his publication. The Court stated that A government
analyst who submits a report in terms of S.156(1) of the CP&EC
will not be required to prove his qualifications; it may be
presumed from the fact of his appointment that he is duly
qualified This is also a rebuttable presumption.
(C) PRESUMPTION OF LEGITIMACY
A child born or conceived during the subsistence of a lawful
wedding is presumed legitimate unless the contrary is proved1 In
Gordon v Gordon
It was stated that the wife’s adultery notwithstanding the husband
was the father in question as sexual intercourse between husband
and wife must be presumed and only evidence of non-access at
the time of conception can or could bastardise a child born in
wedlock.
2. REBUTTABLE PRESUMPTION OF FACT
These arise by inference regarding a disputed fact upon proof of
certain precedent facts. Phipson says that such presumptions
are inferences which the mind naturally or logically makes. The

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strong presumptions of fact should not be confused (are not
equitable) with presumption of law – they are still presumptions of
fact.
1 Please note that the concept of illegitimate child is no longer
applicable in the Malawian situation courtesy of the new
Constitution which gives all children equal status regardless of
their circumstances of their birth.
S.170 (4) CP & EC makes it clear that a court may presume the
existence of any fact it thinks likely to have happened.
Presumptions of fact are prima facie in nature: even if no
rebutting evidence is given the court is not bound to make the
inference. Looking at the “doctrine of recent possession” one can
prove certain facts precedent to the presumed facts. The doctrine
of recent possession says a person found in possession of stolen
property so soon after the theft of that property, is presumed to
be the thief.
R v Wilford 1 ALR (mal) 457 Jonathan v R 3
ALR(mal) 295
(a) PRESUMPTION OF FACT AGAINST A WRONG-DOER
If a party or someone on his behalf conceals or destroys evidence,
the presumption is that the evidence had been to the detriment of
the party – the rationale behind it is that natural human conduct
tends to avoid self-destruction
(b) PRESUMPTION OF INTENTION
The presumption of intention is that a human being intends the
natural and probable consequences of his acts which means you

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may not be able to show the state of the mind at the time of
committing the act but what he intended.
Mbaila v R 1 ALR(mal) 446 Wilson v R 1
ALR(mal) 261
(c) PRESUMPTION OF CONTINUOUS / CONTINUITY
This may be made by the court on proof of the existence of a fact
at one point in time that it continued to exist at a later date if
nothing suggests its termination

MEANS OF PROOF
This is the means by which facts and facts in issue are proved or
disproved. There are 3 possible ways of leading evidence. These
are through:
(1) Oral evidence
(2) Documentary Evidence
(3) Real Evidence (Production of things)
S.163 CP & EC-directs that the evidence of witnesses in trials be
recorded in the language of the court which is English and the
evidence is ordinarily recorded in the narration by the court
(presiding judicial officer) and it has to be signed by the court
(presiding judicial officer) and it forms part of the record. S.164
CP & EC provides for interpretation where the evidence is given
in a language not understood by the accused or legal practitioner.
ORAL EVIDENCE
Once a witness has under the rules of procedure been summoned
and served or otherwise compelled to attend court and has taken
his place in the witness box, 3 issues arise

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 (I) Whether the witness is competent and compellable
(II) Whether he can be sworn or affirmed
(III) What type of examination he may be subjected to
A witness is competent if he is lawfully entitled to give evidence
and he is compellable if he is obliged to give evidence subject to
any claim of privilege.
S.210 CP & EC declares that all persons are competent to give
evidence unless the court takes a contrary view on the basis of
the immature age, extreme old age or disease of the mind or
body or some other like cause. The question that the court will
ask itself is whether the witness will give rational answers and be
of assistance to the court. The court will record the basis of
disqualifying any witness.
DUMB WITNESSES
S.211 CP & EC deals with dumb witnesses. The section permits
dumb witness to give evidence in any manner as long as it is
intelligible and that type of evidence from a dumb witness in the
witness box is deemed to be oral
PERSONS OF UNSOUND MIND
S.210 CP & EC deals with persons of unsound mind. Whether or
not a person suffering from mental disability is able to testify or
not will depend on the nature of his illness. If it is such that it
either prevents him from understanding questions or giving
rational answers then he is not a competent witness. If however it
does not affect his understanding or rationality he is then a
competent witness. A person may be insane on one matter but as

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long as he understands the meaning and nature of an oath he
may be able to testify on matters unaffected by his coalition
(lucid intervellium)
Rep v Hill 1851 5 Cox CC 250
Evidence was admitted by a mental patient who was an eye
witness in a manslaughter case. The only problem he had
was that he was labouring under the illusion that he had
20,000 spirits which were continuously communicating with
him. He understood the obligations of testifying under oath
and he was sworn and gave a comprehensive account of the
events he saw. The issue was whether he was a competent
witness. The court said that a mental patient who is confined
in an asylum is a competent witness, if the court considers
that he understands the nature and sanction of an oath.
CHILD WITNESSES
S.210 deals with children. Immaturity in age could well affect a
witness’s intellect to the extent of rendering him or her
incompetent. To determine the competence of a child witness the
court conducts a voire dire examination aimed at determining
the child age, his knowledge of and belief in God, his knowledge
of and distinction between truth and falsehood, and the
distinction between the goodness of one and badness of another.
Depending on the court’s findings, a child witness will either be
sworn or affirmed depending on his testimony.
See the Oaths, Affirmations & Declarations Act
Cap 4: 07.

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If a child witness is found to be unfit to take an oath or an
affirmation he or she may still testify by virtue of the proviso of
S.6 (1) of the Oaths Act which says that if in the opinion of the
court the child is possessed with sufficient intelligence to suggest
the reception of his or her evidence, then the child may give
evidence but he shall not be sworn.
As a matter of law, such unsworn evidence ought to be
corroborated. In the case of sworn or affirmed evidence,
corroboration is required as a matter of practice
Rep v Magombani 3 ALR Mal 390
The accused was accused of indecent assault of a 12 year
old girl who testified that the accused led her into the bush
and assaulted her. Her evidence was supported by another
girl who had been with her when they met the accused. The
magistrate did not examine the complainant voire dire but
took her evidence on oath. The accused admitted the
offence and was convicted. On confirmation the court
considered the question of corroboration and the correct
procedure to be followed in taking evidence of witnesses of
tender years.

CRAM Ag CJ
“…The female particularized as the victim of the assault
gave evidence upon oath. The magistrate recorded the view
that she was under 12 years of age. For his guidance, where
a witness of apparent tender years is proffered, the correct
practice is to discover positively her age, capacity and

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 understanding by the procedure termed examination upon
voire dire. That is, the magistrate, himself, before the oath
can be administered, questions the witness to discover his or
her understanding, intelligence, religious beliefs and ability
to comprehend the meaning of a judicial oath. If he is
satisfied that the oath can be understood and may be
administered, and this is then done, the immature person is
treated as an ordinary witness. If however the magistrate is
not satisfied as to capacity, the witness should simply be
warned to tell the truth, and thereafter, examined as any
other witness by prosecution and defence. It should not
escape notice, however, that the unsworn evidence of a
person of immature age by S.154 of the CP&EC statutorily
requires corroboration.
In this instance, the magistrate may be assumed to have
been satisfied as to capacity, because he permitted an oath
to be administered to the girl and she was mature enough to
give clear and cogent evidence and to stand up to
crossexamination. It does not seem, therefore, so far as
S.154 (3) of the Code is concerned, that the girl’s evidence
required corroboration. Nevertheless, as a matter of criminal
practice, in all cases of alleged sexual assault upon females,
corroboration is to be sought…”
Makhanganya v Rep 2 ALR Mal 491
The appellant was charged in the High Court for attempted
murder. At the trial it was alleged that he burnt his son-
inlaw’s hut and attempted to prevent two children from

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 leaving the burning hut. Evidence was given of a quarrel on
the same day with the son-in-law in which the appellant
made threats of arson, but this evidence was regarded as of
little value by the judge owing to an intrinsic improbability.
The judge, however, disregarded the same improbability in
accepting the evidence given by the two children. Both
children were of immature age, one being too young to give
evidence on oath, but no voire dire was made as to their age
or capability nor did the judge warn his assessors or himself
of the danger of convicting the appellant on uncorroborated
evidence. The appellant was convicted. He appealed against
the conviction, contending in particular that the evidence of
the children had been wrongly admitted without
corroboration.
FORBES FJ, allowing the appeal
“…Corroboration is required as a matter of law where the
evidence of a child is given unsworn under S.154 of the
CP&EC and, as a matter of practice, the court ought to look
for corroboration of the evidence of a child of immature age
of tender age even though sworn. I would not wish to lay
down precisely at what age a child ceases to be of tender
age. As indicated in R V CAMPBELL, this is a matter of good
sense to the court, but in KIBANGENY V R the East African
Court of Appeal indicated the view that, for practical
purposes, a child under the age of 14 years should be
regarded as of tender years and I think this is a useful guide.

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 In my view the duty of a court when faced with a child
witness is
(a) To inquire as to the age of the child and if necessary,
assess its age
(b) To investigate, by questioning the child whether the
child understands the meaning of an oath; and
(c) If the answer to (b) is negative, to investigate whether
the child understands the difference between the truth and
falsehood, and the need to speak the truth.
The record should show these inquiries and the conclusion
reached by the judge. Unless a voire dire is carried out as I
have indicated, a trial court cannot be satisfied that a child is
fit to be sworn, or even to give evidence unsworn and,
unless the voire dire is recorded, an appellate court cannot
be satisfied that the trial court has appreciated and carried
out its duty...”
Idana V Rep 3 AL Mal 59
“…The last point relates to what the trial judge described as
the significant remarks. It is clear the he was referring to the
evidence of the witness Idana to the effect that the appellant
had said that they would not find the deceased. The question
that arises here is whether the judge should have given any
direction on corroboration. The sworn evidence of a child of
tender years does not need as a matter of law to be
corroborated, but it is a rule or practice that a judge should
warn himself of the danger of acting on such evidence

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 without corroboration, though he may do so, if convinced
that the witness has told the truth…”
THE ACCUSED
The accused is incompetent as a witness for the prosecution. By
S.256 CP & EC he is competent and compellable for the defence
but he has the liberty not testify by virtue of his Constitutional
right to remain silent and not to be compelled to testify.
Gawani V Rep Criminal Appeal # 76/73.
The accused was put on his defence on a charge of arson. He
gave no evidence in defence & he did not call witness. The
magistrate deduced from the silence of the accused and his
failure to call witnesses that he was admitting guilt. On
appeal Justice Edwards said: “…An accused person’s failure
to call witnesses or to testify does not constitute an
admission of guilt direct or indirect…”
Rep v Bisalomo 5 ALR Mal 74
The accused was charged with an offence in a [second grade
subordinate] court. He declined to give evidence himself but
stated that he wished to call witnesses in his defence. The
magistrate refused to allow these witnesses to give
evidence, finding that the refusal of the accused to give
evidence precluded him from calling witnesses. The case
was set down for a judicial decision as to whether this finding
was correct.

WATKIN-WILLIAMS J [construing S.213 of the Criminal

Procedure and Evidence Code]

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 “…It will be seen that there appears in the first place to be a
mandatory provision to the effect that the accused shall give
evidence on oath and answer any question put to him, etc. In
the ordinary course of events, if no other provision were
made, failure by the accused to comply with the provision
could result in a contempt of court, but the legislature
contemplates that the accused may refuse or neglect to
comply [and provides that the only consequence of such
refusal or neglect is that such refusal or neglect may be
commented upon and taken into account]. It is clear,
therefore, that the accused has a choice either to give
evidence or to face the consequences of failure to do so. I
hold that the accused in this case was entitled to call his
witnesses to give evidence…”
ACCOMPLICES
Generally speaking an accomplice is a person who is technically a
party to the offence. The term accomplice includes persons who
participated in the crime and also persons who received stolen
property. Where an accomplice is jointly charged with the
accused, he is called a co-accused. A Police Agent Provocateur is
not an accomplice.
S.242 of CP & EC states that an accomplice is a competent and
compellable witness for the prosecution in proceedings against
his accomplice. This section makes it clear that corroboration is
not required as a matter of law for such evidence. It means an
accused person can be convicted on the evidence of his
accomplice.

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 Kalima v Rep 4 ALR Mal 60
The appellants and two other accused were charged in the
High Court with murder. They were members of the Malawi
Young Pioneers. They were accused of having beaten up a
person they suspected to be a rebel. The person was later
thrown in a river and died. At trial the principal prosecution
witness was one of the men who participated in the assault
of the deceased. The appellants appealed on the grounds (a)
that the principal prosecution witness, who had originally
been charged jointly with the appellants was not a
competent witness (b) that being a perjured witness he was
discredited and the trial court was not entitled to place any
reliance on his evidence, and (c) that the trial judge wrongly
held that the driver of the land rover was not an accomplice
when the evidence showed that he was.
SOUTHWORTH CJ
“…It may well be, and indeed it is admitted, that in strict law
Swan was a competent witness, but for years now it has
been recognized practice that an accomplice who has been
charged, either jointly charged in the indictment with his co-
accused or in the indictment though not under a joint
charge, or indeed been charged though not brought to the
state of an indictment being brought against him, shall not
be called by the prosecution, except in limited
circumstances. The circumstances are set out correctly in
ARCHBOLD, where it is said that where it is proposed to call
an accomplice at trial it is the practice

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 (a) To omit him from the indictment or
(b) Take his plea of Guilty on arraignment or before calling
him either
(c) To offer no evidence and permit his acquittal or
(d) To enter a nolle prosequi [a formal entry upon the
record, by the plaintiff in a civil suit, or, more
commonly, by the prosecuting attorney in a criminal
action, which declares that “he will not further
prosecute” the case, either as to some of the
defendants or altogether – Black’s Laws]
It is also an established principle of practice that if the prosecutor
seeks to call a co-accused as a witness then they should ensure
that he has ceased to be an accused in one of the following ways
by being omitted from the charge having been
convicted on his own plea of guilty having been
acquitted after evidence not being offered
against him
after a discontinuance has been entered under S.77
CP & EC
Nedi v Rep 4 ALR Mal 439
SMITH Ag J
“…Several obvious irregularities occurred in the trial. The most
fundamental was that the principal prosecution witness, who
gave evidence that property found in his home had been
brought there by the appellant and two other men convicted
with him was himself originally a person accused along with
the appellant and was called as a prosecution witness without

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 having been pardoned or acquitted of the offences in respect
of which he gave evidence. The charge against him was
erroneously withdrawn under S.206 of the CP&EC (private
prosecution section) and he was released simpliciter, and as a
result subsequent prosecution was not barred. He was not in a
position to plead autrefois acquit to protect himself against
inducement to give false evidence favourable to the
prosecution. The Court of Appeal in England has recently held,
in the case of Rep v Pipe 51 CR. APP. R. 17 [reported in
Archibold, Criminal Pleading, and Evidence & Practice] that a
conviction should not be permitted to stand where the
prosecution called at the trial an accomplice against whom
proceedings had been brought but not concluded by conviction
or acquittal. In our view, the failure on the part of the
prosecution to conclude the case against the accomplice,
before calling him as a witness against the appellant, was, of
itself, such a plain departure from the principles of justice to
oblige this court, on appeal, to quash the conviction
Banda v Rep 4 ALR Mal 336
The appellant was charged with stolen property. One of the
prosecution witnesses testified that the witness had stolen
100 Pounds, of which he handed 30 Pounds to the appellant.
It was not clear whether the witness had been prosecuted for
this offence and the magistrate made no reference to his
being an accomplice for whose evidence corroboration
should be sought. On appeal the court considered whether
the lack of warning on corroboration was fatal to the

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 conviction and reviewed the law and practice on the
question of corroboration.
BOLT J
“…There can be no question whatever that the witness
Frank Gama was an accomplice – indeed, if his account
was true, he was the principal offender – and it was
incumbent therefore on the learned magistrate to warn
himself of the danger of accepting the evidence of such
a witness without corroboration. As the subject of
corroboration appears to be one which perplexes and
confuses many magistrates, it may be helpful to restate
the position. As a matter of law, corroboration is not
required except in cases of perjury or treason, and a
court may convict on the evidence of a single witness;
it stands to reason, however that a case will normally
be stronger if there are two or more witnesses who
testify to the same state of affairs. Nevertheless,
although as a matter of law corroboration is not
required, there are certain types of case in which as a
matter of practice, it is incumbent upon a trial to
consider whether any corroborative evidence exists. I
refer now to sexual cases and to cases in which the
evidence against the prisoner depends entirely or
substantially, on the word of an accomplice – a person
who himself participated in some way in the alleged
crime. In these two instances it is considered not so
much to be a matter of law but rather a combination of

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 caution, prudence and common-sense. History has
shown that, for reasons best known to themselves,
women sometimes make complaints of a sexual nature
which are entirely without substance or which, at best,
are only partially true. An accomplice, on the other
hand, may well have an interest of his own to serve,
and may therefore be tempted to give false evidence.
Because of considerations of this nature – and not so
much as a matter of law – it is essential for a
magistrate or judge to warn himself of the danger of
believing such witnesses without corroboration. If such
a warning is not given and there is no corroboration,
then the conviction will usually be set aside on appeal.
In England, such a quashing of the convictions is
virtually automatic – even though there may have been
ample corroboration. But in Malawi, where we do not
have trial by jury, this ultra-strict view of the matter is
not taken and as I said in the case of KAMBALU V R, an
appellate Court will look at the whole of the evidence
and the reasons for his decision given by the trial
magistrate in order to see whether it is just and proper
to uphold the conviction.
SPOUSES
S.194 CP & EC deals with Spouses. In criminal matters, spouses
are competent and compellable witnesses both for the
prosecution and the defence. In civil cases all spouses are also
competent and compellable.

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 DOCUMENTARY EVIDENCE
It is evidence arising from documents. It arises during litigation. It
is tendered to the court. There are rules governing production of
documents as evidence and also regarding the presentation of
other documents in lieu of necessary documents. The range of
documents from which evidence might arise is very wide and
includes deeds, wills, letters, statements, certificates, maps,
photographs, receipts, tickets, contracts, licenses etc. Before any
document is tendered and admitted in evidence it must be proved
to be genuine that is to say, it has to be what it purports to be.
Stamper v Gaffin 1886 20 CA 3112
It was stated therein that the mere production of a
document purported to have been written and or signed by a
particular person is no evidence of its authorship (because
through it there is a possibility that it could be forged). In
considering documentary evidence we have to consider the
method of proving the contents of the documents as well as the
method of executing the document.
S.24 of CP & EC – (under this section the Chief Justice has made
the Criminal Procedure and Evidence (Documentary
Evidence) Rules 1968 which are a codification of the common
law , as such these are applicable to civil matters as well.
Proof of contents
According to r 3(1) of the Rules, both primary & secondary
evidence can be used in proving contents of the document. The
general rule however is that a party relying on words used
in a document must prove them by primary evidence.

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Primary evidence is defined under r.3 (2) as including parts of a
document where the document was executed in part; a
counterpart where a document has been executed in counterparts
and any one of the document made by one uniform process e.g.
printing, lithography or photography. Copies of originals are not
primary evidence
Kalitera v Rep 4 ALR Mal 104
The appellant was charged with carrying passengers in
excess of the seating capacity of a motor vehicle. The
magistrate permitted prosecution witnesses to testify as to
what passengers had said and as to the contents of the
motor vehicle licence. The magistrate referred to the vehicle
licence and found the seating capacity to be stated as four
persons. [as against a seating capacity of 5 persons for the
type of vehicle]. On appeal, the court considered the
propriety of allowing statements to be made about what the
passengers had said as well as the testimony about the
vehicle licence.
SMITH Ag J
“…My first observation is that the magistrate allowed the
prosecution witnesses to say that when they stopped the car
its passengers revealed that they paid some money to the
driver. The magistrate should not have allowed this evidence
to be given unless the prosecution was to call these
passengers to give evidence from the witness-box. What
they said was hearsay and furthermore the rules of evidence
require that the best evidence must always be given to the

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 court. Thirdly I must observe, and this is fatal to the
conviction, that the Road Traffic (Seating Capacity)
Regulations allow a Morris “Traveller” to carry 5 passengers
including the driver. The magistrate found as a fact that this
vehicle had 5 passengers including the driver. The
magistrate referred to the vehicle licence (which in any
event, he should have insisted be produced as evidence
before him, and oral evidence concerning which was not
admissible as the original existed) and stated that the
seating capacity of the vehicle was 4. The offence as stated
is not committed by carrying passengers in excess of the
seating capacity “as determined in accordance with the
provisions of the Regulations”. State Counsel very properly
conceded that the conviction cannot be sustained and I set it
aside and substitute it for an order that the accused be
acquitted…”
To the general rule are some exceptions
1) Cases in which direct reliance is placed on the words used in
the document itself
Rep v Holy Trinity (1827) 108 ER 851
It was held that the fact that a pauper was a tenant in a
particular Parish would be proof without the original lease as
the relationship of landlord and tenant was capable of being
proved by other means.
DPP v Mwalwanda 3 ALR Mal 412
The respondent was charged with theft by a person in the
public service. At trial the respondent stated that he had

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 been appointed to the Prison Service and a senior prisoner
officer testified that the respondent was so employed at the
time of the offence. No documentary evidence of his position
was produced. The respondent was convicted on both
accounts. On appeal the judge set aside both convictions on
the ground that it was never established by evidence that
the respondent was employed in the public service. The DPP
appealed against this finding.
CRAM J
Allowing appeal: judgement read by SOUTHWORTH CJ; “…I
concur, but should like to add that the best evidence rule
has long since lost its title to be regarded as a general
principle and remains more nearly as a counsel of prudence.
Nevertheless, the absence of the best evidence may be the
subject of adverse comment by the judge. It is possible to
sympathise with the learned judge’s comment that better
evidence of the appointment of a civil servant was available
than was produced to him, for this, I consider, he was on the
right lines. For example, a Gazette notice of appointment
might have been produced. It does not follow, however, that
the inferior evidence produced could not support a finding in
fact. While the original of a private document must be
produced to prove its contents (this being one of the last
shreds of the best evidence rule), it does not follow by
analogy that a civil servant’s file must be produced to prove
his appointment.

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2) The general rule does not apply where reference is being
made to the terms of a document merely for the purposes of
identifying it.
3) Where a proper foundation is laid, secondary evidence will
suffice r.3 (3) defines secondary evidence as including certified
copies; copies of the original by mechanical process using
accuracy when compared with the other document (i.e. faxed
doc); [in short copies of photocopies] Where you have an original
document but intend to keep it then any copy must be certified
by a Commissioner for Oaths as a true copy of the original. The
other procedure is by giving a “…NOTICE TO PRODUCE…” Under
r.4 the other party can send a request to produce the original
document to be produced in court.
Suppose the other party refuses to release the document, the
other party can go to court And show that he did in fact send a
Notice to Produce but this was not complied with and this would
be considered a proper foundation for the copy that the
requesting party has which can be used in court.
Proof of execution (of document)
It is not generally sufficient to merely produce a document; it has
got to be proved that the document was signed by the parties
who are alleged to have signed it. S. 190 & 191 CP & EC and
also rules 5 & 6 and also rule 23 demonstrate how you prove
execution.
The method, everything being equal, is using a handwriting
expert who examines the document and compare with the
handwriting of the alleged signors of the document.

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Another way is by calling people who know or have seen the way
the alleged person signs (colleagues etc.) but you have to
establish that the witness has had enough of a close association
and for an acceptable time. Another method is in r.23 which says
where you have a document which had a witness; the witness can
come and testify. So in matters of Wills, after the testator has
died, you will require those who attested to the testator’s
signature.

REAL EVIDENCE
Comprises of anything other than documentary evidence by the
courts as a means of proof, consequently it includes - Objects ,
physical appearance including demeanour, any place, thing or
demonstration which is examined by the court in or out of court’s
precincts
Material objects
These are known as exhibits and they are of various types such as
guns, knives, books etc. When such objects are produced in court,
the court is not being asked to assume that the assertions being
made are correct but it is being called upon to make its own
perception of the object. The reason is that the court should look
at the object, look at the evidence in totality and decide whether
indeed that object is the one that was used in the crime or tort. If
an exhibit is alleged to have been stolen, the complainant must
sufficiently identify it to be his and a link must be established
between the thing, the owner and the accused person. However
particular care must be taken in proof of ownership of items in
common use.

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 Guza v Rep 2 ALR Mal 136
The appellant was charged in a subordinate court with
burglary and theft. Following two burglaries, goods
suspected of being stolen were found in the appellant’s
house. He was arrested and charged with burglary and theft.
While he was in custody the owner of some of the goods, a
prison officer, was allowed to question him. He was tried and
convicted. On appeal to the High Court it was contended that
the statement by the prison officer was not admissible as
evidence and that the identification of the goods, which were
mass-produced items in common usage, had not be
sufficiently detailed to discharge the burden of proof.
CRAM J
“…On the first two counts, a Mr. Lee proved his house was
broken and entered … and a large quantity of personal
possession stolen. These were all mass-manufactured goods
of a sort in everyday use and the examination of Mr. Lee on
the subject of identification of his property was perfunctory.
At no time was he asked how he could have distinguished
the articles produced to him from a mass of like goods e.g.
by signs of wear and tear, name-tags, defects or other
means. Proof by simple recognition of common articles,
without more, cannot be held to be beyond a reasonable
doubt. The appellant was arrested on October, 25th 1961.
In his possession were found a clock, shirts, a hat and a shirt.
These were all common objects of daily use, massproduced.
The examination of Mr. Lee on identification was perfunctory.

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 His mere simple recognition of these common articles could
hardly amount to proof beyond a reasonable doubt, without
particularizing upon detail…”
The judge was looking at the question of mass produced goods.
The judge makes it plain that these must particularly proved i.e.
go the extra mile to prove things like wear and tear etc.
Physical appearance (demeanour)
The court observes demeanour as it observes other things and
this helps in the final decision of the matter. When a witness
appears in the weakness box, apart from the story the court will
also know whether –
he is telling the truth
Whether he is parroting something he has been told
Whether he is lying and making his story as he goes
alone.
whether he knows the truth but he is deliberately
trying to hide the truth (evasive)
Demeanour comes out mostly in cross-examination when the
witness is under pressure and is being tested.
View out of the court
S.318 CP & EC provides for visits out of court for purposes of
inspection of a place or thing that cannot be conveyed into court.
Even though the provision is applicable to the High Court,
Subordinates courts also do exercise such visits under the
provision. The place of the crime / tort is called locus inco.

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However the power to visit a locus in quo should be reserved for
most deserving cases. But where such visits are necessary they
must be made at the earliest opportunity.
Maulidi v Rep 3 ALR Mal 379
The appellant was charged with breaking into a building and
committing a felony therein. At the trial a prosecution
witness gave evidence that the appellant brought home
some cloth, the subject of the charge in April 1965. The
appellant said he had bought the cloth from Indian traders
and the Court proceeded to visit the shops of the traders in
question in order to verify this explanation. The traders
refused to give evidence for the defence and the appellant
was convicted. He appealed on the ground that the
conviction was based on the evidence of the witness who
testified that he has seen the stolen goods in April, whereas
the offence alleged did not take place until May 1965. Crown
counsel, who did not support the conviction, asked the court
to provide a guide to the correct procedure to be adopted
when a court visits the locus in quo
EMEJULU J
“…a visit to the locus in quo starts with the court, the
accused, the witness, the prosecutor and defence counsel, if
any, visiting the place. It is not intended to take the place of
evidence that should be given in court but only to illustrate
certain points which may be obscure and not clear to the
court. There was no necessity for this visit, as I said earlier;
to take the evidence of the Indian traders whom the

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 appellant alleges sold the cloth to him. The proper thing to
do is to call these people to court and take their evidence.
Then, if the court is in any doubt about any point, such as
the distance of material points which have been given in
evidence, or the location of any place, and so on, a visit
should be made but, in my judgement, not otherwise. At the
scene, the witness should indicate clearly what they had
previously told the court. When the court resumes normal
sitting these witnesses should be sworn and should repeat
what they said at the scene and be subject to
crossexamination by the defence or the prosecution, as the
case may be. Alternatively the witness may be sworn at the
scene before they begin their identification of the various
places and points, which should be recorded by the court,
and to give the defence or the prosecution an opportunity of
crossexamining the witnesses…”
Rep V AHMED 4 ALR Mal 543
The was charged with offences under the Road Traffic
Ordinance - (a) using on a road an unlicensed motor vehicle, (b)
using a motor vehicle without a warning instrument, (c) using a
motor vehicle without a road service permit, and (d) using a
motor vehicle with a defective speedometer WATKIN-
WILLIAMS J
“…The magistrate made up his mind to inspect the vehicle in
the course of the trial. He does not say why he made this
decision, but there is no suggestion that it was at the
accused’s behest. When they reached the place where the

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 vehicle had been kept the magistrate inspected the vehicle
and came to certain conclusions. This was not strictly correct
because the magistrate who gives evidence to himself
cannot be cross-examined. The proper course is for a
prosecution witness to point the various matters out to the
magistrate who can then invite the accused to
crossexamine. The point is not a mere technicality, for
magistrates acting on their own observations may be wrong
in their conclusions. The finding of this case was clearly
right, for the accused admitted two counts in the course of
the hearing and said nothing to answer the third. Indeed the
inspection helped the accused for it enabled the magistrate
to satisfy himself that the speedometer on the vehicle was
not defective. The leaned magistrate ordered the accused to
pay the transport costs incurred to inspect the vehicle. In the
ordinary minor traffic case there is no need for the court to
go and examine a vehicle and I see no reason why the
magistrate’s decision to do so in this case without,
apparently, any request that he should do so on the part of
the accused should involve the accused in payment of costs,
so I set the order for payment of costs aside.
ILLEGALLY OBTAINED EVIDENCE
An issue connected to real evidence and at times to documentary
may be its admissibility if it was obtained illegally through: -
illegal research - compulsion – fraud. The law is ambiguous on the
issue of admissibility of such evidence but it would seem that
such evidence is admissible even though it was obtained illegally

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[subject to the exclusionary discretion of the trial court]
Kuruma v Rep 1955 AC 197
The accuse, a Kenyan African, while travelling to his reserve,
passed along a road on which he knew there would be a road
block. He could have gone another route on which there was
no road block. He was stopped and searched illegally in that
the searchers were not of the rank of assistant inspector or
above. The police alleged that they found two rounds of
ammunitions and a pocket knife. He was convicted for
unlawful possession of ammunition and appealed to the
Privy Council who held the evidence admissible.
LORD GODDARD
“…In their Lordships’ opinion the test to be applied in
considering whether evidence is admissible is whether it is
relevant to the matter in issue. If it is, it is admissible and
the court is not concerned with how the evidence was
obtained. While this proposition may not have been stated in
so many words in any English case, there are decisions
which support it, and in their Lordships’ opinion it is plainly
right in principle. Rep v Leatham approved…” Rep v
Kafukulira 3 ALW Mal 38
BOLT Ag J
“…The Privy Council case KURUMA V R is authority for the
proposition that evidence, other than a confession, is not
rendered inadmissible simply because it has been obtained
by unlawful means. Lord Goddard said [1955] AC at 203 / 1
All ER at 239:

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 “…The test to be applied in considering whether evidence is
admissible is whether it is relevant to the matters in issue. If
it is, it is admissible and the court is not concerned with how
the evidence was obtained…”
In the present case, it has been submitted that the taking of
the blood sample in question from the accused person may
have amounted to an assault. On the authority of Kuruma v
Rep, even this would not necessarily make the evidence
inadmissible, though doubtless most courts would exercise
discretion to exclude it under the circumstances…”

CORROBORATION
Under S.212 CP & EC it is stated that there is no fixed number of
required witnesses for the proof of any fact. This means a court
can convict on the evidence of one witness only. It also means
generally speaking there is no need of the testimony of a witness
to be corroborated. Corroboration has been defined in the
following case
Rep v Kapalepale 6 ALR Mal 150
The accused was charged with indecent assault. The
complainant gave evidence that when she was on her way
home from another village one evening, the accused, who
appeared to be drunk, tried to stop her and asked her to
have sexual intercourse with him. He caught hold of her,
tearing her clothes in an apparent attempt to undress and
causing her to fall down but she escaped and went back to
her village. She immediately reported to her brother and

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 sister that the accused had attacked her and her brother
gave evidence that the following morning he saw her torn
clothing. On the following morning, too, the complainant and
her mother went to see the accused and charged him with
the offence, which he denied. In evidence, the accused
continued to deny the offence and said both that he had not
seen the complainant that day and that he had been at
home. He called a juvenile witness in an attempt to establish
an alibi but the evidence was discounted. The magistrate
accepted the complainant’s evidence and treated it as
corroborated by the production of the torn clothing and the
evidence of complaint. The accused was convicted. On
confirmation, the court considered whether the magistrate
had directed himself properly in the issue of corroboration
and whether in the circumstances the case had been proved
beyond reasonable doubt
EDWARDS J
“…In complaints of sexual offences corroboration of the
complainant’s evidence, though not in law essential, is in
practice almost a necessity, and a trial court should warn
itself accordingly. The duty of a trial court in regard to the
question of corroboration is stated by Bolt J in Tinazari V
Rep (1964-66) ALR(mal)192; After the warning has been
given, an examination of the evidence must be carried out to
determine whether or not there is material amounting in law
to corroboration of the complainant’s account. If none is
found, two courses are open to a trial court. It can acquit the

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 accused on the grounds that it is dangerous to convict on
the uncorroborated evidence of the complainant, or in the
suitable case it can accept the testimony given
notwithstanding the lack of corroboration. One would think,
with respect to the latter course should be adopted in rare
instances when the trial court must expressly record (i) that
there is no corroboration; (ii) that it is well aware of the
danger of convicting in such circumstances; and (iii) that
despite the defect it is nevertheless satisfied beyond
reasonable doubt that the complainant is telling the truth. In
cases where corroboration in law is found a conviction is not
automatic but the trial court, after giving itself the
appropriate warning and after making a finding that there is
independent material capable in law of corroborating the
complainant’s account, can convict if it is satisfied that the
charge has been proved beyond reasonable doubt…”
Evidence of a report made by a complainant shortly after the
occurrence of which she complains may well be evidence
consistent with her story, and it will be admissible as such
and as negativing consent. But it does not constitute
corroboration of her story. In the present case the learned
magistrate did not in terms address himself to the question
of corroboration. It would seem, however, from his
references to the production of the torn clothing as
“supporting” and “confirming” the evidence of the
complainant that he may have regarded it as corroboration.
But it did not constitute corroboration. In Rep V Baskeville

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 (1916-17) ALLER 43, Lord Reading CJ said with reference to
accomplices that: Corroborative evidence is evidence which
shows or tends to show that the story of the accomplice that
the accused committed the crime is true, not merely that
the crime has been committed, but that it was committed by
the accused. The corroboration need not be direct evidence
that the accused committed the crime; it is sufficient if it is
merely circumstantial evidence of his connection with the
crime.
When you go through Kapalepale you get that corroborative
evidence is that evidence which confirms or supports other
evidence that the offence was committed in the alleged
manner and it is the accused who committed it.
Mwakawanga v R 5 ALR Mal 14
The appellants were charged and convicted in the High Court
with preparing, endeavouring or conspiring to overthrow the
Government by force or other unlawful means. It was held
that it is not necessary that everything a witness says must
be corroborated by independent evidence.
SOUTHWORTH CJ “…The further contention, that
corroboration of each of the three accomplice witnesses’
testimony must be present in respect of each and every act
averred in the particulars of the charge, cannot be sustained. This
would go much beyond the purpose of corroboration, which is
concerned with the general credibility of a witness. If the
evidence of each of the three witnesses now referred to is
corroborated in a number of material particulars, then the trial

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judge was justified in relying upon the testimony as a whole.
There is adequate corroboration of these three witnesses’
testimony and I cannot agree that the trial judge erred in relying
upon it…” It was held that it is not necessary that everything a
witness says must be corroborated by independent evidence.
To the general rule there are exceptions.
There has been debate whether this introduces another level of
proof. In some instances the requirement is a matter of law and in
others it is a matter of practice.
CORROBORATION REQUIRED AS A MATTER OF LAW.
Unsworn testimony of a child witness
A child witness normally can neither be sworn nor affirmed
[unless he would appreciate the nature and sanction of an oath].
S.6 (1) Oaths and Declarations Act. In a case where a child has
testified without being sworn then as a matter of law his evidence
must be corroborated
R v Dalakin Confirmation Case # 214 of 1977
The complainant was a girl of 5 who alleged that she had
been defiled. Her evidence was not corroborated but the trial
court convicted the accused. On confirmation the conviction
was quashed. Chatsika J “…It follows therefore that even if
the complainant’s evidence was properly given though
unsworn then the accused person could not have been
convicted unless it was corroborated by some evidence
implicating him...”

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 Phiri v Rep Criminal Appeal # 4 / 77
The complainant, a girl aged 10, gave unsworn evidence that
the accused had followed her into the bush where she had
gone to attend a call of nature; with threats he compelled
her to lie down whereupon he lay on top and put his penis on
her vagina, ejaculated and ran away. There was a witness
who had seen the accused and the complainant together just
shortly before the events. And the complainant’s mother
discovered bruises on the complainant’s private parts.
Having denied the offence originally, the accused admitted
in the next morning at the Police Station.
On appeal the appeal was dismissed because it was held
that there had been inadequate corroboration.
R V Banda 5 ALR Mal 96
When you read the case the courts held that unsworn evidence of
a child cannot be corroborated by another unsworn evidence of
another child. This also means the unsworn evidence of a child
can be corroborated by sworn evidence of another child.
Procuration a woman for immoral purposes
S.141 & S.140 PC
Under S.140 PC a person cannot be convicted for the offence of
procuring a woman or girl for immoral purposes on the
uncorroborated evidence of one witness. Sedition & perjury
S.244 (1) CEPC & S.51 PC and Perjury S.101 PC, You need
corroboration to convict.

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CORROBORATION REQUIRED AS A MATTER OF PRACTICE
Apart from cases where corroboration is required by law, a court
is not obliged to seek corroboration for the evidence of a witness
S.212 CP & EC. However there are certain species of evidence
which are of a particular sensitivity. For this type of evidence
prudence demands great caution before reliance is placed on
them. In such cases the court is not bound to find corroborative
evidence but it should warn itself against the danger of convicting
on uncorroborated evidence and if it does not find it, it should
either acquit or convict depending on whether in the absence of
corroborative evidence it is satisfied to the requisite standard of
the accused’s guilt or in civil matters of the genuineness of the
claim. It is a ground of appeal to claim that the court convicted
without taking into consideration the absence of corroboration.
Banda v Rep 4 ALR (mal) 316
The appellant was charged with committing an unnatural
offence. At the trial 2 witnesses called on behalf of the
prosecution testified that they had seen semen on the
buttocks of the complainant. They also stated that the
appellant had run away when approached by the witness
and later offered one of them money to drop the matter. A
medical report was introduced without the medical officer
being called in person. The appellant elected to make an
unsworn statement but was cross-examined by the
magistrate. The magistrate did not consider whether there
was any corroboration of the complainant’s evidence and
convicted the accused. The appellant appealed to the High

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 Court which altered the conviction. On further appeal the
court reviewed the irregularities in the trial procedure and
considered whether any injustice has been caused.
Benson Ag CJ
“…In all cases of sexual offences, whether rape, indecent
assault or acts of homosexual nature between males, it is
imperative for the trial magistrate or judge, to consider
whether or not there is corroboration of the complainant’s
evidence. If he does not direct himself on this point in his
judgement, on appeal to a higher court the conviction is
normally quashed if in fact there was no such corroboration.
The kind of direction required is that the magistrate should
warn himself of the danger of convicting in the absence of
corroboration…Having regard to the other corroborative
evidence and to the consistency of the complainant’s
conduct we consider that this irregularity cause no justice…”
Nkhata v R 4 ALR (mal) 52
The appellants were charged in the High Court with murder.
According to the evidence at the trial, the 3 appellants
conspired with a 4th man to murder the deceased. Their role
was to lead the deceased down an isolated path on a
pretext. The blow that killed the deceased was struck by the
4th man, who hanged himself before the case came to trial.
They appealed on, inter alia, the ground that the trial judge
gave no warning to the assessors that the evidence of the
second appellant should be regarded as that of an
accomplice and required corroboration.

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 SOUTHWORTH CJ
“…There has been some inconsistency in the recorded
decisions that bear upon this submission. The position is
summed up in Cross, EVIDENCE 2nd edition at 172 (1963):
In Davies v The Director of Public Prosecutions the
House of Lords said…in a criminal trial where a person who
is an accomplice gives evidence on behalf of the
prosecution, it is the duty of the judge to warn the jury that,
although it may convict upon his evidence, it is dangerous to
do so unless it is corroborated. This rule, although a rule of
practice, now has the force of a rule of law. Where the judge
fails to warn the jury in accordance with this rule, the
conviction will be quashed, even if, in fact there be ample
corroboration of the evidence of the accomplice, unless the
Appellate Court can apply the proviso to S.4(1) of the
Criminal Appeal Act, 1907.
The danger that the accomplice will minimize his role in the
crime and exaggerate that of the accused is the usual
justification for the requirement of caution in such a case,
although some writers consider that the requirement of the
warning has become a mystique in the administration of
justice and that the question whether the warning is given
should depend on the facts of each case. It will be observed
that the passage refers to an accomplice giving evidence on
behalf of the prosecution. One or two co-prisoners may
incriminate the other when giving evidence of his own

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 behalf. Although there appears to be a conflict among the
decisions of the point … the most recent pronouncements
favour the giving of the warning in such a case.
SENSITIVE EVIDENCE
(I) Sworn evidence of children
A child is a child which means a sworn child is not different from
an unsworn child. Though the evidence of a sworn child carries
greater weight comparatively, practice has it that the court
should consider whether there is confirming evidence before
deciding how to view the evidence.
R V Banda S J R V (supra) Idana v Rep 3
ALR(MAL) 59
“…The last point relates to what the trial judge described as
the significant remarks. It is clear the he was referring to the
evidence of the witness Idana to the effect that the appellant
had said that they would not find the deceased. The question
that arises here is whether the judge should have given any
direction on corroboration...”
The sworn evidence of a child of tender years does not need as a
matter of law to be corroborated, but it is a rule or practice that a
judge should warn himself of the danger of acting on such
evidence without corroboration, though he may do so, if
convinced that the witness has told the truth: see Rep v
Campbell; and Makhanganya V Rep. The rule however, only
applies to children of tender years and I would not describe an
intelligent boy of the age of 15 years as coming within that
rule…”

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 (II) Accomplices
An accomplice is technically a party to the crime charged. It is
therefore only fitting that caution is taken when evaluating such
evidence.
S.242 CP & EC – An accomplice shall be a competent witness
and his evidence does not need to be corroborated – that is the
greatest rule
Devoy v R 6 ALR (Mal) 59
The appellants were charged in the High Court with theft. A
lorry and trailer carrying 80 bars of copper from Lusaka to
Salima broke down enroute and was parked by the side of
the road. A watchman was employed to look after it. 11 days
when the cargo was inspected, it was found that 10 bars had
been stolen and subsequently when the lorry and trailer
arrived in Salima, it was found that a total of 65 bars had
been stolen. The watchman gave evidence that 3 men came
during the night and removed quantities of the bars, telling
him that they were doing so on the company’s instructions.
He reported the occurrence to the police. A lorry carrying 61
of the bars (identified by their distinctive markings) was later
stopped at the Tete ferry in Mozambique. It had been hired
by the first appellant. When he learned that it had been
stopped he did not return to ask why. The driver of the lorry
and 2 men accompanying him were detained. The first and
second appellants were subsequently arrested. The 2 other
men were convicted for their parts in the theft and
subsequently gave evidence for the prosecution against the

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 appellants. They were convicted. The appellants appealed
that as tone of he 2 men was a participant in the crime who
had given evidence against his accomplices and who had
been shown to be a liar, there was no exceptional
circumstances justifying the court’s discounting the
desirability of corroboration.
SKINNER CJ
“…The rule was well stated by Edge CJ in Rep v Gobardhan
1 LR 9 ALL 554:
“…As a general rule, it would, I think, be most unsafe to
convict an accused person on the uncorroborated
evidence of an accomplice. The evidence of an
accomplice, whether it is corroborated or not, must like
the evidence of any other witness, be considered and
weighed by the Judge, who, in doing so, should not
overlook the position in which the accomplice at the
time of giving his evidence may stand, and the motives
which he may have for stating what is false. If the
Judge, after making due allowance for these
considerations and the probabilities of the story, comes
to the conclusion that the evidence of the accomplice,
although uncorroborated, is true, it is his duty to act
upon the strength of his convictions…”

Zgambo V R Criminal Appeal # 30 of 77

The appellant had been convicted of theft, forgery, uttering &
obtaining by false pretences. On 3 counts the convictions were

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 based on the evidence of co–accused implicating him. On
appeal the convictions were quashed. Mead J “…In the present
case the learned Magistrate did not direct his mind to
considering and weighing the evidence of the 2 accused
persons. I have viewed the record & considered the evidence. I
respectfully agree with the admission of learned Chief State
Advocate that the conditions cannot be supported…”
(III) Sexual offences
The reasons for seeking corroborative evidence in sexual offence
as practice was part of Granville Williams in the Proof of guilt and
there he wrote: “…There is sound reason for this because sexual
offences are particularly subject to the danger of deliberately
false charges resulting from sexual neurosis, fantasy, jealousy,
spite or simply a girl’s refusal to admitting that she consented to
an act which she is now ashamed of…” IV) Confessions
In Malawi confessions are admissible even if they are involuntary
[given under duress]. There is however a danger in relying on
what is not genuine.
S.176(3) CP&EC deals with confessions and provides that to
attach any weight to a confession the court must first be
convinced that it was made by the accused and is materially true
(the section does not demand corroboration). The confession is
corroborated by pointers who corroborate that the confession was
made by the accused.
NATURE OF CORROBORATION

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 (1) Corroboration by the complainant
The law says that a complainant cannot corroborate his own
testimony. This rule emanates from the principle that “…a party
cannot make self-serving statements…” which means he cannot
rely on what he told other people after the event. And similarly
the evidence of the people complained to does not amount to
corroboration but simply shows consistency.
Chinangwa v R Criminal Appeal 19 of 1977
The appellant was a messenger in the firm in which the
complainant worked. She had said she had wanted to see
the Personal Manager but that the accused had locked the
waiting room door and pressed her and tried to undress her
and attempted to have sexual intercourse with her
whereupon she called for help. None of those who came to
her aid were called to testify. The Magistrate found
corroboration in the evidence of a witness who said heard
(overheard) the complainant telling others that she would go
and report the matter to Police. The appellant was convicted
of attempted rape. On appeal the conviction was quashed;
Jere J “…This with respect cannot amount to corroboration at
all. In order that evidence amounts to corroboration it must
be extraneous to the witness who is said to be corroborated.
And to be extraneous to the witness it is not enough that the
material to be used as corroboration be given by another
witness if that merely means circuitously from the witness
who is to be corroborated…”

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Jere J is saying that evidence should be coming from another
source not from the same source but going round (in a circuit)
and coming back to corroborate the evidence. The evidence
should be coming from without and not within for it to be
corroborative. The reversal/correlation of “a party cannot
corroborate his own evidence” is that “corroborative evidence
comes from without”
Rep v Evans 18 crim app rep. 124 Rv
Whitehead 129 1 KB 102
This case is to the effect that Silence of the accused does not
amount to corroboration. An exception to the requirement
that the corroborative evidence must come from an
extraneous source is found where the witness is testifying
on the physical manifestation on the complainant (i.e.
bruises or swellings of private parts in a rape case) to
corroborate the evidence of the complainant
Nyasulu v Rep 6 ALR(mal) 268
The appellant was charged with indecent assault. The
complainant testified that the appellant, employed as a
watchman, purported to arrest her in the vicinity of a
building he was guarding. He subsequently took her behind a
house and committed an indecent act. The complainant
shouted and a policeman who heard her shouts found her in
a distressed condition. She told the policeman in the
absence of the appellant what had occurred, and this
conversation was repeated by the policeman in evidence.
The policeman also gave evidence that he found signs of a

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 struggle at the scene and that the only other person present
was the appellant who looked very pleased as he did
nothing. The trial magistrate found adequate corroboration
in the policeman’s evidence and the appellant was
convicted. On appeal, the court considered whether there
was any admissible evidence corroborating the evidence of
the complainant

Edwards J
“…Cross-examined the witness said that the appellant had
told him the complainant was lying and that she had left a
handkerchief. At the time they visited the scene they picked
up a handkerchief. He asked the complainant who had taken
the underpants and she said that the appellant had taken off
the underpants. Unfortunately the, the witness was not
asked to explain why he had put this question, or asked to
describe the state of the parties’ clothing. One does not
know where the underpants referred to were when the
question was put. I cannot discern adequate corroboration of
the complaint in this evidence. In order that evidence may
amount to corroboration it must be extraneous to the
witness who is to be corroborated – per Lord Hewart CJ in
Rep v Whitehead (1929) 1 KB 102. And to be extraneous
to such witness it is not enough that the material to be used
as corroboration be given in evidence by another witness if
that merely means that it proceeds circuitously from the
witness who is to be corroborated – per Lord Hewart CJ in

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 Rep v Evans 18 CR. APP. R 124. The material to be used
as corroboration must not originate with the witness who is
to be corroborated. This is subject to the qualification that
evidence of physical manifestation on the part of the witness
who is to be corroborated, given by another witness, may be
accepted as corroborating the evidence of the
firstmentioned witness if the court is satisfied that the
manifestation was genuine and not part of an act. It is
obvious that unless the court is satisfied for reasons other
than the assertion of the witness who is to be corroborated
that the manifestation was genuine, the essential purpose of
the requirement of corroboration of the evidence of a
witness (credible though it may be) will not be fulfilled. In
Rep v Redpath 46 CR. APP. R. 321 Lord Parker CJ said: It
seems to this court that the distressed condition of a
complainant is quite clearly capable of amounting to
corroboration. Likewise evidence by third persons of screams
or protests uttered by a complainant at the time of an
alleged offence is capable of corroborating a complainant’s
story (see Tinazari V Rep).

However care should always be taken to watch out for simulation

when it comes to such evidence
Marriette v R 4 ALR (mal) 119
The appellant was charged with rape. The appellant a
married man, with a family, was a neighbour of the
complainant, a young girl of about 16. On the day of the

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 alleged incident, the appellant offered the complainant a lift
home in a car. The complainant accepted, but instead of
driving her home the appellant drove off the main road and
stopped the car. According to the girl’s evidence, he then
forced her to lie down in the car, put his hand over her
mouth, and had sexual intercourse with her against her will.
The appellant however claimed that she consented but he
was unable to carry out his intention because of her position
in the small car. After leaving the appellant the complainant
arrived home in a distressed condition and bleeding from the
nose. A medical examination revealed both internal and
external injuries to the girl’s private parts but a medical
witness suggested the possibility that these may have been
caused manually. The appellant did not take up this defence
and was convicted. He appealed on the grounds (a) that
penetration by the male organ had not been proved and (b)
that the magistrate had not given a full direction on
corroboration.
Cram J “…In Rep v Lillyman(1895-9) ALLER REP 586 it
was said that in a sexual case, where a complaint was made
by the prosecutrix shortly after the alleged occurrence, the
particulars of the compliant may be given in evidence, on
the part of the prosecution, not as evidence of the truth of
those facts but as evidence of the consistency of the conduct
of the prosecutrix, that the story told by her in the
witnessbox could be accepted on trust and as negativing
consent on her part. In my opinion, the last phrase cannot

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 mean a complaint is corroboration of non-consent, since the
prosecutrix cannot corroborate herself. What of the evidence
of the nose-bleeding? This was real evidence, seen by a third
party. Does it go merely to show consistency with the girl’s
story or does it offer some corroboration of non-consent and
assault? In Rep V Lovell (1923) 17 cr. App.173 it was said
that there is a clear distinction between matters which affect
the intrinsic credibility of the witness in her story, when the
story is considered by itself, and corroborative evidence in
the sense of independent testimony coming from a source
other than the prosecutrix and implicating the accused.
Historically evidence of the prosecutrix was admitted, not so
much as new matter tending to support the story sufficient
in itself, but as an indispensable ingredient in the story of
the prosecutrix, without which her story would be open to
grave suspicion. The complaint is not evidence of the facts
complained of, but of matters which may be taken into
account when considering the consistency and, therefore,
the credibility, of the story, which the woman tells. The
distinction between evidence showing consistency going to
establish credibility and corroborative evidence going to
prove credibility is, undoubtedly, a fine one. Nevertheless, in
the absence of corroboration, the jury may convict if
satisfied perfectly on credibility.
Rep v Kunkhongo (unreported)
The accused was convicted of rape. He was an uncle to the
complainant. It was the complainant’s evidence that on

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 returning from a bar with the accused he pushed her to the
ground and raped her. It was the evidence of Because
Gentala who was her husband that on return from an outing
at around 8pm he found the complainant crying. Her body
was dirty according to the evidence and she had a worried
look. On appeal Mead J said “…In the present case the
complainant’s condition was part of her complaint. The court
has to be satisfied that the condition is not simulated. There
is nothing in the evidence of the husband to assist the court
in deterring whether the condition was genuine or not. At
the end of the prosecution’s case there was no evidence to
amount to corroboration of the complainant’s evidence; the
conviction was quashed...”
(II) Corroboration by the accused person
A. Admissions - In the course of giving his evidence an accused
may admit the evidence of the complainant to be true and thus
corroborating it.
B. Confessions -Confessions may also amount to corroboration.
R V Likaku 4 ALR (Mal) 83
CRAM J
“…In Rep v Rolfe (19520 CR. APP. 4 it was said that
where the appellant has made admissions amounting to
corroborations, there is no longer any need to direct the jury
that these admissions are corroboration. The appellant here
has admitted his identity as the alleged assailant and
admitted that he intended to have and did attempt to have
to the best of his force and power full sexual intercourse with

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 the girl. The learned magistrate, therefore, was not, in law,
required to dwell on these admissions to the extent of
describing them as corroborative. Perfectly clearly, the only
facts of the girl’s story which require corroboration are the
alleged penetration and denial of consent.
R V Dossi 1918 13 Crim App Rep 155
The defendant’s admissions, in court or outside it, may
corroborate the case against him. His admission must go to
some issue which is relevant to what has to be corroborated.
In indecent assault cases, an admission of indecency short of
assault suffices but an admission of platonic handling does
not
C. Lies by the accused - Where the accused tell lies about the
case before trial, such lies may amount to corroboration.
R V Musisya Confirmation Case 210 / 75
The accused was a soldier and aged 21. He gave biscuits to
a girl aged 7 and her brother. He then took the girl into the
kitchen where he had forced connection with her. Upon
pulling out his member, the girl’s vagina bled. A witness
noticed the hymen to have been broken and a medical
report mentioned wounds on the vagina. Blood was found in
the accused’s kitchen but no link was established by test.
The accused argued that he had gone to visit a friend at the
material time. He was convicted. On appeal the appeal was
dismissed. Jere J said
“…In these circumstances having regard to the fact that the
accused bought some biscuits as well as the lies told both

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 outside & within court, I come to the conclusion that in this
case, without generalizing, the accused’s lies amounted to
corroboration & although the magistrate did not warn
himself
I find no reason to interfere with the decision…”
Rep v Kalua 3 ALR (mal) 356
“In his judgement the magistrate did not warn himself to
look for corroboration of the girl upon both identity and
consent and convicted, holding that the girl was an honest
and reliable witness, whilst the accused was unworthy of
belief because he made two contradictory statements to the
police. It is well settled that even if an accused person is
untruthful, this does not, of itself, amount to corroboration,
because even an innocent person in the predicament of a
trial may foolishly lie. The prosecution has still to prove its
case beyond a negative.
In Redland v Knowler, the unsworn evidence of a young
girl required corroboration. The appellant lied to the police
when approached but at no time admitted commission of an
offence. Lord Goddard CJ said (35 Cr. App. R at 54-55): I do
not think any case has gone to the length of laying down,
that the mere fact that an accused person has told a lie can
in itself amount to corroboration. It may, but it does not
follow that it must. If a man tells a lie when he is spoken to
about an alleged offence, the fact that he tells a lie at once
throws great doubt about his evidence, if he afterwards
gives evidence, and it may be very good ground for rejecting

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 his evidence, but the fact that his evidence ought to be
rejected does not of itself amount to there being
corroboration”
Such a lie, it was said in Credland V Knowler, would
amount to corroboration if it is of such a nature and made in
such circumstances as to lead to an inference in support of
the evidence of the complainant or if it gives to a proved
opportunity a different complexion fro what that opportunity
would have borne if no lie had been told. On arrest the
accused made the statement: “I understand the charge, I
agree that I got hold of the woman intending to have carnal
knowledge of her.” Now this is an admission of a material
incriminating fact which would corroborate the girl both on
identity and lack of consent. Her evidence required two fold
corroboration: first because she was not sworn and secondly
because she was a complainant in a rape charge. It is true
that the accused went on to make another statement later
where he admitted the he had committed a rape, but denied
that it was with this girl. The accused made two
contradictory statements, one to a material extent
incriminating and that [supplied] the necessary
corroboration.
D. Silence of the accused - If an accused is being charged of
an offence and he remains silent, this does not mount to
corroboration.
E. Refusal or neglect to give evidence by the accused -
S.256 & S.314 CP & EC allow the court such refusal or neglect into

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account when coming to a decision. It is arguable whether this
amounts to corroboration or not;
BUT compare with S.42 on the Constitution on Right to remain
silent.
Cf DPP V Banda – Mwanza Murders Trial
F. Conduct of the accused person - Depending on the way
the accused behaves around the time of the alleged offence or
when confronted with an allegation, corroboration may be found
in conduct.
Rep v Mitchell (1932) Crim App rep.
G. Facts showing intention - Where evidence shows a
particular intention as having been displayed by the accused, this
may amount to corroboration
Piles v Rep 2 ALR(mal) 214
The appellant was charged in a magistrate’s court with
arson. It was alleged that the appellant had proposed
boycotting a certain store and had threatened to burn the
house of anybody entering the store. The complainant’s
daughter-in-law’s house was burnt after he had carried on
business with the boycotted store. Two witnesses gave
evidence to the effect that they had accompanied the
appellant when he had actually set fire to the house. The
appellant’s defence was an alibi. At trial the magistrate,
recognizing the two witnesses as accomplices, found
corroboration of their evidence in the facts that the appellant
had a motive to set fire to the house, and that he had the
opportunity to do so. The appellant was found guilty and

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 convicted. He appealed on the grounds that there was in fact
no corroboration of the evidence of the accomplices, and
that his alibi had been wrongly discredited.
CRAM J
“…In my respectful view, there is corroboration on record,
inasmuch as the appellant’s threat to burn went beyond
mere motive and showed intention, and therefore was a
material fact tending to connect the appellant with the
actual burning…”

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