BY COLLINS NKUMBWA.
ABSTRACT
This paper discusses the definition, nature and the concept of character evidence and similar fact evidence in the Zambian legal system. It also discusses the rules of admissibility, weight and relevance of character evidence and similar fact evidence. It has also illustrated the application of the two concepts with the aid of judicial precedents. Lastly, it has also examined the legal framework for character evidence and similar fact evidence in Zambia and makes recommendations in this area of law.
Key words or phrases – Character Evidence, Similar Fact Evidence, Admissibility, Weight, Relevance, Prejudicial Effect, Probative Value
INTRODUCTION
In the ordinary language, "character" means general reputation as distinct from disposition which refers to tendency to act, think or feel in a particular way. Character evidence may be used to impeach the witness's credibility by persuading the court that the evidence of the impeached witness is unreliable in so far as it might bear upon the issue. It may also be used to prove substantive facts, which are in issue.
Similar fact evidence is a concept whereby evidence of prior acts is used to prove or otherwise strengthen the argument that a given loss occurred in the same way. There are many contexts in which a litigant may attempt to introduce similar fact evidence such is in relation to criminal behaviour (e.g. past criminal behaviour to show a propensity to comment a crime) or medical malpractice (e.g. a prior negligent procedure to show an inability to perform other procedures).
LEGAL FRAMEWORK
The general rule is that it is not competent for the prosecution to bring evidence tending to show that the accused has been guilty of criminal acts other than those for which he/she is being tried leading to the conclusion that the accused is a person likely, from his criminal conduct, to have committed the crime for which s/he is being tried.
Section 157 (vi) of the Criminal Procedure Code provides that:
A person charged and called as a witness, in pursuance of this section, shall not be asked, and, if asked, shall not be required to answer, any question tending to show that he has committed or been convicted of, or been charged with any offence other than that wherewith he is then charged, or is of bad character, unless- he has, personally or by his advocate, asked questions of the witnesses for the prosecution with a view to establishing his own good character, or has given evidence of his own good character, or the nature or conduct of the defence is such as to involve imputations on the character of the complainant or the witnesses for the prosecution; or the proof that he has committed or been convicted of such other offence is admissible evidence to show that he is guilty of the present offence he is then charged. (Emphasis mine)
JUDICIAL PRECEDENTS
The following cases illustrate the application of character evidence and similar fact evidence in the Zambian legal system:
The court in Melody Chibuye v The People held that where the good character of the prosecution witness has been put in issue, then bad character evidence may be adduced as well. It was held that it was wrong for the prosecutor to cross - examine the appellant as to his character since the prejudicial effect of the evidence extracted outweighed its evidential value. The trial magistrate ought to have refused the cross - examination or to have informed the appellant of his right to refuse to answer those questions. Under s. 148 (f) of the Criminal Procedure Code questions relating to the accused's previous committals and convictions could only be admitted in evidence where: (i) it can be proved that his guilt in those offences show that he is guilty of the present offences; (Emphasis mine)The court in Zambia Publishing Company Ltd v Pius Kakungu held that evidence of the plaintiff's good character is irrelevant and unnecessary for the law presumes that his character is good until the contrary is proved. The evidence of an alleged previous attempt by an accused on the life of a victim is admissible at the court’s discretion as similar fact evidence provided that the court has clearly established that its evidential value outweighs its prejudicial effect. (Emphasis mine)
CONCLUSION AND RECOMMENDATIONS
This paper has established that the Zambian legal system recognises the concept of evidence of character and similar fact evidence. It is evident that a person charged and called as a witness is not mandated to answer, any question tending to show that he has committed or been convicted of, or been charged with any offence other than that wherewith he is then charged, or is of bad character. An exception to the foregoing arises wherein witness has, personally or by his advocate, asked questions of the witnesses for the prosecution with a view to establishing his own good character, or has given evidence of his own good character. The other exception also relates to the nature or conduct of the defence if it involves imputations on the character of the complainant or the witnesses for the prosecution.
While the two concepts seem plausible in the Zambian legal system, it is evident that the application of the two concepts is discretional and left to the judge to determine the prejudicial effect and the probative value of the evidence as a test for admissibility. It is recommended that Zambia should devise and promulgate policies and reform the law in this area of law so as to protect accused persons, especially those unrepresented, from this type of evidence which seems to be more of prejudicial effect than probative value. If not well handled, the two concepts may defeat the presumption of innocence and promote self-incrimination of accused persons, thereby occasioning miscarriage of justice.
REFERENCES
STATUTE
Criminal Procedure Code Chapter 88 of the laws of Zambia
CASES
Melody Chibuye v The People (1970) ZR 28 (HC)
Zambia Publishing Company Ltd v Pius Kakungu (1982) Z.R. 167 (S.C.)
SCHOLARLY WORKS
Abiola O. Sanni on Character Evidence
Franco R. Cabanos. Similar Fact Evidence. A case comment on Triple 3 Holdings Ltd. et al v. Paccar Inc. et al, 2014 SKQB 427
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