A Handbook for Public Prosecutors

22. What Evidence is Admissible?

Chapter 22 WHAT EVIDENCE IS ADMISSIBLE? One day I was trying a case in a district court. The accused person had been charged with unlawful wounding and the complainant was a brother of the accused. There was evidence from two independent witnesses who testified that they were present when the accused quarrelled with the complainant over some change and that in the course of arguing, the accused slashed the complainant with a knife. They added that the father of the two young men was also present and was the person who intervened and disarmed the accused. But when the father was called to give evidence, he completely denied having witnessed such an incident and went on to say that there had been no quarrel between his sons and that the complainant sustained the injury while working on a hoe handle. My public prosecutor was bewildered. He tried one question after another but the witness would not yield to the truth. In the end, the public prosecutor sneered at the witness and sat down looking defeated. “Has this witness turned hostile, Inspector?” I asked. “Hostile, Your Honour?” he asked looking lost. The problem was that my public prosecutor had never heard of a “hostile witness” let alone how to deal with such a witness. This underscores the fact that it is not enough for a public prosecutor to know the elements of offences and how to draw up charges. In addition to his knowledge of criminal law and criminal procedure, a public prosecutor must also be familiar with simple rules of evidence. What is evidence? The term “evidence” is used in many senses. The Tanzania Evidence Act defines the term as follows: the means by which an alleged matter of fact, the truth of which is submitted to investigation, is proved or disproved; and without prejudice to the following generality, includes statements by accused persons, admis- sions and observations by the court in its judicial capacity. (See s. 3(1) of The Evidence Act, Cap 6 RE 2002.) In this book we shall talk of evidence in two main senses, namely, (1) those rules of law used in judicial proceedings which lay down as to what matter is or is not admissible for the purpose of proving or disproving facts in dispute, and the manner in which such facts, the truth of which is submitted to investigation, may be placed before the court; and (2) that which is received by the court to prove the truth or otherwise of an alleged matter of fact which is under inquiry before the court , such as statements of witnesses and of accused persons, documents, and other objects which are received by the court for the purpose. Types of evidence A public prosecutor should try to be familiar with terms which are often used in courts. The following are some of the terms used to refer to particular types of evidence: (1) Oral evidence: This means statements by witnesses in court as to matters which they know, have heard or felt, seen or in any way perceived by any of their five senses, and, where such evidence is admissible, opinions of such witnesses in court. 2. Documentary evidence: This means documents produced in court for inspection by the court. Autopsy reports, payment vouchers, cheques, sketch-plans, etc. are all documentary evidence. 3. Direct evidence: This is evidence of a fact actually in issue, that is, evidence of a fact actually perceived by a witness with his/her own senses. For instance , if the question is whether A assaulted B, evidence by C that he saw A assault B is direct evidence. 4. Circumstantial evidence: This is evidence of a fact not actually in issue, but which is legally relevant to a fact in issue. It is sometimes referred to as indirect evidence. 5. Real evidence: This refers to evidence supplied by material objects produced for inspection by the court. For example, if the question is whether A stabbed B with a knife, a knife produced in court as the knife used by A to stab B is real evidence. 6. Extrinsic evidence: This means oral evidence given in connection with written documents. The oral evidence given by a handwriting expert on documents prepared by him in respect of a given handwriting is extrinsic ev168 Part III Basic Principles of the Law of Evidence idence, while the document itself is documentary evidence if produced...