Difference between revisions of "Similar fact evidence (Zimbabwe)"

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General rule

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

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


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

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

Examples

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

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

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