Documentary exhibits (Zimbabwe)

Subject to certain exceptions dealt with below, documentary exhibits must be proved by evidence on oath from witnesses.

Photographs and plans

To prove photographs and plans, the person must be called who made the indications or observations upon the basis of which the photograph was taken or the plan made: s 279 CPEA. The plan or photograph may be handed in to the court without having to call the witness to prove it if the other side consent to its production without the witness being called: s 279(2)(b) CPEA.

Defence lawyers should obtain copies of plans and photographs before the trial and examine them carefully and ask his client to comment upon these. If there are no copies available, the defence lawyer should call on the prosecutor well in advance of the trial and request that he be allowed to study these documents.

Notes in police notebooks

Police witnesses may wish to refer to notes in their notebooks taken soon after the incident about which they are being asked to testify. The magistrate is entitled to examine these notes, as is the defence. The defence lawyer should always avail himself of his right to examine these notes as the notes may contain information which is favourable to his client's case.

Documents admissible in affidavit form

There are statutory provisions allowing for the handing in of certain types of documentary exhibits by the State, without calling of the persons who made them to testify in court.

Section 278 CPEA allows the production of certain documents from the persons who compiled these documents provided that these are in affidavit form. These are:

Medical reports from doctors

ss 278, 279 and 280 CPEA.

In cases such as assault with intent to do grievous bodily harm, culpable homicide, attempted murder, infanticide and rape the State will often want to introduce medical evidence. The defence may also wish to introduce such evidence. If the State or the defence wishes to produce that evidence in affidavit form, certain formalities must be followed.

Section 278(11) CPEA provides that the defence must be given three days' notice of the intended production of the affidavit. An affidavit is not admissible unless the defence has been given three days' notice of its intended production or agrees to waive its right to be given notice. The defence may indicate in advance of the production of this evidence that it intends to apply for the doctor to be called to give oral evidence. The prosecutor may then decide to call the doctor so that he can give oral testimony.

After the affidavit has been produced, the defence may apply to the court for the medical practitioner to be called to give oral evidence where this is necessary to clarity or test the evidence. If no such application is made then the defence may be taken to have admitted to the truth and accuracy of the contents of the affidavit.

The court has a discretion in terms of s 280(8)(ii) [262(8)(ii)] CPEA to order that the doctor be summoned to give oral evidence at the trial. It may also send written questions to him to which he must reply.

It will be necessary to use the power to call the doctor to give oral testimony when the original affidavit is inadequate and thus the court will be unable to arrive at a just decision on the basis of the affidavit. If the information is very scanty or vital information is omitted or the information in the report seems to be contradictory, this power should be exercised. If the affidavit contains all the necessary information there will be no need to summon the doctor: Anock 1973 RLR 154; Sibanda A-10-72; Melrose 1984 (2) ZLR 217 (S).

As regards medical reports from doctors which the defence wishes to lead in evidence, the defence lawyer should try to get the prosecutor to agree to the evidence without having to call the doctor as doctors are often most reluctant to come to court and waste time. If the evidence is mere record of findings and it contains clear facts which are uncontentious, the agreement of the State to its production without having to call the doctor may well be forthcoming.

Affidavits from nurses, ambulance drivers and carriers

s 278(4) and (5) CPEA.

Affidavits from Vehicle Inspectors

s 278(4) CPEA.

Certified documents

Under various statutes there is provision for documents to be certified so that they can be produced in court. These include documents certified under s 319 of the Companies Act [Chapter 190], under s 196 of the Insolvency Act [Chapter 303] and under s 23(6) of the Maintenance Act [Chapter 35].

The procedure for the production of certified copies of official and public documents are set out in ss 275-277 CPEA.

Bankers' books

Sections 285-289 CPEA provide an easy method for the State (or the defence, if such a course should be necessary) to prove entries in bankers books. This special procedure is necessary because it would be impossible for banks to function efficiently if their officials had to attend the various courts in the country and produce the bank's books to prove the entries therein.

Under this procedure a copy of an extract from bank's books can be produced without having to call someone from the bank to prove that extract in court, provided an official from the bank (such as the bank's accountant) has sworn an affidavit to the effect that the the entries in question were made in the ordinary course of the business of the bank and that the copy is a true copy of the original entry.

The procedure applies in respect of commercial banks and other financial institutions registered under the Banking Act [Chapter 188], the Post Office Savings Bank, the Agricultural Finance Corporation and building societies. The same procedure applies in respect of foreign banks.

It can be used in relation to bankers' books and documents such as ledgers, day-books, cash books, deposit slips and letters of transfer. Reid-Rowland in The Prosecutor's Handbook at p 120 suggests that bank records kept in computerised form are admissible in terms of this procedure.

Under this procedure the opposing party is served with a copy of an extract from the bank's books. The papers must be served at least ten days in advance of the criminal proceedings, unless the opposing party agrees to waive this period of notice.

If the opposing party wishes to do so, it will be given the opportunity of comparing the copy with the original entries in the bank's book. In order to do so, it must make an application to the court for an order that the opposing party be permitted to inspect the relevant bank books and take copies from the books which relate to the matter in question. Three days' notice must be given to the bank should the court grant such an application.

The certified copies of the extracts are prima facie evidence of the matters, transactions and accounts recorded in them. They are not conclusive proof and the court may decide not to accept the documents as evidence of those transactions where, for instance, there is doubt regarding the accuracy of the entries, or where a bank official has been charged with an offence which involves the alteration of the bank's books of account.

Documents made in the course of business

Sections 281-284 CPEA provide for the production of documents made during the course of business or trade.

In terms of s 282(2) CPEA, records relating to any transactions in connection with any trade, business or occupation are admissible on their mere production, provided that the facts contained in them would have been admissible as direct oral evidence. The transaction can be either inside or outside Zimbabwe. This provision provides a way for the State to overcome the difficulty of having to call the person who originally made these records.

Section 281(2) can be used by the State to produce documents such as documents made and kept by an employee or agent of the accused, as proof of the facts contained in that document, provided that those facts would have been admissible as direct oral evidence.

Section 284 deals with stamps, signatures and writing on negotiable instruments which were purportedly made by personnel in banks outside Zimbabwe. Until the contrary is proved, such marks on the instruments are deemed to have been made by such bank personnel.

Whenever the State introduces such documents in evidence and relies on particular portions of them, the defence lawyer should always ask to examine them. He should carefully scrutinise them as they may contain information beneficial to his client which has not been referred to by the State because this information does not advance the State case.

Documents executed outside Zimbabwe

For a document executed outside Zimbabwe to be admissible in evidence it must be properly authenticated. This is dealt with in Rule 3 of the High Court (Authentication of Documents) Rules of 1971 (RGN 995 of 1971). This lays down that any document executed outside Zimbabwe is deemed to be sufficiently authenticated for the purpose of production in any court if it is authenticated by a notary public, a mayor or a person holding judicial office or by certain specified Zimbabwean diplomatic or consular officials (in countries which have such officials).

Zimbabwe Criminal Defense Manual

Table of Contents

• Introduction
• Defense Lawyer's Role and Responsibilities
• Pre-Trial Matters
• Jurisdiction of Courts
• Preparing for Trial
• Trials
• Rules of Evidence
• Criminal Law Code
• Verdict
• Sentence
• Record of Proceedings
• Appeals
• Automatic Review and Scrutiny
• Miscellaneous Matters