CASES ON RELEVANCE AND ADMISSIBILITY OF EVIDENCE IN TANZANIA.

CASES ON RELEVANCE AND ADMISSIBILITY OF EVIDENCE IN TANZANIA.

Nkrumah V R.

 The police went into a house of the accused without a search warrant and in the process of the search; some incriminating articles were found in his possession and tendered in as evidence. The accused argued that such evidence should not be admitted because it was illegally obtained and on appeal to the Privy Council it was held that method of obtaining evidence is irrelevant and that what is important is that the admissible evidence is obtained.  

RES GESTAE.

R V Kurji.

The accused had stabbed the brother of the deceased and had uttered threats against the deceased. Immediately afterwards, he was seen in the go down of an immediate shop standing over the deceased holding a dagger. It was held that the two circumstances wee so interconnected that the wounding o stabbing of the deceased's brother must be regard as part of the res gestae in the trial of the accused in the murder of the deceased. Further that this evidence was admissible even though it tended to lead to the commission of another offence.

Facts Forming Part of the Same Transaction.

Oriental Fire and General Assurance Ltd. V Govenda and others.

The appellant sued the respondents seeking to avoid motor vehicle policy which they had given the respondents on the grounds that the respondents had made a representation of fact that they had been involved in a motor accident with a vehicle owned and drivers by the first respondent. The issue was whether the statements made after the motor accident were part of res gestae. Court found that the statement was not part of res gestae because they were not made at or immediately after the occurrence of the accident.  

Facts Which are the Occasion, Cause or Effect of the Facts in Issue

R V Brabin Khosla

Appellants convicted of corrupt practices. The particulars of the offence were that they, being person employed by the commodity board, obtained a sum of money from Hasham Kara, for bearing to shun disfavor to him in relation to the affairs of the commodity board. The prosecution successfully adduced evidence of previous corrupt transactions by the appellants with Hasham Kara five moths before. The issue was whether previous evidence of corrupt transactions by the appellant with Hasham Kara was admissible. It was held that the previous corrupt transaction evidence of the same parties was admissible. There was some definite nexus between the previous similar offence and the offence charged. Applying that principle, to the present case, it might exclude as inadequate and inadmissible evidence of exactly similar offences committed by the accused in the transaction with other people other than Hasham Kara.  

John Makindi V R    

The appellant was convicted for manslaughter of a boy for whom he stood in loco parentis by beating him so severely that he died. At the trial, the appellant had raised a defense to the effect that the boy was epileptic and so had suffered these injuries in the course of an epileptic attack. The prosecution had then adduced evidence of previous severe beatings of the deceased by the appellant in order to rebut his defense the issue was whether that evidence was admissible and section 6 of the Act as explaining substantiating the cause of death as well as under sections 7 and 13 (now 8 and 14) showing the motive of the appellants to revenge on the deceased and the appellants' ill will towards the child.

Harris V DPP

A series of thefts having common characteristics occurred in an office in an enclosed market at times when the gates were shut and on occasions where the accused police officer was on duty in the market. The precise time of only one of those breakings was known and the accused had been found in the immediate vicinity. The accused was charged with eight breaking thefts but acquitted on seven counts and convicted on the eighth. The issue on appeal; was whether the seven counts should have been admitted or proved and it was held that as regards the eighth breaking, evidence of the pervious seven breakings would have to be excluded because they occurred at a time when it had not been proved that he was near the office. Court went on to say that the proper rule as laid down in Makin V New South Wales. The proper rule is that evidence tending to show that the accused has been guilty of criminal offences other than the one he's being tried is inadmissible unless certain evidence is relevant to the issue before court as for example it bears on the question whether the acts alleged to constitute the offense were designed, accidental or if it rebuts an offense which will otherwise be open to the accused.   

Facts Showing Motive or Preparation, Previous or Subsequent Conduct.

Tinkamalirwe V Uganda

The appellants were tried and convicted by the High court on the indictment of kidnapping with intent to murder and sentenced to 18 years imprisonment. The victim and the second appellant belonged to different churches. While at Mpowa market, the accused branded the deceased, "the enemy", grab him and two other men, tied him up and took him away n a pick up. He was taken to police and detained. Later, the deceased and other detainees were taken away never to be seen again. The issue was whether motive should have been considered and evidence showing it admissible. It was held that motive tough irrelevant in criminal prosecution makes it more likely that an accused did in fact commit an offense thus facts showing motive are admissible in proving mens rea.   

R V Ball

This was a case of incest between brother and sister. Evidence of their previous conduct was raised and they objected to the admissibility of such evidence. Court held that such evidence was relevant as it tried to rebut the fact that the accused were innocent and of good character.                 

Explanatory and Introductory Facts

Facts That Support Or Rebut An Inference.

Francis Kayemba V Uganda. 

The appellant was charged with and convicted of theft mainly based on circumstantial evidence. It was held that before a conviction is entered on a case mainly based on circumstantial evidence, court should first find in interlocutory facts are incompatible with the explanation on any other reason or hypothesis other than that of guilt. It is also necessary before drawing that inference of guilt drawing on circumstantial evidence to be sure that there are no co existing facts which would weaken or destroy the inference.

Uganda V Barinda

The accused was indicted for kidnapping with intent to murder. Evidence showed that the deceased as he was being served with a drink at a party was called away by the accused towards the trading centre where he was attacked by the accused along with others and dragged near the bush and was never seen again. It was held that there was evidence both circumstantial and direct to the effect that the death of the deceased was caused by the assault on him by the accused and others. However, to establish the cause of death partly by circumstantial evidence, court had to be sure that there were no other co existing circumstances which would weaken or destroy the inference. Therefore, it was on the prosecution to show that the deceased being dragged into the bush was not enough since anything could have happened to him there. That there were therefore co existing circumstances which tended to weaken the evidence as to the cause of death. 

Uganda V Richard Baguma

The accused was indicted on account of robbery and kidnapping with intent to murder. It was alleged that on the day the deceased died, the accused had picked him form his house and taken him away and his bullet ridden body was found the following day, it was held that where evidence is circumstantial in order to justify an inference of guilt, facts must be incompatible with the innocence of the accused and incapable of explanation upon any other hypothesis than that of guilt.

Uganda V Kasya

The accused was indicted for murder; evidence was relayed to show that on the evening of the deceased's death, the accused had been seen in company of the deceased. Evidence was also led to show that the deceased's body had been found about half a mile from the accused's residence that she had first been raped before being strangled and graduated tax tickets belongs to the accused were found some meters from the body and the accused upon arrest was found wearing blood stained trousers. The accused raised the defense of alibi and it was held that where the accused arises an alibi, he does not thereby assume the burden to prove it, the burden rests on the prosecution to disprove or destroy that the evidence against the accused was purely circumstantial and did not irresistibly point to the guilt of the accused because there are other co-existing circumstances which would weaken or destroy the inference. Further that the prosecution had failed to destroy the accused's alibi by putting him at the scene of eth murder.

Facts Which Establish Identity Where Identity Is In Issue          

Musoke V R 

It was held in the case that it is not an established practice to question a witness as to his or her reasons for doping so. That voluntarily made comments by the witness is often received in evidence as part of the act of identification but answers to questions will be of less value and of doubtful admissibility.

Abdalla bin Wendo V R

The appellant was convicted of murder of a plantation watch man on a very dark night. A third accused was acquitted the trial judge convicted the appellant feeling it safe to accept the evidence of one man as to their identity although no one in his party was able to identify anyone. Reliance was placed by the judge on the evidence relating t police dogs. It was held that though subject to certain exceptions, a fact may be proved by the testimony of a single witness, which doesn't lessen the need for testing wit the greatest care, the evidence of such witness respecting the identification especially when it is known that the conditions favoring a correct identification are difficult. In such circumstances, other evidence, circumstantial or direct is needed. Secondly, where police dogs are used to corroborate an identification of a suspect, such should be accompanied by the evidence of the person who has trained the dogs and can describe accurately the nature of the test employed. 

Roria V R

As a result of a dawn armed raid of Masai land in 1966, a people were killed including the deceased of whose death, the appellant was charged and convicted of murder. Fourteen days after the rid, the wife of one of the deceased identified the accused on an identification parade. The judge assessed the wife as a truthful witness and held that the appellant was a stranger to her. On appeal, it was held that a conviction resting entirely on identity invariably causes a degree of uneasiness, that the testimony of one witness need be tested with the greatest care. In such circumstances, what is needed is other evidence, whether it is direct or circumstantial pointing to the accused's guilt. 

Karanja V R

The appellant was convicted of aggravated robbery; he was identified by the victim at an identification parade. He raised the defense of alibi and argued that evidence of identification was unsafe or unsustainable. Court held that subject to certain exceptions, it is very vital that a fact may be proved by the testimony of a single witness but this rule does not lessen the need for testing with the greatest of care. The evidence of a single witness regarding identification especially where it is known that the conditions favoring identification we difficult. In such a case, what is needed is other corroborating evidence whether direct or circumstantial. 

Kibuthu and others V R

The appellant was accused of having committed aggravated robbery and was convicted. Evidence showed that police had used a track dog to lead them to the accused on the scene of the robbery. He appealed against the decision basing that the identification was unsafe. Court haled that the accused had not been recognised by the complainant and none of the stolen property had been traced back and it could therefore be unsafe to rely solely on the fact that police track dog led the police where the accused was that night especially in absence of expert evidence of what the track dog could or could not do.

Shama and another V Uganda

The appellant was charged with murder and had been identified by a witness using the voice recognition. This witness had never had a face to face conversation with the accused and the accused raised the defence of alibi. Court held that identification becomes crucial issues if the identifying witness is unable tom physically see the speaker whose voice the witness claims to identify thus its necessary for the court to consider the identification with the greatest are or caution. There is a possibility of mistaken identity by voice where it is claimed that a person has been identified.

Njiru V R

The appellant were charged with aggravated robbery. Evidence adduced was that the complainant who claimed to have seen them cut off power supply. There was also voice identification by one of them and the complainant also calmed that the robbers had spoken to them and he could register the appellant's voice. An identification parade had been carried out and on a plea, the court held;

1.      Where an identification parade is to be carried out, the requirement in respect to the members of the parade is subject; they should be of eth same age, height appearance, class of life as the suspect and not that they should be identical. in respect of eth first accused, there was no need to find people with similar swellings as the first accused had on his side of the face although if it was possible it would have a commendable thing to do.

2.      Where a witness says that apart from visual identification of the suspect he has also been identified by voice, the witness should be allowed to confirm that. There was nothing objectionable in a witness requesting for parade members to shout for him, so that he could satisfy himself that he does not make nay mistake identifying the particular suspect.

Twebaze Drake V Uganda

It was held that the intention of the parade was to make sure that the ability of the witness to recognise a suspect is tested. Court went on to say that the identification parade is not the only search test because the correctness or otherwise of identification will depend on the circumstances such as length of time, distance, the light and familiarity of the witness to the accused. If the circumstances are good, then the danger of mistaken identity is reduced.

Stephen Mugume V Uganda

It was held that identification parades are as a practice held in cases where the suspect is a stranger to the witness possibly where the witness does not know the name of the accused. The parade is held to enable the witness confirm that the person identified at the parade is the same as the one the witness saw commit the offence. Further, the evidence of the parade could only be accepted if the parade conformed to the established practice.

Contradictory or Inconsistent Facts.  

Uganda V Disman Sabuni

It was held that it is well established law in Uganda that when an accused does not have any responsibility of proving the alibi. The prosecution must negative the alibi by evidence adduced before the defence is put forward or by calling witnesses to give evidence in rebuttal. In the full consideration of the whole of the evidence put before the court, it ids found that the alibi is sound and it has not been negative, then the prosecution won't have proved its case beyond reasonable doubt and the accused is entitled to an acquittal. 

Uganda V Abdullah Nasur

It was held that in assessing evidence of the witness, and the reliance to be placed upon it, his consistency or inconsistency is a relevant consideration. Where grave inconsistencies occur, the evidence, may be rejected unless satisfactorily explained, while minor inconsistencies have no adverse effect on the testimony unless it points to deliberate untruthfulness. 

Evidence of Similar Facts or Occurrence.

Makin V A.G of New South Wales

Court stated that it is undoubtedly not competent for the prosecution to adduce evidence tending to show that the accused has been guilty of criminal acts other than those covered by the indictment for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried but the court also recognised exceptions under which that evidence may be admitted for example where its sought to adduce that evidence to rebut the defence of accident or mistake or where its used to show that what happened was by design. 

R V Smith

The appellant was indicted for the murder of a mistress who was found drowned in a bath tab, it had been made to look like died n an epileptic fit. It was also established that on previous occasions other mistresses had died in similar circumstances after making favorable financial statements to the appellant, it was held that those pats similar acts could be admitted to show that the death was not an accident.