LAW OF EVIDENCE NOTES AND CASES IN TANZANIA

LAW OF EVIDENCE NOTES AND CASES IN TANZANIA

ADMISSIBILITY AND RELEVANCE OF EVIDENCE.(RES GESTAE)

The term res gestae is used to connote acts, declarations and circumstances constituting or explaining a fact or transaction in issue. It is therefore assumed that there is a transaction in issue or a principal fact. What constitute res gestae are those other facts that are in relationship with the fact in issue. Res gestae therefore refers to facts that are admissible in evidence as the surrounding circumstances of the event to be proved. The doctrine of res gestae is incorporated in the Evidence Act from section 4 to section 15. 

R V KURJI (1940) 7 EACA 58

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 were so interconnected that the wounding or stabbing of the deceased’s brother must be regarded 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 offense.  

ORIENTAL FIRE AND GENERAL ASSURANCE LTD V GOVENDA AND OTHERS.   (1969) EA 116

In the case, the appellant sued the respondents seeking to avoid motor vehicle policy which they had given the respondent on the grounds that the respondent had made a representation of fact that they had been involved in a motor accident with a vehicle owned and driven by the first respondent. The issue was whether the statements made after the motor accidents 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

PARTICULAR ASPECTS OF RES GESTAE.

• Facts which form part of the same transaction. 
• Facts which are the occasion, cause or effect of the facts in issue 
• Facts which show motive, preparation, previous or subsequent conduct
• Explanatory and introductory facts.
• Facts which show common intention.
• Contradictory or inconsistent facts
• Facts which show the state of mind or bodily feeling
• Facts which are evidence of similar facts or occurrences
• Facts which show the ordinary course of business

Now let us turn to each of the above aspects in some detail.

1.      Facts which form part of the same transaction. 

Section 5 of the Evidence Act provides as follows, “Facts which though not in issue are so connected to the fact in issue as to form part of the same transaction are relevant whether they occur at the same time or place or at different times and places.” See R V Kurji again.  

Under this provision, facts constituting the same transaction can only be introduced for purposes of explaining the fact in issue. Section 5 provides that time may not be important.  

Section 5 is applicable in civil and criminal proceedings and the issue of whether time is relevant or not will depend on the nature of the transaction. See, Oriental Fire and General Assurance Ltd V Govenda and others. 

2.      Facts which are the occasion, cause or effect of the facts in issue 

Section 6 of the Evidence Act provides, “Facts which are the occasion, cause or effect, immediate or otherwise of relevant facts or facts in issue, or which constitute the state of things under which they happened or which afforded an opportunity for their occurrence or transaction are relevant.”

Therefore, any fact which could be a cause to any fact in issue is relevant. In MAKINDI V R (1961) EA 327, 

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 it was held that that evidence was admissible and section 6 of the Evidence Act as explaining substantiating the cause of death as well as under sections 7 and 13 (now section 8 and 14) showing the motive of the appellant to revenge on the deceased and the appellants’ ill will towards the child.

In HARRIS V DPP (1952) AC 57

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 breaking 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 could have been admitted/proved and it was held that as regards the eighth breaking evidence of the previous seven breakings would have to be excluded because they occurred at a time when it hadn’t been proved that he was near the office. Court went on to say that the proper rule as laid down in the case of Makin V Attorney General of New South Wales. (1894) AC 57 The proper rule is that evidence tending to show that the accused has been guilty of criminal offences other than the one he is 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

Under section 6, facts that afford an opportunity to bring out facts in issue are very relevant. For example, time, place, physical presence, ability etc. In civil proceedings, this section may be used to show what caused the fact in issue and will assist the court in apportioning liability as well as help in the assessment of damages. 

3.      Facts which show motive, preparation, previous or subsequent conduct

Section 7 (1) of the Evidence Act provides as follows, “Any fact is relevant which shows or constitutes a motive or preparedness for any fact in issue or relevant fact.” 

Section 7 (2) provides that the conduct of any party … in any suit or proceeding or in reference to that suit or proceeding or in reference to any fact in issue to a suit or proceeding or relevant to it, and the conduct of any person to an offense against whom is a subject of any proceeding is relevant if that conduct influences or is influenced by any fact in issue or relevant fact and whether it was previous or subsequent to the fact in issue or relevant fact. 

Motive is what influences a person to act in a particular way.  In criminal law, motive is irrelevant, but in the law of evidence; motive may be relevant in so far as it establishes causation. Motive may be a fear or a desire to bring about a particular activity. Motive is a mental state and it’s normally derived from circumstances and relationships. It can also be established from a person’s words and moods. 

Under section 7, facts which constitute preparation are also relevant and admissible. Preparation refers to plan to bring about a particular event. Preparation refers to completing all the necessary preliqiusites to bring about the fact in issue. Section 7 also makes relevant previous and subsequent conduct. Previous conduct refers to conduct before the fact in issue is committed. It may include motive. It could refer to the means of bringing about the fact in issue. It could also mean previous attempts as well as declarations of intent. 

Subsequent conduct may explain the occurrence of an offense and may be used to implicate a person of a crime. Some cases, silence by the accused person, giving of false statements or evasive explanations and the absconding form jurisdiction may amount to subsequent conduct.  

4.      Explanatory and introductory facts.

• Section 8 of the Evidence act provides that facts necessary to explain or introduce a fact in issue or relevant fact, or which sup[port or rebut an inference suggested by a fact in issue or relevant fact or which establish the identity of anything or person whose identity is relevant or fix the time or place at which any fact is in issue or relevant fact happened, or which show the relation of parties by whom any such fact was transacted, are relevant in so far as they are necessary for that purpose. Section 8 introduces the following specific elements as relevant;

a)      Facts that explain or introduce a fact in issue.

b)      Facts which support or rebut an inference.

c)      Facts which establish identity where identity is in issue.

d)      Facts that fix time and place at which the relevant issue may have happened.

e)      Facts that show a relationship of the parties.

Now, let us look at each in detail.

a)      Facts that explain or introduce a fact in issue.

These are facts which have an element of showing how a particular fact is brought about. There are related to other parts of res gestae. Explaining could be by way of relation for example under the law of bankruptcy, absconding form jurisdiction or keeping house may explain the fact of bankruptcy. In cases of breach of contract, any letter expressing dissatisfaction may be preparatory or preparation for breach of contract. 

b)      Facts which support or rebut an inference.

A fact in issue may raise certain presumptions such which contradict or support an inference. Such presumptions are relevant. For example if a crime is committed in a room, the only person with the keys is inferred that he or she is guilty. If evidence is relayed to show that he or she was not around at the time of the crime, then that fact contradicts the presumption and is relevant. 

Section 8 and 10 are related because the latter generally reviews the facts that are inconsistent with any fact in issue or with the relevant fact. These provisions apply to both the prosecution and the accused.in 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 explanations on any other reason/hypothesis other than that of guilt. It is also necessary before drawing the inference of guilt drawing on circumstantial evidence to be sure that there are no co existing facts which would weaken or destroy the inference.     

In UGANDA V BARINDA 

The accused was indicted for kidnapping with intent to murder. Evidence showed that the deceased as 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 tend to weaken the evidence as to the cause of death

in  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 from 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 innocence of the accused and incapable of explanation upon any other hypothesis than that of guilt.

In 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 eth deceased. Evidence was also led to show that the deceased’s body had been found about a half a mile from the accused’s residence. That she had first been raped before being strangled and graduated tax tickets belonging to eth 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 raises an alibi, he doesn’t 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 eth 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 the murder.

Facts which establish identity where identity is in issue

Any fact which shows identity of anything is a relevant fact. Identification is an expression of opinion that a thing or person resembles another thing or person so much so that it is likely to be the same person or thing. Identification is the quality of sameness. When the process of identification is being conducted, a number of things are considered;

i)                    The person identifying must have seen or observed the accused.

ii)                  The identifying person must have had a settled impression in his or her mind.

iii)                The mental picture that a person has at the time of identification must be the same as when he or she saw the accused and should not be tainted with opinions of third parties or by other factors. 

iv)                 Time taken in identifying the accused is important for example if it is too short, it may not be adequate. 

v)                  There must be an opportunity allowing for proper identification.

vi)                The coincidence between the person identifying and the person being identified. 

Identification involves pointing out characteristics of a thing or person sought to be identified. For example, the manner of dress, sex of the person, the height of the person, age of the person, size, complexion, accent, handwriting, blood group, etc because it is easier to identify a person who has been known to the person identifying him or her. 

In MUSOKE V R

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

In 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 were difficult. In such a case, what is needed is other corroborating evidence whether direct or circumstantial.  

In KIBUTHU 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 eth accused on the scene of the robbery. He appealed against the decision basing that the identification was unsafe. Court held that the accused had not been recognized by the complainant and none of eth stolen property had been traced back and it could therefore be unsafe to rely solely on the fact that a 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. 

In  SHAMA AND ANOTHER V R

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

In NJIRU V R 

The appellant were tried 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 claimed that the robbers had spoken to them and he could register the appellant’s voice. An identification parade had also been carried out and on appeal by the accused, court held,

i)     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 the same age, height, appearance, class of life as the suspect and not that they should be identical. N respect of the 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. 

ii)   Where a witness says that a part 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 cold satisfy himself that he would not make any mistake identifying the particular suspect. 

In Uganda V Ntambazi, the following rules were laid out for the purposes of an identification parade;

1.   The accused must be informed that he may have a lawyer present.

2.   The officer in charge of the case even though may be present, does not carry out the identification.

3.   The witness does not see the accused before they parade.

4.   The accused is placed among at least eight persons of similar age, height and class of life and general appearance.

5.   The accused should be allowed to take any position he chooses and is allowed to change his position after each identifying person has left if he so desires.

6.   Care must be exercised so that the witnesses are not allowed to communicate to each other after they have been to the parade.

7.   Persons who do not have any business at the parade should be excluded.

8.   Careful notes should be made after each witness has been to the parade recording whether the witness identified the accused or not and other circumstances.

9.   If the witness desires to have the accused person to walk around, speak, put on a cap pr put it off. That should be done as a pre caution measure; the whole parade is asked to do those things so that the witness identifies the person.

10.              During the conduct of the parade the accused should be asked whether he is satisfied how the parade is being conducted where it is fairly conducted and a note of his reply should be made. 

11.              The witness should only be told that he will see a group of people who may or may not include the suspected person. This is to ensure that the witness is not influenced in any way.    

In TWEBAZE DRAKE V UGANDA

It was held that the intention of eth parade was to make sure that the ability of eth witness to recognize 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 the familiarity of the witness of the accused. If the circumstances are good then the danger of mistaken identity is reduced.

In 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 offense. Further, the evidence of the parade could only be accepted if the parade conformed to the established practice.   

c)      Facts that fix time and place at which the relevant issue may have happened.

Normally, the time at which a particular crime is committed may not be material although there are instances where time is important to establish an element of time. For example, burglary and house breaking. In the defense of alibi, time is important because a person cannot be in two places at the same time. Time will therefore be crucial if the accused person is to be placed at the scene of the crime. 

d)      Facts that show a relationship of the parties.

This may include blood relations or pedigree. It may include contractual relations between parties, may include personal relationships for example friendship or enmity. Hatred, even love fiduciary relationship like that between lawyer and client, doctor patient, clergy congregation etc…

5.      Facts which show common intention.

Section 9 of the Evidence Act provides that where there is a reasonable ground to believe that two or more persons have conspired together commit an offence or an actionable wrong, anything said, done or written by anyone of those persons in reference to their common intention, after the time when that intention was first entertained by anyone of those persons is a relevant fact as against each of the persons believed to be conspiring as well as for the purpose of proving the existence of the conspiracy and for the purpose of showing that any such person was party to it. This relates to conspiracy where two or more persons agree to commit a crime it becomes a crime at the time of agreement under this section. People who conspire are said to have common intention and thus provision would show that conspiracy existed and the person was party to the conspiracy.

6.      Contradictory or inconsistent facts

Facts not otherwise relevant are relevant if they are;

a)      Inconsistent with any fact in issue or relevant facts

b)      If by themselves or in connection with other facts they make the existence or non-existence of any fact in issue or relevant fact highly probable or improbable.

Section 10 introduces a negative element in that facts which negate or affect improbability of nay fact in issue are relevant. Evidence of inconsistent facts can be derived from a number of factors for example, the defense of alibi is inconsistent with allegation that the person who committed the offence where that offense requires physical preference. 

In UGANDA V DISMAN SABUNI

It was held that it’s well established law in Uganda that when an accused sets up an alibi which is technically a defense, the accused does not have any responsibility of proving the alibi. The prosecution must negative the alibi by evidence adduced before the defense is put forward or by calling witnesses to give evidence in rebuttal. If on the full consideration of the whole of the evidence put before the court, it is 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. It was established that only a grave inconsistency is not satisfactorily explained will usually result in the evidence of the witness being rejected. Minor inconsistencies will not usually have that effect unless they point to deliberate untruthfulness.    

Minor inconsistencies do not usually have the effect of leading to the rejection of the witness’ evidence unless they point to deliberate untruthfulness. Another example of inconsistency is the fact of impotence especially where there is an allegation of rape or allied offences. In matrimonial causes, wherein the issue of paternity is raised, the fact that a husband has had no access to the wife for a period falling outside the gestation period; it becomes relevant if it’s alleged that you have fathered the child. 

In UGANDA V 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 inconsistency have no adverse effect on the testimony unless it points to deliberate untruthfulness.

7.      Facts which show the state of mind or bodily feeling

Section 13 of the Evidence Act provides that facts showing the existence of any state of mind such as intention, knowledge, good faith, negligence, rashness, ill will or good will towards any particular person or showing the existence of nay state of body or bodily feeling are relevant when the existence of any such state of mind with body or bodily feeling is in issue or relevant. The person may bring about particular acts or commit particular facts because of his or her state of mind. In some cases, the mental element whether in crime or tort is a relevant consideration. 

Under this provision, evidence of which a state of mind can be inferred is often and therefore is admissible under section 13. Sanity is important in criminal cases to prove guilt or otherwise, it is also relevant to determine whether a person can be party to a trial. It is also important in succession cases where the sanity of a testator may be called in question and may be used to challenge his or her will. Knowledge is important in tort and contract because it helps in determining liabilities for example the knowledge that the contract is being made fro an illegal purpose is a relevant fact. In tort, where the owners of an animal knows that the animal has the propensity to bite even though its not naturally dangerous he is liable it bites any one.

Intention is relevant in criminal and civil cases, for example threats before the actual commission of an offense may reflect an intention.

8.      Facts which are evidence of similar facts or occurrences

This is provided for under section 14 which states that when there is a question of whether an act was accidental or intentional or done with a particular knowledge or intention, the fact that such an act formed part of a series of similar occurrences in each of which the person doing the act was concerned, is relevant. All evidence which that the act was accidental or not is admissible. Evidence of similar facts generally refer to the rule that court can use past similar occurrences relating to a particular person to establish whether that person is guilty or not or liable in civil actions or not. 

This rule assumes that generally people do not change their habits so that if they have done similar acts in the past, they are likely to repeat such acts. This general rule under similar facts is exclusionary, in other words, it excludes evidence of similar acts recognizes exceptions. Evidence of past similar acts is not admissible except to prove that an act was not accidental.

The general principle was laid down by the Privy Council in Makin V Attorney General, where court stated that it’s 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 court also recognized exceptions under which that evidence may be admitted for example where its sought to adduce that evidence to rebut the defense of accident or mistake or where its used to show that what happened was by design. 

In 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 he died in an epileptic fit. It was also established that on previous occasion other mistresses had died in similar circumstances after making favorable financial statements to the appellant, it was held that those past similar acts could be admitted to show that the death was not an accident. 

9.      Facts which show the ordinary course of business

This is provided for under section 15 which provides that, when there is a question of whether a particular act was done, the existence of nay course of business according to which it naturally could have been done is a relevant fact. Here, there are two facts under investigation;

a)      Act done which is being investigated

b)      There is the ordinary or natural way through which it would have been done.

ADMISSIONS AND CONFESSIONS 

The substantive law on confessions in Uganda is covered by sections 23 to 29 of the Evidence Act. The term confession is not defined in the act itself but according to the case, Swami V King Emperor, a confession generally means the statement by an accused person acknowledging guilt of an alleged crime. Lord Atkin in the case stated that a confession must admit in term an offense or at any rate substantially the facts that constitute the offense.

In UGANDA V MUTAHANZO

The accused was indicted for murder. Together with the deceased they had been drinking waragi and on their way home engaged in an argument when the accused asked the deceased to give him some waragi but the deceased refused. During the ensuing scuffle, the accused stabbed the deceased and when apprehended made a confession and court held that a confession connotes an unequivocal admission of having committed an act which in law amounts to an offense or at any rate admits the facts that substantially constitute a crime

In ANYANGU V R

It was held that a statement is not a confession unless it is sufficient of itself to justify the conviction of the person; making it of the offense he or she is being tried. 

Majorly, there are three issues to answer in determining the admissibility of a confession; Who can take down a confession? What is the value of a confession? What are the consequences of making a confession?

Who can take down a confession? 

Before 1971, a confession could be made before a police officer of the rank of corporal or above.  In the 1991 amendment, it was made a requirement that a confession be made to a police officer in the presence of a magistrate. Later, the law was further amended to read as follows; “No person shall make a confession while he or she is the custody of a police officer shall be proved against such persons unless it’s made in the immediate presence of;

a)      Police officers at or above the rank of Assistant Police Inspector

b)      Magistrate and 

No person shall be convicted of an offense under paragraph 1unless of confession made under that paragraph is corroborated by material evidence supporting the confession implicating that person.  

In WASSWA V UGANDA

It was held that a confession made to a police officer under the rank of Assistant Inspector of police was inadmissible as it contravenes section 23 of the Evidence Act. 

BERONDA V UGANDA (For the rationale of the changes in the law)

Court gave the rationale of the changes in the law on who can take a confession as follows; “the law was changed because there were frequent submissions some made without justification that some confessions had been obtained by police officers by intimidation or even force. The new law is intended to ensure that confessions relied on are truly voluntary. 

Under section 24 of the Evidence Act, a confession made by the accused person is said to be irrelevant if the making of the confession appears to the court having regard to he state of mind of the accused and to all circumstances have been caused by any violence, force, inducement calculated in court’s opinion to cause an untrue confession to be made, the law therefore requires that all confessions be made voluntarily. 

In R V SYKES,    

It was held that court must decide bearing in mind the state of mind of the accused, whether there was any threat or inducements of violence so that if any of those operated on the mind of the accused, such a statement would be considered involuntary.

In ABASI KANYIKE V UGANDA

It was held that the voluntariness or otherwise of a confession can only be determined at the trial within a trial. 

In NJUGUNA AND OTHERS V R    

Court held that it is the duty of every judge ad magistrate to examine with the closest care and attention all the circumstances in which the confession has been obtained by an accused person particularly when that person has been in police custody for a long time before his or her confession.

In R V OKELLO

The appellant intended to have sex with a woman and after negotiations agreed and identified a place with good grass. Instead of lying down, the woman who wore a grass necklace clung to a tree at which point the accused tried to pull her down and she fell down and died. When he was arrested, he was told by the authorities; “confess and your punishment will be light.” At which point he confessed and the confession was used against him at the trial. On appeal, it was held that the confession was inadmissible because it was made by way of inducement of a temporal nature offered by a person in authority.                      

In MWANGE S/O NJOROGE V R.

The appellant was convicted of unlawful possession of a homemade fire arm. The police officer who interrogated him did not caution him and kept questioning every fifteen minutes, “you had better think whether you are going to tell me or not.” It was held that these words constituted a threat and would render inadmissible any confession got thereafter.  

 Section 25 of the evidence Act is an exception of section 24 and states that if the confession as referred to in section 24 is made after the impression caused by any such violence, force, threat, inducement or promise has in the opinion of the court been fully removed, then it is relevant and admissible. 

In ARIKANJERO DAU V R,  

A six year old girl was left by her mother with the aplenty and she disappeared. Her body was found the following day in a river. Medical evidence showed that she had been sexually assaulted prior to death. The appellant was arrested, taken to the river and asked by the police officer to point out where he had pushed the deceased into the river and he did so. The following day, the police officer said to the accused the following words; “You are going to tell me what you said yesterday but I am not going to force you to do so”. It was held that the above words did not constitute an order or threat to the mind of the appellant as they were tempered by the words that followed and nay possible threat they might have had on the aplenty had been dissipated by the words of caution that followed.   

In R V ZAVEKAS,

The defendant was charged with theft of a coin box from a telephone booth. Before the trial, he asked the police officer; “If I make a statement, will you give me bail now?” the police officer replied in the affirmative and the defendant made a written confession on the basis on which he was later convicted. On the issue of whether that amounted to inducement by a person in authority, it was held that it made no difference that the defendant and not the police officer had raised the question of bail but the statement was made as a result of an inducement by a person in authority. 

In IBRAHIM V KING

The appellant was charged with murder. At the trial, evidence of an officer in command was admitted that ten to fifteen minutes after the murder, he had said to the appellant who was then in custody; “why have you done such a senseless act?” a question to which he replied, “some three or four days he has been abusing me, without doubt, I killed him.” The issue was whether this confession was voluntary. It was held that the confession was voluntary statement in the senses that it was not made in the fear or prejudice or hope of advantage. 

The law is that the court has discretion and it bears the duty to determine whether an influence has been fully removed. Court look at the circumstances of the case and the nature of the case, person being threatened to determine whether section 25 will apply or not.

In  BAGAGA V UGANDA., the appellant appealed against a conviction for murder on grounds that his confession was involuntary. It was contended on his behalf that he had been tortured by the police ad that he had been in custody for a long time. It was held that the appellant’s confession was voluntary and although he had been beaten prior to his confession, the beating was not connected to the confession since the LDU  who arrested him did not know at the time that the appellant was a suspect in a murder case, he was only arrested for having escaped from prison.

Where a confession, otherwise relevant it does not become irrelevant merely because it was made under a promise of secrecy, or in consequence of a deception practiced on eth accused person for the purpose of obtaining it or when he or she is drunk, or because it was made in answer to a question which he or she need not have answered. Whatever may have been the form of this question, or because he was not warned that he was not bound to make a confession and that evidence of it might be given against him or her. See section 26 of the Evidence Act.   

Repudiated or Retracted confessions. 

Repudiation means that the accused denies having made the statement. Retraction on the other hand means that although the accused admits making the statement, he now wishes to challenge the truthfulness or the voluntariness for that statement. These two are common features of Ugandan criminal justice system because of the poor methods used to extract confession from the accused. For the distinction between retracted and repudiated confession,

In  TUWAMOI V UGANDA

Court held that the basic distinction between a retracted and a repudiated confession is that a retracted confession occurs when the accused person admits that he made the statements recorded but now seeks to take back what he said generally on the grounds that he had been forced or induced to make the statement. In other words that the statement was not voluntary. A repudiated statement is one which the accused avers that he never made

It is a well established rule of prudence that court shall not act when a retracted or repudiated confession has not been corroborated in some material particulars or is not satisfied about its truth.

In KASULE V UGANDA

Where the accused retracted his confession, court held that a trial within a trial should have been held to establish the truth within the confession. It is established law that a retracted confession will not normally support a conviction unless it is corroborated by other evidence but the court may do so if it was fully satisfied with the circumstances that the confession is true.   

 In AMOS BIRUNGE V UGANDA

Court held that it is established law that when the admissibility of an extra judicial statement is challenged, then the accused must be given a chance to establish by evidence his or her grounds of objection through a trial within a trial. The purpose of a trial within a trial is to decide upon the evidence of both sides whether the confession should be admitted. 

In KATO V UGANDA

Court held that a retracted confession had to be treated with caution and before founding a conviction on it, the trial court has to be satisfied that the confession was true. Usually, such a confession will be acted on if corroborated in some material particulars by independent evidence. However, such corroboration is not necessary in law and the court could act on the confession alone if it is fully satisfied that the confession is true. 

In THIONO V R

Court held that there is no rule that a court cannot act on a retracted or repudiated confession unless corroborated in a material particular. What exists is a rule of prudence that a court should be cautious to act on such a confession unless it is corroborated in material particulars. 

The Process of Taking down a Confession.

Favorable circumstances 

The accused person must feel free at the time when he is asked to make the confession. There must be a caution administered. You must ascertain the language in which the confession is to be made reason   being, one may require an interpreter. Language is also important because the confession is taken down verbatim. 

After the statement has been recorded, it should be read back to the accused to confirm that that is what he stated. After confirmation, the accused is asked to signor thumbprint as a sign of approval. The person taking down the confession should also sign the date of the confession and if it is a magistrate, it may be prudent that they use a court seal. It is important to note that in this session, the accused should not be cross examined. 

On the issue of caution; See R V Kaggwa where the recording officer failed to administer a caution and it was held that there was insufficient compliance with the rules of taking down confessions therefore, the statement was inadmissible.  

 For an elaborate explanation of the process and the precautions to be taken in taking down a confession, see Uganda V Doi Wabwire 

Confessions against co accused.  

According to section 27 of the Evidence Act, when more than one person are being tried jointly for the same offense, and a confession made by one of those persons, affecting himself and some other of those persons is proved, the court may take into consideration such confession s against that other person as well as against the person who makes the confession. This covers confessions against co accused. 

Where the confession by one person is proved, found relevant and as an indication of implicating another (co accused) such confession may be considered against both.

The test is whether the confession fully incriminates the maker. In other words, it does not shift the blame to the co accused. For the rationale of this test, see R V WANDINGOMBE where court said that by making a real and qualified confession, the person who makes it has exposed himself to the pains and penalties described for the offense and this is the guarantee for the truthfulness of the statement.  

On the value of a confession against co accused, see Uganda V Magayi and Batara V Uganda. 

In UGANDA V MAGAYI 

It was held that evidence of a confession against co accused is not only accomplice evidence but is also evidence of the weakest kind and can only be used as tending assurance for other evidence against the co accused. 

In BATARA V UGANDA

The trial judge in convicting the appellant fur murder, relied on a statement by the co accused implicating him, the judge treated that evidence as irresistible evidence of guilt. It was held that the confession against the co accused is only of slight evidential value and can only be used to give final assurance to an already strong case.   

On why evidence of a confession against co accused is evidence of the weakest kind, see Uganda V
Sebuguzi. 

In UGANDA V SEBUGUZI,

Court held that the reason why this evidence is considered evidence of the weakest kind is that it is not only hearsay but it is also evidence of such a nature that the accused cannot test its worth in cross examination of the maker against him. 

Information leading to discovery. 

Per section 29 of the Evidence Act, notwithstanding sections 23 and 24, when any fact is deposed to as discovered in consequence of information received from a person of any offence, so much of that information, whether it amounts to a confession or not as relates distinctly to the facts thereby discovered may be proved. Sometimes, a statement may not have value of convicting the maker with regard to the alleged offense but may have the value of assisting the police to discover other crimes. The issue then is whether this statement may be used for another purpose other than the particular purpose for which it was obtained. Under this provisions, that issue is answered in the affirmative.

In JOHN ROBERT EYIRU V UGANDA

The appellant was convicted for murder; it was held that under section 29, it had to be strictly interpreted because it could in certain circumstances lead to the introduction of a confession which would otherwise be inadmissible. All that could be introduced under this section was such part of the statement as led to the discovery of something and no more.  

In BIREMBO V UGANDA.

The appellants were jointly tried and convicted for the offense of murder. The deceased’s body and some money belonging to the deceased were discovered on the information obtained from the appellant. it was held that the information to the police by the appellant was incriminatory but was also information leading to the discovery of the act and was therefore admissible under section 29 notwithstanding that it was made to a police constable. 

       

HEARSAY EVIDENCE 

Hear say evidence has been defined sometimes as “third party’s assertions” narrated to court by a witness for the purpose of establishing the truth of that which is the assertion. A more precise description of hearsay evidence was made in the case, Subraminium V Public Prosecutor, where it was held that hearsay evidence is an assertion of a person other than the witness testifying offered as evidence of the truth of that assertion rather than as evidence of the fact that the assertion was made. Court added that it is not original evidence. The rule of hearsay evidence is therefore exclusionary in the sense that it exclude4s hearsay evidence in the course of proceedings.       

According to section 59 of the Evidence Act, oral evidence must in all cases whatever be direct, that is;

a)      If it refers too a fact that could be seen, must be the evidence of the witness who says he or she saw it.   

b)      If it refers to a fact that could be heard, must be the evidence of a witness who says he or she heard it.  

c)      If it refers to a fact that could be perceived, by any other sense or in any other manner, must be the evidence of a witness who says he or she perceived it in that sense or any other manner. 

d)      If it refers to an opinion, on the grounds of which that opinion is held, it must be the evidence of a person who holds that opinion on that ground. 

Per section 59, only direct evidence is admitted in court thus other evidence is hearsay and therefore inadmissible.

In R V GIBSON

The accused was inducted for willful wounding. It was alleged that the accused had thrown a stone at the victims house and immediately after the stone had hit the victim, a passer by woman pointed at the accused’s house and said that the person who had thrown the stone had gone inside and it was only the accused who was found inside the house and was prosecuted and convicted. He appealed on the grounds inter alia that on evidence of this lady who herself had not been called in as a witness in court should not have been admitted. Court held that the evidence was hearsay because the lady had not been called to testify and the evidence should not have been admitted. Court further stated that it has been court’s mandate to exclude hearsay evidence from the proceedings right from the beginning but in practice parties have a duty to raise objections against certain evidence and where they fail to do so, they may be deemed to have waived their rights. 

In SPARKS V R

The appellant was convicted of indecent physical assault of a girl under the age of four. Immediately after the assault, a child who was not called as a witness at the trial told her mother that it was a colored boy who had done it. The appellant was a white man. This evidence was objected to on grounds of hearsay but court held that the mother’s evidence of what her daughter told her was hear say, the child not having been called as a witness there was no basis on which her statement could have been admitted.  

For the rationale for the rejection of hearsay evidence, See Marshall V R and State V Medley Court.  

In MARSHALL V R     

It was stated that the general rule is that hearsay evidence is not admissible for the reason that such statements are not subjected to the ordinary tests required by law to ascertaining their truth. That is, that the author of the statement is not exposed to cross examination in the presence of penal sanctions of an oath. There is no opportunity to investigate his character and nature and neither is his demeanor subject to observation.   

In STATE V MEDLEY COURT  

Court stated that the rules regarding hearsay have been adopted to guard against the manifest danger to human life that is so liable to arise from the admission as evidence of declarations made not under the sanction of an oath and not offering to the party affected by them an opportunity of cross examination. All attention to omitted facts that if stated, modify or completely overturn the inference made from the declarations made. These rules have been found so essential as safeguards in the investigations of truth that they have become fundamental in our system of jurisprudence. No matter how convincing the testimony may be to an intelligent mind, unless unrepresented under fixed rules, it can not be received

Exceptions to the Hearsay Rule.

Despite the existence of reasons which justify the exclusion of hearsay evidence, there are situations where practice has shown that wholly excluding such evidence could be unfair and would lead to injustice. Fro this reason therefore, common law developed a series of exceptions to the rule against hearsay and many of these have been codified in the Evidence Act. These are found in section 30 of the Evidence Act.   

Section 30 is to the effect that statements written or verbal of relevant facts made by a person who is dead or who can’t be found or who has become incapable of giving evidence or whose attendance can not be procured without an amount of delay or expense which under the circumstances of the case appears to be unreasonable, they are relevant to cases falling under section 30. See Muhammad Taki V R, Thornhill V Thornhill, Commissioner for customs and Excise V Panachand. 

In MUHAMMAD TAKI V R          

Counsel applied that evidence be admitted by way of exception instead of bringing a witness form Switzerland to confirm that he sold the watches to the appellant, court said that it might have been better if the learned magistrate had had evidence before him of the conditions which made section 30 of the Evidence Act applicable. But he was entitled to take judicial notice of the fact that Switzerland is in Europe and Kampala is in Uganda and it seems to have been satisfied that the attendance in Kampala of the witness form Switzerland could not be procured without an amount of delay or expense which in the circumstances of the case appeared unreasonable. 

In THORNHILL V THORNHILL            

The trail judge of the lower court was of the view that air travel is very rapid and so the witness could fly in and the cost and inconvenience of bringing the witness form the United Kingdom would not be great in this era of quite inexpensive travel. On appeal, judges agreed that air travel is rapid but not inexpensive and could cause serious financial embarrassment and hardship to the parties. They thus held that the judge misdirected himself in dismissing the application that he should have been granted both on the ground of inconvenience and expense and on the ground that the court would not be likely to derive any advantage from the presence of the witness.  

In COMMISSIONER FOR CUSTOMS AND EXCISE V PANACHAND

Court said that may be court might take judicial notice of the distance between Nairobi and The Hague and inferred that bringing of a witness to Nairobi from The Hague in relation to this particular case would be unreasonable. That in Taki V R, court only suggested but didn’t decide that such an approach would be legitimate. 

Dying Declarations 

When a statement is made by a person as the cause of his or her death or as any of the circumstances of the transaction which resulted into his or her death, in cases in which the cause of death of that person comes into question and the statements are relevant whether the person who made them was or was not at the time when they were made of eth proceeding which the cause of his or her death comes into question. It is a statement uttered by a since deceased person; the purpose of which is to establish the cause of death of that person. Ordinarily, this would amount to hearsay evidence because the maker is not before court. However, such evidence is admitted as an exception to the hearsay rule under section 30 of the Evidence Act. See Sabiiti Vincent V Uganda                                                                                                                                               and R V Woodcock 

In SABIITI VINCENT V UGANDA     

Court said that a dying declaration is admissible evidence but caution must be taken when relying on it to convict because such evidence lacks cross examination. In addition, the circumstances under which the dying declaration was made must be examined so as to determine whether the declarant was able to see the accused. 

In R V WOODCOCK

It was stated that the deceased must have lost all hope of living that if at least he had a chance however remote, then it cannot be admitted. The rationale being to make sure that ii is the moral and spiritual compulsion which has taken over and that therefore the person doesn’t tell lies. 

Elements of a Valid Dying Declaration 

i)                    The maker must have died. 

ii)                  Statement must be complete.

iii)                It should be a free expression of the deceased.

iv)                It should be corroborated. 

v)                  The issue of time.

See; R V Pike,Waugh V R, Charles Daki V R, Uganda V Alfred Oyaka, Uganda V Rutaro, Kalisti Sebugwawo V Uganda, R V Kabatereine,Barugahare V R.  

In R V PIKE

Court decided that a child of tender age could not make a dying declaration. His statement was incompetent as a dying declaration because the maker was not capable of giving evidence in court as a witness.

In WAUGH V R                                                                                                                                                                      

The deceased was allegedly shot by the appellant. Before he died, he was found conscious and said that he was shot innocently but when he was about to give the reason why the appellant had a grudge against him, he fell into a coma from which he never recovered. The issue was whether his statement was admissible as a dying declaration and it was held that it could not be admitted because on its place, it was incomplete and no one could tell what he was about to add. 

In CHARLES DAKI V R                                                                                                                                                                

This was a murder case where the deceased was admitted in hospital. The police officer went to examine him, during which examination, he was able to say the name of the person who shot him but in the course of the interview, the doctor came and interrupted the interview. The deceased died before completing his statement. On whether the statement was admissible as a dying declaration, it was held on the place and the footnote thereto that the deceased was interrupted by the doctor yet he might or might not have added something. Accordingly, on the authority of decided cases, the statement was inadmissible. Court went on further to say that it is true, that in the earlier case, the deceased fell unconscious having begun but not completed the sentence but the principle applies where although there was apparently no unfinished sentence, it is not established that a declarant said all he wished or intended to say before the doctor intervened. 

In UGANDA V ALFRED OYAKA                                                                                                                                                       

The issue was whether there was sufficient corroboration of a statement made by a deceased pinning the accused for sexual assault. The woman (while pregnant) was allegedly pierced by a man. In her dying declaration, she alleged that she had been assaulted by the man. The prosecution sought to use it as corroborative evidence. Court held that the law regarding dying declarations is that to base conviction from it, the declaration must be satisfactorily corroborated. Corroboration is an independent form of proof evidence which confirms the complicity of an issue of an offence. Medical evidence showed that the deceased suffered a ruptured uterus and on the evidence of the doctor showed that the rapture could have been caused by violence or trauma on the abdomen on being hurt. This was consistent with the violence meted out by the accused to the deceased. Therefore, this medical evidence accorded the necessary corroboration to the dying declaration. 

In UGANDA V RUTARO                                                                                                                                                          

Court said that they could not base a conviction on a dying declaration unless it was satisfied that the declaration was truthful and satisfactorily corroborated.

In KALISTI SEBUGWAWO V UGANDA

On sufficiency of corroboration, court held that the repetition of a dying declaration by different witnesses is not enough corroboration. 

In R V KABATEREINE                                                                                                                                                   

Two days before the deceased was burnt to death, she had made a statement to her head man that the accused had threatened to burn her in her house because she had caused the death of her father by witchcraft. The issue was whether the statement to the headman made two days before was a rightly admissible dying declaration as it was directly related to the occasion of the death of the deceased. The time at which the statement was made was immaterial.  

In BARUGAHARE V R  

A period of six months had elapsed thus court had rejected a statement made as a cause of fear to the deceased holding that there must be a proximate relationship between the statement made and the death itself. In this case, it was a mere fear of death thus inadmissible.

Statements made in Ordinary Business.   

According to section 30(b), when the statement was made by such a person in the ordinary course of business and in particular when it consists of any entry or memorandum made by him or her in books kept in the ordinary course of business or in the discharge of professional duty or on acknowledgement written or signed by him or her of the receipt of money, where securities or property of any kind or of a document used in commerce written or signed by him or her or of the date of a letter or other document usually dated, written or signed by him or her.  

The statement must have been made before the controversy arose. This derives from the Latin maxim, “ante litem motum” – declaration must have been made before the dispute arose. It should not have been in anticipation of its use in court. 

Records must be made by someone who is under duty to make them and such statements are admissible because it is felt that they are most probably true since people did not anticipate that there will be a point in issue in litigation. Again, since they are made in the ordinary course of business, the person makes them truthfully. 

Section 30(b), should be looked at together with section 32 on entries in books of account regularly kept in the course of business which are relevant when they refer to the matter which court is interested in. 

Section 33 is about entries in public reports made in the performance of duty should also be looked at in light of section 30(b).  

Statements against Pecuniary or Primary Interests of the Maker. 

Section 30c) of the Evidence Act stipulates that when the statement is against the pecuniary or proprietary interest of a person making it, or when it could expose him or her or would have exposed him or her for a criminal prosecution or to a suit for pursued damages. See R V O’Brien. Dias V R

In R V O’BRIEN.  

There were two accused persons. O’Brien and Jensen who were jointly charged for possession of narcotics. O’Brien submitted himself for trial but Jensen fled the country. After O’Brien’s conviction, Jensen returned and later made a statement while saying that he alone was the perpetrator of the crime and died soon. Thereafter O’Brien applied to court to review his conviction on the basis of the statement by Jensen. However, his application was denied contending that the maker was already aware of the proceedings and that the statement would be calculated to save his friend. 

In DIAS V R

A letter was written by one Thomas, to the effect that the accused had instructed him to pay false pay sheets (ghost employees). It came out at the trial that when Thomas wrote that letter, he only intended to be promoted at work. Court held that much as it exposed him to criminality and was against his own interest, he made it without full knowledge of its consequence except for purposes of advancement at work.

Public Rights and Records. 

Section 30(d) of the Evidence Act provides, “When a statement gives the opinion as to the existence of any public right or custom, or matter of public or general interest of the existence of which if it existed, he or she would have been likely to be aware and when that statement was made before any controversy o the right, custom or matter had arisen.

Pedigree Relations.   

Section 30 (e) of the Evidence Act provides that when the statement relates to the existence of any relationship by blood, marriage or adoption between persons as to whose relationship by blood marriage or adoption the person making the statement had special means of knowledge and when the statement was made before the question in dispute was raised, then that statement can be admitted in court in evidence.  

Private Rights and Family Affairs. 

When the statement relates to existence of any relationship by blood, marriage or adoption between persons deceased and is made in any will or dead relating to the affairs of the family to which any such deceased person belonged or in any family pedigree or upon any tombstone family portrait or other thing on which such statements are usually made and when the statement was made before the question in dispute was raised.                                     See Haines V GuthrieSee also sections 30(g) and (h) of the Evidence Act for other exceptions. 

In HAINES V GUTHRIE   

This was a suit for the price of goods sold. The defendant who at the time of the sale was an infant could not b e held liable in law. The issue before court was the defendant’s date of birth and for him to prove his infancy he brought an affidavit sworn by his father in another matter where he had put down the date of birth of the defendant. Court rejected this statement on grounds that it could not establish the relationship of family descent.  

OPINION EVIDENCE

An opinion is a statement as to what one thinks about an alleged fact. It could be as to whether that fact exists of not, who caused it and why it could have happened. Generally, matters of opinion are conclusions or inferences drawn by a person in reference to particular instances. The general rule is that opinions of inferences as to the existence of facts in issue or relevant facts are inadmissible. 

The Rule against Opinion Evidence.    

The rule is much narrower in its scope than the term opinion in its ordinary sense. Thus while the general rule is that opinion evidence is inadmissible, there are some instances where it can be admitted as an exception between the general rule and this is provided for in section 43 – 49 of the Evidence Act. 

Expert opinion. 

Section 43 of the Evidence Act provides for opinion of experts according to which court has to form an opinion upon a pint in foreign law or of science or art or as to identity of handwriting or finger impressions. The opinions upon that point of persons specially skilled in that foreign law, science or art or impressions as to identity of handwriting or finger impressions are relevant facts and such persons are called experts. 

Who is an expert?  

Educational background. Ordinarily, for a person to be judged as an expert, he should have an educational background which enables him or her to become conversant with the subject matter that he is expected to testify on and usually before evidence of such person is admitted, his educational background is generally first pit on record.

In R v Oakley [1979] 70 Cr. App Reports 7

Facts: A police man was called as an expert in an accident. He had worked 15 years in road traffic service, taken as a qualifying exam in accident investigation and it was shown that he had investigated more than 400 cases of traffic accidents.

Held: He qualified as an expert.

In Uganda v Ogwang

Facts/ Held: A medical assistant was held to be an expert for purposes of classifying harms as dangerous or not dangerous and injuries as fatal or minor. In ordinary practice, such are the duties of a medical doctor. This case also considers judges as experts.

Experience. Court will consider the experience of experts even when they did not acquire formal training. Experts may therefore not be specialists in a particular field   but may just be skilled or experienced in the branch of knowledge even though the exercise of such skill or acquisition of such knowledge is not part of their general occupation. 

In R v Silverlock

Facts: There was a dispute as to the identity of handwriting of the accused. A solicitor was called to testify to that identity. His relevance in the matter was that he’d been in the habit of perusing old parish bills and registers drafted by various individuals for over 30 years. He claimed to be an expert as to handwriting. An objection was raised claiming that since the solicitor had no formal training in the field of handwriting, he couldn’t give expert evidence.

Held: Court allowed the solicitor to testify and held that his experience in perusing documents partly for professional use and partly for private purposes enabled him to acquire experience in handwriting although he hadn’t acquired any formal education.

In R v Gatheru

Held:

“Court has on several occasions said that when a trial court has to form an opinion upon the question whether a home-made gun or part thereof, is a lethal barrelled weapon, it must have the assistance of expert opinion that we think that such special skill is not confined to knowledge acquired academically, but would also include skill acquired by practical experience that in the present circumstances, even though a police officer employed on operational or investigation work, acquires a sufficient practical knowledge to qualify him as an expert, his competence as an expert should in all cases, be shown before his testimony is properly admitted.  ”

Mohammed Ahmed v R

Court in regard to the issue in the Gatheru case held:

“The rule in Gatheru requiring competence of a witness to be established was one of practice, omission of whose observance would not in all cases, render the evidence inadmissible. That rule will be applied more strictly in criminal than in civil proceedings where it can be overlooked.

Value of expert evidence. 

Expert evidence is not binding on court. It is only to assist court. 

In Uganda v Ntura

Facts: There was an accident caused by a Uzi gun. In a bid to establish the characteristics of a Uzi gun so as to show if it could have caused the accident, a police officer was called to testify as an expert on guns. It was established that he was an expert since 1949 and that he’d had a habit of training on firearms.

Issue: Whether the accident could have been caused by such a gun?

Held: The policeman’s professional experience coupled with some specialised study of firearms qualified him to be an expert witness in the matter of guns.

In Mugisha v Uganda

Facts: There were 4 counts of issuing threats with murder and demanding menaces. There was evidence of a handwriting expert which sought to link the accused with the offence, but this evidence was not scrutinised by the trial magistrate. The appellant was convicted.

Held: An expert’s opinion is opinion evidence and it can rarely, if ever, take the place of substantive evidence that opinion is only a piece of evidence and it’s for the court to decide the issue one way or another upon such assistance as the expert might offer. Although the general rule requires an expert to state in evidence the grounds for his opinion, there may be cases in which it is necessary for the expert to lay a proper foundation for his opinion.

Under section 49, before an opinion is admitted the grounds on which it formed are relevant. Court must also give reasons if it is to reject expert opinion. Under section 44, any facts not otherwise relevant are relevant if they support or are inconsistent with the opinions of expert where these opinions are relevant. “Do not take opinion evidence on its own but take it in relation to other facts.” See Walusimbi V Standard Bank, De Souza V Sharma,                                                                                                     Charles Alfred Sutton V R,R V Smith.  

In De Souza v Sharma

Issue: Whether the construction board had a right to reject or question expert evidence?

Held: Court considered the evidence of the expert witnesses and rejected their estimates as in the view of the board, they were very high. Referring to s.49 at the time, court said that had the board done this without giving reasons, their rejection might have been unjudicial, but gave it 2 reasons based on lower figures admitted by the appellant. The court is not bound to accept the evidence of experts if it finds good reason for not doing so.

In R v Smith

Facts: The appellant was charged with assaulting a person who interalia, put up a defence of automatism (sleep walking). 2 psychiatrists brought evidence that he suffered from automatism.

Issue: Whether the psychiatrists’ expert evidence was relevant to determine automatism?

Held: Since the question whether the applicant had acted in a state of automatism was in issue and since automatism was a condition outside the experience of the ordinary lay person, the psychiatrists’ expert evidence was relevant and necessary to help the jury determine whether the applicant’s defence of automatism was valid. In reference to s.44, the judge had rightly exercised his discretion to permit the cross-examination of the appellant and the psychiatrists to be called as witnesses.

Opinions of ordinary witnesses

Evidence of ordinary witnesses is provided for under sections 45 to 48 of the Evidence Act. Under section 45, when the court has to form an opinion as to the person by whom any document was written or signed, the opinion of nay person acquainted with the handwriting of a person by whom it is supposed to be written or signed but it was or was not written by that person is a relevant fact. 

A person is acquainted with the handwriting of another person where he or she has seen that person write or when they have received documents purporting to be written by that person in answer to documents written by themselves or have in the ordinary course of business, documents purporting to be written by that person have been habitually submitted to them. 

Section 46 states that opinion as to the existence of right or custom may be given by someone who is likely to be knowing of its existence. 

Section 47 states that opinions as to usages or tenets of anybody of men or family or opinion as to the constitution or government or of any religious or charitable foundation or opinions as to the meaning of words or terms used in particular districts or by particular classes of people, the opinions of persons having special means of knowledge thereon are relevant facts.

Section 48 states that opinions on relationship are relevant when court has to form an opinion as to the relationship of one person to another the opinion of nay person who is a member of the family or who has special means of knowledge of the subject is relevant.   See Case V Ruguru

In Case v Ruguru

Held: Special expertise was not needed to prove the existence of a marriage in the Embu custom, however, you must be likely to know, e.g. by being a member of that tribe or group of people. It must have been in existence for 6 or more months.

CHARACTER EVIDENCE

The term character is not defined in the Evidence Act. It is explained under section 54 to mean and include both reputation and dispositions. Under section 54, if character evidence is to be given, it should only be as to general disposition and general reputation but should not be evidence of the particular acts by which reputation or disposition was shown. Disposition in this case means the tendency of a person to act or behave in a particular way whereas reputation refers to the opinion of members of the public about a particular person.  

General Principles Underlying Character Evidence. 

As a general rule, character evidence is not admissible in court. However, indeed as any other rule, that rule has exceptions under which admissibility if character evidence depends on the following;

a)      Nature of the case in other words, is it a civil case or a criminal case?

b)      Nature of the parties in other words, is it the accused, plaintiff or character of defendant, complainant or character of witnesses.

Character Evidence in Criminal Cases.

Under section 51 if the Evidence Act, in criminal proceedings, the fact that the accused person is of good character is irrelevant. According to section 52, the fact that an accused is of bad character in criminal cases is irrelevant unless it falls under section 52d). As seen in section 54, if bad character evidence is to be adduced, it must be; evidence of reputation, it must also be shown that a substantial part of a community holds that view. See R V Rowton. 

Exceptions under section 52 

Under Section 52a) such character evidence is relevant if evidence has been given or a question or questions asked by the accused person or his or her advocate for the purpose of showing that he has a good character. Once an accused gives evidence that he is of a good character or asks questions to show him as such, then he is said to have put his character in issue, in other words the issue of his good character can be determined by allowing the prosecution to say that he is a person of bad character. See Maxwell V DPP,  Yowana Settumba V R  On how to introduce evidence of bad character, see Stirland V DPP.

in Yowana Setumba v R (1957) EA 35

Held: Character evidence is admissible against the accused if the prosecution shows him as a person of bad character. According to section 52 it is the general rule that in criminal proceedings the bad character of the accused person is irrelevant. However, you can show it as part of resgestae as evidence of past similar occurrences under section 14 of the Evidence Act. Section 52 provides circumstances when bad character would be admissible. The bad character referred to here is normally evidence of reputation and before such evidence can be admitted it must be established that a substantial part of the community holds that view pre case of R v Rowton (1965) 10 Cox 25

In Stirland v DPP (1944) A. C 315

Facts: The rules determining bad character were discussed in this case. The accused person was charged with forgery and he gave evidence of his good character. He called a witness to say that he was a person who had never been convicted before and he was very moralistic.

Held: The court allowed the prosecution to adduce evidence of his bad character and on appeal the following guidelines were laid down by the court:-

1.    An accused person may be cross-examined as to his claims of good character in any evidence he has given in chief and that a result of such cross-examination can prove his bad character and that they are a way of testing his velocity that such accused past record can be put in evidence, but this should be the whole of the accused’s past life, mere suspicion that someone has ever committed a crime is not enough and it is not relevant to establish his bad character and this is not enough to deny him his claim of good character.

2.    During the trial the evidence of witnesses who can establish bad character may be adduced.

Per section 52b) the proof that he or she has committed or been convicted of another offence is admissible evidence to show that he or she is guilty of the offence that he or she is charged. However, before such evidence is adduced, there must be a relationship. In other words there must be a similarity between the offense he is being charged of and the one being adduced as evidence of character. See R V Rodley

In R v Rodley (1913) 3 K.B 468  

Facts: This case discusses section 52(b) of the Evidence Act regarding previous convictions. The appellant was indicted for having broken into a dwelling house in the night with intent to lavish a woman. Prosecution’s evidence was to the effect that the appellant broke into the house and went downstairs where he seized her, he pulled down her clothes and upon the woman’s father coming downstairs the appellant went away. The defence at the trial was that evidence of the prosecution was not true since the appellant went to the house for purposes of courting the complainant with her consent and he did not intend or attempt to ravish her. Prosecution tendered evidence that the appellant at about 2.00am on the same morning went to the house of another woman about three houses from the complainant’s house gained access to her bedroom and had a connection with her. It was contended that this evidence was admissible to show the state of the appellants mind and body at the time when he broke into the complainant’s home and coupled with the evidence of what happened when he was in the house was admissible to show the intent of the appellant. This evidence was admitted and the appellant was convicted on it and he appealed. 

Held: This evidence was not relevant to any of the issues in the case and therefore not admissible and citing the case of R v Fisher (1910) 1 K.B 149 court said the principle is that prosecutors are not allowed to prove that the accused has committed the offence with which he is charged by giving evidence that he is a person of bad character who is in the habit of committing crimes, for that is equivalent to asking the court to say that because an accused has committed other offences he must therefore be guilty of the particular offence for which he is being tried, but if the evidence of other offences, does go to prove that he did commit the offence charged, it is admissible because it is relevant in issue and it is admissible because it proves that the accused committed another offence. Court finally said that the governing rule must always be that any evidence to be admissible must be relevant to the issue.

According to section 52c) the nature of conduct to his or her defense such as to involve imputations on the character of the complainant or the witnesses or the prosecution. Where in the course of his defense, an accused makes imputations on the character of eth complainant or prosecution witnesses then prosecution is allowed to adduce evidence of bad character of the accused.  See Royston V R, Abdulla Katwe V Uganda. 

In Royston v R (1953) 20 EACA 14  it was stated that if the imputations of bad character are an integral part of the defence of the accused without which he cannot put his case fairly and squarely then he cannot be cross-examined on previous criminal history

Abdulla Katwe v R (1964) E.A 477

Facts: The appellants were charged with conspiracy to commit robbery, the evidence being that acting on information received, an Inspector of Police with five other officers all in plain clothes went to patrol a road and they saw a car some yards in front of them trying to broke them, five men with stones descended upon the Inspectors car. When the officers emerged the five men withdrew but they were arrested and stones were found in their car and the number plate was smeared with sand. At the trial Counsel for the appellants in cross-examination suggested to the Inspector that he had fabricated the evidence, and the prosecuting officer applied for leave to cross-examine one of the appellants on his previous convictions, the magistrate ruled that the appellants had put their character in issue and therefore the prosecutor was entitled to cross-examine the appellants on previous convictions. The 3^rd and 5^th appellants admitted previous convictions and all the five appellants were convicted.  On appeal the issue was whether the evidence of bad character of the appellants was properly admitted at the trial?

Held: It was suggested to the Inspector that he had fabricated evidence, by planting stones into the appellants car and he had obscured the number plates of the car Counsel for the appellants went beyond what was necessary for the proper and fair presentation of his clients’ case before the court. Accordingly the magistrate had properly exercised his discretion in admitting evidence of bad character of the 2^ndappellant. It would have been otherwise if the appellants had simply said the evidence was untrue such suggestion would not entitle the prosecution to cross-examine any of the accused as to their character.

The principle is that a clear line should be drawn between words that are denial of evidence and words which attack the conduct or character of a witness. It is one thing for the appellant to deny that he performed the act, but it is another thing to say that the whole thing was a deliberate and elaborate concoction on part of the prosecution which seems to be an attack on the character of a witness.  Court finally said in making imputations on the character of the prosecution witnesses the defence had gone so far as to bring the imputations outside the scope of protection under the rule in Royston’s case. 

Per section 52d) if the accused has given evidence against any other person charged with the same offense which he or she is charged, then  evidence of his or her bad character is admissible. See R V Bruce, Murdoch V Taylor 

In R v Bruce (1975) 1 W.L R 1252 (meaning of ‘evidence against’)

Facts: In this case 8 youths surrounded a passenger on a train and when they realized that he was frightened they took money from him. They were all charged with robbery, one accused called Mc Guinness said that there was a plan to rob but he said that he had played no part in it. His Counsel was allowed to cross-examine another accused Bruce about his previous convictions on the basis that Bruce had given evidence against Mc Guinness by denying that there was a plan to commit robbery.

Issue: Whether evidence of Bruce’s previous conviction was admissible. Whether he had given evidence against Mc Guinness?

Held: ‘Evidence against’ means evidence which supports the prosecution’s case in a material respect, or which undermines the defence of co accused. That evidence cannot be said to be given against co accused if its effect if believed is to result not in his conviction but his acquittal of that offence. Court went ahead to say that Bruce’s evidence undermined the defence of Mc Guinness. The previous convictions of Bruce were wrongly admitted. The appeal was dismissed on the ground that if such evidence leads to an acquittal then it is not evince against co accused. 

Murdock v Taylor (1965) 1 ALL ER 406

Facts: The appellant Murdock was charged jointly with one Linch with the offence of receiving cameras knowing them to have been stolen. In cross examination the appellant said that he had nothing to do with stolen cameras and that they were entirely linch’s responsibility. Further answers of the appellant pointed to the conclusion that Linch alone was in control and possession of the box containing the stolen cameras. Linch’s counsel was allowed to cross-examine the appellant who admitted a number of convictions for theft. On appeal;

Issues: Whether the appellant gave evidence against Linch and whether therefore cross-examination as to his previous convictions was rightly allowed?

Held: The evidence given by the appellant in cross examination was evidence against Linch because it supported the prosecution’s case against Linch in a material particular and therefore questions as to the previous convictions were properly allowed because they were relevant and directed to the appellants credibility. In this case court laid down the following principles 

1.                  The evidence against co accused means evidence which support the prosecution’s case against co accused in a material respect, or which undermines the defence of co accused, it also means positive evidence which would rationally have to be included in any summary of evidence in which the case which if accepted would warrant conviction of co accused.

2.                  Both must be charged with the same offence.

The material considerations in determining whether such evidence has been given is the effect of the evidence in the minds of the court and this is an objective test. Evidence against co accused is not limited to evidence given with hostile intent, once an accused has given evidence against his co accused a trial judge has no discretion whether or not to allow the former to be cross-examined by the co accused as to his previous convictions although the trial judge must rule as to the relevancy of the proposed cross-examination. This means that it should go to the credibility of the accused, who has given evidence against co accused.