KEITH BUSINGYE LAW GUIDE; common evidence law questions and answers.

KEITH BUSINGYE LAW GUIDE; EVIDENCE LAW.

1.       In practice what is the true test of hearsay evidence? Hearsay evidence should only be introduced for the purpose of establishing the truth of an earlier statement for example as per Subramanian v Public Prosecutor such evidence requires corroboration.

2.       If a third person who was not called as a witness confessed to the commission of an offence for which the accused was being tried, would this be adduced as evidence at the trial? this would be rejected on the ground that it amounted to hearsay evidence as was held in R v Turner (1957) 65 Cr App R 78. Court will still exclude hearsay evidence where it may appear to have a higher evidential value or even if it had been admitted would have been conclusive.

3.       Give at least five instances for rejecting hearsay?

·         The person who makes the statement cannot be present to be cross-examined to establish the veracity of the statement. The person who reports may do so carelessly or maliciously.

·         There is a likelihood of distortion of the original statement. It may be twisted depending on the interests of the witness.

·         There is lack of opportunity of judging the powers of perception of the person who made the statement

·         It may not be possible to establish the meaning of the words used because the third party may have used the words in a special sense. The persons reporting may give a false meaning.

·         There is no opportunity to judge the demeanor of the person who made the original statement. You cannot judge the tone of the voice used, looks on the face of the person.

4.        What is the difference between a dying declaration under common law and the Evidence Act?

Under common law a dying declaration under admissible if the deceased was under a hopeless expectation of death whereas under the Uganda Evidence Act it is admissible even if the deceased had a chance of living.

5.       If X made a confession that he committed theft, can he be convicted solely on that confession?

Section 23 of the Evidence Act provides that no person shall be convicted of an offence solely on the basis of a confession unless the confession is corroborated by other material evidence in support of the confession implicating that person.

6.       What is the difference between the two types of cases of corroboration, that is, where corroboration is a statutory requirement and where it is a judicial requirement?

Where corroboration is a statutory requirement, then court cannot deviate from it. Court has no discretion whatsoever to dispense with corroboration. Court must look at every evidence wherever it is. But where it, that is, a judicial requirement it is at the discretion of the court to insist on or otherwise on corroboration but that it must always warn itself all the dangers of acting upon an uncorroborated evidence but it may dispense from it looking at the circumstances of the case for example in R v Kilbourne (1973) A.C 129 Lord Hudson said that the category of cases in which the court will require corroboration is open and that a prudent, court should ask for corroboration in any case where a witness has some private or personal interest in the matter.

7.       What is the rationale for the exclusion of oral evidence?

It is that courts of law must not attempt to write agreements but should rather enforce agreements written by parties.

8.       The general rule in regard to corroboration is found in Section 132 of the Evidence Act , that is subject to the provisions of any other law in force, no particular number of witnesses shall in any case be required for the proof of any fact, that is, court can convict on evidence of a sole witness.

What are the two main cases which require corroboration?

·         Where it is required as a matter of law, that is, where there is a statutory provision for corroboration.

·         Cases where corroboration is required as a matter of judicial practice.

9.       If a judge relied on the evidence of a child of twelve years to convict an accused of murder and did not warn himself of the need to corroborate the child’s evidence would this be admissible as evidence?

Unsworn evidence of children of tender years must be corroborated as a matter of law but in practice all evidence of children of tender years whether sworn or unsworn would require corroboration and courts have held that even when there is sworn evidence there is need for corroboration.

10.   What are the two ways an accused person can retract a confession?

·         By clear and positive express repudiation

·         By implication

11.   What is the purpose of a judge conducting a trial within a trial?

The purpose of a trial within a trial is to decide upon the evidence of both sides as to whether the confession should be admitted. Court cannot simply looking at the statement conclude that it was made voluntarily. A statement that is made voluntarily is one made absolutely free from inducement influence of whatever nature.

12.   If X a police officer recorded a statement of the accused would this be a properly recorded confession?

In accordance with Njuguna & Others v R (1954) 21 EACA 316 it was held that it is inadvisable if not improper for the police officer who is conducting the investigation of the case, to charge and record the cautioned statement of the accused.

13.    What is the difference between a dying declaration under common law and the Evidence Act?

·         under common law a dying declaration is only admissible if the deceased was under a hopeless expectation of death whereas under the Uganda Evidence Act it is admissible even if the deceased had a chance of living.

14.   What is the rationale for the exclusion of oral evidence?

     It is that courts of law must not attempt to write agreements but should rather enforce      agreements written by parties.

15.  The general rule is that evidence of character is not admissible. However, this rule has many exceptions and the admissibility of character evidence will depend on a number of things for example?

·         The nature of the case

·         Nature of the parties for instance is it evidence of the character of the accused character of plaintiff or character of defendant.

16.   Mention three circumstances where an attesting witness to a document need not be called?

·         Wills, that is, where all formalities are followed, the attesting witness need not be called

·         Where execution has been admitted for purposes of the trial.

·         Where none of the witnesses is alive.

17.  When does the best evidence rule apply?

The best evidence rule only applies to proof of the content of the document and not to cases involving the existence or identity of the document.

18.  How do you obtain original documents which are not in your client’s possession?

Section 65 of the Evidence Act if the document is in the possession of the adversary party or his agent, the adversary can be served with a notice to produce the document.

19.  Who is an officer in custody of a document?

This is a person in charge of the department under which the original document is kept but section 75 of the Evidence Act widens the meaning to include any officer who by ordinary course of his duty is authorized to deliver the copies in issue.

20.  If Y makes an admission can that admission be used against Y with your knowledge of Evidence Law?

If a party admitted contents of a document, such admission can be used against that party but such admission must be in writing to prove the existence or condition of the contents of the original document in order to be used against the party.

21.  What are the inadmissible forms of secondary evidence?

The general rule is that secondary evidence can’t be admissible if it tends to prove other secondary evidence for example copies of copies, though there is an exception to the above rule that is if a document qualifies under section 62(b) of the Evidence Act.

22.  What is the rationale of the parole evidence rule?

The object of reducing oral terms into writing is to perpetuate the memory of what is written down and also to provide permanent proof of which thus to effectuate this principle, the document itself must be produced as evidence.

23.  What is the rationale of the exclusion of oral evidence?

It is that courts of law must not attempt to write agreements but should rather enforce agreements written by parties.

24.  What happens when a person ordinarily is not compellable by law to produce a document but that person is a party to a suit?

Under Section 64(1) (e) of the Evidence Act if a document is a public document within the meaning of section 73 then secondary evidence of it may be admitted. The rationale is that in may be a risk to move public documents at the call of private persons.

25.  What is presumptive evidence with relation to oral testimony and admissions?

Contents of a document may be proved presumptively especially where the original document is lost. If one’s conduct implied that he was relying on the document he will be presumed to have admitted it.

26.  What is a testimony? This is the most common form of evidence; a witness tells the court in his own words what he has seen or heard and he will be cross-examined in order that the testimony can be assessed.

27.  What is documentary evidence: According to the interpretation Section in 1(c) of the evidence Act; documentary evidence means all documents produced for the inspection of the court.

28.  How can the contents of a document be proved? The contents of a document can be proved by either primary or secondary evidence.

29.  Define the following as used in evidence

a.       Real evidence: This normally something tangible that is produced for inspection by the court such as a murder weapon.

b.      Direct evidence: Is a testimony that relates to the direct perception of a fail in issue; for example I saw him stab her with a pair of scissors.

c.       Circumstantial evidence; This is evidence from which an inference needs to be drawn by the tribunal of fact- before a fact in issue is proved.

30.  Write short notes on

i.                    Primary evidence

According to S.6, of the evidence Act; primary evidence means the document itself produced for the inspection of the court.

ii.                  Secondary evidence

Secondary evidence is the evidence which can be given in the absence of the better evidence which the law requires to be given first.

31.  What is insufficient evidence?

This is evidence that is so weak that no reasonable man could decide an issue in reliance upon that evidence alone.

32.  Give the meaning of prima facie evidence: it means that evidence is sufficient to prove a fat in the absence of any contracting evidence.

33.  What is the importance of a voir dire in the law of

Evidence: This is the procedure used to determine for example the competence of withness to testify or the admissibility of a dispused confession.

34.  According to the words of Glaisdale in DPP V Kiibourne (1973) what is relevant evidence?

relevant evidence is that which makes the fact requiring proof more or less probable, it was defined by Glaisdale in the following words evidence is relevant. If it is logically probative or disapprobative of some matter which requires proof

35.  Write short notes of the following:-

a.       In criminal case, the facts in issue are those facts that the prosecution must prove in order to establish the guilt of the defendant, together with those facts raised by way of defence that the prosecution must normally prove.

b.      In civil cases, the facts in issue are those facts that the claimant must prove in order to establish his case, together with those facts that the defendant must prove to establish a defence, for example contributory negligence or violent.

c.       What facts are in issue in any case will therefore depend upon the substantive law that is applicable and any defence that is raised.

ii.                  Facts relevant to a fact in issue; otherwise known as circumstantial evidence.

a.       This is evidence from which an inference needs to be drawn by the tribunal of fact before a fact in issue is proved.

b.      A fact is relevant in issue if its existence makes proof or disproof of a face in issue more likely.

iii.                Colleteral facts: Relate to a witness rather than directly to the facts in issue; an eye witness may for example, be asked questions to establish whether he has good or poor vision.

36.  What is burden of proof? This means both legal and evidential burden legal burden is the burden on the presentation throughout the case to prove every element of the offence charged whereas the evidential burden is the burden to produce evidence on every element of the offence charged.

37.  Define

a.      Legal burden

This is the burden to prove or disprove a face –in issue.

b.      Evidential burden

Evidential burden is merely the burden to produce evidence.

38.  The legal burden never shifts except where presumptions operate. Justify the legal efficacy of the general rule? A legal burden may be placed on the accused in relation to a specific defence raised this is the new legal burden requiring the defendant to the defence  raised. This is the new legal burden requiring the defendant to prove the defence on the balance of probabilities.

39.  While short notes on any 2 standards of proof i.e. criminal and civil standard. The standard of proof necessary to discharge the burden of proof relates to the legal not the evidential burden. The criminal standard of proof is beyond reasonable doubt whereas the civil standard of proof is on a balance of probabilities.

40.  Who is a competent witness

A witness is competent if as a matter of law, a court can receive his evidence.

41.  Define the following terms

(a)   Testimony

Asworn testimony is a testimony given by a competent witness after taking an oaths.

(b)   Un Seworn testimony is one given by a competent witness blue who may decide not to take an oaths.

42.  What is “afact” evidence

Afact means and includes; anything, state of things, or relation of things, capable of being perceived by the senses and any mental condition of which any person is conscious

43.  Explain what you understand by “fact in issue”? Whenever, under the provisions of the law for the time being in force relating to civil procedure, any court records an issue of fair to be asserted or denied in the answer to that issue is a few in issue.

44.  What is an admission?

S.16 of the evidence act defines an admission to mean a statement, oral or documentary which suggests any inference as to any fail in issue or relevant face and which is made by any of the persons and in the circumstances herein mentioned.

45.  Give the meaning of “testimonial evidence”

This is the assertion of a human being derived from his own perception and offered as truth of that which is asserted.

46.  Explain the meaning of “Res Gestae”

This can be referred to from S.5 of the evidence Act which states that’s facts which though not in issue are so connected with the facts in issue as to form pan of the same time and place or not. This section admits facts which are technically referred to as request able.

47.  Give the meaning of explanatory and introductory facts

Facts which are necessary to explain or introduce a fall in issue or a relevant fail, or which rebuts or supports an influence suggested by such a fow or which establish the identity of anything or person whose identity is relevant or which fixed the time or place at which any fall in issue or relevant fact happened or which shows the relationship of parties by whom such fact was translated are admissible in no far as they are necessary for that purpose.

48.  When is a fact said to be;

a.      Proved

A fact is said to be proved when, after considering the matters before it, the court either believers it to exist, or considers its existence so probable that a prudent man nught; in the circumstances of the particular case to all upon the supposition that it exists.

b.      Disproved;

A fact is said to be disproved when after considering the matters before it, the court either believers that it does not exist; or considers its non existence so probable that a prudent man ought in the circumstances of the particular case of aw upon the supposition that it exists.

49. As stated by Lord Denning in Miller V minister of passions, where is the standard of proof in civil cases? The degree is well settled, it must carry a reasonable degree of probability but not so high as required in criminal cases in other wards the proof should be on the balance of probabilities.

50. What evidence can a dumb witness adduce?

S.118 provides that a witness who is unable to speak may give his or her evidence in any other manner in which he or she can make it intelligible, as by writing or by signs but the writing must be written and signs made in open court evidence no given shall be deemed to be oral evidence.

51. What do you understand by the term evidence?

It is the means by which an allegation is proved or disproved. There are different modes of evidence which may include; document, oral evidence, and opinion evidence among others.

52. Evidence is a statutory law? What does this mean?

It means that rules of evidence are found in a statute which is evidence Act

53. What does best evidence rule state?

It states that only the original evidence should be produced in court.

54. State the rationale behind the rules of evidence

Rules of evidence are aimed at the following;

Ø  Establishing who has the burden of proof in particular instances

Ø  They prescribe facts which must or may be proved and determine which facts are to be admitted ie relevance and admissibility of evidence.

Ø  They prescribe facts excluded from consideration of court eg privileged information

Ø  They prescribe methods by which proof may be effected eg testimony of witnesses.

Ø  They prescribe extent of proof required in a particular case

Ø  They prescribe the effect of certain pieces of evidence

55. What do you understand by relevance and admissibility of evidence?

It refers to the kind of evidence relevant or necessary to prove a particular fact

It also refers to a kind of evidence a court will admit or permit to be adduced in a particular instance.

56.The police tortured the accused A and A and A was re-enforced or influenced to confess so as to avoid further torture, A was tortured and he led the police to a place where a lot of stolen property was found. Is such information admissible in courts of law?

The general rule is that once evidence is admissible the manner of its procurement does not matter, but however it does not apply t o the admissibility confession

A’s evidence is admissible and A’s confession is not as it was obtained illegally.

57.What do you understand by the term res gestae?

It is the term that connotes Acts, declarations and circumstances constituting, accompanying or explaining a fact of transaction in issue.

58. What does factum probendum mean?

Factum probendum means the principle of fact or fact in issue eg in murder it means death.

59. What do you understand by factom probans?

It means those other factors with evidential value that may help to explain the principle fact.

60. Identify the general elements of res gestae

For a statement or declaration to amount into res gestae it must relate to the general or main event and must explain or throw more light on the main event.

It must be a natural declaration growing out of the event and must not be a mere narration of past events.

61. What do you understand by the following categories of evidence?

1. Admissions and confessions

These are instances where a person’s own words or statements may be adduced in evidence against him or her. However these modes of evidence should not be induced or influenced in any ways.

2. Evidence of opinions

It is a type of evidence that is got or obtained from one’s way of observation. An example can be expert opinion like a doctor called to give evidence about a postmortem in a murder case.

3. Character evidence

This refers to a general disposition, reputation or behavior or conduct held by a cross-section of the public

4. Hearsay evidence

This is a kind of evidence is one that is looked at for the purpose of establishing its truthfulness the person who was told by another is being examined

5. Documentary evidence

This deals with all documents which are produced for the inspection of the court. It can either be primary which engages original documents or secondary where copies of the original documents are used as evidence.

62. What do the following terminologies mean?

Document

This refers to any matter expressed or described upon any substance by means of letters, figures, and marks or by more than those means, intended to be used or actually used for the purpose of recording the matter.

Fact

Anything, state of things or relation of thins capable of being perceived by the senses

It may also be any mental condition of which any person is conscious ie both physical and non physical

Fact in issue

This refers to any fact which, either by itself or in connection with other facts, the existence, non existence nature or extent of any right liability or disability asserted oir denied in any suit or proceeding necessarily follows

Prima-facie evidence

This refers to evidence which establishes a fact and that fact will be presumed to exist unless there is contrary evidence.

Conclusive evidence

This is evidence if adduced, cannot be contradicted ie it is not enough to lead to a finding in a particular direction 

6. Real evidence

This refers to evidence of a material nature which can be seen, touched, smelt or felt.

7. Direct evidence

It means evidence of that person who saw, felt or heard the fact in issue

It also means the assertion of a witness about a fact of which he or she has direct knowledge offered as evidence of the truth of what is asserted.

8. Circumstantial evidence

It means any fact or fact relevant to the issue from which the existence of fact in issue may be inferred.

63. Under criminal law, offences are said to go through four distinctive stages. Name those stages and show which stage(s) where the law punishes

Ø  Intention

Ø  Preparation

Ø  Attempt

Ø  Execution of the act

It punished at attempt and execution

64. The accused put up the defence of alibi. What does this mean and Who has the burden of proving such defence?

Alibi is a defence that the accused was not present at scene of crime.It is always the prosecution for proof who has burden of to disprove or destroy the alibi.

65. Any person who wishes to institute a case against another must clearly identify the identity of that other person and where the person is found. So give the rationale behind the process of identification.

Ø  The person identifying must have seen or observed the person being identified which at the scene

Ø  The identifying person must have a settled impression in his or her mind at the relevant time. He or she must not have been in panic. 

Ø  The mental picture of a person has at the time of identification must be the same as that he or she had when he or she first saw accused.

Ø  The time taken in identifying the accused person is important.

Ø  Consideration must also be given to those opportunities allowing for proper identification.

66. What is the rationale for the exclusion of oral evidence?

It is that courts of law must not attempt to write agreements but should rather enforce agreements written by parties.

67. What are the modes of procuring evidence?

·         Testimony of witnesses (oral evidence)

·         Using exhibits

·         Documentary evidence

·         Expert opinions

68. What are the three phases of process of a trial?

This is in three phases:-

                                                                   I.            Examination in chief

                                                                II.            Cross examination

                                                             III.            Re-examination

69. What are the particular aspects of res gestae?

Facts forming the same transaction.

Facts which are the occasion, cause or effect of facts in issue S.6 UEA

Motive preparation and conduct S.7 UEA

70.  What is the general rule governing the admissibility of evidence?

The general rule governing the admissibility of evidence is that relevant evidence is admissible in the absence of a rule of exclusion and that irrelevant evidence is inadmissible.

71. Evidence which is placed in front of a court can take three forms, which are they? documentary evidence, real evidence, or the testimony of the witnesses. The admissibility of evidence, in whatever form, is subject to the general principles of relevance, probative weight and avoidance of prejudice as well as to the exclusionary rules.

 72. Define the term Estoppel.

 An estoppel is a rule by which a party to litigation is stopped from asserting or denying a particular fact.

73. Name the various general conditions of the doctrine of estoppels as applied in the law of Evidence.

1.      Estoppel must be reciprocal or mutual

2.      Estoppel must be certain, clear, precise and unambiguous.

3.      Estoppel cannot circumvent the law.

74. One of the conditions which govern the doctrine of estoppel is that it must be reciprocal or mutual. Briefly explain what this means.

This means that the estoppel must bind both parties.

75. List the various common law types of estoppels.

1.      Estoppel by conduct.

2.      Estoppels by deed.

3.      Estoppels by record.

76. Under what conditions may a judgment of court create an estoppel.

1.      The previous court must have had jurisdiction.

2.      The judgment must be final.

3.      The judgment must have decided the merits of the case.

4.      The judgment must not have been obtained by fraud.

77. Define the term alibi.

Alibi is the state of being somewhere else while a crime is being committed in a particular area.

78. In a trial process where an accused person puts forward an alibi as an answer to a charge who bears the burden of proof.

The burden is on the prosecution to disprove the alibi.

79. In cases of insanity of an accused person who bears the burden of proof of the insanity? 

The burden is born by the accused person to prove his or her insanity.

80. What are disputable and rebuttable presumptions of law?

These are presumptions of the law that are capable of being disproved by adducing evidence to the contrary.

81. Can a dumb witness adduce evidence in the courts of law?

A witness who is unable to speak may give his or her evidence in a manner in which he or she can make it intelligible as by signs or writings.

 82. What is judicial notice? 

These are facts which a magistrate or judge can be called upon to receive and act upon either from his general knowledge of them or from inquiries to be made by him or her from sources which are proper from him or her to refer to.

83. List the various categories of judicial notice.

1. Legal matters.
2. Geographical divisions of the world.
3. Constitutional matters.
4. Matters of common knowledge.

84. Who is an accomplice?

An accomplice is a person who partly takes part in commotion of a crime.

85. In adducing of in courts of law can evidence of an accomplice be regarded as evidence?

An accomplice can be a competent witness against an accused person.

86. What is a voire dire?

This is the examination of children who are witnesses before they give evidence in court.

87. Give the situations under which a child of tender years can give evidence in court.

1. Where a child understands the nature of an oath and is either sworn or affirmed.
2. Where the child does not understand the nature of the oath or affirmation.

88. How does court ascertain that a child of tender age understands the nature of an oath?

                 The court may decide to examine a child as to his or her religious beliefs.

89. In criminal proceedings counsel may call upon a doctor to advice court on matters of medicine and its effect on a person. If such evidence is admitted in court then what type of evidence is this?

This is expert evidence.

90. Under what circumstances may evidence of opinion be accepted as evidence in courts of law?

1. Where it is given by an expert.
2. Where it is an opinion of an ordinary person.

91. Explain what can be done in courts of law where a witness appears to prove a particular fact of the case using his knowledge of the accused person’s handwriting.

The court can regard such evidence where such a person can prove that he knows the handwriting of the accused.

92. Write short notes on the inter-alios principle.

The gist of this principle is to exclude extrinsic evidence that would contradict or vary a transaction concluded in writing to be only applicable to the parties to the transaction and their privies.

93. The general rule regarding character evidence is that such evidence is inadmissible. However there are exceptions. List the various exceptions.

1. Where the accused person or his /her agent puts his /her character in issue.
2. Where there is evidence of committal and conviction of a previous similar offence.
3. Where the nature or conduct of the accused’s defence is such as to involve imputations on the character of the complainant or the witnesses of the prosecution. 
4. Where he/she has given evidence against any other person charged with the offence as that which he/she is charged. 

94. Where an accused person in a criminal trial puts to court that he wants to invite his pastor to prove to the court that he is a man of good discipline an d a committed Christian what could this refer to in the law of evidence?

This is character evidence.

95. What is competence of a witness?

              This is the capacity of a witness under the law to give evidence in court.

96. What is compellability of a witness?

This is the obligation of an unwilling witness to attend court and testify on matters of he has knowledge of.

KEITH BUSINGYE LAW GUIDE.