ADMISSIBILTY AND RELEVANCE OF EVIDENCE.
Facts which form
part of the same transaction.
R
V KURJI
The accused had stabbed the
brother of the deceased and had uttered threats against the deceased. Immediately
afterwards, he was seen in the go down of an immediate shop standing over the
deceased holding a dagger. It was held that the two circumstances 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.
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.
Facts which are
the occasion, cause or effect of the facts in issue
JOHN V MAKINDI,
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 thus 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.
HARRIS V DPP.
A
series of thefts having common characteristics occurred in an office in an
enclosed market at times when the gates were shut and on occasions where the
accused police officer was on duty in the market the precise time of only one
of those 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. 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.
Explanatory and
introductory facts.
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.
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 not 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.
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.
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.
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.
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.
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.
SHAMA
AND ANOTHER V R
The
appellant was charged with murder and had been indentified 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.
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.
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.
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.
Contradictory or
inconsistent facts
It
was held that it’s well established law in Uganda
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. Facts which are
evidence of similar facts or occurrences
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.
ADMISSIONS AND CONFESSIONS
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.
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.
Who can take down a confession?
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
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.
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.
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.
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.
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.
MWANGE
S/O NJOROGE V R.
The appellant was convicted of
unlawful possession of a home made 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.
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.
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.
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.
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 along 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.
Repudiated or Retracted confessions.
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.
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.
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.
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.
THIONO V R
Court held that there is no rule
that a court can not 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.
R
V KAGGWA
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.
Confessions against co accused.
R
V WANDINGOMBE.
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.
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.
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.
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 can not test
its worth in cross examination of the maker against him.
Information leading to discovery.
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.
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
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.
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.
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.
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 as 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.
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
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
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
Dying Declarations
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.
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 can not 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
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.
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.
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.
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.
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.
KALISTI
SEBUGWAWO V UGANDA
On sufficiency of corroboration,
court held that the repetition of a dying declaration by different witnesses is
not enough corroboration.
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.
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
against Pecuniary or Primary Interests of the Maker.
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 they 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.
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.
Private Rights
and Family Affairs.
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
R
V OAKLEY,
R V
SILVERLOCK,
R
V GATHERU,
VANDER DONCKT V THELLUSTON,
MUGISHA
V UGANDA
WALUSIMBI V
STANDARD BANK,
DE SOUZA V SHAMA,
CHARLES
ALFRED SUTTON V R,
R V
SMITH.
CASE V RUGURU
CHARACTER EVIDENCE
R
V ROWTON.
MAXWELL V
DPP,
YOWANA SETTUMBA V R
STIRLAND
V DPP.
R
V RODLEY
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