Evidence Law

‘Res Gestae’, it has been said, is a phrase adopted to provide a respectable legal cloak for a variety of cases to which no formula of precision can be applied’. The words themselves simply mean a transaction. Under the inclusionary common law doctrine of Res Gestae, a fact or opinion which is so closely associated in time, place and circumstances with some act or event which is in issue that it can be said to form a part of the same transaction as the act or event in issue, is itself admissible in evidence.

The justification given for the reception of such evidence is the light that it sheds upon the act or event in issue: in its absence, the transaction in question may not be fully or truly understood and may even appear to be meaningless, inexplicable and unintelligible. The importance of the doctrine, for present purposes, is its provision for the admissibility of statements relating to the performance, occurrence or existence of some act, event or state of affairs which is in issue. Such statements may be received by way of exception to the hearsay rule.

Res Gestae forms part of hearsay.

A girl was living with her boyfriend until the relationship turned sour. The boyfriend allegedly cut her throat. She managed to run out even with a cut throat and managed to say ‘see what Harry (Bedingfield) has done to me’. In court the question arose as to whether this statement could be admitted in evidence. Lord Justice Cockburn was emphatic that it could not be admitted. He said that it was not part of the transaction, that it was said after the transaction was all over. (The transaction being the cutting of the throat) The Judge held that it was not admissible as part of the Res Gestae since it was something stated by her after it was all over.” The girl said after it was all over.

Under S. 33 of Law of Evidence Act, this would have been admitted. 33. Statements, written or oral, of admissible facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence or whose attendance cannot be procured, or whose attendance cannot be procured without an amount of delay or expense which in the circumstances of the case appears to the court unreasonable, are themselves admissible in the following cases—

a) When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question and such statements are admissible whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes in question;

R V. Premji Kurji [1940] E.A.C.A 58

In this case the accused was charged with murder, the deceased had been killed with a dagger and there was evidence that the accused had been found standing over the deceased body with a dagger dripping with blood. The prosecution adduced evidence that a few minutes before, the accused had been seen assaulting the deceased’s brother with a dagger and he had uttered words to the effect that ‘I have finished with you; I am now going to deal with your brother’.

The question was whether this statement was admissible as forming part of the transaction. Is that part of the same transaction as the murder? Were the words uttered parts of the same transaction? It was held that they were part of the same transaction because when two acts of an accused person are so interwoven as to form part of the same transaction, it is not proper to shut out evidence of one of the acts even though it may involve introducing evidence of the commission of another offence.

R V. RAMADHANI ISMAEL [1950] ZLR 100

A Girl was living in the village with her parents and she was allegedly raped by the accused. After the rape incident, she unlocked the door and ran over to her parents’ house, a few paces away from the accused’s house. She got hold of her father’s hand and took him to the accused house. She pointed to the accused person and said ‘daddy, this is the Bwana’ and the question was whether this statement was part of the transaction. The transaction here is rape, which is already finished by the time she goes to call her daddy. Is it admissible? The court held that it was not part of the transaction. The transaction was already over.

Different courts have different conception of what forms part of the transaction. The court in this rape case adopted a conservative view of what formed the transaction.

TEPPER V. R [1952] A.C 480

In that case there was a fire some place and a house was burning and the lady was heard to ask somebody who looked like the accused some minutes later ‘your house is burning and you are running away’ the question was whether this statement was part of the transaction as the fact in issue the fact in issue being Arson. It was held to be part of the transaction.

R V. CHRISTIE 1914 AC 545

The accused was convicted of indecent assault on a boy. The boy gave un-sworn evidence in which he described the assault and identified the accused but made no reference to any previous identification. The House of Lords, by a majority of five to two, held that both the boy’s mother and a constable had been properly allowed to give evidence that shortly after the alleged act they saw the boy approach the accused, touch his sleeve and identify him by saying, ‘That is the man’. Evidence of the previous identification was admissible as evidence of the witness’s consistency, ‘to show that the witness was able to identify at the time’ and ‘to exclude the idea that the identification of the prisoner in the dock was an afterthought or mistake.

THOMPSON V. TREVANION 1693 Skin L.R. 402

This case had to do with statements made by participants in or observers of events. Thus in this case it was decided that what a wife said immediately upon the hurt was received and before she had time to devise or contrive anything for her own advantage was held to be admissible in evidence.

ALL THE ABOVE CASES HAVE SOMETHING TO DO WITH WHETHER THE STATEMENT IS PART OF THE FACT OF IN ISSUE.

R V. RATTEN [1972] A.C 378

Ratten was charged with the murder of his wife. He offered the defence of accident. He said that he was cleaning his gun and it accidentally went off injuring his spouse. There was nobody else at the scene of crime or at the point where this incident occurred and the prosecution sought to tender evidence of a girl who worked with the telephone exchange who said that a call had had been made from the accused house at about the time of the murder. The girl said that the voice on the phone betrayed emotion, she was begging to have the police called over and before the operator could link the woman with the police the phone hang up on the woman side.

The question was, was the statement by the telephone operator admissible as part of the transaction? Did it happen contemporaneously with the facts in issue? The court held that the evidence of the telephone operator was admissible and in explaining why the Privy Council explained that the important thing was not whether the words were part of the transaction. The important thing was whether the words were uttered during the drama. The court also said that the particular evidence of the operator contradicted the evidence which was to the effect that the only telephone call outside from his house during the murder was only a call for an ambulance.

Section 7

“7.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.”

They will be those facts which will afford the opportunity to the facts in issue. The occasion may not be a fact in issue but it helps us understand the fact in issue or relevant facts.

CAUSE/EFFECT

John Makindi V. R EALR 327

The accused in this case was charged with the murder of a boy over whom he stood in loco parentis (foster father) to. In his defence the accused averred that the deceased was epileptic trying to explain away the injuries on the boy and how they may have occurred. Medical evidence showed that the boy had died due to severe bleeding in the head and a doctor testified that there were blood clots in the boy’s head which had opened causing a lot of blood to flow from the deceased’s head and therefore occasioning his death.

The prosecution tendered evidence that the accused had previously beaten up this boy and had previously been convicted for beating up this boy and he had threatened the boy with further beatings on account of having been convicted. The question was whether evidence of previous beating was admissible. The court held yes that the evidence of previous beatings was admissible in the circumstances? Could the court admit the evidence of past beatings? The court held that the beatings of earlier beatings was admissible because having taken the evidence of blood clots at the head, it was important to know the cause of the blood clots and the evidence of the previous beatings was admissible as a fact leading to the bleeding and ultimate death.

The cause of things or relevant facts or facts in issue will be admitted to explain the cause of death. E.g. the opening of the blood clots and loss of lots of blood. The previous beatings showed us the cause and was thus admissible, so the cause of things and the cause of relevant issues will be admitted. They explain the cause of death like in this case.

STATE OF AFFAIRS

R V RABIN & ANOTHER [1947] Vol. 14 E.A.C.A 80

In this case there was a charge of corruption and the prosecution tried to lead evidence of a previous shady dealing in which the two persons whose conduct was in issue were involved. The question was whether the evidence was relevant. The court held that the evidence of the previous shady dealings was relevant because it gave the state of things under which the bribe was given. It explained the state of things in which the transaction occurred. The transaction which is the fact in issue.

OPPORTUNITY

R V Premji Kurji R.V. (1940) 7 E.A.C.A. 40

The case shows that the accused had opportunity to commit the murder. This case discusses Res Gestae. The deceased had been killed with a dagger, and evidence was admitted at the trial of the fact that just prior to the death of the deceased the accused had assaulted the deceased’s brother with a dagger and had uttered threats against the deceased. It was held that the accused had an opportunity, he had used the dagger only a few minutes before he used it to commit the murder.

Section 8 8. Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact.”

Facts which relate to motive, preparation or conduct of any fact in issue will be relevant.

Motive is that which makes a person do a particular thing or act in a particular way. For instance a person who is accused of rape may be motivated by lust or desire. A person who says they killed in self defence will be motivated by fear. Motive is what influences a person’s acts or conduct. For all voluntary acts, there will be a motivation and you need to look at a person’s conduct to explain away the motivation. Similarly any fact that would constitute preparation for a fact in issue is also going to be admissible. The planning or arranging means and measures necessary to commit an act or to do something. If it is a crime, it will be the type of measures one takes to help achieve the committing of that that crime. For example if you intend to steal there will be surveillance involved. Hiring implements required to commit the crime.

Similarly any fact which shows the conduct of any party to the proceedings is relevant.

Section 8 (4)

8. (4)The word “conduct” in this section does not include statements, unless those statements accompany and explain acts other than statements.”

Statements are expressly excluded. You are not talking about statements but preparation. Under section 8 you are dealing with things that people do and not things that people do. If you want to bring in a statement, it would have to be associated with an act.

Section 9 9. Facts necessary to explain or introduce a fact in issue or relevant fact, or which support or rebut an inference suggested by such a fact, or which establish the identity of any thing or person whose identity is relevant, or fix the time or place at which any fact in issue or relevant fact happened, or which show the relation of parties by whom any such fact was transacted, are relevant insofar as they are necessary for that purpose.”

Facts, which explain or introduce facts in issue, are relevant.

It is only phraseology of Section 9 that differs from factors that have been explained in Section 6,7 and 8.

10. Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to be so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it.”

The legislator is said to have been acting Ex Abundante Cautella. Out of an abundance of caution. This section deals with conspiracies. If there are reasonable grounds to believe that there is a conspiracy, then whatever is said or done by any person in reference to their common intention, after the time such intention was formed, is a relevant fact.

What does a conspiracy entail? It is where people sit and agree and form a common intention to do something. Common intention is the defining factor of the conspiracy.

It is relevant to prove 1. That it is a conspiracy; and 2. To prove that persons were parties to the conspiracy.

R V. KANJI 1949 VOL 15 EALR 116

It is stated with reference to S. 10 that a person who joins a conspiracy in law is responsible in law for all the acts of his fellow conspirators done in furtherance of the conspiracy whether done before during or after his participation. It is only after common intention is established.

STANLEY MUSINGA ET AL V. R [1951] 18 EACAR 211

Here the court said that “A person who joins a conspiracy is responsible in law for all the acts of his fellow-conspirators done in furtherance of the conspiracy, whether done before, during or after his participation.”

The time when, by act or declaration, reference is made to the common intention is not important so long as it is after that time when the intention is first entertained by one of the conspirators.

R V. MULJI JAMNADAS ETAL 1946 13 EACA 147.

The defendants were charged with a conspiracy to effect a lawful purpose by unlawful means, in that they toured the neighbourhood in a lorry to recruit labour for the Company’s Sugar Works, and that acting together they did on a number of occasions compel persons by the use of force and threats of force to get into the lorry and submit to being carried away on it for labour at the Sugar Works.

The defence argued that intimidating labour into employment was not an offence known to the criminal law of Uganda, and did not, therefore, constitute “unlawful means”. The Court noted, however, citing from ARCHBOLD, that a tort which is not a criminal offence is sufficient to satisfy the provision as to “unlawful means”, and upheld the convictions.

Section 11 - Facts which are inconsistent with or which affect the probability of other facts. 11. Facts not otherwise relevant are relevant— a) if they are inconsistent with any fact in issue or relevant fact; or 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.

What kind of facts are relevant S. 11 (b) is the epitome of all that is found relevant in a fact in issue. Read S. 5 along with S. 11.

Section 12 12. In suits in which damages are claimed, any fact which will enable the court to determine the amount of damages which ought to be awarded is relevant.”

Section 12 – Deals with the facts which affect the quantum of damages. This Section is said to be a boon to ambulance chasers. E.g. contributory negligence your participation affects the amount of damages you receive.

If the plaintiff in a civil suit claims damages as compensation for injuries suffered, the amount of damages which will compensate him naturally becomes a fact in issue. Evidence which helps the court to determine the amount of damages is relevant. The following cases show various types of facts which the courts have considered in reaching an assessment

M’IBUI V. DYER [1967] E.A. 315 (K) “Wounding in course of arrest by private person on suspicion of felony. Psychological factors of malingering and “compensationists” taken into account, as well as aggravation of damages by element of injury to reputation.”

MU WANI [1964] E.A. 171 (U)WANGA V. JI

“The deceased was an African child and the court considered the amount of damages for the loss of service to the mother and grandparents, the father being deceased.”

Section 13.

Bf 13. Where the existence of any right or custom is in question, the following facts are relevant— a) any transaction by which the right or custom in question was created, claimed, modified, recognised, asserted or denied, or which was inconsistent with its existence; or b) particular instances, in which the right or custom was claimed, recognized or exercised, or in which its exercise was disputed, asserted or departed from.

If what you have in issue is your right in custom, 13 (a) factors that show when customs were created, whether it is relevant and what kinds of arguments were made for the custom. (Locus classicus)

Relevance and admissibility

SIMILAR FACTS EVIDENCE:

The definition Similar facts evidence can only be led if there are similar facts to those under consideration. There has to be substantial connection or similarity of what the person did.

The court has a number of questions should ask Is it relevant? Can the offence be proved without similar facts evidence? What other purpose does the evidence serve other than cause prejudice against the accused person?

Section 14 and 15 deal with similar facts evidence.

Section 14 and 15.

14. (1)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 any state of body or bodily feeling, are relevant, when the existence of any such state of mind or body or bodily feeling is in issue or relevant. 15.

(2)A fact relevant within the meaning of subsection (1) as showing the existence of a state of mind must show that the state of mind exists, not generally, but in reference to the particular matter in question. (3)Where, upon the trial of a person accused of an offence, the previous commission by the accused of an offence is relevant within the meaning of subsection (1), the previous conviction of such person is also relevant.

1. Can we infer that something was done by human beings because similar incidents have been occasioned by human beings in the past? Can we rule out natural occurrence when something happens because similar things have happened before?

2. Is it legitimate to infer that the accused person has committed the act under investigation merely because it is shown that he has done similar things in the past?

It is notable that when you are dealing with similar facts, the general principle of law is that it is not legitimate to infer that an accused person committed a particular offence merely because he had committed a similar offence in the past. The reason is because;

1. Firstly there is the policy of consideration of fairness to the accused person. 2. Secondly similar facts evidence is evidence that can bring about a lot of prejudice to the accused person. The offence can be proved without the similar evidence; 3. Thirdly the burden that an accused person has when they come to court is that they have to be ready to defend their whole lives.

Evidence of similar facts may be led if there is substantial connection between those similar incidents and the one in issue. You cannot lead evidence of fact just to show connection. There has to be substantial connection in similarity in what a person did.

The court should ask whether 1. Evidence of similar fact is relevant;

2. There is a purpose that is served by the evidence other than to cause prejudice against the accused person.

Evidence of similar fact helps to establish intention and it can also be used to rule out defence such as honest intention. Even then a Judge has discretion to keep away evidence of similar facts if it is prejudicial to the accused person.

The locus classica on evidence of similar facts is

Makin V. AG

Makin and his wife were charged with murdering a child. It was shown that the child’s mortal remains were found buried in the garden of the Makins. There was no evidence that they had killed the child but there was evidence that the Makins had adopted this child from the parents. There was also evidence that the Makins had also adopted other children who were unrelated to this one. They were being paid after they adopted the children. There was also evidence that the children were never again seen by their parents after being adopted by the Makins. The investigators had found mortal remains of children in gardens of the houses that the Makins had lived in before.

The question was, is this evidence of houses and backyards relevant in the trial for the murder of a specific murder. The evidence was admitted though there was not direct evidence to show that the Makins had actually killed the children. There was substantial connection between the activities of the adoption of the other children and the one under investigation. There was striking similarities between the cases and the Makins had the opportunity to murder the children but the evidence of their dealings with other children was taken into consideration because of the similarities that the investigators had found. In that case, 2 basic principles were established and reiterated in the case of John Makindi V. R. The Principles were as follows:

1. You cannot lead similar facts evidence merely to show the accused disposition to commit an offence. Lord Herschell states as follows “It is undoubtedly not competent for the prosecution to adduce evidence tending to show that the accused has been guilty of criminal acts other than those covered by the indictment for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct/character to have committed the offence for which he is being tried.” Disposition should not be motivation for leading similar facts evidence.

2. On the other hand, the mere fact that the evidence adduced tends to show the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental or to rebut a defence which would otherwise be open to the accused. Essentially the Makin case established parameters for admitting evidence of similar facts. Similar facts evidence cannot just be used to show disposition.

The second proposition delimiting evidence of similar facts is found in S. 15 of the Evidence Act 16. When there is a question whether an act was accidental or intentional, or done with a particular knowledge or intention, the fact that such act formed part of a series of similar occurrences, in each of which the person doing the act was concerned, is relevant.

The question arose as to whether the defence had to wait until a defence arose to raise similar fact evidence or could they raise it to prevent the accused from even thinking of raising a defence.

Had Lord Herschell only given direction on which subsequent courts could built on and in Harris V DPP AC. 394

Viscount Simmons settled the matter . “It was an error to draw a closed list of circumstances of when similar facts evidence was admissible. He dispelled the notion that Lord Herschell one did not have to wait until the accused person raised a defence of accused or mistake for one to bring up the defence before introducing such evidence.

Lord Herschell only gave instance when similar facts evidence could be raised and that Lord Herschell only raised instances.

Mohammed Said Akraby v. R. [1956] Vol. 23 EACA 512

It was held in this case that even though the prosecution did not have to wait until the accused raised a defence; the judge had discretion to exclude similar facts evidence if its probative value was out weighed by the prejudicial effect. It was always going to be a balancing act what purpose does the evidence serve other than cause prejudice.

Noor Mohammed v. R. [1937] Vol. 4 E.A.C.A

The accused was charged with murdering his wife by poisoning. There was no evidence that he had administered the poison but prosecution sought to adduce evidence that the accused had had another wife who died as a result of poisoning in circumstances which suggested that the accused had lured the wife into taking poison as a cure for a toothache. The accused was convicted but on Appeal, the Appeal was allowed on the grounds that evidence admitted by the trial judge was very prejudicial to the accused person. In the words of the court, the probative value was outweighed by the prejudicial effect even though the evidence was technically admissible.

Similar facts evidence must have strong probative value weighed against prejudice.

R v. Scarrot [1978] 1 AER 672

Discussing further probative value versus prejudicial effect, Lord Scarman stated in this case: “Such probative value is not provided by mere repetition of similar facts. There has to be some features in the evidence sought to be adduced which provided an underlying link. The existence of such a link is not to be inferred from mere similarity of facts which are themselves so common place that they can provide no sure ground for saying that they point to the commission by the accused of the offence under consideration.”

Evidence of similar facts has to have its own persuasive value and not to just have probative value it just not depend on coincidence.

Admissible similar facts evidence falls into 3 categories which depend on what it is directed towards.

1. Similar facts evidence to establish state of mind with which some act proved to have been done was done i.e. what motivated the act; 2. Similar facts evidence to prove the identity of the perpetrator or doer of an act; 3. Similar facts evidence to establish the commission of the act itself and therefore rule out an act of nature or miracle.

UNIVERSITY OF NAIROBI FACULTY OF LAW XXX LLB II 2003

LAW OF EVIDENCE Lesson 3

Firstly the question of similar facts evidence to establish state of mind – the accused may admit that he committed an act but his state of mind is not discernible. Looking at the evidence it is overwhelming that the accused committed the crime but it is not clear what his state of mind was. Under this circumstance it may be the case that he had no intention to do what he did. E.g. a person could have killed a human being but the case could be that he killed the human being thinking it to be an animal. If the accused person had done similar actions where the state of mind was clear, then it can be inferred that the present act was done with the same state of mind as the previous ones.

If however the state of mind in previous actions is unclear, the very nature of those acts conceded along with the present one may lead to an inference as to what the state of mind was. For instance if a student was to be caught during the exams copying from the Evidence Act and in defence says that he did not know that he was wrong to copy from the Act, if there is evidence that such a student has been previously caught in another subject doing the same and has been reprimanded for it, then the evidence would go to show that he is not innocent, the Evidence can be used to infer.

R . V. Francis

Francis was charged with attempting to obtain money from another person by presenting a certain ring to be a diamond ring. He said that he had no knowledge that the ring he was purporting to sell was not a diamond ring and was worthless. There was evidence that he had previously approached other persons previously who had refused to give him money for the ring when they realised that the ring was not a diamond ring. The question was whether the Evidence of previous transaction with other persons where these people had refused to give him money for the ring by realising that the ring was worthless relevant. The court held that it was relevant to rebut the defence of lack of knowledge. The evidence of Francis’s experience with other people was relevant to rebut lack of knowledge. The evidence of Francis with other persons was relevant here to rebut lack of knowledge.

John Makindi V. R

Evidence of similar fact in John Makindi was admitted on the ground that it illustrated the hostility and ill-will between John Makindi and his foster child. On state of mind one of the findings explained the cause of loss of blood and the other evidence showed that he had been previously taken to court and had threatened the child with further beating on account of having sent him to prison. Similar evidence can be used to show the intention in which an act was done. You can pin the act on a person because they admitted but you may be unable to establish what the state of their mind was. You use similar fact evidence to illustrate that a person had fraudulent intention.

R V. Armstrong

Armstrong was charged with murdering his wife by administering arsenic poison on her. This poison was actually found in his house tied up in packets containing a fatal dose. Armstrong claimed that he used the poison to kill weeds as a gardening aid. There was actually no evidence that he had administered the poison on his wife. The prosecution however sought to lead evidence that a few weeks after Armstrong’s wife’s death he had attempted to murder another man by giving him arsenic poison. The question was whether this evidence was admissible. The defence raised the objection that the evidence was prejudicial and irrelevant. The court held that the evidence was admissible and in the words of Lord Hewart “… The fact that Armstrong was subsequently found not merely in possession of but actually using for a similar deadly purpose the very poison that caused the death of his wife was evidence from which the jury might infer that the poison was not in his possession at the earlier date for an innocent purpose.”

R V. Bond [1969] 2 K.B. 389

Dr. Bond was charged with using some instruments on a woman with the intent to procure an abortion. He denied the intent, he said that he was not using the instrument to procure an abortion but the instruments were to examine the woman. The prosecution however sought to lead evidence that the doctor had used the same instruments on another woman occasioning an abortion and the girl on whom he was being accused in using the instruments testified that the doctor had told her words to the effect that he had made dozens of girls happy and could do the same to her. The defence objected to this evidence on the grounds that it was prejudicial and irrelevant but it was admitted on the grounds that it showed the doctor’s intention in purporting to examine the woman and rebutted the doctors’ assertion that he was using it to examine the woman.

Achieng’ V. R

Achieng’ was a permanent secretary who had an imprest account and was charged with stealing 76,000/- from that account. His defence was that he had no intention to defraud and that he intended to account for the money but was apprehended prematurely. The prosecution however adduced evidence to the effect that on six previous occasions, Achieng’ had taken money from his imprest account and never accounted for it. The question was whether the evidence of previous occasions was admissible and the court held that it was admissible because it rebutted his defence of intention to account for the money.

The Queen V. Harold Whip and Another (1955) 28 KLR

The two accused were charged with conspiracy to defraud the City Council. The case for the prosecution was that pursuant to an agreement between the two accused, one of them was a City Council Engineer and the other one an excavator, the 1st accused, certified payments as due to the 2nd accused firm for the excavation of hard rock which the 1st accused knew to be greatly in excess of what had been excavated. The 1st accused had therefore caused excessive payment to be made by the City Council to the contractors. The prosecution alleged that this was done fraudulently and that he had not just made an honest mistake in the estimation of the rocks. The prosecution actually brought evidence that there had been a case where the same accused had overestimated the amounts owed to the 2nd accused an event which had occurred in 1953. The court held that the 1953 transaction rebutted a defence of honest mistake. Essentially showing the state of mind with which he had acted.

R V. Mortimer

Mortimer was charged with murdering a woman cyclist by knocking her down. He claimed that it was an inevitable accident. The prosecution however adduced evidence that Mortimer had on previous occasions knocked down other female cyclists. It was held that this evidence of the previous incidence was admissible to show that he intended what he had done. It was not an accident. The nature of the event as a whole ruled out coincidence and the conclusion was gleaned from looking at the transaction as a whole.

SIMILAR FACTS EVIDENCE TO IDENTIFY THE PERPERTRATOR OR DOER OF AN ACT

Where it is shown that a particular act has been done but nobody knows for sure who did it, if it so happens that other acts of distinctive similarity with the one under consideration have occurred and a particular person has been involved, then an inference may be drawn that he was the doer of the act under consideration. It is notable however that for this inference to be drawn the similarity must be very distinct to ensure propensity on its own should not be used to judge a person. For example if handbags disappear and it is known that they disappear during the break and this time a person is caught walking out with a handbag and then it is discovered that this person never comes back to class after the break and a modus operandi is drawn that this person has been taking the handbags and the person has a liking for a particular kind of handbag. Essentially you are looking for similarities.

R V. STRAFFEN:

In this case a young girl was found strangled by the roadside and it was clear from examining her that there had been no attempt at sexual assault on her person. Straffen had been seen around the scene of crime but there was no evidence that he was directly or indirectly connected with the murder. It was established as a fact that Straffen had strangled two girls at a different place two months earlier and had also left their bodies by the roadside. It was also clear that there had been no attempt at sexual assault on these girls. Straffen had been committed to a mental hospital for the offence and at the time the girl whose murder was under consideration had been killed; Straffen had escaped from the mental hospital and was at large. When the police went to interview him he said even before he was questioned ‘I did not kill the girl’. He was convicted on the basis of the evidence of the other two girls. Again it was established that he had had the opportunity to murder the girl having escaped from the mental hospital and the fact that he had been seen near the scene he had the opportunity and the propensity was so distinct.

Thompson V. R

Thompson had carnal knowledge of two boys and he gave them a date 3 days later. He described the place of the date as a street outside a public toilet. Thompson met the two boys at the appointed hour. On noticing the presence of strangers, Thompson gave the boys some money and asked them to go away. It turned out that these strange persons were police and when they approached Thompson he told them that they had got the wrong man. On being searched Thompson was found in possession of a few bottles of chemicals and a further search of his house yielded photos of naked boys. The judges relied on this evidence and its use as alleged by the boys. The boys said what the chemical had been used for. In the words of the court, being gay had characteristics that were easily recognisable. It elicited a distinct propensity and was therefore a reliable means of identification.

Paul Ekai V. R [1981] CAR 115

Paul was charged with the murder of Joy Adamson a famous conservationist. His defence was an alibi (alibi is assertion of not being at the locus quo). Ekai said that he had been in Isiolo staying with his grandmother. The evidence was that on the material night, one of the 3 trunks of boxes in the deceased tent including the one containing the cash box had been forced open by a person using a bar which had been taken from the workshop at the camp. The intruder had escaped using the animal enclosure. The prosecution gave evidence that 3 weeks earlier, there had been a theft at the camp and on that occasion the box containing the cash box had been forced open with the bar taken from the camp workshop. The intruder on that previous occasion had gone out through the animal enclosure. When Paul was apprehended after the murder, he was found in possession of some clothes stolen from the camp on the previous occasion. Paul was the deceased’s worker and he had a good knowledge of the camp and taking all these factors into consideration it was held that the evidence of the previous theft was admissible in attempts to prove the murder because the acts exhibited a distinct modus operandi.

Similar fact evidence can be lead to prove the commission of an act

This applies in situations where it is not clear whether the act was done or it happened miraculously. If it is shown that a similar act has occurred caused by human intervention, this is a good ground for inferring that a particular act was actually done as opposed to it just happening miraculously. This is normally in situations where if you look at the acts in isolation, you can dismiss human act and attribute them to nature but when you look at the acts together you can see they had help.

R V. Smith

Smith married his first wife. He took out an insurance policy on her life in his favour. He made representation to his personal doctor that his wife was epileptic, a few months later his wife’s dead body was found floating in the bathtub and a few months later the insurance paid. Smith proceeded to marry another woman, took out an insurance policy on her in his favour and made assertions that she was epileptic and she too was found dead in the tub and he proceeded to collect insurance and married yet another one whose body was also found dead. He was charged with murdering wife no. 1 on the basis of the subsequent deaths of wives 2 and 3 in similar circumstances. In the words of the court the coincidence was too fantastic to be credible and this of course ruled out the possibility that the drowning of the women in the bath was an accident. In the words of the court the act was done by human hands and the motive was clear so it was not an act of God.

Makin V. Attorney General

The question arose whether the dying of the children adopted by the Makins was coincidental.

R V. BOLL

In the Republic V. Boll, Boll stayed with his sister as husband and wife when incest was not an offence and they even had a child together when incest was not an offence. After parliament made incest an offence, the two were charged for having an incestuous affair, but they continued living together as man and wife. Even after incest had been made an offence, they still continued to live together as man and wife and the question was whether the evidence of the previous cohabitation as man and wife could be used against them. They were convicted of incest because their previous association ruled out innocence of their subsequent association. The logic was that if two people have previously lived as husband and wife, unless they separate to live under separate roofs they continue to live as husband and wife. The burden is on them to rebut this presumption and they were unable to do that.

To summarise similar fact evidence we should look at Section 16 of the Evidence Act “When there is a question whether a particular act was done, the existence of any course of business, according to which it naturally would have been done, is relevant.”

For instance if you are trying to establish whether 2 people had lived as husband and wife. If you can show previous cause of dealing where they were living as man and wife that would be admissible.

Admission of similar fact evidence is the exception to the general rule and will only be admitted when it has strong probative value.

What is similar fact evidence and when is it admissible? Section 15 and 16 wise sayings of judges and case law.

JUDICIAL NOTICE

Judicial notice is defined as what judges see or the liberty accorded a judicial officer acting as such to recognise the existence or non-existence of certain facts or phenomena without calling for evidence.

On what basis will Judicial Notice be allowed: -

1. The habit or customs of the court and this relates to the authenticity for instance of certain signatures. You don’t have to prove the authenticity every time they come to court. Seals of the court you don’t have to prove their authenticity because the court habitually uses the seal. The names and official designation of high ranking officers past and present; International relations of a country if Kenya is at war with a country judges are expected to know;

2. Where statutes decree that certain things be judiciary noticed e.g. certain certificates that judges will decree should be taken judicial notice of; 3. Need to make things workable e.g. the practice of the court, how the court conducts itself is taken judicial notice of. Ordinary rules of reasoning don’t need evidence to be proved.

4. Basis of judicial notice is that of matters that are known by everybody e.g. judges would know that if you imbibe certain liquids you can get intoxicated this is commonly known. One cannot assume that judges are so ignorant that they won’t know what everybody else knows.

The effects of judicial notice Section 59 of the Evidence Act “No fact of which the court shall take judicial notice need be proved.

Judicial notice dispenses with proof.

Section 60 enumerates matters that the court should take judicial notice of.

60.(1)The courts shall take judicial notice of the following facts:- a) All written laws, and all laws, rules and principles, written or unwritten, having the force of law, whether in force or having such force as aforesaid before, at or after the commencement of this Act, in any part of Kenya;

b) The general course of proceedings and privileges of Parliament, but not the transactions in their journals;

c) Articles of War for the Armed Forces;

d) The public seal of Kenya; the seals of all courts of Kenya; and all seals which any person is authorized by any written law to use;

e) The accession to office, names, titles, functions and signatures of public officers, if the fact of their appointment is notified in the Gazette;

f) The existence, title and national flag of every State and Sovereign recognized by the Government;

g) Natural and artificial divisions of time, and geographical divisions of the world, and public holidays;

h) The extent of the territories comprised in the Commonwealth;

i) The commencement, continuance and termination of hostilities between Kenya and any other State or body of persons;

j) The names of the members and officers of the court and of their deputies, subordinate officers and assistants, and of all officers acting in execution or its process, and also of all advocates and other persons authorized by law to appear or act before it;

k) The rule of the road on land or at sea or in the air;

l) The ordinary course of nature; Preston Jones V. Preston Jones – Preston went abroad and resided there for 9 months and therefore had no nuptial intercourse with his wife. 3 months after he came back, a baby was born to his wife fully mature. He petitioned for divorce on the grounds of adultery. Relying on the evidence that the ordinary course of nature i.e. that human gestation period was 9 months and not 12 or 3 months. The court held that the matrimonial offence of adultery was not proved. In the words of judges “though the court took judicial notice of the normal life of human gestation period, it was not completely ruled out that there could be abnormal periods of human gestation.

m) The meaning of English words;

n) All matters of general or local notoriety; (things that everyone knows) o) All other matters of which it is directed by any written law to take judicial notice.

Should we take judicial notice of customary law?

Kimani Gikanga

The issue arose as to whether in a dispute involving customary law whether customary law should be taken judicial notice of. Judges were of the opinion that the party that seeks to rely on the customary should prove that customary law as a matter of fact by calling expert witnesses. This is because of the difficulty of establishing what the customary law is at any given time since it is unwritten.

Section 18 of the Magistrates Act Magistrates are allowed to take Judicial Notice of customary law without having to call for proof for it and if there is a dispute, then it will have to be established by proof. If customary law is a disputed tenet, then there is need for proof. If there are contestations then proof will have to be called.

Section 60 (1) (b)Judicial Notice should be taken of the general course of proceedings and privileges of parliament, but not the transactions in their journals.

The court need not call for evidential proof of privileges accorded to parliament. These provisions however exempts from judicial notice transactions in parliamentary journals. Whatever is recorded in the Hansard is not going to be taken judicial notice of.

Section 60 (1) (c) -Judicial Notice should be taken of articles of war for the Armed Forces.

Section 60 (1)(e)-the public seal of Kenya; the seals of all courts of Kenya; and all seals which any person is authorized by any written law to use;

Section 60 (1) (f) - The accession to office, names, titles, functions and signatures of public officers if the fact of their appointment is notified in the Gazette;

Section 60 (1) (g) the existence, title and national flag of every State and Sovereign recognized by the Government; this is to avoid embarrassment. Section 60 (1) (h) Natural and artificial divisions of time, and geographical divisions of the world, and public holidays;

Section 60 (1)(i) The extent of the territories comprised in the commonwealth;

Section 60 (1)(j)the commencement, continuance and termination of hostilities between Kenya and any other State or body of persons;

Section 60 (1)(k)the names of the members and officers of the court and of their deputies, subordinate officers and assistants, and of all officers acting in execution of its process, and also of all advocates and other persons authorized by law to appear or act before it;

Section 60 (1)(l)the rule of the road on land or at sea or in the air;

Section 60 (1)(m) the ordinary course of nature;

Section (1)(n)the meaning of English words;

Section (1)(o)all matters of general or local notoriety;

Section (1)(p)all other matters of which it is directed by any written law to take judicial notice.

PRESTON JONES VS PRESTON

Preston went abroad and resided there for 9 months and therefore had no nuptial intercourse with his wife. 3 months after he came back, a baby was born to his wife fully mature. He petitioned for divorce on the grounds of adultery. Relying on the evidence that the ordinary course of nature, human gestation was 9 months not 12 months or 3 months. The court held that the matrimonial offence of adultery was not proved. In the words of the judges, “though the court took judicial notice of the normal life of human gestation, it was not completely ruled out that there could be abnormal periods of human gestation.

Re Oxford Poor Rate Case:

Burns V. Edmund

In this case Crichton J. halved the conventional award of damages for loss of expectation of life to the wife of a deceased criminal after taking judicial notice of the fact that “the life of a criminal is an unhappy one.”

UNIVERSITY OF NAIROBI FACULTY OF LAW

XXX LLB II 2003

Law of Evidence Lesson 4

PRESUMPTIONS:

These are inferences that a court may draw, could draw or must draw. Presumptions are devices that entitle a court to pronounce on a particular issue not withstanding the fact that there is no evidence or there is insufficient evidence.

The inference that the court may draw could be affirmative or dis-affirmative (on the yes or on the no) presumptions enable a court to find a fact to exist or to find a fact not to exist. Essentially presumptions will have effect on the burden of proof. If we are saying that presumptions will help the court to find a certain fact to exist, it will have an effect on what burden of proof a person will have.

There are 3 categories of presumptions:

1. PRESUMPTIONS OF FACTS these are inferences that may be drawn upon the establishment of a basic fact. The operative word in these presumptions is ‘may’. When you find a basic fact to exist, you are invited to come to court. There is an invitation to the court to draw a certain inference.

2. REBUTTABLE PRESUMPTIONS OF LAW They are inferences that must be drawn in the absence of conclusive evidence to the contrary. A good example is the presumption of innocence, that every person accused of a crime is innocent until proved guilty. Until there is conclusive evidence dispelling the innocence of the accused person. Essentially these presumptions are said to be mandatory until you have other conclusive evidence to the contrary.

3. IRREBUTTABLE PRESUMPTIONS OF LAW: These must be drawn no matter how much evidence exists to the contrary. Once you establish the basic fact pertaining to the presumption then you have to draw the inference that will dispel that presumption. They will usually be drawn from statutory provisions. They are public policy pronouncements, which decree that in the interest of public certain matters are decreed to be a certain way e.g. an 8 year old boy is not capable of carnal knowledge. Section 4 of the Evidence Act defines presumptions of facts and rebuttable presumptions of law 1) “Whenever it is provided by law that the court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it.”

2) Whenever it is directed by law that the court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved.” 3) When one fact is declared by law to be conclusive proof of another, the court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it. PRESUMPTIONS OF FACTS: (DISCRETIONARY PRESUMPTIONS) They are inferences that may be drawn. Section 4 (1). Evidence Act Section 77(2). The court may presume that the signature to any such document is genuine and that the person signing it held the office and qualifications which he professed to hold at the time when he signed it.” The court is allowed to presume and it is incumbent on the person who argues otherwise to prove their case. Section 92. The court may presume that any document purporting to be a copy of a judgment or judicial record of any country not forming part of the Commonwealth is genuine and accurate, and that such judgment or record was pronounced or recorded by a court of competent jurisdiction, if the document purports to be certified in any manner which is certified by a Kenya consular officer or diplomatic representative in or for such country to be the manner commonly in use in that country for the certification of copies of judgments or judicial records. Section 93. The court may presume that any book, to which it may refer for information on matters of public or general interest, and that any published map or chart, the statements of which are admissible facts and which is produced for its inspection, was written and published by the person and at the time and place by whom or at which it purports to have been written or published. There are certain things that are non-contestable and one should not waste the courts time trying to prove them. Section 113 this section used to help in probate matters but once the Law of Succession was put into being it was repealed. This was important when we would talk about proof of death within 30 years. Section 119. The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. (Presumption of likely facts) We are talking about an inference that may be drawn regarding natural events, human conduct and the common course of natural events. You infer from what you see. If a person is caught with stolen goods, it is presumed that he stole them or that he knows who stole them. If they cannot adequately explain how they came to possess stolen goods, then the incumbent of proof is on them to say how the owner came to lose the goods. The ability of the court of law to draw an inference

Presumption of guilty knowledge. From experience we can infer that a woman who is in possession of stolen goods after the theft and cannot give account of those goods is either the thief or has received them knowing them to be stolen. We are talking of recent possession. In Zus V. Uganda the question arose, the court here refused to apply the doctrine of recent possession after the accused was found in possession of a stolen bicycle 7 months after it had been recorded lost. The trial court had actually applied that doctrine to convict the thief of both the theft and receiving stolen goods because the accused had not given any reasonable explanation by how he had come upon the bicycle. The Appeal Court held that 7 months cannot be described as recent and consequently the court of appeal quashed the conviction for theft while upholding the conviction for receiving stolen goods.

PRESUMPTION OF LIKELY FACTS S. 119 (IMMUTABILITY OF THINGS) A thing or state of things which has been shown to exist within a period shorter than that within which such things or state of things usually cease to exist is presumed to be still in existence. An example is given in the case of Kanji & Kanji V. R. 1961 E.A 411 C.A

In this case a sisal factory employee’s arm was amputated by a sisal decorticator in April 1960. An examination done by a Mr. Perkin in September 1960 showed that there was no barrier or fence to protect the employees when feeding the machine with sisal leaves. The firm was held liable for failing to provide ample barriers to protect employees from the machine and this finding was held on the basis of the presumption of the immutability of things. On appeal the factory owner had argued that there was some form of fence at the Factory when the accident occurred in 1960. This barrier was not found to be in place in September when Mr. Perkins did his inspection. The Court held that the Magistrate was correct in presuming that the machine was in the same condition in April as it was in September 1960. It is unlikely that there was a barrier in April which disappeared by September but the factory owners were welcome to bring in evidence to prove that there had been a barrier in April. OFFICIAL & JUDICIAL ACTS ARE REGULARLY PERFORMED

(PRESUMPTION OF REGULARITY) It is based on sound public policy which imputes good faith on official and judicial conduct. The burden is on he/she who alleges irregularity to bring the evidence to disprove or establish the irregularity. Looking at how our courts run, this might not be the way to go. For instance if your file gets lost, will you allege that the file got lost by the court. THE COMMON COURSE OF BUSINESS HAS BEEN FOLLOWED IN PARTICULAR CASES The basis of this presumption is business practice. If some business has been carried out pursuant to this common course, it is going to be presumed to be so unless the person alleging otherwise brings evidence to the contrary. If you have a quarrel with the common course of business, it is incumbent on you to prove that the common course of business was not followed. EVIDENCE WHICH COULD BE PRODUCED AND IS NOT PRODUCED WOULD IF PRODUCED BE UNFAVOURABLE TO THE PERSON WHO WITHHOLDS IT: This again is something that you draw as a worldly-wise person. If someone is withholding evidence, it would be presumed that th