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 wasadmissible 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 88. 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 99. Facts necessary to explain or introduce a fact in issue orrelevant 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 prove1. That it is a conspiracy; and2. 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 relevantfact; 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 1212. 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.

Bf13. 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 definitionSimilar 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 askIs 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 anystate 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 leadevidence of fact just to show connection. There has to be substantial connection in similarity in what a person did.

The court should ask whether1. 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 theopportunity 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 NAIROBIFACULTY OF LAWXXXLLB 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. Underthis 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