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THE LAW OF EVIDENCE I SUMMARIESADMISSIBILITY AND RELEVANCE OF EVIDENCE.(RES GESTAE)The term res gestae is used to connote acts, declarations and circumstances constituting or explaining a fact or transaction in issue. It is therefore assumed that there is a transaction in issue or a principal fact. ...

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THE LAW OF EVIDENCE I SUMMARIES ADMISSIBILITY AND RELEVANCE OF EVIDENCE.(RES GESTAE) The term res gestae is used to connote acts, declarations and circumstances constituting or explaining a fact or transaction in issue. It is therefore assumed that there is a transaction in issue or a principal fact. What constitute res gestae are those other facts that are in relationship with the fact in issue. Res gestae therefore refers to facts that are admissible in evidence as the surrounding circumstances of the event to be proved. The doctrine of res gestae is incorporated in the Evidence Act from section 4 to section 15. PARTICULAR ASPECTS OF RES GESTAE. 1. Facts which form part of the same transaction. 2. Facts which are the occasion, cause or effect of the facts in issue 3. Facts which show motive, preparation, previous or subsequent conduct 4. Explanatory and introductory facts. 5. Facts which show common intention. 6. Contradictory or inconsistent facts 7. Facts which show the state of mind or bodily feeling 8. Facts which are evidence of similar facts or occurrences 9. Facts which show the ordinary course of business Now let us turn to each of the above aspects in some detail. 1.

Facts which form part of the same transaction. Section 5 of the Evidence Act provides as follows, “Facts which though not in issue are so connected to the fact in issue as to form part of the same transaction are relevant whether they occur at the same time or place or at different times and places.” R V KURJI (1940) 7 EACA 58 The accused had stabbed the brother of the deceased and had uttered threats against the deceased. Immediately afterwards, he was seen in the go down of an immediate shop standing over the deceased holding a dagger. It was held that the two circumstances were so interconnected that the wounding or stabbing of the deceased’s brother must be regarded as part of the res gestae in the trial of the accused in the murder of the deceased. Further that this evidence was admissible even though it tended to lead to the commission of another offense. Whitney CJ stated, “ When two acts of an accused 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 by the accused.”: . Under this provision, facts constituting the same transaction can only be introduced for purposes of explaining the fact in issue. Section 5 provides that time may not be important. Section 5 is applicable in civil and criminal proceedings and the issue of whether time is relevant or not will depend on the nature of the transaction. ORIENTAL FIRE AND GENERAL ASSURANCE LTD V GOVENDA AND OTHERS. (1969) EA 116 In the case, the appellant sued the respondents seeking to avoid motor vehicle policy which they had given the respondent covering statutory third party liability on the ground that the first respondent had made a misrepresentation in a material particular by denying that he had never been involved in a motor accident with a vehicle owned and driven by him. The second and third

respondents were injured in an accident involving the insured vehicle. The appellants relied on the statement made by the first respondent to a police officer that he was driving the car involved in the first accident. The issue was whether the statements made after the motor accident were part of res gestae. It was held the statement of the first respondent was not part of the res gestae in that it was not spontaneous or said at or immediately after the time of the accident. Court relied on Bailhache J holding in Tustin v Arnold and sons (1915) 84 LJKB 2214 that, “The res gestae was a single act; namely, the collision with the motor car. In such a case words even spoken, do not become part of the res gestae, unless they are made at the time and are the natural consequence of the collision and are at any rate spontaneous.”

2.

Facts which are the occasion, cause or effect of the facts in issue Section 6 of the Evidence Act provides, “Facts which are the occasion, cause or effect, immediate or otherwise of relevant facts or facts in issue, or which constitute the state of things under which they happened or which afforded an opportunity for their occurrence or transaction are relevant.” Therefore, any fact which could be a cause to any fact in issue is relevant. In MAKINDI V R (1961) EA 327, The appellant was convicted for manslaughter of a boy for whom he stood in loco parentis by beating him so severely that he died. At the trial, the appellant had raised a defense to the effect that the boy was epileptic and so had suffered these injuries in the course of an epileptic attack. The prosecution had then adduced evidence of previous severe beatings of the deceased by the appellant in order to rebut his defense the issue was whether that evidence was admissible and it was held that that evidence was admissible and section 6 of the Evidence Act as explaining substantiating the cause of death as well as under sections 7 and 13 (now section 8 and 14) showing the motive of the appellant to revenge on the deceased and the appellants’ ill will towards the child. In HARRIS V DPP (1952) AC 57 A series of thefts having common characteristics occurred in an office in an enclosed market at times when the gates were shut and on occasions where the accused police officer was on duty in the market the precise time of only one of those breaking was known and the accused had been found in the immediate vicinity. The accused was charged with eight breaking thefts but acquitted on seven counts and convicted on the eighth. The issue on appeal was whether the seven counts could have been admitted/proved and it was held that as regards the eighth breaking evidence of the previous seven breakings would have to be excluded because they occurred at a time when it hadn’t been proved that he was near the office. Court went on to say that the proper rule as laid down in the case of Makin V Attorney General of New South Wales. (1894) AC 57 The proper rule is that evidence tending to show that the accused has been guilty of criminal offences other than the one he is being tried is inadmissible unless certain evidence is relevant to the issue before court as for example it bears on the question whether the acts alleged to constitute the offense were designed, accidental or if it rebuts an offense which will otherwise be open to the accused Under section 6, facts that afford an opportunity to bring out facts in issue are very relevant. For example, time, place, physical presence, ability etc. In civil proceedings, this section may be used

to show what caused the fact in issue and will assist the court in apportioning liability as well as help in the assessment of damages. In R v Brabin and Khosla, the appellants were charged with obtaining bribes and prosecution brought evidence to show the appellant’s previous corrupt transaction with Kara. The court held that as evidence of the previous corrupt transaction also concerned Kara, such evidence was admissible. It showed the state of things under which the offence in issue happened. There was a connection between the previous similar offence and the offence charged. 3.

Facts which show motive, preparation, previous or subsequent conduct Section 7 (1) of the Evidence Act provides as follows, “Any fact is relevant which shows or constitutes a motive or preparedness for any fact in issue or relevant fact.” Section 7 (2) provides that the conduct of any party … in any suit or proceeding or in reference to that suit or proceeding or in reference to any fact in issue to a suit or proceeding or relevant to it, and the conduct of any person to an offense against whom is a subject of any proceeding is relevant if that conduct influences or is influenced by any fact in issue or relevant fact and whether it was previous or subsequent to the fact in issue or relevant fact. Motive is what influences a person to act in a particular way. In criminal law, motive is irrelevant, but in the law of evidence; motive may be relevant in so far as it establishes causation. Motive may be a fear or a desire to bring about a particular activity. Motive is a mental state and it’s normally derived from circumstances and relationships. It can also be established from a person’s words and moods. Under section 7, facts which constitute preparation are also relevant and admissible. Preparation refers to plan to bring about a particular event. Preparation refers to completing all the necessary prerequisites to bring about the fact in issue. Section 7 also makes relevant previous and subsequent conduct. Previous conduct refers to conduct before the fact in issue is committed. It may include motive. It could refer to the means of bringing about the fact in issue. It could also mean previous attempts as well as declarations of intent. Subsequent conduct may explain the occurrence of an offense and may be used to implicate a person of a crime. Some cases, silence by the accused person, giving of false statements or evasive explanations and the absconding form jurisdiction may amount to subsequent conduct. Motive In Bitwire v Uganda (1987) HCB 11, the accused and the victim were married to sisters and were prominent businessmen in kabala. Evidence was led to show that the appellant had hired assassins to kill the victim but their attempts were unsuccessful. On the day when the appellant visited the victim and when the victim was escorting the appellant home, the victim was shot and killed. It was held that in a weak case, the absence of motive ought to be considered in favour of the accused because a sane person does not normally kill another for no reason at all. In Uganda vs Bari Kunda S/O Rwebanda (1985) HCB 12, the accused was a brother to the accused. They had a long standing dispute over land which was resolved in favour of the deceased by his father and the local committee. The accused then threatened ‘although the dispute has been resolved in your favour, you will never use the land’. This was said a year before the murder. On the fateful day, both went drinking together and again quarrelled. Their homes were in the same neighbourhood. As the deceased passed via the accused’s house they again started quarrelling and the accused chased him with a knife and stabbed him on the

stomach and the intestines came out. After stabbing the accused ran up to hills and remained there for a week. Court held that where motive is established, becomes a relevant fact for determining intention. In Tinkamanyire and another v Uganda (1988-90) HCB 5, the appellants belonged to different religious beliefs, the appellant identified the victim to some security operations and the victim was arrested and disappeared thereafter. Held; that motive is generally irrelevant in criminal cases but may be useful because a person in normal senses couldn’t commit an offence without a motive and that in the circumstances of this case, it was fair for the trial judge hold that the appellants wanted to get rid of the victim because he was converting members of their sect to his sect. UGANDA V PAUL MUWANGA 1 The accused was charged with interference in the execution of legal process. The prosecution alleged that the accused a vice president at the time, ordered the release of a suspect who had been engaged in banditry, who was on remand. No evidence was given to what motive must have driven the accused to set the suspect free though the suspect was later seen in the company of the accused. Issue Whether it was necessary to prove the existence of motive? Court said that our law does not require prosecution to prove motive in criminal cases. But in the instance case however, absence of any reason advanced by the prosecution as to why the accused should have wished to see the suspect released strengthened the accused’s defense. Previous conduct In Robo Vs R (926) 10 KLR 55, previous and subsequent conduct in cases of rape and allied offences was discussed, court Held that complaints of such victims of such offences if made at the first reasonable time after the offence are admissible. The complaint being indicative of the complaint’s state of mind and therefore on the complaint’s conduct although it may not as on its own establish the facts complained of. Subsequent . In Henry Kifamunte V Uganda, S.C. Crim Appeal, the appellant had been convicted of aggravated robbery and murder and the prosecution’s evidence rested on inter alia the conduct of the appellant. It was stated that after the offences had been committed, the appellant after seeing the police ran away but was overrun by the police which arrested him and prosecution submitted that the subsequent conduct by the appellant of running away showed the guilty mind of the appellant, i.e having committed the offences. The appellant was convicted by the high court and this was confirmed by the Court of Appeal and hence the appeal to Supreme Court which reversed the judgements of high court and court of appeal. This was because of the explanation by the appellant that he ran for fear of his life, that the angry mob could not have given him a chance to explain anything and secondly, the fact that the learned trial judge noted during the proceedings that there was a possibility that any innocent person could have run for his life, there was doubt created and should have been resolved in favour of the accused, hence the appeal succeeded. However, in Uganda Vs Simon Onen (1991) HCB 7, the accused was charged with murder and he claimed to have been woken up by the beatings administered by the victim on him. The deceased’s body was found a few meters from his house and it had cuts and evidence that the deceased’ body had been dragged through the accused’s compound. The accused disappeared for

2 months and when he re-appeared, explaining that he had been afraid that the local militia would kill him, it was held that the conduct of running away was not that of an innocent man. In Uganda Vs Kabandize (1982) HCB 93, the accused and the deceased exchanged harsh words and called each other bad words and nearly fought, the accused used a short spear and stabbed the deceased and then ran to a swamp nearby from where he was arrested while walking around the swamp. Court held that the conduct of the accused of running away immediately after wards was that of a guilty mind. R V Ball...The two defendants were charged under the punishment of incest. Evidence was laid to show that the previous acts of the accused in a view of showing that there was incest. It further said that the brother had earlier alone bought a house in which he took his sister and lived as husband and wife and in the period second accused gave birth to a child and the second and first accused both registered the child as mother and father. They were convicted upon this evidence. Appealed and conviction was set aside and on further appeal they laid evidence to show that evidence was inadmissible since nothing had occurred to render it admissible as rebuttle. Issue. Whether previous acts were admissible as evidence HELD Evidence of previous conduct to be admissible to show a number of things. First of all to be used to show relationship of two parties, to show intent, to show guilt to show knowledge, design, or to show a system, or to be used to rebut the defences of accident, mistake or reasonable honest instant. That in this particular case the evidence was admissible for its object was to establish to show that the accused person had a guilt passion towards each other to rebut the defence of brother and sister 4.

a) b) c) d) e)

Explanatory and introductory facts.

Section 8 of the Evidence act provides that facts necessary to explain or introduce a fact in issue or relevant fact, or which support or rebut an inference suggested by a fact in issue or relevant fact or which establish the identity of anything or person whose identity is relevant or fix the time or place at which any fact is in issue or relevant fact happened, or which show the relation of parties by whom any such fact was transacted, are relevant in so far as they are necessary for that purpose. Section 8 introduces the following specific elements as relevant; Facts that explain or introduce a fact in issue. Facts which support or rebut an inference. Facts which establish identity where identity is in issue. Facts that fix time and place at which the relevant issue may have happened. Facts that show a relationship of the parties. Now, let us look at each in detail.

a)

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

b)

Facts which support or rebut an inference. A fact in issue may raise certain presumptions such which contradict or support an inference. Such presumptions are relevant. For example if a crime is committed in a room, the only person

with the keys is inferred that he or she is guilty. If evidence is relayed to show that he or she was not around at the time of the crime, then that fact contradicts the presumption and is relevant. Section 8 and 10 are related because the latter generally reviews the facts that are inconsistent with any fact in issue or with the relevant fact. These provisions apply to both the prosecution and the accused. In FRANCIS KAYEMBA V UGANDA The appellant was charged with and convicted of theft mainly based on circumstantial evidence. It was held that before a conviction is entered on a case mainly based on circumstantial evidence, court should first find in interlocutory facts are incompatible with the explanations on any other reason/hypothesis other than that of guilt. It is also necessary before drawing the inference of guilt drawing on circumstantial evidence to be sure that there are no co existing facts which would weaken or destroy the inference. In UGANDA V BARINDA The accused was indicted for kidnapping with intent to murder. Evidence showed that the deceased as was being served with a drink at a party was called away by the accused towards the trading centre where he was attacked by the accused along with others and dragged near the bush and was never seen again. It was held that there was evidence both circumstantial and direct to the effect that the death of the deceased was caused by the assault on him by the accused and others. However, to establish the cause of death partly by circumstantial evidence, court had to be sure that there were no other co-existing circumstances which would weaken or destroy the inference. Therefore, it was on the prosecution to show that the deceased being dragged into the bush was not enough since anything could have happened to him there. That there were therefore co existing circumstances which tend to weaken the evidence as to the cause of death In UGANDA V RICHARD BAGUMA The accused was indicted on account of robbery and kidnapping with intent to murder. It was alleged that on the day the deceased died, the accused had picked him from his house and taken him away and his bullet ridden body was found the following day. It was held that where evidence is circumstantial in order to justify an inference of guilt. Facts must be incompatible with innocence of the accused and incapable of explanation upon any other hypothesis than that of guilt. In UGANDA V KASYA The accused was indicted for murder; evidence was relayed to show that on the evening of the deceased’s death, the accused had been seen in company of eth deceased. Evidence was also led to show that the deceased’s body had been found about a half a mile from the accused’s residence. That she had first been raped before being strangled and graduated tax tickets belonging to eth accused were found some meters from the body and the accused upon ...