NAME
:
KALUMBA JEMIMAH JOY
REGISTRATION NO:
AS19B11/269
ACCESS NUMBER:
A86695
COURSE
:
BACHELOR OF LAWS 3
COURSE UNIT
:
STREAM
:
LECTURER
:
MR. KAAYA EXPEDIT
TUTOR
:
MR. AFRICANO BIGIRWA
LAW OF EVIDENCE
A
QUESTION;
SHOULD THE ADMISSIBILITY OF EVIDENCE BE GOVERNED ENTIRELY BY RULES OF LAW
OR SHOULD THE JUDICIAL OFFICER HAVE DISCRETIONARY POWER TO
(a) admit evidence inadmissible in law ;and /or
(b) exclude evidence admissible in law ?
According to Adrian Keane and Paul McKeon1 the concept o0f evidence is summarized as the
information by which facts tend to be proved.As per Section 2(d)2 evidence denotes the means by
1
2
Modern law of evidence ninth edition oxford university 2012 page 6
Evidence Act CAP 6
which any alleged matter of fact, the truth of which is submitted to investigation ,is proved or
disproved and includes statements by accused persons, admissions, judicial notice presumptions of
law and ocular observation by the court in its judicial capacity. Evidence generally is set to establish
the proof and this is what the courts of law rely on in deciding the cases depending on the relevant
facts in issue. Court does not admit all the evidence brought before it the court only admits evidence
that is relevant to the facts in issue.
Section 43 states that subject to any other law , evidence may be given in any suit or proceeding of
the existence or non-existence of every fact in issue and of such other facts as are hereafter declared
to be relevant and of no others. In the case of DPP v Kilbourne4, Lord Simon did state that evidence
is relevant if it is logically probative or disapprobative of some matter which requires proof.According
to Cross and Tapper 5 the main general rule that is governing the entire subject is that all the
evidence that is sufficiently relevant to an issue before the court is admissible and all that is irrelevant
or insufficiently relevant should be excluded. And this was affirmed by Goddard LJ in the case of
Hollington v F Hewthorn and CO.Ltd6.
Section 2(f)7 states that facts in issue means and includes any fact from which either by itself or in
connection with other facts the existence or ,non-existence ,nature or extent of nay right ,liability or
disability, asserted or denied in any suit or proceeding necessarily follows. The most important aspect
towards judgment is the ascertaining of the facts correctly. Section 2(e)8 defines a fact as anything,
state of things, or relation of things, capable of being perceived by the senses and any mental
condition of which any person is conscious. Evidence generally has two sets of facts one being the
facts in issue and the other the facts relevant to the facts in issue as summarized in section2 (f) and 5
of the evidence Act.
Section 169 defines admissions as a statement oral or documentary which suggests any inference as
to any fact in issue or relevant fact and which is made by any of the persons and in the circumstances
hereinafter mentioned. Admissibility is literally the process by which court will accept or deny
particular pieces of evidence. In the case of Uganda v Kamugisha10 it was clearly stated that all
facts are relevant but not all relevant facts are admissible by court.
.Evidence act CAP6
. DPP V Osbourne (1973) AC 729
5
. Cross and tapper on evidence 12th edition page 64
6
.Hollington v F Hewthorn (1943) KB 587
7
. Evidence act CAP6
8
.Evidence act CAP6
9
.Evidence act CAP 6
10
.Uganda v Kamugisha (1998-90) HCB 77
3
4
According to V.P Sarathi11 Facts are only admissible by a court if the rules of law accept it to be
proved by evidence and its allowed to be proved only if the facts are facts in issue and also incase
the facts are relevant to the facts in issue. Relevancy in evidence involves around the study of the
principles of Res gestae and this is a term that generally means transaction and it’s assumed that
there is a transaction in issue or the principal fact. Res Gestae is used to connote acts, declarations,
and circumstances that constitute, accompany or explain a fact in issue.
Section 512 talks about the relevancy of the facts forming the same part of the transaction and it
states that facts which though not in issue are so connected with a fact in issue as to form part of the
same transaction as relevant whether they occurred at the same time and place or at different times
and places.
In the case of R v Kurji13 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 that 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.
Section 614 provides for the facts which are occasion, cause or effect of facts in issue and others. It
states that acts which are the occasion, the cause or the 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. This section brings out the
fact that facts that reveal facts in issue like time and place are relevant. In the case of Harris V DPP15
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 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
.Law of evidence by Sarathi page 11
. Evidence act CAP 6
13
. R v Kurji(1940) 7 EACA 58
14
. Evidence act CAP6
15
.Harris V DPP (1952) AC 57
11
12
that he was near the office. Court stated that the proper rule as laid down in the case of Makin V
Attorney General of New South Wales16 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.
Section 817 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 has many
elements among which is the fact which supports or rebuts inference hence a fact in issue may raise
facts which support or rebut an inference and such facts are relevant. In the case of Uganda v
Kasya18 the accused was indicted for murder; evidence showed that on the evening of the
deceased’s death the accused had been seen in the company of the deceased also evidence led to
show that the deceased’s body had been found about a half a mile from the accused’s residence and
graduated tax tickets belonging to the accused were found some meters from the body and the
accused upon arrest was found wearing blood stained trousers, he raised the defense of alibi and it
was held that where the accused raises an alibi, he doesn’t thereby assume the burden to prove it,
the burden rests on the prosecution to disprove or destroy that the evidence against the accused was
purely circumstantial and did not irresistibly point to the guilt of the accused because there are other
co-existing circumstances which would weaken or destroy the inference. Further that the prosecution
had failed to destroy the accused’s alibi by putting him at the scene of the murder.
Section 1319 states that facts showing the existence of any state of mind, such as intention,
knowledge, good faith, negligence, rashness, ill will or goodwill 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. Therefore evidence that proves the
existence of a relevant state of mind not generally but in reference to the facts in issue and where
upon trial of the accused the previous commission by the accused of an offence is relevant within the
meaning of this section the previous conviction of that person shall be relevant facts.
16
17
18
19
Makin V Attorney General of New South Wales (1894) AC 57
Evidence act CAP6
Uganda v Kasya (1998-90) HCB 48
Evidence act CAP 6
However judicial officers also have discretionary power to admit evidence inadmissible by law and to
also go ahead exclude evidence that is admissible by law. A judicial officer was defined in the case
of Masalu Musene v. AttorneyGeneral20 to mean all the persons and offices mentioned in Article
15121.Section 13522 provides for the admissibility of evidence at the discretion of the judicial officers.
In the case of R v Terry23 Court held that evidence will be admissible if it is relevant and court went
ahead to hold that only relevant evidence is admissible in court and it cannot be excluded by rule of
law or by the aspect of judicial discretion.
In the case of Onek and Anor v Omona24 it was held that the role of a judicial officer is to decide
which evidence is admissible and what evidence is inadmissible and therefore to be excluded from
the trial. Hence there are instances where the judicial officers admit or exclude evidence during trial at
their discretion as discussed below; Hearsay evidence this generally refers to a testimony or
evidence given in court by someone other than the actual person who did encounter it. The general
rule for hearsay evidence is that its inadmissible in court given the fact that any oral evidence given in
court must be direct according to section6325 that states that oral evidence must in all cases be
direct. In the case of Uganda v Katumba Matayo26 court held that it is a principle of common law
that hearsay evidence which is incapable of being tested by cross-examination to determine its
veracity is not admissible to determine the guilt of an accused person. Therefore regardless of the
fact that hearsay might be relevant to the facts in issue its inadmissible since the person who gives
the evidence cannot be cross examined to establish the veracity of the evidence.
In R v Gibson27 where accused was indicted for having unlawfully wounded complaint the
complainant was hit by a stone which came from the direction of the accused’s house. They had, had
a quarrel with the complainant’s son and the accused was seen to enter his house immediately after
the stone was thrown. The complainant stated that immediately after he was struck by the said stone
a lady passing by pointed to the accused’s door and said the person who threw the stone went there.
There was no direct evidence as to whether the accused could have heard the words uttered by the
lady passing by. At the trial that lady was not called as a witness. The man was convicted on that
evidence of the woman passing by and he appealed. On appeal the issue was whether the evidence
of the woman passing by was admissible? thus accused was convicted on evidence of words uttered
20.Masalu musene v attorney general constituitonal petititon no.5 of 2014
21.1995 constitution of Uganda as amended
22
. Evidence act CAP6
23.R v Terry(2005) 2 Cr App R 118
24.Onek and anor v Omona (2018) UGHCCD 4
25.Evidence act CAP6
26.Uganda v Katumba Matayo Crim.Sessions NO.0175 OF 2015
27.R V Gibson (1937) 18 QB 537
by woman passing by and at trial, that lady was not called as witness, on appeal, it was held that the
evidence of the woman was hearsay and should not be admitted.
Despite the fact that the general rule is that hearsay evidence is inadmissible in court during trial
there are situations where its exclusion may lead to injustice and due to this there are exceptions that
were obtained to the general rule to help bring about justice and these exceptions do depend on the
situations at hand and the exceptions are outlined in Section 3028 states that Statements, written or
verbal, of relevant 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 without an amount of delay or
expense which in the circumstances of the case appears to the court unreasonable, are themselves
relevant facts. With such exceptions of situations judicial officers can admit hearsay evidence during
trial in courts of law.
Opinion evidence is inadmissible at trial though its relevant to the fact in issue. The general rule is
that opinions of witnesses as to the existence of facts in issue or relevant facts are inadmissible
because the opinion of a witness will most likely be partial to the party who called him to give
evidence. Section 4929 provides that whenever the opinion of any living person is relevant, the
grounds on which that opinion is based are also relevant. However theres an exception where
opinions of the experts are the only admissible evidence in relation to Section 44 which is to the effect
that facts, not otherwise relevant, are relevant if they support or are inconsistent with the opinions of
experts, when those opinions are relevant. In Uganda v Opio Richard30, it was held that in sexual
offences, the complainants ought to be subjected to medical examination whenever that is possible
as it often turns out to be crucial to the case.
Character evidence according to the evidence act means reputation and disposition and this
evidence is inadmissible in court as the general rule however under section 5431 for character
evidence to be admitted,it must be as to general disposition and general reputation and not of
particular acts by which reputation or disposition was shown
According to Section 24 32confession made by an accused person is irrelevant if the making of the
confession appears to the court having regard to the state of mind of the accused person and to all
the circumstances, to have been caused by any violence, force, threat, inducement or promise
28.Evidence act CAP6
29.Evidence act CAP6
. Uganda v Opio Richard [1986] HCB 19
30
31.Evidence act CAP6
32.Evidence act CAP6
calculated in the opinion of the court to cause an untrue confession to be made. Confessions must be
done voluntarily hence any confessions done in situations as outlined above are irrelevant and can be
excluded by a judicial officer. In n R V Skyes33 It was held that court must decide bearing in mind the
state of mind of the accused, whether there was any threat or inducements of violence so that if any
of those operated on the mind of the accused, such a statement would be considered involuntary.
In conclusion, the admissibility of evidence should be and is governed by the rules of law however
the judges or judicial officers have a certain degree of power as in section 135 of the evidence act
CAP 6 where they have the power to accept evidence that is inadmissible by law and to also exclude
evidence admissible by law.
.R v Skyes 1913 8 C.A.R 233 at 236-237
33
BIBLIOGRPAHY.
STATUTES.
TABLE OF CASES.
EVIDENCE ACT CAP 6.
DPP V Osbourne (1973) AC 729
Hollington v F Hewthorn (1943) KB 587
Uganda v Kamugisha (1998-90) HCB 77
R v Kurji(1940) 7 EACA 58
Harris V DPP (1952) AC 57
Makin V Attorney General of New South Wales (1894) AC 57
Uganda v Kasya (1998-90) HCB 48
R v Terry(2005) 2 Cr App R 118
Onek and anor v Omona (2018) UGHCCD 4
Uganda v Katumba Matayo Crim.Sessions NO.0175 OF 2015
R V Gibson (1937) 18 QB 537
Uganda v Opio Richard [1986] HCB 1
R v Skyes 1913 8 C.A.R 233 at 236-237
TEXT BOOKS.
Modern law of evidence 9th edition oxford university 2012
Cross and Tapper on evidence 12th edition