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Facts which form part of the same transaction.

R V KURJI The accused had stabbed the brother of the deceased and had uttered threats against the deceased. Immediately afterwards, he was seen in the go down of an immediate shop standing over the deceased holding a dagger. It was held that the two circumstances were so interconnected that the wounding or stabbing of the deceaseds brother must be regarded as part of the res gestae in the trial of the accused in the murder of the deceased. Further that this evidence was admissible even though it tended to lead to the commission of another offense. ORIENTAL FIRE AND GENERAL ASSURANCE LTD V GOVENDA AND OTHERS. In the case, the appellant sued the respondents seeking to avoid motor vehicle policy which they had given the respondent on the grounds that the respondent had made a representation of fact that they had been involved in a motor accident with a vehicle owned and driven by the first respondent. The issue was whether the statements made after the motor accidents were part of res gestae. Court found that the statement was not part of res gestae because they were not made at or immediately after the occurrence of the accident.

Facts which are the occasion, cause or effect of the facts in issue
JOHN V MAKINDI, The appellant was convicted for manslaughter of a boy for whom he stood in loco parentis by beating him so severely that he died. At the trial, the appellant had raised a defense to the effect that the boy was epileptic and so had suffered these injuries in the course of an epileptic attack. The prosecution had then adduced evidence of previous severe beatings of the deceased by the appellant in order to rebut his defense the issue was whether that evidence was admissible and it was held that thus evidence was admissible and section 6 of the Evidence Act as explaining substantiating the cause of death as well as under sections 7 and 13 (now section 8 and 14) showing the motive of the appellant to revenge on the deceased and the appellants ill will towards the child.

HARRIS V DPP. A series of thefts having common characteristics occurred in an office in an enclosed market at times when the gates were shut and on occasions where the accused police officer was on duty in the market the precise time of only one of those breaking was known and the accused had been found in the immediate vicinity. The accused was charged with eight breaking thefts but acquitted on seven counts and convicted on the eighth. The issue on appeal was whether the seven counts could have been admitted/proved and it was held that as regards the eighth breaking evidence of the previous seven breakings would have to be excluded because they occurred at a time when it hadnt been proved that he was near the office. Court went on to say that the proper rule as laid down in the case of Makin V Attorney General of New South Wales. The proper rule is that evidence tending to show that the accused has been guilty of criminal offences other than the one he is being tried is inadmissible unless certain evidence is relevant to the issue before court as for example it bears on the question whether the acts alleged to constitute the offense were designed, accidental or if it rebuts an offense which will otherwise be open to the accused.

Explanatory and introductory facts.

FRANCIS KAYEMBA V UGANDA 1 Bwesigye Brians Case Summaries; Law of Evidence I

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.

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 not other co existing circumstances which would weaken or destroy the inference. Therefore, it was on the prosecution to show that the deceased being dragged into the bush was not enough since anything could have happened to him there. That there were therefore co existing circumstances which tend to weaken the evidence as to the cause of death.

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.

UGANDA V KASYA The accused was indicted for murder; evidence was relayed to show that on the evening of the deceaseds death, the accused had been seen in company of eth deceased. Evidence was also led to show that the deceaseds body had been found about a half a mile from the accuseds residence. That she had first been raped before being strangled and graduated tax tickets belonging to eth accused were found some meters from the body and the accused upon arrest was found wearing blood stained trousers. The accused raised the defense of alibi and it was held that where the accused raises an alibi, he doesnt thereby assume the burden to prove it, the burden rests on the prosecution to disprove or destroy that the evidence against the accused was purely circumstantial and did not irresistibly point to the guilt of eth accused because there are other co existing circumstances which would weaken or destroy the inference. Further that the prosecution had failed to destroy the accuseds alibi by putting him at the scene of the murder.

MUSOKE V R It was held that it is not an established practice to question a witness as to his or her reasons for doing so. That voluntarily made comments by the witness is often received in evidence as part of eth act of identification but answers to questions will be of less value and of doubtful admissibility.

KARANJA V R 2 Bwesigye Brians Case Summaries; Law of Evidence I

The appellant was convicted of aggravated robbery; he was identified by the victim at an identification parade. He raised the defense of alibi and argued that evidence of identification was unsafe or unsustainable. Court held that subject to certain exceptions, it is very vital that a fact may be proved by the testimony of a single witness but this rule does not lessen the need for testing with the greatest of care. The evidence of a single witness regarding identification especially where it is known that the conditions favoring identification were difficult. In such a case, what is needed is other corroborating evidence whether direct or circumstantial.

KIBUTHU V R The appellant was accused of having committed aggravated robbery and was convicted. Evidence showed that police had used a track dog to lead them to eth accused on the scene of the robbery. He appealed against the decision basing that the identification was unsafe. Court held that the accused had not been recognized by the complainant and none of eth stolen property had been traced back and it could therefore be unsafe to rely solely on the fact that a police track dog led the police where the accused was that night especially in absence of expert evidence of what the track dog could or could not do. SHAMA AND ANOTHER V R The appellant was charged with murder and had been indentified by a witness using the voice recognition. This witness had never had face to face conversation with the accused and the accused raised the defense of alibi. Court held that identification becomes a crucial issue of the identifying witness is unable to physically see the speaker whose voice the witness claims to identify thus its necessary for the court to consider the identification with the greatest or caution. There is a possibility of mistaken identity by voice where it is claimed that a person has been identified.

NJIRU V R The appellant were tried with aggravated robbery. Evidence adduced was that the complainant who claimed to have seen them cut off power supply. There was also voice identification by one of them and the complainant also claimed that the robbers had spoken to them and he could register the appellants voice. An identification parade had also been carried out and on appeal by the accused, court held, i) Where an identification parade is to be carried out, the requirement in respect to the members of the parade is subject; they should be of the same age, height, appearance, class of life as the suspect and not that they should be identical. N respect of the first accused, there was no need to find people with similar swellings as the first accused had on his side of the face although if it was possible, it would have a commendable thing to do. ii) Where a witness says that a part from visual identification of the suspect, he has also been identified by voice, the witness should be allowed to confirm that. There was nothing objectionable in a witness requesting for parade members to shout for him, so that he cold satisfy himself that he would not make any mistake identifying the particular suspect.

TWEBAZE DRAKE V UGANDA It was held that the intention of eth parade was to make sure that the ability of eth witness to recognize a suspect is tested. Court went on to say that the identification parade is not the only search test because the correctness or otherwise of identification will depend on the circumstances such as length of time, distance, the light and the familiarity of the witness of the accused. If the circumstances are good then the danger of mistaken identity is reduced. 3 Bwesigye Brians Case Summaries; Law of Evidence I

STEPHEN MUGUME V UGANDA It was held that identification parades are as a practice held in cases where the suspect is a stranger to the witness possibly where the witness does not know the name of the accused. The parade is held to enable the witness confirm that the person identified at the parade is the same as the one the witness saw commit the offense. Further, the evidence of the parade could only be accepted if the parade conformed to the established practice.

Contradictory or inconsistent facts

UGANDA V DISMAN SABUNI It was held that its well established law in Uganda that when an accused sets up an alibi which is technically a defense, the accused does not have any responsibility of proving the alibi. The prosecution must negative the alibi by evidence adduced before the defense is put forward or by calling witnesses to give evidence in rebuttal. If on the full consideration of the whole of the evidence put before the court, it is found that the alibi is sound and it has not been negative, then the prosecution wont have proved its case beyond reasonable doubt and the accused is entitled to an acquittal. It was established that only a grave inconsistency is not satisfactorily explained will usually result in the evidence of the witness being rejected. Minor inconsistencies will not usually have that effect unless they point to deliberate untruthfulness.

UGANDA V NASUR It was held that in assessing evidence of the witness and the reliance to be placed upon it, his consistency or inconsistency is a relevant consideration. Where grave inconsistencies occur, the evidence may be rejected unless satisfactorily explained, while minor inconsistency have no adverse effect on the testimony unless it points to deliberate untruthfulness.

Facts which are evidence of similar facts or occurrences

R V SMITH The appellant was indicted for the murder of a mistress who was found drowned in a bath tab, it had been made to look like he died in an epileptic fit. It was also established that on previous occasion other mistresses had died in similar circumstances after making favorable financial statements to the appellant, it was held that those past similar acts could be admitted to show that the death was not an accident.


UGANDA V MUTAHANZO The accused was indicted for murder. Together with the deceased they had been drinking waragi and on their way home engaged in an argument when the accused asked the deceased to give him some waragi but the deceased refused. During the ensuing scuffle, the accused stabbed the deceased and when apprehended made a confession and court held that a confession connotes an unequivocal admission of having committed an act which in law amounts to an offense or at any rate admits the facts that substantially constitute a crime. ANYANGU V R It was held that a statement is not a confession unless it is sufficient of itself to justify the conviction of the person; making it of the offense he or she is being tried. 4 Bwesigye Brians Case Summaries; Law of Evidence I

Who can take down a confession? WASSWA V UGANDA It was held that a confession made to a police officer under the rank of Assistant Inspector of police was inadmissible as it contravenes section 23 of the Evidence Act. BERONDA V UGANDA Court gave the rationale of the changes in the law on who can take a confession as follows; the law was changed because there were frequent submissions some made without justification that some confessions had been obtained by police officers by intimidation or even force. The new law is intended to ensure that confessions relied on are truly voluntary. R V SYKES, It was held that court must decide bearing in mind the state of mind of the accused, whether there was any threat or inducements of violence so that if any of those operated on the mind of the accused, such a statement would be considered involuntary. ABASI KANYIKE V UGANDA It was held that the voluntariness or otherwise of a confession can only be determined at the trial within a trial. NJUGUNA AND OTHERS V R Court held that it is the duty of every judge ad magistrate to examine with the closest care and attention all the circumstances in which the confession has been obtained by an accused person particularly when that person has been in police custody for a long time before his or her confession. R V OKELLO The appellant intended to have sex with a woman and after negotiations agreed and identified a place with good grass. Instead of lying down, the woman who wore a grass necklace clung to a tree at which point the accused tried to pull her down and she fell down and died. When he was arrested, he was told by the authorities; confess and your punishment will be light. At which point he confessed and the confession was used against him at the trial. On appeal, it was held that the confession was inadmissible because it was made by way of inducement of a temporal nature offered by a person in authority. MWANGE S/O NJOROGE V R. The appellant was convicted of unlawful possession of a home made fire arm. The police officer who interrogated him did not caution him and kept questioning every fifteen minutes, you had better think whether you are going to tell me or not. It was held that these words constituted a threat and would render inadmissible any confession got thereafter. ARIKANJERO DAU V R, A six year old girl was left by her mother with the aplenty and she disappeared. Her body was found the following day in a river. Medical evidence showed that she had been sexually assaulted prior to death. The appellant was arrested, taken to the river and asked by the police officer to point out where he had pushed the deceased into the river and he did so. The following day, the police officer said to the accused the following words; You are going to tell me what you said yesterday but I am not going to force you to do so. It was held that the above words did not constitute an order or threat to the mind of the appellant as they were tempered by the words that followed and nay possible threat they might have had on the aplenty had been dissipated by the words of caution that followed. R V ZAVEKAS, 5 Bwesigye Brians Case Summaries; Law of Evidence I

The defendant was charged with theft of a coin box from a telephone booth. Before the trial, he asked the police officer; If I make a statement, will you give me bail now? the police officer replied in the affirmative and the defendant made a written confession on the basis on which he was later convicted. On the issue of whether that amounted to inducement by a person in authority, it was held that it made no difference that the defendant and not the police officer had raised the question of bail but the statement was made as a result of an inducement by a person in authority. IBRAHIM V KING The appellant was charged with murder. At the trial, evidence of an officer in command was admitted that ten to fifteen minutes after the murder, he had said to the appellant who was then in custody; why have you done such a senseless act? a question to which he replied, some three or four days he has been abusing me, without doubt, I killed him. The issue was whether this confession was voluntary. It was held that the confession was voluntary statement in the senses that it was not made in the fear or prejudice or hope of advantage. BAGAGA V UGANDA. The appellant appealed against a conviction for murder on grounds that his confession was involuntary. It was contended on his behalf that he had been tortured by the police ad that he had been in custody for along time. It was held that the appellants confession was voluntary and although he had been beaten prior to his confession, the beating was not connected to the confession since the LDU who arrested him did not know at the time that the appellant was a suspect in a murder case, he was only arrested for having escaped from prison. Repudiated or Retracted confessions. TUWAMOI V UGANDA Court held that the basic distinction between a retracted and a repudiated confession is that a retracted confession occurs when the accused person admits that he made the statements recorded but now seeks to take back what he said generally on the grounds that he had been forced or induced to make the statement. In other words that the statement was not voluntary. A repudiated statement is one which the accused avers that he never made. KASULE V UGANDA Where the accused retracted his confession, court held that a trial within a trial should have been held to establish the truth within the confession. It is established law that a retracted confession will not normally support a conviction unless it is corroborated by other evidence but the court may do so if it was fully satisfied with the circumstances that the confession is true. AMOS BIRUNGE V UGANDA Court held that it is established law that when the admissibility of an extra judicial statement is challenged, then the accused must be given a chance to establish by evidence his or her grounds of objection through a trial within a trial. The purpose of a trial within a trial is to decide upon the evidence of both sides whether the confession should be admitted. KATO V UGANDA Court held that a retracted confession had to be treated with caution and before founding a conviction on it, the trial court has to be satisfied that the confession was true. Usually, such a confession will be acted on if corroborated in some material particulars by independent evidence. However, such corroboration is not necessary in law and the court could act on the confession alone if it is fully satisfied that the confession is true. THIONO V R

6 Bwesigye Brians Case Summaries; Law of Evidence I

Court held that there is no rule that a court can not act on a retracted or repudiated confession unless corroborated in a material particular. What exists is a rule of prudence that a court should be cautious to act on such a confession unless it is corroborated in material particulars. The Process of Taking down a Confession. R V KAGGWA The recording officer failed to administer a caution and it was held that there was insufficient compliance with the rules of taking down confessions therefore, the statement was inadmissible. Confessions against co accused. R V WANDINGOMBE. Court said that by making a real and qualified confession, the person who makes it has exposed himself to the pains and penalties described for the offense and this is the guarantee for the truthfulness of the statement. UGANDA V MAGAYI It was held that evidence of a confession against co accused is not only accomplice evidence but is also evidence of the weakest kind and can only be used as tending assurance for other evidence against the co accused. BATARA V UGANDA The trial judge in convicting the appellant fur murder, relied on a statement by the co accused implicating him, the judge treated that evidence as irresistible evidence of guilt. It was held that the confession against the co accused is only of slight evidential value and can only be used to give final assurance to an already strong case. UGANDA V SEBUGUZI. Court held that the reason why this evidence is considered evidence of the weakest kind is that it is not only hearsay but it is also evidence of such a nature that the accused can not test its worth in cross examination of the maker against him. Information leading to discovery. JOHN ROBERT EYIRU V UGANDA The appellant was convicted for murder; it was held that under section 29, it had to be strictly interpreted because it could in certain circumstances lead to the introduction of a confession which would otherwise be inadmissible. All that could be introduced under this section was such part of the statement as led to the discovery of something and no more. BIREMBO V UGANDA. The appellants were jointly tried and convicted for the offense of murder. The deceaseds body and some money belonging to the deceased were discovered on the information obtained from the appellant. it was held that the information to the police by the appellant was incriminatory but was also information leading to the discovery of the act and was therefore admissible under section 29 notwithstanding that it was made to a police constable.

R V GIBSON The accused was inducted for willful wounding. It was alleged that the accused had thrown a stone at the victims house and immediately after the stone had hit the victim, a passer by woman pointed at the accuseds house and 7 Bwesigye Brians Case Summaries; Law of Evidence I

said that the person who had thrown the stone had gone inside and it was only the accused who was found inside the house and was prosecuted and convicted. He appealed on the grounds inter alia that on evidence of this lady who herself had not been called in as a witness in court should not have been admitted. Court held that the evidence was hearsay because the lady had not been called to testify and the evidence should not have been admitted. Court further stated that it has been courts mandate to exclude hearsay evidence from the proceedings right from the beginning but in practice parties have a duty to raise objections against certain evidence and where they fail to do so, they may be deemed to have waived their rights. SPARKS V R The appellant was convicted of indecent physical assault of a girl under the age of four. Immediately after the assault, a child who was not called as a witness at the trial told her mother that it was a colored boy who had done it. The appellant was a white man. This evidence was objected to on grounds of hearsay but court held that the mothers evidence of what her daughter told her was hear say, the child not having been called as a witness there was no basis on which her statement could have been admitted. MARSHALL V R It was stated that the general rule is that hearsay evidence is not admissible for the reason that such statements are not subjected to the ordinary tests required by law to ascertaining their truth. That is, that the author of the statement is not exposed to cross examination in the presence of penal sanctions of an oath. There is no opportunity to investigate his character and nature and neither is his demeanor subject to observation. STATE V MEDLEY COURT Court stated that the rules regarding hearsay have been adopted to guard against the manifest danger to human life that is so liable to arise from the admission as evidence of declarations made not under the sanction of an oath and not offering to the party affected by them an opportunity of cross examination. All attention to omitted facts that if stated, modify or completely overturn the inference made from the declarations made. These rules have been found so essential as safeguards in the investigations of truth that they have become fundamental in our system of jurisprudence. No matter how convincing the testimony may be to an intelligent mind, unless unrepresented under fixed rules, it can not be received.

Exceptions to the Hearsay Rule. MUHAMMAD TAKI V R Counsel applied that evidence be admitted by way of exception instead of bringing a witness form Switzerland to confirm that he sold the watches to the appellant, court said that it might have been better if the learned magistrate had had evidence before him of the conditions which made section 30 of the Evidence Act applicable. But he was entitled to take judicial notice of the fact that Switzerland is in Europe and Kampala is in Uganda and it seems to have been satisfied that the attendance in Kampala of the witness form Switzerland could not be procured without an amount of delay or expense which in the circumstances of the case appeared unreasonable. THORNHILL V THORNHILL The trail judge of the lower court was of the view that air travel is very rapid and so the witness could fly in and the cost and inconvenience of bringing the witness form the United Kingdom would not be great in this era of quite inexpensive travel. On appeal, judges agreed that air travel is rapid but not inexpensive and could cause serious financial embarrassment and hardship to the parties. They thus held that the judge misdirected himself in dismissing the application that he should have been granted both on the ground of inconvenience and expense and on the ground that the court would not be likely to derive any advantage from the presence of the witness. COMMISSIONER FOR CUSTOMS AND EXCISE V PANACHAND 8 Bwesigye Brians Case Summaries; Law of Evidence I

Court said that may be court might take judicial notice of the distance between Nairobi and The Hague and inferred that bringing of a witness to Nairobi from The Hague in relation to this particular case would be unreasonable. That in Taki V R, court only suggested but didnt decide that such an approach would be legitimate.

Dying Declarations
SABIITI VINCENT V UGANDA Court said that a dying declaration is admissible evidence but caution must be taken when relying on it to convict because such evidence lacks cross examination. In addition, the circumstances under which the dying declaration was made must be examined so as to determine whether the declarant was able to see the accused. R V WOODCOCK It was stated that the deceased must have lost all hope of living that if at least he had a chance however remote, then it can not be admitted. The rationale being to make sure that ii is the moral and spiritual compulsion which has taken over and that therefore the person doesnt tell lies.

Elements of a Valid Dying Declaration

R V PIKE Court decided that a child of tender age could not make a dying declaration. His statement was incompetent as a dying declaration because the maker was not capable of giving evidence in court as a witness. WAUGH V R The deceased was allegedly shot by the appellant. Before he died, he was found conscious and said that he was shot innocently but when he was about to give the reason why the appellant had a grudge against him, he fell into a coma from which he never recovered. The issue was whether his statement was admissible as a dying declaration and it was held that it could not be admitted because on its place, it was incomplete and no one could tell what he was about to add. CHARLES DAKI V R This was a murder case where the deceased was admitted in hospital. The police officer went to examine him, during which examination, he was able to say the name of the person who shot him but in the course of the interview, the doctor came and interrupted the interview. The deceased died before completing his statement. On whether the statement was admissible as a dying declaration, it was held on the place and the footnote thereto that the deceased was interrupted by the doctor yet he might or might not have added something. Accordingly, on the authority of decided cases, the statement was inadmissible. Court went on further to say that it is true, that in the earlier case, the deceased fell unconscious having begun but not completed the sentence but the principle applies where although there was apparently no unfinished sentence, it is not established that a declarant said all he wished or intended to say before the doctor intervened. UGANDA V ALFRED OYAKA The issue was whether there was sufficient corroboration of a statement made by a deceased pinning the accused for sexual assault. The woman (while pregnant) was allegedly pierced by a man. In her dying declaration, she alleged that she had been assaulted by the man. The prosecution sought to use it as corroborative evidence. Court held that the law regarding dying declarations is that to base conviction from it, the declaration must be satisfactorily corroborated. Corroboration is an independent form of proof evidence which confirms the complicity of an issue of an offence. Medical evidence showed that the deceased suffered a ruptured uterus and on the evidence of the doctor showed that the rapture could have been caused by violence or trauma on the abdomen 9 Bwesigye Brians Case Summaries; Law of Evidence I

on being hurt. This was consistent with the violence meted out by the accused to the deceased. Therefore, this medical evidence accorded the necessary corroboration to the dying declaration. UGANDA V RUTARO Court said that they could not base a conviction on a dying declaration unless it was satisfied that the declaration was truthful and satisfactorily corroborated. KALISTI SEBUGWAWO V UGANDA On sufficiency of corroboration, court held that the repetition of a dying declaration by different witnesses is not enough corroboration. R V KABATEREINE Two days before the deceased was burnt to death, she had made a statement to her head man that the accused had threatened to burn her in her house because she had caused the death of her father by witchcraft. The issue was whether the statement to the headman made two days before was a rightly admissible dying declaration as it was directly related to the occasion of the death of the deceased. The time at which the statement was made was immaterial. BARUGAHARE V R A period of six months had elapsed thus court had rejected a statement made as a cause of fear to the deceased holding that there must be a proximate relationship between the statement made and the death itself. In this case, it was a mere fear of death thus inadmissible.

Statements against Pecuniary or Primary Interests of the Maker.

R V OBRIEN. There were two accused persons. OBrien and Jensen who were jointly charged for possession of narcotics. OBrien submitted himself for trial but Jensen fled the country. After OBriens conviction, Jensen returned and later made a statement while saying that he alone was the perpetrator of the crime and died soon. Thereafter OBrien applied to court to review his conviction on the basis of they statement by Jensen. However, his application was denied contending that the maker was already aware of the proceedings and that the statement would be calculated to save his friend. DIAS V R A letter was written by one Thomas, to the effect that the accused had instructed him to pay false pay sheets (ghost employees). It came out at the trial that when Thomas wrote that letter, he only intended to be promoted at work. Court held that much as it exposed him to criminality and was against his own interest, he made it without full knowledge of its consequence except for purposes of advancement at work.

Private Rights and Family Affairs.

HAINES V GUTHRIE This was a suit for the price of goods sold. The defendant who at the time of the sale was an infant could not b e held liable in law. The issue before court was the defendants date of birth and for him to prove his infancy he brought an affidavit sworn by his father in another matter where he had put down the date of birth of the defendant. Court rejected this statement on grounds that it could not establish the relationship of family descent.

R V OAKLEY, 10 Bwesigye Brians Case Summaries; Law of Evidence I



11 Bwesigye Brians Case Summaries; Law of Evidence I