EVIDENCE LAW I

LLBWA 213
WEEK ONE ➢ Introduction to Evidence Law I
WEEK TWO ➢ Facts declared to be relevant

WEEK THREE ➢ Motive, Preparation and Conduct

WEEK FOUR ➢ Circumstantial Evidence
WEEK FIVE ➢ Common Intention
WEEK SIX ➢ CONTINUOUS ASSESSMENT TEST ONE (CAT 1)
WEEK SEVEN ➢ Admissions and Confessions
WEEK EIGHT ➢ Admissions and Confessions Continued
WEEK NINE ➢ Hearsay Evidence
WEEK TEN ➢ Hearsay Evidence Continued
WEEK ELEVEN ➢ Evidence of Opinion
WEEK TWELVE ➢ Evidence of Character
WEEK THIRTEEN ➢ Evidence of Character Continued

WEEK FOURTEEN ➢Exams

 WEEK ONE
INTRODUCTION TO THE LAW OF EVIDENCE
The word “ evidence” originated from a Latin term “evidentia”
meaning to show clearly, to make clear to the sight to discover
clearly certain, to ascertain or to prove. Thus, evidence is
something, which serves to prove or disprove the existence or
non-existence of an alleged fact.
Definition – According to Black’s Law Dictionary, it is the term
that is given to the total of the principles and rules that govern
the presentation of evidence in a legal matter.
The party who alleges the existence of a certain fact has to prove
its existence and the party, who denies it, has to disprove its
existence or prove its non-existence.
Read Section 2 of Evidence Act.
 INTRODUCTION TO THE LAW OF EVIDENCE
CONT’D
The law governing matters of Evidence in Uganda is enshrined in the
Evidence Act, Cap. 6.
This law, like most of Uganda’s legislation was received from the
British and commenced on 1st August, 1909.
The Evidence Act was derived from the Indian Evidence Act of 1872
which was an attempt at codification of English Common Law.
Uganda was a protectorate under the British Government from 1894
to 9th October 1962.
The Evidence Act of Uganda was enacted in 1909.
 NATURE OF THE LAW OF EVIDENCE
What is the place of evidence law in relation to other laws?
Laws are broadly classified into substantive and adjective laws.
Adjective laws are concerned with the method of presenting cases
to court proving them or generally enforcing the rights and duties
provided under the substantive laws. On the other hand,
substantive laws, are those that define rights and duties.
The law of evidence is categorised under adjective law.
Purpose or significance of the law of evidence [regulates the
process of proof; protects accused’s right to a fair trial; etc]
 EARLY MODES OF TRIAL AND EVOLUTION OF THE
LAW OF EVIDENCE
Bentham - ‘the word of relation’; primary fact and adventury fact.
Evidence Act of 1872 and Indian statutes of evidence.
The 1889 Order- in-Council and the consular courts; Ordinance of 1909
and subsequent amendments in 1935, 1955, 1971 and 1985.
Scope of the Evidence Act.
Read article on the Historical foundations of the law of evidence by JH
Langbein available at:
https://pdfs.semanticscholar.org/8313/856d868b2df27613c00fc0d8b9aa
9f97f717.pdf
PRELIMINARY DEFINITIONS & PRINCIPLE ITEMS
OF JUDICIAL EVIDENCE
Classification of evidence (method and means of proof)
Method of proof: direct and circumstantial evidence.
Means of proof: adducing admissible evidence; formal
admissions; judicial notice.
Facts, facts in issue, oral evidence, court, document, prima
facie evidence, conclusive evidence, direct evidence,
circumstantial evidence.
Relevance and admissibility, etc
 WEEK TWO
FACTS DECLARED TO BE RELEVANT
WHAT IS RES GESTAE?

• Term used to connote acts, declarations and circumstances

constituting or explaining a fact or transaction in issue and
are therefore admissible in evidence.
• Evidence Act Section 4-15.
✓ Uganda v. Kamugisha (1988 – 90) HCB 77
 FACTS DECLARED TO BE RELEVANT
WHAT IS RES GESTAE? (Cont’d)
 Aspects of Res Gestae
Facts which form part of the same transaction; Facts which
are the occasion, cause or effect of the facts in issue; Facts
which show motive, preparation, previous or subsequent
conduct; Explanatory and introductory facts; Facts which
show common intention; Contradictory or inconsistent facts;
Facts which show the state of mind or bodily feeling; Facts
which are evidence of similar facts or occurrences; Facts
which show the ordinary course of business.
 FACTS FORMING 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.” See R V Kurji.
It follows that facts constituting the same transaction can only be
introduced for purposes of explaining the fact in issue.
Whether time is relevant or not will depend on the nature of the
transaction. See Oriental Fire and General Assurance Ltd V
Govinder and others.
 FACTS WHICH ARE THE OCCASION, CAUSE OR
EFFECT OF THE FACT 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.”
Read Makindi V R (1961) EA 327.
Facts which afford an opportunity to bring out facts in issue like time,
place and physical presence are relevant. 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.
 FACTS WHICH ARE THE OCCASION, CAUSE OR
EFFECT OF THE FACT IN ISSUE CONT’D
In the case of Makin V Attorney General of New South Wales. (1894)
AC 57, it was stated that 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.
 WEEK THREE
MOTIVE, PREPARATION AND CONDUCT
FACTS WHICH SHOW MOTIVE, PREPARATION, PREVIOUS OR
SUBSEQUENT CONDUCT
Sections 7-10
S. 7
▪ Facts which constitute preparation are relevant and admissible.
▪ Previous and subsequent conduct is relevant.
▪ Motive is relevant in as far as it establishes causation.
▪ Motive is a state of mind based on circumstances and relationships.
Read Godfrey Tinkamalire & Anor v. Uganda (1988-90) HCB 5 [whether motive
is relevant in criminal proceedings]
Read Charles Benon Bitwire v. Uganda (1987) HCB 11- proof of motive
 MOTIVE, PREPARATION AND CONDUCT
FACTS WHICH SHOW MOTIVE, PREPARATION, PREVIOUS
OR SUBSEQUENT CONDUCT CONTINUED..
 Conduct includes previous and subsequent conduct; must be conduct
inconsistent with the accused’s innocence, conduct is question of fact,
conduct must be based on evidence, conduct that is unusual, includes
previous threats, beatings, relationship etc.
Previous Conduct
 Makindi v. R (1961) EA 237 [previous beatings]
 Waibi & Anor v. Uganda (1968) EA 27[previous threats]
Subsequent Conduct
 Uganda v. Simon Onen (1991) HCB 7[hiding]
 MOTIVE, PREPARATION AND CONDUCT CONT’D
EXPLANATORY AND INTRODUCTORY FACTS
 Section 8 (elements there under):
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 (to be
covered in detail in Week 4); facts that fix time and place at which the
relevant issue may have happened; and facts that show a relationship of the
parties.
a) Facts that explain or introduce a fact in issue.
Facts dealing with identity, names, dates, places, description and
circumstantial evidence are at play here.
b) Facts which support or rebut an inference- Sections 8 & 10
Abdul Kyagulanyi v. Uganda (1988-90) HCB 16
 MOTIVE, PREPARATION AND CONDUCT CONT’D
EXPLANATORY AND INTRODUCTORY FACTS CONT’D
c) Facts which establish identity
d) Facts that fix time and place at which the relevant issue may
have happened.
Generally, time of commission of a crime is irrelevant except
where it is to establish an element of a crime.
e) Facts that show a relationship of the parties
This includes: blood relations or pedigree; contractual
relationships; personal relationships like love, friendship or
Hatred; and fiduciary relationships between lawyer-client,
doctor- patient, clergy –congregation.
 MOTIVE, PREPARATION AND CONDUCT CONT’D
INCONSISTENT FACTS
Section 10
Issues for consideration: Inconsistencies and Contradictions in
Evidence [nature of inconsistence, minor inconsistencies if
explained, major inconsistencies, doubts in prosecution
evidence, burden of proof.
Uganda v. Ngirabakunzi & others (1988-90) HCB 40 [effect of
grave inconsistencies]
Vincent Rwamaro v. Uganda (1988-90) HCB 10 [discrepancies
constituting deliberate falsehoods]
Uganda v. Abdalla Nasur (1982) HCB 1 [minor inconsistence]
 WEEK FOUR
CIRCUMSTANTIAL EVIDENCE
IDENTIFICATION
❑Identification (meaning; identification through previous conduct;
identification Parade; proper conditions for identification; and single
identifying witness.
❑Identification is the quality of sameness.
❑Things to consider:
▪The person identifying must have seen or observed the accused.
▪The identifying person must have had a settled impression in his or
her mind.
▪The mental picture that a person has at the time of identification
must be the same as when he or she saw the accused and should not
be tainted with opinions of third parties or by other factors.
 CIRCUMSTANTIAL EVIDENCE
IDENTIFICATION CONT’D
Time taken in identifying the accused is important for example if
it is too short, it may not be adequate.
 There must be an opportunity allowing for proper identification.
The coincidence between the person identifying and the person
being identified.
Identification: Meaning of identification
Bogere Moses v. Uganda SCCA No 1/1997 [placing accused at scene
of crime]
Roria v. Republic (1967) EA 583 [importance of question of
identification]
 CIRCUMSTANTIAL EVIDENCE
IDENTIFICATION CONT’D
Identification through Previous Conduct
Uganda v. Kakooza (1984) HCB I [must be based on Evidence]
Single Identifying Witness and considerations for admissibility of
evidence
Uganda v. George Wilson Simbwa, S.C. Cr. App. 37/95
[conditions for correct identification]
Abdalla Nabulere v. Uganda Cr. App 1281 [guidelines to
admissibility of evidence of a single identifying witness]
 CIRCUMSTANTIAL EVIDENCE
IDENTIFICATION CONT’D
Conditions for proper identification:
1. The accused must be informed that he may have a lawyer present.
2. The officer in charge of the case even though may be present, does
not carry out the identification.
3. The witness does not see the accused before they parade.
4. The accused is placed among at least eight persons of similar age,
height and class of life and general appearance.
5. The accused should be allowed to take any position he chooses and
is allowed to change his position after each identifying person has
left if he so desires.
 CIRCUMSTANTIAL EVIDENCE: IDENTIFICATION CONT’D
6. Care must be exercised so that the witnesses are not allowed
to communicate to each other after they have been to the
parade.
7. Persons who do not have any business at the parade should
be excluded.
8. Careful notes should be made after each witness has been
to the parade recording whether the witness identified the
accused or not and other circumstances.
9. If the witness desires to have the accused person to walk
around, speak, put on a cap pr put it off. That should be done
as a pre caution measure; the whole parade is asked to do
those things so that the witness identifies the person.
 CIRCUMSTANTIAL EVIDENCE: IDENTIFICATION CONT’D

10. During the conduct of the parade the accused should

be asked whether he is satisfied how the parade is
being conducted where it is fairly conducted and a
note of his reply should be made.
11. The witness should only be told that he will see a
group of people who may or may not include the
suspected person. This is to ensure that the witness is
not influenced in any way.
 WEEK FIVE
COMMON INTENTION
Section 9.
R. v. Karia & Mawji (1949) 16 E.A.C.A. 116 [requisites for common
intention]
Birikadde v. Uganda (1986) HCB 6 [furtherance of common intention]
State of Mind or bodily feeling:
Section 13
[Focus to be on mental element in offences, offences requiring
proof of mensrea, malice, ill will, bodily conditions]
❑Akrabi v. R (1956) 23 EACA 512 [previous offences to prove intention]
❑Kiwanuka & Anor v. R (1956) 7 ULR Part II 172[previous articles to prove
malice]
 COMMON INTENTION
SERIES OF SIMILAR OCCURENCIES
Section 14
Makindi v. R (1961) EA 327 [previous beatings]
R. v. Scarrot (1978) 1 ALL E.R. 672 [evidence of striking
similarity]
Harris v. D.P.P. (1952) A.C 694 [previous acts at same place]
Mood Music Publishing Co. (1976) 1 ALL ER 463 [similarity
between published and copied work]
 COMMON INTENTION
Cases of failure to act
In the case of Nanyonjo Harriet and Another v Uganda ((Criminal
Appeal No.24 of 2002)) [2007] UGSC 10 (5 July 2007) court
looked at the doctrine of common intention in terms of failure to
act. Disassociating oneself from an assault even when one is in
position to prevent it can amount to common intention. Find
case at: https://ulii.org/ug/judgment/supreme-court/2007/10
❑ In order for common intention to be inferred, it is not necessary
that there should have been any concerted agreement between
the accused persons prior to the attack on the accused.
 COMMON INTENTION
The common intention nay be inferred from their presence,
their actions and the commission of any of them to disassociate
himself from the attack.
See R v. Tabulayenka s/o Kirya and Others [1943] 10 E.A.C.A. 51.
See Andrea Mutebi and Anor v. Uganda Cr. App. 144/75
E.A.C.A)
It should be noted that an unlawful common intention does not
imply a pre—arranged plan. See P v Okute [1941] 8 E.A.C.A. at
p.80.
 COMMON INTENTION
Common intention can develop in the course of events though it
might not have been present from the start. It follows therefore
that it is immaterial whether the original common intention was
lawful so long as an unlawful purpose develops in the course of
events.
▪ See Wanjiro Wamiro v. R [1955] 22 E.A.C.A. 521 at p.52
▪ In cases of murder/manslaughter, it is not necessary to make
findings as to who actually caused the death- see R v. Salmon
[1880] 6 Q.B 79, C.C.R.
 WEEK SIX

CONTINUOUS ASSESSMENT

TEST ONE( CAT 1)

 WEEK 7
ADMISSIONS AND CONFESSIONS

➢Read Sections 16-28

ADMISSIONS
✓Statements made by a party to the proceedings, or by an agent of any such
party whom the court regards in the circumstances of a case as expressly or
impliedly authorised by him to make them, are admissions.

✓The statement must be made by a party with interest in the subject matter.
 ADMISSIONS AND CONFESSIONS

ADMISSIONS CONT’D
❑Nature of admissions- Kasule v. Uganda (1992-93) HCB 38
❑Rationale for admissions- Slatterre v. Pooley 6 m and n 66.
❑To whom can admissions be made?-News Trustee VS Huntine
[1897] 1 Q B 611.
❑Conditional admissions- Madelia v. Blex (1905) RED 483.
❑Distinction between a confession and an admission- Gopa&
others v. R (1953) 20 EACA 318.
 ADMISSIONS AND CONFESSIONS
CONFESSIONS
➢Read Sections 23-29
What is a confession?
▪a confession generally means the statement by an accused person
acknowledging guilt of an alleged crime. - Swami v. The Emperor
(1939)1 ALL ER 396.
▪A statement is not a confession unless it is sufficient in itself to justify
the conviction of the person for the offense he or she is being tried.

Who can take down a confession?

(proper authority) – Section 23. a) Police officers at or above the rank
of Assistant Police Inspector; OR (b) Magistrate and
▪Beronda v. Uganda (1974) EA 46 [Rationale for amendment of this
law]
 ADMISSIONS AND CONFESSIONS
CONFESSIONS CONT’D
Confessions must be voluntary.
• Beronda v. Uganda (1974) EA 46
• R v. Sykes [2009] QCA 267- state of mind of the accused is very
important.
https://www.queenslandjudgments.com.au/case/id/67114
• Abasi v. Uganda Cr. App 34/89 (1993) 111 KALR76-
voluntariness or otherwise of a confession can only be
determined at a trial within a trial.
https://ulii.org/ug/judgment/supreme-court/2003/10
 ADMISSIONS AND CONFESSIONS
CONFESSIONS CONT’D
Effect of inducements and threats on a confession.
• R. v. Okello 9 [1915l] 2 U.L.R 169- confession was inadmissible
because it was made by way of inducement of a temporal nature by
a person in authority.
• Bagaga Peter V Uganda SCCA No.6 of 2002 [effect of beatings prior
to making statement]
https://ulii.org/ug/judgment/supreme-court/2004/15
❖Look at exception under Section 25 of the Act.
Effect of deception and trickery on a confession.
• Confession otherwise relevant not to be irrelevant merely because
of deception and trickery- Section 26
 WEEK 8
ADMISSIONS AND CONFESSIONS CONT’D
CONFESSIONS CONT’D
Retracted and Repudiated Confessions
Repudiation is when the accused denies having made the statement.
Retraction is when the accused challenges the statement made in terms of
voluntariness and truthfulness.
Difference between repudiation and retraction- Tuwamoi v. Uganda [1967]
E.A 84.
Need for corroboration- court shall not act on a retracted confession unless
it is corroborated.
 ADMISSIONS AND CONFESSIONS CONT’D
Retracted and Repudiated Confessions Cont’d..
Trial within a trial
In Amos Binuge & Ors v Uganda (Cr. Appeal No.23 Of 1989) [1991] UGSC
5 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.
Case available at: https://ulii.org/ug/judgment/supreme-court/1991/5
It is not a legal rule that court cannot act on a retracted or repudiated
confession unless corroborated in a material particular. It is rather a rule
of prudence that court should caution itself when dealing with such
evidence.
 ADMISSIONS AND CONFESSIONS CONT’D
Establishing Retraction
• The generic way of retraction or repudiation of a confession by an
accused is a clear and or positive stand taken at the trial.
• Cases however, have arisen when this has not been done, but has
instead occurred by implication.
• In R. v. Kayanda s/o Mkuyu and Others (1943) 10 E.A.C.A 117, a
statement in the memorandum of appeal suggested that the appellant
retracted his confession at the trial: “I deny that I told Mr. Bates that I
had killed anyone”.
 ADMISSIONS AND CONFESSIONS CONT’D
Retracted and Repudiated Confessions Cont’d..
• In the case of Erinayo Polo v. R (1950) 17 E.A.C.A. 150 Court also
treated as impliedly repudiated a confession signed by the appellant
on the ground that there had been some misunderstanding on the
part of the Police Officer because of the swahili language used.
Confession against co-accused
Section 27- when more than one person are being tried jointly for the
same offense, and a confession made by one of those persons,
affecting himself and some other of those persons is proved, the
court may take into consideration such confession s against that
other person as well as against the person who makes the
confession.
 ADMISSIONS AND CONFESSIONS CONT’D
Retracted and Repudiated Confessions Cont’d..
• Read Uganda v. Ssebuguzi & Ors (1988-90) HCB 18.
Where the confession by one person is proved, found relevant and
implicates another, such confession may be considered against
both.
The test in such cases is whether the confession fully incriminates
its maker. In other words, it does not shift the blame to the co
accused. Rationale- R. v. Wadingombe (1941) 8 E.A.C.A 33
• In Uganda v. Magayi [1965] EA 667 it was held that evidence of a
confession against a 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.
 WEEK 9
HEARSAY EVIDENCE
The law on hearsay evidence is covered under Sections 30 & 59
of the Evidence Act, Cap 6.
https://ulii.org/ug/legislation/consolidated-act/6
In Subramanian v. Public Prosecutor [1956]1 WLR 965 it was
held that hearsay evidence is an assertion of a person other
than the witness testifying offered as evidence of the truth of
that assertion rather than as evidence of the fact that the
assertion was made.
Hearsay has often been referred to as “third party assertions”.
This evidence is therefore not ‘original’.
 HEARSAY EVIDENCE
The Hearsay rule
According to Section 59, the general rule is that oral evidence must be direct.
This is elaborated as below:
(a) if it refers to a fact which could be seen, it must be the evidence of a
witness who says he or she saw it;
(b) if it refers to a fact which could be heard, it must be the evidence of a
witness who says he or she heard it;
(c ) if it refers to a fact which could be perceived by any other sense, or in any
other manner, it must be the evidence of a witness who says he or she
perceived it by that sense or in that manner; and
(d) if it refers to an opinion or to the grounds on which that opinion is held, it
must be the evidence of the person who holds that opinion on those grounds.
 HEARSAY EVIDENCE
The Hearsay Rule Cont’d
❑The interpretation of Section 59 is that all evidence save for ‘direct
evidence’ is hearsay and thus inadmissible in court.
❑Rationale for the Hearsay Rule- 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.
 HEARSAY EVIDENCE
The Hearsay Rule Cont’d
In the admissibility of hearsay, courts should be governed by two realities:
a) that hearsay evidence has not been subjected to the tests of accuracy and
veracity and so is of inferior value to the testimony of witnesses to whom
those tests have been applied;
b) that, on the other hand, it is not worthless and should be considered in
law suits as it is in everyday life.
❖ The balance between these conflicting principles must be found in the
particular case with a tendency to admit hearsay evidence so long as its
probative value outweighs its dangers.
 HEARSAY EVIDENCE
❑In cases where there was strict application of the hearsay rule, the rules
regarding hearsay were adopted to guard against danger to human life that
is likely to arise from an 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.
❑Rules on strict enforcement of the hearsay rule are so essential as
safeguards in the investigation of truth that they have become
fundamental in our system of jurisprudence in as far as the extent of
inadmissibility of evidence goes.
 WEEK 10
HEARSAY EVIDENCE CONT’D
Exceptions to Hearsay
Common law developed several exceptions to the hearsay rule which have
been codified in the Evidence Act- Section 30.
According to Section 30, 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 in proving a fact in issue.
 HEARSAY EVIDENCE CONT’D
Exceptions to Hearsay Cont’d
Inability to procure attendance of a witness without undue delay & expense
In Taki v. R [1961] E.A 206, judicial notice was taken of the fact that
Switzerland is in Europe and Kampala is in Uganda. Court seems to have been
satisfied that the attendance in Kampala of the witness from Switzerland could
not be procured without an amount of delay or expense which in the
circumstances of the case appeared unreasonable.
 HEARSAY EVIDENCE CONT’D
Exceptions to Hearsay Cont’d
Inability to procure attendance of a witness without undue delay & expense
In Thornhill v. Thornhill [1965] EA 268, it was held that the trial 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. The Judges on appeal also agreed that air travel is rapid but not
inexpensive and could cause serious financial embarrassment to the parties.
 HEARSAY EVIDENCE CONT’D
Exceptions to Hearsay Cont’d
Dying Declarations
Nature of the statement
▪ In Swami v. Emperor [1939]1 All ER 396, it was stated that 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.
▪ Such statements are relevant 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 into question.
 HEARSAY EVIDENCE CONT’D
Exceptions to Hearsay Cont’d
Dying Declaration Cont’d
Elements of a valid Dying Declaration:
▪ The maker must have died;
▪ The statement must be complete;
▪ It should be a free expression of the deceased;
▪ It should be corroborated; and
▪ Time is of the essence.
Note: Read all cases in the course guide under dying declarations in order to
understand all these elements and the concept of corroboration- whether
mandatory? Whether legal or judicial requirement? Corroboration and
repetition of statements.
 HEARSAY EVIDENCE CONT’D
Exceptions to Hearsay Cont’d
Statements made in ordinary course of business [Read S.30 (b)]
• Statement must have been made before controversy arose; Read
together with Sections 32 & 33.
Statements against Interest of the maker
Pedigree Declarations [Read S.30 (e)]
Private Rights and Family Affairs [Read S. 30 (g), 30(f)]
Public Rights and Public Records [Read S. 30(d), 34, 37, 38, 39, 40 and 41]

Note: Read cases on the guide under the various exceptions.

 WEEK 11
OPINION EVIDENCE
➢ Opinion Evidence -statements as to one’s thoughts about an alleged fact (s).
➢ The general rule is that opinions or inferences as to the existence of facts in
issue or relevant facts are inadmissible.
Exceptions to the general rule - Read Sections 43-49.
1. Expert opinion- Section 43
Who is an Expert?- R. v. Gatheru [1954]21 EACA 384
a) Educational Background- Odindo v. R [1969] EA 12
✓ Ordinarily, for a person to be considered an expert, he/she should have an
educational background in the subject matter that he is expected to testify.
✓ before admission of evidence of such person, his educational background is
put on record.
 OPINION EVIDENCE
Expert Opinion Cont’d
In Uganda v. Ogwang Cr. App. No. 43/78, a medical assistant was held to be
an expert for purposes of classifying harms as dangerous or not dangerous
and injuries as fatal or minor. It was observed that in ordinary practice,
such are the duties of a medical doctor.
b) Experience
➢ Court will consider the experience or skill of a person even when they did
not acquire formal training in that branch of knowledge.
➢ In R v. Silverlock [1894] 2 QB 766, court allowed a solicitor to testify and
held that his experience in perusing documents partly for professional use
and partly for private purposes enabled him to acquire experience in
handwriting although he had not acquired any formal education.
 OPINION EVIDENCE
Expert Opinion Cont’d
Experience Cont’d..
In R. v. Gatheru [1954]21 EACA 384, court emphasized that competence of
an expert should in all cases be established before his testimony is
properly admitted.
 The rule on competence of a witness to be established is one of practice.
Failure to establish competence would not in all cases, render the
evidence inadmissible. There is a stricter application of this rule in
criminal as compared to civil proceedings - Ahmed v. R [1957] EA 523
c) Value of Expert Opinion Evidence
➢ Court is not bound to admit expert evidence as this kind of evidence is
only meant to assist court in reaching a decision on a matter. Court can
always exercise its discretion depending on the facts of the case.
 OPINION EVIDENCE
Expert Opinion Cont’d
Value of Expert Opinion Evidence Cont’d..
In R v. Smith [1979] 1 WLR 1445, since automatism was a condition outside
the experience of the ordinary lay person, the psychiatrists’ expert evidence
was relevant and necessary to help the jury determine whether the
applicant’s defence of automatism was valid.
In Kit Smile Mugisha v. Uganda -Criminal Appeal 78/1976 (1976) HCB 246 the
Court of Appeal for Eastern Africa held that expert opinion is opinion
evidence and it can rarely if ever, take the place of substantive evidence. That
opinion is only a piece of evidence, and it is for the court to decide the issue
one way or the other upon such assistance as the expert might offer. Court
may also require an expert to state in evidence the grounds for his opinion.
 OPINION EVIDENCE
Exceptions to the general rule cont’d
2. Opinions of ordinary witnesses. Read Sections 45-48.
✓ There are cases where court admits evidence given by an ordinary witness in
case it deems it unnecessary to procure services of an expert.
- Opinion as to handwriting - Section 45
- Opinion as to existence of right or custom - Section 46
- Opinion as to usage, tenets, etc - Section 47
- Opinion as to relationship- Section 48
 WEEK 12
EVIDENCE OF CHARACTER
The law on character evidence is enshrined under Sections 50-54 of the
Evidence Act.
Section 54 states: “In sections 50, 51, 52 and 54 the word “character”
includes both reputation and disposition; but, except as provided in section
52, evidence may be given only of general reputation and general
disposition, and not of particular acts by which reputation or disposition
were shown.” In other words, the section explains character evidence to
include both reputation and dispositions.
If character evidence is to be given, it should only be as to general
disposition and general reputation but should not be evidence of the
particular acts by which reputation or disposition was shown.
 EVIDENCE OF CHARACTER
Meaning of disposition and reputation
✓ Disposition means the tendency of a person to act or behave in a particular
way
✓ Reputation refers to the opinion of members of the public about a
particular person.
General Rule
The general rule is that character evidence is inadmissible in a court of law.
The rule however has exceptions which are dependant on the following:
a) nature of the case (civil or criminal); and
b) nature of the parties (accused , plaintiff or defendant).
 EVIDENCE OF CHARACTER
Character in criminal cases
Read Sections 51 and 52
Section 51 - in criminal proceedings, the fact that the accused person is of
good character is relevant.
According to Section 52, the fact that an accused has a bad character in
criminal cases is irrelevant unless it falls under the exceptions stipulated
under the Section.
As seen in section 54, if bad character evidence is to be adduced, it must be
evidence as to the reputation of the accused and it must be shown that a
substantial part of his/her community holds that view.
It can be inferred from these provisions that the law generally presumes
one to be of good character unless the contrary is proved.
 EVIDENCE OF CHARACTER
Character in Criminal Cases cont’d.
In R. v. Rowton (1965) 10 Cox 25, Rowton was charged with indecently
assaulting a boy. He called several witnesses who testified to his good
character. In rebuttal, the prosecution called a witness who stated: “I know
nothing of the neighbourhood’s opinion, because I was only a boy at school;
but my own opinion and the opinions of my brothers who were also pupils
of his, is that his character is that of a man capable of the grossest
indecency and the most flagrant immorality.”
Effect of the Rowton decision - that in the law of evidence, ‘character’
usually means reputation. once character is in play, it must be made plain to
the witness that character relates to the person’s reputation and not an
opinion of disposition to act honestly or morally.
 EVIDENCE OF CHARACTER
Character in Criminal Cases cont’d.
Exceptions Under Section 52 (when is bad character admitted?)
a) Character evidence is relevant if evidence has been given or a question or
questions asked by the accused person or his or her advocate for the purpose
of showing that he has a good character.
When the accused gives evidence that he is of a good character or asks
questions to show him as such, then he is said to have put his character in
issue. The prosecution would then have to give evidence of his/her bad
character in rebuttal - Maxwell v. D.P.P. [1935] A.C. 309
b) If the proof that the accused has committed or been convicted of another
offence is admissible evidence to show that he or she is guilty of the offence
with which he or she is charged- R. v. Rodley [1913] 3 K.B. 468 [similarity
between offense he is being charged with & the one being adduced] Read S.14
 WEEK 13
EVIDENCE OF CHARACTER CONT’D
Character in Criminal Cases cont’d.
Exceptions Under Section 52 Cont’d(when is bad character admitted?)
c) If the nature or conduct of his or her defence is such as to involve imputations
on the character of the complainant or the witnesses for the prosecution -
Royston v. R 1953) 20 EACA 147 (The principle is that a clear line should be
drawn between words that are denial of evidence and words which attack the
conduct or character of a witness)
d) If he or she has given evidence against any other person charged with the same
offence as that with which he or she is charged - Murdock v. Taylor [1965]1 All
E.R. 406 (evidence against co accused means evidence which support the
prosecution’s case against co accused in a material respect, or undermines
defence of co accused; both must be charged with the same offence.
 EVIDENCE OF CHARACTER CONT’D

Character in Criminal Cases cont’d.

Rules relating to admissibility of bad character
Stirland v. D.P.P. [1944] A.C. 315
1. The accused may be cross-examined as to his claims of good character in
any evidence he has given in chief and as a result of such cross-
examination can prove his good character.. As such, accused’s past
record can be put in evidence- mere suspicion does not suffice.
2. Evidence of witnesses who can establish bad character may be adduced
at the trial.
 EVIDENCE OF CHARACTER CONT’D
Character in Civil Cases
Read Sections 50 and 54.
According to Section 50, the fact that the character of any person
concerned is such as to render probable or improbable any conduct
imputed to him or her is irrelevant, except insofar as that character
appears from facts otherwise relevant.
From the foregoing, the general rule is that character evidence is not
admissible to prove conduct in civil cases.
Note that character becomes relevant in exceptional cases when
character is put in issue. This is very common in defamation cases.
All parties and witnesses put their character in issue when they testify.
 EVIDENCE OF CHARACTER CONT’D
Character in Civil Cases Cont’d
Testimony on character means that cross-examination on such
evidence is a very important aspect in such instances.
Read Figueredo v. Editor, Sunday Nation & Others [1968] EA 501
[cross examination]
Aspect of mere suspicion and rumours- One must be careful not to
confuse an allegation of particular unsavory behavior with
character. Read Walters v. Sunday Pictorial Newspaper [1961] 2 All
E.R. 758
 EVIDENCE OF CHARACTER CONT’D
Character in Civil Cases Cont’d
Character and the measure of damages
According to Section 54, the fact that the character of any person is
such as to affect the amount of damages which he or she ought to
receive is relevant.
Read Scott v. Sampson (1882) 8 Q.B.D. 491
The relevance of a conviction
Read Hollington v. Hewthorn & Co. [1943] KB 58