The Law of Evidence 1

The Law of Evidence

The word, evidence is derived from the Latin word evidens or evidere, which means “to show
clearly; to make clear to the sight; to discover clearly; to make plainly certain; to ascertain; to
prove”.

The law of evidence is part of the law of procedure, i.e. the procedure court has to follow. This
is expressed by saying that it is law of the forum (or court) or the lex fori. The law of evidence is
the same in civil and criminal proceedings.

"Procedure" is to be distinguished from "substantive law" in that substantive law defines the
rights and duties of everyday conduct. Substantive law includes contract law, tort law, and so
on.

A procedural system provides the mechanism for applying substantive law to real disputes. A
good procedural system should provide guidelines as to what information is received by the
judge or jury, how that information is to be presented, and by what standards of proof
("beyond a reasonable doubt," "by clear and convincing evidence," "by a preponderance of the
evidence") the information will be adjudged. A good procedural system ensures that similar
cases will be treated similarly by the courts.

In his work, Scotch Reform (1808), Jeremy Bentham presented a utilitarian notion of Civil
Procedure as the need “To Supply Justice to all at least Expense”. Basing on his utilitarian
approach which largely clouded his adjectival writings, Bentham classifies the ends of
procedure into direct and collateral ends.

Bentham explains the direct ends as 'giving execution and effect to the predictions delivered, to
the engagements taken, by the other branch, the main or substantive branch of the law: viz. by
decisions pronounced in conformity to it.' He views the 'collateral' ends as 'prevention of delay,
vexation and expense, in so far as superfluous or preponderant'. He therefore views the
overarching end of procedure as the prevention of misdecision or a failure of justice.

Evidence includes all legal means, exclusive of mere argument, which tend to prove or disprove
any matter of fact, the truth of which is submitted to judicial investigation. Unless facts are
correctly ascertained, however accurate the application of the substantive law, the result
cannot, except by mere chance, be free form error. Thus, the first and most important step
towards a correct adjudication is to ascertain the facts correctly.

Preliminary Definitions
By Joseph Edmond Kalinaki (LLM (Cantab), Dip. LP (LDC), LL.B (Hons)(MUK), Advocate of the High Court of Uganda, Lecturer in Law, Uganda
Christian University))
In the study of the Law of Evidence, one is confronted with various terminology to which
different meaning attaches.

Fact

The Evience Act, Cap. 6 in section 2(1)(e) defines a “fact” as including:

(a) Anything, state of things, or relation of things, capable of being perceived by the senses,
and
(b) Any mental condition of which any person is conscious.

Fact in issue

This under section 2(1)(f) of the Evidence Act means and includes any fact from which, either by
itself or in connection with other facts, the existence, nonexistence, nature or extent of any
right, liability or disability, asserted or denied in any suit or proceeding, necessarily follows.

An explanation to the section provides that whenever under the provisions of the law for the
time being in force relating to civil procedure, any court records an issue of fact, the fact to be
asserted or denied in the answer to that issue is a fact in issue.

Such facts in issue in any given case are determined either by the substantive law or by the
charge or plea.

Facts in issue are distinguishable from subordinate or collateral facts i.e. facts which affect the
proof of facts in issue either because they affect the credibility of a witness testifying to a fact in
issue. There may be facts for example which prove the witness’s eyesight or bias. They may also
be collateral or subordinate because they affect the admissibility of an item of evidence tending
to prove a fact in issue for example police misconduct affecting voluntariness of a confession
would itself affect the admissibility of a confession.

Oral Evidence

Oral evidence means all statements which the court permits or requires to be made before it by
witnesses in relation to matters of fact under enquiry.

Court

Under section 2(1)(a) of the Evidence Act, court includes all judges, magistrates, jurors and
assessors and all persons, except arbitrators, legally authorized to take evidence.

By Joseph Edmond Kalinaki (LLM (Cantab), Dip. LP (LDC), LL.B (Hons)(MUK), Advocate of the High Court of Uganda, Lecturer in Law, Uganda
Christian University))
Document

It means any matter of fact described or expressed upon any substance by means of letters,
figures or marks, or by more than one of those means, intended to be used or which may be
used for the purpose of recording a matter (s.2(1)(b) of the Evidence Act).

Documentary Evidence

It means all those documents produced for the inspection of the court. In Nyanzi v Uganda, the
court, following R v Maqsud Ali accepted a tape recording as documentary evidence
emphasizing that it could not be robbed of technology that could be of use to the court.

Prima facie evidence

This refers to that evidence which establishes a fact and that fact will be presumed to exist
unless there is contrary evidence.

Prima facie evidence does not amount to conclusive evidence which is evidence which if
adduced cannot be contradicted. It is enough for a court or tribunal to make a finding in a
particular direction. A decree of divorce for example is conclusive evidence that a particular
marriage has come to an end and that the persons were married before.

Real Evidence

It refers to evidence of a material or physical nature. It is normally adduced as an exhibit in

court. In practice, admission of real evidence must be accompanied by testimony of a witness
to identify or explain it.

Direct Evidence

The word direct evidence may be used in two senses:

1. When it is distinguished from hearsay evidence

Hearsay evidence is evidence of a person who was not at the scene or who did not perceive the
fact but who comes to court to relate or to give evidence of the occurrence in proof or to prove
the truthfulness of what he or she was told. In this sense, direct evidence would be evidence of
a person who either saw, heard, felt or perceived the fact in issue.

By Joseph Edmond Kalinaki (LLM (Cantab), Dip. LP (LDC), LL.B (Hons)(MUK), Advocate of the High Court of Uganda, Lecturer in Law, Uganda
Christian University))
2. When distinguished from Circumstantial Evidence, direct evidence means evidence in the
first instance or direct perception. Circumstantial evidence is that evidence which is as a result
of a conclusion drawn from a series of events. It refers to any fact which is a fact relevant to a
fact in issue from which the existence of a fact in issue may be inferred.

A piece of circumstantial evidence may be proved by any other evidence including other
circumstantial evidence. With circumstantial evidence, the facts in issue are indirectly inferred
rather than directly perceived as with direct evidence.

In Singh v R, court held that circumstantial evidence when it stands alone would be disregarded
unless it is consistent with any other hypothesis of guilt.

Historical Development of the Law of Evidence

A discussion of the Law of evidence reveals that courts of law seek to determine facts by means
of rational processes. Earlier forms of procedure included the following:

(a) Trial by battle:

The trial by battle, duel or single man, combat, which was a species of presumptuous appeals to
Providence, under an expectation that Heaven would unquestionably give the victory to the
innocent or injured party.

(b) Trial by Ordeal:

Trials by ordeal were a pagan custom that took on added ritual when Christianity was
introduced into England. There were various ordeals, and at different times certain ordeals
were reserved for people of higher rank, whereas others were used for common people. All
were based on the belief that supernatural forces would rescue the innocent from perils to
which they were exposed and would allow the guilty to be physically harmed.

The ordeal of water was performed by casting the suspect into a pond or river. If the suspect
floated to the surface without any action of swimming, she was deemed guilty. If the suspect
sank, she was pulled out and pronounced innocent. The hot water ordeal required the accused
to plunge his bare arm up to the elbow into boiling water without injury. In the ordeal of the
cursed morsel, the suspect swallowed a piece of dry bread with a feather in it. If the suspect did
not choke, he was found innocent. The ordeal of the red-hot iron required the accused to carry
a heated poker weighing one, two, or three pounds over a certain distance. After that, the
suspect's hand was bound, and in three days the bandages were removed. If the wound had
not become infected, the suspect was pronounced innocent. A variation of this ordeal required
the accused person to walk barefoot and blindfolded over nine red-hot plowshares placed at

By Joseph Edmond Kalinaki (LLM (Cantab), Dip. LP (LDC), LL.B (Hons)(MUK), Advocate of the High Court of Uganda, Lecturer in Law, Uganda
Christian University))
uneven distances. The ordeals of the red-hot iron and the plowshares were also called the fire
ordeals and were often reserved for nobility.

(c) Trial by Compurgation:

In early English law, compurgation was a mode of trial in which the accused was permitted to
call twelve persons of his acquaintance to testify to their belief in his innocence.

From the nature of these trials, facts were determined either by divine guidance or in some
arbitrary manner. These procedures were inevitably replaced by some newer methods in
which courts sought to apply laws to facts and gradually there developed a set of principles to
be followed in fact finding. The rules of evidence that were thus brought into operation were
elaborated upon by the judges in the course of adjudication.

One of such rules advance as a general principle of the Law of evidence is the Best Evidence
Rule. The best evidence rule is a common law rule of evidence which can be traced back at
least as far as the 18th century. In Omychund v Barker (1745) 1 Atk, 21, 49; 26 ER 15, 33, Lord
Harwicke stated that no evidence was admissible unless it was "the best that the nature of the
case will allow". The publication ten years later of Gilbert's enormously influential Law of
Evidence (1st edition, Dublin, 1754), a posthumous work by Sir Jeffrey Gilbert, Lord Chief Baron
of the Exchequer, established the primacy of the best evidence rule, which Gilbert regarded as
central to the concept of evidence. The general rule is that secondary evidence, such as a copy
or facsimile, will be not admissible if an original document exists, and is not unavailable due to
destruction or other circumstances indicating unavailability.

Jeremy Bentham, Rationale of judicial evidence, specially applied to English practice, from the
MSS. of J. Bentham [ed. by J.S. Mill] (available in Google books), argues that the law of evidence
deals with “persuasion concerning the existence of matters of fact”. Bentham does not regard
evidence as a concept employed only in courts of law but as one relied upon in all human
activities both scientific and non-scientific. He therefore defines evidence as a word or relation
(meaning any matter of fact) the effect, tendency or design of which when presented to the
mind is to produce a persuasion concerning the existence of some other matter of fact.

Bentham makes a distinction between primary fact and evidentiary fact which is more
commonly expressed as the distinction between factum probandum (ultimate fact or the fact
sought to be established) and factum probans (evidentiary fact or the fact by which the factum
probandum is to be established). The relationship between these two has subsequently been
called that of relevancy.

Best agreed to some extent with Bentham’s basic notions but also pointed out that Bentham
was wrong in assuming that some unitary view of evidence applicable in all human activities
scientific and non-scientific was caable of healing all problems of evidence in courts of law. He
asserted that there was a distinction between the approach required for the determination of
By Joseph Edmond Kalinaki (LLM (Cantab), Dip. LP (LDC), LL.B (Hons)(MUK), Advocate of the High Court of Uganda, Lecturer in Law, Uganda
Christian University))
facts by other human beings like historians, scientists, business people and the like and the
qualified approach which courts of law must adopt. That this qualified approach is necessary
because of the conditions of litigation and also because of the policies that the courts of law
carry out. According to him, this distinction gives rise to the concepts he chose to call natural
evidence and judicial evidence.

The Rules of Evidence aim at achieving the following ends:

(a) To establish as to who has the burden of proof in given circumstances and it is the duty
of that person to prove his or her facts.
(b) To prescribe facts which may be proved. They determine which facts to be admitted i.e.
they prescribe the relevancy and admissibility of evidence, they prescribe the status of
certain evidence e.g. opinion, character and hearsay evidence.
(c) They prescribe facts which are excluded from the consideration of the court such as
privileged information.
(d) They prescribe the methods by which proof may be effected such as through oral
testimony, use of exhibits, visiting the locus in quo, use of expert opinion and the use of
documentary evidence among others.
(e) They prescribe the extent of proof required in a particular case and the efficacy of
certain pieces of evidence. In essence, they determine the weight of proof required for
civil and criminal cases and consider the evidence of certain categories of persons such
as children, persons of unsound mind and where necessary they prescribe
corroboration.
Generally, the main principles which underlie the law of evidence are-
(1) evidence must be confined to the matter in issue;
(2) hearsay evidence must not be admitted; and
(3) best evidence must be given in all cases.

The Law Applicable to the Study of the Law of Evidence

The law of Evidence is basically statutory and most of it is to be found in the Evidence Act. The
bulk of this law is derived from the Indian Statutes of Evidence especially the Indian Evidence
Act of 1872. This Act was an attempt by Sir James Fitzjames Stephen to codify the English
common law on Evidence.

There are some differences between the Indian Statute and the Common law thata er worth
noting:

1. Corroboration

There was a higher requirement for corroboration under the Indian Act than under the
common law. Under the Indian Act, there had to be more than one witness to giv corroborative
evidence. In Uganda, the common law position is followed.
By Joseph Edmond Kalinaki (LLM (Cantab), Dip. LP (LDC), LL.B (Hons)(MUK), Advocate of the High Court of Uganda, Lecturer in Law, Uganda
Christian University))
 2. Dying Declarations:

These were treated differently under the Indian Act in that any statement which establishes the
cause of death of a person made by such deceased person would be relevant. This position is
followed in Uganda but under the common law, imminent expectation of death is necessary
before such declaration is considered relevant.

The Africa Order in Council promulgated in 1889 under the Foreign Jurisdiction Acts (1843-
1878) provided for the setting up of consular courts in Africa exercising jurisdiction “so far as
circumstances permitted… upon the principles of, and in conformity with the substance of the
law for the time being in force in England”. In 1897, THE East Africa Order in Council which
replaced the 1889 Order in the East Africa Protectorate stated that jurisdiction should be
exercised by the High Courts in conformity with certain Indian enactments one of which was
the Indian Evidence Act.

In 1907, the East Africa Protectorate Applied Acts Ordinance was passed, providing that any Act
of the legislature of India amending or substituted for any Indian Act in force in the
protectorate should apply as if passed before the enactment of the Ordinance, but not
otherwise.

In Uganda, the corresponding Uganda Order in Council of 1902, replacing the 1889 Order in
Council, although it introduced into Uganda the operation of certain Indian codes, did not apply
the Indian Evidence Act. In 1909 however, an Evidence Ordinance, drafted locally, was enacted
which almost throughout repeated verbatim the terms in the Indian Act, with the mere
substitution of Uganda for Indian place names in the illustrations. There was nevertheless one
important departure from the parent Act, the English law instead being followed: there was no
provision in the ordinance rendering confessions made to a police officer inadmissible as
evidence, and such confessions were under the Ordinance admissible as in England, under the
same conditions as confessions made to any other persons in authority. Nor was there any
provision that confessions made while in police custody had, to be admissible, to be made
before a magistrate.

Subsequently, a number of amendments have been made to the Uganda Evidence Act for
instance, in 1935, 1955, 1971 and 1985. Most of these amendments affected the area of
confessions: when is a confession valid and admissible in court. They sought to determine who
can make a confession and under what circumstances. The current law in enshrined in Cap. 6 of
the Laws of Uganda 2000 and can be found in Volume II of the Red Volumes.

Interpretation and Scope of the Evidence Act

The purpose of codification is to bring together unwritten laws on a subject and reduce them
into writing for purposes of certainty. However, codification also brings problems as to
interpretation, that is, how should codified law be interpreted? This issue was considered oin
the case of Wallace Johnson v R [1940] 1 All ER 241.
By Joseph Edmond Kalinaki (LLM (Cantab), Dip. LP (LDC), LL.B (Hons)(MUK), Advocate of the High Court of Uganda, Lecturer in Law, Uganda
Christian University))
The appellant was charged with sedition contrary to the criminal code of the Gold Coast. Under
English common law, to establish the guilt of an accused the prosecution had to show that the
words themselves were of such a nature as to be likely to incite violence and that there was
positive extrinsic evidence of intention. At Page 244, the Privy Council said:

“The elaborate structure of section 33o suggests that it was intended to contain as far as
possible a full and complete statement of the law of sedition in the colony. It must, therefore,
be construed in its application to the facts of this case free from any glosses or interpolations
derived from any expositions, however authoritative, of the law of England or Scotland”.

It has been acknowledged that the object of codification would be defeated if express
reference as to interpretation was sought in English cases. As such, it is agreed that in
interpreting codes, one must look at the words used and attach to them the meanings
intended.

A number of East African cases have considered this particular issue. In R v James Clifford
Brabbin & Ram Pratap Khosla (1947) 14 EACA 80 the court said that:

“ It is true that the Indian Evidence Act is, in the main, a codification of the English law and, in
so far as it is so, English decisions are, of course, most useful. But undoubtedly, here and there
in the Act, there are definite deviations from the English law and where these occur, the Act
must prevail as the Act has become party of the legislation of the Colony as a comprehensive
Evidence Code”.

The issue of the applicability of English law in matrimonial causes was considered in Oscar
Stjernholm v Guillermina Stjernholm [1955] 28 KLR 183, Cram Ag. J, concluded that:

“The law in force in the High Court of Justice in England embraces the English Adjectival law of
evidence and this, therefore, would apply to matrimonial causes in the courts of Kenya subject
to the provisions of the Ordinance… The law of England in matrimonial suits includes the
adjectival law evidence and it would seem excludes the local law of evidence contained in the
Indian Evidence Act”.

The learned judge amplified that reasoning in the case of Hakam Bibi v Mistry Fateh Mohamed
(1955) 28 KLR 91 where he said that English decisions were authoritative on this substantive
branch of the law and “were so entwined with the English law of evidence and procedure that it
was difficult to apply these decisions separated from the ancillary law and hence only the
practical system and the one intended by the legislature was that the English law of evidence
was to apply”.

In the case of Hansen & Soehne A.m.b.H. v Jetha Ltd [1959] EA 563, Simmons, J. warned that:

By Joseph Edmond Kalinaki (LLM (Cantab), Dip. LP (LDC), LL.B (Hons)(MUK), Advocate of the High Court of Uganda, Lecturer in Law, Uganda
Christian University))
“Although English and other persuasive authorities are of great value to this court, and often
rightly treated as virtually binding, two things must be remembered; first that the Indian
Contract and Evidence Acts do not purport to be exact reproductions of English law however
closely they may resemble it, and secondly that they are codes, and the raison d’etre of a code
is to provide, so far as may be, a self-explanatory statement”.

The Scope of the Evidence Act

The act according to section 1 shall apply to all judicial proceedings in or before the Supreme
Court, the Court of Appeal, the High Court and all courts established under the Magistrates
Courts Act, but not to affidavits presented to any court or officer nor to proceedings before an
arbitrator.”

The section implies that the Act shall be applicable to all persons appearing before courts in
Uganda without exception and to all matters before courts in Uganda. It, in other words applies
to all judicial proceedings within the geographical limits of Uganda. Technical rules of evidence
do not apply to in Local Council Courts because they adopt informal procedures. The section
expressly provides that the Act does not apply to affidavits.

In London Overseas Co. v Raleigh Cycle Co. Ltd [1959] EA 1012, the issue was whether the
affidavit which contained hearsay would be denied. Court held that the affidavit would not be
denied on that ground because the Evidence Act does not apply to affidavits.

RELEVANCY AND ADMISSIBILITY

Admissibility means the process by which a court will accept or reject particular items of
evidence. This generally depends on whether the facts or items are relevant or not and on
whether an item is excluded by law from being taken as evidence.

According to section 4 of the evidence Act, “evidence may be given in any suit or proceeding of
the existence or nonexistence of every fact in issue, and of such other facts as are hereafter
declared to be relevant, and of no others.”

For evidence to be admissible therefore, it has to be relevant. In Uganda v Kamugisha [1988-

90] HCB 77, the court held that the question of admissibility of a piece of evidence be it oral or
documentary basically depended on whether it was relevant to the issue before court. That
otherwise, the court record would be filled with all sorts of evidence which were not sufficiently
relevant and they might tend to prolong trial unnecessarily because of immaterial matter.

For evidence to be admissible, it must relate to a fact in issue. See: Struggle (U) Ltd v Pan
African Insurance Co. Ltd [1990-91] KALR 46

By Joseph Edmond Kalinaki (LLM (Cantab), Dip. LP (LDC), LL.B (Hons)(MUK), Advocate of the High Court of Uganda, Lecturer in Law, Uganda
Christian University))
The general principle is that once evidence is admissible, the manner of procurement does not
matter. This means that evidence may not be rejected on grounds of its being illegally obtained.
See: Karuma v R (1955) 22 EACA 364.

This general rule however does not apply to confessions. Under section 24 of the Evidence Act,
confessions should be made voluntarily lest their evidential value is diminished.

Evidence may be given of two sets of facts:

1. Evidence may be given of facts in issue, in other words facts which are alleged by one
party and denied by the other.
2. Evidence may be given of facts relevant to facts in issue, that is, all other facts which in
the eyes of the law are so connected with or related to facts in issue that they render
the latter probable or improbable or they throw light on them.

Relevancy is sometimes used synonymously with connection. The discussion of relevancy in the
Law of Evidence involves inter alia the study of the principles of res gestae. The term res gestae
is used to connote acts, declarations and circumstances constituting, accompanying or
explaining a fact in issue.

The term res gestae literally means the transaction. The principle of relevancy therefore
assumes that there is a transaction in issue or a principal fact and that what constitutes res
gestae are those other facts which are in relationship with the fact in issue.

Simply put, a transaction is a group of facts so connected together as to be referred to by a

single legal name for example a crime, contract, or a wrong. Every fact which is part of the
same transaction as the facts in issue is deemed to be relevant to the facts in issue even if it
may not itself be actually in issue and although if it were not part of the same transaction it
might be excluded as hearsay. In Uganda, the general principle of res gestae is enshrined in
sections 5-14 of the Evidence Act.

Elements of res gestae

Section 5 of the Evidence Act generally provides for res gestae in the following terms:

“Facts which, though not in issue, are so connected with a fact in issue as to form part of the
same transaction are relevant, whether they occurred at the same time and place or at
different times and places.”

By Joseph Edmond Kalinaki (LLM (Cantab), Dip. LP (LDC), LL.B (Hons)(MUK), Advocate of the High Court of Uganda, Lecturer in Law, Uganda
Christian University))
This provision restates the general principle of res gestae while other provisions provide for
particular elements of res gestae.

In R v Premji Kurji (1946) 7 EACA 58, the deceased had been killed with a dagger. Evidence was
admitted of the fact that just prior to the death of the deceased, the accused had assaulted the
deceased’s brother with a dagger and had uttered threats against the deceased. The deceased
was in a go-down of a shop in which his brother was working. After wounding the brother, the
accused said he was going to finish the deceased. He proceeded to the go-down with a dagger
and was seen standing over the deceased with a dagger in his hands. One of the issues was
whether or not under res gestae, evidence of the attack on the deceased’s brother was
admissible. It was held that where there were two occurrences so closely interconnected, they
had to be regarded as part of the res gestae. Court further said that when the two acts of an
accused are so interwoven as to form part of the same transaction, it was not proper to shut
out evidence of one of the acts even though it would involve introducing evidence of the
commission of another offence by the accused.

The issue has been debated whether words, statements or declarations can form part of the res
gestae. It is generally agreed though, that for the statements to form part of the res gestae,
some of the following must be proved:

(a) The statement or declaration must relate to the main event and must explain or
elucidate on the main event.
In R v Bird’s Eye (1830) 4 C&P 386, the accused was charged with stealing packled
pork, a bowel, some knives and a loaf of bread. It was alleged that he went to the
prosecutor’s shop, took the pork and ran away. In about two minutes, he returned,
replaced the pork in a bowel which contained the knives and took the lot away.
About half an hour later, he returned and took the loaf of bread. Court held that the
taking away of the loaf could not be given in evidence on the indictment. That the
accused’s taking of the pork, returning and then running off with the bowel must be
taken as one continuing transaction but half an hour was too long a period. The
taking of the loaf therefore was a distinct offence.
(b) The statement or transaction must be a natural declaration growing out of the event
and must not be a mere narration of past events. The incident claimed to be Part of
the res gestae must not occur after the transaction is completed.
In Ramadhan Isamail v R, a young girl was defiled and she went crying straight to her
home about two or three houses from the scene of the crime and she told her
parents. She then led her father to where she had been assaulted and pointed to the
accused saying “that is the bwana”. The issue was whether this statement could be
adduced as part of the res gestae. Court held that the utterance could not be
By Joseph Edmond Kalinaki (LLM (Cantab), Dip. LP (LDC), LL.B (Hons)(MUK), Advocate of the High Court of Uganda, Lecturer in Law, Uganda
Christian University))
 considered part of the res gestae since it was a mere narration of past events. Court
said that when it comes to matters of res gestae, minutes may be a matter of utmost
importance.
In the case of Thompson v Trevanion, Skin. 402, 90 Eng. Rep. 179 (K.B.1694), which
was a civil action for assault on the plaintiff’s wife, the court admitted an accusation
made by a victim “immediately upon the hurt received, and before she had time to
devise or contrive anything for her own advantage” over a confrontation clause
objection.The issue in these cases is whether the words in question do accompany
the physical acts so as to form part of the transaction or whether they are
subsequent to such acts and are therefore mere narratives. The court will allow a
statement before a person has had time to concoct a story to the advantage of the
complainant.
(c) The statement or declaration must be a statement of fact and not an expression of
opinion. Opinion evidence is inadmissible in evidence except where it is made by an
expert. It cannot therefore form part of the res gestae since it is a mere expression
of opinion.
(d) The statement or declaration must be contemporaneous with the occurrence of the
event, that is, there has to be proximity in terms of time. In Oriental Fire and General
Assurance Co Ltd v Govinder & Others (1969) EA 116, court said that a statement
that was not contemporaneous or said immediately after the time of the accident
was not part of the res gestae.
(e) The statement or declaration must be by a party who participated in the transaction
or who was a witness to the event in issue. This can be by the accused, complainant
or a witness.

Specific aspects of res gestae

Facts forming part of the same transaction

This is covered under section 5 of the Evidence Act. This section has been interpreted as
requiring contemporanity of an item with the fact in issue.

See: Oriental Fire and General Assurance Co Ltd v Govinder & Others (1969) EA 116

Facts which are the Occasion, Cause or Effect of Facts in Issue

Section 6 of the Evidence Act provides that:

By Joseph Edmond Kalinaki (LLM (Cantab), Dip. LP (LDC), LL.B (Hons)(MUK), Advocate of the High Court of Uganda, Lecturer in Law, Uganda
Christian University))
“Facts 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.”

The section generally seeks information that would draw more light on the transaction or facts
in issue.

See: R v Brabbin & Khosla (1947) 14 EACA 80, Makindi v R (1966) EA 327

In Moody & Others v R [1957] EA 371, court held that previous conspiracies could also be taken
into account to establish the fact of causation.

Facts showing Motive Preparation or Conduct

Under section 7 of the Evidence Act, it is provided that:

“(1) Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue
or relevant fact.
(2) The conduct of any party, or of any agent to any party, to any suit or proceeding, in
reference to that suit or proceeding, or in reference to any fact in issue in the suit or proceeding
or relevant to it, and the conduct of any person an offence against whom is the 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.
Explanation 1.—The word “conduct” in this section does not include statements, unless those
statements accompany and explain acts other than statements; but this explanation is not to
affect the relevancy of statements under any other section of this Act.
Explanation 2.—When the conduct of any person is relevant, any statement made to him or her
or in his or her presence and hearing, which affects that conduct, is relevant.”

Subsection 1 emphasizes motive or preparation. Motive is a mental state and it is therefore

normally derived from circumstances and relationships. It is what influences a person to act in a
particular manner. It may be a fear or a desire which brings about a particular activity.

The question of motive was discussed in the case of Tikamanyie v Uganda [1988-90] HCB 5, The
two appellants were tried and convicted of kidnapping with intent to murder. They appealed
against conviction on the ground, inter alia, that the trial judge erred in law in taking into
account the motive for the alleged offence and treating it as men rea. Court held that motive
was irrelevant in a criminal prosecution but that it was always useful since a person in his
normal faculties would not commit a crime without a reason or motive. Court further said that
the existence of a motive made it more likely that an accused person did in fact commit the

By Joseph Edmond Kalinaki (LLM (Cantab), Dip. LP (LDC), LL.B (Hons)(MUK), Advocate of the High Court of Uganda, Lecturer in Law, Uganda
Christian University))
offence charged and that in this particular case, the motive was that the appellant wanted to
get the victim out of his way as he was converting his church members to his own church.

See also: Bitwire v Uganda [1987] HCB 11, Byaruhanga v Uganda (Sct. Cr. App. No. 7 of
1990), Uganda v Barikunda [1985] HCB 12.

In Uganda v Paulo Muwanga [1988-90] HCB 14, the accused was charged with interfering with
the execution of legal process. It was alleged that the accused while Vice President and Minister
of Defence ordered the release of a person who had been implicated in banditry activities and
who was held on remand. No evidence was adduced as to what motive would have driven the
accused to set a suspect free although the suspect was seen in the company of the accused
after the release. One of the issues was whether it was relevant for the prosecution to prove
the existence of a motive on the part of the accused. Court held that our law does not require
the prosecution to prove motive in criminal cases and that in the instant 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 defence of the accused.

Section 7 of the Evidence Act also provides for facts constituting preparation as relevant facts.
Preparation refers to those plans intended to bring about particular events. Under criminal law,
offences are said to go through four distinctive stages namely:

• Intention
• Preparation
• Attempt, and finally
• Execution of the act.

The law usually punishes at the third and fourth stages but evidence of preparation is necessary
as constituting res gestae.

Preparation involves the putting together of all the prerequisites necessary to bring about a
thing. It may involve procurement or acquisition of articles of mischief such as house breaking
implements or the designation of the locus in quo.

Section 7 also talks about conduct as being relevant. It is provided in section 7(2) that the
conduct of any party or of any agent to any party to a suit or proceeding and the conduct of any
person against whom an offence or charge is preferred is relevant if that conduct influences or
is influenced by any fact in issue or relevant fact whether it was previous or subsequent
thereto.

By Joseph Edmond Kalinaki (LLM (Cantab), Dip. LP (LDC), LL.B (Hons)(MUK), Advocate of the High Court of Uganda, Lecturer in Law, Uganda
Christian University))
Therefore, under s.7 (2), relevant conduct may either be previous or subsequent. Previous
conduct may be admissible for reasons such as;

• to prove a system or course of conduct i.e. a state of affairs

• to rebut a Suggestion on the part of an accused that what happened was a mistake or
an accident, or
• to prove knowledge by the accused of some fact.

Hence, evidence of conduct may be useful in proving a motive or intention, preparation or

opportunity and could include previous attempts to bring about the event. It could also include
declarations of intent or threats and it may be used to refer to a system or state of things.

In the case of R v Ball (1911) AC 47, the accused, a brother and sister were charged under the
Punishment of Incest Act for having carnal knowledge of each other. Evidence of previous acts
of the two accused was tendered with a view of showing that there were sexual relations
between them. It was alleged that the male accused bought a house in which he took the
female accused as his wife and they lived there as husband and wife for sixteen months.
Another piece of evidence was that the house had only one furnished bedroom with one
double bed which showed signs of occupancy and it was alleged that the two shared the bed.
After the sixteen months, the female accused gave birth to a child and registered the birth
describing herself as the mother and the male accused as the father. They were convicted on
this evidence and they appealed.

On first appeal, the conviction was quashed on the ground that the evidence objected to was
not, in the first instance admissible as nothing had occurred in the conduct of their defence to
render it admissible as a rebuttal.

The issue on second appeal was whether the previous acts of the accused were admissible.

The court held that evidence of previous conduct would be admissible to show the relationship
of two parties and to show intent, guilt, knowledge, design, system or to rebut the defences of
accident, mistake or reasonable honest mistake. That the evidence objected to in this case was
admissible as its object was to establish that the accused had a guilty passion towards each
other and to rebut the defence of innocent association of brother and sister.

Lord Loreburn LC in his speech said that:

“My Lords, I agree that courts ought to be very careful to preserve the time honoured law of
England, that you cannot convict a man of one crime by proving that he had committed some
other crime; that, and all other safeguards of our criminal law will be jealously guarded ; but

By Joseph Edmond Kalinaki (LLM (Cantab), Dip. LP (LDC), LL.B (Hons)(MUK), Advocate of the High Court of Uganda, Lecturer in Law, Uganda
Christian University))
here I think the evidence went directly to prove the actual crime for which these parties were
indicted.”

See also: John Makindi v R [1961] EA 327

Subsequent conduct on the other hand refers to the way a person behaved soon after the
transaction. It may be used to implicate a person as evidence of the state of mind at the time
when he committed the act in question after such act has been proved.

Subsequent conduct such as silence of an accused or the giving false statements or evasive
answers may be used as conduct to implicate an accused.

Subsequent conduct is very important especially in rape and allied offences and in such cases,
the conduct of the complainant will also come under scrutiny.

In the case of Lobo v R (1926) KLR 55, the court held that complaints by victims of rape and
allied offences if made at the first reasonable opportunity after the offence are admissible the
complaint being indicative of the complainant’s state of mind although not as establishing the
acts complained of.

In R v Camalleri (1922) 2 KB 122, it was held that such complaints were evidence of consistency
of conduct. The facts were that the accused was charged with acts of gross indecency against a
fifteen year old boy. The judge admitted the particulars of a complaint made by the boy to his
parents shortly after the offence and held that these were admitted not as evidence of the facts
complained of but to show the consistency of his conduct with his testimony in the witness box.
The judge added that such complaints will also be admissible to negative consent where the
fact of consent is in issue.

In Uganda v Simon Onen (1991) HCB 7, the accused was charged with murder and later
convicted of manslaughter. The facts were that the accused was one evening sleeping at home
when the deceased and two others woke him up. In his defence, he testified that they started
beating him whereupon he fought back in self-defence. He claimed to have got a stick with
which he beat the deceased. That the panga in the deceased’s hand then cut his right leg. The
deceased’s body was later discovered dragged a few metres from the accused’s courtyard and
it bore several marks on the right leg. The deceased’s shirt was removed and drag marks could
be seen from the accused’s courtyard to where the body was found. The accused however was
nowhere to be found and only resurfaced two months later and reported himself to police.

By Joseph Edmond Kalinaki (LLM (Cantab), Dip. LP (LDC), LL.B (Hons)(MUK), Advocate of the High Court of Uganda, Lecturer in Law, Uganda
Christian University))
It was held that the conduct of the accused in running away into hiding was not conduct of an
innocent man.

See also: Uganda v Kabandize (1982) HCB 94

INTRODUCTORY AND EXPLANATORY FACTS

These are provided for in s. 8 of the Evidence Act. Under the section, evidence may be given of :

• Facts which explain or introduce a fact in issue or relevant fact (these are facts which
have an element of showing how a particular fact in issue or relevant fact was brought
about).
• Facts which rebut or support an inference suggested by a fact in issue or relevant fact
(where a fact in issue raises certain presumptions, any fact that contradicts or supports
such presumption is relevant).
• Facts which establish the identity of anything or person whose identity is relevant.
• Facts which fix the time or place at which a fact in issue or relevant fact happened (time
may determine the type of crime e.g. burglary and house breaking while place is crucial
in determining whether the crime occurred within the jurisdiction of the court. It is also
important in establishing whether the particular person committed the crime e.g. where
the accused has an alibi).
• Facts which show the relation of parties by whom any such fact was transacted (These
could be blood relationships, contractual relationships, personal relationships, love or
hatred or fiduciary relationships).

These facts are relevant in so far as they are necessary for that purpose.

In the case of R v Christie (1914) AC 545, the respondent was convicted of indecent assault
upon a little boy. At the trial, the boy’s mother stated in evidence that as she and her son came
up to the respondent after the act complained of, the little boy said “that is the man” and
explained what the respondent did to him. The respondent replied “I am innocent”. The Court
of Appeal quashed the conviction on the ground that evidence of a statement made in the
presence of an accused was not admissible unless the accused had acknowledged the truth of
that statement.

In answer to the issue whether this statement was admissible, the House of Lords held that the
statement made in the presence of the respondent was admissible in law in reference to the
demeanour of the accused as part of the act of identification as the person who committed the
indecent assault on the boy.

By Joseph Edmond Kalinaki (LLM (Cantab), Dip. LP (LDC), LL.B (Hons)(MUK), Advocate of the High Court of Uganda, Lecturer in Law, Uganda
Christian University))
In R v Straffen, the appellant was charged with murder of two girls by strangulation. He did not
enter any plea due to insanity. He was committed to a rehabilitation centre from where he
escaped for two days during which another girl was found murdered in the same way. He was
later rearrested. He denied killing the third girl but admitted being in the area where the third
girl was found. He had admitted killing the two girls by normal strangulation. This evidence was
tendered and the court admitted it on the ground that it was material to establish the identity
of the murderer in the circumstances.

On appeal, the accused argued that the judge was wrong in law in admitting evidence of earlier
murders and admitting oral statements without the usual caution having been administered.
The issue was whether this evidence was relevant and admissible in establishing the identity of
the accused.

It was held that where a person charged with an offence enters a general plea of not guilty to
the charge, each plea involves an issue of identity and evidence is accordingly admissible, of
other offences previously committed by the accused which from the similarities between them
and the circumstances in which they were committed and the method employed in their
commission and the type of offence with which the accused is then charged, lead to establish
that they were committed by the same person.

The court added that the general rule is to exclude evidence which tends to show that the
accused had been guilty of acts other than those covered by the indictment and it is an
impracticable rule that evidence in such offences shall not be admitted for the purpose of
proving that the accused is a person of criminal disposition or even that he has a propensity for
committing the particular type of crime with which he is charged.

However, there are some recognised exceptions to the general rule under which evidence of
other crimes committed by the accused is admissible in spite of the fact that it tends to prove
that he is of criminal disposition and therefore likely to have c committed a particular crime
with which he is charged.

In Kayambo S/O Kitambo v R (1942) 1 TLR 258, the accused was charged with uttering a forged
document. Evidence was admitted by the trial judge of the presentation of a forged document
in almost similar terms by the accused in the previous month, as tending to establish his
identity. The appeal court held that in doing so, the judge erred since although this evidence
was admissible per se under sections 9 and 11, it should not have been admitted in this case in
view of the lapse of time between the two transactions. The court said that:

“The test when a question of identity is involved should not only be the similarity of the
collateral facts to the facts in issue but also their proximity in point of time; and we hold that
evidence should not be admitted except where the similarity and the proximity of the two visits
By Joseph Edmond Kalinaki (LLM (Cantab), Dip. LP (LDC), LL.B (Hons)(MUK), Advocate of the High Court of Uganda, Lecturer in Law, Uganda
Christian University))
or acts is such that it is unreasonable to draw any other conclusion than that the accused was
the person who was concerned in each... In the present case the evidence went to show that at
least sixteen days intervened between the two visits; and the period may have been
considerably longer. In the opinion of the majority of the court the interval is far too extended
to enable a direct connection or even a strong inference to be drawn”.

Facts which support or rebut an inference

The relevant provision of s.8 cannot be looked at in abstraction from s. 10 of the Evidence Act
which provides that:

“Facts not otherwise relevant are relevant -

(a) if they are inconsistent with any fact in issue or relevant fact;
(b) if by themselves or in connection with other facts they make the existence or
nonexistence of any fact in issue or relevant fact probable or improbable”.

Section 10 therefore makes relevant any facts that will negate or affect the probability of any
fact in issue or relevant fact. Evidence of inconsistencies can be derived from a number of
factors such as physical inconsistencies for instance alibi which rebuts physical presence.

Inconsistent facts

In Uganda v Abdalla Nasur, the court held that in assessing the evidence of a witness and the
reliability to be placed upon it, his consistency or inconsistency are relevant considerations.
That where grave inconsistency occurred, the evidence should be rejected unless it is
satisfactorily explained while a minor inconsistency would have no adverse effect on testimony
unless it pointed to deliberate untruthfulness.

In Uganda v Edirisa SSali & 3 Others, the issue before court was whether grave inconsistencies
and contradictions render the evidence useless if they point to untruthfulness. On the facts, the
complainant had made different statements at different times. Court held that contradictions
and inconsistencies between the complainant’s evidence in court and his previous statements
to the police could not be said to be minor. That they were so contradictory, inconsistent and
confusing that it was impossible to say that he was talking about the same event. Court further
said that police statements even if they are not given on oath are useful to show consistency
and they can be used by the defence to prove contradictions in the prosecution case.

In Uganda v Ngirabakunzi, the above position was restated. The court said that the law on
inconsistencies and discrepancies in the prosecution’s case was that grave inconsistencies
unless satisfactorily explained would usually result in the evidence of a witness being rejected

By Joseph Edmond Kalinaki (LLM (Cantab), Dip. LP (LDC), LL.B (Hons)(MUK), Advocate of the High Court of Uganda, Lecturer in Law, Uganda
Christian University))
but minor inconsistencies would not have that effect unless the trial judge thought that they
pointed to deliberate untruthfulness.

Alibi

In Uganda v Kasya, it was held that an accused who puts up the defence of alibi does not
assume the burden of proving the defence. The burden rests on the prosecution to disprove or
destroy the alibi. Court also tackled the question of circumstantial evidence and said that where
that evidence does not point to the guilt of the accused and where there is other evidence
which may rebut the inferences drawn from circumstantial evidence, then that circumstantial
evidence cannot be relied on to convict the accused. Court looked at the inconsistencies in the
prosecution case and said that where such inconsistencies are so grave i.e. if they go to the root
of the offence, then that evidence will not be adduced.

In Uganda v Sabuni, The accused was indicted with robbery. He claimed that at the relevant
time he was out of the country thereby putting up the defence of alibi. He was convicted on the
grounds inter alia that he had failed to prove his alibi and on appeal, it was held that it is
established law in Uganda that when an accused person sets up the defence of alibi, the
accused does not assume the responsibility of proving the alibi. That the prosecution must
instead negative the alibi by evidence adduced before the defence is put forward or by calling
witnesses to give evidence in rebuttal. Court went on to say that all evidence must be
considered as a whole and if some doubt is thrown upon the prosecution case or if they fail to
negative the alibi, then they will not have proved their case beyond reasonable doubt and the
accuse will be entitled to an acquittal.

In Uganda v Serapio Tinkamalire, the accused was indicted with kidnapping with intent to
murder. He put up the defence of alibi. Court held that the accused has no burden to establish
his alibi. The duty is on the prosecution to disprove it and the duty of the court is to direct its
mind to the alibi set up by the accused and it is only when the court comes to the conclusion
that the alibi is unsound that the court will be entitled to reject it.

Circumstantial Evidence

Where a case is based on circumstantial evidence, guilt of an accused can be inferred if the
facts are inconsistent with his or her innocence.

In the case of Festo Androwa Asenwa & Another v Uganda (Sct. Cr. Appeal 34 of 1996), the
appellants were charged with and convicted of murder. It was alleged that both appellants on
the 20th February 1993, at New Safe Grocery in Wandegeya murdered Prof. Dan Mudhoola , Dr.
Francis Kidubuka and attempted unlawfully to cause the death of Prof. James Katorobo. On the
fateful day a grenade was indiscriminately hurled at a group of people who included the two
By Joseph Edmond Kalinaki (LLM (Cantab), Dip. LP (LDC), LL.B (Hons)(MUK), Advocate of the High Court of Uganda, Lecturer in Law, Uganda
Christian University))
deceased persons. The two deceased persons later died as a result of injuries sustained upon
the grenade explosion. The case against the first appellant was based on circumstantial
evidence namely that:

(i) he had expressed his intentions to kill Prof. Mudhoola a few days before the incident
(ii) he had claimed to have actually killed Prof. Mudhoola a few days after the incident.
(iii) He was arrested at a grave of a relative while exorcising the spirits of the deceased
persons, and
(iv) A document found hidden in the ground near his house contained information
connected with the murders.

A one Jane Nakatte testified for the prosecution that on 15 th February 1993 while near the
shrine of her witch-doctor husband , a one Ali, heard the first appellant inform Ali that he
intended to kill Prof. Mudhoola and needed some medicine for protection in that connection.
That about seven days later the first appellant returned and informed Ali that he had already
killed Prof. Mudhoola and wanted medicine to protect him against possible arrest and the
spirits of the deceased from haunting him. Nakatte then, on the instructions of Ali took the first
appellant to a certain river to bring water in a bottle which would later be used by the first
appellant to cleanse himself on a grave of a dead relative. The first appellant was arrested at his
home in Kyetume where he was found lying prostrate on a grave, naked except for the
underpants. His trousers lay by the grave side where also a live brown cock was found. From
the compound of his house, a bottle with native medicine in it and a piece of paper bearing the
names of Prof. Mudhoola and certain words of exorcism was recovered hidden in the ground.
The appellant challenged the admissibility of the circumstantial evidence.

The Supreme Court held that the learned trial judge had correctly directed herself and the
assessors that guilt could be inferred if the facts proved were inconsistent with the appellant’s
innocence.

Identity

Meaning of Identification

Identity of a thing or person is an expression of opinion that that thing or person resembles
another thing or person so much so that it is likely to be the same thing or person. It is a
comparison that looks for resemblances.

In criminal law, the identity of an accused must be established and that person has to be shown
to be the one who committed the particular offence. Therefore, there has to be a process
through which the accused is connected to the crime and this process is referred to as
identification.
By Joseph Edmond Kalinaki (LLM (Cantab), Dip. LP (LDC), LL.B (Hons)(MUK), Advocate of the High Court of Uganda, Lecturer in Law, Uganda
Christian University))
Likewise in civil cases, identity is important. Any person who wishes to institute a case against
another must clearly describe the identity of that other person and where the person is found.

The process of identification in criminal law usually seeks to ensure the following:

• the person identifying must have seen or observed the person being identified.
• The identifying person must have had a settled impression in his/her mind at the
relevant time i.e. he or she must not have been in panic.
• the mental picture a person has at the time of identification must be the same as that
he or she had when he or she first saw the accused. It must not be tainted by other
factors or opinions of third parties.
• The time taken in identifying the accused person is important. If for example it is a short
period such as a few seconds, it may not be enough for a person to notice.
• Consideration must also be given to those opportunities allowing for proper
identification. This is generally referred to as the conditions and circumstances ideal for
identification such as time taken, amount of light, distance between the identifier and
the accused person and whether the suspect was known to the identifier before or is a
complete stranger.

An accused person may be identified in court, at an identification parade or through previous

conduct.

Identification parade

Identification parades are normally conducted by the police during investigations in an attempt
to identify the accused or suspect with the offence for which he or she is charged or suspected.
The purpose of the parade is to find out from the witness who claims to have seen the accused
or suspect at the scene of the crime whether he can identify the accused or suspect as the
person he or she saw previously at the scene of the crime or actually committing the offence.
The witness must have seen the suspect previously, lest the parade will be of no evidential
value. In addition, the witness should not have seen the suspect subsequent to his or her arrest,
as his or her identification at the parade may be said to be based on his or her having seen the
suspect after arrest and not at the time the crime was committed.

In order to ensure that identification parades are conducted fairly, the High Court of Uganda
has approved certain rules for conducting identification parades.

See: Sentale v Uganda (1968) EA 365

R v Mwango (1936) 3 EACA 29

Simon Musoke v R (1958) EA 715

By Joseph Edmond Kalinaki (LLM (Cantab), Dip. LP (LDC), LL.B (Hons)(MUK), Advocate of the High Court of Uganda, Lecturer in Law, Uganda
Christian University))
The police officer conducting the parade is required to ensure the following:-

1. That the accused person is always informed that he may have an advocate or friend
present when the parade takes place.
2. That the officer in charge of the case, although he may be present, does not carry out
the identification.
3. That the witness does not see the accused before the parade.
4. That the accused is placed among at least eight persons as far as possible, of similar age,
height, general appearance and class of life as himself or herself.
5. That the accused is allowed to take any position he or she wishes after each identifying
witness has left if he so desires.
6. Care should be exercised that the witnesses are not allowed to communicate with each
other after they have been to the parade.
7. Exclude every person who has no business there.
8. Make a careful note after each witness leaves the parade, recording whether the
witness identifies, or other circumstances.
9. If the witness desires to see the accused walk, hear him speak, see him with his hat on
or off, see that this is done. As a precautionary measure, it is being suggested the whole
parade be asked to do this.
10. See that the witness touches the person he or she identifies.
11. At the preparation of the parade or during the parade ask the accused if he or she is
satisfied that the parade is being conducted in a fair manner and make a note of his or
her reply.
12. In introducing the witness, tell him or her that he or she will see a group of people who
may or may not contain the suspected person. Do not say “Pick out somebody” or
influence him or her in any way whatsoever.
13. Act with scrupulous fairness, otherwise the value of the identification as evidence will
depreciate considerably.

The following extract is from the case of Kurong Stanley v Uganda (Court of Appeal Civil Appeal
No. 314 of 2003) [2008] UGCA 11

“We now turn to the merits of the appeal. We find it convenient to begin with the evidence of
the identification parade. The learned trial judge considered the evidence at length and came to
the conclusion that the parade was conducted in accordance with the rules laid down in
Republic vs Mwanga s/o Manaa (1936) EACA 29. It is this conclusion that was challenged by
the appellants counsel at the trial of the appeal. We begin with his submission that the
appellant was never informed of his right to request that a lawyer be present at the parade and
that this omission was fatal to the whole parade. Counsel relied on the case of Ssesanga
Stephen vs Uganda Civil Appeal No.85 of 2000 (CA) in which this Court held that the right of

By Joseph Edmond Kalinaki (LLM (Cantab), Dip. LP (LDC), LL.B (Hons)(MUK), Advocate of the High Court of Uganda, Lecturer in Law, Uganda
Christian University))
the accused to be informed that he could have his lawyer present was mandatory and failure to
inform him would be fatal to the parade. In the instant case, the appellant was asked, and he
admitted that much in his evidence, whether he had an advocate whom he wished to attend
and he answered in the negative. In our view, the fact that the appellant was asked whether he
had lawyer should have alerted him to the possibility that he could have a lawyer present if he
wished to have one present. He could have asked there and then whether, if he had one, he
would be allowed to attend. Instead, he simply answered that he had no lawyer and never
complained thereafter about the absence of one at the identification parade. We think that this
case is distinguishable from the Ssesanga case where the appellant was never alerted to the
possibility that he could require that an advocate or a friend attends the parade.
The second objection to the parade is that witnesses at the parade were shown the appellant
before the exercise was conducted. We have read the evidence of PW7, the officer who carried
out the parade, and the appellant’s own evidence on the matter. We do not find any evidence to
support that claim. The learned trial judge can be forgiven for rejecting the appellant’s evidence
on the matter because, on the whole, she found that he was an “inveterate liar”. As the trial
judge who had the opportunity to see all the witnesses, including the appellant, in the witness
box, she was entitled to make that finding.

The third objection was that at the parade, the appellant was lined up with people of dissimilar
appearance in size and height which made it easy to be identified.

The rules in Mwanga case (supra) require that the accused should be placed as far as possible
with persons of similar age, general appearance and class of life of himself or herself. According
to PW7 Ojok Bona who conducted the parade, most of the volunteers who participated in the
parade were “almost of same size” with the suspect. We also note that most of the volunteers
were aged between 18 and 31 years except one who was aged 37 which was also the age of the
appellant. It is not always an easy matter to assemble eight volunteers of similar age, height
and size, but all effort should be made towards that direction so that the suspect does not stand
out as manifestly distinct from all other participants. We accept the evidence of the police
officer (PW7) that he lined up eight people of similar appearances of the appellant save that
only one of them was of his age. However, since the witnesses did not know the age of the
appellant, this could not have occasioned a miscarriage of justice or prejudice the judgment of
the witnesses. Moreover, this was not one of the reasons that the appellant advanced against
the fairness of the whole exercise when he was asked whether he was satisfied with the conduct
of the parade. We hold that the irregularity on age differential is minor and did not prejudice
the fairness of the whole exercise.
Finally, counsel challenged the fairness of the conduct of the parade on the ground that it was
suggested to the witnesses that the man whom they saw in Gulu at the scene of crime was
definitely one of the nine men paraded. According to DW7, he was instructing the identifying
witness to walk along the parade and to touch the person he/she saw in Gulu if he/she
recognised one. Four witnesses were told the same thing and they picked out the appellant. The
appellant himself agrees that this was the procedure used. Counsel for the appellant did not tell
us the words PW7 used that suggested that the suspect would be in the parade. We do not
By Joseph Edmond Kalinaki (LLM (Cantab), Dip. LP (LDC), LL.B (Hons)(MUK), Advocate of the High Court of Uganda, Lecturer in Law, Uganda
Christian University))
agree that the instructions PW 7 gave the witnesses suggested what counsel for the appellant is
complaining of. All he said was that if you recognise among these people the man you saw in
Gulu, then touch him. The use of the word IF clearly left the possibility that the suspect may be
there and you don’t recognise him or he may not be there at all. This objection to the fairness of
the parade is unfounded and we reject it.

On the whole, we find that there were a few minor irregularities in the exercise but on the whole
they did not prejudice the fairness of the identification parade. Both PW7 (the police witness)
and the appellant himself agree that four witnesses picked out the appellant from the line. We
agree with the trial court that there was no credible evidence that three Gulu lodge witnesses
who picked the appellant from the line were shown the appellant before the exercise began. It is
unfortunate that two of them did not testify in court but the appellant himself testified that they
picked him out of the parade of eight volunteers. We hold that the identification parade was
conducted properly and fairly.”

Conditions necessary for a proper identification

Perhaps the leading authority is the case of Abudala Nabulere & 2 Others v Uganda, Court of
Appeal Cr. App. No. 12 of 1981 [1979] HCB 77 where the court observed the following:

“Where the case against the accused depends wholly or substantially on the correctness of one
or more identifications of the accused, which the defence disputes, the judge should warn
himself and the assessors of the special need for caution before convicting the accused in
reliance on the correct identification or identifications. The reason for the special caution is that
there is a possibility that a mistaken witness can be a convincing one , that even a number of
such witnesses can all be mistaken. The judge should then examine closely the circumstances
the identification came to be made, particularly the length of time, the distance, the light, the
familiarity of the witness with the accused. All these factors go to the quality of the
identification evidence. If the quality is good the danger of mistaken identity is reduced, but the
poorer the quality the greater the danger.”

See: Abdallah bin Wendo & Another v R 20 EACA 166.

Identification by a single witness

See: Areet Sam v Uganda Supreme Court Criminal Appeal 20/2005

Amooti Immaculate v Uganda High Court Criminal Appeal 27 of 2007

By Joseph Edmond Kalinaki (LLM (Cantab), Dip. LP (LDC), LL.B (Hons)(MUK), Advocate of the High Court of Uganda, Lecturer in Law, Uganda
Christian University))
Under s.133 of the Evidence Act, no particular number of witnesses is required to prove any
fact. Accordingly, even a single witness can be called to prove a fact. However, because of the
dangers associated with such testimony, the courts have set out certain rules in this regard.

In the case of Uganda v George Wilson Simbwa Sct. Cr. App No. 37 of 1995, the respondent was
tried and acquitted of murder. The DPP appealed against the acquittal arguing that the appeal
involves a point of law of public importance. It was alleged that one night while the deceased
and his son guarded their banana plantation against thieves who used to steal their bananas,
the respondent, armed with a spear and a panga went to the plantation to steal. The
deceased’s son saw him and the deceased went forward to confront him but was speared by
the respondent. The son raised an alarm which many villagers answered. When they arrived at
the scene the deceased was still alive and told them that he had been stabbed by the
respondent. The respondent lived on the same village as the deceased and was well-known to
the deceased’s family. The trial judge found the conditions in the banana plantation
unfavourable for easy identification. That it was in a valley, no evidence was given to show that
the two cell torch held by the deceased’s son gave out light of sufficient intensity, no evidence
was led to show how the clusters in the plantation were spaced , interalia.

The Supreme Court said that the law regarding identification by a single witness is now well
settled and quoted a number of cases. It continued that:

“Briefly, the law is that although identification of an accused person can be proved by the
testimony of a single witness this does not lessen the need for testing it with the greatest care
especially when the conditions favouring correct identification are difficult. Circumstances to
take into account include the presence and nature of light, whether the accused person is known
to the witness before the incident or not, the length of time and the opportunity the witness had
to see the accused and the distance between them. Where conditions are unfavourable for
correct identification, what is needed is other evidence pointing to guilt from which it can be
reasonably concluded that the evidence of identification can safely be accepted as free from
possibility of error. The true test is not whether the evidence of such a witness is reliable. A
witness may be truthful and his evidence apparently reliable and yet there is still a risk of an
honest mistake particularly in identification. The true test is...whether the evidence can be
accepted as free from the possibility of error.”

The Supreme Court observed that the deceased’s son was carrying a torch containing two dry
battery cells (two weeks old), had flashed the torch at the respondent who was only six metres
away from the witness, the witness had known him for seven years and lived in the same village
and was even able to describe the clothes the accused was wearing which evidence was

By Joseph Edmond Kalinaki (LLM (Cantab), Dip. LP (LDC), LL.B (Hons)(MUK), Advocate of the High Court of Uganda, Lecturer in Law, Uganda
Christian University))
unchallenged. That although the trial judge had properly directed himself on the law applicable
to evidence of identification by single witness but misapplied the law thereby reaching a wrong
conclusion. That the evidence of identification was also corroborated by the dying declaration
which ruled out any mistaken identity.

Identification through previous conduct

See generally similar fact evidence.

Common intention as a relevant fact

Section 9 talks about things said or done by a conspirator in reference to common design. It is
provided that where there is reasonable ground to believe that two or more persons have
conspired together to commit an offence or an actionable wrong, anything done, said or
written by any one of those persons in furtherance of their common intention is a relevant fact
as against each of the persons involved as well as for the purpose of proving the existence of
the conspiracy and for showing that any such person was a party to the conspiracy.

The evidence will show that the conspiracy existed and that that person was a party to the
conspiracy and can be adduced against any party to the conspiracy irrespective of whether or
not he or she is the person who actually committed the act.

In R v Blake and Tye, A customs Officer and an agent were accused of conspiring to pass goods
without paying full duty. In order to carry out the conspiracy, Tye made false entries in a book.
There was evidence on record that the two accused persons had agreed that their fraud would
be facilitated through that scheme. One of the issues at the trial was whether the false entries
made by one person could be used as evidence against the other. Court held that in so far as
they had already agreed, whatever was done by one of them in furtherance of the conspiracy
could be used as evidence against the other.

In R v IRC Haulage, the appellant company was charged with ten other defendants with the
common law conspiracy to defraud. An objection was made by the company that an indictment
alleging common law conspiracy to defraud would not lie against a limited liability company.
The objection was overruled and the company convicted and it appealed. The issue was
whether a company is capable of an act of will or state of mind so as to form an intention. Court
held that where in a particular case there was evidence that the criminal acts of an agent
including the state of mind , intention, knowledge or belief are acts of the company, then the
company would be liable. That in this particular case, the acts of the managing Director were
the acts of the company and the fraud of that person was the fraud of the company.

By Joseph Edmond Kalinaki (LLM (Cantab), Dip. LP (LDC), LL.B (Hons)(MUK), Advocate of the High Court of Uganda, Lecturer in Law, Uganda
Christian University))
In R v McDonnel, at all material times, the defendant was the Director and sole person in each
of the two companies, responsible for acts of the companies. He was charged among others
with conspiracy with the two companies to induce persons to acquire a right or interest in land
and was charged with fraudulent conversion of property inter alia. One of the issues was
whether it was right to include a charge of conspiracy against the defendant with the two
companies in the indictment. Court held that the basis of conspiracy was the working in concert
of two or more persons and that although a company was a separate legal entity, where the
sole responsible person was the defendant himself, there could not be two or more persons or
minds and therefore there could be no conspiracy between the defendant and the companies.
That therefore, the conspiracy charges could not stand.

Many cases have dealt with the issue of whether it is necessary to prove prior agreement
between conspirators.

In Uganda v Kalenzi, the accused was indicted with kidnap with intent to murder. Evidence was
that on a certain day while the deceased was going about his business, he was arrested by
soldiers together with others at the instigation of the accused on a charge of being bandits. The
deceased was handed over to army men and was never seen alive again. At his trial, the
accused set up the defence of alibi and he also argued that there was no evidence of any prior
arrangement between him and the other people. It was held that it is trite law that in order to
prove common intention, it is not necessary to prove prior arrangement between the
assailants. That it is sufficient if their intention can be inferred from their actions. That common
intention may be inferred in the presence of an accused, in his actions and omission to
disassociate himself from the attack. In this particular case, it was enough that the accused had
a common intention with the assailants and the accused’s action especially in pointing out the
deceased to the assailants would point to the inference that the accused had a common
intention with the assailants in murdering or exposing the deceased to the danger of being
murdered.

In R v Tabulayenka S/O Kirya [1943] 10 EACA 51, the court said that to construe such common
intention, it is not necessary that there should have been any concerted agreement between
the accused persons prior to the attack. That their common intention may be inferred from
their presence, their actions and the omission by any one of them to disassociate themselves
from the attack. But the fact that the four accused heard the alarm and went to the scene
independently, each taking up the assault as he arrived does not rule out a common intention.

In Birikadde v Uganda, court said that in order to prove common intention, it is not necessary to
prove a prior agreement between the assailants. It is sufficient if their intention can be inferred
from the presence of the appellant, his actions and his omission to disassociate himself from
the attack.
By Joseph Edmond Kalinaki (LLM (Cantab), Dip. LP (LDC), LL.B (Hons)(MUK), Advocate of the High Court of Uganda, Lecturer in Law, Uganda
Christian University))
But in the case of Uganda v Mugenyi Godfrey, court held that where evidence establishes the
presence of an accused without any positive act, a prior agreement that the crime must be
committed should be proved. That if assistance or encouragement is voluntarily given with the
knowledge of the circumstances constituting the offence, that is sufficient to sustain a
conviction and it is irrelevant that the assistance was not given with the motive of encouraging
the crime.

State of Mind or Bodily Feeling

This is provided for under section 13 of the Evidence Act. A person may bring about particular
acts or may commit a particular crime because of the state of his mind. The mental element in
crime, tort and other legal conceptions often becomes a relevant fat in issue. In certain crimes
for example, it may be necessary to prove mens rea while in certain torts, it may be necessary
to prove knowledge or negligence.

Section 13 provides that facts showing the existence of any state of mind or showing the
existence any state of mind or bodily feeling are relevant when the existence of any such state
of mind or body or bodily feeling is in issue or relevant .

State of mind under the section can include intention or sanity, knowledge for example that
particular actions will result in particular consequences, good or bad faith and rashness or
negligence.

Under the section therefore, all evidence which may disclose any of the above is relevant.

However, for a state of mind must be shown to exist in reference to a particular state of things
or activity. In other words, that state of mind must be specific to a particular activity. The
section explains that a fact that is relevant as showing the existence of a state of mind must
show that the state of mind exists not generally but in reference to a particular matter in
question.

The section makes relevant evidence of a bodily feeling i.e. anything that can be physically felt
by a person in as far as it may relate to the occurrence of a particular action.

Sanity

Under Criminal law, sanity is relevant to prove the guilt or otherwise of an accused person or to
show criminal liability.

In succession matters, sanity is relevant to consider the validity of a will.

Knowledge

By Joseph Edmond Kalinaki (LLM (Cantab), Dip. LP (LDC), LL.B (Hons)(MUK), Advocate of the High Court of Uganda, Lecturer in Law, Uganda
Christian University))
Knowledge can be relevant to rebut the defence of accident. In some tort or contract cases,
knowledge is a prerequisite in determining liability. Torts involving liability for dangerous
animals will normally take into account knowledge of the ferocity of those animals and if
parties know that they are contracting for an illegal purpose, that contract will be void because
of the knowledge they had.

Intention

Intention will be relevant in both civil and criminal matters. Similarly, ill will and good will also
be relevant in both civil and criminal matters and so will evidence of fraud or malice.

In R v Godfrey, the appellant was convicted of two offences under the traffic ordinance.
Evidence was allowed to be given at the trial to show that he had consumed alcohol before the
commission of the alleged offence. This evidence was objected to and one of the issues was
whether it should have been admitted. It was held that on a charge of careless or dangerous
driving, evidence that an accused has consumed a certain amount of alcohol during a certain
period is admissible under s. 14 of the Indian Evidence Act [equivalent to s.14 of the UEA] not
as evidence that he has committed some other crime with which he is not charged but as
tending to show his probable mental and physical condition at a subsequent time when such
condition may be highly relevant to the issue as to whether such person has exercised due and
proper care.

In Kiwanuka & Another v R, the plaintiffs were convicted on two counts of publishing
defamatory material concerning a chief. One of the issues was whether or not these two acted
maliciously. Court held that in a case of Criminal libel, evidence of suppression of matters
favourable to the person libelled was admissible to show malice on the part of the accused i.e.
it shows the state of mind of the accused at the time of publication and in this case, the
accused had omitted the good things about the chief.

In Akrabi v R, the accused was charged with use of criminal force with intent to outrage the
modesty of two boys. The accused was a headmaster in a school which the boys attended. The
boys testified that one morning and at short intervals when they went o the appellant’s room,
the appellant took hold of their hands without their consent and rubbed them up and down
against his penis. There was no corroboration of this evidence but the prosecution called three
other boys in the same form as the complainants who gave evidence that the appellant had on
previous occasions done to them exactly the same thing as what he had done to the
complainants. The trial magistrate admitted this evidence and on appeal the appellant claimed
that this evidence should not have been admitted. Court held that evidence of similar offences
not charged is admissible under s.14 to show the intention of the appellant and under s.15 to
rebut the defence of accident or mistake and that in this case that evidence showed the

By Joseph Edmond Kalinaki (LLM (Cantab), Dip. LP (LDC), LL.B (Hons)(MUK), Advocate of the High Court of Uganda, Lecturer in Law, Uganda
Christian University))
intention of the appellant to outrage the modesty of the boys and to rebut the appellant’s
defence that the boys were liars.

Similar facts or Occurrences

Section 14 provides for evidence of similar facts or occurrences. Under the section, all evidence
which establishes whether or not a particular act was accidental is admissible. The section
provides that when there is a question whether an act was accidental or not or done with a
particular knowledge or intention, the fact that such act formed part of a series of similar
occurrences in each of which the person doing the act was concerned is relevant.

Evidence of similar facts generally refers to the rule that a court can use past similar
occurrences relating to a particular person to establish whether a person is guilty or not or
whether he or she is liable in a civil action.

This rule proceeds on the belief that persons do not easily change their habits and that if they
are shown to have done similar acts in the past, then they are likely to repeat them.

The general principle was stated by the Privy Council in the case of Makin v Attorney General of
New South Wales [1894] AC 57 at 65 in the following terms:

“it is undoubtedly not competent for the prosecution to adduce evidence tending to show that
the accused has been guilty of criminal acts other than those covered by the indictment for the
purpose of leading to the conclusion that the accused is a person likely from his criminal conduct
or character to have committed the offence for which he is being tried. On the other hand, the
mere fact that the evidence adduced tends to show the commission of other crimes does not
render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it
bears upon the question whether the acts alleged to constitute the crime charged in the
indictment were designed or accidental or to rebut the defence which would otherwise be open
to the accused.”

The Privy Council held that evidence of past similar acts is admissible but laid down exceptions
to that general rule.

As such, it is not competent for a person to prove his case on the basis of past similar acts
which the accused may have done. However such evidence may be admitted where it is sought
to prove whether the act was accidental or intentional or to rebut the defence for example of
mistaken identification.

In R v Smith, the accused was charged with the murder of a woman who was found drowned in
a bath tub. It was made to look as if the woman died in an epileptic fit but evidence on record
showed that the accused had, just before the woman’s death, encouraged her to make financial
By Joseph Edmond Kalinaki (LLM (Cantab), Dip. LP (LDC), LL.B (Hons)(MUK), Advocate of the High Court of Uganda, Lecturer in Law, Uganda
Christian University))
arrangements in his favour. He denied the charge claiming that her death was accidental
arising from a fit of epilepsy. Evidence was admitted that two other women had died in similar
circumstances after the accused had gone through forms of marriage with them in turn and
after each of them had made financial arrangements in his favour. He challenged the admission
of this evidence and on appeal the issue was whether evidence of the other two deaths was
rightly admitted. It was held that evidence of similar acts was admissible to show the guilty
intent of the accused and to rebut the defence of accident. That the challenged evidence was
admissible both to show that what happened in the case of the first woman was not an
accident and also to show the intention with which the accused did what he did.

The same issue was discussed in John Makindi v R, where court held that evidence of previous
beatings was relevant and admissible to explain and substantiate the cause of death and to
show the motive of the appellant for revenge on the deceased i.e. it was relevant to rebut the
defence of accident which the appellant had put up.

In Mood Music Publishing Co. V De Wolfe, the plaintiffs owned a copyright to a musical work.
The defendants issued a musical work for use in a TV play and the plaintiffs claimed that that
work infringed the copyright in their work. The defendants conceded a similarity in between
their work and the plaintiff’s work but they claimed that this similarity was merely coincidental.
At the trial, the plaintiffs adduced evidence to show that the defendants had in the past
published musical works similar to other people’s works. The defendants challenged the
admissibility of this evidence and the issue was whether such evidence should have been
admitted. Court held that in civil cases, courts would admit evidence of similar acts if it was
logically probative and if it was not oppressive or unfair to the other side to admit the evidence.
That since the case focused on whether the similarity between the two works was a mere
coincidence or the result of copying by the defendants, then the evidence procured by the
plaintiffs concerning the other three cases was of sufficient probate weight to render it
admissible.

In Harris v DPP (1952) AC 57, the accused was charged with eight larcenies of money committed
in May, June and July 1951 from a certain office in an enclosed market at times when most of
the gates were shut and the accused, a police officer, might have been on solitary duty there. In
each case, the same means of access were used and only part of the amount which might have
been taken was taken. No thefts occurred while the accused was on leave. The accused was
found by two detectives in the immediate vicinity of the office at the time of the last larceny.
Though they were well known to him, he avoided them for a period sufficient to hide marked
money taken from the office till. The money was found in a coal bin where he was first seen.
The accused was convicted on only the eighth count. He appealed against conviction to the
By Joseph Edmond Kalinaki (LLM (Cantab), Dip. LP (LDC), LL.B (Hons)(MUK), Advocate of the High Court of Uganda, Lecturer in Law, Uganda
Christian University))
court of criminal appeal unsuccessfully and to the House of Lords successfully on the ground
that evidence of the first seven thefts was irrelevant to the eighth. The court laid down the
principles in Markin’s case [supra].

Viscount Simon held that evidence of ‘similar facts’ cannot in any case be admissible to support
an accusation against the accused unless they are so connected in some relevant way with the
accused and with his participation in the crime...But evidence of other occurrences which
merely tend to deepen such suspicion does not go to prove guilt.

The Viscount added that it is not a rule of law governing the admissibility of evidence but a rule
of judicial practice followed by a judge who is trying a charge or crime when he thinks the
application of the practice is called for.

Such evidence is admissible if it is adduced to prove a system followed by the accused, to rebut
a defence of accident or mistake, to rebut a defence of innocent intent, to show vicious or
natural propensity, or to prove identity in a particular offence so as to negative the claim of
mistaken identification.

In R v Scarrot, the appellant was charged with seven counts of committing offences against
young boys and the counts included burglary, attempted burglary and indecent assault on
several boys. The appellant applied, among other things, to have similar facts evidence thrown
out by the court. This application was overruled and similar facts evidence was allowed. On
appeal, the issue was whether the similar fact evidence adduced had probate value which was
sufficiently positive to assist court in determining whether the offence was committed by the
accused and what the test for admissibility of similar facts evidence was.

Court held that the test for the admissibility of similar facts evidence was one of striking
similarity or similarities. Such evidence had to reveal an underlined link between the matters
with which it dealt and the allegations against the defendant on the count under consideration
but that its admissibility depended not on whether it was capable of showing corroboration of
the evidence of the victim or accomplice but on its probate value. In other words whether
logically considered it possessed probate value sufficiently positive to assist court in
determining whether the offence charged against the accused had been committed by him.
That in the instant case, the similar fact evidence adduced had a positive probate value
containing, as it did, striking similarities which taken together were inexplicable on the basis of
coincidence and that the judge had been right to admit such evidence.

In Hales v Kerr [1908] 2 KB 601, a barber allowed the plaintiff to be shaved with an unclean
razor and it was thereby alleged that this negligently caused the plaintiff to be infected with
ringworms. Evidence that other persons so shaved in barber’s shops had contracted that
disease was admitted and the court held that that evidence went to establish the existence of a
By Joseph Edmond Kalinaki (LLM (Cantab), Dip. LP (LDC), LL.B (Hons)(MUK), Advocate of the High Court of Uganda, Lecturer in Law, Uganda
Christian University))
dangerous practice carried on in the defendant’s establishment i.e. it showed a system where
the defendant was negligent or lacked a proper hygienic system to ensure that his clients did
not contact the disease.

By Joseph Edmond Kalinaki (LLM (Cantab), Dip. LP (LDC), LL.B (Hons)(MUK), Advocate of the High Court of Uganda, Lecturer in Law, Uganda
Christian University))