HEARSAY AND HEARSAY RULE

OBJECTIVE:

At the end of this chapter the students should understand the three major exclusionary

rules of evidence in particular, they should know:

 The definition of hearsay and its majority exception

 The differences in operation between ordinary witness opinion, expert opinion

and evidence given on an ultimate issue

 The principles governing the general exclusion of character evidence

HEARSAY

Hearsay refers to testimony given in court by a person other than the one who

perceived it. As a general rule hearsay is inadmissible. For you start from the premise

that reporting in court what you heard another person say is not going to be admitted in

court as evidence. And this draws from section 59 of the Evidence Act, which explicitly

provides that oral evidence must be direct. So you are not allowed to go to court to say

this is what another person said. Oral evidence must be direct. And when you are

dealing with documents it is going to be required that the author of the document

presents that document in court. And the reason that we are saying that the author of

the document should come to court is so that if you want to cross-examine them you

have the opportunity to cross-examine them.

The rule against hearsay is stated as follows: ”A statement made by a person not called

as a witness which is offered in evidence to prove the truth of the fact contained in

the statement is hearsay and it is not admissible. If however the statement is offered

in evidence, not to prove the truth of the facts contained in the statement but only to

prove that the statement was in fact made it is not hearsay and it is admissible”

So essentially then what determines whether hearsay is hearsay or not is going to be

pegged around the purpose for which the statement is given. If you are giving the

statement to prove the truth of the contents of the statement, you are giving the

statement made by another person seeking to get people to believe that which is

contained in the statement, that is hearsay. But on the other hand if you state what

another person said, not to prove the truth but to establish that those people actually

made the statement, that is not hearsay. Because essentially then what you are doing is

just reporting what another person said and you did perceive of what that other person

said because you heard them. Is this clear?

When you are using the statement to prove that the statement was made, here you are

attesting to something that you perceived of because you heard it had taken place. But

where you are giving a statement to prove the truth of what was contained in the

statement which somebody else had perceived of, that is hearsay. So for instance if a

person comes and says, James told me Peter stole the till from the bank. If you are

trying to prove the fact that Peter stole from the bank then you can see there that you
will not have direct perception of what happened. If in fact you did hear James say that

Peter stole, you perceived of that fact because you did hear James say that Peter stole. Is

that clear?

The case that you should read that concerns this rule of hearsay is the case of

SUBRAMANIUM V PUBLIC PROSECUTOR (1956) WLR 965. And the facts of this case

were as follows: The appellant was charged and convicted of being in possession of

firearms without lawful excuse. In his defence, he asserted that he was acting under

duress in consequence or a result of threats uttered to him by Malayan terrorists. When

he attempted to state the contents of the threats, he was overruled by the judge. He

appealed against conviction arguing that the judge should actually have listened to

what the import of the threat was. And of course the judge would have argued that if he

was allowed to say what the terrorists had told him that would be hearsay. The court of

appeal held that the conviction had to be quashed because what the terrorists told the

appellant should have been admitted as original or direct evidence. It would have shed

light on subsequent actions of the appellant.

So essentially here what the court is saying is that the appellant should have been

allowed to utter the threat because they would not have been threatening-may be he

was told if you don’t fire the firearm we will kill your mother. So the fact that the

statement was uttered is one thing, but the truth of what was in the statement is another

thing. Whether the terrorists had the capacity to kill his mother or whatever else they
threatened to do is not what we are seeking to hear. What we are seeking to find out is

whether a reasonable person would have behaved in the same way as the appellant did

in the circumstances.

A statement made by a person not called as a witness which is offered in evidence to

prove the truth of the fact contained in the statement is hearsay and it is not admissible.

If however the statement is offered in evidence, not to prove the truth of the facts

contained in the statement but only to prove that the statement was in fact made it is

not hearsay and it is admissible.

The other case that we should look at getting to what is hearsay is the case of MYERS V

DPP 1964 2 ALL ER 881. This is a case you must read. The appellant in this case was

charged and convicted of receiving a stolen motor vehicle. He was in the business of

buying wrecked motor vehicles for repair and resale. The chief prosecution witness was

the person in charge of the records department of the relevant motor vehicle factory. He

testified that every time that a car was manufactured a workman would note down the

engine number and the chassis number of the car amongst other details and these

would be marked on some card. He also testified that the cylinder head number would

be indelibly struck on the cylinder head block so as to be inerasable. The card would

then be microfilmed and stored. At the trial the microfilms were produced on oath by

the witness and schedules were prepared from this microfilm. The schedules showed

that the cylinder block numbers of the car in question belonged to the car allegedly
stolen. The appellant was convicted on the basis of this evidence. The court of appeal

affirmed the conviction and the appellant appealed to the House of Lords. The House of

Lords held that the trial court and the court of appeal improperly admitted hearsay

evidence in the form of the microfilm and Lord Reid at page 884 stated: “The witness

would only say that a record made by someone else showed that if the record was

correctly made a car had left the workshop bearing three particular numbers. He could

not prove that the record was correct or the numbers which it contained were in fact the

numbers on the car when it was made.”

Do you see the argument here? That essentially the basis of the microfilm was not

something that the witness could testify to because he did not put in the particular

entry. He did not actually author the document. Remember we said by virtue of Section

59 of the Evidence Act, the person that authors the document should produce that

document. So here the vehicle had left the workshop with some numbers. Those had

now been reduced into microfilm and you have a third person seeking to produce that

as evidence. And essentially what the court is saying here is that the only thing the

witness can say is that some record had been made of a car that left with some numbers.

But he could not actually vouch for the veracity of the truth of what was contained in

those documents. And for that reason, that was hearsay. This is why we are saying the

House of Lords said the trial court and the court of appeal had improperly admitted
hearsay evidence. And because this became a bit technical, Lord Reid ends his

statement by saying:

”This is a highly technical point but the law regarding hearsay evidence is technical and

I would say absurdly technical”

The other case that it would be a good thing to look at just to illustrate how hearsay

presents itself, is the case of PATEL V COMPTROLLER OF CUSTOMS [1965] 3 ALL

ER 593. The appellant here imported from Singapore into Fiji some coriander seeds

shipped in bags. He correctly engrossed (filled) the customs import entry form and on

investigation at arrival five bags of what he had imported were found to be contained in

within another outer bag. So essentially here you have double bagging. The outer bag of

these five bags was marked with the appellant’s trade name but it had marked on it

“Produce of Morocco”. In the important entry form the appellant had filled that the

coriander was a product of India. So in respect of the five bags that had “Produce of

Morocco”, the appellant was charged and convicted in making a false declaration in a

customs import form, on a customs import entry. And we are saying that he had stated

that the seed originated from India when in fact it originated from Morocco.

On appeal, it was held that the evidence of the writing on the bag was inadmissible. It

was hearsay. And this was because the court could not ascertain that in essence the

coriander seed had actually come from morocco even though the bags were marked

“Produce of Morocco”. There were actually saying nobody knew who and when those
markings on the bags, Produce of Morocco, were made. And essentially then nobody

could speak to them testifying to the fact that the particular coriander seed had

originated from Morocco. So they could not be the basis of conviction for making a

false entry because the person who wrote them could not be called to vouch for the

truth.

The other case that would illustrate the same point is JUNGA V R (1952) AC 480. The

accused was charged and convicted with the offence of being armed with the intent to

commit a felony. The police witness gave evidence at the trial, saying that they had

been told by a police informer of the alleged attempted offence. The informer was not

called to give evidence and his identify was not revealed. The accused was convicted.

On appeal it was held that the trial magistrate had before him hearsay evidence of a

very damaging kind. Without the hearsay evidence the court below could not have

found the necessary intent to commit a felony and that being the case the Court of

Appeal allowed the appeal against conviction. Given that here was hearsay evidence,

you didn’t call the informer who would have actually given first hand knowledge of the

fact that led to the conviction of this person. And that being the case, the Court of

Appeal says that in all fairness the conviction should be quashed.

Another case is the case of TENYWA V UGANDA (1967) EA 102. The accused was

accused of having stolen a bicycle. The bicycle was seized by police officers acting on

this information. On examination the bicycle was found to have a forged number plate.
The accused was convicted of the offence but appealed and on appeal it was held that

the police report from Kampala suggesting that the original number on the bicycle was

altered was hearsay. It should not have been admitted. Because essentially there was

nobody to say this was the number. When you say there was a fake number on the

bicycle you are basically saying that it is not the number that was on it, so you should

have a person to testify to what was actually the original number. But just to say that it

has been changed, even saying that what has been found is what was. Because

essentially the person that marked the number on the bicycle was not called to give

evidence.

The learned trial magistrate was wrong in law to have admitted in evidence the report

alleged to have been obtained from Kampala, which suggested that the original number

of the (stolen) bicycle had been altered. That piece of evidence was hearsay and should

not have been admitted… unless the expert who had examined the bicycle had testified

before the court and been cross-examined on the point as to how he arrived at his

conclusion.

Over and above those cases you should also look at the cases of

MAGOTI S/O MATOFALI V R (1953) EACA 232.

“A plan of the locus … was made and produced in evidence by a police corporal.

Various points on the plan are marked with letters and it bears a legend showing what

these points represent… as to what each point represented he merely said ‘I got the
information from Antonia, (P.W. 2), as to positions and ownership.’ ‘This, of course,

was merely hearsay and his evidence should have been supported by the evidence of

the witness Antonia to the effect that she had, subsequent to the event, pointed out to

the corporal the places where the various incidents, to which she had testified, had

taken place.”

R V GUTASI S/O WAMAGALE (1936) 14 EACA 232

“We note that the statement made by the appellant (Ex.P.1) to Mr. Harwich,

Superintendent of Police, was admitted, although the two interpreters who had carried

out a double interpretation were not called as witnesses. Without their evidence this

statement was strictly inadmissible since Mr. Harwich could only speak to have taken

down what he was told by the second interpreter.”

WAUGH V R (1950) AC 203 (PC).

And basically these cases also discuss instances where courts are faced with hearsay

evidence and how they treat them. And it would be useful to read those to begin to

understand what kind of information, the court is really going to take into account in

determining whether a particular piece of evidence is hearsay or not. And essentially

that is about the rule, that is you should not go to court to say what you heard another

person say to establish the truth of that which you are saying.

The general rule is that all oral evidence must be direct i.e. be adduced by the person

who perceives that evidence. A hearsay statement is one made by any person who is
not called as a witness and which is offered in evidence to prove the truth of the facts

contained in the statement. It is inadmissible generally. If the purpose is merely to

inform the court that the statement was made, then the statement is not hearsay. E.g. in

a dispute between P and D, the issue whether D was in Mbale on a certain date is a fact

in issue. P asserts that X told him that D was in Mbale. This would be inadmissible if P

wants the court to believe in X’s statement.

HEARSAY EVIDENCE IS UNRELIABLE BECAUSE:

1. The original maker of the statement is not in court

2. The statement is not made on oath

3. It follows that the maker of the statement was not subject to cross-examination

4. The demeanor of the maker cannot be observed

5. There is a danger of fraudulent invention.

EXCEPTIONS TO THE GENERAL RULE:

The law of evidence recognizes that hearsay may be admissible under certain

circumstances; The following are the exceptions;

a) Statements by persons who cannot be called as witnesses

b) Statements made under special circumstances

STATEMENTS MADE BY PERSONS WHO CANNOT BE CALLED AS WITNESSES

Section 30 of the evidence act cap 6 provides that Statements, written or verbal, of

relevant facts made by a person who is dead, or who cannot be found, or who has

become incapable of giving evidence, or whose attendance cannot be procured without

an amount of delay or expense which in the circumstances of the case appears to the

court unreasonable, are themselves relevant facts in the following cases—

(a) when the statement is made by a person as to the cause of his or her death, or as to

any of the circumstances of the transaction which resulted in his or her death, in cases in

which the cause of that person’s death comes into question and the statements are

relevant whether the person who made them was or was not, at the time when they

were made, under expectation of death, and whatever may be the nature of the

proceeding in which the cause of his or her death comes into question;

(b) when the statement was made by such person in the ordinary course of business,

and, in particular, when it consists of any entry or memorandum made by him or her in

books kept in the ordinary course of business or in the discharge of professional duty,

or of an acknowledgment written or signed by him or her of the receipt of money,

goods, securities or property of any kind, or of a document used in commerce written or

signed by him or her, or of the date of a letter or other document usually dated, written

or signed by him or her;

(c) when the statement is against the pecuniary or proprietary interest of the person

making it, or when, if true, it would expose him or her or would have exposed him or

her to a criminal prosecution or to a suit for damages;

(d) when the statement gives the opinion of any such person as to the existence of any

public right or custom, or matter of public or general interest, of the existence of which,

if it existed, he or she would have been likely to be aware, and when that statement was

made before any controversy as to the right, custom or matter had risen;

(e) when the statement relates to the existence of any relationship by blood, marriage or

adoption between persons as to whose relationship by blood, marriage or adoption the

person making the statement had special means of knowledge, and when the statement

was made before the question in dispute was raised;

(f) when the statement relates to the existence of any relationship by blood, marriage or

adoption between persons deceased, and is made in any will or deed relating to the

affairs of the family to which any such deceased person belonged, or in any family

pedigree, or upon any tombstone, family portrait or other thing on which such

statements are usually made, and when the statement was made before the question in

dispute was raised;

(g) when the statement is contained in any deed, will or other document which relates

to any such transaction as is mentioned in section 12(a);

(h) when the statement was made by a number of persons, and expressed feelings or

impressions on their part relevant to the matter in question.

The opening paragraph at section 30 gives the context within which those exceptions

covered at that section apply:

“Statements, written or oral, of admissible facts made by a person who is dead, or who

cannot be found, or who has become incapable of giving evidence or whose attendance

cannot be procured, or whose attendance cannot be procured without an amount of

delay or expense which in the circumstances of the case appears to the court

unreasonable, are themselves admissible in the following cases-“

So it is not all the time that you have, for instance, under section 30 (a) a dying

declaration or whatever else, that it is going to be used in evidence. What is detailed at

section 30 introduction will have to apply.

So essentially the statement will be admissible if the person who made them is dead,

cannot be found, has become incapable of giving evidence, their attendance cannot be

procured. Or even if it can be procured that would actually occasion expense and delay

which in the view of the court is unreasonable. If those circumstances apply then (a),

(b), through to eight would be admitted.

So if it is alleged that a person is dead, do you think that this statement that a person is

dead, is enough? It is not. The fact of the death has to be ascertained. How do you

prove that a person is dead? By a death certificate, the presumption of death, by people
who participated in their burial can be called to testify to the fact of death. But

essentially the fact of death is a fact that needs to be proved until you have proved that

the person is dead through the screening, then you couldn’t actually bring any of these

statements …. And if a person cannot be found the fact of not being found must relate

to the time that he is required to give evidence. So you cannot just say that you have not

been seeing the person…if no effort has been made to procure them to come and give

evidence. So the fact of not being found must relate to time during which you are

sought to give evidence.

And the authority for this supposition is the case R V NDOLO (1926) 10 KLR 11.

The court considered the meaning of “cannot be found” in connection with S. 33 India

Evidence Act and Section 34 of Kenya Evidence Act where the language is identical.

Here the witness left his place of employment and was not served with a summons for

the date of the trial. The trial was adjourned and assistance from the Registration

Department was of no avail, as his movements could not be traced. It was contended

that his deposition should be read. The defence argued tht has the prosecution taken

reasonable steps to discover his whereabouts in preparation for the first date of hearing

he would have been available. The court held that the words “cannot be found” refer to

the time when the witness is sought to to attend the trial, and do not refer to the state of

affairs at some earlier period. There was no question as to whether the search had been
a diligent one, and the words appear to imply that such a diligent search should be

required before the condition is held to have been fulfilled.

And also the case of THORHILL V THORNHILL (1965) EA 268 (CA), would be

authority for the proposition that the fact of not being found has to be proximate to the

time you require the person to give evidence.

What is an unreasonable delay, or unreasonable expense is a matter within the

discretion of the court, dependent upon the circumstances of a particular case.

In this case “the learned trial judge also stated in his judgment that the cost and

inconvenience of bringing a witness from the United Kingdom would not be great in

these days of rapid and inexpensive air travel. With great respect, I disagree that air

travel in these days is inexpensive, although I agree that it is rapid. But the question

seems to be this – is it justifiable legally to put the petitioner to the expense of bringing a

witness from the United Kingdom to testify about a fact which is not denied and in

respect of whose evidence the court has a discretion to accept on affidavit, particularly

as the petition is not defended and no application was made to have the witness orally

examined?”

Having satisfied those introductory matters, the first category of statements made by

persons who cannot be called as witnesses, are dying declarations. Section 30(a)states:

“when the statement is made by a person as to the cause of his death, or as to any of the

circumstances of the transaction which resulted in his death, in cases in which the cause
of that person’s death comes into question and such statements are admissible whether

the person who made them was or was not, at the time when they were made, under

expectation of death, and whatever may be the nature of the proceeding in which the

cause of his death comes into question;”

So when the cause of death of a person is in issue and this could be in either civil or

criminal proceedings, the statement made by such a person which deals with the

circumstances of the cause of the death is going to be relevant. And the case to look at

here is the case of TERIKABI V UGANDA (1975) EA 60. The deceased in this case gave

or made a statement giving the cause of his death but no evidence of the circumstances

relating to the death. And of course the question was: would this be admissible?

Because essentially people are looking at it as being that he has to give both cause and

circumstances. So this case was testing whether if a statement gave only cause, would it

be admissible? If it gave only circumstances but no cause, would it be admissible? And

the court here held that the statement was admissible, that it was not necessary that the

statement refer to both the cause and circumstances. Mention of either cause or

circumstances was sufficient.

In certain jurisdictions it is required that for a dying declaration to be admissible the

person making it must have been in imminent expectation of death. And the

assumption here is that if you are in imminent expectation of death, you are unlikely to

tell lies because you are expecting to be going to your maker and you do not want to go
tainted by untruth. But of course you know that it fallacious as well because you may be

revengeful against a particular person that you do not mind if after you are dead they

spend all their lives behind bars, accused of having killed you. In Kenya, however that

is not a requirement. So it is not required in this country that for a dying declaration to

be admissible one would have to be in imminent expectation f death. And that is

actually contained at section 33(a), if you look at the sentence beginning, “such

statements are admissible whether the person who made them was or was not, at the

time when they were made, under expectation of death..”.

And the case to look at here is a case that we will look at again when we look at

confessions.

The case of SWAMI V KING-EMPEROR (1939) 1 ALL ER 396. In this case the court

considered the admissibility of evidence by a widow that the deceased had told her that

he was going to a particular place on the invitation of the appellant’s wife and that the

appellant’s wife had asked the deceased to go and receive payment of his dues at that

place. So the court was considering whether evidence of a statement by a widow that

the deceased had told her he was going to a particular place on the invitation of the

appellant’s wife to pick up payment of his dues. And this statement was held to be

admissible even though it was made before the cause of death had arisen. So the

deceased here was not in imminent expectation of death. But they had made a
statement that shed light into the circumstances that led to the death that he was going

to pick up his due.

Again on the same point you should look at the case of KALUMA V R (1968)EAR 349.

In this case, three appellants were convicted of the murder of two women in Kenya. The

three appellants happened to be wanted by the Uganda police and the two women they

were accused of having murdered were part of a search party which had been sent to

Kenya to find and arrest the appellants. Evidence was admitted at the trial that one of

the two women had made inquiries about the appellants whereabouts and this had

been reported to the appellants. This evidence was admitted on the grounds that it was

relevant as to the motive or reason for the murder. The appellants were convicted and

they appealed challenging the admission of the evidence about the inquiries and the

court held that evidence about the inquiries was admissible under section 33 of the

Kenya Evidence Act as a statement made by a person who is dead as to the

circumstances of the transaction, which resulted in the death. So it was not in the

category that would be hearsay and inadmissible. It was an exception to the hearsay

rule. So the person was dead and under section 30 (a) a statement made by a person

who is dead on the circumstances of their death would be admissible as an exception to

the hearsay rule.

So essentially then what would be the requirement under section 30 (a) for admission of

a statement as a dying declaration:

It has to relate to the cause and or circumstance of the death of the maker and not to any

other person. So it has to relate to your death as the maker of the statement, not to the

death of other people.

MOHAMED WARSAMA V R.(1956) 23 EACA 576. In this case the deceased had made a

series of dying declarations which were precise and detailed and if true conclusive. He

had in his declaration also stated the cause of death of another person and the question

was whether that part of the dying declaration that identified another person was

admissible. And the court held, no, it was not admissible. The question was whether

that part of the dying declaration that pointed to the cause of death of another person

was admissible. Remember we said that the deceased made many dying declarations of

a precise and detailed and if true conclusive. But in those dying declarations did not just

talk about the cause of his own death. He actually talked about the cause of death of

another person. And the court was enquiring as to whether that part of the statement

that talked about the cause of death of the other person was admissible. And the court

held, no. the dying declaration has to related to the cause and or circumstances of the

death of the maker, not of other people. So they would admit what was pertaining to

his death, not to the death of other people.

The second rule is that the statement must be proximate to the death. So if you had

made a statement about your death in the year 2000 and then you die this year, the

whole question of the proximity of the statement to your death is going to arise.
ANTONIO V BARUGAHARE V R (1957) EA 149 (CA). The witness here had given

evidence that the deceased woman had told her six weeks earlier before she died that

the accused had asked her to marry him. So the deceased had confided to the witness,

six weeks prior to her death, that the accused had asked her to marry him. The deceased

had also asked the deceased according to the report to lend him money to pay his tax.

She had refused to yield to either demand. And she was found dead six weeks later.

And the question was whether what she had confided to the witness was a dying

declaration. Was the information that he had passed to the witness, that she had been

asked to marry the accused and lend him money a dying declaration. The court held,

not, it was not a dying declaration because the facts alleged were not proximate or

related to the death and the circumstances were not those of the transaction resulting in

the death. You should compare that holding to the holding of the case ;

R V KABATELEINE S/O NCHWABA (1946) 13 EACA 164. In this case, a complaint

made by a deceased person to her headman two days before the house in which she

was sleeping was burned, was held directly related to the occasion of the deceased’s

death and was a circumstance that resulted in her relevant. Essentially here you are

looking at two days and 50. So while six weeks are seen as not proximate, not close

enough, here the complaint had been done two days earlier and that is the duration

between the complaint and when the death occurred, is what makes the ruling that it is

part of the transaction that resulted in death.

The dying declaration must be complete.

You should look at the case of WAUGH V R (1950) AC 203 (PC). R v Beddington (?),

you looked at that when we were looking at res gestae or was it similar facts? In

Waugh’s case, the declaration was held to be inadmissible because it was not complete

on its face. The deceased in this case fell in a terminal comma when he was making the

statement leaving it incomplete. So basically what the court is saying is that you don’t

know what the person might have said if they had had the opportunity to complete the

statement, and for that reason, being incomplete, then you could not say it is a

statement that should be admitted. The same point is made in the case of R V.

CHARLES DAKI S/O DAKI (1960) EAR 34. The deceased was in this case admitted into

hospital suffering from gun shot wounds. When he was asked who shot him, he said,

“Charles Daki has killed me, he shot me with a gun. I saw him with a gun. He was on a

motorcycle. A friend of mine had visited me and I went to the garage with him.” At this

point the doctor intervened and the deceased died subsequently. Daki was charged and

convicted on the basis of the statement, despite his counsel’s objection. On appeal the

statement was held inadmissible on the grounds that the deceased might or might not

have added something… And essentially because this statement was not complete, on

appeal it was held that this statement could not be used as basis of conviction because

for a dying declaration to be admissible it had to be a complete statement. For example,

if he had stopped at,”Charles Daki killed me. He shot me with a gun.” And then he did
not express willingness or desire to say other things. Basically he had gone on to say—

he was now going off on a tangent. What was he going to say when he said a friend

visited him, we went to the garage? May be the friend started quarreling with Charles

Daki…nobody knows what this person wanted to say… which means the statement

was incomplete because you don’t know what he might have said if he had not expired

at that point.

Let us also look at the case of PIUS JASUNGA S/O AKUMU V R (1954) 21 EACA 331. In

this case, a witness who was an assistant police inspector gave evidence that he saw the

deceased lying on the road with a wound in his chest. When asked who had injured

him the deceased replied, ‘Pius Jasunga had stabbed me’. Later at the hospital, the

deceased made a statement to the superintendent of police during the cause of which he

got weaker and weaker and he was unable to sign the statement. There was no

corroboration of this story and it had been made in the absence of the accused by a man

who was suffering from a terrible wound, from which he died subsequently. And the

court here held that even though as a rule of law it is not required that a dying

declaration should be corroborated, as a matter of practice you should not convict on

uncorroborated dying declaration, even though as a matter of law there is no

requirement that there be corroboration or independent credible evidence fortifying a

particular statement, and in this case a dying declaration. There is no requirement of

law.
But here one of the points they noted was that as a matter of practice the court should

always require corroboration. And they said that the weight of a dying declaration that

is made in circumstances suggesting that the person might have said something more,

must be less than the one that is fully made. A dying declaration that is made in

circumstances that suggest that the person may have said other things but he was

prevented from saying those other things because he expired, the weight attached to

that dying declaration must essentially be less than one that appears to be complete.

And over and above that the principle that even though law will not require you to

corroborate a dying declaration, as a matter of practice the court should always require

that such be corroborated. And that is going to be the final requirement of a dying

declaration. A dying declaration requires corroboration as a matter of practice. When

you look at rules on corroboration, you will see that the law on evidence requiring

corroboration is generally divided into two.

There are those circumstances where the law actually requires that you get

corroboration. Like when you have evidence of children of tender years. There are a

number of cases where the law requires that—I think evidence of the complainant in

rape case is required by law to be corroborated. But over and above that, courts in

exercising caution—and again being guided by the need to be fair to the accused person

—have devised instances where even though the law does not require corroboration

they will ordinarily require corroboration. And a good example is where you have a
dying declaration. That a dying declaration should not form the basis of conviction if it

is not corroborated and corroboration here is talking to bringing in credible,

independent, strong evidence to fortify that which is being state in the evidence

requiring corroboration. It is also required for confessions that are repudiated or

retracted, where a person has made a confession and they later say that either they

never made it or that they only made it because they were tortured or they were

coerced into making it. That kind of confession, even should the court the court decide

to admit it, it will ordinarily as a matter of practice required that it be corroborated.

THE SECOND CATEGORY OF STATEMENTS UNDER SECTION 30 ARE

STATEMENTS MADE IN THE ORDINARY COURSE OF BUSINESS.

Section 30(b) states:

“when the statement was made by such person in the ordinary course of business, and

in particular when it consists of an entry or memorandum made by him in books or

records kept in the ordinary course of business or in the discharge of professional duty;

or of an acknowledgement written or signed by him of the receipt of money, goods,

securities or property of any kind; or of a document used in commerce, written or

signed by him, or of the date of a letter or other document usually dated, written or

signed by him.”
So for a statement to satisfy the requirements of 30(b) it has to be a statement being in

the ordinary course of business. And section 30 (b) gives examples of those to include

entries or memorandum in books or records, and these have to be regularly kept. For

instance, books of account, ledgers, journals. It could also be acknowledgements that

are written and signed for the receipt of money, receipt books, or documents used in

commerce. These would be admissible as an exception to the hearsay rule. And the

assumption here is that the person making them has no motivation to falsify them. They

are kept in the ordinary course of business; they would actually be entered.

But remember in the case of MYERS V THE DPP what seems to have been record that

were kept in the ordinary cause of business were actually ruled to be hearsay because

the person making them did not actually come to testify to them. And this is again to

talk to the introductory part of section 33, that it has to be that the person is dead,

cannot be found, is incapable of giving evidence, cannot be procured or even they can

be procured it will be as a consequence of delay and expense which is unreasonable. So

in Myers v the DPP it was not established that a person had died, or could not be found.

So essentially for this book to be admissible it is not for all time. The exception comes in

because what is contained at the introduction at section 30 is already applicable, that

there is a problem in getting this person here because they are dead, etc.

And the cases to look at there are

COMMISSIONER OF CUSTOMS V SK PANACHAND (1961) EA 303 (CA)

The company imported some blankets allegedly from West Germany, No import licence

was required for goods from West Germany, although a licence was required for goods

from other countries. The Customs seized the blankets acting on information that they,

in fact, had come from East Germany. The company, seeking the return of the blankets,

in order to support its case produced two documents, an invoice, and a document

signed by a Mr. Blok in which it was stated that the invoice, on which appeared the

words “Country of Origin – West Germany”, was correct. The Company claimed that

these documents satisfied the burden placed upon the Customs Acts, i.e. to prove the

country of origin of the blankets.

The decision involved S. 30 of Evidence Act covering cases where the attendance of a

witness cannot be procured without unreasonable delay and expense, subs. (b) dealing

with statements or documents made in the ordinary course of business. The main issue

was whether the invoice and document signed by Mr. Blok were admissible in evidence

to prove country of origin.

The court held basically that the “any person” who will “give evidence of any other

fact” in this case, as set forth in S. 110 I.E.A was Mr. Blok, who by means of his signed

document would give evidence of the “other fact”, i.e. that the blankets came from West

Germany. Before Mr. Blok could “give evidence through the media of the documents, S.

110 placed the burden upon the Company of proving:

that Mr. Blok’s attendance at the trial could not be procured without unreasonable

delay of expense, that Mr. Blok’s signed document was used in the course of business,

and

that the document was actually signed by Mr. Blok, the person whose attendance it was

unreasonable to procure.

Since the Company had failed to meet its burden of proving these conditions precedent

to the admission of the documents they were held not admissible in evidence and the

court ordered condemnation of the blankets.

You should also look at the case of R V MASALU (1967) EA 355 (T). and GICHUNGE V

R (1972) EA 546.

And all these cases would be illustrating what might be statements made in the

ordinary course of business. The cases of Masalu and Gichunge are particularly

interesting because they deal with post-mortem reports and would seem to indicate that

fact report can technically be admitted as a statement made in the ordinary course of

business if they constitute a statement of fact, rather than a statement of one’s opinion,

when you are talking about the cause of death, when you are talking about either a

statement of fact rather than an expression of opinion, that would be admissible.

You should also look at the case of R V MAGANDAZI AND FOUR OTHERS (1967) EA

84 (CA), which would also talk to documents made in the ordinary cause of business.
The accused were employed in Uganda to carry loads to the Congo. On a charge of

theft of a portion of the loads by the accused, a letter from an agent of the complainant’s

firm resident in the Congo was placed in evidence, but the writer was not called. The

Court said:

“… a letter was produced … by the same witness purporting to come from the

agency of the complainant’s firm in the Congo and showing shortages in the goods

received. (Section 30(2) quoted). The provision of the Section should in my opinion be

only sparingly applied and rarely, if ever, be used where the statement goes to the root

of the whole matter before the Court, as in the present case. Further the letter, although

it may be said to have been written in the ordinary course of business to report a loss,

appears also to be in the nature of a special letter written with a view to the present

prosecution.” The letter was not admitted.

Another case might the case of IDI BIN RAMADHAN V R (1914) 2 ULR 108.

The statement of a police constable was put in evidence during the course of the trial

after it had been proved that the constable in question had proceeded on leave.

Presumably the statement purported to be put in evidence under s. 32(2) of the

Evidence Decree. GRAY C.J. quoted from Magandazi’s case and from Ningawa v.

Bharmappa “I think in using the phrase ‘in the ordinary course of business’ the

legislature intended to admit statements similar to those, admitted in England, as

coming under the same description. The subject is clearly dealt with in Chapter XII of
Mr. Pitt Taylor’s Treatise on the Law of Evidence, and the case(s) which he has collected

show that this execution to the general rule against hearsay tends only to statements

made during the course, not of any particular transaction of an exceptional kind such as

the execution of a deed or mortgage, but of business, or professional employment in

which the declarant was ordinarily or habitually engaged. The phrase was apparently

used to indicate the current routine of business which was usually followed by the

person whose declaration it is sought to introduce.”

STATEMENTS AGAINST THE INTERESTS OF THE MAKER

The next category of statements admissible under section 30 are statements against the

interests of the maker.

Section 30 (c ) reads:

“When a statement against the pecuniary or proprietary interests of the person making

it, or when, if true, it would expose him or would have exposed him to a criminal

prosecution or to a suit for damages;”

So essentially a statement which is against the interests of the maker would be

admissible as an exception to the hearsay rule. But remember against the introductory

part of section 33 has to apply before you admit that it makes an exception to the

hearsay rule. And over and above that you have to look at: Is it really against the

interests of the maker? And the interests of the maker might be pecuniary or relating to

money, proprietary where it affects property or the ownership of the property of the
maker, or it could also be one that exposes a person to a claim for damages or to

prosecution. And the rationale here is that in the ordinary course of life a person is not

going to make a statement against their own interests and would only make such a

statement if it is true.

Case to look at is the case of MARIE AYOUB V STANDARD BANK OF SA (1961) EA

743 (CA).And the statement here was made by the deceased. There was a statement in a

letter where the deceased was said to be owed for the running of his estate. A statement

in a letter in which it was said that the plaintiff were indebted to the deceased for the

running expenses of an estate. The question arose as to whether the statement would be

an exception to the hearsay rule under section 33(c ) and it was held not admissible

because the maker was not dead. The person who had made the statement saying they

were indebted to the deceased for the running of the estate was not dead. So the

prerequisite for the operation of section 33 (c ) had not been satisfied.

In DIAS V R (1927) 3 UGANDA LAW REPORTS 214, where the accused was charged

with the offense of falsifying books of account and the prosecution relied on a letter

written by a deceased clerk to the head of the department which charged the accused

with having ordered him to make the false entries. So the question was, could such a

statement be admitted under section 30 (c ) as one against the interests of the maker.

Who was maker of the statement here? The deceased clerk. And who was the accused?
He was not the deceased. So the court here held this statement was not proper one for

section 30 (c ) equivalent to Uganda, that it could not be admitted as an exception to the

hearsay rule because it was in the very interest of the deceased clerk to make that

statement so that he could pin responsibility on the other person rather than on himself.

So it was not actually a statement against the interests of the maker because the maker

was charging another person with falsifying the books and therefore it was not the right

statement for the application of this exception.

The next exception at section 30 is statements expressing opinion as to a public right or

custom. And remember again it is when the maker of the statement would be dead,

cannot be found and all those things that are contained in the introductory. So

statements made by persons who cannot be called as witnesses are admissible if they

give an opinion on the existence of custom and for such to be admissible the people

ought to be a person that might be aware of such right or custom and the statement

should been made before any controversy as to the right of custom arose. So you could

not make a statement to suit your claim in a forthcoming suit. The statement ought to

have been an unguarded statement of opinion on a public right or custom and it ought

to have been made before there was any controversy as to that public right or custom.

So you made the statement just before the institution of the suit, then that is not going to

be admitted because you would have tailored it for that specific—and when we talk

about a public right it is one which is held in common by all members of the public. For
instance, when people are talking about a right of way in the form of a highway, people

who would have know that right of way was there, a public right of way was there and

it has to be one that affects a considerable portion of the community. For instance also

when you talk about the boundary of a village. And remember that for it to be

admissible as an exception to the hearsay over and above it having been made before

there was a controversy, the person ought to be a person who can be considered as

having competent knowledge, person likely to know.

Statements that relate to any relationship

The next exception is at subsection (e), which reads:

“When the statement relates to the existence of any relationship by blood, marriage, or

adoption between persons as to whose relationship by blood, marriage or adoption the

person making the statement had special means of knowledge, and when the statement

was made before the question in dispute was raised;”

So essentially state of persons who cannot be called as witnesses will be admissible

when they relate to the existence of any relationship. And the relationship could be a

relationship by blood, by marriage or by adoption. And the person making the

statement ought to have been a person who would have had special means of

knowledge of the existence of that relationship. So it is not just any person. It is a person

who had special means of knowledge. And remember again it is only in instances

where that person cannot be called as a witness because of the variety of factors, that
they are dead, cannot be found, etc. And the statement must also have been made

before there was a dispute as to the existence of the relationship or not. So there ought

to have been an unguarded action.

SEIF ALI BAJKNI AND OTHERS V HAMED BIN ALI (1945) 7 ZANZIBAR LR 13. This

involved a situation where a child was born 10 months after the marriage between the

parents was dissolved. During the hearing it was sought to introduce a document

concerning the relationship, written by the alleged father. The document was written in

contemplation of the suit because the father disputed the parenthood and they made

the document in the event that the child should ever file suit. If the child files suit

against the father then the father would turn around and say there is a problem here, I

do not accept that you are my son. So the document was written in contemplation of the

suit because the father disputed his fatherhood of the child and the document

contemplated a situation where the child might file any suit against the father. And the

court held that the document conclusively proved the existence of the controversy and

it should be rejected. Because remember we said that the document ought to have be an

unguarded assertion. It should not be one done in contemplation of a suit. The

document itself conclusively proved the existence of the controversy at the time it is

alleged to have been written because the father only wrote the document because they

disputed their parenthood of the child. And they were writing it to guard themselves in

the event that this child should ever fight it against the father. And so it should be
rejected because the document ought to have been made when there was no dispute as

to the existence of the relationship but you see here the father was dead but he had

written the document. But he had only written the document for the purposes of

establishing certain matters.

STATEMENT RELATING TO FAMILY AFFAIRS

The next exception is at (f), statements relating to family affairs. Those will also be

admissible and these ought to be made by persons who would have knowledge, again.

And they could also be on tombstones, family portraits, or other places where such

statement should be made. It could also be in a will or a deed. So if you have a

statement relating to family affairs in any of those places and it is made by a person

who cannot be called as a witness, it would be accepted as an exception to the hearsay

rule. And the assumption here is that there will be nobody inserting falsities in those

kinds of places, where you are talking of a tombstone, a family portrait or a will or a

deed. Those are solemn documents, so if you have those kinds of statements made by

person who cannot be called as witnesses, there will be admissible.

STATEMENTS MADE BY PERSONS WHO CANNOT BE CALLED

Then at section 30 (g) where you have statements made by persons who cannot be

called, which are contained in a deed or other transaction that establish a custom, those
will be admitted. When a statement is contained in any deed or other documents which

related to any such transaction as mentioned in section 13 (a). 13 (a) gave the

establishment of customs or rights. Those would be admissible. And again here you are

talking about statements that show when the custom or the right was created, when it

was claimed, where it was modified, instances when it was recognized, or when it was

asserted or denied. All these could be admissible if they are made by a person who

cannot be called as a witness. And this provision includes private as well as public

rights. So it is not just for public rights. It is also for private rights.

STATEMENTS MADE BY SEVERAL PERSONS EXPRESSING FEELINGS OR

IMPRESSIONS

And finally under section 30, statements made by several persons expressing feelings or

impressions on their part, which are relevant to the issue in question. So if a number of

people who cannot be called as witnesses had made statements expressing their feeling

or impressions which feelings or impressions are relevant to the matter in question,

that is going to be admissible. For instance, if you have a number of people saying they

were apprehensive, they had made statements to the effect that they were apprehensive

that something was happening or that they got the impression that things were not

being done in the way they should have been done. And again here of essence to
admissibility is that they made them as unguarded statements. They are not tailor made

for a specific procedure.

So we still have to deal with the next category of statements that would comprise

exceptions to the hearsay rule. And again to reiterate what Lord Reid said that the rule

against hearsay is very technical and actually take a bit of reading through to begin to

appreciate why would it be admissible. And remember when you are reading the

exceptions in section 30 you have to read that bearing in mind the introductory bit: on

when is admissible, it is not for all time. It is when those passes operate. So if you are

bringing a statement when the maker is not dead, it is not going to be admissible.

If you are bringing it when it is not against the interests of the maker or it is against the

interests of the maker but the person could still be found to come and testify to the

issues directly, then it is not going to be admissible. And look at the exceptions to the

hearsay rule as a way in which the legislature is trying to bring information that would

otherwise be unavailable. So you are thinking, you know you cannot get the best

because the person that has the best evidence is dead, cannot be found, and all those

things. And so you allow for the second best. And given that it is your second best, that

is why for instance for dying declarations you have the requirement that it be

corroborated. So the fact that it is hearsay and it is being accepted as an exception to the
general rule, is going to have a bearing on the weight that is attached to that kind of

evidence

STATEMENTS MADE IN PREVIOUS PROCEEDINGS

Are admissible under section 31. The section provides that the evidence given by a

witness in previous proceedings is admissible in subsequent proceedings or at a later

stage in the same proceedings; the evidence is admissible for purposes of proving the

facts that it states.

Such evidence will only be admissible if the following conditions are satisfied:

Where the witness is dead,

1) Cannot be found, is incapable of giving evidence, or

2) Where he has been kept away by the adverse party or

3) Where the presence of the witness cannot be procured without unnecessary

delay and expense.

In respect of subsequent proceedings such evidence is admissible only if the following

conditions are satisfied

i. If the proceedings are between the same parties as before or their representatives

ii. If the adverse party in the previous proceedings had the opportunity to cross-

examine the witness.

iii. If the facts in issue in the previous plus the subsequent proceeding are the same.
STATEMENTS MADE UNDER SPECIAL CIRCUMSTANCES

They are covered under Sections 32 of the E A.

They are also referred to as statements in documents they are admissible. They include:

1. Entries made in books of accounts that are regularly kept in the course of

business but such statements require corroboration.

2. Entries made in public records or official books or registers; these are made as a

result of a duty imposed by law e.g. entries in the register of births, deaths, or

marriages.

3. Statements made in maps or charts and which are published and generally

offered for sale to the public.

4. Statements of fact which are contained in laws and official gazettes (Ugandaa

Gazette).

5. Statements of law, which are contained in books, published and offered for sale

to the public.

The first category of such statements are entries in books of accounts. These are

admissible if they are relevant but a book has to exist with a number of entries not just a

single entry and if the books related to the sale and delivery goods, there has to be

corroboration by a person who loaded the goods, or one who saw them unloaded or

loaded. S. 32 entries in books of account regularly kept are admissible.

ODENDO V. R (1974) E.A. 6

This case is an authority for the proposition that where books of accounts are concerned

the need for corroboration is important under Section 32 and also where there is

delivery of goods corroboration is essential.

Section 33 has an example of an entry in a public record. An entry in any public or

other official book register or record stating a fact in issue or a relevant fact and made

by a public servant in the discharge of his official duty or by any other person in

performance of a duty specially enjoined by the law of the country in which the book

register or record is kept is admissible. For example if a priest performs a wedding,

they are expected to keep a register even though they are not public officers.

What constitutes a public record?

In the case of LADHA & OTHERS V. PATEL & OTHERS (1960)

A public record must be intended for the use of the public or be available for public

inspection. It should be a record of fact not opinion.

CHANDARIA V. R

The whole question of what constitutes a public official and the court of appeal judges

ruled that

Section 33 does not apply to documents made by members of the public when detailing

information necessary for their individual use whether or not those documents are kept

in a public department such as the immigration department. This case dealt with forms

that a traveller had filled at the airport and a person sought to introduce this evidence
in court under the provision of any other person. The judges were of the view that the

provision referred to people other than public officials who find themselves under a

specific duty to maintained or keep entries in any record of a public or official nature.

STATEMENTS OF PERSONS WHO ARE SERIOUSLY ILL

They are admissible as an exception to the hearsay rule. It is provided for under

criminal procedure rule. It is necessary to serve the adverse party that you intend to

take a statement from a particular person who is seriously ill, this way you accord them

an opportunity to come and cross-examine the witness. If the person later dies or

cannot be procured, then the statement will be admitted as an exception to the hearsay

rule.

AFFIDAVITS

These are written statements on behalf of people (deponents) it has to be sworn or

affirmed and could contain statements of fact which the deponent is able to prove from

his own personal knowledge. You cannot swear an affidavit on matters that are not

within your personal knowledge. See the case of Life Insurance Co. of India V. Panesar
 OPINION EVIDENCE

What is opinion?

Opinion is defined to mean any inference which one may draw from perceived data. It

is whatever you infer from what you see, smell, hear, feel etc and the general rule in

evidence is that a witness should confined himself/herself to what they perceive to leave

the court to draw the inferences.

It is however not always possible to separate perceived facts from opinions in some

cases they are intertwined and it would be impossible to separate the two. The court

might sometimes need the opinion of people better placed than itself to draw the

inferences and it is in these situations that he court allows the inferences.

E.A. outlines the number of incidences when the court may be called to draw the

inferences where facts and opinions are so intertwined and the court needs assistance

by hearing opinions of experts better placed that itself.

The general rule as regards opinion evidence is that a person’s opinion as to a fact is not

admissible in Evidence it is a rule of exclusion. That rule requires that any witness

tendering evidence in court should only state facts and he should not make or draw any

inference or express any opinion to such facts. A witness should not express a personal

opinion on matters, which call for special skill and expertise unless he possesses

expertise in that field.

If the general rule is left, as it is the administration of justice may result into absurdities

because:

1) There may arise circumstances where a witness may not effectively give

meaningful evidence unless he draws inferences in respect of facts to which he is

witnessing. That depends on the circumstances of each particular case.

2) There are certain matters in respect of which the court cannot always purport to

have a monopoly of knowledge in this include mattes of Science, History, Arts

and Medicine among others. In respect of such matters the court should be

prepared to allow opinion evidence in the form of opinion of persons who have

expertise in such cases.

 3) Sometimes if the court allows opinion evidence it may save the courts time

which may otherwise have been spent in researching on the matters in respect of

which the opinion is expressed.

Beside the courts of Law only experts are allowed to give opinion evidence but only in

their area of expertise. Normally a person is considered an expert through careful and

diligent study or through research and experience in the field in which the expertise is

claimed, but there are circumstances where the court may recognize the person to be an

expert even if he has not had any study or research in that field

EXCEPTIONS:

EXPERT OPINIONS. SECTION 43

An expert is qualified to be one after a careful study of that of which one is professing to

be an expert in or through experience in that matter. Therefore, there need not be

formal training. Experience can be enough

R. V SILVERLOCK (1894) 2 Q.B. 766

A solicitor was permitted to give evidence or expert opinion on a matter of handwriting

although he had never received any formal training. It was his hobby to study

handwritings. However, to say that no formal training is required does not mean

anybody can be accepted. There should be some past, long connection with the matter

at hand.

ODINDO V. R (1969) E.A. 12

The Appellant was convicted of driving a motor vehicle under the influence of alcohol.

A police inspector testified to the effect that when the Appellant was brought to the

control room of the Traffic Headquarters he smelt of drink. The Inspector opined that

this person was smelling of drink and was incapable of coherently telling his name, he

could not tell the time by the clock on the wall and he could not stand on one foot with

his hand horizontally spread. The Inspector concluded his testimony by asserting that

in his opinion the accused was completely incapable of having control of a motor

vehicle. The judge objected to this opinion saying that the policeman should have

confined his testimony to what he had observed, leaving the issue of fitness to drive to

the court or a doctor.

STEPHEN V. R [1973] EA 22

The court rejected evidence by a policeman that he had found the accused in possession

of a drug called Bhang. The court is saying that one should tell the court that you

found them with a substance that looked and smelled a certain way and leave the

experts to decide what drug it was. The court is trying to prevent lay persons from

giving opinions on matters that require long years of experience.

CHARLES NG’ANG’A V. R KAR CRIM CASE NO. 66 OF 1980

The accused was charged with the offence of causing death by dangerous driving. A

policeman testified on the point of impact to which the defence objected because the

policeman was not an expert on the matter. The trial court overruled the objection and
on Appeal it was held that unless it can be shown that a policeman has many years of

experience in inspecting motor vehicle accidents, a police witness should not give

opinion evidence of such matters.

HOW DO EXPERTS TESTIFY?

Experts are brought to court by people who intend to rely on their expertise. That party

will inform the court of their expertise. The question as to whether a person is an expert

or not is a question of fact which is determined by the court. The pointers or the things

that will help the court in coming to a conclusion are

1. Educational background; they may want to see certificates;

2. Evidence on the areas in his/her field where he/she has taken extra courses;

3. Work experience.

MOHAMED AHAMED V. R [1957] E.A. 323

The Appellant had been convicted of occupying an unsafe house which in the opinion

of the district housing inspector and the superintendent of works was so unsafe as to

constitute a nuisance. The Court of Appeal held that these two persons were not

qualified experts and so their evidence was inadmissible.

In practice, if the expert has perceived of the facts from which he/she proffers his

opinion or if the facts are not disputed, such expert is asked direct questions such as

was the accused insane or was he so drunk as to be incapable of controlling a motor

vehicle. If however the expert did not perceive of the facts or if the facts are disputed he
is asked hypothetical questions such as are the facts adduced consistent with the

existence of a certain state such as drunkenness or insanity?

R V. SALIM S/O SENGERO (1939) E.A.CA. 147

The evidence is to the effect that a court would welcome reasons for a witness’s opinion

even though it is not mandatory that this be given.

Note that it is necessary for experts to give reasons for their opinion as this helps to

equip the court with better knowledge of the matter under investigation

ONYANGO V. R (1969) E.A 362

Which is to the effect that it is not a universal requirement that reasons for the opinion

should be given. An expert should come to court prepare to justify his opinion by

argument and demonstration. But he need not necessarily be asked to do so. in many

cases, it is sufficient if the expert gives his opinion, the more eminent the expert the less

the need for demonstration. So the long and short of this statement is that whilst the

law does not require an expert to bring in his opinion, when he does come to court, he

should be prepared to justify and demonstrate and argue their reasons for their opinion.

HOW SHOULD COURTS TREAT EXPERT OPINION

It is opinion only and the court must still make its own conclusion and there is strong

feeling that courts should not abdicate their reasons for decision making to experts.

KIT SMILE MUGISHA V. UGANDA CRIM APP. NO. 78 OF 1976

The Court of Appeal took the view that expert opinion is only opinion and it cannot

take the place of substantive evidence. The court states that the court has to decided an

issue upon such assistance as the expert may offer but it should not abdicate its role of

opinion making to the expert called before it. It must form its own opinion on the

subject matter at hand.

HASSAN SALLUM V. R (1964) E.A 126

This case was on the line that the court should not over-rely on experts, they can also

make mistakes. The court should not be bound by the expert opinion.

Expert basing their opinion upon facts look at the case of

R V. KIPIKANDIMU [1946] 7 ZANZIBAR LAW REPORTS 90

Where a medical expert gave evidence that certain injuries described by him were

inflicted before death. He gave no reasons for his opinion. The court held that the

opinion evidence was inadmissible as to the cause of death.

If the opinions of two experts conflict, the court has to make its own opinion by looking

at the credibility of the evidence available and the eminence of the experts. If the two

conflicting experts are equally eminent and creditworthy, then the matter is taken as not

proved and the party on whom the burden of prove lies has to dispense with it in

another way.

WHERE IT IS NOT POSSIBLE TO SEPEARATE FACTS FROM INFERENCES

When one talks of identity, it is not just identity of persons but also identity of things.

When you say that you identify the instrument that was used, you are just opining.

Evidence of an identity is an expression of an opinion. Courts treat opinion of identity

cautiously to avoid convicting people on mistaken identity.

RORIA V. R (1967) E.A. 583

Fourteen days after a raid on a Maasai Manyatta the Appellant was identified at an

identification parade by the wife of one of the persons killed in the raid. He was

identified as ‘either the person who killed her husband or who passed close to her when entering

the Manyatta’ the court rejected this evidence noting that the danger of possible wrong

identification, is greater when the only evidence is identification by one witness and

although no one could suggest that a conviction based on such identification should

never be upheld it is the duty of the court to satisfy itself that in all cases it is safe to act

on such identification.

In normal circumstances courts will require corroboration in cases of identification by

night because the courts must satisfy themselves that it is safe to act on the

identification. In instances where the only evidence is identification by one witness, the

evidence is required to be absolutely water tight to justify a conviction. In essence,

courts exercise a lot of discretion when they are faced with evidence of identification.

HOW ARE IDENTIFICATION PARADES CARRIED OUT?

The procedure for identification parade was laid out in the case of R V. MWANGO S/O

MANAA (1936) 3 EACA 39

Which case was approved in the case of SIMONE MUSOKE V R 1958 EA 7

The procedure is as follows

1. The accused person is always informed that he may have a lawyer or friend

present when the parade takes place;

2. The officer in charge of the case does not carry out the identification that he

may be present

3. The witnesses do not see the accused before the parade;

4. The accused is place among at least 8 persons of as similar age, height,

general appearance and class of life as him or her as possible.

5. The accused is allowed to take any position he chooses and he is allowed to

change position after each identifying witness has left if he so wishes.

6. Witnesses should not be allowed to communicate with each other after they

have been to the parade.

7. The practice is to exclude all persons who have no business at the parade;

8. Careful notes should be taken after each witness leaves the parade and the

notes would include

(i) Did the witness identify any person and under what circumstances
 9. If the witness desires to see the accused walk, hear him speak, see him with

his cap on or off, this should be done but all persons in the parade should be

asked to do as the witness has requested as a precautionary measure;

10. The witness should touch the person he/she identifies

11. At the termination of the parade or during the parade, the accused should be

asked if he is satisfied that the parade is being conducted in a fair manner and

a note should be made of his reply.

12. In introducing the witness to the parade, the witness should be told that he

will see a group of people who may or may not include the suspected person;

13. Throughout the parade, it is critical that the parties conducting the parades

should act fairly to avoid depreciation of identification as evidence. It is

dangerous or wrong to suggest to the identifying witness that the person to

be identified is believed to be in the parade.

R V BULATIKWA (1941) EACA 46

The officer conducting the parade told the identifying witness ‘you know a man called

Bulatikwa whom you say killed your uncle. Come on to the veranda and see if you can find him.’

This was held to be wrong because it was a suggestion that the person to be identified

was actually in the parade.

It is not established practice to question a witness who has made an identification at the

parade as their reason for doing so. A voluntary comment made by the witness is

however admissible it can be received in evidence as part of the identification.

SIMONE MUSOKE V. R

In this case, the Appellant was charged with another person on one count of theft of a

motor vehicle and two counts of robbery with violence. The evidence was that on the

material day, the accused person had been seen at a funeral and at a bar dressed in a

helmet which was readily identified by the prosecution witness. The evidence of

identification by the bar owner was rejected by the trial court on the grounds that no

questions were put to these witness to elicit reasons for identification. The stolen motor

vehicle was found outside the bar and in it was found amongst other things the helmet

exhibited at the trial. On Appeal, the issue was whether the evidence of identification

was properly disallowed on … The Court held that it is not established practice to

question a witness who has made an identification at a parade as to his reasons for

doing so. comments voluntarily made by the witness are often received as part of the

act of identification but, answers to questions would be of less value and of doubtful

admissibility.

SECOND WAY OF IDENTIFYING IS FINGERPRINTS

Fingerprints may be taken also for purposes of identification. Footprints is another form

of identification. This is done by a comparison of footmarks of the shoes. They

compare the soil type on the shoe and the soil mark at the scene of the crime.

R V. MAGANGA (1935) 2 EACA 89

The fourth way of identification is by use of Police dogs and a question has arisen as to

whether this is reliable. Look at the case of WENDO & ANOTHER V. R where it was

stated that evidence of identification by police dogs is admissible and can corroborate

other identification but the dog must qualify as an expert. One has to bring its training

into court and that has to be taken into account in weighing the value of its evidence.

It is important to distinguish between identification and recognition.

Identification refers to a situation where one is trying to remember whether the person

you are seeing is the same person you saw at the scene of crime whereas recognition

refers to a situation where one knows the person. Recognition is more reliable than

identification. Look at the case of REUBEN TAABU ANJONONI & OTHERS V. R

(1980) KLR 59

OTHER ISSUES OF FACTS AND IDENTIFICATION

Health - Causes of illness and incapacity resulting from illness are matters for experts

Speed – one can say whether or not a particular car is being driven at a fast speed. A the

practice however is not to convict on the evidence of single witnesses. This is provided

for at Section 43(3) Traffic Offences Act. We are talking of identification

Age – witnesses often testify as to their own age but this is a fact upon which such

persons cannot have first hand knowledge. Age can only be proved by the testimony of

a witness other than the person in question who was present at the birth. When you

testify about your age, you are giving an opinion. Age is a prime factor in certain cases

e.g. if you want to identify indictment for defilement, age is a factor.

Intoxication – the evidence is based upon observation which one can give without any

scientific tests being carried out. (Odindo V. R) what kind of opinions will be

admissible?

Cases where opinions are so likely to be correct that the court deems these opinions

as convenient and time saving to admit the opinions:

Opinions as to handwriting of a person by a person acquainted with that person’s

handwriting will be admitted as an opinion that is so likely to be corrected Section 45

Section 46 – Opinion as to the existence of a general rite or custom by persons likely to

know of it. If for example we wanted opinion on customary law, who would be likely

to know of customary law it would be the people who are versed in customary law. It is

important to look at who are the repositories of the customary general rites and

practices

Section 47- Opinion as to usages, tenets, constitution and government of any association

body or organisation given by persons having special means of knowledge thereon.

Section 48 - Opinions as to the relationship of one person to another expressed by

conduct or evidence of persons who are best placed to know it. For instance if the

question is to whether X and Y are married, the fact that they were usually received and

treated by their friends as man and wife is relevant and admissible opinion.

THE WEIGHT OF EXPERT EVIDENCE:

The evidence of an expert is only an opinion and the court has to make its own finding

on the matter by rejecting or agreeing with it. It has to indicate that it made its own

independent finding. In KITSMILE VS. UGANDA CRIM APP. NO.7 OF 1976 C. A.

said:

“An expert opinion is opinion evidence and it can rarely if ever take the place of

substantive evidence. That opinion is only a piece of evidence and it is for the court to

decide the issue one way or the other upon such assistance as the expert may offer. In

other words the court is not to surrender its opinion to that of experts called before it,

but with such help as they can afford it must form its own opinion of the subject at

hand.”

Where efficient communication requires the expression of an opinion.

1. This happens where the witness cannot separate his inference from the perceived

facts.

Examples:
  If a witness is expressing what his mental condition is or state of bodily

feeling e.g. I was feeling dizzy; sick etc.

 Matters of identification of persons or things e.g. in theft cases if a witness

said that whatever is exhibited in court is his property that is an opinion. It

would be difficult to prove that it was his property unless he gives that

opinion and is permitted to adduce further evidence like, it has a dent, a mark

etc.

 Speed opinions, age, color, weight etc.

2. Where opinions of certain persons are so likely to be correct that it would be

saving time and money to accept those opinions: Sections 45 – 48.

 CORROBORATION

Nature and Extent of Corroboration:

The word ‘corroboration’ has been derived from the Latin word ‘corroboratus’, past

part of the word ‘corroborare’, which has itself been derived from another Latin word

‘robust’ It means “to confirm and sometimes add substantiating (reinforcing) testimony

to the testimony of another witness or a party in a trial.” At another place it is defined

as “confirmation and support by additional evidence or authority.” It is also meant “to

support or enhance the believability of a fact or assertion by the presentation of

additional information that confirms the truthfulness of the item.” The evidence which

is used for the purpose of corroboration is termed as corroborating evidence or

corroborative evidence which is defined as that kind of “evidence which strengthens,

adds to, or confirms already existing evidence.” It is obvious that corroborative

evidence is some evidence other than the one which it confirms, establishes, or makes

more certain. So it is additional in nature but substantiating in quality. We cannot

regard a piece of evidence as corroborating which lacks in these characteristics. Thus

there are two categories of evidence, taking into account the nature of corroboration or

corroborative evidence: the first category is of original/basic evidence and the other of

corroborative evidence. The latter is not substitute for the former but can only be

utilized for substantiating it whenever need arises.

One of the most important cases regarding the nature and extent of law of corroborative

evidence is Rex v. Baskerville(1916) 2 K.B. 658 which has been followed in common

law jurisdictions across the world. The judgment was pronounced by the Court of

Criminal Appeal with respect to approver’s evidence. But so far as the nature and

quality of corroborative evidence is concerned, it has been regarded as a precedent in all

circumstances requiring corroboration of any evidence in a criminal trial. Due to the

relevance of rules of corroboration laid down by the Court in this case to our discussion,

they are reproduced here in detail:

1. “The corroboration must be by some evidence other than that of an accomplice;

and, therefore, one accomplice’s evidence is not corroboration of the testimony of

another accomplice.

2. The corroborative evidence must be evidence which implicates the accused, that

is, which confirms in some material particular not only the evidence that the

crime has been committed, but also that the accused committed it. In other

words, the corroboration must be both as to the corpus delicti and as the identity

of the accused.

3. It is not necessary that the story of the accomplice should be corroborated in

every detail of the crime, since, if this were so, the evidence of the accomplice

would be unnecessary.
 4. The corroboration need not be direct evidence that the accused committed the

crime; it is sufficient if it is merely circumstantial evidence of his connection with

the crime.”

This decision was followed in the case of:

R v Manilal Purohit [1949] 9 EACA 58

Held: Corroboration, which should be looked for, is some additional evidence

rendering it probable that the evidence of the witness is true and it is reasonably safe to

act upon it, that it must be independent evidence which affects the accused by

connecting him or tending to connect him with the crime confirming in some material

particular, not only the evidence that the crime has been committed, but also, that the

accused committed it. However, it is not necessary to have confirmation of all

circumstances of the crime. Corroboration of some material particular, tending to

implicate the accused is enough.

Key points to note about Corroborative Evidence

1. It must be independent testimony R v Baskerville;

2. It should connect the accused to the commission of the offence;

3. It needn’t corroborate the whole story R v Manilal;

R v Kilbourne [1973] App. Cas 729

Rationale for Corroboration

In most cases, the basic reason courts and law require it is to ensure reliability of the

evidence that has been given. Because in certain situations, court feels cautious about

using certain pieces of evidence e.g. where some of the witnesses are interested parties,

e.g. the accomplices and the co-accused;

There are some offences where it is rare to have direct witnesses apart from the

complainant e.g. in sexual offences, most times the only witness is the complainant and

at trial, it becomes the complainant’s word against the accused’s. Thus, court needs

corroboration to test the reliability of that evidence.

General Rule: S. 133 of the Act provides that subject to the provisions of any other law

in force, no particular number of witnesses shall in any case, be required for the proof of

any fact.

However, this very provision creates exceptions in the sense that it is subject to any

other law in force.

Exception: The requirement for corroboration is an exception to the general rule

because it permits more witnesses.

Situations in which Court will require Corroboration

Where corroboration is required as a matter of law, i.e. where there is a statutory

requirement;

Where corroboration is required as a matter of judicial practice or prudence.

Corroboration as a statutory requirement

 There are a number of statutes that make corroboration in certain instances a necessity.

What is worth noting is the effect of the corroboration requirement. The effect is that

court must always get corroboration and as such, cannot convict without it.

Penal Code Act

There are a number of offences where the evidence must be corroboration before a

conviction can be made, e.g. Treason, Sedition, Perjury, Procuring defilement of women

by threats;

      The Traffic & Road Safety Act e.g. over speeding;

Children’s Act e.g. petition for a declaration of parentage; unsworn evidence of a

child of tender years must be corroborated. See s.12 Oaths Act which requires all

evidence in court to be sworn. There are exceptions created under the Magistrates

Courts Act and the Trial on Indictment Act, although in judicial practice whether or not

the evidence is sworn, it must be corroborated.

Corroboration as a requirement of Judicial Practice

There are a number of these circumstances of judicial prudence. The difference between

these and the former is that here, the conviction based on this may not be fatal, as court

may not convict on uncorroborated evidence. Court has the discretion to decide if the

evidence is reliable, but must always caution itself of the requirement for corroboration.

Categories:

Accomplice evidence
This is governed by s.132 of the Act according to which, an accomplice shall be a

competent witness against an accused person and a conviction is not illegal merely

because it proceeds upon the uncorroborated testimony of an accomplice. By statutory

provision, there is no requirement of this, but courts have seen that it is evidence of the

worst kind and must be corroborated.

R v Baskerville

Davis v R [1954] AC378

Govinder Singh v R (1956) 23 EACA 597

The rationale for requiring corroboration for accomplice evidence was given in “The

Handbook for Magistrates”:

Accomplices are usually interested parties and they are generally always infamous

witnesses as a result of which their evidence is regarded as untrustworthy b courts. The

reason is that the accomplice is likely to tell lies in order to shift guilt from himself or to

play down the part that he took commission in the offence.

As a company, a partner in crime with the accused, an accused is not likely to value his

oath;

If an accomplice usually gives evidence because of the hope or promise to be pardoned

or treated leniently by the prosecution.

Sexual offences
The evidence of the complainant/ victim must be corroborated in these offences as a

rule of judicial practice. In E.A, the rule was laid down in:

Chila v R [1967] EA 722

Held: The Judge should warn assessors and himself of the danger of acting upon the

uncorroborated evidence of the complainant. Having done so, he may not convict in the

absence of corroboration if he is satisfied that there has been no failure of justice.

Rationale for requiring corroboration in sexual offences

According to Glanville Williams (1962) CLR 662, there is a sound reason for this

requirement because sexual cases are particularly subject to the danger of deliberately

false charges resulting from sexual neurosis, fantasy, jealousy, spite or simply a girl’s

refusal to admit that she consented to an act of which she is now ashamed. Wigmore on

Evidence gives a similar opinion.

What constitutes corroboration in sexual offences?

Medical reports or any other evidence e.g. state of the complainant… distressed

condition, e.g. torn clothes, beaten body, etc. If the complainant immediately reported

the assault, it can be a part of the corroboration. Courts have held that the best

corroborative evidence is medical evidence, as to whether or not there was defilement,

rape, etc. Sometimes, a semen test is done and if there are deposits in the complainant,

court may use this as corroborative evidence. It is mandatory, especially when the

accused is in custody, to submit to medical examination. Telesfora Alex v R

Ngobi v R [1953] 20 EACA 56

Facts: A small girl was defiled and in the course was also infected with an STD. The

accused denied any knowledge of the child. Medical examination was done and found

the child to be infected with the same strain of STD as the accused.

Held: The medical evidence was good corroborative evidence that he had defiled the

girl.

Dying Declarations;

These must be corroborated as a matter of judicial prudence.

Confessions against the co-accused; Retracted and Repudiated confessions;

Tuwamoi v Uganda

Identification;

In all cases, court requires corroboration, especially in the identification of a single

witness under difficult conditions, e.g. robbery at night.

Abdulla Bin Wendo v R is the locus classicus.

Evidence of a child of tender years;

According to the Law, the unsworn evidence of a child of tender years requires

corroboration. Even judicial practice requires this.

Oloo s/o Gai v R [1960] EA 87

Held: The judge relied on the evidence of a 12 year old child to convict the appellant for

murder. He did not warn himself of the need to corroborate the child’s evidence. The

Court of Appeal held that it was erroneous for the judge to rely on the uncorroborated

evidence of the child, even if it had been sworn evidence.

This is more so if the child is a prosecution witness. The rationale for this according to

Glanville Williams is that children can easily be coached therefore court must treat their

evidence cautiously; children are impressionable and susceptible; they are easily fooled,

sometimes live in a make-believe world; they are ego-centric and only slowly learn the

duty to tell the truth. A child’s power of observation and reasoning is far below that of

an adult therefore their evidence must be approached with great care

Question

“Corroboration is a creature of statutes” Discuss.

In most cases, the basic reason why courts and the law require corroboration is to

ensure reliability of the evidence that has been given. Because in certain situations,

courts feels cautious about using certain pieces of evidence for example where some of

the witnesses are interested parties like the accomplices and the co-accused. There are

some offences where it is rare to have a direct witness apart from the complainant for

instance in sexual offences, most times the only witness is the victim and at trial, it
becomes the complainant’s word against the accused’s. Thus court needs corroboration

to test the reliability of that evidence.

Section 133 of the evidence act provides that subject to any other law in force, no

particular number of witnesses shall in any case be required for the proof of any fact.

However, this very provision creates exceptions in the sense that it is subject to any

other law in force. The requirement for corroboration is an exception to the general rule

because it permits more witnesses.

This discussion will examine the meaning of corroboration, the situations where the

courts will require corroboration as a matter of law (statutes) and then discuss other

situations in which the court may require corroboration as a matter of judicial practice

or prudence.

The word corroboration originated from the Latin word “corrōborāre” which means to

strengthen or confirm. It connotes support or confirmation, and indicates, in relation to

the law of evidence, that certain evidence is confirmed in its tenor and effect by other

admissible and independent evidence. In other word corroboration is confirmation or

support of a claim or evidence through independent, authoritative, and credible

evidence. Therefore, corroboration evidence is tending to confirm some fact of which

other evidence is given. To be capable of amounting to corroboration evidence must not

only be relevant and admissible but also credible and independent. In Uganda vs.

George Wilson Simbwa (SC) Criminal Appeal No 37 of 1995 it was held that:

“Corroboration affects the accused by connecting or tending to connect him with the

crime. In other words it must be evidence which implicates him, which confirms in

some material particular not only the evidence that the crime has been committed but

also that the defendant committed it. The test applicable to determine the nature and

extent of corroboration is the same whether it falls within the rule of practice at

common law or within the class of offences for which corroboration is required.” 2

As seen from the above holding, it was stated in Ntambala Fred v Uganda (SC) Crim.

App No. 34 of 2015 that corroborative evidence is evidence from other sources which

supports the testimony of the complainant and connects or tends to connect the accused

person to the commission of the crime.

Corroboration as a statutory requirement.

There are a number of statutes that require corroboration a necessity in certain

instances. What is worth noting is the effect of the corroboration requirement and the

effect is that court must always get corroboration and as such, cannot convict without it.

The Penal Code CAP 120, laws of Uganda has a number of offences where the evidence

must be corroborated before a conviction can be made. Such offences include treason,

Perjury, Procuring
Defilement of women by threats.

Corroboration of Unsworn Evidence of a Child:.

The children Act Children Act CAP 59, for example in petition for a declaration of

parentage; unsworn evidence of a child of tender years must be corroborated.

Section 12 of the oath’s Act 5 cap 16 ,Laws of Uganda provides: “No person shall be

convicted or judgment given upon the uncorroborated evidence of a person who shall

have given his or her evidence without oath or affirmation”.

Section 101(3) of the Magistrates Court Act 5 provides:

“Where in any proceedings any child of tender years called as a witness does not, in the

opinion of the court understand the nature of an oath, the child’s evidence may be

received though not given on oath, if in the opinion of the court, the child is possessed

of sufficient intelligence to justify the reception of the evidence and understands the

duty of speaking the truth.

Under the above provisions, corroboration is required and therefore single evidence is

not permissible to convict. Where a single witness is not believed a conviction could not

follow. Witness evidence is not always reliable, even when given in good faith. For

example, if the accused is convicted on the basis of the eye-witness evidence of a single

police officer. And later it’s determined that the police officer had lied, there would be a

miscarriage of justice and this shows the dangers of a system without corroboration.
Apart from statutory requirements for corroboration, in judicial practice whether or not

the evidence is sworn, it must be corroborated. There are a number of circumstances of

judicial prudence. The difference between these and the statutory requirements is that

here, the conviction based on this may not be fatal, as court may not convict on

uncorroborated evidence. The court has discretion to decide if the evidence is reliable,

but must always caution itself of the requirement for corroboration. Corroborative

evidence as a matter of judicial practice has several categories as explained below;

Corroboration of Accomplice Evidence.

This is governed by S.132 of the Evidence Act according to which an accomplice shall be

a competent witness against an accused person and a conviction is not illegal merely

because it proceeds upon the uncorroborated testimony of an accomplice. By statutory

provision, there is no requirement of this, but courts have seen that it is evidence of the

worst kind and must be corroborated. In R v Baskerville[1916]2 KB 667 and R v

Manilal Purohit , it was emphasized that corroboration which should be looked for, is

some additional evidence rendering it probable that the evidence of the witness is true

and it is reasonably safe to act upon it, that it must be independent evidence which

affects the accused by connecting him or tending to connect him with the crime

confirming in some material particular, not only the evidence that the crime has been

committed, but also that the accused committed it. However it is not necessary to have

confirmation of all circumstances of the crime. Corroboration of some material

particular tending to implicate the accused is enough. The rationale for corroboration in

accomplice evidence as given in “The Handbook for Magistrates”

Accomplices are usually interested parties and they are generally always infamous

witnesses as a result of which their evidence is regarded as untrustworthy by courts

because an accomplice is likely to tell lies in order to shift guilt from him or to play

down the part that he took commission in the offence. Secondly , as a company , a

partner in crime with the accused is not likely to value the oath and lastly an accomplice

usually gives evidence on the hope or promise to be pardoned or treated leniently by

the prosecution.

Corroboration of evidence of Sexual Offences

The evidence of the victim must be corroborated in these offences as a rule of judicial

practice. Historically courts were as a matter of practice required to warn themselves of

“the danger” of acting on the uncorroborated evidence of a complainant in a sexual

assault case. If no such warning was given, the conviction would normally be set aside

unless the appellate court was satisfied that there had been no failure of justice. In East

Africa the leading authority on this rule has been the decision of the East African

Court of Appeal in Chila and Another vs. R[1967] EA 722 . According to Glanville

Williams (1962) CLR 662, there is a sound reason for this requirement because sexual

cases are particularly subject to a danger of deliberately false charges resulting from
sexual neurosis, fantasy, jealousy, spite or simply a girl’s refusal to admit that she

consented to an act of which she is now ashamed. In Ngobi v R [1953] 20 EACA 56

Medical evidence was good corroborative evidence that he the accused had defiled the

girl. Lord Justice Salmon in R vs. Henry & Manning (1969) 53 Crim App Rep 150, 153

that: “in cases of alleged sexual offences it is really dangerous to convict on the evidence

of the woman or girl alone. This is dangerous because human experience has shown

that in these cases girls and women do sometimes tell an entirely false story which is

very easy to fabricate, but extremely difficult to refute. Such stories are fabricated for all

sorts of reasons, which I need not enumerate, and sometimes for no reason at all.”

However, in Basoga Patrick vs. Uganda Criminal Appeal No 42 of 2002. 12 (2003) 2 EA ,

the Court of Appeal held that the requirement for corroboration of evidence in sexual

offences is discriminatory against women is therefore unconstitutional. The court cited

with approval the finding in the Kenyan case of Mukungu vs. R 12 that: “the

requirement for corroboration in sexual offences affecting adult women and girls is

unconstitutional to the extent that the requirement is against them qua women or girls.”

However, If corroboration were abolished only for rape or other sexual offences any

defence agent would be making the point that this is the only crime that relies solely on

single witness testimony – this puts the

Identification
In all cases, the court requires corroboration, especially in the identification of a single

witness under difficult conditions for instances in the case of robbery at night. A

conviction based solely on visual identification evidence invariably causes a degree of

uneasiness because such evidence can give rise to miscarriages of justice. There is

always the possibility that a witness though honest may be mistaken. For this reason,

the courts have over the years evolved rules of practice to minimize the danger that

innocent people may be wrongly convicted. It will be observed that there is no

requirement in law or practice for corroboration. In applying Abdalla Bin Wendo v R,

there have sometimes been references to the need for corroboration where the only

evidence connecting the accused with the offence is the identification of a single

witness. Where the case against an 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 correctness of the identification or

identifications. The reason for the special caution is that there is a possibility that a

mistaken witness can be a convincing one and that even a number of such witnesses can

all be mistaken. The judge should then examine closely the circumstances in which the

identification came be made.

Evidence of a child of tender years

According to the law, the unsworn evidence of a child of tender years requires

corroboration so does judicial practice. In Oloo s/o Gai v R[1960] EA 87, the judge relied

on evidence of a 12 year old child to convict the appellant for murder. He did not warn

himself of the need to corroborate the child’s evidence. The court of Appeal held that it

was erroneous for the judge to rely on the uncorroborated evidence of the child, even if

it had been sworn evidence. This is more so if the child is a prosecution witness. The

rationale for this according to Glanville William is that children can easily be coached

therefore court must treat their evidence cautiously; children are impressionable and

susceptible; they are easily fooled, sometimes live in a make believe world; they are

ego-centric and only slowly learn the duty to tell the truth. A child’s power to

observation and reasoning is far below that of an adult therefore their evidence must be

approached with great care.

Inconsistencies and contradictions

The law on inconsistencies and discrepancies in a prosecution case is that grave

inconsistencies unless satisfactorily explained would usually result in the evidence of

the witness being rejected but minor inconsistencies would not have that effect unless

the trial judge thought they point at deliberate truthfulness. In Opoka v. Ug. 1991 HCB

9, once a prosecution witness has been shown to have told lies against the accused, the

evidence of such a witness must be treated with caution and should not to be believed

unless it is corroborated
Conclusion

The assessment of corroboration falls into two parts which are corroboration as

question of law and as question of fact. The terms and extent of the corroboration

required in each case provided by the statutes and except as provided no further

corroboration is necessary as matter of law. In practice there are some cases in which

because of some inherent risk of unreliability, the court must warn itself of the dangers

of acting on uncorroborated evidence

Legally speaking, the requirement of corroboration of circumstantial evidence in certain

situations does not mean that it is weak evidence; circumstantial evidence is as good as

direct evidence provided that all the requirement of the law is met. The purpose of the

law and practice in situation is to ensure that justice is done.

corroboration as a creature of statutes

“Corroboration is a creature of statutes” Discuss.

In most cases, the basic reason why courts and the law require corroboration is to

ensure reliability of the evidence that has been given. Because in certain situations,

courts feels cautious about using certain pieces of evidence for example where some of

the witnesses are interested parties like the accomplices and the co-accused. There are

some offences where it is rare to have a direct witness apart from the complainant for

instance in sexual offences, most times the only witness is the victim and at trial, it
becomes the complainant’s word against the accused’s. Thus court needs corroboration

to test the reliability of that evidence.

Section 133 of the evidence act provides that subject to any other law in force, no

particular number of witnesses shall in any case be required for the proof of any fact.

However, this very provision creates exceptions in the sense that it is subject to any

other law in force. The requirement for corroboration is an exception to the general rule

because it permits more witnesses.

This discussion will examine the meaning of corroboration, the situations where the

courts will require corroboration as a matter of law (statutes) and then discuss other

situations in which the court may require corroboration as a matter of judicial practice

or prudence.

The word corroboration originated from the Latin word “corrōborāre” which means to

strengthen or confirm.

It connotes support or confirmation, and indicates, in relation to the law of evidence,

that certain evidence is confirmed in its tenor and effect by other admissible and

independent evidence. In other word corroboration is confirmation or support of a

claim or evidence through independent, authoritative, and credible evidence.

Therefore, corroboration evidence is tending to confirm some fact of which other

evidence is given. To be capable of amounting to corroboration evidence must not only

be relevant and admissible but also credible independent. In Uganda vs. George Wilson

Simbwa (SC) Criminal Appeal No 37 of 1995 it was held that:

“Corroboration affects the accused by connecting or tending to connect him with the

crime. In other words it must be evidence which implicates him, which confirms in

some material particular not only the evidence that the crime has been committed but

also that the defendant committed it. The test applicable to determine the nature and

extent of corroboration is the same whether it falls