Law 332 Notes

Preliminary Issues
Circumstantial Evidence
Cases
Gofhamodimo v State
this case was unusual but not unique in that the body of
the missing person had never been found. The case for the prosecution rested solely on
circumstantial evidence. The burden of proof in such a case was no different from that in
which the prosecution relied on direct evidence. In the present case the prosecution had to
prove that the missing person was murdered and that the appellant murdered him. Those
were the facts to be found in this case, one depending on circumstantial evidence. The
facts to be proved had to be established as a matter of inference from the proved facts. But
a proved fact might itself be a proposition to be proved by inference from other facts.
Consequently the fact that no body had been found was not an insuperable bar to finding
a person guilty of murder
Other Cases
Karuma v R
considering whether evidence is admissible is whether it is relevant to the matters in issue. If it is, it is
admissible and the court is not concerned with how the evidence was obtained
DPP V Kilbourne
In DPP v Kilbourne the court held that evidence is relevant if it is logically probative or
disapprobative of some matter which requires proof
R V Bracewell
When there is more than one defendant in a case, the test of the relevance of an accused’s previous
convictions before their admission into evidence, must be strictly applied ‘for if irrelevant and
therefore inadmissible evidence is admitted, the other accused is likely to be seriously prejudiced, and
grave injustice may result’
Hui chi mingh v R

The defendant was charged with aiding and abetting a murder. A, carrying a length of water pipe and
accompanied by the defendant and four other youths, seized a man and A hit him with the pipe,
causing injuries from which he died. No witness saw the defendant hit the man, who was an innocent
victim, or play any particular part in the assault. A was charged with murder, with three of the group.
Two pleaded guilty to manslaughter and other was acquitted. The jury acquitted A of murder but
convicted him of manslaughter. The defendant was later indicted for murder with another youth
whose plea of guilty to manslaughter was accepted. The defendant refused an offer by the prosecution
to accept a plea of guilty to manslaughter. He was prosecuted for murder as a party to a joint
enterprise in which A had murdered the victim. The judge did not admit evidence of A’s acquittal of
murder and conviction of manslaughter only. The defendant was convicted of murder and sentenced
to death.
Held: The conviction or acquittal of the principle was both irrelevant and inadmissible. A conviction
for an aider and abettor was not dependent upon a conviction of the principal offender. In general, an
acquittal upon a different charge in an earlier trial is irrelevant to the issues before the court in the
second trial.
Lord Griffiths said: ‘Their Lordships are of the view that the more recent English cases established
that the rejection of an improperly obtained confession is not dependent only upon possible
unreliability but also upon the principle that a man cannot be compelled to incriminate himself and
upon the importance that attaches in a civilised society to proper behaviour by the police towards
those in their custody. All three of these factors have combined to produce the rule of law applicable
in Hong Kong as well as in England that a confession is not admissible in evidence unless the
prosecution establish that it was voluntary.’
R V Sang
The defendant appealed against an unsuccessful application to exclude evidence where it was claimed
there had been incitement by an agent provocateur.
Held: The appeal failed. There is no defence of entrapment in English law. All evidence which is
relevant is prima facie admissible in a criminal trial, although the trial judge has a discretion to
exclude evidence which, though admissible, has been obtained by unfair means from the accused after
commission of the offence. The rule allowing the exclusion of evidence was described by Lord
Diplock as ‘a discretion to exclude evidence which, though technically admissible, would probably
have a prejudicial influence on the minds of the jury, which would be out of proportion to its true
evidential value.
A court is concerned only with ‘the conduct of the trial’ and neither ‘initiates nor stifles a prosecution’
but ‘the fairness of a trial is not all one-sided; it requires that those who are undoubtedly guilty should
be convicted as well as that those about whose guilt there is any reasonable doubt should be
acquitted.”
Lord Diplock said that the rule against accepting evidence obtained under duress originated in the
principle expressed as ‘nemo debet prodere se ipsum’, ‘nemo tenetur se ipsum accusare’ or ‘nemo
tenetur prodere seipsum’- the right against self incrimination.
State v Bagwasi
The Accused who was charged with murder made a confession to a District Officer. The
admissibility of his confession was challenged at his trial on the ground that it had been
obtained after prolonged interrogation and after he had been beaten and threatened.
HELD: (i) That the allegation of beating by the Police was rejected.
(ii) But there had been lengthy interrogation and the State had not proved that
the interrogation did not amount to undue influence.
(iii) T he confession was accordingly inadmissible.
State v Zindaba
The Accused's extra-curial confession to a District Commissioner was put in issue on the
ground that it was not made voluntarily. The Accused had been taken from the gaol by the
Police, whilst awaiting trial, and was subjected to intensive interrogation.
Held:
( a) That it was unlawful for the Police to take the Accused from the gaol and to keep
him in their own custody pending intensive interrogation of him.
( b) That the State had not proved that when the Accused was taken before the District
Commissioner he was not under the influence of his previous experiences with the
Police and that he may not have felt obliged to make a statement to the District
Commissioner.
( c) That the District Commissioner's enquiries into the willingness of the Accused to
make a statement were inadequate to ensure that the statement was made
voluntarily.
( d) That it had not been proved that the Accused was made aware that he was
speaking to a Judicial Officer and that he was not obliged to say anything.
( e) That the confession should accordingly be rejected.
Kenosi v The State

Held: (1) no epithet, vulgarity or insult bore any reasonable relationship to killing the
deceased by stabbing.
(2) There was no reason for the appellant to have inflicted a lethal stab wound upon the
deceased. The simplest and safest course open to the appellant would have been to
embrace discretion as the better part of valour and to have turned and fled.
(3) On the facts of the matter, the court a quo should have admitted the statement.
However, there was ample evidence aliunde to convict the appellant, even if the witness in
question's evidence was totally disregarded.
Per curiam: Statements taken in contemplation of criminal litigation stand on the same
footing as those taken in civil litigation and are accordingly privileged. Privilege can be
waived and it is the duty of all parties to litigation to assist the court in the ascertainment of
the truth. This was particularly true of the prosecution in a criminal trial and where there is a
material discrepancy between a statement made by a witness and his evidence given in the
stand, there is a positive duty on the prosecutor to make the statement available to the
defence for cross examination. The decision of materiality has to be left to the prosecutor's
discretion.
Moloi v the State

(1) that there may well have been justification for the failure to have local spectators
in the light of the information which the police had but in any event where, as in the
present case, relevant evidence had been obtained, albeit in circumstances of technical
impropriety, it would offend against the public interest that such evidence should be
excluded on that ground. The evidence had accordingly been correctly admitted.
(2) Although there was no evidence of the expert holding any special qualification, it
appeared that he had been taught how to go about analysing weapons, spent bullets and
cartridges and he had had considerable experience in that field. In these circumstances the
attack on the expert's qualifications had to be rejected.
(3) The expert witness had given a detailed account of how he went about his examination
of the spent cartridges in question and although this could have been done in greater detail
than had in fact been done and that the most satisfactory way in which such evidence of
fact should be recorded would be by a verbatim transcript, the witness had set out
sufficiently the grounds for his findings that the court was able to test their correctness. The
appeal accordingly had to be refused.
A v Secretary of State of Home Dept

The House of Lords held that evidence obtained or likely obtained by torture committed abroad
by a foreign state’s agents is inadmissible in proceedings before the Special Immigration Appeals
Commission.
Lord Bingham said the following.
51. .... it would of course be within the power of a sovereign Parliament (in breach of international
law) to confer power on [a tribunal] to receive third party torture evidence. But the English
common law has regarded torture and its fruits with abhorrence for over 500 years, and the
abhorrence is now shared by over 140 countries which have acceded to the Torture Convention.
R v Horsefarry Road Magistrates Court

The defendant had been brought to the UK in a manner which was in breach of extradition law. He
had, in effect, been kidnapped by the authorities.
Held: The High Court may look at how an accused person was brought within the jurisdiction when
examining a question about that person’s detention. It is axiomatic ‘that a person charged with having
committed a criminal offence should receive a fair trial and that, if he cannot be tried fairly for that
offence, he should not be tried for it at all.’ Proceedings may be stayed in the exercise of the judge’s
discretion not only where a fair trial is impossible but also where it would be contrary to the public
interest in the integrity of the criminal justice system that a trial should take place. It was proper to
order a stay of a prosecution (Lord Oliver of Aylmerton dissenting).
Lord Lowry: ‘the court, in order to protect its own process from being degraded and misused, must
have the power to stay proceedings which have come before it and have only been made possible by
acts which offend the court’s conscience as being contrary to the rule of law. Those acts by providing
a morally unacceptable foundation for the exercise of jurisdiction over the suspect taint the proposed
trial and, if tolerated, will mean that the court’s process has been abused.’
Statues
S224 CPE- Inadmissibility of Irrelevant Evidence
S12 Evidence Civil proceedings- Same as s224 above
Burdens and the Standard of Proof
Section 10(2) Constitution- Rights of Accused
S384 Penal Code- Corrupt Practices
S150 CPE © and (d)- pleas
S10 Penal Code- Presumption of Sanity
Cases
Woolmington v DPP
"Throughout the web of the English Criminal Law one golden thread is always to be seen that it
is the duty of the prosecution to prove the prisoner's guilt subject to... the defence of insanity and
subject also to any statutory exception. If, at the end of and on the whole of the case, there is a
reasonable doubt, created by the evidence given by either the prosecution or the prisoner... the
prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter
what the charge or where the trial, the principle that the prosecution must prove the guilt of the
prisoner is part of the common law of England and no attempt to whittle it down can be
entertained."
Seane v State
The Magistrate had held that, once the Prosecutor had proved all the essential ingredients
of the offence charged of indecent assault contrary to Section 141(1) of the Penal Code,
the Appellant could only escape conviction if he could prove a valid defence.
Held: (i) that the Magistrate had misdirected himself as to the onus of proof;
(ii) that the Court of Appeal was not satisfied that, but for this misdirection, there
would inevitably have been a conviction, and the appeal, therefore,
succeeded.
It is for the Prosecution, after the whole of the evidence, both for the
Prosecution and the Defence has been called, to satisfy the Court of the guilt of an
accused person beyond a reasonable doubt.
It is not for the Accused to establish his innocence. It is for the Prosecution
to establish his guilt.
State v Kasanga
The Accused was charged with unlawful wounding. The Magistrate in convicting the
Accused stated that he was not convinced by the defence and he therefore convicted the
Accused. In giving judgment on a second count the Magistrate stated that nowhere in the
Accused's defence had he contradicted the evidence given by the two witnesses for the
prosecution.
Held:
That the Magistrate had seriously misdirected himself by placing the onus upon the
Accused and that the conviction should accordingly be set aside.
Joseph Constantine Steamship

Before a court, he who asserts something must must prove it: ‘Ei qui affirmat non ei qui negat
incumbit probatio’
Mancini v DPP
There are exceptional cases to the rule in Woolmington for: ‘offences where onus of proof is specially
dealt with by statute’. ‘There is no reason to repeat to the jury the warning as to reasonable doubt
again and again, provided that the direction is plainly given.’ The House considered the reasonable
man test in the defence of provocation to a charge of murder: ‘The test to be applied is that of the
effect of the provocation on a reasonable man . . so that an unusually excitable or pugnacious
individual is not entitled to rely on provocation which would not have led an ordinary person to act as
he did.’ As to the judge’s duty: ‘Although the appellant’s case at the trial was in substance that he had
been compelled to use his weapon in necessary self-defence – a defence which, if it had been accepted
by the jury, would have resulted in his complete acquittal – it was undoubtedly the duty of the judge,
in summing up to the jury, to deal adequately with any other view of the facts which might reasonably
arise out of the evidence given, and which would reduce the crime from murder to manslaughter. The
fact that a defending counsel does not stress an alternative case before the jury (which he may well
feel it difficult to do without prejudicing the main defence) does not relieve the judge from the duty of
directing the jury to consider the alternative, if there is material before the jury which would justify a
direction that they should consider it. . . . Whatever the line of defence adopted by counsel at the trial
of a prisoner, we are of opinion that it is for the judge to put such questions as appear to him properly
to arise upon the evidence, even although counsel may not have raised some question himself.’ and
‘The possibility of a verdict of manslaughter instead of murder only arises when the evidence given
before the jury is such as might satisfy them as the judges of fact that the elements were present which
would reduce the crime to manslaughter, or, at any rate, might induce a reasonable doubt whether this
was, or was not, the case
State v Bunga
On a charge of murder, evidence was led that the accused had consumed intoxicating
liquor prior to the killing.
Held - the onus of establishing that the accused was not by reason of the amount of liquor
he had consumed incapable of forming the intention to kill, rested on the State.\
Ramontsho v State
The Appellant was charged with two offences of bringing into the Republic of Botswana,
property stolen by them outside Botswana contrary to section 324 of the Penal Code 08:01.
The evidence disclosed the offence of receiving or being in possession of property stolen
outside Botswana. The Magistrate did not amend the charges.
Held this was an irregularity.
The appellant raised the defence of alibi and the magistrate held that there was an onus on
the appellant to establish his defence beyond a reasonable doubt.
Held: this was a misdirection.
Held further that the failure to amend the charge and the misdirection as to the onus of
proving an alibi were material irregularities.
The conviction and sentence were set aside and a retrial ordered.
Miller v Min of Pensions
In this case Lord Denning

tried to explain what
reasonable doubt would mean
he said „the degree is well
settled. It need not reach
certainty, but it must carry
a high degree of
probability. He continues
„proof beyond reasonable
doubt does not mean proof
beyond a shadow of doubt
the law would fail to
protect the community if it
admitted fanciful
probabilities or
possibilities to deflect the
course of justice. If the
evidence is so strong
against a man as to leave
only a remote possibility,
in his favour which can be
dismissed with a sentence
„of course it is possible but
not in the least probable‟,
then the case is proved
beyond reasonable doubt.‟
Hornal v Neuburger Products
The court was asked what was the standard of proof required to establish the tort of misrepresentation,
and it contrasted the different standards of proof applicable in civil and criminal cases.
Held: The standard was the balance of probabilities. It was for the plaintiff to establish that the
defendant had the intent required for the tort asserted. In practice more convincing evidence will be
required to establish fraud than any other types of allegation.
State v Oake
The Magistrate convicted appellant because he was satisfied that it was highly probable
that he had committed the offence charged.
Held:
That proof of a high degree of probability was not necessarily proof beyond
reasonable doubt.
The Magistrate convicted appellant because he was satisfied that it was highly probable
that he had committed the offence charged.
Held:
That proof of a high degree of probability was not necessarily proof beyond
reasonable doubt.
R v Summers
The House considered the direction on the standard of proof. Lord Goddard said: ‘It is far better,
instead of using the words ‘reasonable doubt’ and then trying to explain what is a reasonable doubt, to
direct a jury: ‘You must not convict unless you are satisfied by the evidence that the offence has been
committed’. The jury should be told that it is not for the prisoner to prove his innocence, but for the
prosecution to prove his guilt. If a jury is told that it is their duty to regard the evidence and see that it
satisfies them so that they can feel sure when they return a verdict of Guilty, that is much better than
using the expression ‘reasonable doubt’ and I hope in future that that will be done. I never use the
expression when summing up. I always tell a jury that, before they convict, they must feel sure and
must be satisfied that the prosecution have established the guilt of the prisoner.
R v Carr Briant
where accused has a legal burden it has to be discharged on the balance of probabilities
RE Dellows Wills Trust

Husband and wife, having made mutual wills each leaving their estate to the other, had been found
dead in their home from coal gas poisoning. The court asked what was required to displace the
presumption that the husband, the older of the two, had died first.
Held: The court described the standards of proof when serious allegations are made in civil courts: ‘It
seems to me that in civil cases it is not so much that a different standard of proof is required in
different circumstances varying according to the gravity of the issue, but, as Morris LJ says, the
gravity of the issue becomes part of the circumstances which the court has to take into consideration
in deciding whether or not the burden of proof has been discharged. The more serious the allegation
the more cogent is the evidence required to overcome the unlikelihood of what is alleged and thus to
prove it. This is perhaps a somewhat academic distinction and the practical result is stated by Denning
LJ: ‘The more serious the allegation the higher the degree of probability that is required: but it need
not, in a civil case, reach the very high standard required by the criminal law.’ In this case the issue is
whether or not the wife feloniously killed the husband. There can hardly be a graver issue than that,
and its gravity weighs very heavily against establishing that such a killing took place, even for the
purpose of deciding a civil issue.’
State v Mankurwane
f a man is attacked by another with an open knife, he is entitled to defend himself
by killing his assailant provided he does so within the limits of self-defence. If he exceeded
those limits moderately, he is guilty of manslaughter; if immoderately he is guilty of murder.
In this case since the accused disarmed his assailant, the question of self-defence did not
arise, as he was no longer defending himself.
State v Pinto
Held: (1) In regard to the defence of self-defence, the requirements for which are set out in
s 16 of the Penal Code (Cap 08:01), unless the means employed and the degree of force
used to avert the attack falls neatly within the four corners of the section, the defence is not
open to the accused. The 'partial excuse' rule of the common law, whereby the use of
excessive force in circumstances of self-defence helped to reduce a charge of murder to
culpable homicide, is not part of the law of Botswana. The 'partial excuse' rule itself has
never been based on logic but on expediency.
(2) When the State, which bears the onus of disproving the accused's defence (in casu
self-defence), fails to put into the scales evidence to disprove the defence on a point upon
which the accused has given false evidence, the State case remains unproved. The falsity
of the accused's evidence only supports the State case in a situation where the State has
led credible evidence on the point.
Moetedi v State
The appellant had been convicted by a magistrate of defilement of a girl under the age of
16 years contrary to the provisions of section 147(1) of the Penal Code and sentenced to
six years' imprisonment. He appealed against the conviction and sentence. In the court a
quo the appellant was unrepresented and denied intercourse with the complainant. On
appeal it was contended on his behalf that the magistrate had erred on the facts and had
committed an irregularity in not drawing to the appellant's attention at the trial the provisions
of section 147(3) regarding proof of the complainant's age before putting the appellant on
his defence.
Held: (1) that there was no duty on the part of the court to draw the appellant's attention to
the provisions of section 147(3): the duties of the court at the close of the prosecution case
were clearly stated in s. 180(3) and (4) of the Criminal Procedure and Evidence Act (Cap.
08:02) which made no mention thereof. Section 147(3) provided a limited statutory defence
for the accused in such a case and cast the evidential burden on the accused to show that
he had reasonable cause for believing the complainant to be 16 years of age or over and
that he did in fact so believe. No such defence had been raised in the present case and
could in event not have been raised as the appellant denied having had intercourse with
Botswana Law Reports 1964 to Date
the girl in question.
(2) That the magistrate had not tested the evidence of the complainant against other
prosecution witnesses' evidence or the defence before making a positive finding of fact on
the credibility of the complainant: in the light of the glaring inconsistencies or contradictions
in the testimonies of the prosecution witnesses no such positive finding could be made.
(3) The magistrate had erred further in holding against the accused his failure to
cross-examine prosecution witnesses on important issues: whilst this would be fair where
his defence was in the hands of counsel, where the accused was legally unrepresented
and unfamiliar with the niceties of evidential rules, it could not be held against him. State v.
Bogosi Cr. Trial No. 36 of 1994, unreported, applied.
(4) The magistrate had erred further in failing to warn himself of the dangers of convicting
on the uncorroborated evidence of the complainant, a victim of a sexual offence and had
failed to adopt the two-stage approach to the issue of corroboration, viz. first to decide
whether the complainant was a credible witness and only then apply the cautionary rule.
The magistrate
1997 BLR p286
had first found corroboration in the medical report on the complainant and had used that in
assessing the credibility of the complainant with the result that it became impossible to say
which evidence was corroborative and which was to be corroborated.
(5) In the light of the magistrate's application of the wrong test to the appellant's defence
and the other failings, the conviction accordingly had to be set aside. Lesolame v. The
State [1997] B.L.R. 60, C.A., applied.
Simane v State
(2) There is no doubt that the standard of proof in a criminal case is proof beyond
reasonable doubt. Judicial officers will be well-advised in dealing with the standard of proof
in criminal cases to use the hallowed phrase "beyond reasonable doubt" and not to attempt
any variations or adaptations of it. In the instant case, the totality of the record indicated
that the learned magistrate knew what was the required standard of proof in a criminal
case.
1) the rule that every accused person is presumed innocent until proved guilty
and that it is the duty of the prosecution to prove the guilt of the accused beyond
reasonable doubt is fundamental to the system of justice practised in this country. Indeed it
is entrenched in the Constitution. In the instant case, the passages complained about did
not put any burden on the appellant to prove his innocence. The records support the view
that the appellant did not seriously challenge the evidence of the complainant on the
indecent assault charge, neither did he challenge the evidence on the insulting language
charge.
State v Kenaope
1) evidence given on oath or affirmation carries more weight than evidence given
unsworn or unaffirmed and both methods of giving evidence are legitimate but a court will
attach more weight to sworn or affirmed testimony. To inform an accused that evidence
which he may give unsworn or unaffirmed will be viewed in an "unfavourable light" is wrong
and could be grossly misleading. State v. Keiseele alias Maropi, High Court (Review Case
No. 215 of 1986), unreported; State v. Moshotle [1985] B.L.R. 131 at p. 133; State v.
Banani 1979-1980 B.L.R. 240 (HC) and State v. Mogomotsi, High Court (Review Case No.
365 of 1985), unreported applied.
(2) The onus of proving an alibi never lies on an accused who puts up such a defence; the
trial magistrate misdirected himself when he placed the onus of proving the alibi on the
accused.
Competence and Compellability

S214-218 CPE- Competence of witnesses
S221- W hen unsworn or unaffirmed testimony admissible
S2-5 ECP- No person to be excluded from giving evidence, except on valid legal
objection
From and after the passing of this Act no person shall be excluded from being
sworn as a witness or from giving evidence in any court, except in respect of a legal
objection to his competency made, and appearing, to such court to be valid.
3. Court to decide on admissibility of evidence
It shall be competent for the court alone in which any case may be depending to
decide upon all questions concerning the competency of any witness or the admissibility
of any evidence.
4. Incompetency from insanity and intoxication
No person appearing, or proved, to be afflicted with idiocy, lunacy or insanity, or
labouring under imbecility of mind arising from intoxication or otherwise, whereby he is
deprived of the proper use of reason, shall in any case be competent to give evidence
while under the influence of any such malady or disability.
5. Children who understand the obligation of an oath competent
(1) No child shall in any case be excluded from being sworn as a witness, or be
deemed incompetent to give evidence in respect of age, provided such child
understands the nature and recognises the religious obligation of an oath.
Children to be examined on oath
(2) It shall not be competent to examine any child as a witness except upon oath;
and when any child cannot be sworn in consequence of want of sufficient understanding
it shall not in any case be competent to admit in evidence any account or statement
which such child may have given or made to any other person as the evidence of such
child on the subject-matter or such account of statement.
S7-CPA- dpp
Cases
State v Sebuo
(1) where a child of tender age was required to give evidence on oath, the court must
first take steps to satisfy itself that the child was capable of understanding the nature of an
oath and the religious obligation arising therefrom before permitting such child to give
sworn evidence. The child must have a realisation that taking the oath involved something
more than the duty to tell the truth in ordinary day to day life. But there was nothing on
record to show that any such steps were taken.
State v Ngwanawadijo
The accused was convicted of defilement of a girl aged 11.
Held:
( a) It was not clear that the Magistrate fully warned himself of the danger of accepting
the evidence of a child especially in a sexual case.
( b) The conviction would be set aside.
State v Basana
The accused was convicted by a Senior Magistrate who had ruled that a boy of nine years
of age was incompetent to give evidence.
Held:
That a boy of nine years should be allowed to give evidence after due warning of the
consequences of not telling the truth. The weight to be attached to that evidence being a
matter for the discretion of the Judicial Officer.
State v Simuula
Evidence had been given for the State on a charge of theft by the woman with whom the
Accused was living at the time of commission of the offence.
Held:
( 1) That the wife or husband of an accused person is a competent witness only in
limited circumstances.
( 2) A wife or husband includes persons married according to customary law.
( 3) A spouse remains incompetent to give evidence against the other even after
dissolution of the marriage in respect of matters which arose during the
subsistence of the marriage.
( 4) The Magistrate should have resolved the issue whether the woman was a
competent witness.
AG V Moagi
The trial magistrate convicted the accused on the uncorroborated evidence of an
accomplice without warning himself of the danger of so doing.
Held:
( 1) Although section 238 of the Criminal Procedure and Evidence Act (Cap. 08:02)
lays down in concise terms what the law is as regards accomplice evidence, it
does not exclude the English Practice; namely that judge or magistrate should
warn himself of the danger of convicting an accused person on the evidence of an
accomplice in the absence of corroborative evidence implicating the accused
person.
( 2) That where a magistrate or judge fails to warn himself, the conviction should, on
appeal, be quashed unless the proviso to section 321 of the Criminal Procedure
and Evidence Act (Cap. 08:02) is applied.
(i) Section 238 of the Criminal Procedure and Evidence Act (Cap. 08:02) does
not place an obligation upon a trial magistrate to caution himself of the danger
of convicting on the uncorroborated evidence of an accomplice. This is a rule
which grew up in countries where trials by jury were held.
(ii) It is not necessary for the state to satisfy the court that the accomplice is
wholly reliable in every respect - Rex v. Kristusamy 1945 AD 549.
Rumping v DPP
At common law there has never

been a separate principle or rule
that communicationsbetween a
husband and wife during marriage
are inadmissible in evidence on
grounds of public policy (so held
by LORD REID, LORD MORRIS
OF BORTH-Y-GEST, LORD
HODSON and LORD PEARCE,
VISCOUNT RADCLIFFE
dissenting); accordingly, except
where the spouse to whom the
communication is made is witness
and claims privilege from
disclosure under s. 1 (d) of the
Criminal Evidence Act, 1898 *,
evidence as to communications
between husband and wife during
marriage is admissible in criminal
proceedings
R V Algar
There have been no reported cases in Ireland on the competence and compellability of former
spouses in criminal cases. In England the Court of Criminal Appeal has held that a wife is
incompetent to testify against a man with whom she has had a voidable marriage, which was
later annulled, when the charges related to events which occurred before the
annulment.102 Presumably the same principle
101 [1982] 3 All E.R. 63.

102 R. v Algar, [1954] 1 Q.B. 279.
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would be applied where there had been a divorce. In a later case a husband was held not
competent to testify against a wife from whom he was judicially separated even as to matters
occurring after the judicial separation.103 Where a marriage is void, the rules making spouses
incompetent or non-compellable have been held to have no application
Corroboration
S239 CPE- Sufficiency of witnesses
S11 ECP-
Cases
DPP V Hester
The respondent was charged with indecent assault on the complainant, a girl of 12,
contrary to section 14 (1) of the Sexual Offences Act 1956. The complainant gave
evidence on oath. Her nine-year-old sister gave unsworn evidence for the
prosecution under section 38 of the Children and Young Persons Act 1933. n1 The
deputy chairman directed the jury that the evidence of an unsworn child could, in
law, amount to corroboration of evidence given on oath by another child who had
been sworn. The respondent was convicted. The Court of Appeal held that the
deputy chairman's direction had been wrong and quashed the conviction.
On appeal by the Director of Public Prosecutions:-
Held, that the evidence of an unsworn child admitted pursuant to section 38 could
amount to corroboration of evidence given on oath by another child provided that
the unsworn evidence was corroborated as required by the proviso (post, pp.
316F, G, 318E, 321A, B, 330D-F); that in the present case the complainant's
sworn evidence could corroborate that of her sister and the sister's evidence that
of the complainant provided that the jury after suitable adequate guidance and
warning were satisfied that each child was a truthful and satisfactory witness
(post, pp. 316G, 318F, 321D, E,326G - 327B, 331B, C); but that the appeal should
be dismissed on the ground that the conviction was unsafe and unsatisfactory
(post, pp. 317B, C, 319G - 320A, 322A, 327E - F,331D).
Reg. v. Campbell [1956] 2 Q.B. 432, C.C.A. approved.
Rex v. Manser (1934) 25 Cr.App.R. 18, C.C.A. doubted.
Observations on the nature of corroboration (post, pp. 315E, G, 321D, E, G -

322A, 325B - G, 330E, G), and the warning to be given to the jury (post, pp.
315G, H, 316F, 319F, 321B-C,327F, 329F).
Per curiam. (1) The unsworn evidence of a child cannot be corroborated by the
unsworn evidence of another child: "some other material evidence" means
evidence other than evidence
n1 Children and Young Persons Act 1933, s. 38: see post, p. 308C-F.
admitted by virtue of section 38 (post, pp. 311C, D, 318A,320F, G, 323A, 330B,

C).
(2) The proviso to section 38 (1) is not to be construed so as to prohibit a

conviction merely because uncorroborated evidence is given on behalf of the
prosecution by an unsworn child if apart from that evidence there is sufficient
evidence of the guilt of the accused (post, pp. 311A, B, 323A, B, 330A, B).
DPP V Kilbourne
The respondent was convicted of sexual offences against two groups of boys. The trial judge directed
the jury that they would be entitled to take into account the uncorroborated evidence of the second
group as supporting evidence given by the first group.
Held: The House considered what was the general character of relevant evidence. Lord Simon of
Glaisdale: ‘Evidence is relevant if it is logically probative or disprobative of some matter which
requires proof . . relevant (ie. logically probative or disprobative) evidence is evidence which makes
the matter which requires proof more or less probable.’
Lord Simon of Glaisdale pointed out that: ‘Circumstantial evidence . . works by cumulatively, in
geometrical progression, eliminating other possibilities.’
In order to be admissible, similar fact evidence had to go beyond simply demonstrating a criminal
tendency (or propensity). It had to show sufficient pattern of behaviour, underlying unity or nexus to
exclude coincidence and thus have probative force in proving the indicted allegation.
Lord Hailsham of St Marylebone LC said: ‘A considerable part of the time taken up in argument was
devoted to a consideration whether such evidence of similar incidents could be used against the
accused to establish his guilt at all, and we examined the authorities in some depth from Makin v
Attorney General for New South Wales [1894] AC 57, through Lord Sumner’s observations in
Thompson v The King [1918] AC 221, to Harris v Director of Public Prosecutions [1952] AC 694. I
do not myself feel that the point really arises in the present case. Counsel for the respondent was in
the end constrained to agree that all the evidence in this case was both admissible and relevant, and
that the Court of Appeal was right to draw attention [1972] 1 WLR 1365, 1370 to the ‘striking
features of the resemblance’ between the acts alleged to have been committed in one count and those
alleged to have been committed in the others and to say that this made it ‘more likely that John was
telling the truth when he said that the appellant had behaved in the same way to him.’ In my view this
was wholly correct. With the exception of one incident.
‘each accusation bears a resemblance to the other and shows not merely that [Kilbourne] was a
homosexual, which would not have been enough to make the evidence admissible, but that he was one
whose proclivities in that regard took a particular form’ [1972] 1 WLR 1365, 1369.
I also agree with the Court of Appeal in saying that the evidence of each child went to contradict any
possibility of innocent association. As such it was admissible as part of the prosecution case, and
since, by the time the judge came to sum up, innocent association was the foundation of the defence
put forward by the accused, the admissibility, relevance, and, indeed cogency of the evidence was
beyond question. The word ‘corroboration’ by itself means no more than evidence tending to confirm
other evidence. In my opinion, evidence which is (a) admissible and (b) relevant to the evidence
requiring corroboration, and, if believed, confirming it in the required particulars, is capable of being
corroboration of that evidence and, when believed, is in fact such corroboration.’
R v Baskerville
"There is no doubt that the uncorroborated evidence of an accomplice is admissible in
law…..but it has long been a rule of practice at common law for the Judge to warn the jury of
the danger of convicting a prisoner on the uncorroborated testimony of an accomplice or
accomplices, and in the discretion of the Judge should point out to the jury that it is within
their legal province to convict upon such unconfirmed evidence….this rule of practice has
become virtually equivalent to the rule of law….if after the proper caution by the Judge the
jury nevertheless convict the prisoner, this Court will not quash the conviction merely upon
the ground that accomplice's testimony was uncorroborated"
R v James
R v JamesIn James v
The Queen (1970) 55
Cr App Rep 299, a
rape case, the Privy
Council held that the
complainant’s
evidence of
sexualintercourse,
her lack of consent
and the identity of
the man concerned
all needed to be
corroborated and the
jury should be
warned that in all
these respects it was
dangerous to convict
upon uncorroborated
evidence. The
breadth of that
requirement gave rise
to practical
difficulties. The
defendant may admit
that he had had
intercourse with the
complainant; he may
not disputeanything
except lack of
consent. He may, as
the defendant did
inthe present case,
simply say that it was
not him and rely
upon the assertion of
an alibi without
challenging her
evidence in any other
respect. Is the judge
to tell the jury that
the defendant’s
acceptance or
admission of those
parts of the
complainant’s
evidence
corroborates her
evidence? Or should
the judge adapt his
summing-up to the
actual issues raised
by the evidence
givenat the trial?
Held: At common
law a judge was
required to warn a
jury that itwould be
dangerous to convict
on the
uncorroborated
evidence of a victim
of a sexual assault.
This common law
requirement was fully
enunciated by their
Lordships’ Board
herein. Further, the
failure of the trial
judge to tell the jury
that there was no
evidence capable of
amounting to
corroboration was a
serious misdirection.
R v Christie
The House considered the admissibility in evidence of a false statement made in the defendant’s
presence, but uncontradicted by him: ‘the rule of law undoubtedly is that a statement made in the
presence of an accused person, even on an occasion which should be expected reasonably to call for
some explanation or denial from him, is not evidence against him of the facts stated save in so far as
he accepts the statement, so as to make it his own. If he accepts the statement in part only, then to that
extent alone does it become his statement. He may accept the statement by word or conduct, action or
demeanour, and it is the function of the jury which tries the case to determine whether his words,
action, conduct or demeanour at the time when a statement was made amounts to an acceptance of it
in whole or in part . . .
R v Whitehead
Find
Lucky v State ca
A prosecution, witness in a rape case gave evidence that when the complainant an eleven
year old girl, reported the alleged rape, she was crying. The trial magistrate attached great
weight to the evidence of this witness as to the complainant's condition as "proving" the
complainant's credibility."
Held:
( a) It is trite law that evidence by another witness of a child's distress immediately
after a sexual offence may corroborate the child's evidence. However,
( b) the distress shown by the complainant must not be over emphasised. Depending
on the circumstances of each case, little weight, if any, ought to be given to that
evidence because it is all part and parcel of complaint. The girl making the
complaint might well be simulating distress.
Komane v State hc
The trial magistrate convicted the accused on the uncorroborated evidence of an
accomplice without warning himself of the danger of so doing.
Held:
( 1) Although section 238 of the Criminal Procedure and Evidence Act (Cap. 08:02)
lays down in concise terms what the law is as regards accomplice evidence, it
does not exclude the English Practice; namely that judge or magistrate should
warn himself of the danger of convicting an accused person on the evidence of an
accomplice in the absence of corroborative evidence implicating the accused
person.
( 2) That where a magistrate or judge fails to warn himself, the conviction should, on
appeal, be quashed unless the proviso to section 321 of the Criminal Procedure
and Evidence Act (Cap. 08:02) is applied.
(i) Section 238 of the Criminal Procedure and Evidence Act (Cap. 08:02) does
not place an obligation upon a trial magistrate to caution himself of the danger
of convicting on the uncorroborated evidence of an accomplice. This is a rule
which grew up in countries where trials by jury were held.
(ii) It is not necessary for the state to satisfy the court that the accomplice is
wholly reliable in every respect - Rex v. Kristusamy 1945 AD 549.
Monageng v State
The appellant was charged before a magistrate with the offence of common assault and
rape. Eighteen hours after the
1983 BLR p255
alleged rape, the complainant was examined by a medical doctor. He did not take a smear
of the vagina. At the trial the complainant and three other persons gave evidence for the
prosecution. The only direct evidence of intercourse was that of the complainant. The
medical report was tendered but was rejected by the magistrate when the appellant
indicated he would like to cross-examine the doctor but the doctor had then left the country.
The appellant made an unswom statement in which he denied raping the complainant or
having had sexual intercourse with her. The trial magistrate in his judgment stated that in a
case like the instant case, one would expect one of three things as corroborating evidence
of sexual intercourse: (a) medical evidence, (b) damaged or missing clothes, (c) admission
by the accused. The magistrate considered the evidence in some detail. He examined a
number of contradictions in the complainant's evidence and also discrepancies between
the complainant's evidence and the other prosecution witnesses. He accordingly convicted
the appellant on the charge of rape and sentenced him to 10 years' imprisonment but
acquitted him on the charge of assault. The appellant appealed to the High Court but his
appeal was dismissed. On further appeal to the Court of Appeal, the appellant contended
that (a) all the elements of crime of rape were not proved, (b) such evidence as might be
said to be referable to that offence was hearsay, (c) evidence such as existed lacked
corroboration, and (d) the failure of the prosecution to prove the medical evidence which
was available was prejudicial to his case.
Held, allowing the appeal, Dendy-Young dissenting: (1) there were certain types of
witnesses whose evidence must be regarded as suspect and must be approached with
particular caution, among such was a complainant in a sexual case. In. such a case there
was potentially a danger of false incrimination, and before a trial court could safely convict
on the testimony of such a witness it must satisfy itself that that danger had been excluded.
Corroboration of such evidence was only required if the witness requiring corroboration was
otherwise credible. If his evidence was not credible, the witness's testimony should be
rejected and the accused acquitted. The magistrate in the present case failed to appreciate
that believing the complainant was only the first stage of the enquiry and that there was a
second stage of a quite different character. A suspect witness case, in which a cautionary
rule must be applied, was different from an ordinary case in which the decision would turn
on the findings as to credibility, there must be something more than was required in the
ordinary case to satisfy the trier of fact that the danger of false incrimination had been
eliminated. This, the trial magistrate failed to do. S. v. Mupfudza 1982 (1) Z.L.R. 271 at pp.
273-75, S.C. applied.
Per Baron J.A. The magistrate exercised his discretion correctly in declining to admit the
medical report when tendered and equiring the doctor to give evidence. But he was wrong
if he assumed that the absence of the doctor automatically resulted in the exclusion of the
report.
Per Aguda J. A. No medical report was admitted in evidence, although one was tendered.
The trial magistrate erroneously failed to admit the medical report in evidence, purporting to
rely on section 222 of Cap. 08:02. The section permits him to admit the report, but gives
him a discretion to call the doctor who wrote it, if he considers that the justice of the case
demands this.
State v Chokwe
The Accused were convicted of murder. On appeal the evidence of the Accomplice was
attacked on the ground that she was untruthful on certain points and that there were
contradictions in her evidence.
Held:
( 1) It is a matter of common experience that an accomplice is often untruthful in
portions of his evidence, that he seeks to minimize his own role in the crime and
that it must be very rare indeed that it can be said that the evidence of an
accomplice is wholly satisfactory.
( 2) The Judge in the Court a quo fully appreciated and took these matters into
account, and was concerned with the necessity for corroboration
Bonyongo v State
A gang of men broke into a shop and stole a number of things from the shop. The
appellant was arrested and charged with shopbreaking and theft. The prosecution alleged
that the appellant was one of the men who stole from the shop. In support of its case, the
prosecution called three members of the gang. Each alleged that the appellant was one of
their number. The appellant was convicted. On appeal against conviction, the main issue
for the consideration of the court was whether as a matter of law one accomplice could
corroborate another.
Held, dismissing the appeal: evidence of one accomplice could be treated, in appropriate
circumstances, as corroboration of another accomplice. Provided the trier of fact
approached the corroborating accomplice's evidence with caution and provided that his
evidence could be safely relied on, it would be unrealistic blindly to disregard it for all
corroborative purposes. In the instant case the trial magistrate was entitled to regard the
evidence of the accomplices as being capable of corroborating each other.
State v Sechoni
The two Appellants had been convicted of murdering a baby. One of the witnesses for the
State was a child. The corroboration of the child's evidence was of a contradictory nature.
As there was no evidence against one of the two Accused at the end of the State case she
should have been discharged, but was not discharged. She was, however, implicated by
the evidence of her co-Accused.
Held:
( a) That the evidence of the child witness should have been corroborated by evidence
implicating the Accused.
( b) Quare whether the English law principle that an accused person who should have
been discharged at the close of the State case through lack of evidence can
subsequently be incriminated and convicted by the co-accused in her evidence, or
whether the differing principle of South African law, applies in Botswana?
The rule against hearsay

S225 CPE- Hearsay Evidence
S18 CPA- Examination of witnesses
Cases
R v Sharp
R v Sharp 85 Cr App R 212
‘Evidence contained in a confession is however an exception to the hearsay rule and is admissible.
The justification for the adoption of the exception was presumably that, provided the accused had not
been subjected to any improper pressure, it was so unlikely that he would confess to a crime he had
not committed that it was safe to rely upon the truth of what he said.
Subramanium v Public Prosecutor

Subramaniam was charged with possession of ammunition for the purpose of helping
a terrorist enemy, which would carry a sentence of death. He pleaded a defense of duress,
claiming that he had no choice as the terrorists had threatened to kill him if he did not follow
through with their requests. As part of the defense, he wanted to testify about these
conversations he had with the terrorists.
At trial these conversations were found to be hearsay and excluded. On appeal the decision was
overturned and the evidence was admitted on the basis that the conversation was not hearsay.
Evidence is only hearsay if the purpose of submitting the evidence is to prove the contents of the
statements were true - in this case, it did not matter that the statements were true, only that they
were said to Subramaniam.
The issue for the Court was whether the testimony would constitute hearsay. The Privy Council
held that the statements were not hearsay and allowed the appeal.
The Privy Council characterized the hearsay rule as follows:
Evidence of a statement made to a witness by a person who is not himself called as a
witness may or may not be hearsay. It is hearsay and inadmissible when the object of
the evidence is to establish the truth of what is contained in the statement. It is not
hearsay and is admissible when it is proposed to establish by the evidence, not the truth
of the statement, but the fact that it was made. The fact that the statement was made,
quite apart from its truth, is frequently relevant in considering the mental state and
conduct thereafter of the witness or of some other person in whose presence the
statement was made.
The Council found that since the statements were not used in order to prove one of the
issues of law, rather it was in order to prove whether the defendant was reasonable in his
actions, the hearsay rule should not apply. The truth of the statements made by the terrorists
were not significant, it is merely the fact that they said something that would create a
reasonable apprehension in the defendant.
Notably, this case does not deal with an exception to the hearsay rule. Rather, the case
deals with evidence which, despite being a statement made outside of the court room by
another person, is not hearsay at all
R v Miller
‘. . . statements made by non-witnesses are not always hearsay. Whether or not they
are hearsay depends upon the purpose for which they are tendered as evidence. If
they are tendered for their testimonial value (i.e., as evidence of the truth of what
they assert), they are hearsay and are excluded because their truth depends upon the
credit of the asserter which can only be tested by his appearance in the witness box.
If, on the other hand, they are tendered for their circumstantial value to prove
something other than the truth of what is asserted, then they are admissible if what
they are tendered to prove is relevant to the enquiry.’
Sate v Keleemetse
(1) even though the doctor who carried out the post mortem could not say which
wound had been fatal, since the deceased was an old woman, both wounds would have
been a trauma. Therefore, since the deceased's treatment in hospital was carried out in
good faith and with common knowledge and skill, the accused was deemed to have caused
the death of the deceased by inflicting bodily injury on her in consequence of which she
underwent surgical treatment which caused her death. The accused was therefore guilty of
manslaughter. State v. Reetsang 1979-80 B.L.R. 48 and R. v. Martin Dyos and Others
[1979] Crim.L.R. 660 cited.
(2) The general principle concerning dying declarations requires that such declarations
should be made in extremity when the party is at the point of death, and when every hope
of this world has gone, when every motive to falsehood is silenced, and the mind is induced
by the most powerful considerations to speak the truth. In the circumstances of this case
the statement made by the deceased to one of the witnesses could not be said to have
been made when the deceased was in extremis because when she was admitted to
hospital the following morning after the stabbing, her condition was described as being fair.
Nembhard v R
Laptop- requirements of dying declaration
R V Perry
Deceased does not have to expect to die immediately. An awareness of impending death is
enough.
R v Nzobi
In the case of R v Nzobi 1932 WLD 98, the dying person said in a written statement “Having the fear
of death upon me and no hope of recovery”, the court investigated the matter and found that the
dying person still had hope of recovery, and the statement became inadmissible in court.
Waugh v R
Laptop=INCOMPLETE DYING DECs
Teper v R
The defendant appealed against a conviction for having set fire to his shop. He complained of the
admission of a police constable’s evidence who said that he had heard an unknown woman’s voice
saying ‘Your place burning, and you going away from the fire’ This was several minutes after the fire
started and more than a furlong away.
Held: The statement was not part of the res gestae, and the exception allowing admission of such
hearsay evidence did not apply.
Before drawing an inference from circumstantial evidence: ‘it is necessary before drawing the
inference of the accused’s guilt from circumstantial evidence to be sure that there are no other co-
existing circumstances which would weaken or destroy the inference’.
the Privy Council held that an alibi of a shopowner on a charge of arson of

his own shop could not be contradicted by the evidence of a policeman that
he had heard someone in the crowdsay: “Your place burning and you going
away from the fire”. The doctrine of res gestaemakes statements admissible,
which either constitute a fact in issue or a relevant fact or are closely
associated in time and circumstance with a fact in issue. In this case it was
stated:“[The rule that words may be proved when theyform part of the res
gestae] appears to rest ultimately on two propositions, that human utterance
is both a fact and a means of communication, and that human action may be
so interwoven with words that the significance of the action cannot be
understood without the correlative words, and the dissociation of the words
from the action would impede the discovery of truth. But the judicial
application of these two propositions, which do not always combine
harmoniously, has never been precisely formulated in a general principle.”
Facts:
In the case of Teper v R [1952], the appellant was tried for intentionally setting
fire to a shop. The conviction was based on the following hearsay evidence. In
particular, the police officer gave a statement noting that he heard an
unidentified woman bystander shouted to someone who resembled the
appellant. Thus, the evidence gave by the police officer established the
appellant’s presence at the site of the fire.
Issue:
Whether the police officer’s statement was admissible hearsay evidence?
Held:
The House of Lords emphasized the unreliability of the hearsay evidence in the
present case. The hearsay evidence should only be allowed if it satisfies the
strictest test of close association with the event in time, place and circumstance.
In the present case, no one identified the appellant as a man who was fleeing the
scene of the fire. The trial judge was wrong in holding that the police officer’s
statement, which was based on an anonymous woman’s statement, was
admissible as hearsay evidence. Also, the House of Lords found that the hearsay
evidence was no delivered on oath and it could not be tested by cross-
examination. The absence of these safeguards raised questions as to the
credibility of the prosecution’s evidence.
Confessions
S228-S231 CPE
R V Becker
“an unequivocal acknowledgment of guilt, the equivalent of a plea of guilty before a court of
law.”
S v Moithoke
recorded the confession.
Held:
( a) Any statement by the Accused to a police officer after caution in terms of the
judges' rules should be recorded by the policeman who can invite the Accused to
confirm it in the presence of a Magistrate.
( b) Statements to Magistrates or justices which purport to be other than confirmations
should not be admitted in evidence
S V Mponda
1) in this jurisdiction, a confession not only must be proved to have been freely and
voluntarily made, but if it is made to a policeman, it must be confirmed and reduced to
writing in the presence of a magistrate or a justice who is not a member of the police force
before it becomes admissible. Consequently the statement made by the accused to the
police was inadmissible in evidence.
(2) When an accused person is unrepresented the presiding judicial officer has a duty to
assist him in presenting his defence by way of cross-examination. His duty is to ask the
accused person expressly whether he agrees with the material allegations made against
him by the State witnesses. In this way it should become clear which evidence is disputed.
S. v. Sebatana 1983 (1) S.A. 809 and S. v. Dipholo 1983 (4) S.A. 757 applied.
(3) A confession statement which is inadmissible by virtue of the provisions of subsection
227 of the Criminal Procedure and Evidence Act may be admissible under subsection (2)
of that section. And a judicial officer has an obligation in terms of the subsection in
considering the admission of such evidence to find out whether the overall effect of the
confession is favourable to the person who made it. A judicial officer must judge this
objectively and only if he considers on balance that it assists the accused then he may
allow a confession that would otherwise be inadmissible to become admissible in evidence
at the trial. The conduct of the trial magistrate in permitting the re-examination of the
accused by the public prosecutor upon inadmissible confession statement was irregular as
this was prejudicial to the accused. These should have been stopped and disallowed. R. v.
Treacy [1944] 2 All E.R. 229, C.C.A. and R. v. Rice and Others [1963]1 Q.B. 857, C.C.A.
applied.
S V Habane
The Accused was charged with Forgery, it being alleged that he had forged certain
payment vouchers. In reply to questions by the Police as to whether he had made out the
vouchers he replied in the affirmative. He further told the police that he had no authority to
prepare the vouchers.
Held:
This was a confession of Forgery which, having been made to a Police Officer, was
inadmissible.
S V Njuanje
The Accused was charged with Murder. He made a confession to a District Commissioner
but only after lengthy interrogation by the Police.
HELD: (1) The State did not discharge the onus of showing that the lengthy police
interrogation did not affect the free and voluntary nature of the confession.
( 2) The Confession was therefore not admissible in evidence.
S V Zindaba
The Accused's extra-curial confession to a District Commissioner was put in issue on the
ground that it was not made voluntarily. The Accused had been taken from the gaol by the
Police, whilst awaiting trial, and was subjected to intensive interrogation.
Held:
( a) That it was unlawful for the Police to take the Accused from the gaol and to keep
him in their own custody pending intensive interrogation of him.
( b) That the State had not proved that when the Accused was taken before the District
Commissioner he was not under the influence of his previous experiences with the
Police and that he may not have felt obliged to make a statement to the District
Commissioner.
( c) That the District Commissioner's enquiries into the willingness of the Accused to
make a statement were inadequate to ensure that the statement was made
voluntarily.
( d) That it had not been proved that the Accused was made aware that he was
speaking to a Judicial Officer and that he was not obliged to say anything.
( e) That the confession should accordingly be rejected.
S V Julius
Held: when an objection is raised by the defence as to the admissibility of a confession
statement. the issue should be tried as a separate issue in open court. The accused should
be given every right to establish his claim and, if the alleged confession is ruled
inadmissible, then it will no longer be mentioned in the case. However, if it is ruled
admissible, then it goes in as
1985 BLR p496
evidence and becomes part of the record for the purposes of final judgment. In other
words, there is no need, once admissibility has been established, to repeat the process.
Kwenamore v State
Held, dismissing the appeal, Dendy-Young J.A. dissenting: (1) The High Court judge was
right in altering the sentence to one of three years' imprisonment as it was incompetent,
under the provisions of section 304 of the Criminal Procedure and Evidence Act, read with
the Second Schedule to that Act, to suspend a portion of a sentence when a person was
convicted of rape.
(2) The statement made by the appellant when the charge was read over to him the second
time before a differently constituted court should not be read as a new plea, but merely as
a statement in amplification of his previous plea of not guilty.
Per Dendy-Young J.A. dissenting: There is no authority for requiring an accused to plead a
second time. But if the court which tries the case is not the same court that originally took
the plea, then in that case an accused must plead before the differently constituted court
in order that the latter may be seised of the matter.
(3) The trial magistrate was correct in convicting the appellant in that he believed the
complainant whose evidence hat she was dragged from a disco into a near-by bush and
there raped, was corroborated as to the injuries received by her by
1983 BLR p210
unchallenged medical evidence. The appellant's defence of amnesia due to drink was
clearly quite unworthy of belief and was correctly rejected by the trial magistrate.
Obiter: (1) Per Maisels P. and Van Winsen J.A. concurring: A court is entitled to take into
account every admission made by an accused person whether extra-judicially or in court,
not for the purpose of dispensing with proof that the crime charged has been committed but
as evidence tending to support the State case. Dictum of Ramsbottom A.J.P. in R. v.
Fouche 1958 (3) S.A. 767 at p. 779; R. v. Kumalo 1930 A.D. 193 at p. 202 applied. R. v.
Nzimba 1955 (1) S.A. 40 (T) and R. v. Hazeltine [1967] 2 All E.R. 671, C.C.A.
distinguished. Dictum of Lord Goddard C.J. in R. v. Sims [1946] 1 All E.R. 697 at p. 701,
C.C.A. considered. Dicta of Spenser-Wilkinson C.J. in Lameck v. R. [1961-63] A.L.R. Mal.
13 at p. 21; of Cram J. in Manuala v. R. [1961-63] A.L.R. Mal. 46 and in R. v. Malamula
[1961-63] A.L.R. Mal. 274 at p. 277; and of Cox C.J. in R. v. Muchuma 64 (1931-1948) 4
N.R.L.R. 64 at p. 65 criticised. State v. Morris Mogapaesi, High Court (Review Case No. 42
of 1982), unreported, overruled.
Per Dendy-Young J.A. dissenting: Where a plea of not guilty is entered by the trial court,
that puts every element of the offence in issue, and it would clearly be in derogation of the
plea to use anything by the accused in the course of making that plea, whether exculpatory
or not. If the prosecution desires the court to take cognisance of what an accused has
said, the statement must be placed before the court in the usual way.
(2) An accused person, when a warned and cautioned statement was made to him, might
elect not to make any reply or might refuse to reply, and in such event no inference
adverse to him could be drawn. R. v. Mashelele 1944 A.D. 571 at pp. 583-589 cited.
(3) The appellant's answer to a question in cross-examination that, to wit, "When I was
identified by the complainant as a rapist I did not deny or agree that I raped her" disposed
of the suggestion that the evidence of pointing out at the identification parade was
inadmissible as being hearsay. In any event, as found by the trial magistrate, the
complainant had ample opportunity of recognising the person who raped her and one could
be left in no doubt that the appellant's identity was clearly established.
Masina v State
(1) a confession of commission of an offence made to a police
officer was inadmissible in evidence at a trial unless it was confirmed and reduced in writing
in the presence of a magistrate or any justice who did not belong to the police force.
1983 BLR p239
(2) For confession statements to be admitted in evidence, they had to satisfy the cardinal
rule that they were given by the appellants as accused persons freely and voluntarily.
(3) The fact that the judge disbelieved the accused persons when they said in the witness
box that their statements to the judicial officer were dictated to them by the police did not
make those statements voluntary. The detail, accuracy and truth of the statements made
by the accused persons might, apart from helping to assess the credibility of the accused
generally, go to show that the accused were in their sound and sober senses when they
made those statements. But they did not change a statement which from other factors
would appear to be involuntary into a voluntary one. For the purpose of admissibility of
statements, the central issue was their voluntariness not their truth. Dictum of Ogilvie
Thompson J.A. in S. v. Radebe and Another 1968 (4) S.A. 410 at pp. 418-19 applied.
(4) A judicial officer was not entitled to assume that an accused person could speak freely
from merely telling the accused that he was a judicial officer and not a police officer. He
was obliged to tell the accused in express terms that he had nothing to fear and could
speak freely, and not leave that assurance to inference. A judicial officer should ask an
accused appearing before him whether he had made any previous statement and to
explain carefully to the accused that he had nothing to fear and could speak freely. In this
case the judicial officer failed to comply with these precautions. In the circumstances, it
was impossible to disconnect the two stages which admissions were made. Dicta of De
Villiers LP. in R. v. Ndoyana 1958 S.A. 662 at p. 563; and of Feetham J.A. in R. v. Gumede
and Another 1942 A.D. 398 at pp. 432 and 433 applied.
(5) Where the police passed an accused or suspected person to a judicial officer for his
confession to be taken only because the police themselves could not take it down the
burden was on the prosecution to prove beyond reasonable doubt that whatever might or
might not have influenced the making of the confession to the police, the repetition or
elaboration of which the judicial officer was called upon to record, ceased to operate on the
mind of the person who had already confessed under the, at least, doubtful circumstances.
In the instant case, the statements made before the judicial officer were as flawed as the
confessions to the police and ought, like them, to have been rejected. Dictum of Lord
Parker C.J. in R. v. Smith [1959] 2 Q.B. 35 at p. 419 C.A. applied
Similar Fact Evidence

S252 CPE- Privelages of accused when giving
evidence
Cases
Makin v AG
It is undoubtedly not competent for the prosecution to adduce evidence tending to show that the
accused has been guilty of criminal acts other than those covered by the indictment, for the
purpose of leading to the conclusion that the accused is a person likely from his criminal conduct
or character to have committed the offence for which he is being tried. On the other hand, the
mere fact that the evidence adduced tends to show the commission of other crimes does not
render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it
bears upon the question whether the acts alleged to constitute the crime charged in the
indictment were designed or accidental, or to rebut a defence which would otherwise be open to
the accused. The statement of these general principles is easy, but it is obvious that it may often
be very difficult to draw the line and to decide whether a particular piece of evidence is on the
one side or the other.[1]
Evidence of similar facts can only be admitted if it is both relevant and its probative value
outweighed any prejudicial effect.
DPP v Boardman
Tbook 115
RVP
Find
R V Smith
Click on the 1915 link also on textbook 114
R V Ball
Textbook 115
Noor Mohammed v R
Textbook 115
Thompson v R
The defendant was charged with gross indecency against boys. The defendant denied that he was the
offender. Evidence was admitted that on arrest the defendant was in possession of powder puffs and
that a search of his rooms uncovered indecent photographs of boys.
Held: The evidence was admissible on the issue of the identity of the offender.
Lord Sumner stated that while proof of guilt of a particular crime does not arise from proof of a
general disposition to commit that crime, evidence was admissible to prove guilty knowledge or intent
or a system or to rebut an appearance of innocence. However, the prosecution may not credit the
accused with fancy defences in order to rebut them at the outset with some damning piece of
prejudice. PG 114 OF TEXTBOOK
R v Straffen
The defendant had been arrested for murders of young girls, but after being found unfit to plead, he
was committed to Broadmoor. While he escaped another girl was murdered, and he was charged. The
prosecutor sought to bring in evidence of admissions made at Broadmoor and of the earlier
allegations.
Held: The Judges’ Rules were intended to control the admission of statements made to the police, not
statements alsewhere. The statement was admissible. The defendant had denied the murder but in
doing so had admitted the earlier murders. The general rules is not to admit such evidence. The
similar fact evidence could be described as evidence of pure propensity to commit crimes similar to
that with which he was charged.
State v Kgano
Appellant had been convicted of two offences of Administering drugs or other noxious thing
with intent to procure miscarriage. Although the particulars of the charges alleged the
offences of which the Accused was convicted, the statement of the offences was that she
supplied or procured something to procure miscarriage. There was evidence of three young
girls who stated that the Accused had injected something into their vaginas.
Held:
As there was a patent inconsistency or mistake between the statement of the
offences and the particulars, and as an Amendment of the charges would merely
have the effect of correcting a misdescription which would not cause prejudice, an
Amendment would be granted.
Held Further:
As there were strikingly similar features between the operations of the Accused as
described by the complainants, the evidence of the one Complainant was admissible
as corroboration of the evidence of the other.
Makhaya v State
The appellant, an acting headmaster of a school, was charged on eight counts of indecent
assault on nine young girls who were pupils at the school. According to the evidence led by
the prosecution the appellant was alleged to have been in the habit of calling each of the
complainants into his office. Once in the office, the appellant would ask the girls if they had
any boyfriends and whether they used any contraceptive devices, such as "the loop".
Thereafter the appellant would proceed to ask the girls to remove their panties and he
would then insert his fingers into their vaginas, the main intent being that he was checking
for the devices to ascertain whether they told him the truth about the use of contraceptive
devices. During these consultations with the young pupils, the appellant would either kiss or
attempt to kiss the girls. The students were threatened with expulsion if they reported these
incidents. However, reports were made to some two female teachers who confronted the
appellant. The two female teachers gave evidence to the effect that the complainants
whom they interviewed were distressed by what they alleged had taken place in the
headmaster's office. The evidence of each student varied slightly but the general story was
the same. The appellant when confronted denied having ever inserted his fingers into the
girls' vaginas but admitted only having touched them. The appellant was convicted on all
counts.
On appeal,
1985 BLR p148
Held, dismissing the appeal on conviction:
(1) that on the evidence the appellant did actually indecently assault the girls in question
and that he was rightly convicted.
(2) The evidence of the distressed condition of the girls in question, and the fact that since
different girls gave similar evidence of what had transpired when they had been called into
the appellant's office was enough to give rise to there being no ground for refusing to
recognise that they could and did corroborate each other. In addition, the evidence of the
appellant himself was sufficient to leave no doubt in the mind of the court below that he did
indecently assault them. D.P.P. v. Kilbourne (1973) 57 Cr.App.R. 381, H.L. and R. v. Sims
[1946] K.B. 531 at p. 540, C.C.A. applied.
Opinions and the evidence of experts

S222 CPE- Proof of certain facts by affidavit
S223 CPE- Reports by medical professionals
Cases
Hollington v Hewthorn
This rule says that evidence of a criminal conviction is not
admissible in subsequent civil proceedings to prove the facts on
which the conviction is founded, where those facts are an issue in
the civil proceedings.
AG V Malokwane
Defendant had been convicted in a criminal Court of theft of R16,900 from the
Government. In a civil action brought against him by the Government for recovery of the
sum stolen Defendant pleaded a denial that he had stolen the money. Government
replicated-in-bar that, on the principles of res judicata, Defendant was estopped from
denying that he stole the money. Defendant's appeal against his conviction in the criminal
Court was still pending.
Held:
( 1) Res judicata does not apply;
( 2) But the conviction in the criminal Court may be used as evidence in the civil case.
Desai v State
(1) if an expert's opinion is to carry any weight, it is essential
for him to state his reasons. A court would not ordinarily accept a bold statement of opinion
on the very point it has to decide. In the instant case all that the witness was required to
establish was whether or not the tablets in question were mandrax tablets and he explained
to the court a quo that they were mandrax tablets. Nameng v. R.1964-1967 B.L.R. 33 (HC)
and Nkgageng v. The State [1984] B.L.R. 230 distinguished.
State v Moiya
(1) section 222 was enacted for the benefit and convenience
of the prosecution and was designed to make admissible certain evidence which otherwise
would be inadmissible. If the prosecution was to make use of the section its requirements
must be strictly complied with, One of the basic requirements was that the report sought to
be put in evidence must purport to be signed by a person belonging to one of the named
categories. This was to make the court aware that it was dealing with a report compiled by
a qualified person. It was only if the author claimed to be a medical practitioner or officer,
intern or houseman that the rebuttable presumption created by the section that he was so
would come into force. In the absence of such a claim there could be no such presumption
and accordingly the report should have been excluded.
(2) Except as specifically provided opinion evidence did not fall within the ambit of section
222 of Cap. 08:02.
(3) To regard form BP 73 in the way counsel argued would be to elevate it to an
unnecessary and unacceptable position. Form BP 73 was not a statutory form: it was a
form devised by the police for their convenience and for the convenience of doctors. While
it would be prudent for doctors to provide the particulars required a failure to do so would
only result in a refusal to accept the form in evidence if the basic information required by
section 222 were to be omitted.
(4) On the evidence there was collaboration of the complainant's evidence that she was
raped.
Nkageng v State
Held: an affidavit in terms of section 221(4) of the Criminal Procedure and Evidence Act
must contain sufficient information to make its contents acceptable as evidence. In
identifying a substance such as dagga, the court would require to be satisfied that the
substance before it possessed certain unique characteristics which distinguished it from
other substances of similar appearance. Such findings must be contained in the affidavit. If
it was not there then the conclusion might be nothing more than an opinion which would not
be evidence and could not be accepted as such by a court.
Evidence of character
S232 CPE
S252 CPE
S13 ECPA
Cases
Jones V DPP
Tbook 99
Murdoch v Taylor
Tbook 107-109
Maxwell V DPP
if the accused or his witnesses give evidence of his own good character, for the purpose of
showing that it is unlikely that he committed the offence charged, he raises by way of
defence an issue as to his good character so that he may fairly be cross-examined to show
the contrary.
Tbook 100 and 102
State v Ramaribana
The Accused under cross-examination was asked whether he was the only man in the case
who was honest and he answered in the affirmative. The District Commissioner then
granted the Public Prosecutor the right, in terms of Section 245 of the C.P. and E
Proclamation, to attack the Accused's character on the ground that the Accused, having
replied as he did, had attacked the characters of the State witnesses:
Held: (1) That the Section did not apply.
( 2) That, even in cases in which the Section does apply, the practice is for the
Prosecution to warm the Accused out of Court that he is treading on
dangerous ground, before attacking his character.
( 3) That the irregularity must have made a serious impact upon District
Commissioner and the conviction should accordingly be set aside.
Privelage
Self incrimination
252 and 258 cpe
S19 ecpa
Privelages of Witnesses
253 and 254 cpe
8 ECPA
Legal Professional Privelage
S256 CPE
S10 ECPA
Cases
Blunt v Parklane
The court considered the rule against self incrimination. Lord Justice Goddard said: ‘The rule is that
no one is bound to answer any questions if the answer thereto would, in the opinion of the judge, have
a tendency to expose the defendant to any criminal charge, penalty or forfeiture which the judge
regards as reasonably likely to be incurred.’ The right to decline to answer must be plain in respect of
the answer to each question and must be considered by the judge each time it is raised. Sometimes a
question may not apparently raise any rational response of self-incrimination and the court must be
satisfied that the answer would or might tend to criminate.
Minister v Priest
The House was asked whether a conversation between a person seeking the services of a solicitor in
relation to the purchase of real property and the solicitor was privileged in circumstances where the
solicitor was being requested to lend the deposit payable under the transaction but was not prepared to
do so and declined to act.
Held: The conversation was not privileged on the ground that the defendant was not acting as a
solicitor at the relevant time because he was not undertaking the duty of a solicitor on the proposal
made to him but had made a proposal involving ‘a malicious scheme’ to keep the plaintiff out of the
transaction, with a view to making a profit from it himself: ‘The relationship of solicitor and client
being once established, it is not a necessary conclusion that whatever conversation ensued was
protected from disclosure. The conversation to secure this privilege must be such as, within a very
wide and generous ambit of interpretation, must be fairly referable to the relationship . .’ and ‘. . the
idea that it was possible to split the interview into two parts, treating the first as a proposal to lend
money personally and the second, contingent on this, to act as a solicitor is, to my mind, outside the
bounds of reasonable inference . . I am not prepared to assent to a rigid definition of what must be the
subject of discussion between a solicitor and his client in order to secure the protection of professional
privilege.’
Lord Atkin said: ‘If a person goes to a professional legal adviser for the purpose of seeing whether the
professional person will give him professional advice, communications made for the purpose of
indicating the advice required will be protected. And included in such communications will be those
made on occasions such as the present where the parties go to a solicitor for the purpose of seeing
whether he will either himself advance or procure some third person to advance a sum of money to
carry out the purchase of real property. Such business is professional business, and communications
made for its purpose appear to me to be covered by the protection, whether the solicitor eventually
accedes to the request or not.’
Waugh v British Railway Board

An internal report had been prepared by two of the Board’s officers two days after a collision
involving the death of a locomotive driver, whose widow brought the action and now sought its
production.
Held: The court considered litigation privilege. There is a conflict between the need to enable clients
to communicate freely with their legal advisers in relation to litigation and the need to ensure that all
relevant material is before the court. The report undoubtedly contained material collected by or on
behalf of the Board for the use of their solicitors in anticipated litigation, but because it could not be
shown that this was its dominant purpose the document did not attract litigation privilege.
Legal advice privilege has to be distinguished from litigation privilege. The need to make that
distinction was sometimes overlooked: ‘It is for the party refusing disclosure to establish his right to
refuse. It may well be that in some cases where that right has in the past been upheld the courts have
failed to keep clear the distinction between (a) communications between client and legal adviser, and
(b) communications between the client and third parties, made (as the Law Reform Committee put it)
‘for the purpose of obtaining information to be submitted to the client’s professional legal advisers for
the purpose of obtaining advice upon pending or contemplated litigation.”
A ‘dominant purpose’ test was the best method of resolving the competing principles that on the one
hand there should be full disclosure of relevant material in litigation, and on the other, there must be
effective maintenance of legal professional privilege.
A Swedain v Zim Navigation

There is an established rule of practice in this country that a document will be privileged if
litigation were pending or thought likely and if a purpose for which the document was made
F was submission to a legal adviser as material upon which to enable him to advise. If it is a
definite purpose it suffices whether there are other purposes or not - it need not be the sole or
dominant purpose.
Alfred Crompton
Legal advice given by employed lawyers to their employers, rather than lawyers in independent
practice may be privileged before a tax tribunal.
Lord Denning MR justified the result primarily on the ground that, although the communications of a
corporation with an in-house legal adviser were internal to the corporation, nevertheless the adviser
was performing the same function as the lawyer in independent practice.
R v Cox and Railton

(Court for Crown Cases Reserved) The defendants were charged with conspiracy to defraud a
judgment creditor of the fruits of a judgment by dishonestly backdating a dissolution of their
partnership to a date prior to a bill of sale given by Railton to Cox in respect of his assets. The trial
judge permitted the prosecution to call a solicitor to testify that the defendants had sought his advice
as to whether anything could be done to prevent property being seized in execution by the judgment
creditor and that, when he had told them that Railton could not give a bill of sale to Cox because of
the partnership between them, nether Cox nor Railton had made any mention of the partnership
having been dissolved; on the contrary, Railton asked whether anyone knew of the partnership, to
which the solicitor replied that the only people who knew of it were Cox and Railton and himself and
his clerks.
Held: A client must be free to consult his legal advisers without fear of his communications being
revealed. However: ‘The question, therefore is, whether, if a client applies to a legal adviser for
advice intended to facilitate or to guide the client in the commission of a crime or fraud, the legal
adviser being ignorant of the purpose for which his advice is wanted, the communication between the
two is privileged? We expressed our opinion at the end of the argument that no such privilege existed.
If it did, the result would be that a man intending to commit treason or murder might safely take legal
advice for the purpose of enabling himself to do so with impunity, and that the solicitor to whom the
application was made would not be at liberty to give information against his client for the purpose of
frustrating his criminal purpose. Consequences so monstrous reduce to an absurdity any principle or
rule in which they are involved. Upon the fullest examination of the authorities we believe that they
are not warranted by any principle or rule of the law of England, but it must be admitted that the law
upon the subject has never been so distinctly and fully stated as to shew clearly that these
consequences do not follow from principles which do form part of the law, and which it is of the
highest importance to maintain in their integrity.’
Legal privilege does not attach where the advice sought was being obtained for the purpose of
committing a crime. ‘Communications made to a solicitor by his client before the commission of a
crime for the purpose of being guided or helped in the commission of it, are not privileged from
disclosure.’
Referring to the rule on Greenough: ‘This rule has been accepted and acted upon ever since, and we
fully recognise its authority, but we think that the present case does not fall either under the reason on
which it rests, or within the terms in which it is expressed. The reason on which the rule is said to rest
cannot include the case of communications, criminal in themselves, or intended to further any
criminal purpose, for the protection of such communications cannot possibly be otherwise than
injurious to the interests of justice and to those of the administration of justice. Nor do such
communications fall within the terms of the rule. A communication in furtherance of a criminal
purpose does not ‘come into the ordinary scope of professional employment’.’
Stephen J said, as regards the circumstances in which it can be assumed that the protection does not
exist: ‘We have one other matter to notice. We were greatly pressed with the argument that, speaking
practically, the admission of any such exception to the privilege of legal advisers as that it is not to
extend to communications made in furtherance of any criminal or fraudulent purpose would greatly
diminish the value of that privilege. The privilege must, it was argued, be violated in order to
ascertain whether it exists. The secret must be told in order to see whether it ought to be kept. We
were earnestly pressed to lay down some rule as to the manner in which this consequence should be
avoided. The only thing which we feel authorized to say upon this matter is, that in each particular
case the Court must determine upon the facts actually given in evidence or proposed to be given in
evidence, whether it seems probable that the accused person may have consulted his legal adviser, not
after the commission of the crime for the legitimate purpose of being defended, but before the
commission of the crime for the purpose of being guided or helped in committing it. We are far from
saying that the question whether the advice was take before or after the offence will always be
decisive as to the admissibility of such evidence. Courts must in every instance judge for themselves
on the special facts of each particular case, just as they must judge whether a witness deserves to be
examined on the supposition that he is hostile, or whether a dying declaration was made in the
immediate prospect of death. In this particular case the fact that there had been a partnership (which
was proved on the trial of the interpleader issue), the assertion that it had been dissolved, the fact that
directly after the verdict a solicitor was consulted, and that the execution creditor was met by a bill of
sale which purported to have been made by the defendant to the man who had been and was said to
have ceased to be his partner, made it probable that the visit to the solicitor really was intended for the
purpose for which, after he had given his evidence, it turned out to have been intended. If the
interview had been for an innocent purpose, the evidence given would have done the defendants good
instead of harm. Of course the power in question ought to be used with the greatest care not to hamper
prisoners in making their defence, and not to enable unscrupulous persons to acquire knowledge to
which they have no right, and every precaution should be taken against compelling unnecessary
disclosures.’
Public Policy Privelage
Cases
Duncan v Cammel
Relatives of deceased seamen claimed damages against the defendants after their husbands were lost a
sea in a submarine built by the defendants. The Ministry of Defence instructed the defendants not to
disclose any details of the boat’s construction, on the ground that it would be contrary to the public
interest to produce them.
Held: The Minister’s declaration that national security required non-disclosure was sufficient and
binding on the courts. If the Crown made a claim to Crown privilege in proper form, the Courts were
precluded from investigating further: ‘This question is of high constitutional importance, for it
involves a claim by the Executive to restrict the material which might otherwise be available for the
tribunal which is trying the case.’
Viscount Simon LC said: ‘documents otherwise relevant and liable to production must not be
produced if the public interest requires that they should be withheld’ and ‘In a word, it is not enough
that the minister of the department does not want to have the documents produced. The minister, in
deciding whether it is his duty to object, should bear these considerations in mind, for he ought not to
take the responsibility of withholding production except in cases where the public interest would
otherwise be damnified, for example, where disclosure would be injurious to national defence, or to
good diplomatic relations, or where the practice of keeping a class of documents secret is necessary
for the proper functioning of the public service. When these conditions are satisfied and the minister
feels it is his duty to deny access to material which would otherwise be available, there is no question
but that the public interest must be preferred to any private consideration.’
Conway v Rimmer
The plaintiff probationary police constable had been investigated, prosecuted and cleared of an
allegation of theft. He now claimed damages for malicious prosecution, and in the course of the
action, sought disclosure of five documents, but these were withheld on the ground of Crown
privilege. The House considered that claim as to civil actions of documents and information in the
hands of the police.
Held: The courts will give great weight to preserving the confidentiality of tax documents in the hands
of the Revenue.
Lord Reid said: ‘The police are carrying on an unending war with criminals many of whom are today
highly intelligent. So it is essential that there should be no disclosure of anything which might give
any useful information to those who organise criminal activities.’ However: ‘I would therefore
propose that the House ought now to decide that courts have and are entitled to exercise a power and
duty to hold a balance between the public interest, as expressed by a Minister, to withhold certain
documents or other evidence, and the public interest in ensuring the proper administration of justice.
That does not mean that a court would reject a Minister’s view: full weight must be given to it in
every case, and if the Minister’s reasons are of a character which judicial experience is not competent
to weigh, then the Minister’s view must prevail. But experience has shown that reasons given for
withholding whole classes of documents are often not of that character. For example a court is
perfectly well able to assess the likelihood that, if the writer of a certain class of document knew that
there was a chance that his report might be produced in legal proceedings, he would make a less full
and candid report than he would otherwise have done. I do not doubt that there are certain classes of
documents which ought not to be disclosed whatever their content may be. Virtually everyone agrees
that Cabinet minutes and the like ought not to be disclosed until such time as they are only of
historical interest. But I do not think that many people would give as the reason that premature
disclosure would prevent candour in the Cabinet. To my mind the most important reason is that such
disclosure would create or fan ill-informed or captious public or political criticism.’
As to the different positions of the law in Scotland and England, Lord Reid said: ‘But here we are
dealing purely with public policy – with the proper relation between the powers of the executive and
the powers of the courts – and I can see no rational justification for the law on this matter being
different in the two countries.’
D v NSPCC
Immunity from disclosure of their identity should be given to those who gave information about
neglect or ill treatment of children to a local authority or the NSPCC similar to that which the law
allowed to police informers.
Lord Simon of Glaisdale said: ‘I cannot leave this particular class of relevant evidence withheld from
the court without noting, in view of an argument for the respondent, that the rule can operate to the
advantage of the untruthful or malicious or revengeful or self-interested or even demented police
informant as much as of one who brings information from a high-minded sense of civic duty.
Experience seems to have shown that though the resulting immunity from disclosure can be abused
the balance of public advantage lies in generally respecting it.’
Lord Diplock explained the rationale of the rule in Marks v Beyfus as being plain: if the identity of
informers were too readily liable to be disclosed in a court of law the sources of information would
dry up and the police would be hindered in their duty of preventing and detecting crime.
Lord Hailsham of St. Marylebone said: ‘The categories of public interest are not closed, and must
alter from time to time whether by restriction or extension as social conditions and social legislation
develop’.
Campbell v Tameside
Tbook pg 89

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Preliminary Issues

Hui chi mingh v R

Kenosi v The State

Moloi v the State

A v Secretary of State of Home Dept

R v Horsefarry Road Magistrates Court

Joseph Constantine Steamship

Miller v Min of Pensions

In this case Lord Denning

RE Dellows Wills Trust

Competence and Compellability

At common law there has never

101 [1982] 3 All E.R. 63.

THIS IS AN ORIGINAL PAGE-

On appeal by the Director of Public Prosecutions:-

Reg. v. Campbell [1956] 2 Q.B. 432, C.C.A. approved.

Rex v. Manser (1934) 25 Cr.App.R. 18, C.C.A. doubted.

Observations on the nature of corroboration (post, pp. 315E, G, 321D, E, G -

admitted by virtue of section 38 (post, pp. 311C, D, 318A,320F, G, 323A, 330B,

(2) The proviso to section 38 (1) is not to be construed so as to prohibit a

The rule against hearsay

Subramanium v Public Prosecutor

Laptop- requirements of dying declaration

Laptop=INCOMPLETE DYING DECs

the Privy Council held that an alibi of a shopowner on a charge of arson of

Whether the police officer’s statement was admissible hearsay evidence?

Similar Fact Evidence

Opinions and the evidence of experts

Tbook 100 and 102

Waugh v British Railway Board

A Swedain v Zim Navigation

R v Cox and Railton

Public Policy Privelage

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