LAW232 EVIDENCE Case Notes Set 1

(Topics 1-3)

1. Introduction & General Discourse

Karuma v R.

Kuruma was a Kenyan African convicted during the Mau Mau Emergency of
possessing two rounds of ammunition, and those rounds were the evidence obtained
by a search carried out by two non-European police officers illegally in that they were
of less than the prescribed rank. There were strong reasons for doubting the evidence
of possession. A pocketknife said to be found during the search together with the
ammunition was not presented in evidence. The police claimed that they had taken the
unusual and dangerous course of returning it to the accused while he was in custody;
the accused denied that he ever had either the knife or the ammunition. Three persons
other than the constables were said to have witnessed the search, but they were not
called as witnesses. The magistrate, in convicting, ignored the unanimous advice of
the three assessors. The accused, whose character was good, knew that the road on
which he was travelling had on it a roadblock at which he would be liable to be
stopped and searched, and he had an alternative route to his destination. The case was
thus an unsatisfactory one in which to assert a doctrine of admissibility based on
reliability. Indeed the Board called the attention of the Secretary of State to some of
these facts.49 Further, it seems that the reason for the Kenyan Emergency Regulations,
reg.29, requiring that searches should only be carried out by police officers of or
above the rank of assistant inspector, must have been that only such senior officers
were sufficiently reliable to undertake searches properly and to be trusted not to plant
evidence.

T he English common law established, , held that judges had no discretion to exclude
evidence whose admission would bring the administration of justice into disrepute.
Then the facts of Kuruma v. R. cast great doubt on the doctrine for which it is
authority. The basis of the doctrine is that the court should not be deprived of reliable
evidence; that whether or not it is illegally obtained, real evidence, unlike men, cannot
lie. But proof that the accused was connected with the real evidence supposedly
obtained depends on the testimony, sometimes questionable, of the men who obtained
it. In considering whether evidence is admissible, the test is whether it is relevant to
the matters in issue, and, if it is relevant, the court is not concerned with the method
by which it was obtained or with the question whether that method was tortious but
excusable; this principle, however, does not qualify the rule that a confession can only
be received in evidence if it is voluntary. There is no difference in principle for this
purpose between a criminal case and a civil case.

Per Curiam: it may well be that where an indictment alleges that an offence was
committed at a particular place and no issue is raised thereon at the trial the court may
take judicial notice that the place is where the indictment says that it is or may apply
the maxim omnia praesumuntur rite esse acta (All acts are presumed to have been
done rightly and regularly.)

Lord Goddard, in giving the advice of the Privy Council, extracted from various
authorities the modern rule that improperly obtained evidence is admissible. He
continued: "No doubt in a criminal case the judge always has a discretion to disallow
evidence if the strict rules of admissibility would operate unfairly against an
accused.... If, for instance... some piece of evidence... had been obtained from a
defendant by a trick, no doubt the judge might properly rule it out." The English
discretionary rule of exclusion- in Kuruma v. R. the discretion was said to be available
if the strict rules of admissibility would operate unfairly against an accused; an
example was given of a trick. In Callis v. Gunn. Lord Parker C.J. said evidence
would be excluded "if there was any suggestion of it having been obtained
oppressively, by false representations, by a trick, by threats, by bribes, anything of
that sort".

DPP v Kilbourne

LORD HAILSHAM:
“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.”
‘Evidence is admissible if it may be lawfully adduced at a trial’- evidence must be
relevant before it can be used in court. If it is relevant and does not infringe any
exclusionary rule, it will be admissible.
R v Bracewell

This decision was similar to that of the Privy Council in Lowery v The Queen [1974]
AC 85 on appeal from a decision of the Supreme Court of Victoria. A young girl was
sadistically murdered. Lowery and King, the two accused, were present when she was
murdered. The crime was committed by one or the other, or by both acting in concert.
Each accused adduced evidence of the unlikelihood that he could have committed the
murder. Lowery emphasised his good character and said that because of fear of King
he had been unable to prevent the murder. King said that he had been under the
influence of drugs and had been powerless to prevent Lowery from killing the girl.
Despite Lowery's objection, counsel for King was allowed to call the evidence of a
psychologist as to their respective personalities and, on that evidence, to invite the
jury to conclude that it was less probable that King was the killer. They were both
convicted and Lowery unsuccessfully appealed to the Supreme Court of Victoria on
the ground, inter alia, that the psychologist's evidence ought not to have been
admitted.

The Privy Council held that the evidence of the psychologist was relevant in support
of King's case to show that his version of the facts was more probable than that put
forward by the appellant. Accordingly the Privy Council dismissed the appeal.

In R v Bracewell one co-accused was not permitted to cross-examine a prosecution

witness about the other’s violence, but was then allowed to cross-examine the co-
accused about it, once the co-accused had made the overt comparison between the
characters of the two co-accused. This view was given judicial assent in the 2003 case
of R v Sullivan. Thus, in Bracewell evidence that the accused was a cool professional
burglar was regarded as evidence of good character when the issue was whether he, or
an inexperienced accomplice, was more likely to have panicked and killed the victim
of a burglary (the accused had testified to the inexperience as a burglar of his co-
accused so as to show that he was more likely of the two to have panicked.)

R V Edward Peter Randall

Where two defendants were jointly charged with a crime and each blamed the other
for its commission, one accused could rely on the more significant criminal
propensity of the other in order to prove his innocence. Appeal by the Crown from a
decision of the Court of Appeal holding that where two accused were jointly charged
with a crime and each blamed the other for its commission, one accused could rely on
the more significant criminal propensity of the other in order to prove his innocence.
The court therefore directed that one co-accused (R), who had been convicted of
manslaughter, be retried. R and the other co-accused (G) had been tried together for
the murder of the deceased. Each blamed the other for the infliction of the fatal
injuries and each accused gave evidence against the other. G had a bad record
including convictions for theft and going equipped for theft and had nine separate
convictions for burglary. G had been cross-examined on the basis of his propensity to
use violence and had admitted threatening a witness in another violent robbery case in
which he, as part of a gang, had been one of the perpetrators. At the time of the
deceased's death G had been on the run from the police for this robbery. In his
summing up the judge directed the jury that the bad character of G had only been
relevant to his credibility and not to the likelihood of him having attacked the
deceased. The jury found R guilty of manslaughter and G was acquitted. In the Court
of Appeal R argued that the evidence of G's bad character had been relevant to the
issue as to whether G or R was more likely to have inflicted serious violence on the
deceased. R submitted that the judge had misdirected the jury in a material respect.
The Court of Appeal relied on the decision of Lowery v The Queen [1974] AC 85 and
R V Bracewell (1978) 68 Cr App R 44 and upheld the decision made on behalf of R
and held that in the particular circumstances of the case where there had been a cut
throat defence, the antecedent history of G had been relevant because of the
imbalance between that history and the antecedent history of R.
HELD: A judge ruling on the point of admissibility involving an issue of relevance
had to decide whether the evidence was capable of increasing or diminishing the
probability of the existence of a fact in issue. The question of relevance was to be
determined by common sense and experience (Keene, The Modern Law of Evidence
5th ed. (2000)). In appropriate cases a judge had to direct a jury that the good
character of an accused was relevant not only to credibility but also to the likelihood
that he would commit an offence (R v Vye (1993) 1 WLR 471). There was no reason
why the bad character, in the form of a propensity to violence, of a co-accused was
always irrelevant. The character of a co-accused depending on the evidence might be
logically relevant. The Court of Appeal had come to the correct conclusion and had
applied the law correctly. Appeal dismissed.

Hui-Ching Ming v R

Four people, including the defendant, attacked the wrong victim. One of them (not the
defendant) struck the fatal blow. The defendant went with A, who carried a length of
pipe, they had seized a man whom A hit with the pipe, causing injuries from which
the victim had died. A and three others were charged with murder.
Two pleaded gui lty to manslaughter, one was acquitted, and A was acquitted of
murder but convicted of manslaughter.

Thereafter the defendant was charged with manslaughter and eventually indicted for
murder with another youth who pleaded guilty to manslaughter.
The defendant rejected the prosecution's offer to accept such a plea from him. At his
trial the judge refused to admit evidence of A's conviction only of manslaughter.

The judge gave the jury directions on joint enterprise but did not direct them that they
could only convict the defendant of murder if, when the unlawful agreement was
made, A had contemplated the possibility of at least grievous bodily harm being
caused. He appealed.

Held- The judge had not misdirected the jury as to joint enterprise since a secondary
party could be guilty merely by participating in a joint venture with foresight that the
further offence might be committed by the principal as part of the joint enterprise, and
in such cases prior contemplation of that offence by the principal was not a necessary
additional ingredient.
In Chan Wing-Siu v The Queen [1985] AC 168 'authorisation' was used to explain the
meaning to contemplation and to show that for the accessory to be convicted foresight
alone was insufficient and he had to have foreseen the offence which might be
committed by the principle as a possible incident of the unlawful joint enterprise and
have participated therein with that foresight.

The judge had accurately conveyed that idea to the jury.

Despite the anomaly, which had resulted, the defendant's prosecution for murder not
manslaughter was not an abuse of process and he had properly been convicted.
The appeal should be dismissed.

Per Curiam: An abuse of proceedings was defined by the Privy Council in as

“something so unfair and wrong that the court could not allow a prosecutor to proceed
with what is in all other respects a regular proceedings‟.

R v Sang

In criminal law, entrapment is conduct by a law enforcement agent inducing a

person to commit an offense that the person would otherwise have been unlikely to
commit. Entrapment is a possible defense against criminal liability. However, there is
no entrapment where a person is ready and willing to break the law and the
government agents merely provide what appears to be a favorable opportunity for the
person to commit the crime. Sang held that English law did not recognise the defence
of entrapment, and moreover, that there was no judicial discretion to exclude evidence
simply because it was obtained by an improper or unfair means, or by the activities of
an agent provocateur. The foundation of the judicial discretion to admit or exclude
evidence was not the importance of upholding propriety during a criminal
investigation or disciplining police, but rather the overriding judicial duty to ensure
the fair trial of the accused.
 The common law as laid out herein provides for the court to
exclude any otherwise admissible evidence where the probative
value of the evidence (i.e., what it proves) is outweighed by the
prejudice to the defendant in putting the evidence forward. In R v
S a n g [ 1 9 8 0 ] A C 4 0 2 yo u r L o r d s h i p s ' H o u s e a f f i r m e d t h e C o u r t o f
Appeal decisions of R v McEvilly ; R v Mealey . The House
treated it as axiomatic that entrapment does not exist as a
substantive defence in English law. Lord Diplock, at p 432, noted
that one person at the instigation of others commits many crimes.
The fact that the counsellor or procurer is a policem an or a police
informer, although it may be of relevance in mitigation of penalty
for the offence, cannot affect the guilt of the principal offender:
' b o t h t h e p h ys i c a l e l e m e n t ( a c t u s r e u s ) a n d t h e m e n t a l e l e m e n t
(mens rea) of the offence with which he is charged are present in
h i s c a s e ' . L i k e w i s e , L o r d F r a s e r o f T u l l yb e l t o n o b s e r v e d , a t p
446, that all the elements, factual and mental, of guilt are present
and no finding other than guilty would be logically possible. The
degree of guilt may be modified by the inducement and that can
appropriatel y be reflected in the sentence. Lord Fraser famousl y
added that when Eve, taxed with having eaten forbidden fruit,
replied 'the serpent beguiled me', her excuse was at most a plea
in mitigation and not a complete def ence. In Sang the House also
decided that, leaving aside admissions and confessions, the court
is not concerned with how evidence was obtained. It is no ground
for the exercise of a trial judge's discretion to exclude evidence
that the evidence was obtained as the result of the activities of an
agent provocateur, or by other unfair or improper means. That
would be to let in the defence of entrapment by the back door.
The common law is still governed by the 1980 House of Lords'
decision in R v Sang. The case concerned an agent provocateur
( an agent employed by the police or other entity to act undercover to entice or
provoke another person to commit an illegal act.), b u t t h e i r L o r d s h i p s t o o k
the opportunity to give their considered views on the whole area
of the court's power to exclude evidence. Their overall view is
summarised in the speech of Lord Diplock where he stated tw o
propositions:
"(1) A trial judge in a criminal trial has always a discretion to refuse to admit
evidence if in his opinion its prejudicial effect outweighs its probative value. (2) Save
with regard to admissions and confessions and generally with regard to evidence
obtained from the accused after commission of the offence, he has no discretion to
refuse to admit relevant admissible evidence on the ground that it was obtained by
improper or unfair means."(at p 437)

Applying these propositions, the House upheld the view of the lower courts that the
judge would have had no power to exclude evidence simply because it emanated from
the activities of an agent provocateur. Their lordships disagreed over the precise
scope to be given to the rather limited discretion to exclude recognised in Lord
Diplock's second proposition (that is in relation to confessions, and other evidence
obtained from the accused after the commission of the offence). Lord Diplock
himself, and Viscount Dilhorne, appeared to recognise very little scope for the
operation of the discretion, other than where the evidence was obtained as a result of a
trick, or improper pressure. Lord Salmon, however, thought that a judge always has
discretion to reject evidence on the ground that it would make the trial unfair (at p
445). Lord Fraser (at p 456) felt that judges should be left to exercise their discretion
"in accordance with their individual views of what is unfair or oppressive or morally
reprehensible". And Lord Scarman was similarly unwilling to tie the hands of the trial
judge, stating that "the principle of fairness, though concerned exclusively with the
use of evidence at trial, is not susceptible to categorisation or classification, and is
wide enough is some circumstances to embrace the way in which after the crime,
evidence has been obtained from the accused." The majority was therefore not
prepared to give a detailed description of the precise limits on the judge's discretion,
nor were they prepared to go very far in providing examples of situations in which
they considered the discretion should be exercised in favour of the accused. The test
appears to be one of 'fairness', but this concept is not further defined.

R v Khan 1996

Khan had arrived from Pakistan at Manchester airport on the same flight as his cousin
Nawab. When stopped and searched Nawab was found to be in possession of heroin
with a very high street value. He was interviewed, arrested and charged. No drugs
were found on Khan who made no admissions on interview and was released without
charge. Later Khan was in Sheffield, at the home of a man named Bashforth. Police
installed a listening device outside. Neither Khan not Bashforth was aware of its
presence. The police obtained a tape recording of a conversation. In the course of the
conversation, Khan made statements that amounted to an admission that he was a
party to the importation of drugs by Nawab. He was arrested and jointly charged with
Nawab. The judge admitted the intercept evidence and Khan was arraigned and
pleaded guilty to being knowingly concerned in the fraudulent evasion of the
prohibition on the importation of heroin.

The Court of Appeal dismissed his appeal. This case raised issues of whether the
evidence was admissible and if admissible, whether it should have been excluded by
the judge in the exercise of his discretion under common law. In the light of R v Sang,
the argument that the evidence of the taped conversation was inadmissible could only
be sustained if two wholly new principles were formulated: The first would be that
Khan enjoyed a right of privacy in respect of the taped conversation. The second that
evidence of the conversation obtained in breach of that right was inadmissible. There
was no such right of privacy in English law, and even if there were, evidence obtained
improperly or even unlawfully remained admissible, subject to the judge's power to
exclude it at his discretion. If the circumstances in which the evidence was obtained
amounted to an apparent invasion of Khan's rights of privacy under article 8, which
was accordingly something to which the court must have regard. The sole cause of the
case coming to the House of Lords was the lack of a statutory system regulating the
use of surveillance devices by the police.

R v Loosely

The leading case on entrapment is R v Loosely [2001] UKHL 53. The case was
concerned with the actions of undercover police officers carrying out test purchase
operations. Lord Nicholls identified that a useful guide when considering whether the
conduct of the police amounted to inciting or instigating crime was to ascertain
whether the police did more than present the defendant with an unexceptional
opportunity to commit a crime. If the police conduct preceding the commission of the
offence was no more than might have been expected by others in the circumstances
this would not constitute entrapment. If, however, it went beyond this an abuse of
process by the state may well be established.

For defendants who commit crimes following entrapment by private parties, the abuse
argument is much more difficult to sustain. While offering significant mitigation at
sentence, there is no defence of entrapment in English law (R v Sang [1980] AC 402).
However, it is also considered to be an abuse of court process for agents of the state to
lure citizens into committing illegal acts and then seek to prosecute them for doing so.
State-created entrapment of this sort will result in a stay of proceedings. A grant of a
stay is awarded if the conduct of the state was so seriously improper that the
administration of justice was brought into disrepute. In deciding whether to grant a
stay, the Court will consider, as a useful guide, whether the police did more than
present the defendant with an unexceptional opportunity to commit a crime.
In Loosely, Lords Hoffman and Hutton indicated certain factors that should be
considered in deciding whether proceedings against a defendant should be stayed.
These include:

 Whether the police acted in good faith;

 Whether the police had good reason to suspect the accused of criminal activities;
 Whether the police suspected that crime was particularly prevalent in the area in
which the investigation took place (Williams v. DPP);
 Whether pro-active investigatory techniques were necessary because of the
secrecy and difficulty of detection of the criminal activity in question;
 The defendant's circumstances and vulnerability; and
 The nature of the offence.

State v Bagwasi
The Accused was detained on suspicion of being involved in a
murder. The Accused was interrogated for most of the hours of
the day by 3 police officers. The Accused maintained throughout
that he had no knowledge of the murder. During the interrogation,
he was confronted with two witnesses who apparently implicated
him in the murder. The Accused, who was charged with murder,
would later go on to make a confession to a District Officer to
t h e e f f e c t t h a t h e h a d c o m m i t t e d t h e m u r d e r s o m e 3 d a ys a f t e r h e
had been detained. The admissibility of his confession was
challenged at his trial on the ground that it had been obtained
after prolonged interrogation.

Held: An acused person cannot be forced to incriminate himself

and any illegal act by the police in extracting a statement by the
accused would render such statement inadmissible, as per s. 224
CP & E, and on the principle that no right can be founded on an
i l l e g a l i t y. T h e o b j e c t i o n i n t h i s c a s e i s d i r e c t e d t o t h e e x t r a c t i o n
of a statement amounting to a confession in circumst ances where
the Accused was likely falsely to incriminate himself and that the
circumstances amount to undue influence within the meaning of s.
224 (1).

“Now I wish to make it clear for the guidance of the police

and all concerned that, in my judgment, ev en prolonged
interrogation including all the techniques and tricks of the
trade directed to obtaining a confession from an accused
who is prepared to talk - even if the interrogation proceeds
to the point of possibly disturbing the normal functioning
of the mind - may be justified in the interests of the
investigation of crime. The result, however, of such
interrogation, although perhaps very useful in the
investigation, will not be acceptable in a Court of Law as
evidence of guilt. Police investigating off icers and others
must realise that there is a grave danger to the admissibility
in a court of law of such a statement and a prosecution
based on it is likely to prove abortive. I am satisfied that
such interrogation if it does influence an accused can
constitute undue influence within the meaning of the
proviso to s. 224 (1). The fact that the confession is
ultimately recorded by a District Officer or justice in the
absence of the police will not necessarily cure the defect
unless it emerges that a sufficie nt interval has lapsed to
ensure that the effect of the interrogation has disappeared,
a n d t h e a c c u s e d ' s m i n d h a s r e t u r n e d t o n o r m a l i t y. ”

Therefore the prolonged interrogation did constitute undue

influence within the meaning of the proviso to Section 224 (1). It
is therefore incumbent upon the Prosecution to show either that
the interrogation did in fact not influence the Accused or, if it
did influence him, that influence had ceased to operate by the
time he made the statement. On this the confession was
accordingly inadmissible.

State v Zindaba

The Accused's extra-curial confession to a District Commissioner

w a s p u t i n i s s u e o n t h e g r o u n d t h a t i t w a s n o t m a d e v o l u n t a r i l y.
The Accused had been taken from the jail by the Police, whilst
awaiting trial, and was subjected to intensive interrogation.
While it has not been proved that the police tortured their
prisoner, the State has not establish ed that the police did not
a p p l y p h ys i c a l a n d m o r a l p r e s s u r e s t o i n d u c e t h e F i r s t A c c u s e d t o
confess. It is certainly the case that he was subjected to long
interrogation while under the power and control of the police.

Held:

(a) That it was unlawful for t he 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
v o l u n t a r i l y.

(d) That it had not been proved that the Accused was made
aware that he was speaking to a Judicial Officer and that he
w a s n o t o b l i g e d t o s a y a n yt h i n g .

(e)The confession should accordingly be rejected.

2. Burdens and Standards of Proof

State v Zindaba

R o o n e y J . – “ C e r t a i n p r o p o s i t i o n s a r e b e yo n d q u e s t i o n . T h e o n u s
r e s t s u p o n t h e S t a t e t o p r o v e b e yo n d a l l r e a s o n a b l e d o u b t t h a t t h e
confession was recorded in circumstances that render it
admissible in evidence. The State has to adequately negative the
allegations made by the First Accused that his confession was
induced as a result of torture (State vs Radebe and Another).”

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.... 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." Per Viscount Sankey

The defendant claimed that he had taken a gun with him to the house of the victim’s
mother to show his estranged wife that he planned to commit suicide if she failed to
return to him. He alleged that the gun had gone off by accident, i.e. while he was
showing it to her. Despite this claim the defendant was convicted of murder. At the
trial, the Judge directed the jury and suggested that the defendant had to prove it was
an accident. The defendant appealed.

The House of Lords accepted the defendant’s claim that the trial judge had
misdirected the jury, with it being established that the prosecution needs to prove
beyond reasonable doubt two things: firstly, that the defendant had actually
committed the offence in question; and secondly, that he had done so with the
necessary malice aforethought.
Seane v The State

The accused was charged with indecent assault and at trial, after
having dealt with the evidence of the Prosecution, the Magistrate
s a ys t h i s : " I t i s n o t t h e r e s p o n s i b i l i t y o f a n a c c u s e d p e r s o n t o
prove his innocence but, once the Prosecution has proved all the
essential ingredients of an offence, as I hold in this case, the
accused will only be able to escape conviction if he can prove he
was not the one who committed the offence, or he has a valid
defence". This of course is quite a wrong approach.

Held: There is no onus upon an accused person to prove his

innocence in a case of this nature. There is no such thing as "his
only being able to escape conviction if he can prove he was not
the one who committed the offence, or he has a valid defence". It
is for the Prosecution, after the whole of the evidence, both for
the Prosecution and the Defence has been called, to satisfy the
C o u r t o f t h e g u i l t o f a n a c c u s e d p e r s o n b e yo n d a r e a s o n a b l e
doubt.

It is for the Prosecution, after the whole of the evidence, both for
the Prosecution and the Defence has been called, to satisfy the
C o u r t o f t h e g u i l t o f a n a c c u s e d p e r s o n b e yo n d a r e a s o n a b l e
doubt. It is not for the Accused to establish his innocence. It is
for the Prosecution to establish his guilt.

State v Kasanga

Aguda, C.J.The Accused was charged with unlawful wounding.

The Magistrate in convicting the Accused stated that the defence
did not convince him 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. It is
clear from the judgment of the magistrate that he threw the onus
of proof completely on the Appellant. This is a very grave
misdirection as it was not for the Appellant to convince the
Court of his innocence. The onus is always on the prosecution
to prove the guilt of an accused beyond reasonable doubt . It is
the duty of a judicial officer when writing out a judgment not to
assume -as appears to have been done in this case - that an
accused person must be guilty unless he can convince the Court
that he is not.

Joseph Constantine Steamship Line Ltd v Imperial Smelting

Corp. Ltd. In August 1936, the appellants, who were the owners
of a steamship the Kingswood, chartered the ship to the
r e s p o n d e n t s f o r a v o ya g e w i t h a c a r g o o f o r e s a n d c o n c e n t r a t e s
from Port Pirie in South Australia to Europe. On January 3, 1937
while she was anchored in the roads at Port Pirie, and before she
became ‘an arrived ship’, there wa s an explosion of extreme
violence in the neighbourhood of her auxiliary boiler, which
caused significant damage to the steamer. Following this accident
the appellants gave notice to the respondents to the effect that
she could not perform the charter part y. The respondents claim
damages from the appellants under allegation that the latter have
broken the charter party by failing to load a cargo. The
appellants sought the defence in that the contract was ‘frustrated’
by the destructive consequences of the e xplosion on
the Kingswood.

The respondents contended in reply, that this frustration does not suffice to excuse the
appellants from having to pay damages for non- performance unless the appellants
establish affirmatively that the explosion occurred without any fault on their part. The
appellants, on the other hand, contend that, once the frustrating event is proved, the
onus is on the respondents to establish such default on the part of the appellants as
would deprive the latter of their right to rely upon it.

V i s c o u n t S i m o n L . C . - “ … laying down that the determination of the contract

by frustration is not the automatic result of the event, but is dependent on the option
of the parties, for neither party can be compelled to call evidence to prove
affirmatively that the cause was not due to his default.”

L o r d W r i g h t - “ … the ordinary rule is that a man is not held guilty of fault unless
fault is established and found by the court. This rule, which is sometimes described as
the presumption of innocence, is no doubt peculiarly important in criminal cases or
matters, but it is also true in civil disputes. “
Mancini v DPP

A fight broke out in a bar; V seized D's arm and aimed a blow at him, whereupon D
pulled out a dagger and stabbed V causing fatal injuries. D was convicted of
murder, and the House of Lords rejected his plea of provocation. To retort in the heat
of passion induced by provocation by a simple blow is a very different thing from
making use of a deadly instrument like a concealed dagger. If the offence is to be
reduced to manslaughter, said Viscount Simon LC, the mode of resentment [i.e.
retaliation] must bear a reasonable relationship to the provocation.
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. For the Crown
it was contended that whatever might have been the accused's
condition, at the time of the killing he was in sufficient control
of his senses to know what he was about and in particular able to
form the specific intent to kill. For the accused it was argued that
the evidence did not support this view and that the offence
committed by the accused could not be more than manslaughter
because by reason of drink the accused was unable at the material
time to form the specific intent required. The issue was whether
the Crown had discharged the onus imposed upon it by law to
e s t a b l i s h b e yo n d r e a s o n a b l e d o u b t t h a t t h e a c c u s e d h a d t h e g u i l t y
intention necessary to constitute the offence charged?

Held: The Crown, far from discharging the onus of proof imposed
u p o n i t h a s n o t e v e n c o m e n e a r t o d o i n g s o a n d , a c c o r d i n g l y; t h e
accused is acquitted of murder as charged and is found guilty of
manslaughter.

Miller v Minister of Pensions

T h e d i f f e r e n c e b e t w e e n t h e t w o s t a n d a r d s o f p r o o f ( b e yo n d “ a l l
reasonable doubt” and “on a balance of probabilities” ) was
summarised by Denning. Taking first the standard of proof to
c o n v i c t t h e a c c u s e d i n a c r i m i n a l c a s e , D e n n i n g h a d t h i s t o s a y:

“That degree is well settled. It need not reach certainty,

but it must carry a high degree of probability. Proof
beyond reasonable doubt does not mean proof beyond a
shadow of a doubt. The law would fail to protect the
community if it permitted fanciful po ssibilities 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 the sentence “Of course it is
possible but not in the least probable”, the case is prov ed
beyond reasonable doubt; nothing short will suffice.”
Turning then to the standard of proof for a civil case, Denning
h a d t h i s t o s a y:

“That degree is well settled. It must carry a reasonable

degree of probability, not so high as is required in a
criminal case. If the evidence is such that the tribunal
can say: ‘we think it more probable than not’, the
burden is discharged, but if the probabilities are equal it
is not.”

Hornal v Neuberger Products Ltd

It was established in the Court of Appeal herein that the standard of proof in a civil
action, even where fraud is alleged, is the balance of probabilities, not the more
onerous criminal standard, beyond reasonable doubt. Most frauds necessarily allege
dishonesty, however, and Morris LJ (at 266) observed in this case that the gravity of
an allegation of fraud was something that should be taken into account in deciding
whether the burden had been discharged:

“Though no court and no jury would give less careful attention to issues
lacking gravity than to those marked by it, the very elements of gravity
become a part of the whole range of circumstances which have to be weighed
in the scale when deciding as to the balance of probabilities.”

The more serious the allegation, the stronger the evidence that is required to establish
it.

Ramontsho v The State

The Appellant was charged with two offences of bringing into the
R e p u b l i c o f B o t s w a n a , p r o p e r t y s t o l e n b y h i m i n t o t h e c o u n t r y.
The evidence disclosed the offence of receiving or being in
possession of property st olen outside Botswana. The Magistrate
d i d n o t a m e n d t h e c h a r g e s ( t h i s w a s h e l d t o b e a n i r r e g u l a r i t y) .
The appellant raised the defence of alibi and the magistrate held
that there was an onus on the appellant to establish his defence
b e yo n d a r e a s o n a b l e d o u b t .

Held: this was misdirection; that the failure to amend the charge
and the misdirection as to the onus of proving an alibi were
material irregularities

State v Oake

The principle issue at the trial was whether the appellant had
called a senior game scout a "kaffir". Prosecution witnesses
alleged that he had, whilst the appellant maintained that he had
not. At the end of the trial the question for determination by the
learned magistrate was whether he was satisfied on the evidence
to the standard required by criminal law that the word "kaffir"
had been uttered by the appellant. The answer to this question
depended essentially on the view formed by the learned
magistrate of the respective witnesses. Having reviewed the
evidence before him the learned magistrate stated in his judgment
that he was satisfied that it was highly probable that the
appellant had uttered the word alleged. He then proceeded to
convict.

Hannah J. – “It has long been recognised in Botswana that the

normal expression used in describing the standard of proof
required in criminal cases is "proof beyond reasonable doubt…
P r o o f b e yo n d r e a s o n a b l e d o u b t d o e s n o t , o f c o u r s e , m e a n p r o o f
b e yo n d t h e s h a d o w o f a d o u b t . D o u b t s w h i c h c a n p r o p e r l y b e
described as fanciful can be discounted. However, what troubles
me is that the very use of the word "probable" shows that a doubt
must exist."

Held: That proof of a high degree of probability was not

n e c e s s a r i l y p r o o f b e yo n d r e a s o n a b l e d o u b t .

R v Summers

The Court noted that it is better for a judge to say to a jury:

“You must not convict unless you are satisfied by the

evidence given by the prosecution 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, and that it is their duty to
regard the evidence and see if it satisfies them so that
they can feel sure, when they give their verdict, that it is
a right one.”

R v Carr-Briant
Humphreys J. stated:

“In any case where either by Statute or common law,

some matter is presumed against an accused person,
'unless the contrary is proved' the jury should be
directed that it is for them to decide whether the
contrary is proved, that the burden of proof required is
less than that required at the hands of the prosecution in
proving the case beyond a reasonable doubt and that the
burden may be discharged by evidence satisfying the jury
of that which the accused is called upon to establish.”

Re Dellow’s Will Trusts

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."

Ungoid Thomas J. - "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"

3. Competence & Compellability

State v Sebuo

The accused was convicted of defilement of a girl of 12 years of

age. The girl, the victim of the offence, gave evidence under
oath. The trial magistrate found bloodstains in the girl's pants
and what was said by the accused while cross -examining her was
corroboration that it was the accused that committed the offence.

Held: (1) where a child of tender age was required to give

evidence on oath, the court must first take steps to satisfy 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. (See section 221
of the Criminal Procedure and Evidence Act and State v.
Ngwanawadijo)

(2) The bloodstains, while possibly being corroboration that an

offence took place, did not corroborate the girl's evidence that it
was the accused that committed it.

State v Ngwanawadijo

The appellant was charged with the defilement of a girl aged 11

years. The complainant gave evidence under oath. The accused
pleaded not guilty but was convicted. He now appeals.
Edward, J. – “A special approach to evidence is required when
the witness is both a child and the alleged victim of a sexual
a s s a u l t . I n R v . W , W a t e r m e ye r C . J . s a i d -

"The evidence of young children is properly treated with caution;

it has its own special elements of risk. But it seems that the
magistrate, while he appreciated the risk involved in accepting
t h e e v i d e n c e o f o n e s o yo u n g , d i d n o t b r i n g h i s m i n d t o b e a r o n
the additional risk arising out of the nature of the charge."

In Mothibi v. State Maisels A.C.J. said -

" B u t t h e yo u t h o f t h e c o m p l a i n a n t i s a f a c t o r t o b e t a k e n i n t o
account in all cases and particularly in a case of this nature
where the appellant is charged with a sexual offence against a
young complainant. I have considered this point and will bear it
in mind constantly in the whole of this judgment because it is
well known that it is generally not safe to rely on the evidence of
young children unless their evidence is corroborated."

In Rex v. Manda , Schreiner JA said - "The imaginativeness and

suggestibility of children are only two of a number of elements
that require their evidence to be scrutinised with care amounting,
perhaps, to suspicion. It seems to me that the proper approach to
a consideration of their evidence is to follow the lines adopted in
the case of accomplices ... and in the case of complaints in
charges of sexual assault ... The trial court must fully appreciate
the dangers inherent in the acceptance of such evidence and
where there is reason to suppose that such appreciation was
absent the court of appeal may hold that the conviction should
not be sustained. The best indication that there was proper
appreciation of the risks is naturally to be found in the reasons
furnished by the trial court."

Held: It was not clear that the Magistrate full y warned himself of
the danger of accepting the evidence o f a child especially in a
sexual case.

State v Basana

The facts were that the accused had taken the complainant by
force into a hut, had told an occupant of the hut to leave, and had
forced the complainant to have sexual intercourse with him
without her consent. The prosecution evidence as to the events in
t h e h u t w a s t h a t o f t h e c o m p l a i n a n t o n l y. T h e m e d i c a l e v i d e n c e
did not support the complainant's story that she had been
assaulted or raped. A Senior Magistrate who had ruled that a boy
o f n i n e ye a r s o f a g e w a s i n c o m p e t e n t t o g i v e e v i d e n c e c o n v i c t e d
the accused. On appeal;

O’Brienn Quinn CJ-

 “ I t m a y b e s a i d t h a t i t i s n o t a l w a ys n e c e s s a r y f o r a
Magistrate, or, indeed, any Court, to use formal phrases
such as "I warn myself of the need for corroboration in this
case even though it is not required by a law but only in
practice", but, unless it is clear from the record, that a
Magistrate has borne in mind the requirements of law and
practice, a higher court may find itself in difficulties as to
the course of the reasoning of the Magistrate. I do not
consider that formulas, such as the one mentioned above,
a r e a l w a ys a b s o l u t e l y n e c e s s a r y. N e v e r t h e l e s s , t h e e v i d e n c e
must be examined, the facts found proved stated, the
question of corroboration (if it arises) r eferred to and what
corroboration was found or if corroboration is not essential
in law but only in practice the fact that the Magistrate had
it in mind and was aware of the dangers inherent in
convicting without corroboration.

With regard to the procedur e adopted by the learned Magistrate in

t r e a t i n g t h e yo u n g b o y o f 9 ye a r s o f a g e a s b e i n g i n c o m p e t e n t t o
give evidence, I consider that the Section 221 CP & E, means that
a w i t n e s s w h o , a s i n t h i s c a s e , i s yo u n g b u t n o t s o yo u n g a s n o t t o
know what had happ ened at the time, should not be sworn or
affirmed but should, after due warning of the consequences of not
telling the truth, be allowed to give evidence; the weight to be
attached to that evidence being a matter for the discretion of the
Magistrate. Young children who are capable of giving evidence
i.e. not mere infants or toddlers, have always been allowed to
do so but have been sworn or affirmed, only if the sanction of
an oath or affirmation was understood by them . It must be
r e m e m b e r e d t h a t t h e u n s w o r n e v i d e n c e o f c h i l d r e n o f t e n d e r ye a r s
must be weighed very carefully and the question of corroboration
closely examined as its acceptance is governed by both sections
of the law and rules or practice.

H e l d : T h a t a b o y o f n i n e ye a r s s h o u l d b e a l l o w e d t o g i v e
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

The accused was charged and convi ct ed of t heft -by-servant. The

accused was employed as a tax collector. He was in charge of a
safe, in which were placed cash received, a receipt book, stamps
and other documents relating to his work. In the course of the
trial, the State called a witness who said of herself, “accused was
my boyfriend. We were living together like husband and wife in
the same house. Accused had paid bogadi for my marriage to
him.” In the course of his evidence the accused referred to this
witness throughout as his wife and to his wife's sister as his
sister-in-law. In the judgment the Magistrate referred to the
witness as "his reputed wife," "his wife" and "his girlfriend"
i n d i s c r i m i n a t e l y.

Rooney, J. – He (the magistrate) does not appear to have

appreciated that there was an important issue before the c ourt
t h a t w a s n o t r e s o l v e d , n a m e l y, t h e c o m p e t e n c e o f t h e w i t n e s s t o
give evidence against the accused. The Magistrate under Section
214 of the Criminal Procedure and Evidence Act should have
resolved that issue. It is provided in Section 216 that the wife or
husband of an accused person is competent and compellable to
give evidence for the prosecution only in limited circumstances
none of which applied in this case. A wife or husband for the
purposes of Section 216 includes persons married according to
customary law recognised within Botswana.

Held:

 That the wife or husband of an accused person is a

competent witness only in limited circumstances.
 A wife or husband includes persons married according to
customary law.

 A spouse remains incompetent to give e vidence against the

other even after dissolution of the marriage in respect of
matters that arose during the subsistence of the marriage.

 The Magistrate should have resolved the issue whether the

woman was a competent witness.

R v Algar

A woman who had gone through a marriage ceremony with a man

obtained a declaration of nullity on the ground of his impotence.
Later she was called as a prosecution witness at the man’s trial
f o r f o r g e r y, a l l e g e d t o h a v e b e e n c o m m i t t e d w h i l e t h e t w o h a d
been living together and before the annulment. Had she been his
lawful wife at the time of trial she would have been an
incompetent witness but that they were no longer married…

Lord Goddard said:

"In a criminal case, therefore, subject to the common law

and modern statutory exceptions mentioned above, a spouse
remains incompetent to give evidence against the other, and
the incompetence continues after divorce in respect of
matters which arose during the coverture."

Rumping v DPP

The accused wrote a letter to his wife in which he confessed to a murder. He handed
it to someone for posting who handed it over to the police. It never made it to the
wife. If it had, it would clearly be privileged. Because it did not (even as a result of
what might be called unfair conduct) it was not privileged and could be used as
evidence by the prosecutor in the prosecution for murder. This case is the leading
authority that there is no rule rendering inadmissible all communications between
husband and wife during marriage. (The distinction between a rule of privilege and
inadmissibility should be stressed).

However Lord Radcliffe, dissenting, had this to say-

“Lord Alvaney, CJ, said of a divorced wife who was called to prove a contract
made during the marriage: ‘To prove any fact arising after the divorce this
lady is a competent witness but not [before]…She was at that time bound to
secrecy. What she did might be in consequence of the trust and confidence
reposed in her…and miserable indeed would the condition of a husband be if,
when a woman is divorced from him, perhaps for her own misconduct, all the
confidences of his life, entrusted to her when the most perfect and unbounded
confidence existed between them, should be divulged in court of justice. If she
might be a witness in civil proceeding, she might equally be so in a criminal
prosecution; and it shall never be endured that the confidence which the law
has created while the parties remained in the most intimate of all relations,
shall be broken whenever, by the misconduct of one party (for misconduct
alone can have that effect) the relation has been dissolved’…The reason of
rejection could not have been a concern to avoid strain or embarrassment in
any existing marital relation, for that relation had been determined by divorce.
[It] could only have been that there was a sanctity in marital confidences
themselves which made them an inadmissible subject of evidence in legal
proceedings…I infer from this that the court’s concern was that no marriage
relation, while it subsisted, should be infected by the fear or suspicion that
things said only by reason of the special confidence of that relation might late
become material of legal evidence affecting the speaker.”

Attorney General v. Moagi

T h e a c c u s e d w a s , d e s p i t e h i s p l e a o f n o t g u i l t y, c o n v i c t e d o f
t h e f t - b y- s e r v a n t . I t w a s a l l e g e d t h a t h e h a d s t o l e n c a s h t h a t h a d
c o m e i n t o h i s p o s s e s s i o n b y v i r t u e o f h i s e m p l o ym e n t . T h e
accused, who was defended at the trial, elected, as was his right,
not to give evidence. There was, however, sufficient evidence on
which to convict the accused without taking this fact into
account. The evidence for the State given before the Magistrate
was to the effect that the cash alleged to have been stolen passed
through various hands before it ended up in Moagi’s h ands.

Section 10 (7) of the Constitution reads -

“"No person who is tried for a criminal offence shall be

compelled to give evidence at his trial."

Held:
  (In dissent) Despite the provisions of s. 10 (7) an accused's
failure to give evidence is a factor of evidential value that
may be taken into account in deciding an accused’s guilt
but the weight to be given to such failure depends upon all
t h e c i r c u m s t a n c e s . A c c o r d i n g l y, t h e f a c t s o f t h e c a s e c a l l e d
for an explanation by the accused.
 That even if there had been a breach of the Constitution in
t a k i n g i n t o a c c o u n t t h e A c c u s e d ' s f a i l u r e t o t e s t i f y, t h e
provisions of the Criminal Procedure and Evidence
Proclamation and the High Court Act which apply to a
failure of justice nevertheless applied, and that the ca se
against the Accused was proved without taking into account
t h e A c c u s e d ' s f a i l u r e t o t e s t i f y.

Per Curiam: Aguda J.A.- Courts, by indulging in extreme legal

s o p h i s t r y m a y b r i n g t h e s ys t e m o f j u s t i c e i n t o d i s r e p u t e t h u s
a l i e n a t i n g t h e f e e l i n g s o f s o c i e t y; t h a t a n y a p p e a r a n c e t h a t t h e
courts lean towards legalism at the expense of justice may bring
t h e j u r i d i c a l s ys t e m i n t o d i s r e p u t e ; a n d t h a t t o p u t t h e
interpretation upon the Constitution that in no circumstances may
a Court put some value on the failure o f the Accused to give
evidence is to enlarge the Constitution's scope so widely.