Section 10 of The Evidence Act Wakili Zakaria

SECTION 10 OF THE EVIDENCE ACT
Motive, preparation and previous or subsequent conduct
Motive
Motive refers to the state of the mind or interest.

It is that which moves a person to do a particular act. It is the emotion supposed to
have led the act.
The motive for committing an offence is important only in cases of purely
circumstantial evidence for in such cases motive itself would be a circumstance to be
considered by the court
Illustration:
X is a rich man owning a variety of valuable assets. His Son Y does not want to
work. He only spends money with friends. X refused Y more money to spend. A
week later X is found died and Y is associated with this murder.
Here the motive for killing is nothing but to inherit X’s estate.
Cases:
R v. ONUFREJCZYK [1955] 2 WLR 273 (CCA).
The accused was charged with the murder of his business partner, S, who had
disappeared without trace on 14 December 1953, the date on which the murder was
allegedly committed. The last witness to see him other than the accused was a
blacksmith who testified that S had visited his premises to collect a horse on that
date. The accused's defence was that on 18 December a large car had driven up to
their isolated farmhouse at 7.30 p.m. and three men had kidnapped S at gunpoint.
There was no direct evidence that S was dead let alone that he had been killed, but
the accused was convicted of his murder as both his death and the fact that the
accused had killed him could be inferred cumulatively from several items of
circumstantial evidence. First, the accused had had a motive to kill S. He had wanted
to obtain S's share in the farm but was in dire need of money, and S had threatened
to put the farm up for sale if the accused could not obtain the money to buy him out.
(There was also evidence that the accused had made threats against S.) Second,
the accused's behaviour after 14 December suggested that he had been aware that
S was already dead. On the afternoon of 18 December he had written to an
acquaintance explaining that S would be going away for a fortnight and that he, the
accused, had already paid him most of the money; and yet, soon after, the accused
had gone to London to borrow money from relatives and had got a woman to forge
documents purporting to be agreements upon which he had then forged S's
signature. The accused had also written a number of letters which suggested that S
had gone to Poland and that he would not be returning, and had asked a man to
impersonate S at a meeting with his solicitor. Third, S had not taken any of his
clothes or possessions away with him. Fourth, the accused had acted in a suspicious
manner once the police had begun their investigation into S's disappearance. In
particular, he had gone to the blacksmith to bribe him into saying that S had visited
him on 17 December. Fifth, minute drops of blood had been found on the walls and
ceiling of the farmhouse kitchen.
ALLI KASSAM v. R. [1972] HCD 186

Motive was defined as “something that animates an intentional act - the ulterior
intention with which an intentional act is done."
MANDIA v R [1966] E.A. 315

For without motive an intention to corrupt can hardly arise
AMIRI MOHAMED v R [1994] TLR 138

Whether motive is necessary to establish murder
The conduct of the appellant of disappearing from his abode soon after the event of
murder and his explanations show that he was responsible for the murder.
Although motive is not discernible on the record but motive does not have to be
established to bring the charge home.
Preparation
The probative force of preparation rests on the presumption that an intention to
commit an offence was formed in the mind of the accused, which persisted until
power and opportunity were formed to carry it into execution
Illustrations:
That few days before the murder, X had bought a dagger which might have caused
the fatal wounds
X is tried for the murder of Y by poison. The fact that, before the death of Y, X
procured poison similar to that which was administered to Y, is relevant
Conduct
The behavior of a person before, during or after the event complained of.
Conduct is relevant as it throws some light upon a fact in issue or relevant fact or
upon a party’s motive, intention, good faith, etc. E.g. running away when spotted by
a police officer, escape from custody, resistance to arrest, concealment, assumption
of a false name, and related conduct
Forms: Conduct appears in two forms: The evidence of conduct is relevant whether
it is previous to the happening of the facts or subsequent to them.
Illustrations:
1) X is accused of committing a crime. The fact that after the crime had been
committed, he absconded to a distant place or was in possession of property
acquired from the proceeds of the crime or attempted to conceal things or
items which could have been used to commit the crime is relevant and
admissible (doctrine of recent possession)
2) The question is, whether A robbed B.

The facts that, after B was robbed, C said in A's presence : "the police are
coming to look for the man who robbed B", and that immediately afterwards A
ran away, are relevant.
3) A is accused of a crime.
The facts that, after the commission of the alleged crime, he absconded, or
was in possession of property or the proceeds of property acquired by the
crime, or attempted to conceal things which were or might have been used in
committing it, are relevant.
Conduct by Silence
If a person accused of a crime is silent, this can be used as evidence against
himself.
Conduct amounts into admissions which may properly be inferred from conduct,
such as a motorist's act of running away from the scene of the road accident in which
he has just been involved
Section 198(2) CPA: Where an accused person, upon being examined, elects to keep silent
the court shall have the right to draw an adverse inference against him and the court and the
prosecution may comment on the failure by the accused to give evidence.
CASES:
Makungire Mtani v R [1983] TLR 179 (CA)

Katabe Kachochoba v. R [1986] TLR 170 (CA)
Protas John Kitogole and Another v R [1992] TLR 51 (CA)
Hamidu Mussa Thimotheo and Majidi Mussa Thimotheo v R 1993 TLR 125 (CA)
Samuel Silanga v R [1993] TLR 149 (CA)
Nurdin Akasha alias Habab v R [1995] TLR 227 (CA)

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SECTION 10 OF THE EVIDENCE ACT

Motive, preparation and previous or subsequent conduct

Motive refers to the state of the mind or interest.

R v. ONUFREJCZYK [1955] 2 WLR 273 (CCA).

ALLI KASSAM v. R. [1972] HCD 186

MANDIA v R [1966] E.A. 315

AMIRI MOHAMED v R [1994] TLR 138

2) The question is, whether A robbed B.

Makungire Mtani v R [1983] TLR 179 (CA)

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