Examinations Answer Sheet Trinity 2020/Advent Semester 2021

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(As Shown on the question paper)
DATE OF EXAMINATION: January 22nd 2021th – February 5th 2021
NB: No Answer Script shall be accepted after 05th February 2021 midnight
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LIST QUESTIONS ANSWERED (in their Numeric order)

4 2 1

01Trinity 2020/Advent 2021Examinations Page 1

 QUESTION 4.

LEGAL MEMORANDUM

TO; THE INSPECTOR GENERAL OF POLICE.

FROM; KIZZA ARNOLD LUMINSA.

DATE; 31ST, JANUARY, 2021.

RE: The Government of Uganda has recently procured and installed closed circuit television
(CCTV) cameras in most parts of Kampala district. The purpose of these is to reduce and eliminate
urban crime and make it easy for the investigators to obtain the relevant evidence on the
perpetrators.

With increased reliance on technology in everyday life, any infirmed observer can allude to the fact that
even security detail has taken cognisance of technology in their operation such as the use of installed
closed circuit television (CCTV) cameras among others. Relating to the instant facts, The Government of
Uganda has recently procured and installed closed circuit television (CCTV) cameras in most parts of
Kampala district. The purpose of these is to reduce and eliminate urban crime and make it easy for the
investigators to obtain the relevant evidence on the perpetrators. This denotes the inculcation of
electronic evidence. George and Stephen Mason define Electronic evidence as all information with
probative value that is included in an electronic media or is transmitted by media.1 George and Stephen
give an expansive definition as data (comprising the output of analogue devices or data in digital form)
that is manipulated, stored or communicated by any manufactured device, computer or computer system
or transmitted over a communication. Justice Mutonyi in the case of Amongin Jane Francis Okili Vesus
Lucy Akello and The Electoral Commission,2 has also defined electronic evidence as is any probative
information stored or transmitted in digital form that a party at a trial or proceeding may use. It is used
to prove a particular proposition or to persuade court of the truth of an allegation.

An electronic record refers to data which is recorded or stored on any medium in or by a computer system
or other similar device, that can be read or perceived by a person or a computer system or other similar
device and includes displays, print out or other output of that data.3 Information shall not be denied legal
effect, validity or enforcement solely on the ground that it is wholly or partly in the form of a data
message.4 In the case of Amongin Jane Francis Akili v Lucy Akello & Anor,5 it was clearly stated therein

1
Electronic Evidence, George, Madson University of London Press, Institute of Advanced Legal Studies, 2017.
2
Amongin Jane Francis Okili Vesus Lucy Akello and The Electoral Commission HCT-02-cv.0001 – 2014, Accessible at
https://ulii.org/ug/judgment/election-petitions/2015/1 (last accessed on 31st /January/2021).
3
Section 2 Electronic Transactions Act 2011; Section 2 of the Computer Misuse Act, 2011.
4
Section 5 (1) Electronic Transactions Act 2011.
5
Amongin Jane Francis Akili v Lucy Akello & Anor HCT-02-04-EP-0001-2004.
01Trinity 2020/Advent 2021Examinations Page 2
that, before a court accepting electronic evidence, it will determine; if the evidence is relevant, whether
it is authentic or hearsay, or whether a copy is acceptable or the original required. The proponent of
electronic evidence must lay a proper foundation which makes the evidence reliable. In order to
successfully admit any piece of evidence, electronic or otherwise, a party must overcome three obstacles
(1) authentication, (2) hearsay, and (3) the best evidence rule. The starting point was highlighted by
Tsekooko, Ag. J (as he then was) in Uganda vs David Kamugisha & Anor,6 that the question of admissibility
of evidence be it oral or documentary basically depends on whether it was relevant to the issue before
court. Otherwise, the court record would be filled with all types of evidence which was not sufficiently
relevant and they might tend to prolong the trial unnecessarily because of immaterial matter. Among the
exceptions was that affecting the credibility of a witness or impeaching his credit. Section 4 of the
Evidence Act,7 1states that only relevant evidence in respect of the existence or non-existence of a fact
in issue may only be given in any suit or proceedings. Thus, all relevant evidence,8 is admissible except as
otherwise provided under the Constitution, and Acts of Parliament.

As seen here above, to be admitted as evidence, an electronic message must first be authenticated or
identified. Authenticity in evidence is what the party claims it to be, otherwise it is irrelevant. The test
of authenticity is that the proponent must present “evidence sufficient to support a finding that the matter
in question is what its proponent’s claims. A document may be authenticated based on “appearance,
contents, substance, internal patterns, or distinctive characteristics taken in conjunction with
circumstances can provide sufficient indicia of reliability to permit a finding that it is authentic” 9
Authentication is the process by which the authenticity, or genuineness, of the document is established.
Whether the document is what it purports to be is a matter of conditional relevance, i.e. the document
is relevant only if the document is what it purports to be.10 The person in charge of the process of acquiring
information through the electronic process has the responsibility for ensuring that certain standards are
met because this kind of evidence can easily be modified and or duplicated. The danger with such digital
evidence is that it can easily be created, tampered with or modified in one way or another.

Courts should therefore be very careful before admitting it especially if such evidence is contested.11
Section 5 of the Uganda Electronic Transactions Act,12 provides that information shall not be denied legal

6
Uganda vs David Kamugisha & Anor [1988-90] HCB 77.
7
Evidence Act, Cap 6.
8
Generally, all relevant Evidence is admissible. The most notorious bar to admissibility, of course is hearsay. According to Osborn’s
Concise Law dictionary, 9th Edition, 2001, Hearsay is defined as a statement [either oral or written] other than one made by the
declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.
9
The admissibility of electronic Evidence in Court” Cybex initiative. A comprehensive study by Cybex; The Digital forensic company,
supported by European Union; http://www.cybex.es/AG2005/news.htm
10
Dian GF International Ltd Vs Damco Logistics Ltd & Trantrack (CIVIL SUIT NO 161 OF 2010) [2012].
11
Coil Ltd v Attorney General (CIVIL SUIT NO.799 OF 2014).
12
Uganda Electronic Transactions Act, 2011.
01Trinity 2020/Advent 2021Examinations Page 3
effect, validity or enforcement solely on the ground that it is wholly or partly in the form of data message.
Furthermore, Section 7 (2)(a) provides that “for the purposes of subsection 1(a) (which talks of the original
form) the authenticity of the data message shall be assessed (a) by considering whether the information
has remained complete or un altered except for addition of an endorsement and any change which arises
in the normal communication.”

For admissibility, there must be both proper authentication and a basis for admissibility as a non hearsay
or under an exception to hearsay rule. If the author of the record (i) admits that he/she authored the
document, (ii) admits that the document is true, (ii) is available for cross examination, and there is no
hearsay, then the document is admissible. The proponent, however, must establish a foundation that the
record was created and stored in such a way as to ensure reliability.13 Indicia of reliability can include; (a)
Validation of computer systems to ensure accuracy, reliability, consistent intended performance and the
ability to conclusively discern invalid or altered documents; (b) Ability to generate accurate copies of
records in both human readable and electronic form; (c) Protection of records to enable their accurate
and ready retrieval throughout the records retention period; (d) Limiting systems access to authorized
individuals, and use of authority checks to ensure that only individuals who have been authorized can use
the system, electronically sign the record, access the operation or device, alter a record or perform the
operation at hand. In the case of US v Briscoe,14 the federal court stated that a proper foundation for
computer records is established if the party presenting the records “provides sufficient facts to warrant a
finding that the records are trustworthy and the opposing party is afforded an opportunity to inquire into
the accuracy thereof and hoe the records were maintained and produced.”

Section 8(5) of the Electronic Transactions Act,15 provides “ the authenticity of the electronic record
system in which an electronic records system is recorded or stored shall in the absence of evidence to the
contrary be presumed where (a) there is evidence that supports a finding that at all material times, the
computer system or other similar device was operating properly or if it was not, the fact of its not
operating properly did not affect the integrity of the electronic record and there are no other reasonable
grounds to doubt the integrity of the electronic records system. An oldest dogma of the law of evidence is
that a party seeking to rely upon the contents of a document must adduce primary evidence of it.16 Sections
60,17 and 61,18 and 63,19 of the Uganda’s Evidence Act,20 emphasis this best evidence rule. The perfect and

13
http://www.indianalawblog.com /archives/2007/06/discovery_of_el.html Monday, June 18th, 2007.
14
US v Briscoe f.2d 1476 at page 1494-95.
15
Electronic Transactions Act, 2011.
16
P.B Carter (1970); Cases and Statutes on Evidence, 11th edition, sweet & Maxwell, London, page 629
17
Section 60 of the Evidence Act, Cap 6, states that “The contents of documents may be proved either by primary or secondary
evidence”.
18
Is to the effect that, that primary evidence means the document itself produced for inspection of the court.
19
Documents must be proved by primary evidence except in the cases mentioned under Section 64 of the Evidence Act, Cap 6.
20
The Evidence Act, Cap 6.
01Trinity 2020/Advent 2021Examinations Page 4
the most common item is the original of the document itself.21 In the case of Macdonell vs Evans,22 Maule.
J, states that, it is a general rule…a party tendering a private document should give the best evidence.
Generally, the best evidence is the original document, which is primary evidence of its contents”

In conclusion, before accepting electronic evidence, a court will determine if the evidence is relevant,
whether it is authentic, or hearsay, or whether a copy is acceptable or the original is required. It is
apparent that the use of digital evidence has increased in the past and that is why courts which were
hesitant to admit it have now accepted it as one of the best evidence. But like any other evidence the
proponent of electronic or digital evidence must lay the proper foundation which makes the evidence
reliable. Courts are mainly concerned about reliability of such digital or electronic evidence. The points
to be considered while laying foundation were lad in the case of Amongin Jane Francis Okili Vesus Lucy
Akello and The Electoral Commission.23 Against that background, The Inspector General of Police (IGP)
has to be alive to the fact that, if any evidence produced by the new purchased CCTV cameras is to be
admissible, it shall have to satisfy the grounds as enshrined in the case of Amongin Jane Francis Akili v
Lucy Akello & Anor,24 and as explained by and large.

Yoursfaithfully,

…………………………………………………………………………
KIZZA ARNOLD LUMINSA.

21
Macdonell vs Evans, (1852) common pleas 21 L.J C. P 141 Maule. J stated that, “it is a general rule… a party tendering a private
document should give the best evidence. Generally, the best evidence is the original document, which is primary evidence of its
contents”.
22
Macdonell vs Evans, (1852) common pleas 21 L.J C. P 141.
23
Supra.
24
Amongin Jane Francis Akili v Lucy Akello & Anor HCT-02-04-EP-0001-2004.
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 Question 2(A).

K9 evidence is basically the kind of evidence that is adduced by a trained dog. In tracking, a dog follows
disturbances to the ground surface, crushed vegetation, a person’s body odor, and/or sweat that comes
through the person’s shoes.25 In trailing, a dog is thought to be following the odor of volatile substances
that flow off human skin every minute containing organic compounds and bacteria, leaving a trail described
as a plume. The admissibility during criminal trials of expert evidence in relation to tracker dog behaviour
and the accuracy of their identifications can be far from straightforward, in particular if sufficient bases
are not established for it to be open to the decision-maker to invest trust in the accuracy of the dog’s
identification of an individual or of an object associated with an individual.

In the case of Omondi and Another versus R,26 the High Court observed that, “But we think it proper to
sound a note of warning about what, without undue levity, we may call the evidence of dogs. It is evidence
which we think should be admitted with caution, and if admitted should be treated with great care. Before
the evidence is admitted the court should, we think ask for evidence as to how the dog has been trained
and for evidence as to the dog’s reliability. To say that a dog has a thousand arrests to its credit is clearly,
by itself, quite unconvincing. Clear evidence that the dog had repeatedly and faultlessly followed a scent
over difficult country would be required, we think, to render this kind of evidence admissible. But having
received the evidence that the dog was, if we might so describe it, a reasonably reliable tracking machine,
the court must never forget that even a pack of hounds can change foxes and that this kind of evidence is
quite obviously fallible.”

Also, in the famous case of Uganda versus Muheirwe and Anor,27 Gaswaga J, proposed the following
principles to guide trial courts with regard to admissibility and reliance on dog evidence. He opined,
“Therefore, from the above discourse, the following propositions are made as principles that may govern
the considerations for the exclusion or admissibility of and weight to be attached to tracker (sniffer) dog
evidence;

❖ The evidence must be treated with utmost care (caution) by court and given the fullest sort of
explanation by the prosecution.
❖ There must be material before the court establishing the experience and qualifications of the dog
handler.
❖ The reputation, skill and training of the tracker dog [is] require[d] to be proved before the court
(of course by the handler/ trainer who is familiar with the characteristics of the dog).

25
Gerritsen and Haak (2003), pp. 31-43.
26
Omondi and Another versus R [1967] E.A 802.
27
Uganda versus Muheirwe and Anor HCT-05-CR-CN-0011 of 2012.
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 ❖ The circumstances relating to the actual trailing must be demonstrated. Preservation of the scene
is crucial. And the trail must not have become stale.
❖ The human handler must not try to explore the inner workings of the animal’s mind in relation to
the conduct of the trailing. This reservation apart, he is free to describe the behaviour of the dog
and give an expert opinion as to the inferences which might properly be drawn from a particular
action by the dog.
❖ The court should direct its attention to the conclusion which it is minded to reach on the basis of
the tracker evidence and the perils in too quickly coming to that conclusion from material not
subject to the truth-eliciting process of cross-examination.
❖ It should be borne in the mind of the trial judge that according to the circumstances otherwise
deposed to in evidence, the canine evidence might be at the forefront of the prosecution case or a
lesser link in the chain of evidence.”

The Handlers of the dogs are generally required by courts to be shown to have training and experience in
the use of a tracking dog.28 Bloodhounds and handlers are sometimes borrowed from penitentiaries.29 A
handler in a 1956 tracking case from North Carolina was described as “a prisoner at the Taylorsville Prison
Camp.” Unfortunately, on finding the perpetrator, the dog was killed when the suspect stabbed the dog.30

Furthermore, Courts accepting scent tracking evidence nevertheless often find it “too prejudicial where it
is not corroborated by other independent evidence….”31 A 1978 Michigan case stated that “we note that
no authority has been presented to us, nor have we found any, which indicates that tracking dog evidence,
standing alone, can support a conviction.”32 A 1978 New Hampshire case instructed the jury that “while
the evidence provided by the bloodhound is evidence which may be considered by you in your deliberations,
it is not in and of itself evidence that a crime was actually committed.”33 The corroboration requirement
generally appears in cases where the dogs’ actions have been interpreted as identifying the perpetrator.34

In a nutshell, the qualifications of the dog handler must be properly established, in general, and then
evidence must be given in relation to the behaviour and skills of the particular tracker dog. There must
be detailed basis evidence about the reliability of the dog breed, and about the skills and reliability of the

28
California v. Gonzales, 218 Cal.App.3d 403, 267 Cal. Rptr. 138 (Ct. App. 1990); California v. Malgren, 139 Cal.App.3d 234, 188
Cal. Rptr. 569 (Ct. App. 1983). Some police handlers may use their dogs primarily for suspect apprehension, and the training of the
dog in tracking may be an aspect of that function. Also, Illinois v. Griffin, 48 Ill.App.2d 148, 198 N.E.2d 115 (Ct. App. 1964).
29
North Carolina v. Hawley, 54 N.C. App 293, 283 S.E.2d 387 (Ct. App. 1981).
30
North Carolina v. Dorsett, 245 N.C. 47, 95 S.E.2d 90 (1956).
31
Colorado v. Brooks, 975 P.2d 1105, 1114, 81 A.L.R.5th 779 (1999). See Kansas v. Fixley, 118 Kan. 1, 233 P. 796 (1925) (“action
of the dogs is practically the only evidence upon which the conviction of the defendant is based”).
32
Michigan v. McPherson, 85 Mich. App. 341, 271 N.W.2d 228 (Ct. App. 1978); see Michigan v. Jackson, 2008 WL 2037805 (Ct.
App. 2008).
33
New Hampshire v. Taylor, 118 N.H. 855, 395 A.2d 505 (1978).
34
Meyers v. Kentucky, 194 Ky. 523, 240 S.W. 71 (Ct. App. 1922); Copley v. Tennessee, 153 Tenn. 189, 281 S.W. 460 (1926).
01Trinity 2020/Advent 2021Examinations Page 7
individual dog as a tracker, before evidence can properly be adduced from a dog-handler about the
particular tracking of a scent by a specific dog. Court also needs to be informed about the dog’s training.
These and many so explain the several circumstances it will be admissible in court as explained here above.

QUESTION 2(B).

As earlier on discussed, K9 evidence is evidence which should be admitted with caution, and if admitted
should be treated with great care, as was observed in the case of Omondi and Another versus R,35
however, there are the factors that determine the strength and weakness of K9 evidence and these are
explained here under.

The Object Dog is Scented On. In addition to how long scent will last on an object (discussed below on
reliability), scenting a dog to an object touched by a perpetrator requires that the dog be able to
distinguish the scent of a specific individual. If the object has been touched by more than one individual,
the possibility exists that this will function as contamination (which will be discussed in another section
below). The question as to whether an object contains scent that the dog can distinguish and follow or use
to identify a match goes to whether dogs can distinguish individual scents. The general discussion above-
described canine olfaction. Here we will discuss what dogs can distinguish in forensic contexts. Studies
have confirmed that dogs generally can distinguish the scent of a specific individual and will generally not
confuse it with the scent of another individual unless the other individual is an identical twin.36 Dogs will
be particularly confused by identical twins that live together, but will often distinguish identical twins that
have lived apart, suggesting that environmental factors allow dogs even to distinguish identical twins.37

Scenting to Items or Locations with Multiple Scents. Some cases indicate that police or courts may
overlook the possibility that an area or item might have multiple scents. In a 1927 Kentucky case, a woman
was bludgeoned to death. Bloodhounds were placed at a point indicated by the victim’s husband, but they
only trailed to a well, and then back to the house and into the room where the husband was standing. He
was charged and convicted. There was other evidence concerning the defendant to support the conviction
but it must be questioned whether the dogs would have trailed to the husband in any case as his scent was
inevitably in the area.38

35
Omondi and Another versus R [1967] E.A 802.
36
Kalmus (1955).
37
Harvey et al. (2006); Hepper (1998).
38
Stidham v. Kentucky, 221 Ky. 49, 297 S.W. 929 (Ct. App. 1927), Also, Kansas v. Netherton, 133 Kan. 685, 3 P.2d 495 (1931)
(dogs tracked from basement where woman was murdered to her husband).
01Trinity 2020/Advent 2021Examinations Page 8
Period of Reliability Affected by Conditions. Handlers often testify to environmental factors affecting a
dog’s ability to track. A handler in a 1936 Mississippi case testified that “a trail was harder for the dogs to
follow in a ‘dry spell’ than in a ‘wet,’ and that on this occasion it was ‘wet.’”260 In a 1932 Missouri case,
the handlers were described as testifying to the effect that “the scent is stronger on moist ground than
dry, and on the occasion involved in the case the ground was dry.”39 A 1978 New Hampshire case stated
that “the night was particularly good for trailing because of the dew.”40 The length of time that a scent w

Sometimes the Dogs are Taken Off Trail Because of Distraction. No informed observer can refute the fact
that, sometimes Handlers encounter serious difficulties in keeping dogs on a trail. ill remain in a location
is a matter of both research and dispute. This automatically shall in the long run have a great impact on
the K9 evidence adduced by the dog in question.

Contamination of the scene. The Nebraska Supreme Court in 1903, described how a trail can become so
weak or contaminated that the scent the dog is following is likely something besides what was left by the
perpetrator. The burglary was committed on the morning of July 5th, before daylight. The trailing did not
commence until about 5 in the afternoon. In the meantime, the trail, near the scene of the crime, had
been walked over, closely paralleled, and crossed, directly and obliquely, perhaps, a hundred times. And
the sun had been shining on it steadily for more than 12 hours. The situation the dogs had to deal with was
an exceptionally difficult one, and it was, we think, reversible error to accept their conclusion as legal
evidence of defendant's guilt. To get a nearer and clearer view of the nature of the evidence erroneously
admitted, let us consider closely what trailing is. The path of every human being through the world, at
every step, from the cradle to the grave, is strewn with the putrescent excretions of his body. This waste
matter is in process of decomposition. It is being resolved into its constituent elements, and its power to
make an impression on the olfactory nerves of a dog or other animal becomes fainter and fainter with lapse
of time. The Contamination can also be Caused by Perpetrator. Case descriptions involve instances where
perpetrators may have tried to confuse dogs. In a 1921 North Carolina case, the prosecution alleged that
a defendant put dead birds in his yard in an effort to provide a reason for the dogs coming there.41

Missing Member. If an object may have been touched by other individuals besides the perpetrators, an
effort is often made to exclude these scents. In a 2009 Texas case,42 items in a burglarized house from
which scent pads were collected were probably also touched by members of the household, so the
bloodhound was taken to the scent to sniff members of the household with the hope that the dog will then

39
Missouri v. Freyer, 330 Mo. 62, 48 S.W.2d 894 (Sup. Ct., Div.2. 1932).
40
New Hampshire v. Taylor, 118 N.H. 855, 395 A.2d 505 (1978).
41
North Carolina v. Robinson, 181 N.C. 516, 106 S.E. 155 (1921). See Allen v. Kentucky, 26 Ky. L. Rptr. 807, 82 S.W. 589 (Ct. App.
1904) (defendants discussed procuring Japanese oil to put on their shoes so dogs could not track them was properly admitted).
42
Perkins v. Texas, 2009 WL 2837356 (Ct. App. 2009).
01Trinity 2020/Advent 2021Examinations Page 9
try to find the “missing member”—the individual whom he has yet to sniff.43 When scenting a trailing or
tracking dog to a trail, the dog is often expected to isolate one scent, but if the dog follows the wrong
scent it is brought back to the scenting point and an effort is made to make it cast again for a different
scent.

Dogs Tracking to Multiple Items or Defendants. Dogs sometimes seem to move from one perpetrator to
another. In a 1923 Arkansas case, a dog tracked from the cash register opened in a burglary to one
defendant’s house, and then onto a second defendant’s house. Evidence indicated that the second
defendant had spent the night at the first defendant’s house before going to his own house.44 A victim in
a North Carolina case was shot by two assailants but lived long enough to name them. Bloodhounds were
used to corroborate his dying declaration.

In a nutshell, K9 evidence can be highly influential in criminal prosecutions but, if not carefully scrutinised
for the strength of its bases as explained here above, it can surely be more prejudicial than it is probative.
While initially courts expressed serious reservations about the reception of such evidence, and some pe of
these reasons are the ones discussed here above that determine the strength and weakness of K9 evidence.
however, in the modern era, courts have become considerably more receptive to it, provided that the
necessary underpinnings of the dog handler evidence are properly established as explained by and large.

43
The effectiveness of the missing member procedure has been questioned. An experienced handler has said of this procedure:
“My experience with the missing member approach is extensive yet inconclusive. I have found it to be a necessary tool with a
contaminated scene, yet it is not wholly reliable. Regardless, I have found success with this method, and I believe it should be
practiced when scent articles are seriously contaminated.” Schettler (2010) pp. 35, 38.
44
Fox v. Arkansas, 156 Ark. 428, 246 S.W. 863 (1923).
01Trinity 2020/Advent 2021Examinations Page 10
 QUESTION 1.

LEGAL MEMORANDUM

TO; THE STATE ATTORNEY.

FROM; KIZZA ARNOLD LUMINSA.

DATE; 2nd, FEBRUARY, 2021.

BRIEF FACTS.

A serious dispute between John and James. As a result, James had to pay John a sum of 200,000 UGX.
However, James did not have the money and refused to pay John. Meanwhile, John was very furious about
this failure to compensate him the loss and started thinking of how he might get his revenge. He started
contemplating how he might kill James. He was overheard speaking to himself by Kajubi the rolex maker,
and he also talked to Marto the boda-boda rider about how he would carry out his plan. One evening after
cultivating his crops, John decided it was the right time to carry out his plan and get rid of James. At about
1:00am when it was pitch black and raining, he went with his hoe and a torch to the house of James, he
also wore a balaclava to disguise his face. When he reached, he forced himself into the house by breaking
the window. This noise awakened the wife of James called Mrs. Kato Claire, she tried to awaken her
husband who was dead asleep and could not respond. There was no electricity in the house and it was
raining so she thought it was just a dream. However, she was awakened again when she heard an object
being used to hit her husband several times on his head, she also heard someone say, “since you refused
to return my money, go to hell with it.” She tried to fight off the assailant and realized it was John, also
James cried out, my own brother John is finishing me off! John, John, my blood will haunt you until you
join me. When John realized he was being recognized, immediately ran out of the house leaving behind
the hoe, torch and balaclava. He ran away to the village of Kyampisi in Mukono where he stayed. Mrs. Kato
made an alarm which awoke most of the neighbours in the village including the chairman. The Chairman
rushed to the scene and when they tried taking James to the hospital he died before the ambulance could
arrive. The chairman called the Police and information has been gathered.

ISSUES.

1. Whether or not statements heard by kajubi the rolex maker are relevant and admissible?
2. Whether or not statements made to Marto the boda-boda rider are relevant and admissible?
3. Whether or not the prosecution can rely on the witness evidence of Mrs. Kato?
4. Whether or not James` last cry amounts to a dying declaration and is admissible?

01Trinity 2020/Advent 2021Examinations Page 11

LAW APPLICABLE.

Evidence Act, Cap 6.

Case law.

RESOLUTION OF ISSUES.

ISSUE 1.

Whether or not statements heard by kajubi the rolex maker are relevant and admissible?

All persons shall be competent to testify unless the court considers that they are prevented from
understanding the questions put to them, or from giving rational answers to those questions, by tender
years, extreme old age, disease, whether of body or mind, or any other cause of the same kind.45 According
to Section 60 Evidence Act,46 it is provided that the contents of a document may be proved either by
primary or secondary evidence. Section 59,47 is to the effect that oral evidence must in all case be direct
i.e., if it refers to a fact which was seen by a witness, it must be that person who saw it, but not someone
who was told. If it refers to a fact which could be heard, then it must be the evidence of a witness who
says he heard it. If it refers to a fact which could be perceived by any other sense or in any other manner
then it must be by the witness who perceived the fact. If it refers to an opinion or on the grounds upon
which the opinion was held then it must be evidence of that person, who actually holds the opinion and
those grounds. It is therefore clear in Section 59 of the Evidence Act,48 that the law only admits direct
evidence, and by exclusion whatever is left out is hearsay. The rationale for admitting direct evidence is
that it is the Best evidence as compared to hearsay evidence. The Evidence Act does not define hearsay
evidence but the implications of sections 58, 59 and 60 give inference that hearsay evidence is excluded
and cannot therefore be admitted.

In the case of Subraminium vs. DPP,49 the accused was charged with being in illegal possession of
ammunition contrary to Emergence Regulations obtaining in Malaysia and his defense was he came into
possession and was forced the weapons under duress. He wanted to adduce the words which ware used by
the terrorist to establish duress. This was rejected by the trial judge as hearsay evidence. The court of
Appeal held that it is only hearsay if is it adduced for the purpose of establishing the truth of what was
spoken and it would not be hearsay if it adduced if is adduced to establish that the fact was made.

45
Section 117 Evidence Act, Cap 6.
46
Evidence Act, Cap 6.
47
Evidence Act, Cap 6.
48
Ibid.
49
Subraminium vs. DPP (1995) Vol 1 WLR 965.
01Trinity 2020/Advent 2021Examinations Page 12
In relation to the instant facts, it is evident that, when john was contemplating how he might kill James,
he was overheard speaking to himself by Kajubi the rolex maker. This denotes that, the statements heard
by kajubi the rolex maker were not relevant for they amounted to hearsay. This can however suffice as
circumstantial evidence to corroborate other evidence such as the dying declaration among others. Am
therefore construed to conclude that, statements heard by kajubi the rolex maker were hearsay and not
inadmissible in court as explained here above.

ISSUE 2.

Whether or not statements made to Marto the boda-boda rider are relevant and admissible?

All persons shall be competent to testify unless the court considers that they are prevented from
understanding the questions put to them, or from giving rational answers to those questions, by tender
years, extreme old age, disease, whether of body or mind, or any other cause of the same kind.50 According
to Section 60 Evidence Act,51 it is provided that the contents of a document may be proved either by
primary or secondary evidence. Section 59,52 is to the effect that oral evidence must in all case be direct
i.e., if it refers to a fact which was seen by a witness, it must be that person who saw it, but not someone
who was told. If it refers to a fact which could be heard, then it must be the evidence of a witness who
says he heard it. If it refers to a fact which could be perceived by any other sense or in any other manner
then it must be by the witness who perceived the fact. If it refers to an opinion or on the grounds upon
which the opinion was held then it must be evidence of that person, who actually holds the opinion and
those grounds.

It is therefore clear in Section 59 of the Evidence Act,53 that the law only admits direct evidence, and by
exclusion whatever is left out is hearsay. The rationale for admitting direct evidence is that it is the Best
evidence as compared to hearsay evidence. In the case of R. vs. Sparks,54 the appellant (a Whiteman) was
indicted for indecent assault of a girl aged between 3 to 4 years. Shortly after the assault, a child who was
not a witness at the trial told the mother that it was a “coloured” boy who had assaulted the victim. The
defence objected to the mother giving such evidence because she was only repeating what another person
had told her. On appeal, the conviction was set aside on the grounds the mother’s evidence was hearsay.
It is also imperative to note that, Hearsay evidence will still be excluded even if it has a high evidential
value. In R. v. Turner,55 a third person who was called as a witness had confessed to having committed

50
Section 117 Evidence Act, Cap 6.
51
Evidence Act, Cap 6.
52
Evidence Act, Cap 6.
53
Ibid.
54
R. vs. Sparks (1964) A.C 964.
55
R. v. Turner (1957) AC 957.
01Trinity 2020/Advent 2021Examinations Page 13
the crime for which the accused was being tried. This evidence was adduced at the trial by the defense
but court rejected it, on the ground that it was hearsay.

In relation to the instant facts, it is also evident that, John also talked to Marto the boda-boda rider about
how he would carry out his plan. As earlier on explained, Hearsay evidence will still be excluded even if it
has a high evidential value. It is therefore possible that, if Marto the boda-boda rider is arraigned before
court to be cross examined about the veracity of john’s utterances, he may do so carelessly, there is a
likelihood of distortion of the original statement. It may be twisted depending on the interests of the
witness among other challenges. I am therefore construed to conclude that, the statements made to Marto
the boda-boda rider also amount to hearsay and inadmissible in court. It may however suffice as
circumstantial evidence to corroborate other evidence such as the dying declaration among others as
explained here above.

ISSUE 3.

Whether or not the prosecution can rely on the witness evidence of Mrs. Kato?

All persons shall be competent to testify unless the court considers that they are prevented from
understanding the questions put to them, or from giving rational answers to those questions, by tender
years, extreme old age, disease, whether of body or mind, or any other cause of the same kind.56 A witness
may be able to give his or her evidence in any other manner in which he or she can make it intelligible, as
by writing or by signs; but the writing must be written and the signs made in open court.57 Under Section
133 of the Evidence Act,58 no particular number of witnesses is required to prove any fact. Accordingly,
even a single witness can be called to prove a fact. However, because of the dangers associated with such
testimony, the courts have set out certain rules in this regard.

In the case of Uganda v George Wilson Simbwa Sct,59 The respondent was tried and acquitted of murder.
The DPP appealed against the acquittal arguing that the appeal involves a point of law of public
importance. It was alleged that one night while the deceased and his son guarded their banana plantation
against thieves who used to steal their bananas, the respondent, armed with a spear and a panga went to
the plantation to steal. The deceased’s son saw him and the deceased went forward to confront him but
was speared by the respondent. The son raised an alarm which many villagers answered. When they arrived
at the scene the deceased was still alive and told them that he had been stabbed by the respondent. The
respondent lived on the same village as the deceased and was well-known to the deceased’s family. The
trial judge found the conditions in the banana plantation unfavourable for easy identification. That it was

56
Section 117 Evidence Act, Cap 6.
57
Section 118 Evidence Act Cap 6.
58
Evidence Act, Cap 6.
59
Uganda v George Wilson Simbwa Sct. Cr. App No. 37 of 1995.
01Trinity 2020/Advent 2021Examinations Page 14
in a valley, no evidence was given to show that the two-cell torch held by the deceased’s son gave out
light of sufficient intensity, no evidence was led to show how the clusters in the plantation were spaced,
interalia.

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

The Supreme Court further observed that the deceased’s son was carrying a torch containing two dry
battery cells (two weeks old), had flashed the torch at the respondent who was only six metres away from
the witness, the witness had known him for seven years and lived in the same village and was even able to
describe the clothes the accused was wearing which evidence was unchallenged. That although the trial
judge had properly directed himself on the law applicable to evidence of identification by single witness
but misapplied the law thereby reaching a wrong conclusion. The evidence of identification was also
corroborated by the dying declaration which ruled out any mistaken identity.

In relation to the instant facts, it is evident that, when John forced himself into the house by breaking the
window, noise awakened the wife of James called Mrs. Kato Claire and she tried to awaken her husband
who was dead asleep and could not respond. There was no electricity in the house and it was raining so
she thought it was just a dream. However, she was awakened again when she heard an object being used
to hit her husband several times on his head, she also heard someone say, “since you refused to return my
money, go to hell with it.’’ She tried to fight off the assailant and realized it was John, also James cried
out, my own brother John is finishing me off! John, John, my blood will haunt you until you join me.

I am therefore construed to conclude that, prosecution can rely on the witness evidence of Mrs. Kato as a
single witness for she knew John who is accused person is known to the witness before the incident, which
is one of the conditions are unfavourable for correct identification. The evidence of identification was also
corroborated by the dying declaration. Therefore, the prosecution can rely on the witness evidence of Mrs.
Kato as a single witness as explained above.
01Trinity 2020/Advent 2021Examinations Page 15
ISSUE 4.

Whether or not James` last cry amounts to a dying declaration and is admissible?

The statements made by Wasswa James are admissible only if they relate to the cause of his death. If they
do not, they are inadmissible. If it relates to the death of James, it is a dying declaration as provided for
in Section 30(a).60 In R v Kabatereine,61 the deceased told the headman of her village two days before
her death (by being burnt in her hut) that the accused had threatened to burn her in her hut claiming that
she had caused death to his father by witchcraft. The court held that this was admissible as it directly
related to the occasion of the deceased’s death and was a circumstance which related to her death. In
order to establish whether the dying declaration is admissible, two elements must be shown to exist;
firstly, the maker of it must have died and the purported dying declaration must be a complete statement.
In the case of Waugh v R,62 the statement made by the deceased was held to be inadmissible because it
was incomplete.

In relation to the instant facts, it is evident that, heard someone say, “since you refused to return my
money, go to hell with it.’’ She tried to fight off the assailant and realized it was John, also James cried
out, my own brother John is finishing me off! John, John, my blood will haunt you until you join me. It is
very clear that, the statements made by Wasswa James relate to the cause of his death considering the
genesis of the whole story and also the other corroborated evidence. I am therefore construed to conclude
that, the statements made by Wasswa James are admissible because they relate to the cause of his death
as explained here above.

Yoursfaithfully,

…………………………………………………………………………
KIZZA ARNOLD LUMINSA.

60
Evidence Act Cap 6
61
R v Kabatereine (1946)13 EACA 164.
62
Waugh v R (1950) AC 203.
01Trinity 2020/Advent 2021Examinations Page 16
 BIBLIOGRAPHY.

STATUTES.

✓ Computer Misuse Act, 2011.

✓ Electronic Transactions Act 2011
✓ Evidence Act, Cap 6.

CASE LAW.

✓ Allen v. Kentucky, 26 Ky. L. Rptr. 807, 82 S.W. 589 (Ct. App.

✓ Amongin Jane Francis Okili Vesus Lucy Akello and The Electoral Commission HCT-02-cv.0001 – 2014.
✓ California v. Malgren, 139 Cal.App.3d 234, 188 Cal. Rptr. 569 (Ct. App. 1983).
✓ Coil Ltd v Attorney General (CIVIL SUIT NO.799 OF 2014).
✓ Colorado v. Brooks, 975 P.2d 1105, 1114, 81 A.L.R.5th 779 (1999).
✓ Copley v. Tennessee, 153 Tenn. 189, 281 S.W. 460 (1926).
✓ Dian GF International Ltd Vs Damco Logistics Ltd & Trantrack (CIVIL SUIT NO 161 OF 2010) [2012].
✓ Illinois v. Griffin, 48 Ill.App.2d 148, 198 N.E.2d 115 (Ct. App. 1964).
✓ Kalmus (1955).
✓ Kansas v. Fixley, 118 Kan. 1, 233 P. 796 (1925).
✓ Kansas v. Netherton, 133 Kan. 685, 3 P.2d 495 (1931).
✓ Macdonell vs Evans, (1852) common pleas 21 L.J C. P 141.
✓ Meyers v. Kentucky, 194 Ky. 523, 240 S.W. 71 (Ct. App. 1922).
✓ Michigan v. Jackson, 2008 WL 2037805 (Ct. App. 2008).
✓ Michigan v. McPherson, 85 Mich. App. 341, 271 N.W.2d 228 (Ct. App. 1978).
✓ Missouri v. Freyer, 330 Mo. 62, 48 S.W.2d 894 (Sup. Ct., Div.2. 1932).
✓ New Hampshire v. Taylor, 118 N.H. 855, 395 A.2d 505 (1978).
✓ North Carolina v. Dorsett, 245 N.C. 47, 95 S.E.2d 90 (1956).
✓ North Carolina v. Hawley, 54 N.C. App 293, 283 S.E.2d 387 (Ct. App. 1981).
✓ North Carolina v. Robinson, 181 N.C. 516, 106 S.E. 155 (1921).
✓ Omondi and Another versus R [1967] E.A 802.
✓ Perkins v. Texas, 2009 WL 2837356 (Ct. App. 2009).
✓ R v Kabatereine (1946)13 EACA 164.
✓ R. v. Turner (1957) AC 957.
✓ R. vs. Sparks (1964) A.C 964.
✓ Stidham v. Kentucky, 221 Ky. 49, 297 S.W. 929 (Ct. App. 1927).
✓ Subraminium vs. DPP (1995) Vol 1 WLR 965.
✓ Uganda v George Wilson Simbwa Sct. Cr. App No. 37 of 1995.
01Trinity 2020/Advent 2021Examinations Page 17
 ✓ Uganda versus Muheirwe and Anor HCT-05-CR-CN-0011 of 2012.
✓ Uganda vs David Kamugisha & Anor [1988-90] HCB 77.
✓ US v Briscoe f.2d 1476 at page 1494-95.
✓ Waugh v R (1950) AC 203.

BOOKS, ARTICLES AND ONLINE SOURCES.

✓ Bryan A. Garner, Black’s Law Dictionary 8th Edition, Thompson West.

✓ Duhaime’s Law Dictionary.
✓ Harvey et al. (2006).
✓ Hepper (1998).
✓ http://www.cybex.es/AG2005/news.htm.
✓ http://www.indianalawblog.com /archives/2007/06/discovery_of_el.html Monday, June 18th, 2007.
✓ K9 Search and Rescue by Resi Gerritsen, Ruud Haak (Bam, Iran, 2003).
✓ Kalmus (1955).
✓ Osborn’s Concise Law dictionary, 9th Edition, 2001.
✓ P.B Carter (1970); Cases and Statutes on Evidence, 11th edition, sweet & Maxwell, London.
✓ Schettler (2010).
✓ Susan Ellis Wild-legal Editor Webster’s New World Law Dictionary.

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