UNIVERSITY OF NAIROBI MODULE II PROGRAMME-2011/2012 (DAY AND EVENING) (NAIROBI) SECOND YEAR EXAMINATIONS FOR THE DEGREE OF BACHELOR OF LAWS GPR 207: EVIDENCE II DATE: MAY 28, 2012 TIME: 6:00 P.M. 8.00 P.M. INSTRUCTIONS: (a) Answer Question 1 and any other TWO questions. (b) Question 1 is COMPULSORY (c) Support each of your answers with relevant case law, statutory provisions and/or any other relevant authorities. (d) Marks may be lost for illegibility or vagueness. (e) Your answer sheet must bear your Student Registration Number. QUESTION ONE The elucidation of facts by means of questions put by parties or their representatives to witnesses mainly summoned by them, and called mainly in the order of their choice, before a judge, acting as an umpire rather than an inquisitor, has been an essential feature of the English [and Kenyan] adversarial or accusatorial system of justice Tapper, C. (2010) Cross & Tapper on Evidence, 12 th Edition, Oxford University Press, New York, at p. 272. Discuss the rules governing the course of evidence alluded to by the eminent author. 30 MARKS QUESTION TWO Write brief explanatory notes on each of the following: (a) The rule set out in section 125 of the Kenyan Evidence Act (b) The rule set out in section 127 of the Kenyan Evidence Act (c) Corroboration of Evidence (d) Bankers Books (e) Insane and dumb witnesses
QUESTION THREE The general rule is that a party seeking to rely upon the contents of a document must adduce primary evidence of those contents. Kean, A. (1996) The Modern Law of Evidence, 4 th Edition, Butterworths, London, at p. 201. Discuss the abovementioned general rule and the exceptions thereto. 20 MARKS QUESTION FOUR Evidence is not admissible in reply to evidence of good character. That point was decided in Regina v. Burt (5 Cox, Crim. Cas. 284), where witnesses were called to give the prisoner a general good character, and it was held by Martin B. that it was not competent to the prosecution to call witnesses in reply to give evidence of the prisoner's general bad character. Such evidence is inadmissible on the broad principle that character forms no part of the issue on the record. Mr Sleigh (for the Appellant) in (1865) LE & CA 1498 at p. 1499. Discuss the learned counsel s submission in the context of the modern law of evidence. 20 MARKS QUESTION FIVE Mr Dormiciano Camissasius, a maverick, wizened and grey-haired octogenarian from Kabeteshire, is the Electoral Commission s witness in a long, tortuous and bareknuckled fight in an election petition filed at the High Court of Kenya at Port Florence. By the year 2007, Mr Camissasius had not only retired from public service, having left a largely ignoble legacy, but also long reached his sell-by date. Written policy guidelines issued by the Electoral Commission prior to the election forbid the recruitment of electoral officers whose age exceeded the set limit of sixty years. In spite of those policy guidelines, Mr Camissasius somehow, inexplicably, secured an appointment to the position of Returning Officer in a populous constituency during the disputed 2007 general election. The appointment was, officially, explained on his invaluable experience and unparalleled knowledge on matters relating to electoral contests. His detractors immediately cried foul, saying that Mr Camissasius ignoble and controversial tenure as the head of the National security Intelligence Service and the special Branch made him unsuitable for the job. The cries, however, fell on deaf ears, as the Electoral Commission stuck to its guns. It was also loudly rumoured that Mr Camissasius was actually recruited to oversee the implementation of the (in)famous Kenyan electoral invention now commonly known as topping-up. The rumour mills further say that Mr Camissasius was the original author of the so-called Mlolongo system of voting, another Kenyan invention famed for starting the clamour for comprehensive constitutional and legal reforms in Kenya during the early 1990s. Questions have been raised in the election court relating to the execution and attestation of three critical documents, namely Form 16A, Form 17A and Form 17. Although Mr Camissasius claims to have signed all the three documents, the petitioner complains, the signatures appearing on the documents are as different as day is from night. Mr Camissasius says the petitioner s story is full of sound and fury but lacking in substance, the sort of story normally told by a fool. In particular, Mr Camissasius has told the election court not to read too much into the different signatures, as they are all his genuine signatures. The signature on Form 16A, he says, is the one appearing on his National Identity Card. The signature on Form 17A is the one appearing on his passport. The signature on Form 17,
Mr Camissasius further contends, is the one appearing on his Driving Licence. The petitioner s advocate is not at all impressed by Mr Camissasius lies, which he asks him to tell it to the birds. Accordingly, the petitioner s advocate asks Mr Camissasius to give his I.D., Passport and Driving License to the court, so that the court can compare the signatures thereon with the ones in issue. Mr Camissasius says he lost is I.D. and Passport during the post-election violence, and that his driving license was stolen in an unfortunate car-jacking incident three days prior to the trial. Undeterred to shred the witness credibility, the advocate has made an application seeking to compel Mr Camissasius to sign the signatures appearing on his I.D., Passport and Driving License on a clean sheet of paper, so that the court can verify his claim of having three signatures. The Electoral Commission is worried that its case would collapse if Mr Camissasius were to be ordered to sign each of his alleged three signatures on a clean sheet of paper as sought. Accordingly, the Electoral Commission seeks your brief and succinct legal opinion on the issues at hand, including the applicable statutory rules and how courts have previously handled similar situations. Kindly provide the required legal opinion. (20 MARKS) ---END---
MARKING SCHEME 1 QUESTION ONE tests the candidates knowledge of the rules governing the examination of witnesses and the general sequence for examination of witnesses (witnesses shall first be examined-in-chief, then cross-examined and re-examined (c.f. s. 146 of the Evidence Act), with special focus on: (a) With regard to Examination-in-Chief i. Purpose and scope (elicit facts favourable to the case of the party calling the witness); ii. the Prohibition against leading questions and the exception(s) thereto (leading questions may be asked in-chief on formal, introductory or uncontested matters. See Moor v Moor [1954] 2 All ER 458); iii. the Prohibition against questions as to previous consistent statements and the qualification(s) thereto (c.f. sections 149 150 (1) of the Evidence Act, rules on res gestae, complainants in sexual offences (R v Lillyman [1896] 2 Q.B. 167, where suggestions are made that the witness has fabricated their testimony, statements as to past identification); iv. the rule on hostile and unfavourable witnesses and the general prohibition against attacking character or credit of one s own witness and the exception(s) thereto (c.f. section 161 of the Evidence Act and the decisions in Rice v Howard [1886] 16 Q.B. 681 and Price v Manning [1889] 42 Ch. D 372 CA); and v. the common law and statutory rules on refreshing of memory and situations when documents used to refresh memory can be rendered admissible in evidence (c.f. section 167 of the Evidence Act and relevant chapter in the recommended text books) (b) With regard to Cross-Examination i. The purpose and scope of cross-examination (the purpose is to elicit facts favourable to the party cross-examining or impeach the accuracy, character or credit of the witness. The scope is generally unlimited (see section 146 (2), subject to certain rules set out in sections 159-160 of the Evidence Act); ii. the inherent power of the court control proceedings and curb excessive cross-examination; iii. the rule as to liability of all witnesses to be cross-examined and the exception thereto (c.f. Cross & Tapper at p. 316, Halsbury s at p. 443 and Adrian Kean, p. 149); iv. the power of the court to disallow needlessly offensive or scandalous questions in cross-examination (c.f. sections 159 and 160 of the Evidence Act); v. the rule on previous (in)consistent statements (c.f. section 165 of the Evidence Act); previous consistent statements generally inadmissible at common law save for cases of sexual offences, previous identification, statements on discovery of incriminating articles, statements on accusation, statements forming part of the res gestae etc; under modern law, evidence of previous consistent generally admissible (cf. section 165 of the Evidence Act) vi. the applicability of general rules as to admissibility of evidence to questions asked in cross-examination (c.f. decision in R v Brophy [1982] A.C. 476) and Wong-Kam-Ming v R [1980] A.C. 247);
(c) with regard to Re-Examination i. purpose and scope (purpose to explain, where possible, the issues raised during cross-examination. Scope limited to issues raised during cross-examination. c.f. section 146 (3) of the Evidence Act). ii. the relevant rules governing examination-in-chief as applicable to reexamination (e.g. leading questions, hostile and unfavourable witnesses etc). 2 QUESTION TWO tests the candidates knowledge of: (a) The rule set out at section 125 of the Evidence Act (the general rule that all persons are competent to give evidence unless prevented by tender years, extreme old age, disease of body or mind (or by similar cause) from understanding the questions put to them or giving rational answers to those questions); (b) The general rules set out at section 127 of the Evidence Act, namelyi. parties and their spouses are competent witnesses in civil proceedings; ii. accused persons and their spouse are generally competent but not iii. compellable for the defence in criminal proceedings; and accused persons and their spouses are generally incompetent as witnesses for the prosecution save for the cases listed in section 127 (3); (c) the requirement for i. corroboration of the unsworn evidence given by children of tender years and the exceptions thereto (c.f. section 124 of the Evidence Act; section 19 of the Oaths and Statutory Declarations Act and the decisions in Johnson Muiruri v Republic [1984] KLR 445 and Oloo v Republic [2009] KLR 416); and ii. corroboration of accomplice evidence (c.f. section 141 of the Evidence Act and the decision in Mwangi v Republic [2008] 1 KLR 1134); (d) the general protection accorded to bankers and bankers books in proceedings to which the bank is not a party (c.f. section 140 and Chapter VII of the Evidence Act). (e) The general competence of insane and dumb witnesses and the qualifications thereto (c.f. sections 125 (2) and 126 of the Evidence Act and the decision in R v Hill (1851) 2 Den 254). 3 QUESTION THREE tests the candidates knowledge of the general requirement for adduction of primary evidence when relying on the contents of a document (c.f. sections 65 (1) and 67 of the Evidence Act) and the following exceptions (c.f. section 68 of the Evidence Act) thereto: (a) when the original is shown or appears to be in the possession or power of i. the person against whom the document is sought to be proved; or ii. a person out of reach of, or not subject to, the process of the court; or iii. iv. any person legally bound to produce it; and when, after the notice required by section 69 has been given, such person refuses or fails to produce it; (b) when the existence, condition or contents of the original are proved to be admitted in writing by the person against whom it is proved, or by his representative in interest; (c) when the original has been destroyed or lost (c.f. Sugden v Lord St. Leonard's [1876] Probate 154), or when the party offering evidence of its contents
cannot, for any other reason not arising from his own default or neglect, produce it in a reasonable time; (d) when the original is of such a nature as not to be easily movable (e.g. a tombstone or a wall. C.f. Mortimer v M Callan (1840) 6 M & W 58); (e) when the original is a public document within the meaning of section 79, i.e. a document forming the acts or records of the acts i. of the sovereign authority; or ii. of official bodies and tribunals; or iii. of public officers, legislative, judicial or executive, whether of Kenya or of any other country; or iv. public records kept in Kenya of private documents. 4 QUESTION FOUR tests the candidates knowledge of the rules as to admissibility of character evidence in criminal proceedings as laid down in R v Rowton (1865) Le & Ca 520 CCR and sections 56 and 57 of the Evidence Act, with particular emphasis on the following: (a) the rule that evidence the accused is of bad character is generally inadmissible; (b) the rule that evidence that the accused is of good character is generally admissible; (c) The rationale for the admissibility of evidence of accused s good character in criminal proceedings as explained in Attorney General v Radloff (1854) 10 Exch 84 at 97; (d) The dangers of an accused i. giving evidence of his own good character; or ii. attacking the character of the complainant or prosecution witnesses; or iii. testifying in such a way as to undermine the defence of a co-accused. 5 QUESTION FIVE tests the candidates knowledge of the following rules as applicable to the execution and attestation of documents: (a) the general requirement to prove due execution and attestation (ss. 70 and 71 of the Evidence Act; (b) how to prove the due execution and attestation of documents (normally by calling the person who executed/attested or by secondary evidence or opinion of someone who is familiar with the handwriting or signature); and (c) the power of the court to compare signatures and handwritings and its limitations as set out in section 76 of the Evidence Act and explained in class).
SELECTED CONCERNS/OBSERVATIONS MADE DURING THE MARKING 1 A number of candidates did not know that section 125 of the Evidence Act only provides for competence of witnesses. They thought it covers both competence and compellability. 2 Some students did not appear to fully/correctly understand the rules as to the refreshing of memory and the circumstances under which a document used to refresh a witness memory can become admissible in evidence. 3 A significant number of candidates misunderstood the meaning of leading questions as questions designed to attract a yes or no answer, perhaps due to a misapprehension of Moor v Moor [1954] 2 All ER 458. 4 Some students did not appear to fully/correctly understand the circumstances under which a witness previous consistent statements can become admissible in evidence. 5 A small number of students did not understand the full scope of the compulsory question, as they seem to have understood it to be testing only the rules governing examination-in-chief. 6 Most of the students who attempted question four did not address themselves to the particular question asked, namely the correctness of the submission in the context of contemporary Evidence Law. Moreover, hardly did any student figure out that the submission was from the case of R v Rowton, a must-read for any candidate who has prepared/revised on character evidence. NOTABLE POINTS MADE BY THE CANDIDATES 1 Secondary evidence may also be allowed when the person containing the document is outside the reach of the court s jurisdiction. (G34/36997/2010). 2 An exception to the rule of leading questions can be found in England (UK) when it comes to victims of sexual assault and cases involving children of tender years, leading questions are allowed at this stage [examination-in-chief] of examination. (G34/36997/2010). 3 Insane witnesses are those who cannot understand with a clear mind. In law, insane witnesses are not competent witnesses but they can be compelled to give evidence generally, dumb witnesses are not competent but they can be compelled if they are found to be able to appreciate the facts in question through communication with an interpreter in court regarding the matter in question (G34/35541/2010). 4 Leading questions are those that the counsel asks to get an answer which he expects (G34/35541/2010 ). 5 As a matter of knowledge good lawyers will only cross-examined when they know the answers to what they will ask, e.g. the case you (Mr Muthomi i.e.) gave of a lawyers who asked a policeman questions not knowing he was a ballistics expert. (G34/35729/2010). 6 An insane and dumb witness seizes to be competent when he has outbursts in court due to his condition during proceedings. This would mean that he would not understand questions asked from thereon. (G34/28655/2009). 7 Bankers books are always for the purpose of security in that if they are used for transactions, the bank would know its legitimacy than in a situation where a customer transacts with personal books, i.e. personal cheques. (G34/28655/2009). 8 The proceedings in a case first begin with the examination in chief of a witness. Examination in chief is the situation whereby the defence party calls its witnesses If and when a witness becomes hostile the party examining the hostile witness at instance impeach or attack the evidence of the witness, all they need to do is inform the presiding judge or magistrate that the witness is a hostile witness and so should be treated as one, upon which the presiding magistrate shall take notice cross-examination of a witness is carried out by the prosecution party (G34/7572/2005).
9 Mr Cammisassius was the head of the National security Intelligence Service and the Special Branch. This means that at some point Mr Cammissasius was an officer in a public office, or so to say a public officer. The Evidence Act provides that the court shall presume a document signed or made by a public officer to be genuine and that the purported person/officer is the maker of that document or the signatory. Therefore, in this matter the court should presume that Mr Camisssasius signed the documents as he was a public officer at the particular time. The Evidence Act also provides that a book that is written by an author with express permission of the government or its direction, court shall presume that the person purported to be the author to be the true author. In this case therefore, Mr Camisssasius was the original author of the so-called Mlolongo system of voting which started the clamour for comprehensive constitutional and legal reforms in Kenya during the early 1990s. The fact that this book was authored in the early 1990s could mean that one of the documents signed by Mr Cammisassius is more than 20 years old. The Evidence Act states that court shall presume secondary copies of a document that is more than 20 years old to be genuine. Therefore, court should presume that any of the documents signed and produced by MR Cammisasius to be genuine if it dates back to more than 20 years ago. The court basing its decision on these provisions of the Evidence Act should therefore presume that the signatures in those forms are those Mr Cammissasius purports to be on his I.D., passport and driving license. G34/29429/2009.