E-69315

Examination Answer Book

UNIVERSITY EXAMS

REGISTRATION NUMBER VU-LLB-2201-0616-DAY

Title of The Program (eg BBA, BSC, BPH, BSWA) LLB
Bachelor of Laws
Department Other Depts in School of Law
Faculty School of Law
Year Of study (YrI , YrII, YrIII, or YrIV) 2
Module Code and Name LLB 2112
Evidence I
Semester 2
(Copy from the heading to the Examination Paper)
Retake: Yes ☐ No  (Tick whichever is applicable)
Date of examination Sun Oct 29 2023 13:00:00 GMT+0300 (East Africa Time)

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QUESTION 1.

Just like stated in the passage production of evidence in court is governed by the principles of
relevance and admissibility.

Relevancy to Cross and Tapper 13th edition page 66, refers to the relationship between two
facts whereby according to the common cause of events, one fact taken by itself or in
connection with other facts proves or renders probable past, present, or future existence or
non-existence of facts.

Admissibility refers to the process by which court decides whether to accept or reject items
of evidence depending on whether those items are relevant or not or whether they are
excluded by law from being taken in as evidence.

According to Section 4 of the Evidence Act, evidence of the existence or non-existence of

every fact in issue, as well as any other facts that are relevant, may be given in any suit or
proceeding. It was held in Oriental Fire and General assurance, V Govinder. 1 that if a party to
a suit fails to prove his or her allegations against the other party, the suit fails because the law
of evidence requires a certain standard of proof to be satisfied. Admitting evidence in court is
dependent on whether the evidence meets the rules of admissibility and whether it is relevant
before or after the fact in issue.

In the case of Uganda V Kamugisha. 2 it was thus held that if there were no rules of
admissibility and relevance, court would be filled with evidence which may not be relevant
and thus may delay the trial. For example, in the case of Struggle Insurance Co. Ltd v Pan
African Insurance Co. Ltd supra, one party produced evidence to prove the existence of a
company. The existence of the company was not in dispute, according to the Court, and it
was admissible because it was not a relevant fact.

In general, the law on admissibility and relevance is exclusionary. As a result, hearsay,

opinion, and character are generally inadmissible unless they meet a certain standard. The
general rule is that once evidence is admissible, the method by which it was obtained is
irrelevant. The case of Kuruma v. R exemplifies this. In that case, a man on a bicycle was

1
Oriental Fire and General assurance, V Govinder[1976] ILR
2
Uganda V Kamugisha Criminal session No 29 of 1989

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stopped by a roadblock and searched illegally without a warrant. He was found with two
pocket knives and two rounds of ammunition. The question was whether this evidence, which
had been obtained illegally, was admissible. Lord Goddard observed that the test to be
applied in determining the admissibility of evidence is whether such evidence is relevant to
the issue at hand, and that if it is, it is admissible, and the court is unconcerned about how
such evidence was obtained. However, it was also noted that the court retains the discretion
to exclude evidence, particularly in criminal cases, if strict admissibility rules would act
unfairly against the accused.

The concept of Res Gestae governs relevance and admissibility in general. According to the
case of Spear Motors (u) limited v Attorney General. 3 Among other things, res gestae refers
to facts surrounding or accompanying a transaction that is the subject of legal proceedings, or
all facts so connected with the facts in issue that they introduce, explain, or form it as one
continuous transaction. Acts, declarations, or circumstances that constitute, accompany, or
explain a fact or transaction are referred to as a fact or transaction.

The case of R V KURJI.4exemplifies this. The accused in this case stabbed the deceased's
brother and threatened the deceased. He was later seen standing over the deceased's body in
the basement of a nearby store, holding a knife. The court determined that the two
circumstances were so intertwined that the stabbing of the deceased's brother should be
considered part of the res gestae in the accused's murder trial. Despite the fact that it had the
potential to reveal the commission of another offense, the court ruled that it was admissible.

Further in the case of Makin V Attorney General of New South Wales. 5it was held that
evidence tending to show that the accused has been guilty of criminal offence other than the
one he is being tried is inadmissible unless it is relevant to the issue before court as for
example if it bears on the question whether the acts alleged to constitute the offense were
designed, accidental or if it rebuts an offense which will otherwise be open to the accused.

The case of Makindi vV R.6 The appellant was found guilty of manslaughter for killing his
nephew by severely beating him. The appellant claimed that the boy had epilepsy and that
this was how he was injured. The court accepted evidence presented by the prosecution that
3
Spear Motors (u) limited V Attorney General Criminal Session No. 692 of 2007
4
R V KURJI (1940) 7 EACA 58.
5
Makin V Attorney General of New South Wales. (1894) AC 57
6
Makindi V R (1961) EA 327

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the appellant had previously severely beaten the deceased. The Court ruled that this evidence
could be used to explain and substantiate the cause of death, as well as to refute any defenses
raised by the appellant. A statement or declaration must meet five criteria to be considered res
gestae.

To begin, it must be related to the main events and must explain or shed light on the main
events. This is demonstrated by the R V Kurji case discussed above.

Second, it must be a natural declaration arising from events rather than a recitation of past
events. This is demonstrated by the case Ramadhan Ismail V R, in which a girl was defiled
and informed her father of what had occurred. She then led her father to the house and
pointed at the suspect. It was argued that because this was a narration, it could not be
considered res gestae.

Third, it must be a statement or declaration of fact rather than an opinion. Fourth, it must be
contemporaneous or simultaneous with the event's occurrence. Finally, it must be signed by a
party who was a participant in the transaction or a witness to the event in question. Third, it
must be a statement or declaration of fact rather than an opinion.

Fourth, it must be contemporaneous or simultaneous with the event's occurrence. Finally, it

must be signed by a party who was a participant in the transaction or a witness to the event in
question.

The Evidence Act then goes on to cover the various aspects of res gestae from Section 5 to
Section 15. These include facts that are part of the same transaction, facts that are the
occasion, cause, or effect of the facts at issue, facts that show motive, preparation, previous or
subsequent conduct, and facts that show motive, preparation, previous or subsequent conduct.
Explanatory and introductory facts, facts demonstrating common intention, contradictory or
inconsistent facts, facts demonstrating the state of mind or bodily feeling, facts demonstrating
evidence of similar facts or occurrences, and facts demonstrating the ordinary course of
business.

The relevance of facts forming part of the same transaction is also addressed in Section 5 of
the Evidence Act. It includes facts that occurred at the same time, same place, or not at all. In
the case of R V. Birdseye, however, time was considered to be of the essence in admitting
Res gestae.

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According to Section 7 (1) of the Evidence Act, any fact that demonstrates or constitutes
motive or preparation for any fact in issue or relevant fact is relevant. The question in
Tinkamanyire and Anor v Uganda.7 was whether motive was relevant to evidence
admissibility. Because a person can commit a crime without having a motive, the court
determined that motive is always useful in criminal cases.

The presence of a motive increased the likelihood that the accused committed a crime.
According to Section 7 (2) of the Evidence Act, the conduct of any person in an offence
against him that is the subject of any proceeding is relevant if that conduct influences or is
influenced by any fact in issue or relevant fact, whether it was previous or subsequent to the
fact in issue or relevant fact.

It considers the relevance and admissibility of confessions when applying the concept of
relevance and admissibility in evidence law. Section 23 of the Evidence Act makes provision
for this. A confession must not be induced, illegally obtained, obtained through force,
violence, or threat in order for it to be admitted, as stated in Section 24. In Uganda v
Mutanhazo, the court ruled that a confession could be an unequivocal admission of having
committed an act that, in law, amounted to a crime or generates substantially all of the facts
that constitute the offense.

Finally, based on the provisions, Ugandan courts have applied the concepts of relevance and
admissibility.

QUESTION 1 B.

Discuss the technical relationship, differences and import if any between Sections 24 and 26
of The Evidence Act Cap 6 of the Laws of Uganda.

According to section 24 of the Evidence Act, cap 6, a confession must be free of threats,
violence, and inducements.

This section implies that a confession is only admissible if it is free of threats, violence, and
inducements.

In R v Okello v, the appellant intended to have best with a woman and, following
negotiations, agreed and identified a location within good grass. Instead of lying down, the

7
Tinkamanyire and Anor v Uganda Criminal session No. 65 of 2005

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woman clung to a tree, at which point the accused attempted to pull her down and she fell and
died. The accused was arrested and told to confess in order to reduce his punishment. The
accused confessed, and the confession was used against him at the trial, on appeal, and by the
court.

QUESTION TWO

Brief facts

Bassi FM, the radio station of the University of Mt. Morungole, has been broadcasting a
series of stories involving two of its employees, Khayando and Lalebbo. Lalebbo, who is
running for Senate, claims Khayando is due to retire, but Khayando disputes her birthdate and
claims her stepmother Nyangwa has gone missing. Nyangwa allegedly received a threatening
message from someone named Bladde, and Lalebbo now claims that both Khayando and she
hired Bladde to make Nyangwa disappear because she knew about their past. Khayando plans
to sue Bassi FM for defamation as a result of these reports.

Issue 1: Whether Kapoeta's testimony and the public records from Kabong admissible?

Issue 2: Whether Nyangwa’s statement was a dying a declaration?

Issue 3: Whether Bokorra is a competent witness and whether his conclusion that it was
Khayanda who hired Bladde is admissible?

The law Applicable

The Evidence Act Cap 6

The constitution of the republic of Uganda 1995 as amended

RESOLUTIONS

Issue 1:

Oral evidence must be direct, according to Section 59 of the Evidence Act. This necessitates
that it be provided by the person who directly perceived the fact through their senses. The
complainant in R V Gibson was struck by a stone. He claimed that immediately after being

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hit by the stone, a passing lady pointed to the accused's house and said that the person hit by
the complaint had entered there. However, the lady was never called to testify. This evidence
was found to be inadmissible.8

Section 30, hearsay evidence is admissible under the exceptions enumerated there under. In
the case of Mohammed Taki V R. 9 It was held that hearsay evidence is admissible where the
person who perceived a fact through their senses cannot be found, has become incapable of
giving evidence, or whose attendance cannot be obtained without an amount of delay or
expense that appears to the court unreasonable in the circumstances of the case.

However, in order to succeed under this Section, a person must demonstrate that the facts of
the case fall within the categories listed in Section 30(a)-(c) (h). The admissibility of
Kapoeta's evidence in this case is determined by whether she witnessed Khayando's birth or
was told about it by Nyagwa.

In the instant case the facts of the case do not reveal enough information to draw any
conclusions. As a result, if Kapoeta saw Khayando's birth, the evidence is admissible because
it is not hearsay. However, if Kapoeta was only told by Nyagwa, the evidence is inadmissible
because it falls outside the scope of Section 30(a) (h)

MORE; Section 33 of the Evidence Act, Public records made by a public servant in the
discharge of his or her official duty or by any other person in performance of a duty specially
enjoined by the law of the country in which the book, register, or record is kept are relevant.

In this case, public records in Kabong prove Khayando's age. They pass the test for public
records established in Manji Suleiman v. RG Patel and others [1960] and are thus admissible.

Issue 2:

Section 30(a) provides an exception to the hearsay rule, stating that a statement made by the
person as to the cause of his or her death or any circumstances of the transaction that resulted
in his or her death is admissible. A dying declaration must meet four criteria, according to
Swami V King Emperor.10 in order to be valid.

8
R V Gibson [2008] 1 SCCR 397
9
Mohammed Taki V R [1948] 15 E.A.C.A 121
10
Swami V King Emperor [1939] 1 ALL ER

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To begin, there must be proof of the maker's death, and the statement must relate to the cause
of death or the circumstances that led to his or her death. There is no direct evidence of
Nyangwa's death in this case. But circumstantial evidence suggests she is. Indeed, it was held
in the case of Uganda V Barikunda.11 Circumstantial evidence can be used to prove death.
However, this evidence must be confirmed. The circumstantial evidence is corroborated in
this case.

Nyangwa was receiving death threats. It's been 6 months since she went missing.
Furthermore, Lalebbo has a witness who will testify that both Lalebbo and Khayanda planned
to kill her by hiring machinery. These facts supported the theory that Nyangwa was indeed
dead. Second, the statement must be complete, which means that the deceased should have
said everything they wanted to say. It has to be free expression. Finally, it should be
confirmed. Nyangwa's Bokkora a message is a valid dying declaration because it meets the
other requirements.

Issue 3:

Section 117 of the Evidence Act states that all persons are competent unless the court
determines that they are unable to understand the question put to them. In Tomasi Umukono
v Republic, it can be inferred that before taking the evidence of a child of tender age, defined
as 14 years and under, the court must first determine whether the child is of sufficient
intelligence to justify the reception of that evidence and understands the duty of speaking the
truth.

In Kigagenyi Arap Kolil v R court, the court stated that if a child understands the duty of
speaking the truth, the oath is administered prior to taking such confession. Section 40 (3) of
the Trial on Indictment Act, Section 10 of the Oaths Act, and Section 101 (3) of the
Magistrates Act all state that if a child of tender years does not understand the nature of an
oath in the opinion of the court, his evidence may be received even if not on oath if he or she
possessed sufficient intelligence to justify the reception of evidence and understanding the
duty of speaking the truth.

Court in Uganda v Ngaswireki.12 and another noted that, in light of the statutory
responsibility to assess the intelligence of the child and determine whether he or she
11
Uganda V Barikunda [1885] HCB 12
12
Uganda v Ngaswireki Criminal Appeal No. 3 of 2027

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understands the duty of speaking the truth, a trial court conducts a voire dire before taking the
testimony of any child of tender age.

A voire dire is a common law criminal procedure involving a preliminary examination by the
trial judge to determine the competence of the child and whether he possesses sufficient
intelligence to testify in the matter before court. In this case, the toddler is competent to
testify in court because Section 117 of the Evidence Act states that all persons are competent
witnesses.

Question 4

Dying declaration is one of the exceptions to the general rule to the admissibility of the
hearsay evidence, it better to define hearsay evidence and proceed to dying declaration
in particular as demanded by the question

According to Subraminium V Public Prosecutor supra, the court held, hearsay evidence is
an assertion of a person other than the witness testifying offered as evidence of the truth of
that assertion rather than as evidence of the fact that the assertion was made.

The rationale for inadmissibility of hearsay evidence was given in Marshall v R.13 where it
It was stated that the general rule is that hearsay evidence is inadmissible because such
statements are not subjected to the ordinary tests required by law to determine their truth.

In general, hearsay evidence is not admissible. However, there are common law exceptions
that have been codified under Section 30 of the Evidence Act. Also included in the dying
declaration

Dying Declarations is provided for understanding section 30 (a) of the Evidence Act where
it is provided that it is immaterial whether at the time of the making the statement, the person
was under expectation of death.

A dying declaration refers to a statement made by the deceased person in order to determine
the cause of death or the circumstances surrounding their death. As a result, the goal of this
statement is to establish the circumstances surrounding or involved in the transaction that
may have resulted in death. The Court stated in Sabiiti Vicent v Uganda.14 Although a dying

13
Marshall v R [1999] 3 SCR 533
14
Sabiiti Vicent v Uganda Criminal Appeal No. 140 of 2001

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declaration is admissible evidence, it should be used with caution to convict because it lacks
cross examination. In addition, the circumstances surrounding the dying declaration must be
investigated to determine whether the declarant saw the accused.

The rationale behind the admissibility of dying declarations is stated in R v Woodcock. 15

where it was stated that the deceased must have lost all hope of survival that if at least he had
a chance, however remote, then it cannot be admitted. The reasoning is to ensure that the
person does not lie as a result of the moral and spiritual compulsion that has taken over.

The following are the components of a dying declaration:

There must be proof of death, and the statement must be related to the deceased's cause of
death. In Mohamed Warsame v R.16 the deceased made a series of precise and detailed
statements that, if true, were conclusive, but the cause of death was not his. The dying
declaration was ruled inadmissible because it had to be related to the deceased.

Waugh v R (1950).17 stated that the statement must be complete. The deceased must have
said everything he wanted to say about the circumstances of the case or the cause of death for
the statement to be complete. If death interrupted the statement, it would not be considered
complete. The reason for this is that the deceased may have added something that contradicts
his previous assertions. It should be a free expression of the deceased that is to say it must be
voluntarily made. This was fortified in

It should be verified; Corroboration of a dying declaration is always required because the

declarant is not present to be cross-examined. It is not a rule of law, but rather a matter of
practice to avoid implicating innocent people. However, if the case does not require
corroboration, the court may proceed to convict. This evidence should come from somewhere
other than the circumstances of the dying declaration. A dying declaration cannot
corroborate other evidence because itself needs corroboration. In the case of In R v Eligu &
Others.18 the court emphasized that in cases where dying declarations were made, courts
always insisted on corroborative evidence before acting on them. Corroboration is preferable
in cases of dying declarations, but it is not always required to support a conviction.

15
R v Woodcock [2003] 175 O. A.C 279
16
Mohamed Warsame v R (1956) 23 EACA 576
17
Waugh v R (1950) A.C 203
18
R v Eligu & Others (1943) 10 EACA 90,

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The problem of time. This relates to the close proximity of the cause of death and the death.
Swami v Emperor discussed proximity, and it was held that circumstances must have some
proximate relationship to the actual occurrence, and circumstances are those of the
transaction that resulted in the Declarant's death.

This was also considered in the case of Barugahare v R. 19 In this case, a woman made a
statement six weeks before her death. It was said that the accused asked to marry her and
even gave her money, but she refused and he threatened to kill her. This woman was later
murdered, and it is claimed that she was murdered by the accused. The question was whether
this could be used as a dying declaration. The court rejected it because there had to be a
proximate relationship between the statement made and the death itself.

Question Six

“It is trite law that if a piece of evidence is told to be relevant to a fact in issue, the mode
in which it is procured is immaterial...” as held in NKURUMAH –VS- R (1965) EACA
364.

With particular reference to the law relating to confessions in Uganda, explain the
veracity of the above statement. (20 Marks).

According to Thomas J Gardner and Terry M Anderson in their book, Confession is like
no evidence indeed, the defendant’s own statements or confessions is probably the most
probative and damaging evidence that can be admitted against him. Confession is generally
viewed as a guilty plea in an open court of law.

To these two authors, if true, confessions are the best evidence of guilt, and on the other
hand, if untrue, and given by the defendants because of coercion or pressure, confessions
carry a big risk that may mislead. For this reason, the law governing confession has been very
complex in history.

The mode of procuring confession is material and there are rules and procedure must be
followed before they can be admitted in the court of law, who can confess or make
confession, to whom such confession can or may be made, procedure of making such
confessions, the admissibility of such confessions (voluntary and involuntary confessions),

19
Barugahare v R (1957) E.A 149.

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confessions by the co-accused, retracted and repudiated confessions, and finally whether
confessions alone is sufficient to convict a person of an offence.

Who can make or may make confession under the law of Uganda

In regard to Article 28 (3)(a), that whoever is charged of a criminal offence, is presumed to

be innocent until proven guilty or pleads guilty of the same offence. Just as if true,
confessions are the best evidence of guilt, it is a matter of fact that if the pleads guilty or
accept to have committed an offence, means he or she has confessed to the crime hence
confession.

As the law is now clear, it is the person accused, or that accused of committing a crime, is
that who may confess to such crime. Article 28(3)(a) is clear and that confession is not
mandatory, if one does so it’s to advantage of the prosecution as little work may be left, and
if not, such person is left wholly for the prosecution to prove their guilt beyond reasonable
doubt.

To whom and where can a confession may be made

In Uganda confessions cannot just be made to anyone and anywhere and be admitted against
such person who makes it. Section 23(1) of Evidence Act, confessions must be made in the
presence of police officer of or above the rank of the Assistant Inspector of Police, otherwise
confession made by a person under the custody of the police but in the absence of such
officer cannot be considered in evidence.

Section 23(1)(a), and (b) provide that confession may be made in the presence of the police
officer of the rank or above the that rank of the Assistant Inspector of the police and a
Magistrate. This also impliedly means that these are the only category of the officers to
whom confessions may be made. Confessions made to other people cannot be considered in
law and in evidence as well.

The procedure of confession as a matter of principle must be followed

The procedure of confession has been laid down in the case of Festo Androa & Anor v
Uganda. the court listed the procedure for recording confessions as follows;

1. Cautioning: The accused must be cautioned before a statement is made,

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As provided by the Rule 4 of the Evidence (statement to police officer) Rules. The rule calls
upon the police to administer a caution to the person is or she is charging of an offence, that
this caution may even be given at the beginning and in the middle of the questioning by such
police officer.

Rule 5 states that no prisoner shall be questioned or no statement shall be taken from a
prisoner before administering a caution, but where a prisoner makes a statement before he or
she before he or she could be cautioned, it shall have to be made as soon as reasonably
possible.

Under Rule 10 of the evidence (statement to police officer), it guides the police officer on
what caution to be given to a prisoner who is to make confession. The confessor is cautioned
not to say anything unless he or she wish to do so, that whatever he or she says will be taken
down in writing and may be given in evidence against them. This gives the confessor
freedom on whether to say or not say anything otherwise, its his or right.

In the case of Mweru Ali & Ors V Uganda. the appellant willingly signed the charge and
caution statement given to him before his confession was recorded. But he argued on an
appeal that his confession was irregularly obtained as far as it was not recorded voluntarily.

The court held that appellant was served with both the caution statement and the charge
statement which he willingly signed and after recording the statement, it was read back to
him before he countersigned it. It was thus held that the procedure for recording the
confession was valid.

2. Recording. A police officer recording the statement must be an Assistant Inspector of

police or higher.

Section 23 of the Evidence Act, provides for who should record a confession, and in it it’s the
Assistant Inspector of Police, and not any other below such a rank would be allowed to do the
same. The magistrate is as well given such power under the same provision of the law.

In the case of Wasswa & Anor v Uganda. the Appellant was made to confessed to police of
the rank below that of the Assistant Inspector of Police as per section 23 (1)(a) of the
Evidence Act. The court held that such confession was inadmissible.

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Rule 7 of the Evidence (statement to police officer) Rules, that the police officer must write
such confession, this is done for a purpose of record in case it may be used in any proceeding.

3. A Confession must be written or recorded in a language the accused understands.

The police officer recording or writing the statement, do it in the language understood by the
person making the statement, or if the police officer is not literate in such language, be
assisted by any person who is literate by translating exactly what is being said by the person
making the statement to the language that the police understand better, that he now notes it
down.

Rule 8, after recording all the statement or any statement from the prisoner, it must be read
back to the confessor, be allowed to make correction where necessary as he or she may feel
like, be asked to signed after satisfactorily accepting that everything is correct that he she has
said and has been recorded by the police officer.

The significant of this, is to make the confessor undoubtedly accept that what has been or
being recorded is actually what he or she is saying or has said. This erase mistakes and errors
of recording what the confessor could have not said, that may taint administration of justice,
in an event that it is to be used in any proceeding against the confessor.

In a Uganda case of Walugembe Henry and 2 others v. Uganda. the first and second
appellants informed court that their confessions were recorded in English rather than in the
language that they understood. The court in allowing the appeal stated that “it was a
misdirection to admit confessions with the irregularity that the confessions were recorded in a
language the appellants did not understand without testing the voluntariness of the
confessions”.

4. A confession must be made in a room having two people.

According to the law of confession applicable in Uganda, Confession is considered to made

in a room having only two people. This is aimed to avoid interference from people, fear by
the confessor which may arise.

In all the procedure to be followed, Rule 7 of the Evidence (statement to police officer)
Rules, that prisoners are not to be cross-examined. The police officer is just to write or record
such statement without asking any direct question to the statement the prisoner makes.

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Can confession alone sustain a criminal conviction (Corpus Delicti Rule)

Confessions must be corroborated by other evidence

In the US Supreme court case of Colorade v Connelly of 1986, where Frank Connelly
approached police on the Denver Street and confessed of a murder. The police could find no
other evidence of the murder. the question was placed before the court, as to whether Frank
Connelly could be charged and convicted of a murder solely on the confession.

When confession is used as evidence, corroborating evidence must be given to prove the
corpus delicti (that the person committed the crime). This requirement originated from the
England notorious PERRY CASE of 1660. The defendant was convicted of murder and
executed solely on the basis of confession “only to have the murder victim subsequently
appear alive”

As the Supreme court of California pointed out in 1991, that the rule that confession alone
could not sustain a conviction against the defendant or the confessor, was to protect the
defendants from the fabricating testimony which might wrongly establish the crime and the
perpetrators. For the reason that confessions may be as a result of either improper police
activity or mental instability of the accused and may be uncritically.

The low threshold must be met before a confession or the defendant’s own statements can e
admitted, it is sensible to show that the crime to which the defendant makes or has made a
confession actually happened, and to be satisfied that such defendants are not admitting to the
crime which never occurred or which they never got involved or even know about.

Uncorroborated confessions or statements is generally inadmissible. Corroborating evidence

need not be independently establishing the commission of the crime rather corroborating
evidence must establish the trustworthiness or the truthfulness.

In Uganda law, nothing much different as discussed above, Section 23 (1)(b) that no one can
be solely convicted on the basis of the confessions made by him or her. Confessions must be
corroborated by other material evidence in support. This means that the prosecution cannot
use the advantage of having the confession, to sustain the burden laid on it, and its standard
of proving the guilt of the accused.

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In the case of Mumbere Julius v Uganda. where the supreme court hearing a second appeal,
that it found out that the High Court selectively had chosen the confession as a basis of the
conviction and sentencing of the appellant for murder, the Court of Appeal upheld the same.

That it was incumbent, on the trial judge to would have evaluated any other evidence to see
whether it could shed more lights in the entire case. The low courts also used only a part an
left a part of the charge and caution statement where the appellant raised “self defence and “.
for this reason, the appellant conviction was reduced to manslaughter.

The Admissibility of Confessions.

Not all confessions made to the police or a magistrate are automatically admissible. However,
the general rule is;

All voluntary confessions are admissible before the courts of law. All involuntary confessions
are inadmissible in the court of law. The issue here is not that, it was made to lawful people
like the police and magistrate as per section 23 (1) of the Evidence Act. But confession need
generally bee voluntary and not involuntary.

Voluntariness test or voluntary confession

Confession must be voluntary made to be admitted

All voluntary confessions are admissible in evidence

In the 15th Century, the English courts and the law officers often obtained confessions to the
crime by means of torture and violence. This made the English courts to develop a concept
known as “NO MAN IS BOUND TO ACCUESE HIMSELF” (nemo tenetur seipsum
accusare.

That person ought not to be put in trial for a crime and compelled to answer incriminating
questions until after he had been properly accused. That no person in all criminal cases shall
be compelled to be a witness against himself nor deprived of life, liberty, or property without
following the due process of the law.

The Black’s Law Dictionary, defines voluntary confession as which is given freely without
any benefit or punishment or in short without the will of such individuals being vitiated. To
make the term voluntary more independent and more satisfactory, involuntary confession is

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as well defined as confessions induced or vitiated by the authority, through either coercion,
threats, violence, oppression and promises.

To Phipson in his book, as established by a positive rule of the English criminal law. That no
statements by an accused is admissible in evidence against him or her unless it is shown by
the prosecution to have been voluntarily made, in the sense that it has not been obtained from
him by either fear of prejudice or hope of advantage exercised.

In the case Mumbere Julius V Uganda Criminal Appeal No. 15 of 2014, the High court, the
Court of Appeal, and the Supreme Court, when this case was before them all of them held
that the confession made by the accused in the charge and caution statement was freely made,
he was not either induced, forced, given promise to, the accused decided to confess freely, it
was found out by the High Court when it carried out trial in trial.

Confessions and admissions by the suspect must be voluntarily and freely given. If the police
or any other person or even the prosecutor obtains a confession or incriminating admission by
means that overbear the will of the accused, that confession or the incriminating statements is
not and cannot be used in evidence, since it would be a denial of a due process of the law.

Involuntary confession

The Black's Law Dictionary defines involuntary confession is as well defined as confessions
induced or vitiated by the authority, through either coercion, threats, violence, oppression and
promises.

The general rule is that, all confessions whether the right procedure has been followed in
recording, it is inadmissible in evidence in the court of law. If the police or a magistrate, or
whoever authorized by law to record confessions does so by the means that overbear the will
of the confessor, such statements obtained in such a way, cannot be used in evidence as it
would be a denial of the due process of the law.

All involuntary confessions are generally inadmissible in evidence in criminal proceedings

In the US Supreme Court case of Brown v Mississippi of 1936, when murder occurred in
Mississippi, in 1934, the defendants, who were the three black men were taken into custody,
by the law enforcement officers. By whipping, beating and actual hanging of one of the

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defendants by a rope to the limb of a tree and confession to the murder was obtained from the
defendants.

With practically no other evidence and with the rope marks clearly visible on the neck of the
defendant who was hanged, the defendants were convicted. The Supreme Court reversed the
conviction that it was inconsistent with the due process of the law as required, confession to
have been made voluntarily. The conviction and the sentence were void for the wants of the
due process of the law.

In Ugandan law, section 24 of the Evidence Act, all confession obtained or made under
inducement, threats, violence, oppressions, force are involuntary confessions, as the free
mind of the individual could have been vitiated therefore, such confession cannot be used in
evidence.

In Mwangi s/o Njorege v. R, the police officer said to the accused that, “You had better think
whether you are going to tell me or not”. The accused after hearing this made a statement
immediately. The court held that this was inadmissible since the words made by the police
officer were an ‘implied threat’. In this case, we can see that there was a causal link between
the police officer’s threatening statements and the accused’s confession.

Confessions and statements can be involuntarily obtained from a suspect or accused not only
by above mentioned factors but as well by withholding food, water, clothing, and other
essentials of life, the court would not allow such confessions obtained in those circumstances
if proved to be used in evidence.

Confession against the co-accused or co-defendants

All voluntary confessions by an accused against the others are generally admissible against
the maker himself and the others.

This a situation where two or more persons are accused of a crime, that one of them or more
confessed against the others for the commission of the same offence.

Section 27 of the Evidence Act, where more than one person is accused that one of them
makes a statement or confession that is against him and the other accused or defendants. As
per this section, the court shall consider such confessions against the maker and the rest of the
accused who are affected by the same.

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In the case of Uganda v Sebuguzi & Others (1988-1990) HCB 18, Although a confession of a
co accused could be taken into consideration against a fellow accused person, this being of
the weakest kind, could only be used as lending assurance to other evidence but could not be
used to form the basis of the case against another accused.

The reason for considering such evidence as the evidence of the weakest kind was that it was
not only hearsay, but it was evidence of such a nature that the co accused couldn’t test in
cross-examination of the maker against him. This means such confessions though may be
considered, they are not as strong as enough for the court to rely on them, but be fully
connected or corroborated by other relevant evidence.

Repudiated or Retracted Confession

A repudiated or retracted confession is one in which someone admits to committing a crime

or wrongdoing but later recants or withdraws that admission. This can happen in legal
proceedings, such as criminal trials, when a person initially confesses to a crime but later
claims that the confession was false, coerced, or forced. Retraction of a confession can have
serious legal consequences, and it is frequently a source of contention in court.

The court distinguished between 'Repudiated' and 'Retracted' confessions in Tuwamoi v.

Uganda. According to the court, "repudiated confessions occur when the accused denies
having made the statement, whereas retracted confessions occur when the accused admits
making the statement and then wishes to challenge the truthfulness of the statement he or she
has already made."

The confessors are generally allowed to challenge any confessions they might have made,
they may retract or repudiate.

How do courts deal with confessions that have been repudiated or retracted? (A trial inside a
trial)

Where a court finds out that an individual has repudiated or retracted their statements or
confessions, or where the confessor retracts or repudiates, to prove this, a trial within a trial is
held. The main proceedings or the case is put on hold by the rial court, and facts about the
confession is brought to book for the determination.

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A "trial within a trial," also known as a "voir dire" or "evidentiary hearing," is a legal
proceeding that takes place as part of a larger criminal trial. Its purpose is to determine the
admissibility of specific evidence, typically evidence seized without a proper search warrant
or a confession obtained in violation of the defendant's rights, as claimed by the defense.

In the Supreme Court Case of Mumbere Julius V Uganda, where the appellant repudiated his
statements that he had made to the police about the death of the deceased. The supreme
recognized the fact that the trial court termed in here as the high court carried out trial within
a trial and actually found out that the accused or the appellant actually made the statement.

The real point in repudiation and retraction of the confessions is that, the court has to find the
truthfulness of such confession as to, whether such confessions were actually made by that
person, and now repudiating it. Whether such confessions were made but due to other
influence. The court has a duty to find out why a party is repudiating or retracting and come
to the most justifiable decisions.

In the case of Matovu Musa v Uganda. Criminal Appeal No. 27 of 2002, where the court
stated that the law on the retraction and repudiation of confessions is succinctly stated in the
case of Tuwamoi V Uganda, that courts should accept all the confessions whether they have
been retracted or repudiated with a lot of caution. And before finding a conviction on the
same, analyze all other circumstances and be fully satisfied that the confession was made
voluntarily and its true that it was made with regard to the due process of the law.

The court established in Amos Birunge v. Uganda. that "when the admissibility of an
extrajudicial statement or confession is challenged, the accused must be given a chance to
establish his/her grounds of objection by evidence through a trial within a trial." The court
stated that "the purpose of a trial within a trial is to decide whether the confession should be
admitted or not based on the evidence of both sides."

Summary of principles applicable in the law of confession are summarized as follows;

Procedure of making confessions must be strictly followed.

Confession must be made to either the police of the rank of Assistant Inspector of Police or
above and a Magistrate

Confession must be made voluntarily

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Voluntary confessions are admissible

Involuntary confessions are inadmissible

Confession by co-accused or co-defendants is considered against the maker and against the
rest of the accused persons.

Confession may be retracted or repudiated, and the court has a duty to find out why and
whether it was made

Trial in trial is a required principle set to determine the voluntariness and involuntariness of
any confession.

Conclusively; the methods of procuring confession is material and not immaterial as there
are procedures to be followed, confessions must be voluntarily made following the right
procedure to be admissible otherwise, if involuntarily made, it is inadmissible. It can never be
a sole reason to convict any accused unless corroborated with other relevant evidence.

REFERENCES

The Laws

The Constitution of the Republic of Uganda 1995 as amended

The Evidence Act Cap 6

The Evidence (Statement to Police Officer)

Text Books

The Black’s Law Dictionary 11th Edition by Bryan A Garner

Criminal Evidence (Principles and Cases) 7 Edition by Thomas J Gardner and Terry M
Anderson

Phipson on Evidence Law 20th Edition

The Law of Evidence by Cross and Tapper 13th Edition.

Case Laws

Festo Androa & Anor v Uganda Criminal Appeal No. 1 of 1998

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Mweru Ali & Ors V Uganda Criminal Appeal No. 33 of 2002

Tuwamoi v. Uganda. [1967] EA 84, 91

R V Gibson [2008] 1 SCCR 397

Mohammed Taki V R [1948] 15 E.A.C.A 121

Swami V King Emperor [1939] 1 ALL ER

Uganda V Barikunda [1885] HCB 12

Subramanian v Public Prosecutor (1956) 1 WLR 965,

Uganda v Ngaswireki Criminal Appeal No. 3 of 2027

Tinkamanyire and Anor v Uganda Criminal session No. 65 of 2005

Uganda V Kamugisha Criminal session No 29 of 1989
R V KURJI (1940) 7 EACA 58

Sabiiti Vicent v Uganda Criminal Appeal No. 140 of 2001

Marshall v R [1999] 3 SCR 533

R v Woodcock [2003] 175 O .A.C 279

Mohamed Warsame v R (1956) 23 EACA 576,

Waugh v R (1950) A.C 203

Mohamed Warsame v R (1956) 23 EACA 576

R v Eligu & Others (1943) 10 EACA 90,

Barugahare v R (1957) E.A 149.

Amos Birunge v. Uganda Criminal Appeal No. 23 of 1989

Matovu Musa v Uganda. Criminal Appeal No. 27 of 2002

Mumbere Julius V Uganda Criminal Appeal No. 15 of 2014

Uganda v Sebuguzi & Others (1988-1990) HCB 18,

Wasswa & Anor v Uganda Criminal Appeal No. 102 of 2017

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Walugembe Henry and 2 others v. Uganda Unreported case 39 of 2003 1 November 2005

The Perry case of [1660] ALL ER

Brown v Mississippi of [1936] US SC

Colorade v Connelly of [1986] US SC

THE END

BY OOLA DANIEL COMBONI

VU-LLB-2201-0616-DAY

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