Evidence

Syllabus
1) Burden & Standard of Proof

2) Competence & Compellability

3) Corroboration

4) Identification Evidence

5) Presumptions

6) Testimony - Examination-In-Chief, Cross-Examination,

Re-Examination; Leading Questions, Previous Consistent Statements,
Refreshing Memory in Court, Unfavorable and Hostile Witnesses.

7) Opinion Evidence

8) Illegally Obtained Evidence

9) Relevance and Admissibility

10) Legal Professional Privilege

11) Privilege against Self-Incrimination

12) Similar-Fact Evidence

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Burden & Standard of Proof
Burden of Proof in Criminal Cases

The general rule is that in all criminal cases, the prosecution bears the burden of proof of
all of the ingredients of the offence. The accused does not have to prove his innocence.
The reason for the prosecution bearing such a burden is that…

1) There is a Presumption of Innocence - the accused, when charged, benefits from this
presumption of innocence as provided for by S.23 (4) of the Constitution of Sierra Leone,
1991.

2) He Who Asserts Must Prove.

3) The Prosecution Normally Has All the Resources at its disposal to prove the innocence
or conviction of an accused person. There is no ‘equality of arms’; the prosecution has an
advantage.

The leading case is Woolmington v. DPP; the accused was charged with murdering his
wife. He admitted that he shot her but his defense was that he shot her by accident.
Viscount Skankey directed that once it was established that she died as a result of the
accused shooting her, Woolmington had the onus of proving his claim of accident.
Woolmington appealed to the CA but the CA dismissed his appeal and upheld his
conviction. He appealed further to the HL where he succeeded. The HL held that the
direction given by the trial judge that Woolmington must establish the accident was the
wrong direction as the onus of proof had been passed on to the defense whereas it should
have been on the prosecution.

The authority in Sierra Leone is Kargbo v. R, a Court of Appeal decision.

The Gambian authority is Musa Sesay and Four Others v. The State.

Exceptions to the General Rule that the Prosecution bears the Burden

1) Common Law defence of Insanity

2) Statutory Exceptions

The burden of proof in criminal cases does not shift; it is constant, even when the accused
has to prove insanity or is relying on statutory exceptions. This is because all that the
accused has to prove is the issue of insanity, for example, but all the other ingredients are
to be proved by the prosecution.

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If relying on statutory provisions, he/she has only to prove the defense which they are
claiming. For example, the defense of insanity must be proved within the M’naghten
Rules of 1843. All other ingredients must be proved by the prosecution.

1) Common Law defense of Insanity

Insanity is a common law defense and not a statutory defense.

When the accused has to prove an issue of his defense, he must prove it on a
balance of probabilities; R v. Sodeman; when the defense of insanity is raised by an
accused person, he does so on a balance of probabilities.

The prosecution must prove its case beyond a reasonable doubt.

Unfitness to Plead

Under the defense of insanity, it is quite possible for the judge or the accused to raise the
defense of unfitness to plead. However, it is more commonly raised by the accused or the
defense who will then bear the burden of proving unfitness to plead on a balance of
probabilities;
R v. Podola; a German who was charged with murder spoke German all the time,
claiming unfitness to plead as he couldn’t understand the proceedings in English.

It is, however, possible for the prosecution to raise the issue of unfitness to plead. If the
prosecution does so, it must prove it beyond a reasonable doubt; R v. Robertson.

The judge may also raise the issue of unfitness to plead.

Insanity is a common law exception to the Woolmington rule. If the accused succeeds,
they will be found not guilty by reason of insanity and will be detained at an asylum.

A general rule has exceptions whereas an absolute rule does not.

2) Statutory Exceptions

(a) Expressed Statutory Exceptions

(b) Implied Statutory Exceptions

(a) Expressed Statutory Exceptions

Some statutes put the burden of proving certain matters upon an accused person. For
example, an accused person who is found in a public place at night with an offensive

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weapon without lawful authority or reasonable excuse would have to prove that he had
lawful authority or reasonable excuse, as prescribed for in S.1 of the Prevention of Crime
Act 1953.

Another example is S.2 (2) of the Homicide Act 1957 - You can raise the defence of
Diminished Responsibility bearing the onus of proving the issue;
R v. Dunbar.

Under S.30 (2) of the Sexual Offences Act 1956, if you are a pimp and you are charged
with living on immoral earnings, you’ll have to show that the woman is not a prostitute
and that you are not living off her.

Under S.2 of the Prevention of Corruption Act 1916, if you are a civil servant and
someone gives you a gift, you’ll have to show that it was not a bribe.

Under S.30 (2) of the Bills of Exchange Act 1882, whereby moneys are remitted for
legitimate purposes, if you use this mechanism to launder transactions, then you’ll bear
the burden of showing that the transaction was legitimate.

Under S.5 of the Dangerous Dogs Act 1991, if your dog bites someone and you are
charged, you’ll have to prove that your dog does not have such a mischievous disposition.

Under S.5 (2) of the Road Traffic Act 1988, if you are charged with driving under the
influence of alcohol, you’ll have to prove that the level of alcohol in your blood is not
excessive.

Under S.28 (2) of the Larceny Act 1916, if you aid and abet someone who is charged
with housebreaking or burglary, the accused must prove the exception if he is to be
absolved.

(b) Implied Statutory Exceptions

Some statutes prohibit the doing of certain acts subject to provisos, exceptions or
exemptions etc. For example, you can be charged with the offence of driving without a
licence, driving without an insurance certificate or selling sugar without a licence. In such
circumstances, the statute impliedly puts the burden of proving the exception upon the
accused person. Because of policy considerations and the relative ease of proving you
have a licence, the law considers that you can easily prove that you have a licence.

On a true construction of the statute, it is implied that the accused has to prove the
exception. This is due to S.101 of the Magistrates’ Courts Act 1980, which provides that
when an accused person is charged with an offence, whether in Magistrate or High court,
and he relies for his defence on any exception to the charge or exemption or proviso or
excuse or qualification, the burden of proving that exemption etc. is on the accused
person. For example, if charged with possessing certain drugs without a doctor’s

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prescription, you’ll have to prove that you have a doctor’s prescription. Proof here is on a
balance of probabilities.

When Does the Defendant rely on an Exception, Exemption, Proviso or Excuse?

The best guide is to be found in Nimmo v. Alexander Cowan & Sons Ltd; this case
turned on the construction of S.29 (1) of the Factories Act 1961. The judge said that an
exception, exemption or proviso could be easily recognizable from the drafting of the
statute. “Whenever a statute contains the word ‘except’ or ‘exempt’ or a ‘proviso’ which
says ‘provided always that’, these words clearly show that there is an exception or
exemption or proviso in the statute; the enactment itself states what it means. One must
look at the statute itself to see if it contains any of these words; there is no set formula.
But if you see the words ‘excuse’, ‘exempt’, ‘except’, ‘provided always that’, then that is
an immediate guide that there is an implied provision that the defendant has to prove the
exception, exemption or proviso because that is what he is going to rely on for his
defence.

However, there are times when one does not necessarily see these words. So, what else
do you look for? You would have to look at the mischief at which the statute is aimed at
and also look at policy considerations. Which of the respective parties will have the ease
or difficulty in discharging the burden? If it’s going to be easy for the accused or for the
prosecution, then they would respectively bear the burden.

In Nimmo v. Alexander Cowan & Sons Ltd, an employee fell down and injured himself
at a factory. He alleged that his place of work was not safe; a breach of statutory duty. In
order for the employee to succeed, it will have to be decided that the employer had
committed an offence because of the alleged breach of the Factories Act in question. The
statute laid down the duty that the working place shall, so far as is reasonably practicable,
be made and kept safe for any person working therein. The HL said that if the employer
has established that he has made the place as far as he could, practicably safe, then it is
for the employee to show that he has not done so. The HL was split in a majority
judgment of 3:2, ruling that the bottom line was reflected in the words, ‘so far as is
reasonably practicable’.

In Gatland v. Metropolitan Police Commissioner, the defendant was charged with

throwing dirt on the highway without lawful authority or excuse. The Magistrates’ Courts
Act 1952 said ‘without lawful authority or excuse’. The accused, therefore, has to prove
on a balance of probabilities as was laid down in R v. Carr-Briant.

If somebody is charged with driving a vehicle without an insurance certificate and he has
an excuse, he has to prove it and not the prosecution; Machin v. Ash.

Similarly, if somebody is charged with driving a vehicle without a licence, he has to

prove that he has an excuse; John v. Humphreys.

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Also, if somebody is charged with serving alcohol without a licence, they must prove that
they have a licence; R v. Edwards.

In all of these cases, the accused can easily prove that he had a right to do what he did
because he was able to provide the evidence.

In the case of R v. Edwards, Edwards was charged and convicted for selling intoxicating
liquor without holding a licence. Such sale was contrary to S.160 (1) of the Licensing Act
1964. Edwards appealed against the conviction on the grounds that the prosecution had
not called any evidence to prove that he didn’t have a licence. The State replied that
whenever a statute contains an exception, exemption, proviso or excuse, the burden is on
the accused person to prove that exception, exemption, proviso or excuse. Such was the
case with the Licensing Act, and the accused relying on them, has the burden of proof.
Edwards lost his appeal in the CA. The prosecution, however, must prove all other
ingredients in the case.

This was a classic case to show that one must look at the statute and see the words
contained in the enactment. When you have the words exception, exemption, proviso or
excuse, this falls under S.101 of the Magistrates’ Courts Act saying that upon such
reliance, the accused has the burden of proof.
The issue went to the HL in the case of R v. Hunt; Hunt was charged under S.5 of the
Misuse of Drugs Act 1971. Under the Misuse of Drugs Regulations 1973, it is provided
that S.5 shall not have effect in relation to, inter alia, any preparation of morphine
containing not more than 0.2% of morphine. At the trial, the defence submitted that there
was no case to answer because the prosecution had adduced no evidence as to the
proportion of morphine in the powder which had been found in Hunt’s possession. The
judge ruled against the submission. Hunt changed his plea to guilty. The appeal to the CA
was dismissed. In support of his further appeal to the HL, the accused raised two
arguments; (i) R v. Edwards was wrongly decided; and (ii) on the true construction of the
provisions in question, the prosecution bore the burden of proving the percentage of
morphine contained in the powder found in Hunt’s possession. The HL allowed the
appeal.

The reasons given by the HL for allowing the appeal were:

1) When in Woolmington v. DPP Lord Skankey used the phrase “any statutory
exception”, he was not referring only to statutory exceptions in which Parliament had
placed the burden of proof on the accused expressly. He was also referring to statutes
where the burden of proof is, by implication, on the true construction of the statute. In
other words, when the Act is interpreted in this particular circumstance, the prosecution
has to show the amount of morphine.

2) When a statute places the legal burden on the accused by implication, the burden is
always on the accused, whether in Magistrates’ Court or in the High Court.

3) R v. Edwards was decided correctly.

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4) In the final analysis, each case must turn on the construction of the particular
legislation. If the linguistic construction of a statute does not clearly indicate on whom
the burden should lie, the court, in construing it, will not confine itself solely to the
wording of the statute. It will have regard to matters of policy including practical
considerations. In particular, the ease or otherwise that the respective parties will
encounter if required to discharge the burden. Parliament, generally, can never be taken
to have lightly imposed the duty on an accused to prove his innocence in a criminal case
and the courts should be very slow to draw such an inference from the language of a
statute.

5) Policy, the question of construction being one of obvious real difficulty, and offences
involving the misuse of hard drugs being amongst the most serious of offences, any
ambiguity in the statute should be resolved in favor of the accused.

For these reasons, the appeal was allowed.

Common Law Defences

The general rule is that the defendant or an accused person in a criminal case does not
have to prove his innocence. The prosecution bears the burden of proving all the
ingredients in the criminal case.

However, when an accused relies on a common law defence, the evidential burden to
prove that defence lies on him.

Note that it is not a legal burden; it is only an evidential burden. All he has to do is to
raise the foundation for that defence to be considered. Once he has laid enough
foundation for that defence, then the prosecution has the duty of disproving that defence.
But if the accused does not raise/rely on the burden, then that defence will not be
considered at all. E.g. if the accused relies on the common law defence of accident, the
accused has to lay that foundation with prima facie evidence for the defence to be
considered. Once the accused has done that, the prosecution then has the duty to disprove
it so it doesn’t succeed.

Situations where this can happen -

1) Defence of Provocation; Mancini v. DPP, (1942).

2) Self Defence; R v. Lobell, (1957).

3) Duress; R v. Gill,

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4) Drunkenness; Kennedy v. H.M. Advocat, (1944).

5) Non-Insane Automatism; Bratty v. A-G for Northern Ireland, (1963).

6) Alibi; R v. Johnson, (1961).

If an accused relies on any of these defences, he only has the evidential burden to raise
foundation for them. If the prosecution cannot disprove these defences then the accused
succeeds.

When the evidential burden is on the accused in any criminal case, the standard of proof
is on a balance of probabilities. It is the prosecution who when disproving the defence has
to do so beyond reasonable doubt.

Standard of Proof

What is the standard of proof? The standard of proof is the degree of cogency required of
evidence to satisfy the legal burden of proof.

In criminal cases, the prosecution must prove all the issues for which they have the legal
burden beyond reasonable doubt. This is known as the criminal standard; the highest
standard.

However, in exceptional cases where an accused person bears the legal burden, such as
with the defence of insanity, he only has to prove it on a balance of probability; a much
lower standard; R v. Carr-Briant, (1943).

The case that distinguishes the criminal standard from the civil standard is Miller v.
Minister of Pensions, (1947). The civil standard of proof is on a balance of probabilities;
a much lower standard than the criminal standard. There is no question of proof beyond
reasonable doubt in civil cases.
The criminal standard is beyond reasonable doubt. Lord Denning said, “It need not reach
certainty but it must carry a high degree of probability. Proof beyond reasonable doubt
does not mean proof beyond a shadow of a doubt. If the evidence is so strong against a
man as to leave only a remote possibility in his favor, which can be dismissed with a
sentence, of course it is possible but not in the least probable the case is proved beyond
reasonable doubt. And nothing beyond that will suffice.”

On standard of proof in civil cases, Lord Denning commented, “That degree is well-
settled. It must carry a reasonable degree of probability; not so high as is required in a
criminal case. If the evidence is such that the tribunal can say “we think it is more
probable than not”, the burden is discharged. But if the probabilities are equal, it is not.”

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“Beyond Reasonable Doubt” - Judges have found it difficult at times to explain the
phrase “beyond reasonable doubt”. It’s not enough to use the phrase such as “you must be
satisfied”, but it must be acceptable to say “you must be satisfied so that you are sure of
guilt”; R v. Summers, (1952).

Note, however, that it is the effect of the summing up that matters;

R v. Walters, (1969). In that case, the judge likened the standard to the degree of
certainty required in matters of importance in the jury’s own affairs. The court said that it
was unnecessary to overstretch the meaning of “Beyond Reasonable Doubt”.

It has been said that a model direction of what a judge should direct a jury was the
direction given in R v. Ferguson, (1979). Here, the judge told the jury that they “should
be satisfied beyond reasonable doubt so that you are sure of the accused’s guilt”.

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Competence and Compellability

The general rule is that all competent witnesses are also compellable. However, this is not
an absolute rule as some witnesses are competent but not compellable. E.g. Sovereigns
and Heads of State; they are protected by sovereign immunity. Diplomats, officers of
international organizations, infants, mentally handicapped persons, judges in cases they
are presiding over and the wife of an accused person are all competent but not
compellable; exceptions to the general rule.

However, they can waive that immunity and then once they’ve waived it, they will be
treated like any other witness and be subject to cross examination. A witness who is
competent and compellable must come to court and testify if he has to do so; if they do
not, they will be in contempt of court. They might also be fined or imprisoned.

Witnesses who are competent and compellable generally give their evidence orally. But
before they do so, they must take an oath.

Christians are sworn on the Bible, Muslims are sworn on the Qu’ran and Jews are sworn
on the Toa or the Old Testament.

If one does not wish to be sworn religiously, they can make an affirmation.

They all, however, have the same effect; once you’ve been sworn or have made an
affirmation, if you lie whilst testifying, you’ll be guilty of perjury.

Note that you can also give unsworn evidence; usually in the case of children and
unsworn evidence is not an oath.

Interpreters and Translators - Generally, interpreters do not have to take an oath they
are only used when the witness does not understand the language of the court. In Sierra
Leone, the language of the court is English.

Competence - When we say a witness is competent, we mean that he is able to testify or

give evidence.

Compellable - Compellable refers to the expectation that if a witness is called to come

and testify, they are bound to come.

Exceptions to the General Rule

1) Children and Infants

At common law, a child may be sworn in any proceedings; provided that he or she
understands the nature of the oath and the obligation to tell the truth;

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R v. Brasier, (1779). But if the child does not understand the nature of the oath, he or she
may not be sworn. Generally, it includes children of very tender years; ages 8-10.

In such cases where the child is a victim, you may take unsworn evidence; the fact that
the child cannot give evidence is not the end of the matter. There are statutory guides;
S.38 (1) of the Children and Young Person’s Act provides that if a child of young tender
years does not, in the opinion of the court, understand the nature of the oath, then that
child will give unsworn evidence.

Thus, when a child is called upon to give evidence, the court must examine whether the
child understands the nature of the oath; if he does, he may give sworn evidence. If he
does not but is significantly intelligent, the child can give sworn evidence.

This has presented some difficulties; trying to see if children understand the nature of the
oath. It was more or less a religious test that was used but the law as it is now is a secular
test. It was decided in the all-important case of R v. Hayes; the essential element of this
test is as follows - In determining whether a child should be sworn or not, the court must
decide

1) Whether the child has sufficient appreciation of the solemnity of the occasion.
2) The added responsibility to tell the truth which is involved in taking an oath over and
above the duty to tell the truth, which is an ordinary duty of normal social conduct.

In other words, (1) Does the child understand the seriousness of the occasion; why she is
there testifying? and; (2) The additional responsibility of telling the truth involved in
taking an oath.
This test governs children giving evidence in court.

There is no laid down authority for “tender years” and so it is up to the court to decide
whether a child should give sworn or unsworn evidence.

Very young children should generally not be called upon to give evidence.
E.g. In the case of R v. Wallwork, (1958); a girl of five (5) years was allowed to testify.
The CA said that it was undesirable to call a girl of five to testify and that it is only in
exceptional circumstances that a child of such tender years should be called to testify.

In Wright v. Ormrod; a child aged six (6) was allowed to give evidence. The CA said
that it was not right to allow her to do so; children below eight (8) should not be allowed
to testify.

The law is that children below eight (8) should not be regarded as being competent to
testify unless you can prove otherwise. Normally, children under eight (8) are considered
to be too young to take an oath, while those over ten (10) years are considered to be old
enough. The watershed lies between the two ages; 10, 11, and 12 year olds should be
allowed to give sworn evidence.

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The bottom line now might be the Hayes Test. In situations where the child is of tender
years and they satisfy the Hayes Test, they should be allowed to testify.

2) Persons of Defective Intellect

The general rule is that persons of unsound mind or defective intellect, who are not
capable of understanding the nature of the oath and of giving rational evidence, are not
competent witnesses. It is for the court to decide whether such a person is competent or
not.

Previously, the test was whether the witness understands the nature and sanction of the
oath; R v. Hill, (1851); the witness was an inmate of a lunatic asylum who suffered from
delusions that he had numerous spirits around him who talk to him. However, medical
evidence was given that the witness was capable of giving an account of any transaction
of which he was an eye witness and the judge ruled that he was competent. This ruling
was upheld by the CA.

Nowadays, however, the test to be applied to identify persons of defective intellect is the
secular test of R v. Hayes.

There was also the case of R v. Bellamy, (1985); in this case, a woman aged thirty-three
(33) but with a mental age of ten (10), was allowed by a judge to testify and the CA ruled
that she should not have been allowed to testify because she could not satisfy the Hayes
Test.

So, the test to be used as regards the competence of mentally handicapped persons is the
Hayes Test and that is whether the person has sufficient appreciation of the seriousness of
the occasion and a realization that he or she must tell the truth when he or she has taken
the oath.

There are times when medical evidence has to be brought in or sought. But if the witness
is completely crazy, you do not call that witness at all.

Other Types of Witnesses

Deaf and Dumb Witness - The general rule is that a deaf or dumb witness is competent
provided (1) he can be made to understand the nature of the oath and (2) through sign
language, he can understand questions and give answers. This can be done through an
interpreter; R v. Ruston, (1786).

Witnesses who are Drunk or Under the influence of Drugs - The general rule is that
such witnesses will be allowed to testify provided the witness understands the nature of
the oath and his intellect is not impaired;

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R v. Paines, (1987); here, the witness was brought to court to testify and he was so drunk
that he could not understand the proceedings. The case was adjourned until he got out of
his drunken stupor.

There are some situations when a witness has been sworn and while attempting to give
evidence, he starts to give the impression of being incoherent, of unsound mind or of
being unable to communicate. Here, the judge should stop the matter and declare that the
witness is incompetent;
R v. Whitehead. The witness should step down and the judge should continue with the
case and direct the jury to ignore all the testimony of the incoherent witness.

In the case of R v. Stretton, (1986); the CA said that a trial judge has discretion to allow
a trial to continue where a witness who was epileptic and mentally handicapped and
having been cross-examined for some time, became ill and could not give evidence
further. And also, when medical evidence showed that it would be undesirable and unfair
to have the witness back into the witness box. In practice, if the incapacity is temporary,
the judge may adjourn the evidence of the witness until the incapacity is over. If it is a
prolonged incapacity, it would be better for the witness to be stood down.

Finally, there are situations where a witness becomes so overcome with emotion that the
best thing is for the court to adjourn the matter until the witness gets over that emotion.

Diplomats and Consuls - Diplomats and Consuls, by virtue of the

Vienna Convention, are usually protected from being involved in the legal process in the
countries in which they serve. They can neither be sued nor can they be compelled to
testify in civil and criminal cases. Even though they are competent to do so, they are,
however, not compellable.

They can, however, waive their immunity and decide to testify if they do desire to do so
and once they do so, their immunity is suspended for that period and they may be treated
like any other witness; they can be subjected to cross-examination and all the other rules
that other witnesses have to comply with.

This also applies to those who work for international organizations like UNAMSIL etc.
They are competent but they are no compellable. However, they can also waive immunity
if they choose to.
Heads of State - They are all competent but not compellable. They also have the option
of waiving their immunity if they so desire. Some countries have a provision in their
Constitution that the Head of State cannot be sued or be required to testify while still in
office. The Sierra Leone Constitution, however, does not have such a provision but under
the old Common Law Rules, the Head of State cannot be compelled to testify.

Bankers - Bankers cannot be compelled to testify in cases in which they are not parties.
They are competent but not compellable when the bank is a party to that action. S.6 of the
Bankers Books Evidence Act 1879 provides that copies of entries in bankers’ books are

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subject to certain safeguards. They are admissible as evidence of their contents to protect
bank personnel from the unnecessary inconvenience of either providing the originals of
such books or appearing as witnesses.

A banker or official of the bank shall not, in any legal proceedings to which the bank is
not a party, be compellable to produce any banker’s books the contents of which can be
proved under this Act, or to appear as a witness to prove the matters, transactions and
accounts therein recorded, unless by order of a judge made for a special cause.

Judges - Judges are competent but not compellable in criminal cases to testify in matters
which they have presided upon.

Complex Exceptions to the General Rule: Competence & Compellability of:

An Accused Person - The general rule is that an accused person in a criminal trial is an
incompetent witness for the prosecution. On the other hand, he is a competent witness in
his own defence.
An accused person in Sierra Leone does not necessarily have to testify and has three (3)
options -
1) He can go to the witness box and testify on his own behalf just like any other witness.
2) He can remain in the dock and make an unsworn statement for which he cannot be
cross-examined.
3) He can say that he relies on the statement that he made to the police.

Spouse of the Accused - As a general rule, the spouse of an accused person is an

incompetent witness for the prosecution. However, the spouse is competent and
compellable in certain cases -
1) Cases falling under the Evidence Act of 1877.
2) Charges of violence against themselves.
3) Charges of sexual offences against their children.
4) Charges of injury to their liberty or health.
5) Cases of Treason.

As a general rule, the spouse of an accused person is competent but not compellable as a
witness for a co-accused charged with her husband when the husband consents.
There are, however, exceptions to this rule; where she can testify for a co-accused
without the consent of her husband -
1) On charges of violence against herself.
2) Charges of injury to her liberty or health.
3) Sexual offences against their children or herself.
4) Treason cases.

Is she a competent witness for the Accused? - As a general rule, the spouse of the
accused is a competent but not compellable witness for the accused. The exceptions to
this are -

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1) On charges of violence or injury to her health or liberty.
2) Cases of Treason.
3) Sexual misconduct against Children.

Note - with the General Rule, they are competent but not compellable but for the
Exceptions, they are competent and compellable.

Co-Accused - As a general rule, either of the co-accused is competent but not

compellable. The only way in which either can be used as a witness for the prosecution is
when -
1) The Prosecution can decide not to proceed with the witness’s case or enter a nolle
prosequi (do not proceed).
2) The Prosecution offers no evidence against the co-accused.
3) The Witness can plead guilty and be sentenced which takes him out of the 1st case
completely.

There are times when the prosecution’s best witness is one that they have charged and
sometimes they turn Crown’s witness. So, if they are to be used as a competent and
compellable witness, they must be taken out of the case completely.

The co-accused can testify in their own defence.

At common law, a divorced spouse was as incompetent to testify to matters occurring

during the marriage as one who had not been divorced as in the case of Monroe v.
Twistleton, (1802).
The common law rule still applies subject to modification by the
Criminal Evidence Act, 1898 and the Evidence Act, 1877. These statutes state that the
words ‘husband’ and ‘wife’ must be taken to include a former husband or wife testifying
to matters occurring during the marriage as in the case of R v. Algar, (1954).

When a witness comes to the witness box, generally he should answer all questions put to
him. If they refuse to answer, they could be guilty of contempt of court. There are,
however, certain instances where the witness can refuse to answer on the following two
grounds -

1) If his answer to the question will lead to incrimination of himself or his spouse; the
rule against self-incrimination.

2) He can refuse to answer on the ground of legal privilege if the answer he’s supposed to
give in evidence is covered by legal professional privilege.

The decision to refuse to answer is not his or hers; they will have to show grounds and
the judge will have to find out whether in fact those grounds will incriminate you or your
spouse.

15
Note - If the witness is a diplomat and has waived their immunity, they are then cross-
examined and treated like any other witness. No special rules apply once they have
decided to testify.

Corroboration

The general rule is that one witness is sufficient to testify for a conviction. In practice,
however, it is usually necessary to have supporting evidence to prove an issue even
though a single witness is sufficient to do so.

The classic Definition of Corroboration was given in R v. Baskerville, (1916), where it

was said that corroboration means supporting or confirming evidence which implicates
the accused in the offence charged in a material particular. It is independent evidence
which implicates the accused as described above. It must be independent, admissible,
credible and it must implicate the accused and in a material particular. In one sentence, it
means supporting evidence.

Exceptions - There are instances when corroboration is required as a matter of law and as
a matter of practice.

Corroboration required as a matter of Law - When corroboration is required as a matter

of law, if there is no corroboration of the charge for which the accused is charged, the
case must be dismissed.
Corroboration required as a matter of Practice - When corroboration is required as a
matter of practice, there need not be corroboration but the judge has the duty of warning
the jury of the dangers of acting on uncorroborated evidence.

What Forms does it (Corroboration) take?

The general form it takes is to have the evidence of a second witness. It usually consists
in the evidence of another witness. However, at times, corroboration can be in the form of
a document.
It can also take the form of blood stains on the clothes or blood tests, urine samples or
semen etc. These are all considered to be forms of independent evidence.
Even lies could amount to corroboration; R v. Lucas.
However, the fact that someone fails to testify is not corroboration.

The evidence must be independent but also admissible evidence. It must also be credible.
When Corroboration is required as a matter of Law

1) Perjury, as prescribed by the Perjury Act, 1911; you cannot convict anyone of perjury
unless there is corroboration.

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2) Treason, as prescribed by the State Offences Act, 1963; you cannot convict anyone of
treason unless there is corroboration.
3) Exceeding the Speed Limit; there must be corroboration.
4) Affiliation Proceedings; E.g. if a man is denying that he is the father of a child, you
can corroborate by DNA.
5) Election Offences; people charged under electoral offences cannot be convicted unless
the charge is corroborated.
6) Unsworn Evidence of a Child.
7) Certain Sexual Offences violating the Sexual Offences Act, 1956; Sections 2-4 and 22-
23.

In all of these cases, if there is no corroboration, the case will lapse. When corroboration
is required as a matter of law, the question of whether evidence amounts to corroboration
or not is one for the jury to decide.

S.7 of the Sexual Offences Act, 1956 deals with the procurement of women for the
purposes of prostitution or for unlawful sexual intercourse.
Note that this requirement of corroboration does not apply to rape.

For exceeding the speed limit, the courts allow the speedometer of the police car as
corroboration to show that the speeding occurred as in the case of Nicholas v. Penny;
(1952).

The unsworn evidence of children must be corroborated.

The unsworn evidence of one child does not corroborate the unsworn evidence of another
child.

If another child has to corroborate the unsworn evidence of another child, it must be
corroborated.

When Corroboration is required as a matter of Practice

When corroboration is required as a matter of practice, there need not be corroboration

but the judge has the duty of warning the jury of the dangers of acting on uncorroborated
evidence. This means that if the jury believes the credibility of the evidence before them,
they can go ahead and pass a verdict of conviction or acquittal, provided that the warning
has been given to them. It is for the jury to decide what weight to give the evidence and
what inferences to draw from it.

If the warning is not given, it will be a ground for an appeal and it is most likely that the
appeal would succeed and the conviction will be quashed.

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In What Circumstances is Corroboration required as a matter of Practice?

1) Where the matter is regarding the sworn evidence of children. When children give
sworn evidence, the jury has to be warned by the judge about the dangers of convicting
without corroboration on that evidence; the judge is warning the jury to approach the
sworn evidence of the child with care and caution.

2) Complaints in some Sexual Offences. There are some sexual offences for which some
people have complained and the jury should be warned. Apart from those cases where
corroboration is required as a matter of law, in sexual cases generally, the jury must be
warned of the danger of convicting on the uncorroborated evidence of the complainant.
This is because there are times when some women make up a complaint of rape based on
spite, fantasy or neurosis etc. There are also instances where the complainant has
consented to sex and is then ashamed to admit it. The complainant may tell a false story
which is very easy to fabricate but extremely difficult to refute.

3) Evidence of Accomplices. When an accomplice testifies against someone who

committed a crime, the warning must be given as the accomplice might have his own
motive not to tell the truth and the danger is that he might implicate them falsely,
minimize his own culpability and exaggerate that of others so that he might have a light
sentence. Therefore, the law takes the view that a warning must be given when an
accomplice gives evidence for the prosecution; Davies v. DPP, (1954). (Note that this
does not apply when he gives evidence against a fellow defendant). The definition of
accomplice, for the purposes of this case was given by Lord Simmons where he laid
down three (3) classes of persons to be regarded as accomplices -
1) Parties to the offence charged.
2) Receivers as accomplices of the thieves from whom they receive goods.
3) Parties to other offences committed by the accused, evidence of which is admissible to
prove the offence charged.

The Warning - There is no prescribed formula for the warning but the judge must warn
the jury clearly of the risk of acting on the evidence of an accomplice. He might say to
them that an innocent person may be convicted on the evidence of a person/witness who
is not telling the truth because he is serving his own interest.
The warning must take the form of words used which, in plain language, conveys the
seriousness of the risk involved and while the word ‘danger’ does not have to be used, it
is difficult to think of a better expression which conveys the necessary force.

The Rule in Davies v. DPP does not apply when an accomplice is testifying for the
defence; R v. Prager. See also R v. Bagley, (1980) and
R v. Loverige.

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It is also the duty of the judge to direct the jury as to what evidence amounts to
corroboration. The judge will tell the jury what evidence amounts to corroboration, and
once that’s been done, if there’s no corroboration, that is virtually the end of that case.

When the judge is directing the jury on corroboration, he must tell them that
corroboration means independent evidence which does not come from the witness and
which implicates the accused person in some material particular and also confirms that it
was he or she who committed the offence. The judge should point out to the evidence
which, if the jury accepts, is capable of amounting to corroboration and then direct the
jury that it is for them to decide whether it does confirm the witness’s evidence.

Another form of corroboration is lies; when an accused person tells lies while testifying,
it is possible for that lie to amount to corroboration. The question is, Can Lies Amount to
Corroboration? Yes, provided certain conditions are fulfilled; The Rule in R v. Lucas,
(1981), CA; in certain circumstances, when a witness is testifying in court and he tells a
lie, it is possible for that lie to amount to corroboration and in order to be capable of
being corroboration, four (4) criterion have to be satisfied -

1) The lie must be a deliberate lie.

2) The lie must relate to a material issue.
3) The motive for the lie must be a realization of guilt and a fear for the truth.
4) The lie must be clearly shown to be such.

Mutual Corroboration - If a child gives unsworn evidence, she cannot be corroborated

by unsworn evidence. She can only be corroborated by somebody or another child who
gives sworn evidence. And so, there can indeed be mutual corroboration, provided that
the unsworn evidence is complimented by sworn evidence; DPP v. Hester, (1973).

Complaints of Women who have been assaulted Sexually

If a girl/woman complains to the police that she has been sexually assaulted, can that
complaint amount to corroboration? No, by itself, that complaint cannot amount to
corroboration; it is not independent so that it satisfies the definition of independence
given in R v. Baskerville.

In R v. Whitehead, (1929), the judge said that the complaint of the girl cannot be
corroborated by herself, otherwise, it is only necessary for her to repeat her story some 25
times to get 25 corroborations. In this case, the girl complained to her mother some time
after alleged sexual assault had taken place; the mother testified but the courts rejected
this evidence as not being independent because she was only repeating what her daughter
had told her.
But it does not mean that such evidence is useless; it amounts to consistency and may be
admissible in evidence thus; R v. Christie, (1914); here, the question arose as to whether
the complaint amounted to corroboration. The court said no, but the complaint was
admissible to show consistency.

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Distressed condition of Women

Is the distressed condition of a woman after she has been roughed up enough to amount
to corroboration? The distressed condition by itself cannot amount to corroboration
because it is not independent in accordance with the R v. Baskerville standard; R v.
Redpath, (1962); here, a little girl was sexually assaulted and was in a distressed
condition. Unknown to the girl, her distress was observed by a 3rd party and the court
allowed the 3rd party to testify as to the girl’s condition, as this fit the definition of
independent given in R v. Baskerville.

In R v. Chauhan, (1981), the victim of the alleged sexual assault was observed running
from the room where she and the accused had been present. Here again, an independent
person had observed her running from the room. The judge directed the jury that
testimony of a 3rd party as to the distressed condition of the complainant could be treated
as independent and, therefore, admissible.

In R v. Dowley, (1983), a considerable period of time had elapsed between the alleged
rape and the observation of the complainant by the 3rd party. The girl had walked for one
mile but was observed by the 3rd party. The court allowed that evidence to amount to
being independent by the standard of R v. Baskerville. This was quite controversial as
the time elapsed gave the girl enough time to have fabricated her distress. Dowley
appealed and the CA said that they would not interfere with the decision of the High
Court judge.

Identification Evidence

English law as well as Sierra Leone law has suffered a lot of miscarriage of justice
because of improper identification in the past. A lot of people have been wrongly
convicted because of identification which was wrong, and in England the situation had
become so bad that a commission was set up to look at the whole question of
identification evidence.

In the case of R v. Turnbull, (1977), the CA in England laid down certain guidelines
relating to evidence of allegedly mistaken visual identification of the accused person. The
mistaken identification of the accused, especially in cases of visual identification, maybe
regarded as the greatest cause of wrongful convictions and the guidelines laid down in
this case were designed to minimize this damage.

These guidelines do not apply in all cases of visual identification; they only apply
whenever the case against an accused person depends wholly or substantially on the
correctness of one or more identifications of the accused which the defence alleges to be
mistaken. I.e. if there is other more compelling evidence against the accused, R v.
Turnbull does not apply.

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The guidelines given in R v. Turnbull only apply when the question of identification is
in dispute.

Identification evidence does not need corroboration but there are times when
identification is linked up with corroboration cases.

The guidelines laid down in R v. Turnbull are -

1) When the case against the accused depends wholly or substantially on the correctness
of the identification evidence, the trial judge must warn the jury about the special need
for caution and point out to them the dangers of relying on identification evidence.

2) He must tell the jury why there is such a need for caution and point out to them that
there are times when a mistaken witness or witnesses can be convincing. There is no
particular formula which the judge has to use.

3) The judge must then go on to direct the jury to examine closely the circumstances
under which the identification was made. E.g. where the identification evidence is of
good quality (a long observation of the accused by the witness), was the view obstructed
by passing traffic?

4) If it was a clear day and the light was good, then it can be left to the jury to decide
whether the identification was good, after the warning has been given.

On the other hand, where the identification evidence is of poor quality, (for example, a
fleeting glimpse or if it was dark and the witness couldn’t see the person clearly, or there
was too much traffic passing, or so many people walking in the road), the judge should
withdraw the case from the jury but there is a proviso; he should withdraw the case unless
there is other evidence which supports the correctness of the identification.

When there is other supporting Evidence - What constitutes “other supporting

evidence”? DNA evidence, lies told in court or other testifying witnesses can also amount
to “other supporting evidence”. For instance, one identification witness can support
another. Evidence of the accused’s association with other suspects who have been
identified or evidence that the identification witness correctly identified another suspect
seen with the accused at the material time; all of these examples constitute “other
supporting evidence”.

There is also the possibility that the accused’s failure to testify is capable of being
supporting evidence. However, the supporting evidence does not have to meet the
technical standard of corroboration. So, if any of these other types of evidence exists and
can support the case for the prosecution, then the Turnbull guideline will be given and
the evidence will be left with the jury to consider.

21
It is for the trial judge to identify to the jury evidence which he considers is capable of
supporting the identification evidence. If there is any evidence or circumstances which
the jury might think was supporting but which did not have the quality of supporting
evidence, the judge has to tell them.

One circumstance where people usually challenge identification evidence is where they
claim to have an alibi. False alibis could be put forward and the jury should be reminded
that accused people are capable of telling lies, or will fabricate evidence to exonerate
themselves and the Turnbull guideline should be given.

Outside of or complimenting Turnbull, there are other types of identification such a

photographs or a video recording of the offender committing the offence. But then the
judge should warn the jury of the risk of mistaken identity and of the special need for
caution.

At times, there is also voice identification but there is no such rule that a Turnbull
guideline should be given for voice identification. In R v. Hersey, (1998), two men
wearing balaclava helmets robbed a shop. The robbery lasted fifteen minutes and
involved a lot of talking by the robbers. The shopkeeper recognized the voice of one of
the robbers as a longstanding customer. A voice identification parade was held at which
eleven volunteers and the accused read a passage from a book. A voir dire (trial within a
trial) was held and an expert gave evidence that the twelve voices were too many and
almost all the volunteers had a voice pitch higher than the accused person and that it was
only the accused who had read the passage in a way which made sense; the accused was
convicted.

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Testimony

Testimony is a process which witnesses go through in both civil and criminal cases; the
process of the trial.

Three (3) Stages in a Civil or Criminal Case

1st Stage - Examination-In-Chief.

2nd Stage - Cross-Examination.
3rd Stage - Re-Examination.

Examination-In-Chief - The purpose of Examination-In-Chief is for the party calling the

witness to take the witness through his evidence and extract facts which are favorable to
his case.

Usually, Examination-In-Chief is commenced by either the prosecution in a criminal case

or the plaintiff in a civil case. It is usually commenced by he who asserts; the party who
brought the case starts with Examination-In-Chief.

You are generally not permitted to ask leading questions in Examination-In-Chief but
there are exceptions. A leading question is a question which suggests the desired answer.

Examination-In-Chief is not supposed to be long. In Examination-In-Chief, there are

times when witnesses forget what they have to say or times when they might need to
refresh their memory. Refreshing their memory is usually allowed provided certain
conditions are met. Witnesses are allowed to refresh their memory as it may have been a
long time since the incident occurred.

In Examination-In-Chief, if it is a criminal case, it means that it’s the prosecution

witnesses that testify. In a civil case, witnesses supporting the plaintiff’s case will be the
one’s testifying.

Witnesses generally should answer all questions put to them and if they refuse, they may
be held in contempt of court. The witness must speak the truth because they are sworn to
speak the truth.

There are three (3) exceptions where the witness is not bound to answer questions; if the
answer concerns -

1) Legal Professional Privilege.

2) Self-Incrimination of Yourself/Spouse.
3) On the grounds of Public Interest Immunity/Matters of National Security.

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However, if the witness does decide to waive their privilege/immunity, they will then be
treated like a regular witness. The only witnesses that will be allowed to testify are those
who are competent and compellable.

Note that a judge has a discretion to call a relevant witness in a criminal case if the
prosecution fails to do so; R v. Oliva. He should, however, use that discretion sparingly.

In civil cases between two people, a judge has no such discretion; he can only call a
witness with the agreement of both parties.

Witnesses that have been called for Examination-In-Chief cannot be called for the
defence. Also, if you are a witness called for Examination-In-Chief purposes and you
refuse to come and testify voluntarily, you can be subpoenaed. If you disobey the
subpoena, you will be guilty of contempt of court. Then, you will either be fined or
imprisoned as the subpoena is a court order.

A party in Examination-In-Chief must ensure that all his witnesses are called before the
end of his own case as it is not usually possible to call witnesses after he has closed his
case. But the judge has a discretion to commit a witness to be called if the need arises,
even after the end of Examination-In-Chief on the grounds that the need for that witness
could not have been foreseen or anticipated earlier; R v. Scott. But this discretion by the
judge is also exercised sparingly.

Methods of Examination-In-Chief

1) Generally, by going to the witness box, being sworn and testifying.

2) By Video Evidence.
3) By Live Television Link.
4) Anonymously, Behind a Screen.

All of these are usually done for young or vulnerable witnesses.

Examination-In-Chief, however, does have its limits -

1) The questions asked must be relevant.
2) The questions cannot be leading questions.

Leading Questions - Leading questions are not permitted. These usually are such
questions which suggest the desired answer. However, there are exceptions to the rule -
1) Preliminary Matters - Name, Address etc.
2) Matters not in dispute.
3) By agreement with your opponent or with your opponent’s consent.
4) With the leave of the judge, if the witness has been declared a hostile witness.

The reason why leading questions are not permitted is because if they were to be
permitted, it would destroy the whole purpose of the Examination-In-Chief, because the
witness must, in general, give evidence from his personal knowledge. He should tell the

24
court what he saw, heard or what he did. He should do so to support the case of the party
calling him as witness. The witness’s testimony is not supposed to be rehearsed.

For illiterate witnesses, you need an interpreter in a language they understand.

The law also frowns upon payment of a witness to go and testify; if you do so, you are
perverting the cause of justice.

Unfavorable Witness - In this scenario, the witness is not saying what you want them to
say; not coming up to proof. It could be because of the age of the witness because they’ve
forgotten etc. If you are a lawyer and you have a witness who isn’t coming up to proof,
there is nothing you can do about it because although the witness is unfavorable, the most
you can do is to stop the examination-in-chief and let the witness go or finish your
examination-in-chief.

Contrary to this is the Hostile Witness - In this scenario, your own witness turns hostile
to you. As a general rule, a party is not allowed to impeach/discredit their own witness. In
a Hostile Witness scenario, instead of saying what they said before on record, the witness
is saying something different; being hostile. This is a problem as he has a hostile animus;
he has decided not to tell the truth and not to support his own side anymore.

If this happens, there are certain procedural steps you must take -
Before treating him as hostile, show his statement that he made before. If he continues
still, you must apply to the judge for your witness to be considered hostile. You need the
leave of the judge for that witness to be considered hostile.

It is not enough to say that the witness is hostile because his evidence is unfavorable to
you; he must be proved hostile in that he is unwilling to tell the truth. So, there is a
distinction between an unfavorable witness and a hostile witness; an unfavorable witness
is forgetful. A hostile witness is recalcitrant and not willing to give evidence to reinforce
or backup his original statement.

If the judge grants leave for a witness to be declared hostile, then there are certain things
you can do -
You can ask the witness whether he had made a personal statement which is inconsistent
with what he is now saying in court. If he accepts that he did, you may cross-examine
him upon that statement. If he denies that he made a statement, you can produce the
statement, show him the statement and tender the statement in court to discredit him.

With an Unfavorable Witness, you can always try to see if you can jog that witness’s
memory.

With a Hostile Witness, the witness may have been bribed, intimidated or is trying to
protect somebody.

25
Even with a witness whom you suspect is being hostile, you can try to see if they will
refresh their memory. If they persist in not matching their original statement, then you
make an application to the court.

Consequences of a Judge declaring a witness Hostile

1) It means you can discredit him.

2) You can also ask him leading questions.
3) You can ask him whether he/she has made a statement in the past which is inconsistent
with what he/she is now saying in court.
4) If they admit to (3), that also discredits him. If they deny, you can ask for the statement
to be produced.
5) The statement, if tendered, does not become evidence in the case; it can only damage
his credibility. I.e. the statement is not evidence of the truth of its contents.

Refreshing Memory

There are certain circumstances under which you can refresh the memory of a witness.

Generally, witnesses should not have problems when they are called to testify. However,
there are times when the time gap between the period when the incident happened and the
time you are calling that witness to testify, is so long that the witness forgets some of the
facts that they are to testify about. It would be wrong to expect the witness to testify from
memory. So, what you should do, is to make an application to the court for leave to allow
the witness to refresh his memory from a document in the course of testifying from the
witness box.

Some witnesses will need assistance from the court if they have to give accurate and
reliable evidence. And the judge will allow such witnesses to refresh their memory in
court by allowing them to look at documents in order to answer questions in the witness
box.

Before the judge allows that application, certain criterion have to be fulfilled; all four of
these must be complied with -

1) Contemporaneity - The document should have been made substantially at the same
time as the occurrence of the event to which the witness is required to depose.
2) Authorship of the Document - The document should have been made/verified by the
witness or made under his supervision.
3) The Document should be Produced to the Court and the possibility of cross-
examination might arise from that.
4) The need to Produce the Original.

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Contemporaneity - This is a question of fact. E.g. six months would be too long a time;
not contemporaneous. In Burrough v. Martin, (1809), a mariner was allowed to refresh
his memory by reference to the ship’s log book compiled soon after the events related
therein.
In A-G’s Reference (No.3 of 1979), a police officer was allowed to refresh his memory
from notes compiled at a time when the facts were still fresh in his memory.

Authorship of the Document - The case of Burrough v. Martin shows that the
document need not have been made by the witness himself. Here, the log book was
merely supervised by him.

The Document should be Produced to the Court - A witness has been allowed to
refresh his memory as to a date by referring to an article which appeared in a newspaper
contemporaneously with the events to which he was referring; Dyer v. Best. After the
witness has testified by looking at the document and refreshing his memory, the
document must be handed to the other side to enable him to inspect it, and if he so
desires, cross-examine the witness with regard to its contents.
When cross-examining on a document used to refresh memory, the cross-examiner
should be very careful about referring to parts of the document which do not directly
relate to the subject-matter on which the witness was testifying about. If it does refer to
parts which the witness was not testifying about, then the document will become
evidence in the case. And it means that evidence which would not have been admissible
in chief, and would not have been favorable to the cross-examiner, is now let in.
The need to Produce the Original - Generally, the document has to be the original. But
it has been held that a witness may refresh his memory by any book or paper, including a
copy, if he can afterwards swear to the fact from his own present recollection. In
Maugham v. Hubbard, (1828), a witness was called to prove the receipt of money.
Being unable to recollect this fact, he was shown an unstamped receipt signed by himself.
He said that he had no doubt that he received the sum of money or the amount stated in
the receipt but he said he could not recollect having done so. It was held that this was
sufficient evidence of the payment in spite of the prohibition on the use of unstamped
receipts in civil litigation.

The types of witnesses who generally refresh their memory are police officers. They
generally ask to refresh their memory. They usually have notebooks and at the scene of
any accident, they’ll record what they saw. In some cases, police officers would like to
refresh their memory by referring to their notes while testifying. If their original notes
have been used by them to make more detailed statements, then those notes can also be
used as a memory refreshing document.

Even if the original notes are lost, if a more detailed set of notes has been prepared, the
policeman can use it if he can show that it was made from the original notes; R v. Cheng,
(1976).

27
There is no objection to a police officer consulting his notes before testifying in court.
Further, the fact that a police officer took notes immediately after an interview or other
occurrence does not make them evidence in the case. Even if the police officer states that
he took notes, the notebook itself does not become evidence because of the rule against
self-corroboration.

If two police officers are conducting an investigation, there is no objection to them

collaborating over the preparation of their notes. In R v. Mills, a police officer was
allowed to refresh his memory by referring to notes taken from a tape recording made by
him of an incriminating conversation between two prisoners in their cell. The police
officer heard the original conversation and taped it and the court allowed him to refresh
his memory by notes he took from the tape recording. This particular case has two
purposes; it can be used to refresh memory by police officers.

Finally, a prosecution witness may refresh his memory when in the witness box by
referring to a statement written out by a police officer to whom he gave it shortly after the
events to which it relates; R v. Mullins, (1848).

Previous Consistent Statements

The general rule is that the previous consistent statement made by a person similar to his
testimony in court is not admissible, especially in criminal cases. You are not even
supposed to refer to it and the fact that you’ve said something previous to what you’re
saying now means that you are just repeating yourself. The fact that you have said it in
the past and are saying it now does not mean you’re stating the truth; R v. Roberts,
(1942); here, Roberts was charged with murder and he had said to his father that the
shooting was accidental. He wanted to repeat or introduce that same statement but the
court refused to admit it as the statement was self-serving.

The rule, however, is a general and not an absolute rule. The following are exceptions -

1) Res Gestae - If the statement forms part of the res gestae, then it could be considered
an exception to the general rule, meaning if it was made contemporaneously with the
incident to which it relates, it would be admissible in evidence. However, all it can do is
to prove the consistency of the maker when he gives evidence in court because the words
form part of the res gestae. I.e. if the words are part of the story or the issue.

In R v. Fowkes, also known as The Butcher’s Case, a man known as “the butcher” was
charged with murder. The son of the deceased gave evidence that he and a police officer
were sitting in a room with his father when a face appeared at the window through which
the fatal shot was then fired. At trial, he gave evidence and said that the face he saw was
that of “the butcher”. The court allowed his testimony to say how he had shouted “there’s
butcher” when the face appeared and the police officer who hadn’t seen the face was
allowed to depose to the fact that the son shouted “there’s butcher”. This statement was

28
allowed because it was instantaneous and contemporaneous and, as such, part of the res
gestae.

2) Negativing Fabrication - If it is alleged when a witness is testifying, especially during

cross-examination, that it is a recent concoction, or that the witness had fabricated the
story, that witness can rebut that accusation by showing that he or she had made a
previous statement to someone else to rebut the allegation. Such a previous statement will
be introduced in court to rebut the suggestion that what he/she is saying is a fabrication.
The classic case illustrating this was R v. Oyesiku, (1971); the prosecution alleged in
cross-examination of the accused’s wife, that she had invented part of her statement after
conferring with her husband. However, she told the court that she had made a consistent
statement to her solicitor before speaking with her husband in jail. That statement was
allowed in evidence.

Also, if defence counsel alleges that a police officer is fabricating his testimony, then that
can be rebutted by the police officer by putting in evidence his notebook to show that he
had made such a statement prior to the case; R v. Benjamin, (1913).

3) Complaints by Victims of a Sexual Offence - On charges of sexual offences, the

terms of the complaint made by the victim may both be narrated by the victim or the
person to whom it was made. But before the terms of the complaint can be admissible in
court, (2) conditions must be satisfied -

(a) The complaint must have been made at the earliest opportunity that reasonably
presented itself.
(b) It must not have been made in response to any indictment and it should be made
voluntarily.

If these two conditions are met, then the terms of the complaint can be admissible in
court to show the consistency of the conduct of the complaint with the story told by the
witness in the witness box; R v. Lillyman, (1896); on a charge of incest with a girl aged
five, the girl was not called to testify but the grandmother was called to testify to prove
the terms of the complaint made by the little girl. The court held that the grandmother
should not have been called to testify because the girl herself had not testified. The girl
should have been called to testify first and the grandmother subsequently. Since there was
no testimony of the girl, there is nothing with which the statement can be consistent with;
R v. Wallwork.

4) Statements made by an Accused person to the Police - It is the regular practice of

the prosecution to give in evidence statements made by the accused to the police at any
time, even though these statements are favorable to him (the accused) or are self-serving.
These self-serving statements do not constitute evidence of the fact stated, unless they are
proved as part of a confession, but if the accused gives evidence at the same time, and to
the same effect, he can rely on the same statements as proof of consistency. Whether the
accused gives evidence or not, his out of court statements to the police are admissible as

29
evidence of his reaction, which is part of the general picture which the jury has to
consider.

5) Identification of the Accused - When a witness is asked about the identification of an

accused person, his answer will often involve the direct or indirect proof of a previous
statement of his. Such a statement will not only be identification but would also form part
of the res gestae as was the case in R v. Fowkes. But usually, his identification would
have taken place long after the crime has been committed. But the law allows the witness
to give evidence of his previous identification of the accused and the circumstances in
which it was made. E.g. it was done in an identification parade. This is so to ensure that
the identification becomes more reliable when it is also made in court.

Cross-Examination

This is the second stage in a criminal trial, after examination-in-chief. Once a witness has
taken an oath in a criminal case and has testified in examination-in-chief, he can be cross-
examined by the opposition even if the witness has given no evidence-in-chief. However,
there are times when there is no opportunity to cross-examine because the witness has
died or the witness is too distressed to continue with evidence-in-chief and so it is
incomplete. The evidence given by such people is still admissible in law but it carries no
weight as a matter of fact. The reason is because they have not been tested by cross-
examination. In some extreme cases, if the injustice is too great, the trial will be
abandoned.

First, it must be noted that if a witness has testified in examination-in-chief, failure to

examine him or her will be taken as acceptance of the witness’s evidence; R v. Fenlon.
But, that does not mean that counsel should cross-examine every witness who testifies as
the witness might not have said anything in examination-in-chief that is adverse or
detrimental about counsel’s client.

Secondly, there are certain ethical rules and conduct affecting cross-examination. It is the
duty of counsel to behave professionally and fair when cross-examining;
(1) You must not challenge any part of a witness’s evidence that you know is true.
(2) You should only challenge the witness’s testimony if you know it is untrue or runs
contrary to your instructions.
(3) You must not put any allegation to the witness that you do not have the answer for.

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(4) You should be fearless but fair in cross-examination.
(5) You must not be offensive, rude and must avoid unnecessary time wasting.
(6) Go easy with young children or victims of sexual offences.
(7) Be fair to police officers except if you know they are telling blatant lies.
(8) Avoid unnecessarily long cross-examination; it can put the jury to sleep, lose their
interest or engender sympathy for the accused.
(9) If you know you have nothing else to say, sit down and shut up.
(10) Try to be polite to the court and the judge as this will help your case. To be rude will
always put you in a bad light and will not enhance your reputation.
(11) Treat judges and magistrates with the respect that they deserve. Say “my lord” and
“your lordship”. This will enhance your reputation with the bench and you’ll get mutual
respect from judges and magistrates.
(12) A judge or magistrate will also protect a witness where necessary, particularly where
they are protected by certain privileges.

You are not bound to cross-examine a witness if he has not said anything adverse to your
client. I.e. if at the end of the examination-in-chief, there is nothing unfavorable, do not
cross-examine.

The Purpose of Cross-Examination

1) To support one’s own case.

2) To discredit the witness, if necessary.
3) To damage or destroy the opponent’s case.

It could be all or one of the above.

The questions asked in cross-examination must be relevant and admissible. If it is

irrelevant or inadmissible, it will not be allowed. if a question that has been asked was
ruled to be inadmissible in examination-in-chief, it is also inadmissible in cross-
examination.

It is also a proper function of cross-examination to discredit a witness in appropriate

cases. There are also circumstances where you have to be very careful when examining;
for example, if the subject is promiscuous, you can explore this in cross-examination, if
necessary. This could be done in rape cases to establish a pattern of __________ or as
regards consent.

If somebody makes a false allegation of rape, you can raise this habit properly in cross-
examination as this can show that she consented and later regretted it.

Two (2) Types of Cross-Examination

1) Cross-Examination to the Issue.

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2) Cross-Examination as to Credit.

1) Cross-Examination to the Issue - This will be designed to elicit statements concerning

the facts in issue or relevant to the issue which are favorable to the cross-examiner’s case.
If cross-examination is conducted on behalf of the plaintiff or the prosecutor, it is subject
to a rule of practice that the evidence on which the cross-examining party wishes to rely
on should normally be in evidence before the close of that party’s case.

Accordingly, it is only in unusual circumstances that the cross-examiner is allowed to put

in questions about matters concerning which his witnesses have not said anything in
chief.

Exclusionary rules apply in cross-examination just as they do in examination-in-chief.

For example, the hearsay rule; questions that would amount to hearsay would not be
allowed in cross-examination just as they would not in examination-in-chief.

Exclusionary rules not allowed in examination-in-chief are not allowed in cross-

examination. Cross-examination to the issue obtains statements favorable to the cross-
examiner’s case by questions put to the witness.

2) Cross-Examination as to Credit - As the name implies, cross-examination as to credit

is to discredit the witness. For example, asking him about his previous convictions, if any
or whether he’s a liar or untrustworthy; you are trying to destroy his credibility so that the
jury will not take his evidence seriously.

A common form of cross-examination as to credit involves asking a witness about his

previous convictions. However, you can only ask a witness who has testified about his
previous convictions but if the accused goes to the witness box as a witness, he is
protected if being asked about previous convictions, by S.1 (f) of the Criminal Evidence
Act.

Note that a lawyer has more latitude when he is cross-examining a witness than when he
is being examined-in-chief. For example, in cross-examination, you can ask leading
questions which you cannot do in examination-in-chief.

You can also ask the witness whether he has made a previous statement inconsistent with
his testimony, whether he has a criminal record, is biased or whether he has been guilty
of disreputable conduct. You can even suggest to him that he is a liar. But that does not
mean that you have a license to ask these questions frivolously because you are cross-
examining him; you must have supporting evidence.

However latitude a lawyer has in cross-examination, the judge has discretion to disallow
questions if he thinks they are prejudicial. It is contrary to professional etiquette for a
lawyer to put disparaging questions to a witness unless his instructions give him
reasonable grounds for supposing that they are justified.

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Over-rigorous cross-examination may backfire against the cross-examiner because it can
arouse the sympathy of the judge or the jury. Sometimes the judge may even stop you.
However, depending on the nature of the offence and the facts you have before you, you
may well be allowed to if it is necessary; treason cases etc.

You must also be careful with police officers when cross-examining because they have
the use of their police notes when testifying and accusations suggesting that the police
officer is lying or fabricating are not looked at favorably by the court. Judges also tend to
sympathize with the police when they are testifying and so any unsubstantiated
accusations are looked at as being somewhat unprofessional.

Previous Inconsistent Statements

At common law, it was permissible to ask, in cross-examination, about previous

inconsistent statements. However, this has now been replaced by sections 4 and 5 of the
Criminal Procedure Act 1865. This now governs questions of previous inconsistent
statements in criminal cases.

If a witness is asked whether he has made a previous inconsistent statement, he can either
answer yes or no; if he denies it, then you can put that statement in evidence against him.
If this is done, that can weaken his testimony or what he said in evidence-in-chief, with
very little weight or no weight whatsoever.

If, for example, the witness tells the police that he saw somebody participating in a crime,
then when he goes to court, he says he saw no such thing, then he’ll be asked if he made a
statement different to what he now claims. If he denies, then the evidence against him
shows he’s a liar.

The Fundamental Diff. between X-Ex to Credit & to Issue

The main difference between cross-examination to the issue and cross-examination as to

credit is that a witness’s answers to cross-examination to the issue may always be
contradicted by other evidence put by the cross-examiner. On the other hand, answers in
cross-examination to credit are usually final. This means that no evidence in rebuttal will
be permitted by calling other witnesses.

There are, however, Exceptions to the Finality Rule -

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1) Previous Inconsistent Statements - If a witness denies that he’s previously made a
statement inconsistent with his testimony, the statement may be proved by another
witness under sections 4 and 5 of the Criminal Procedure Act 1865.

2) If a witness denies that he’s been previously convicted, the conviction may be proved
by the production of the appropriate documents under S.6 of the Criminal Procedure Act
1865.
3) Bias or Partiality - Generally, when witnesses testify, they are supposed to be
independent and to speak the truth. But the fact is that most or all of them know one or
other of the parties or they have reasons to favor one side. This does not necessarily
amount to bias but if a witness who purports to be an independent witness, but is in
reality concealing the true nature of his relationship with one of the parties, then the
witness can be asked about that relationship and if they deny it, the relationship can be
proved. The classic case dealing with this was that of Thomas v. David, (1836); in an
action on a bill of exchange, the plaintiff called a witness to testify on his behalf. She was
the girlfriend of the plaintiff. When asked whether she was the plaintiff’s mistress under
cross-examination, she denied that she was. However, the cross-examiner was allowed to
call witnesses to prove that, in fact, she was his mistress.

In Dunn v. Aslet, (1838), the witness was asked whether he had previously quarreled
with one of the parties and he denied. Witnesses were called to contradict that statement.

In R v. Mendy, (1976), the defendant’s husband was seen talking to one of the witnesses
as they emerged after giving their evidence in court. When he went to testify, he was
asked about this in cross-examination and he denied it. Rebutting evidence was called to
show that he, in fact, spoke to these witnesses when they emerged from court.

4) A Witness’s Bad Reputation for Veracity - After a witness has given evidence, the
opponent of the party calling him may call another witness to swear that the reputation of
the first witness as a liar is so notorious that he ought not to be believed on oath.

5) The Physical or Mental Condition of the Witness - In the case of

Toohey v. Metropolitan Police Commissioner, the accused were charged with
assaulting a boy of 16 with intent to rob him. The boy’s case was that the accused had
demanded money and cigarettes and that they took him up an alley and assaulted him in
the course of searching him. The defence of the accused was that they found this boy in a
state of hysteria exacerbated by drink and they were helping him home. The case went as
far as the HL and they held that the accused should have been allowed to call a police
surgeon to show that the boy was in a hysterical condition when brought to the police
station. Also, that he smelled of drink and that the drink was liable to exacerbate hysteria.
They argued that the surgeon’s evidence was irrelevant to the issue because it assisted in
the resolution of the question whether the alleged assault accounted for the hysteria or
whether the hysteria accounted for the allegation of assault. The importance of this
decision is to establish the principle that a party can call a witness to impugn the
reliability of an opponent’s witness on medical grounds. For example, that in appropriate

34
circumstances, a witness might be called to swear to the fact that a previous witness had
impaired vision or impaired hearing which rendered his evidence unreliable.

The Shield

When an accused person is charged, (i) He can rely on statements made to the police, (ii)
make an unsworn statement from the dock, or (iii) go to the witness box and testify on his
own behalf. If he exercises option (iii), he has certain protection; S.1 (f) of the Criminal
Evidence Act 1898 provides him with a shield against cross-examination to credit.

This shield is especially valuable to an accused person who has been previously
convicted or ____________ himself. Note that it is only the accused who has this
protection when testifying. The reason he is given this protection is because if he was
treated as any other witness, counsel for the prosecution could always ask him questions
about his previous convictions and past offences. And the jury might be too ready to infer
that he was guilty of the crime charged because he was the kind of person who would
commit such crimes.

The general effect of S.1 (f) is that the accused is liable to be cross-examined on his
record if he throws his shield away. How can he throw the shield away? If, when he is
giving evidence, he starts to testify about his good character or casts imputations on a
witness for the prosecution or the deceased victim of the offence, then the shield will be
cast aside and he will be asked about previous convictions or previous conduct.

Re-Examination

Once cross-examination of the witness has ended, he may be re-examined by the party
calling him. Re-examination deals with issues made in cross-examination and attempts to
repair any damage done. Leading questions are not allowed in re-examination, just as
they are not allowed in examination-in-chief.

After a party has closed his cross-examination, and it is now necessary for re-
examination, there are two basic principles that you must be guided by -
1) If there has been no cross-examination, there is no right to re-examine.
2) If in cross-examination nothing has been said which is adverse to your party’s case,
there is usually no need for re-examination.

Note that re-examination is confined to matters arising out of cross-examination. I.e. a

party will not be allowed to re-examine a witness on a matter or issue which did not come
up in cross-examination. You cannot introduce any new matter in cross-examination.

35
What is Re-Examination? If a witness has been cross-examined by the other side, and
you are not satisfied with the answers given or the way he has answered questions put by
the prosecution, you now have an opportunity in re-examination to ask him to clarify
certain things from cross-examination or to expand on an answer given or to close any
holes or gaps from cross-examination. But there are rare circumstances when you can
introduce a new matter in re-examination but you need the leave of the judge.

There are times when a judge may allow re-examination of a witness on matters about
which his lawyer has forgotten to ask him, subject to the other side having the right to
cross-examine him again. Also, in re-examination, a witness could be allowed to refresh
his memory from a contemporaneous statement.

A judge has discretion to allow a party to recall a witness, or he can allow a party to give
evidence in rebuttal, even though he has closed his case or the judge himself can call a
witness in a case.

In all three circumstances, it is a matter subject to the discretion of the judge and are not
matters as of right.

1) Recalling a Witness - It sometimes happens that a party desires to recall a witness

either because there is something which he has forgotten to ask him or because of some
unforeseen contingency. It is necessary to obtain the leave of the judge and he has
complete discretion whether he will give leave or not.

2) Applying to give Evidence in Rebuttal after closing your case - The power to allow
further evidence to be called by a party after he has closed his case is exercised very
sparingly. The following are circumstances where this could be done at the discretion of
the judge -

a) When the evidence relates to a material as opposed to a purely formal point, the judge
will only give leave to call it (evidence in rebuttal) if it relates to a matter which the
prosecutor was unable to foresee. It has been said that the matter must be one which no
human ingenuity could have foreseen.

b) There are also times when it is a matter of a formal omission. For example, of a purely
formal omission which a court will allow to be remedied even after close of the
prosecution’s case would be a case in which the prosecution has failed to prove that the
leave of the DPP has been obtained, when such a leave is necessary before the
prosecution was begun. For example, treason is prosecuted with the consent of the DPP
or the Attorney General (The Fiat). Cases against the Official Secrets Act or espionage.

c) When the judge himself calls a witness; in a civil case, the judge has no power to call a
witness himself without the consent of the parties. However, he does have the power to
do so in a criminal case if the interest of justice so requires; R v. Harris, (1927). It is
purely a matter of judicial discretion which is exercised very sparingly and can rarely be
challenged successfully on appeal.

36
But if the judge decides to call a witness on his own, he must not appear to be
supplementing the prosecution’s case. Although a witness called by the judge is not
cross-examined in the full sense, the judge, after asking the witness questions, would
allow both parties to also ask that witness questions. No witness may ever be called once
the judge has summed up to the jury, even if the jury asked for a particular witness to
give evidence.

The Privilege against Self-Incrimination

It is a deeply rooted principle of the common law that no one should be obliged to
incriminate himself out of his own mouth. It means that a witness is not bound to answer
any questions in a criminal or civil case or to produce any document or thing, if to do so,
would in the opinion of the judge, have a tendency to expose him or his spouse to any
criminal charge, penalty or forfeiture which the judge regards as reasonably likely to be
preferred or sued for; Blunt v. Park Lane Hotel Ltd, (1942); a fundamental principle in
English criminal law is that a witness is not bound to answer any question incriminating
him or his spouse.

The privilege is not absolute; it has exceptions. The privilege belongs to the witness who
is testifying and must be claimed by that witness when he is testifying. Where the
privilege is not claimed, incriminating answers remain admissible and may be used in
criminal proceedings against the witness in future.

This privilege does not apply to an accused person when he is testifying. When you are
testifying as a witness and the lawyer asks you a question which could incriminate you or
your spouse, the law gives you the privilege not to answer the question or produce that
document.

Generally, the witness should claim the privilege or your lawyer and/or the judge advises
you not to. This privilege usually applies in criminal proceedings although it can also
apply in civil proceedings.

When an accused is giving evidence on his own behalf, under the

Criminal Evidence Act 1898, he cannot refuse to answer questions because of the
tendency to incriminate him as to the offence charged.

The privilege covers answers and material which are reasonably likely to expose the
person to criminal charges or civil proceedings for a penalty or forfeiture.

Note that the privilege does not extend to questions tending to expose the witness to any
civil liability.

Note also that the privilege applies whenever the answer tends to incriminate regardless
of whether the question is directly related to the subject matter.

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Note, further, that the ____ statement by the witness that the answer will tend to
incriminate him is not exclusive. The court must consider whether there is any reasonable
probability of this result.
In the case of AT&T Istel Ltd v. Tully, the HL decided that a person could not rely on
the privilege against self-incrimination to justify refusing to obey a court order disclosing
dealings with certain moneys and assets.

Exceptions
1) Does not apply when an accused is testifying.
2) Under certain statutes, you cannot refuse to answer even if the answers will
incriminate.

Opinion Evidence

The general rule is that whilst evidence of a fact is admissible, evidence of opinion is not.
There are two (2) reasons for this rule -
1) The opinion of a witness in a trial is generally irrelevant.
2) If witnesses were allowed to state their opinion, they would be usurping the function of
the judge and jury to draw inferences from the facts stated. So, basically, witnesses are
not allowed to state their opinion in testimony.

Exceptions to this rule -

1) Expert Witnesses.
2) Opinion of Non-expert Witnesses.
Generally, when witnesses are asked to testify, they can only testify as to what they saw
or what they know within their own personal knowledge. If this were the case all the
time, courts of law would be deprived of the views of certain experts who should help the
judge and jury on matters beyond their competence or knowledge.

Experts - You can call experts in the areas of science, medicine, architecture,
engineering, handwriting, ballistics and mental conditions of people. If a case revolves
around such issues, it is usually necessary to call witnesses who are experts in those
particular fields. If called, they are allowed to give opinion evidence in matters that are
beyond the knowledge of the judge and the jury.

How Courts of Law look at the opinions of Experts - In R v. Chard, (1972), Chard was
charged with murder and he wanted to call a prison doctor to testify on his behalf to say
that the defendant who was charged with murder had not intended, at the time of the
offence, to commit murder; he had no mens rea. The judge refused to allow the prison
doctor to testify as an expert because it was not a matter needing expert testimony. It did
not affect his mental condition so there was no need to call an expert to show if he had
mens rea or not or how the accused’s mind operated at the material time. It was a matter
for the judge and jury to decide.

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In R v. Jeffries, (1997), Jeffries was charged with possessing drugs with the intention to
supply them. At the trial, a detective constable gave evidence that, in her opinion, certain
lists found at the defendant’s flat related to the sale of drugs. The CA held that this
evidence should not have been admitted because the detective-constable was giving her
opinion on whether the defendant had drugs in his possession and it was not necessary for
her to express an opinion on this issue. Further, that so long as there are matters which a
judge and jury can decide on their own without any help, expert testimony was
unnecessary.

Note that expert testimony is only admitted on certain topics and not on all topics.

In R v. Anderson, (1972), the defendant was accused of obscenity where the test for
obscenity was whether the material would deprave and corrupt that individual. It was said
that the decision as to whether an article would deprave or corrupt somebody was
something that required expert evidence. Expert evidence is admitted when it concerns
matters beyond the normal competence of the court. If it is within the court’s experience,
expert testimony is not needed.

In R v. Silcott, the ability of the witness to tell the truth was challenged. The court said
that you did not need experts to tell if someone’s lying or telling the truth. On the
contrary, in the case of Folkes v. Chadd, the question concerned what caused a harbor to
silt. It was decided that expert opinion evidence would be necessary to determine this.

Who is an Expert? It is not easy to determine who qualifies as an expert. There are some
cases where someone can be considered as an expert from their experience and skill
acquired over the years; R v. Silverlock, (1894); here, a solicitor who had studied
handwriting as a hobby for many years gave expert opinion evidence on handwriting.

As a general rule, experts are those who have formal training in a particular discipline.
However, it is not just such people who are used as experts by the courts. In R v. Oakley,
(1979), the evidence of a police officer with many years experience with road accidents
was allowed as expert opinion evidence on the possible cause of the accidents.

The categories of experts are not closed; they are still open. In matters concerning foreign
law, for instance, you will need expert opinion evidence. The expert will give evidence
based on the facts as seen by him. But he can even give opinion evidence on something
else, where he has no knowledge of the facts but is basing his opinion on facts related to
him by other experts or by material written by other experts.

When an expert testifies, a lot of weight will be given to his testimony but the jury is not
bound to accept it. He is only there to assist the jury as they do not have the knowledge or
competence that he has on the subject. It is for the jury, however, to decide if they will
accept his expert testimony.

39
There are situations where there are experts on both sides and it is up to the jury to decide
which to accept. In R v. Chard, (1972), the defendant was charged with murder and the
defence sought to call a prison doctor. There was no defence of insanity or diminished
responsibility. The doctor’s opinion was that there was nothing wrong with the
defendant’s mental state. However, the defence wanted this doctor to testify that in his
opinion, at the time of the offence, the defendant had no intention to commit murder. The
judge refused to allow that evidence. The court said that it was an issue which the jury
could easily decide; there was no need for an expert to decide actus reus and mens rea.

The purpose of expert evidence is to provide the court with information outside of the
judge or the jury’s experience. It is for the court to decide whether or not a particular
point requires expert evidence. If the court decides that it does not require expert
evidence, then the point in question must be proved without the admission of expert
opinion evidence.

The bottom line is that so long as it is an issue outside of the experience or competence of
the judge or the jury, they will allow expert evidence. The court should refrain from
acting on its own as an expert. If expert opinion is necessary, then independent witnesses
must be asked.

In a case where the issue was whether defective tyres were used or not, the judge and jury
tried to adjudicate on that issue without expert opinion evidence. The CA said that they
were wrong to do so. If the information, however, is within the knowledge of the courts
and they can do so competently on their own experience, then they do not need expert
opinion evidence; Tiverta v. Smith.

Psychiatric Evidence

Psychiatric evidence of experts is used wherever it concerns the mental state of the
accused person. In some cases, psychiatric evidence is a necessity where you have to
establish a defence of insanity, automatism or diminished responsibility, because there is
no other way you can succeed in that defence if you do not call a psychiatrist to testify on
your behalf to show that you were insane etc.

In R v. Turner, (1975), the defendant was charged with the murder of his girlfriend and
his defence was provocation. The defence tried to call a psychiatrist to testify on his

40
behalf. The psychiatrist told the court that Turner showed no signs of mental illness
whatsoever. Turner had a deep emotional relationship with the girl and the psychiatrist
said that Turner was very upset and angry when his girlfriend confessed that she had been
sleeping with other men and that the child she was carrying was not his. In a blind rage of
anger, he killed his girlfriend. The court refused to accept any evidence of insanity or
diminished responsibility but only dealt with the issue of provocation. The court said that
since Turner was not suffering from any mental illness, they were in a position to judge
how people would react when they were angry. The court said that jurors did not need
psychiatrists to tell them how ordinary people who aren’t suffering from any mental
illness are likely to react to the stresses and strains of life.

This case was followed by R v. Weightman, (1980), which reinforced the decision in R
v. Turner.

However, R v. Turner was contrasted by R v. Lowery, (1974); Lowery and King were
both charged with the murder of a young girl. The nature of the murder was such that it
must have been committed by a sadistic psychopath. Both gave evidence and blamed
each other for the crime. Lowery said that he was not the sort of person to have
committed such an offence. King went one stage further; he was allowed to call a
psychologist to show that his version of the events was the more probable since he was
less likely, on the grounds of personality, to have committed the murder. The evidence of
the psychologist was allowed by the Privy Council; it was held that his evidence was
admissible as a necessity and a relevant part of King’s case and to rebut Lowery’s
evidence.
The court believed King’s evidence and decided that the murder was committed by
Lowery. This was a strange case and the following must be noted -

1) It was decided on its own peculiar facts.

2) It has never been followed.
3) It is not an authority to establish any general rule relating to the admissibility of
psychiatric evidence.

Normally, a psychologist would not be called upon to testify on matters of psychiatry, as

they are not medical doctors who can testify on issues of a person’s mental state.

Generally, R v. Turner is the authority to show that juries are in a better position to
determine how ordinary people behave or react to the stresses and strains of life. For this,
experts are not needed.

In R v. Masih, two defendants were charged with rape. One of them sought leave to call
psychiatric evidence to show that he was of low intelligence, immature and easily led; it
was the other one who led him. The trial judge refused to admit the psychiatrist’s
evidence. He said that on the totality of the evidence, the defendant’s intelligence was
within the scale of normality and he was not mentally defective. Whether he was of low
intelligence, immature or easily led is a matter which the court would itself determine.

41
In R v. Reynolds, the defendant was charged with murder and wanted to call a
psychiatrist to show that he had no ability to separate reality from fantasy; it was flawed.
The trial judge refused to allow psychiatric opinion evidence on this as the issue was
whether he had the necessary mens rea or not and the court can decide that. There was no
evidence that he suffered from any mental illness or fantasizing at the time of the
commission of the offence. The jury could use their common sense to determine this
issue.

In the Canadian case of R v. Lupien, the Supreme Court of Canada examined the
question of whether psychiatric evidence was necessary to show how a defendant would
react to homosexual advances. The court said that psychiatric evidence should have been
admitted to show that a defendant would react violently in such circumstances.
In R v. Smith, the accused was charged with murder by stabbing and his defence was
automatism while asleep. The prosecution adduced psychiatric evidence to show whether
the evidence of the accused was consistent with his defence. It was agreed that expert
evidence is necessary to establish the defence of automatism by the accused.

Defences such as duress or coercion could lead to expert medical evidence being
admissible provided that the mental condition or abnormality in question is relevant and
its effects are out side the knowledge and experience of laymen.

Expert witnesses are like other witnesses; they are competent and compellable. They may
be required to produce documents and could be subpoenaed. Confidential communication
between a solicitor and expert witness is protected by legal professional privilege. In
other words, an expert witness is like any other witness.

The Opinion of Non-Experts

The opinion of non-experts is generally not admissible but there are certain occasions
where the law will allow the opinion of non-experts to be admissible in court. The
evidence of the opinion of a witness who is not an expert may be admissible if his
opinion or the impressions received by him will be a way of conveying relevant facts
perceived by him.

What are these situations?

1) Handwriting.
2) Identity.
3) Age.
4) Voice.
5) CCTV Footage.
6) The condition of things.

These are some of the situations where a person will be called to testify. For example, a
witness may give evidence of his own condition, whether physical or mental and such

42
evidence may well include evidence of opinion. For example, the witness will say “I
drank six pints of beer and was not drunk.”, or “I was well until I ate the food given to me
by the defendant and I fell ill.”

Non-experts may also give opinion of handwriting; R v. Silverlock or opinion on the

identity of people.

Non-experts are treated like any other witness; they are competent and compellable and
can be subpoenaed to give evidence of their opinion. Their evidence is given the weight
given to that of experts because they are also exceptions to the general rule.

These non-experts perceive certain facts and want to communicate those facts in the way
of opinion, a commonsense identification of facts - handwriting, identity, age and speed;
they can comment on these and such evidence is admissible. In R v. Davies, the witness
saw an accident and was allowed to testify that in his opinion the driver was going very
fast. However, he was not allowed to testify whether the driver was drunk and going fast.

Distinction between Fact and Opinion

Fact is what you perceive. Opinion is the inference drawn from what you have seen. All
witnesses give evidence on facts seen.

Because it is expert evidence, it must be credible and reliable. That depends on the
qualification of the person, and the person is equally qualified for the topic to be spoken
about. It is necessary that the evidence the witness gives is credible, and must be
necessary and reliable. When it is determined that his is necessary, his opinion will have
to be credible. Experts or non-experts should not mislead the court as this would have far
reaching consequences. The evidence of experts should be restricted to the sphere they

43
are called upon to testify. In the final analysis, it is the court who decides whether to rely
on an expert witness as being credible.

Juries accord a lot of weight to expert evidence but they must not place undue weight on
expert evidence. So long as the evidence of the expert is cogent and admissible, the
necessary weight should be paled on the tribunal. In other words, so long as the evidence
of the expert is necessary, credible and reliable, that is all the jury needs to rely on.

It is for the judge to decide whether the issue is one which the jury should be assisted by
expert evidence and whether the expert has the necessary expertise to provide such
evidence.

Areas that non-experts can give evidence on -

1) Handwriting.
2) Identification of persons and things.
3) Age.
4) Bodily plight. E.g. Illness.
5) Emotional state.
6) The condition of things, whether they are old or new.
7) Question of value.
8) Estimate of speed or distance.

In R v. Davies, Davies saw a vehicle go by and he was able to testify that the man was
driving with excessive speed. However, he was not allowed to give his opinion that the
accused was unfit to drive because he was drunk.
Illegally Obtained Evidence

The general rule is that illegally obtained evidence is admissible in a court of law in
England or Sierra Leone. In other words, the law is not concerned as to how you obtained
the evidence. This was clearly stated in R v. Leatham, where Compton J. said, “It
matters not how you get it, even if you steal it, it will be admissible in evidence.”

In Elias v. Pasmore, the court said that the interest of the State must excuse the seizure
of documents, which seizure would otherwise be unlawful.

In Callis v. Gunn, it was said that it does not matter how you get the evidence, whether
by false representations or by trick, it will be admissible.

This position can be contrasted with the position in the United States, where illegally or
improperly obtained evidence is not admissible because it contravenes the 4th
Amendment of the United States Constitution which provides a protection for the people
to be secure in their persons, houses, papers, and effects from unreasonable searches and
seizure. Courts in the United States maintain that to admit such evidence is a breach of
the accused’s rights.

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English law takes the view that they are not concerned with the way and manner in which
evidence is obtained; it will be admissible in evidence, as in
R v. Leatham.

The Kenyan case of Karuma, Son of Kaniu v. R went to the Privy Council; the accused
was charged with the unlawful possession of ammunition which had been found in his
pocket by police officers who were of insufficient rank to carry out the search. Evidence
of the search was admitted and they were convicted. The defence said that the search was
illegal and the accused appealed to the Privy Council who dismissed his appeal. Lord
Goddard said that where evidence is relevant and admissible, the court is not concerned
with how it was obtained.

In Jones v. Owens, a police constable in unlawfully searching an accused person, found

a number of young salmon in his possession. The evidence was admitted on the
subsequent charge of unlawful fishing, on the grounds that to exclude such evidence
obtained by illegal means “would be a dangerous obstacle to the administration of
justice.”

In Jeffrey v. Black, the accused was charged with unlawful possession of cannabis. He
was originally arrested for stealing a sandwich but whilst he was being searched, police
officers without a search warrant and without the accused’s consent searched his home
and found the cannabis. The magistrate originally dismissed the case on the ground that
the cannabis had been obtained as a result of an illegal search. The prosecution appealed
and the appellate court upheld he appeal. The judge said, “I have not the least doubt that
an irregularity in obtaining evidence does not render the evidence inadmissible.” The
accused was convicted.

In Fox v. Chief constable of Gwent, police officers stopped a driver and asked him to
take a breathalyzer test. The driver was unlawfully arrested. The police went on and
obtained the specimen from the driver. His lawyer objected to the admissibility of that
evidence on the grounds that he was illegally arrested. The court said that so long as the
police were acting in good faith and procedure, the fact that the accused has been
wrongfully arrested will not render the evidence inadmissible. The police officers merely
perpetrated a bona fide mistake as to their powers.

In R v. Apicella, the accused was convicted on three counts of rape. Each of the victims
that he had raped had contracted an unusual strain of gonorrhea. The accused was held on
remand and the prison doctor suspected that he was suffering from gonorrhea. The doctor
called in a consultant who took a quantity of bodily fluids to enable him to make a
diagnosis. The consultant assumed that the accused was consenting. In fact, the accused
had submitted because he was told by a prison officer that he had no choice in the matter.
The specimen taken from the accused showed that he was suffering from the same strain
of gonorrhea as the victims. The prosecution tendered the evidence. The accused argued
that the use of the evidence was unfair, prejudicial and that the samples were taken
without his real consent. The court said that use of the evidence was not unfair and
therefore the evidence was admissible.

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In R v. Payne, the accused was charged with drunken driving. He agreed to a medical
examination to see if he was suffering from any illness or disability, on the understanding
that the doctor would not examine him as to his fitness to drive. At the trial, the doctor
gave evidence of the accused’s unfitness to drive and the CA quashed the conviction on
the ground that the trial judge must have exercised his discretion to exclude the doctor’s
evidence. This is the only case where evidence that was illegally obtained was not
admissible.

In R v. King, police officers searched a man illegally and found cannabis in his
possession. The Privy Council, however, ruled that the evidence was admissible.

In R v. Christou, the police carried out a long operation to obtain evidence of theft by
operating a shop which bought and sold jewelry. They were trying to trap a bunch of
thieves by using the shop to attract buyers of stolen gods. They were arrested and
prosecuted and the evidence obtained from this operation, in the form of video and oral
recordings, included incriminating conversations with the undercover operators. The
defence objected to the tendering of this evidence but the court ruled that it was
admissible.

There are times when the police use undercover methods to obtain evidence. They may
bug police cells or even homes to obtain incriminating conversations. These
incriminating conversations are admissible in law because they are relevant even though
they are improperly obtained.
In R v. Maqsud Ali and R v. Ashiq Hussein, the defendants were both Pakistanis
suspected of murder and living in Bradford. They went with police officers to a room in
the Bradford Town Hall. Unknown to these Pakistanis, there was a microphone
connected with a tape recorder in another room. The two men were left to themselves and
they started talking. In their conversation, they made very incriminating remarks and the
prosecution sought to admit this tape recording into evidence. The judge held that the
tape recording of the incriminating conversation was admissible. The judge said that
criminals do not act according to the Queensbury rules and the method of the informer
and of the eavesdropper are commonly used in the detection of crime. In this case, a
microphone was the mechanical device which was used as the eavesdropper.
In R v. Bailey, the police installed a bugging device in a police cell, recorded what
Bailey was saying and used it in evidence against him.

In R v. Khan, a listening device was installed in the home of a 3rd party. The accused
went there as a visitor and was heard to confess to a crime with which he was charged.
The prosecution tried to introduce the tape recording and the defence objected, saying
that their client was deceived. The court, however, ruled that the tape recording was
admissible.

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Note that in England, S.78 of P.A.C.E. now gives judges discretion to decide whether to
admit evidence or not.

In the locus classicus R v. Sang, (1980), Sang and Mangan were charged with the
offences of conspiracy to alter forged bank notes and possession of forged bank notes.
They both pleaded not guilty and a voir dire (trial w/in a trial) was held to decide whether
the prosecution’s evidence should be admitted because the accused had been induced by
an informer acting on the instructions of the police. And but for the persuasion of this
informer, they would not have committed this crime. The defence put forward the
defence of entrapment and that they would never have committed the crime if the police
had not instigated it. (Entrapment is not a defence in England and Sierra Leone but it is a
defence in the United States.)
The trial judge ruled that there was no defence of entrapment in English law and that he
did not have any discretion to exclude the evidence obtained by entrapment. After this
ruling, the defendants changed their plea to guilty. They were both tried and convicted.
They appealed to the CA which upheld their conviction and ruled that evidence, however
illegally obtained, was admissible in evidence. They appealed to the HL and the HL also
upheld the conviction, ruling that even though the evidence was improperly obtained, it
was still admissible. The conviction stood but the HL laid down two limitations to this
rule -
1) If the evidence obtained improperly or unfairly amounts to an admission or a
confession, the judge has discretion to exclude it.
2) In every criminal trial, the presiding judge always has overriding discretion to exclude
evidence if the evidence was more prejudicial than probative. I.e. if the prejudicial effect
outweighs the probative value.
It was also noted that English law does not recognize the defence of entrapment; if the
police use an agent provocateur, it will not avail the accused as a defence.

Public Interest Immunity

In certain cases, relevant evidence is excluded on the ground that it would seriously
prejudice the public interest if the material were disclosed. Such evidence is excluded
because if it is admitted in evidence, it would injure the interest of the State which the
administration of justice itself depends on. I.e. all relevant evidence could be admissible
in evidence if the administration of justice is to function effectively. However, there are
certain instances where the administration of justice must give way because if certain
evidence is introduced it could ________________________.

One of the exclusionary rules of evidence.

Some evidence concerns national security, diplomatic relations between States,

international relations between Sierra Leone and the United Nations. Some evidence
might include giving evidence on the detection of crime or police informers. This type of
evidence should not be disclosed even though necessary in the interest of the

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administration of justice but other interest concerns makes it necessary not to disclose
them at certain occasions.

The major ones -

1) Maintenance of national security or diplomatic relations.

2) The effective functioning of the civil service or of the public service.
3) The detection of crime.

They were originally withheld on the grounds of protecting the State, as they thought
they could be withheld when the public interest in withholding information in a particular
case outweighs the normal rules of the administration of justice that require disclosure. In
such specific instances, the law takes the view of withholding that piece of evidence.

Public interest immunity is also recognized by the Sierra Leone Constitution 1991.
Provision is made for the State or government to withhold certain information on the
grounds of public interest.

It all started with the case of Duncan v. Cammell Laird, (1942), where information was
sought concerning how a submarine was built but the Crown decided to withhold that
information because if the plans were disclosed and they ended up in the hands of the
enemy, this would cause serious injury to national security. Whenever the Crown wanted
to withhold under the principle laid down in this case, ministers would bring a certificate
to the court to say that the information would not be disclosed on public interest grounds.
The certificate was final and even the courts would never argue against it. It was a
privilege that could not be waived so once the decision had been made to withhold, the
Crown had to do it. If the Crown did not claim the privilege, the evidence would be
admitted.

In Duncan v. Cammell Laird, the Minister of Defence in England decided to withhold

certain information from the court concerning the plans of the building of a submarine in
the interest of national security. This was the end of the matter but this was heavily
criticized as the minister had absolute power in the matter.

The scenario was review in the HL case of Conway v. Rimmer, (1968), where the HL
said that it was not sufficient for a minister of the government to come and tell the court
that they would withhold certain evidence. The new position was that if the minister now
came forward with the certificate, the court now had the power to examine it to decide
whether or not that evidence could be withheld; it was now no longer an executive
decision but a judicial decision.

One of the main grounds of holding evidence is on the ground of national security, as in
Duncan v. Cammell Laird.

Another case was that of Burmah Oil Co Ltd v. Bank of England, (1980); there was a
document which contained some diplomatic correspondence and it also contained a

48
confidential economic report on the Bank of England. The question was whether the
document should be withheld from the courts. The Crown argued strongly that if it was
admissible in evidence, it would damage the nation’s _________________ which would
also affect its national security and as a consequence, it was withheld from the courts.

Even the case of Conway v. Rimmer, which more or less changed the procedure from
being an executive decision to being a judicial one, was a case of national security.

The Crown generally is able to persuade the courts to withhold when evidence is being
withheld on the grounds of national security vis-à-vis other evidence.

Under these same grounds, there are certain documents which the State will always try to
protect such as cabinet papers, foreign policy dispatches and documents between Sierra
Leone and international organizations such as the United Nations. In these situations, the
State would try to prevent such evidence from going in as it would be injurious to
national security if allowed to go in.

After the case of Duncan v. Cammell Laird, there was also the case of
Ellis v. Home Office, (1953); Ellis sued the Home Office and the plaintiffs wanted
certain documents; police and medical reports concerning the mental condition of a
prisoner who had violently assaulted the plaintiff who was also a fellow prisoner. When
the plaintiff claimed disclosure of these documents, the Home Office objected on the
grounds of public interest immunity and this objection was upheld by the court. Although
Devlin J. upheld the claim of public interest immunity, he said that he had an uneasy
feeling that justice had not been done and such a situation could not continue.

It was no surprise then when Conway v. Rimmer came to be determined, that the HL
reversed the situation in Duncan v. Cammell Laird and said that it was not the executive
who had the final say when public interest immunity is claimed but the courts.

In Conway v. Rimmer, the plaintiff was a police constable who had been charged but
acquitted of stealing a torch light. He brought an action against his former superintendent
of police claiming damages for malicious prosecution. The Home Secretary objected to
the production of five reports relating to the plaintiff’s conduct when he was on probation
and one report relating to his prosecution for theft. The Home Secretary objected on
grounds that it was not in the public interest to disclose them. The Home Secretary swore
to an affidavit and also produced a certificate that the document should not be disclosed
and they submitted that such was final. The courts refuse to accept this argument now
that once the executive has produced a certificate, they must automatically grant public
interest immunity. The HL says that a minister’s certificate is not final because public
interest immunity is a question of law for the determination of the court and if the
government objects to the production of documents, they will give the greatest weight to
that objection but that objection would not be final, and it was up to the court to examine
the document and determine whether the document should be disclosed or withheld.

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This was a major case in public interest immunity particularly when one considers that
Duncan v. Cammell Laird was determined during the war years (1942) when it made
sense to not disclose documents for national security reasons and considering what was
said by Devlin J., the HL in Conway v. Rimmer decided to overturn the position.

Categories where P.I.I. is Usually Invoked

1) On grounds of National Security; for example in Duncan v. Cammell Laird, the

disclosure of plans of the construction of a submarine would affect national security.
Another national security case was the case of
Asiatic Petroleum Co Ltd v. Anglo Persian Oil Co Ltd, where the defendants, acting
on instructions from the Board of Admiralty, objected to the production of a letter from
the admiralty to an oil company on grounds of national security because the letter
contained information about a military campaign.

Also, in Burmah Oil Co Ltd v. Bank of England, the HL upheld a claim on public
interest immunity to prevent certain government memoranda of a very confidential
meeting on the grounds of public interest; it would not be desirable to disclose this
memoranda. When public interest immunity is invoked on grounds of national security as
opposed to other categories, courts generally tend to uphold the objection. The chances of
succeeding are greater as courts are aware of the harm possible if matters of national
security are exposed.

In Balfour v. Foreign and Commonwealth Office, Balfour was dismissed from his
position as British Consul in Dubai. He took the Commonwealth Office to an industrial
tribunal and claimed damages. He sought disclosure of documents in the possession of
the Foreign Office but the Foreign office refused, saying that if they were disclosed, it
would be contrary to the public interest to do so as they related to the Security and
Intelligence Service. The Minister for Foreign Affairs and Minister for the Home Office
both signed two certificates claiming public interest immunity. They gave reasons for
their claim and the court upheld the decision to refuse disclosure.

In Council of Civil Service Unions v. Minister for the Civil Service, the following was
said, “When dealing with questions of national security, it must be recognized that it is
usually a secretive and complex matter. National security is the responsibility of the
Executive government and what action is needed to protect its interests is a matter on
which those on whom the responsibility rests and generally not the courts of justice.
Generally, they should have the last word. It is a non-justiciable question and the judicial
process could not generally deal with these matters when such problems arise.

2) Information for the Detection of Crime - If the names of police informants were
routinely disclosed, then it would be difficult for the police to obtain information from
the public. The police and law enforcement agencies greatly rely on confidential
information from the public to help them in the prevention, detection and prosecution of
crime. If the police disclosed the names of informants, they would be attacked or even

50
killed and so it is not in the public interest. The classic case is Marks v. Beyfus; the
plaintiff claimed damages for malicious prosecution. In the course of the trial, he asked
the DPP to name his informants and the judge disallowed the question and said that there
was no justification for that question and he will not even allow the DPP to answer it as
the police generally do not give information about the names of their informers. He
appealed against the decision and the CA upheld the ruling of the trial judge. The CA
said that the prosecution that took place was a public prosecution ordered by the
government, for which it was considered in the public interest to do so and that the
information sought by the plaintiff ought not, on the grounds of public policy, to be
disclosed.

In D v. NSPCC, the National Society for the Prevention of Cruelty to Children is an

organization in England where people can make complaints concerning the way parents
treat their children, especially cruel treatment. They are empowered to take remedial
action against parents. Information was given to the NSPCC about a mother who was
allegedly maltreating her baby and they decided to investigate the matter and take action
against the mother for cruelty. The mother, in the course of the trial, wanted to know the
identity of the informant who had reported her. The NSPCC claimed public interest
immunity and said that it would not be in the public interest to disclose the informant.
Such informants must be protected because of the risk and dangers they would be
subjected to if disclosed. If these agencies that rely on information from the public start to
disclose such sensitive information, then their sources of information would dry up and
nobody would have confidence in giving information and they cannot effectively operate
without such information from the public. Therefore, they must protect informants. P.I.I.
was upheld and the defendant was not given the information required.

3) The Proper Functioning of the Public Service - Public interest immunity is

sometimes invoked to protect the necessity for the proper functioning of the public
service. In R v. Lewes Justices, ex parte the Home Secretary, an unsuccessful
application for a gaming licence sought certain disclosure. After it was turned down, the
unsuccessful applicant brought libel proceedings against the police because he said that it
was certain information that the police gave to the Gaming Board which led to his
application being unsuccessful. He asked for certain disclosure especially a letter sent by
the police to the Gaming Board. It was in that letter that the police said that he was not
suitable. He lost his case and went as far as the HL but the Hl refused and said that the
Gaming Board should not disclose the letter as this would affect the smooth running of
the public service. It was thought that if the Gaming Board is to adequately perform its
statutory duties, then such information should not be disclosed in the public interest.

In Lonrho v. Fayed, the question arose whether in the absence of consent to disclosure
by a tax payer, P.I.I. attaches to documents relating to his tax affairs in the hands of the
income tax department. The CA said that it is necessary to prohibit disclosure by the
income tax department of a tax payer’s affairs within their department. Further, that these
tax affairs documents are confidential and if these documents have to be disclosed, then

51
the person seeking their disclosure would have to show very strong grounds why it would
be in the public interest to make these disclosures.

4) Judicial Disclosures - There are restrictions on the extent to which those involved in
the administration of justice can be called upon to give evidence of proceedings. The
reason is the need for efficiency and finality in litigation. Judges presiding over cases,
including masters and registrars, cannot be compelled to testify or to give evidence of
those matters of which they become aware, relating to and as a result of their
performance of their judicial functions. This means that judges do have certain public
policy immunities and as a matter of public policy, they will not be compelled to come to
court and disclose what had happened in the cases they had presided in. Public interest
immunity is also extended to the jury presiding over cases. The jury should not be asked
what happened in their deliberations; it is not a matter for the public domain. (This is the
opposite of what obtains in the United States.)
In the case of R v. Thompson, the CA refused to hear evidence to the effect that a juror
had read a list of the accused’s previous convictions which had not been revealed in
evidence in court. The court said that it was in the public interest not to disclose what
takes place in the jury room and that discussions amongst jurors were not a matter for the
public. Further, in any case, there must be finality to litigation.

5) Confidential Relationships - Strictly speaking, it is not a category as such, like

national security etc. However, confidential relationships are taken into consideration at
times to prevent certain disclosures going out to the public. The general assumption is
that if information which is confidential is passed on to you, you should not disclose it.
This happens with lawyer/client, doctor/patient, banker/customer, journalist/source and
priest/penitent.
What it means is that these categories of people normally develop a very close and
confidential relationship and it is necessary that what transpires between them should not
be disclosed. For example, a medical doctor treating you keeps records which should be
confidential. Also, between bankers and customers, for instance, the bank manager
should protect the customer’s confidentiality.
Strictly speaking, these confidential relationships are not a ground for immunity but these
confidential relationships are respected. However, you cannot claim public interest
immunity. The only one that has some sort of immunity is the relationship between legal
adviser and client; confidential information that passes between lawyer and client is
legally protected. In Alfred Crompton Amusements Machines Ltd v. Customs and
Excise Commissioners, the HL emphasized that confidentiality is never a sufficient
ground of immunity, even though it is often a necessary condition.

In British Steel Corporation v. Granada Television, Granada television had received

from a BSC employee, copies of secret documents from the files of BSC. Some of these
documents were used in a documentary program by Granada on the National Steel strike
in England. Granada television had paid money to the informant for the documents,
promising to never disclose his identity. BSC took Granada to court and applied for an
order that Granada disclose the informant’s identity. Granada refused. The court ruled
against Granada. The case went to the CA and they also ruled against Granada. The HL

52
made an order that Granada should disclose the identity of the informant. Lord
Wilberforce said “Courts have an inherent wish to respect this confidence; whether it
arises between doctor and patient, banker and customer, priest and penitent or between
persons giving testimonials to employees or in other relationships. But in all these cases,
the courts may have to decide in the particular circumstances that the interest in
preserving this confidence is outweighed by other interests to which the law attaches
importance.” The HL decided to order that Granada must disclose the name of the
informant.

In A-G of England v. Mulholland, Lord Denning said, “The judge will respect the
confidence which each member of these honorable professions receives in the course of
their duty and will not compel them generally to answer or to disclose the source of their
information unless not only is it relevant but also proper and necessary in the interest of
justice to do so. A judge is the person entrusted on behalf of the community to weigh all
these conflicting interests; to weigh, on the one hand, the respect due to the confidence of
the journalistic profession not to disclose its sources and, on the other hand, to weigh the
other interest of the community, in the interest of justice, to order disclosure. If the judge
determines or orders that the journalist should answer the name or identification of the
source, then no privilege will avail him to refuse. If he refuses, he’ll be in contempt of
court for which he could be fined or imprisoned or both.

S.104 (1) (2) (3) (4) of the Constitution of Sierra Leone 1991 refers to P.I.I.

Public interest immunity cannot be waived; you either claim it or you don’t claim it. If
you do not claim it, the evidence will go in and you cannot complain later on or even
comment upon it. Necessary weight will be put on it and it could influence the outcome
of the case.

Though strictly speaking, confidentiality is not an immunity, it is, however, taken into
consideration when a person is claiming immunity.

The only profession with any form of legal immunity is the legal profession. Other
professions have ethical obligations not to disclose matters disclosed in confidence.
Generally speaking, doctors are not asked to disclose confidential information. However,
if a court orders a doctor to disclose confidential information, he has to. Necessary action
can be taken against a doctor for breach of confidence if he discloses confidential
information. This is also the case with a lawyer. You can only disclose of information if
the party to which it pertains consents or agrees. If a court makes an order for disclosure,
you are bound to comply with that order. Failure to do so may result in a fine or
imprisonment.

The privilege that lawyers have extends to questions in court; you cannot ask a lawyer to
tell what transpires between him and his client. Also, lawyer’s offices cannot be
arbitrarily taken away, even if there’s a search warrant; they are protected by legal
professional privilege.

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Legal Professional Privilege

Legal professional privilege enables confidentiality to be maintained in two types of

situations -

1) Communications between a client and a lawyer made for the purpose of obtaining and
giving legal advice.

2) Communications between a client, his lawyer and 3rd parties (witnesses, potential
witnesses, experts who will be called to testify) brought into existence in contemplation
of a criminal trial or litigation.

The rationale behind this privilege was expressed by Taylor LCJ in the case of R v.
Derby Magistrates’ Court, Ex Parte B, (1996), where he said, “The principle that runs
through the law is that a man must be able to consult his lawyer in confidence since
otherwise he might hold back the truth. The client must be sure that what he tells the
lawyer in confidence will never be revealed without his consent. Legal professional
privilege is much more than an ordinary rule of evidence limited in its application to the
facts of a particular case. It is a fundamental condition on which the administration of
justice as a whole rests.”

To qualify for privileged status, two (2) conditions have to be met -

1) The communication between the lawyer and the client must have been confidential in
nature.

2) If not actually made in the course of a lawyer/client relationship, it must have been
made with a view to establish such a relationship.

The privilege extends to instructions by the client to his solicitors and from solicitor to
barrister. It also covers original documents and copies brought into existence for the
purpose of instructing a lawyer.
In the case of Waugh v. British Railways Board, (1980), the HL held that in order for
communication with 3rd parties to attract privilege, the dominant purpose for the
preparation of the reports must have been for submission to a legal adviser for use in
litigation.

Communications between a lawyer and his client for the purpose of giving or obtaining
legal advice are privileged, whether or not litigation is contemplated; Greenough v.
Gaskell.

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When we talk about legal professional privilege, we’re not just talking about barristers
but also solicitors, in-house lawyers and also foreign lawyers.

Legal Advice Privilege - Legal advice privilege, where the client seeks advice, exists
without litigation being contemplated. It covers any request from a client for advice and
any advice given by the lawyer to the client. However, unlike Litigation Privilege, this
one does not attach to communications between a lawyer, his client and a 3rd party.

In the case of Wheller v. Le Marchant, a defendant was obliged to produce reports

made to his solicitor by a surveyor with regard to property that became the subject of
litigation, which was not contemplated when the reports were made. It was decided that
counsel’s opinion taken by a solicitor is always privileged, either because the counsel is
the legal adviser for the purposes of the rule or else because he is the alter ego of the
solicitor.

The privilege is confined to the obtaining of proper legal advice. For example, it would
not apply where advice is sought as to the best way in which to commit a crime. Also, the
privilege is only confined to communications. The privilege does not prevent the
disclosure of facts discovered during the relationship of lawyer and client. Also, the
privilege is entirely that of the client’s and not of the legal adviser. if there is going to be
any question of a waiver, it must be by the client.

So, apart from communications between the lawyer and his client, no other matters attract
this privilege. They can disclose ordinary facts discovered during the relationship. As a
matter of law, no privilege exists between a priest and penitent, doctor and patient and
journalist and source etc.

Note that lawyers do not restrict their advice and communication to explanation of the
law. I.e. their legal advice is not only as concerns explaining the law; it could include
advice as to what is to be done in a relevant legal context. Even between a solicitor and
his client, it is only communications for the purpose of obtaining legal advice that are
covered by privilege. Therefore, if a communication is to attract privilege, the purpose of
the communication must be considered.

The privilege is not only confined to legal advice but it could be mixed law and fact;
Belabel v. Air India, (1988).

The courts will not adopt a rigid approach to determine whether one or more item is
covered by legal privilege. What is important is the purpose of the communication.

The Litigation Privilege (3rd Party privilege) - This second class of legal professional
privilege is aimed primarily at communications with potential witnesses or experts
although the rule is not restricted to persons in such classes. The communication here
would relate to pending or contemplated litigation. The object of this class is to extend

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privilege to communications with a 3rd party to the lawyer/client relationship in certain
limited circumstances.

Note that this class of privilege applies if there is communication between a 3rd party and
either the lawyer or the client.

Where the communication takes place before any dispute has arisen, it is highly unlikely
it will be privileged. In Waugh v. British Railways Board, it was held that the dominant
purpose of the communication or advice was that there was going to be litigation and it
must be contemplated or pending.

First, what is important about privilege is the communication and not facts.
Secondly, the privilege is that of the client and not the lawyer.

What is the Effect of Legal Professional Privilege?

Whether communication falls under the first or the second class, it will not be admissible
at the trial unless the party who has the privilege claims it. I.e. it is the client who is going
to claim this privilege and not the lawyer. Note that if certain conditions are not met,
these privileges will not apply automatically. For example, under Legal Advice Privilege,
it is to obtain legal advice or to receive it. Under the Litigation Privilege, it is to give or
receive advice either between a lawyer and 3rd party or a client and 3rd party for the
purpose of pending or contemplated litigation. I.e. you can only invoke the privilege if
the dominant purpose for the communication was that it was given because litigation was
pending or contemplated.

Privilege can only be waived by the client and where the alleged waiver was made in
excess of the powers of the person doing so, privilege will not have been waived.

Limits on the Scope of this Privilege

1) The privilege applies to communications between a lawyer and a client and not to facts
perceived during the solicitor/client relationship such as a client’s identity.

2) Documents or items do not become privileged simply because they are in the
possession of the party’s lawyer.

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Exceptions to the Privilege

1) Legal privilege does not apply to communications made in pursuance of a crime of

fraud; R v. Cox & Railton, (1884). A more recent authority, however, is the case of
Crescent Farm Sports Ltd v. Sterling Offices Ltd. In these cases, it was stated that
documents for fraud, dishonesty, deceit, trickery and sham would not attract privilege as
they are an abuse of privilege and the law will not permit the taking advantage of such a
privilege.

A lawyer is usually exposed to the criminal past of the client and will always have to
advise him as to his conduct in his personal and business relationships; always advise him
to be on the straight side of the law. If the client wants to use the lawyer for advice on
how to commit a crime, the lawyer should not consent or they both could be charged with
conspiracy to commit a fraudulent act. If the lawyer refuses to join with the client in such
exploits, the document will not be privileged and could be used against the client. The
law will only help you for something which is regular and proper.

The question as to whether the document was for the purpose of either the lawyer or the
client to pursue fraud or crime is an issue for the court to determine. If the court
determines that the document was indeed in pursuance of fraud or crime, then legal
privilege will not be applicable.

2) Litigation privilege does not apply in non-adversarial proceedings. For example, if the
parties have been in a divorce case concerning custody, in such situations the welfare of
the child is the court’s paramount consideration. If there’s any correspondence between
the lawyer and the client and 3rd parties, it will not attract privilege as it is the welfare of
the child that is paramount. Also, if the communications are regarding the child’s
financial needs etc. (welfare), it will not attract privilege. I.e. the welfare of the child
overrides privilege.

3) The third exception concerns disputes between clients and legal advisors. Since the
whole point of legal professional privilege is to encourage the fullest disclosure between
legal adviser and client, it follows that no privilege can arise between them. I.e. if there’s
a dispute between them, the law will not allow both sides to take advantage of each other.
The client may not make a claim against the legal adviser and the legal adviser cannot
also make such a claim. If the dispute is to be fairly and clearly settled, all the facts that
amounted between them must be settled out in the open if that dispute is to be settled; no
privilege will exist there.

4) Certain statutes which are enacted expressly abrogate legal professional privilege. For
example, the Anti-Money Laundering Act clearly abrogates legal professional privilege.
A lawyer or accountant cannot claim privilege on matters of money laundering. Once

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privileged, always privileged; this is a general rule. I.e. documents which have been
prepared for one set of proceedings continue to be privileged for the purpose of
subsequent litigation even if the litigation originally anticipated never materialized or
took place.

Legal professional privilege is not only that of the client but also their survivors-in-title
for matters of affecting the client’s estate or the administration of such estates.

Legal professional privilege means that evidence is presented from being given or
documents from being produced in court by particular persons; the client, his lawyer and
relevant 3rd parties; even secretaries or clerks and any communication with them.

If another overhears a privileged conversation or obtains a private document, he may be

compelled to give evidence in that regard or compelled to produce a document that is
legally privileged because it is in his possession; Calcraft v. Guest, (1890); this case
involved copies of private documents in which Guest had obtained documents which
were privileged concerning Calcraft and his legal adviser. Calcraft took Guest to court to
produce the necessary documents on two grounds; (i) the documents did not belong to
him; and (ii) it was dangerous to have said documents in the hands of 3rd parties who have
no business in the case.

In R v. Tompkins, (1977), an incriminating note from the accused to his lawyer was
found on the floor of the court and handed to the lawyer for the prosecution. The accused
tried to get the prosecution’s lawyer from withholding the document but the judge ruled
against him and allowed the prosecution lawyer to show the note to the accused and to
cross-examine him on the matters referred to in the note.

In R v. Cottril, a statement made by an accused to his solicitors and sent by them to the
prosecution without his knowledge or consent was allowed to be used by the prosecution
in cross-examination as a previous inconsistent statement.

“Without Prejudice” Communications

The general rule is that the contents of a statement made without prejudice cannot be put
in evidence in a civil case without the consent of both parties to the litigation. “Without
Prejudice” is also a privilege which is recognized by the courts.

Parties frequently negotiate over a dispute in an attempt to find a settlement without the
need for litigation. If it was possible to make use of statements made during such
negotiations, then this could prejudice a party in subsequent litigation, since if one side
makes an offer to settle, this might be construed as an admission of the weakness of his
case or the soundness of the opponent’s case.

To prevent this from happening, parties are allowed to negotiate without prejudice until
they come to a settlement. If they cannot come to a settlement, they can still resort to

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litigation but the correspondence which was marked “without prejudice” will not be used
in subsequent litigation against any other parties.

The privilege extends to cover reports obtained by one party from a 3rd party. If such a
report was sought as part of an attempt to find a settlement, there is no magic in the
words “without prejudice” used by the parties in order to produce the cloak of the
privilege, so long as it is clear that the statement in question was intended to be without
prejudice.

If you use the words “without prejudice” in a document and the intention was not to
arrive at some settlement, then it is inapplicable. If the first of a series of letter is headed
“without prejudice”, privilege may attach to the rest of the correspondence that you
address to the other side, even though they are not marked “without prejudice” because
the intention to arrive at a settlement could be seen through all the other letters.

Without prejudice privilege applies even when the only outstanding issue between the
parties is the question of costs. Thus, without the consent of the parties, a judge may not
look at a without prejudice correspondence when the intention was to arrive at a
settlement, whether as to liability or to costs.
The rule that the privilege attaches to statements made without prejudice simply means
without prejudice to the maker of the statement if the terms he proposes are not accepted;
established in the case of Walker v. Wilsher.

Even if the negotiations succeed and a settlement is concluded, the without prejudice
correspondence remains privileged. Such correspondence is inadmissible in any
subsequent litigation connected with the same subject-matter. Whether between the same
or different parties and it is also protected from subsequent discovery by other parties to
the litigation;
Rush & Tompkins Ltd v. Greater London Council, (1988).
The privilege is the joint privilege of both parties and it extends to their solicitors. It can
only be waived with the consent of each of the parties.

Exceptions to the Privilege

1) Without Prejudice privilege only covers communications connected with an attempt to

compromise litigation in good faith. If there is no good faith or if done mal-a-fides, it
does not apply.

2) It does not protect somebody from libel. A libel is nonetheless a libel, though
contained in a letter headed “without prejudice”.

3) You cannot use it to exclude an act of bankruptcy; if you write a letter offering to settle
and it also states “without prejudice”, the law will discount it.

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4) It also does not protect a party who writes correspondence, heads it “without
prejudice” and then does not make reference to the matter in dispute.

5) It does not protect letters sent in the course of “without prejudice” negotiations which
could lead to a notice of severance being sent in the course of negotiations by the solicitor
of one joint tenant to the solicitor of the other joint tenant.

6) It is also excluded if the correspondence prima facie shows that there is a reasonable
charge of a crime or fraud and that communications were made in preparation for or in
furtherance of it.

In a civil action for debts or damages, the defendant might make a payment into court
without admitting liability, and usually the court is not told of the payment until all
questions of liability and quantum have been decided. But, if the plaintiff recovers a sum
which is the same or less than the payment in court when the question of costs is about to
be decided, the court, in its discretion, will usually award costs up to the date of the
receipt of the notice of payment to the plaintiff.

Similar Fact Evidence

The general rule is that similar fact is inadmissible in law. This was stated in
Makin v. Att-Gen for New South Wales, in the judgment of Lord Hershell, Lord
Chancellor. He said, “It is undoubtedly not competent for the prosecution to adduce
evidence tending to show that the accused has been guilty of criminal acts other than
those covered by the indictment, for the purpose of leading to the conclusion that the
accused is a person, likely from his criminal conduct or character, to have committed the
offence for which he is being tried. On the other hand, the mere fact that the evidence
adduced tends to show the commission of other crimes does not render it inadmissible if
it be relevant to an issue before the jury and it may be so relevant if it bears upon the
question, whether the acts alleged to constitute the crime charged in the indictment were
designed or accidental or to rebut a defence which would otherwise be open to the
accused.”

(1) The Law before Boardman

Before the case of DPP v. Boardman, the law took the view that even though similar
fact was generally inadmissible, if the similar fact cases can be fit into certain
compartments, then they would be admissible in evidence. I.e. that the evidence of other
criminal acts or past conduct of an accused person should generally not be used against
him if he’s facing a new case because it would be prejudicial and unfair to do so.

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If that similar fact evidence/past conduct becomes relevant in this new case, then the law
will allow it to be used. In the following instances, if similar fact fits into certain
categories, it will be allowed in -

(a) If somebody puts up a defence of accident, similar fact would be allowed to be used to
rebut that defence. The classic case is R v. Smith; also referred to as “The Brides in the
Baths Case”, the question here was whether the circumstances of this present death were
similar to the deaths of the former wives who had died in a similar fashion. The law now
took the two previous deaths to show design; a way in which Smith had designed their
deaths, marries them and then murders them. So, there was similar fact (similarity) in the
way he was murdering his wives.

(b) If somebody puts up a defence of mistake, similar fact evidence would be admissible
to rebut; R v. Bond; the accused had performed an illegal abortion on a girl and she died.
He was charged with murder and he put forth a defence that it was a mistake. To rebut
this defence, the evidence of another girl on whom Bond had performed a similar illegal
abortion was admissible to show that it was not a mistake and that Bond had done a
similar thing in the past.

(c) In R v. Ball, a brother and sister were charged with incest and the prosecution sought
to adduce evidence of earlier situations where they had both had sex to show that the
defence of innocent association was not valid. They were able to show that the brother
and sister had a guilty passion towards each other. The judge said, “I consider that this
evidence was clearly admissible on the issue that this crime was committed to establish
the guilty relations between the parties and the existence of a sexual passion between
them.”

(d) Similar fact evidence may also be used to identify an accused person. If they deny
that they committed the offence and that it was, instead, a case of mistaken identity,
similar fact would be used to rebut. In the case of
R v. Straffen, the accused was charged with murdering a little girl near the Broadmore
Prison. When the accused was arrested, he said that he was not the one who killed the
girl. The issue before the court was whether evidence of two other murders in the past,
committed by this same accused person with similar features to the killing in the instant
case, was admissible in evidence. The court said yes. The prosecution was allowed to put
in evidence of two other murders Straffen had committed in the past and the similar
features in the past two cases and the present case with which he was being charged. The
court allowed similar fact evidence to identify the accused in the instant case and by
admitting this similar fact evidence, the prosecution was able to prove that it was the
same individual who committed this murder who also murdered the other two girls in
precisely the same way. Straffen was convicted.

Three (3) Landmark Cases You Must Know -

1) Makin v. Att-Gen for New South Wales. Privy Council.
2) DPP v. Boardman. HL.
3) DPP v. P. HL.

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Under the same category is R v. Thompson; Thompson was charged with possession of
powder puffs and indecent photographs of very young boys. Thompson was also charged
with indecent assault. In his defence, he also denied that he was not the one involved in
the offence nor did he commit any crime. He was accused of also having homosexual
relationships with a number of boys and the boys made a statement to police that
Thompson had arranged for them to meet at a particular place and at a particular time.
Thompson went there to meet the boys. Unknown to him, the police were waiting for
him. When they searched Thompson, they found in his possession powder puffs and
indecent photographs of young boys. He denied that he was there to meet these boys or
that he had any homosexual relations with them in the past. He was convicted and the
case went to the HL. The HL said that items found in his possession were items
associated with homosexual tendencies. These items were admissible in evidence to
confirm his identity.

This was the situation since the case of Makin from 1894 until 1975. I.e. the law took the
view that if the prosecution can show the purpose for which the evidence was relevant,
and which could be identified, then the similar fact evidence could be admissible. This
situation continued until the classic case of DPP v. Boardman, (1975), a HL case.
Boardman was headmaster of a school who woke boys at night, took them to his room
and then he would ask them to have sex with him. It was the boys who would play the
role of the man. This went on for some time until they reported Boardman to the police.
He denied that he was having a homosexual relationship with these boys. He was charged
with three (3) counts of buggery. The question at issue was whether the evidence of one
boy could be used against Boardman or whether the evidence of one boy could be
considered as similar fact in respect of his activities with another boy because the boy
spoke of a number of incidents over the years.

This case is important for the principle of law coming out of it. In Boardman, although
the HL did not overrule the approach of the courts which had been followed since the
Makin case, the judges said that the admission of similar fact evidence in law is
exceptional and requires a strong degree of probative force or probative value. The
probative value/force is derived from all the circumstances of the case and the facts
testified to by the witnesses must bear to each other a striking similarity that the facts,
when judged by experience and common sense, are either all true or have arisen from a
common cause common to the witnesses or pure coincidence. I.e. Boardman is now
saying that for similar fact evidence to be admissible in law, if the present crime charged
is committed in a uniquely or strikingly similar manner to other crimes committed in the
past by the accused, the manner in which the other crimes were committed may now be
used as evidence upon which a jury could reasonably conclude that the accused was
guilty of the crime presently charged.

The similarity would have to be so unique or striking that common sense makes it
inexplicable on the basis of coincidence; it cannot be coincidence. So, Boardman said
that what mattered in law was the degree of relevance and not the categories of relevance
as was done in the past. The HL ruled that if similar fact evidence was to be admissible, it

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must contain a high degree of relevance so that it would satisfy the Unique or Striking
Similarity Test.

Boardman, therefore, changed the approach because pre- Boardman, you looked for the
purpose for which similar fact would be admissible. Boardman said it was not categories
but degrees of relevance that mattered.

Did Boardman change the law or represent a new era? The answer is a qualified yes.
Since Boardman, there was a bit of change although it did not last long.

Subsequent court decisions did approve and apply the Striking Similarity Test. However,
there were soon a number of indications that some courts in England, particularly the CA,
were uneasy with this new formulation. For example, in R v. Rance & Herron, (1975),
the Lord Chief Justice, Lord Widgery said, “One must be careful not to attach too much
importance to the phrase “Uniquely or Strikingly Similar”; the gist of that test is that
similar fact evidence is admissible if and only if it goes beyond showing a tendency to
commit crimes of this kind and is particularly probative in regard to the crime charged.”

Similarly, in R v. Scarrott, Lord Justice Scarman said, “Positive probative value is what
the law requires if similar fact evidence is to be admissible. Such probative value is not
provided by the mere repetition of similar facts. There has to be some feature or features
in the evidence sought to be adduced which provides a link.”

In several cases after the previous two cases, the CA applied the Striking Similarity Test
in combination with the warning given in that case that it was merely a label and that
what was needed was positive probative value.

The difficulty with DPP v. Boardman is that it gives the impression of a single all-
embracing standard to be applied in all cases of similar fact. By contrast, the later
analysis in the CA suggested that the actual test of admissibility in a given case would
inevitably turn on such matters as whether the evidence had positive probative value and
the nature of the defence being used by the accused.

This was the situation of the law until the well-known case of DPP v P, which is now the
authority on similar fact evidence. The rationale of this case was that Striking Similarity
is only one way of establishing what is needed in Similar Fact cases; namely, a high
degree of positive value. The evidence to be adduced must have positive probative value.
This test was laid down by the then Lord Chancellor, Lord Mackay in DPP v P and the
rest of the HL concurred. This case started in the High Court and then went to the CA.
Accomplices were prosecuted and convicted on counts of rape and incest. The victims
were his two daughters and the trial judge found striking similarities between the various
offences in the following manner -

1) The extreme discipline he exercised over his daughters.

2) Abortions which were carried out on each of the girls and which were paid for.
3) The acquiescence of the mother in P’s sexual attention to his daughters.

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P was convicted but he appealed and this appeal was allowed by the CA. The CA said
that the similarities did not go beyond what was described as an incestuous father’s stock-
in-trade. The State appealed against the CA decision and the HL restored the conviction
of P.

Lord Mackay reviewed all of the cases previous to this one but concentrated specifically
on DPP v. Boardman. He said, “The essential feature of evidence which is to be
admitted is that its probative force in support of the allegation that an accused person
committed a crime is sufficiently great to make it necessary to admit the evidence
notwithstanding that its prejudicial value to the accused is intending to show that he was
guilty of the crime.”

This means that the positive probative value of the similar fact evidence must outweigh
its prejudicial value. “The function of the trial judge is not to decide as an intellectual
process whether the evidence satisfied prescribed conditions. But to strike as a matter of
individual judgment, in light of his experience and conscious sense, a balance between
the positive probative value of the similar fact evidence and its potentially prejudicial
effect.” And such probative value may be derived from striking similarities. I.e. striking
similarity is one was of establishing the positive probative value. This was followed by
the HL in the case of R v. H, (1995).

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