Guide to Admissibility of Documentary Evidence by Kambaho Brian Karogo

ADMISSIBILITY OF DOCUMENTARY EVIDENCE

The guiding Law on the admissibility of documentary evidence is the Evidence Act Cap 6 particularly Sections 60 – 100. Documentary evidence involves both exhibits and police statements.

Exhibits help get over the huddle of presenting the court with a mass of information orally. Exhibits should be used to emphasise key facts. Beware of over loading the record with exhibits that are not necessary or truly effective.

It is important that you lay a firm foundation for any exhibit using testimony before you attempt to introduce the exhibit. For example if the case is based on a contract, you should ask your client whether there was a written agreement, whether he signed it, whether he can identify it, whether he can identify his signature on that agreement. After identifying his signature, you can ask the witness to highlight the contents of the agreement while reading it on the stand. You may ask to tender the agreement as an exhibit.

Types of exhibits

1.     Real objects (guns, blood, drugs, machinery)

2.     Demonstrative exhibits (diagrams, models, maps)

3.     Writings (contracts, promissory notes, cheques and letters)

4.     Records (public and private)

How to get exhibits into evidence

It is the responsibility of every lawyer to ensure that the record is complete at the end or close of the evidence. The Civil Procedure Rules SI 71-1, Order XIV requires that each document admitted must be marked with;

1.     The number and title of the suit

2.     The party producing the document

3.     The date on which it was produced, signed and initiated by an officer of the court.

Tendering of exhibits

Exhibits are very essential in proving some cases and if such exhibits are not properly handled, the entire case could be negatively affected. There is no clear procedure as to who should present the exhibits, when and how it should be presented.

WHO; this depends on the nature of the exhibit to be tendered. Ideally, the officer in whose custody the exhibit has been should be the one to tender it, this rule applies to those exhibits that were recovered from the scene of crime and taken to the police or somebody in authority and that person has been keeping the exhibit up to the time of trial. The other people who might have handled the exhibit at different stages should be called only to identify it but not to tender the exhibit.

For example, in cases of physical exhibits such as a panga in a homicide case, the witness who first found it at the scene should make a statement to that effect (this would include of thorough description of the item, where he found it, under what circumstances he found it). The person who then takes custody of the exhibit and the person who hands it over to the police for custody as an exhibit should all make statements to that effect. The very last officer (usually the storeman to the exhibit room) is the one that produces the exhibit in court. The other witness will merely identify the panga at trial.

In addition, where the defence consents, any of the witnesses may tender in the exhibit. It should be remembered that an article does not become an exhibit, until it has formally been proved and admitted in court as evidence. Uganda Breweries Limited vs. Uganda Railways Corporation Supreme Court Civil Appeal No. 6 of 2001.

Closely related, before a witness is called to tender an item as an exhibit, the prosecutor must lay a foundation by asking the witness to precisely describe the item before it is shown to him/her in court. When the description as given by the witness does not tally with the item which the prosecutor intends to tender, then the witness should not be allowed to identify it since his description may not be referring to that particular object.

It is the role of opposing counsel to object, to the display of a particular exhibit, to the witness before the witness describes the item and this mainly applies for physical exhibits.

In cases where the exhibit is a document, it should be tendered by the person that wrote it or, to whom it was sent or, who has been keeping it depending on the purpose for which it is required in evidence. Where a person, for example, who wrote the medical report, cannot be found and the case falls under Section 30(b) of the Evidence Act Cap 6, then anybody who knows the writer’s handwriting and signature can tender it.

WHEN; when an exhibit is to be identified by a number of witnesses, it should be tendered at the earliest possible opportunity to avoid recalling some witnesses to come and identify it.

HOW; the correct procedure is that, after the witness has described the item and it has been shown to him or her, the prosecutor should apply verbally to have it tendered by the witness. After the witness has tendered it, the court clerk should then receive and mark it.

Adducing Medical Report as an exhibit

The Doctor is called to the stand and takes oath to speak the truth, the whole truth and nothing but the truth

Lawyer: Please tell this honourable court your name

Witness: I am Dr. Milton Oketch

Lawyer: When did you become a doctor?

Witness: I became a doctor in 1990 after I graduated from Makerere Medical School with a degree in Medicine.

Lawyer: Did you get to practise medicine?

Witness: Yes I did and I have been doing so for the past 20years.

Lawyer: where do you practise your medicine?

Witness: I work at Mulago National Referral Hospital and I am the Chief Pathologist of the Hospital.

Lawyer: So, what does a pathologist do in his line of duty?

Witness: As pathologists, we treat bodies and open them up where necessary, so as to establish the cause of death, time of death and other findings.

Lawyer: Dr Oketch, do you know why you are in court today?

Witness: Yes, testify to the post mortem report I wrote after examining the deceased Peter Kakembo.

Lawyer: When did you examine the deceased?

Witness: It was on the 13^th December 2012.

Lawyer: what were your findings after the examinations

Witness: I found that the deceased died as a result of 4 gun short wounds to his chest cavity cutting through his lungs

Lawyer: If I showed you the Post Mortem report, would you be able to identify it?

Witness: Yes I would.

Lawyer: How would you identify it?

Witness: I signed it myself at the bottom right corner of page 2.

Lawyer: My Lord I am marking this report as Prosecution Exhibit No 1 for identification purposes (PI.1)…[write on it PI 1 and give it to the Court Clerk who the passes it on to the opposite Counsel for identification]

Lawyer: My Lord, May the record show that Mr Mbona the defence counsel has been shown the post mortem report for identification purposes.

Judge: Does the defence have any objection?

Defence Counsel: We have no objection my Lord. (In case of an objection, Counsel would say….My Lord the witness has not clearly described the document and we object to its identification….Counsel may also object to the fact the Doctor is not the author of the Report)

Lawyer: My Lord I seek permission to approach the witness.

Judge: You may or permission granted.

Lawyer: (showing the accused the report) Dr Oketch, is this the report you were talking about that you made?

Witness: Yes it is the Report that I made.

Lawyer: My Lord, may it put on record that the Witness has identified the Postmortem Report as his own. We therefore tender it in as Prosecution Exhibit No. 1. (the opposing counsel may also raise an objection to the admissibility of the exhibit)

Judge: (scrutinizes the exhibit) the report has been accepted as evidence and entered as Prosecution Exhibit No. 1…P.E 1

LEGAL PREMISE

Detention of property seized.

Section 73 Magistrates Courts Act Cap 16 :-

(1) When any such thing is seized and brought before a court, it may be detained until the conclusion of the case or the investigation, reasonable care being taken for its preservation.

(2) If any appeal is made, or if any person is committed for trial, the court may order it to be further detained for the purpose of the appeal or the trial.

(3) If no appeal is made, or if no person is committed for trial, the court shall direct such thing to be restored to the person from whom it was taken, unless the court sees fit or is authorised or required by law to dispose of it otherwise.

Cases

UGANDA vs STEPHEN ONYABO [1979] HCB 39

Odoki Ag. J (as he then was) held; in every criminal prosecution, conviction should only be based on the actual evidence adduced and not on any other attractive or fanciful theories of reasoning since by doing so, there is great danger of being led astray by the type of mental gymnastics when drawing any inferences on reaching conclusion.

UGANDA vs MUSANA [1985] HCB 20

Police statements are not to be taken as evidence in court. Rely on the evidence adduced or the testimonies given in court.

KASULE vs UGANDA [1992-1993] HCB 93

Exhibits must always be put on the police file to be kept and preserved in the original state. The chain of evidence must never be broken.

ABDU NGOBI vs UGANDA S.C.Crim Appeal No.10 of 1991

It is not correct to admit evidence by consent simply because witnesses are dead or absent. The Judge must satisfy him/herself that the statement is admissible and if necessary take evidence of the facts needed to prove admissibility.

LAPSON APIRE vs UGANDA H.C.Crim Revision No. 77 of 1977(unreported)

Re-examination is not the proper time for putting in exhibits, but it may be done with the leave of court and with opportunity given to the accused to cross examine the witness on the exhibit.

General tips

1.     Exhibits are only admissible through the proper procedure and person.

2.     The party seeking to rely on the exhibit must lay a proper foundation for producing them in evidence.

3.     The witness should have full knowledge and acquaintance of the exhibit.

4.     The witness should be legally competent to introduce them in court.

5.     The chain of exhibit must be complete throughout its handling; from the time of recovery to the time of presentation in court.

6.     Any person that handles the exhibit at whatever stage should make a statement, testify in court and identify the exhibit.