Evidence Adduced Otherwise Flashcards
general rule
exceptions (4) of the GR
gr: facts in issue have to be proved by adduction of evidence.
Exception to the GR:
1. Well known matters – judicial notice (s.60)
Commonwealth Shipping Representative –v- P&O Branch Services (1923) - GK + inquiries to be made by himself
Preston Jones –v- Preston Jones (1951) - notorious.
- Matters admitted by parties – no need to adduce evidence if admitted. ( can be rebutted) s.61EA
Section 24 EA- admissions aren’t conclusive proof of matters admitted but could operate as estoppels (from denying contents of admissions).
s.17-24 EA - Proving classified matters could jeopardize national security
- Proving some matter may be prejudicial to a fair trial (mislead the court and jeopardize justice)
presumptions
1 scholar on meaning of presumption
effects of presumptions
categories of presumptions (3)
- Phipson on Evidence- are devices by which courts are entitled to pronounce on an issue notwithstanding absence of or very little evidence in support.
- EFFECTS OF PRESUMPTIONS: Have the effect of lowering, drastically reducing or extinguishing burden of proof on the party in whose favour the presumption operates.
s.4 of EA! may v must
presumption of law v presumption of fact
• PoL derive force from law, PoF derive force from common sense & logic;
• PoL applies to a class (conditions are uniform and fixed- e.g accused person on presumption of innocence), PoF applies to individual cases (conditions are inconsistent and fluctuating- e.g presumption of death would require a bit more evidence); and
• PoL made by court (in absence of rebuttal evidence) are conclusive in favour of a party & for the purpose they operate, PoF result in inferences of fact that may be disregarded however cogent.
category 1: the presumption of fact
meaning
1 case example
5 types ( with 5 cases)
Are discretionary inferences that MAY be drawn upon establishment of a BASIC or PRIMARY fact & in absence of evidence to the contrary (rebuttal evidence).
Re W (1922)- PoF that best interests of a baby are served by being with the mother.
- guilty knowledge
Zus –v- Uganda (1976): Accused convicted for theft and handling stolen property (found in possession of a bicycle 7 months after it was reported missing). He didn’t offer any reasonable explanation (therefore the ocurt may proceed to assume guilty knowledge). Appeal Court- 7 months couldn’t be described as recent, conviction for theft quashed & conviction for handling stolen property upheld. - immutability of things; natural event flowing. s.119
Kanji & Kanji –v- R: amputated arm by machine at work. On appeal, owners argued that a fence existed in April 1960. Appeal holding- trial court was correct in assuming the machine was in same condition in April 1960 as in September 1960. However, factory could adduce contrary evidence. - regularity; sound policy
R –v- Roberts (1878)- indictment for perjury committed before a deputy county court judge. Judge was presumed to have been duly appointed in absence of contrary evidence. - evidence not adduced but could be adduced- asumed to have been unfavourable for the party meant to call.
Norman Kamau Thiong’o –v- R (2021) –sexual assault and indecent acts with a child. Mama F was not called as a witness (who was essential- DIRECT EVIDENCE). Failure to call her was fatal as adverse inference should be made.
UNLESS THERE IS A JUSTIFICATION FOR NOT AVAILING THAT EVIDENCE. - accomplices unworthy testimony
Davies –v- DPP (1954): Appellant (together with other youth) attacked another group of youth with fists. A member of the other group died of stab wounds. Appellant, one L and 6 other youth charged with murder. L convicted for murder while the rest of common assault. Evidence of L used without warning the jury of danger of accepting L’s testimony without corroboration.
Appeal Court- no good reason to quash conviction as L didn’t know that any of his companions had a knife; thus, L wasn’t an accomplice to the murder. Court defined accomplices as people who are participes criminis in respect of the charged crime (include procurers, abettors and aiders)
CATERGORY 2: REBUTTABLE PRESUMPTIONS OF LAW
3 TYPES OF RPOL
Inferences that MAY be drawn in absence of conclusive evidence to the contrary. Are presumptions decreed by law- Section 4(2) EA.
- Presumption of death-
• Factors to consider: MUST BE SATISFIED
There are people who were likely to hear from the person in the period;
Such people haven’t heard from him or her; and
All due inquiries have been made.
Chard –v- Chard (1956)- inapplicable because no evidence of a person who would have been likely to hear from the 1st wife between 1917 and 1933. - Presumption of marriage falls into 3 distinct presumptions:
a. formal invalidity
Piers –v- Piers (1849): Marriage celebrated in a private dwelling (without a certain license as required by local law). Held: presumption of in favor of legality of marriage isn’t lightly repelled, rebuttal evidence must be strong, distinct, satisfactory & conclusive.*
b. essential validity
R –v- Shaw (1943): Proof of celebration of a previous marriage was present. Accused just denied but didn’t adduce rebuttal evidence. Held: there was a presumption of validity of the 1st marriage.
c. presumption of marriage arising from cohabiting
LC: Hottensiah Wanjiku Yawe –v- Public Trustee (CA 13 of 76): long cohabitation as husband & wife gave rise to presumption of marriage and could only be rebutted by cogent evidence.
3.Presumption of negligence- also called the doctrine of res ipsa loquitor (let things speak for themselves).
Scott –v- London Dock Company (1865)- Erle CJ: “when the thing is shown to be under the management of D or his servants and the accident is such as that in the ordinary course of the thing does not happen if those who have the management use proper care, it afford reasonable evidence in the absence of why the accident arose from want of care.”
CATEGORY 3: IRREBUTTABLE PRESUMPTIONS OF LAW
penal code (2)
1 TYPE
Also called conclusive presumptions- Section 4(3) EA.
Usually drawn from statutory provisions e.g., Section 14 Penal Code:
A child under 8 years is incapable of committing a criminal offence; and
Male person below 12 is incapable of carnal knowledge.
- presumption of legitimacy:Section 118 EA- The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days (280) after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless(EXEMPTION) it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.; prolonged distance.
Gordon –v- Gordon & Granville Gordon (1903)- Husband was successful in divorce proceedings on grounds of adultery and got custody of the children. Before the decree absolute, wife applied for variation on grounds that the child wasn’t natural child of the father. Held: sexual intercourse between a man & wife must be presumed & nothing can bastardize a child born in wedlock.
estoppel (5 types)
effect of estoppel?
1 case.
Generally covered under Section 120-123 EA.
effect of estoppel?: As a rule of evidence, estoppel makes evidence inadmissible. a shield not a sword.
- estoppel by record:common in judgments and is predicated on the premise that in the public interest there should be an end to litigation.
- estoppel by deed:Underscores the point that persons who make solemn assertions or engagements under seal must be bound by those engagements
- estoppel by agreement: Where two or more parties have expressly or impliedly agreed that their legal relations shall be based on the assumption that a particular state of facts exists, the parties are precluded from denying the existence of the assumed facts.
Section 121 EA- tenancy shall deny that landlord had title at beginning. - estoppel by conduct:Arises where ones conduct causes or permits another to believe a thing to be true and the other acts to her detriment on this belief. REPRESENTATION E.G agency estoppel through conduct of the principal.
- promisorry estoppel: Deals with the future state of affairs and occurs where a person makes a representation to another about the state of their future legal relations or their future conduct and the other person acts upon that representation.
See Central London Property Trust Ltd. V. High Trees House Ltd [1947] case.
