Relevance of Opinion evidence in the Law of Evidence

UGANDA CHRISTIAN UNIVERSITY, MUKONO
SCHOOL OF LAW

A PAPER SUBMITTED AS WRITTEN COURSEWORK IN COMPLIANCE WITH THE RULES AND REGULATIONS GOVERNING THE CRITERIA FOR ASSESSMENT LEADING TO THE AWARD OF A BACHELOR OF LAWS (LLB) DEGREE OF UGANDA CHRISTIAN UNIVERSITY, MUKONO


BY SILVER M KAYONDO
SO9B11/316

LECTURER: Mr. JOSEPH EDMOND KALINAKI

TUTOR: Miss ANNITAH TUSIIMIRE

COURSE UNIT: LAW OF EVIDENCE 1

Question: Discuss the relevance of evidence of opinion in the Law of evidence.







Intoduction:
In this paper, I will discuss the principles relating to evidence of opinion. I will also give its relevance and applicability in Uganda and other common wealth jurisdictions and give a critical analysis on the role of expert evidence in the dispensation of justice while discussing the principles pertaining to opinions of experts and lay persons.
Evidence, as used in judicial proceedings has several meanings, but there are two main senses of the word. First, it refers to the means apart from argument in inference from which the court is informed about the issues of facts established by pleadings; and secondly, the subject matter of such means is also referred to as evidence. Law of evidence deals with facts in issue. “Facts in issue” are those facts upon which the existence of right or liability to be ascertained in the proceedings depends. The burden of adducing evidence lies with the prosecution to support its case beyond reasonable doubt. This position is reflected in the Evidence Act which provides that whoever desires to any court to give judgment as to any legal right or liability dependent on the existence of facts which he or she asserts must prove that those facts exist . The evidential burden upon the defence consists of raising evidence that will bring reasonable doubt of his guilt in the mind of the judge. He need not disprove absolutely the case of the prosecution and the evidence of the prosecution witnesses.
In law of evidence, “opinion” means any inference from observed facts, and the law as the subject derives from the general rule that witnesses must speak only to that which was directly observed by them. Such evidence is divisible into that of ordinary witnesses and that of expert witnesses. Ordinary witnesses’ evidence may be admissible to establish handwritings, signatures, existence of customs and usage. Expert evidence on the other hand, includes evidence from medical doctors, psychiatrics, ballistic experts, forensic investigators. Relevant opinions may be sought to establish identity, age, health, intoxication, insanity, sanity, hand writing, attestation, speed and application of words with an unusual or doubtful meaning.
In Uganda’s corpus juris, opinion is evidence is provided for under the Evidence Act which provides that When the court has to form an opinion upon a point of foreign law, or of science or art, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in that foreign law, science or art, or in questions as to the identity of handwriting or finger impressions, are relevant facts. Such persons are called experts.
A person may not give his/her opinion on matters that the court considers call for the special skill or knowledge of an expert unless he/she is an expert in such matters, and he/she may not give his/her opinion on other matters if the facts upon which it is based can be stated without reference to it. A witness is therefore allowed to give/express his/her opinion with regard to such matters, provided he/she has expertise in them. For instance, in Uganda vs. Monoko and others , court held that the medical assistant/dental assistant was competent to classify the injuries sustained by the victim as grievous harm as he was specifically trained in dental care. He was therefore able to assess the gravity of the injury sustained.
The treatment of evidence opinion by Ugandan Law is adopted from English Law and is based on the presumption that it is possible for court to draw a sharp distinction between inference, and the facts on which they are based with the use of such evidence. As a general rule, evidence of opinion is excluded, but there are exceptions to this general rule. However, there is a difference between legitimate expression of opinion and its application to a given set of facts. As held by Allen, J in Uganda vs. Sulaiman Indibarema & Anor , the role of court as laid down by Law is to evaluate the opinion evidence with reference to and in context of the totality of evidence and then record its verdict since the court is said to be the expert of all experts.
Opinion evidence is inadmissible because the opinion of a witness will most likely be advantageous to the party who called him to give evidence and opinion evidence in most cases is likely to be influenced by matters of hearsay. However, the Evidence Act nevertheless accepts two categories of opinion evidence as admissible. [Expert evidence and opinions of ordinary witnesses (non-expert evidence)]
Sections 45-49 of the Evidence Act of Uganda deal with opinion evidence of lay persons. For instance, when the court has to form an opinion as to the person by whom any document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed that it was or was not written or signed by that person is a relevant fact. Section 43 speaks of special skill while section 45 refers to acquaintance. In R vs Silverlock , Court was of the opinion that said to be acquainted with the handwriting of another person when:
1) He or she has seen that person write;
2) He or she has received documents purporting to be written by that person in answer to documents written by himself or herself or under his or her authority and addressed to that person;
3) In the ordinary course of business, documents purporting to be written by that person have been habitually submitted to him or her.
Section 46 deals with Opinion as to right or custom and provides that;
When the court has to form an opinion as to the existence of any general custom or right, the opinions as to the existence of that custom or right, of persons who would be likely to know of its existence if it existed, are relevant.
Section 47 of the Evidence Act is concerned with Opinion as to usages, tenets. It provides that;
When the court has to form an opinion as to:
a) the usages and tenets of any body of men or family;
b) the constitution and government of any religious or charitable foundation;
c) the meaning of words or terms used in particular districts or by particular classes of people, the opinion of persons having special means of the knowledge thereon are relevant facts.
Section 48 of the Act tackles Opinion as to relationships. It provides that;
When the court has to form an opinion as to the relationship of one person to another, the opinion, expressed by conduct, as to the existence of the relationship, of any person who, as a member of the family or otherwise, has special means of knowledge on the subject, is a relevant fact. However, the proviso to this section forbids the use of such opinion from being sufficient to prove a marriage in proceedings under the Divorce Act, or in prosecutions under section 153 of the Penal Code Act on adultery. Proof in those two cases must be evidence of fact and not opinion. However, other relationships like parentage, affiliation, kindred may be proved by opinion evidence. Reasons for opinions must be given.
On the other hand, an “expert” was defined by Law, Ag. J in Gatheru s/o Njagwara vs. R . He said;
“All persons , I think who practice a business or profession which requires them to possess a certain knowledge of the matter in hand are experts so far as experience is required. “The learned judge however went on to add that that such special skill is not confined to knowledge acquired academically but would also include skill acquired by practical experience. This position was later approved by Their Lordships of the Judicial Committee in an appeal from Nigeria, Said Ayami vs. Comptroller of Customs where Their Lordships held that the practical knowledge of a person who is not a lawyer might be sufficient in certain cases to qualify him as a competent expert on a question of foreign law. This is the current position of the law in Uganda.
The import of section 43 of the Evidence Act of Uganda makes reference to “special skill”. Such skill can be attained, and one would be regarded as an expert if he has an educational background which enables him to become conversant with the subject matter (art or science) he is expected to testify on. This is very vivid in case Law. For example, in Gatheru’s case, the appellant was convicted in the Supreme Court of Kenya on two counts of being in unlawful possession of a fire arm and of unlawful possession of ammunition and was sentenced to death on each of these two counts. A witness, whose competency as an expert in fire arms was not established gave evidence that the article in question was a “home-made rifle” Justice Law opined that;
“Court has on several occasions said that when a trial court has to form an opinion upon the question whether a home-made gun or part thereof, is a lethal barreled weapon, it must have the assistance of expert opinion that we think that such special skill is not confined to knowledge acquired academically, but would also include skill acquired by practical experience that in the present circumstances, even though a police officer employed on operational or investigation work, acquires a sufficient practical knowledge to qualify him as an expert, his competence as an expert should in all cases, be shown before his testimony is properly admitted. ”
However, such evidence of opinion is regarded as expert, educational background of the witness must first be put on record and each field of expertise will require definite qualifications. For instance, a lawyer may not be permitted to testify on questions relating to medical practice and vice versa, but the expert evidence must be relevant to facts in issue arising out of the court proceedings.
Opinion/expert evidence has been relevant in the following ways;
It has guided courts of Law in establishing some ingredients of alleged offences/crimes. For instance, in Uganda vs. Dr Aggrey Kiyingi And 2 Others , Post mortem examination of the deceased was done by Dr William Male Mutumba, (PW7) a pathologist, who established that the deceased died of multiple gunshot injuries that resulted in severe lacerations of the brain, lungs and the heart. This proved the fact of death of the deceased, the first ingredient in a murder trial. In Uganda vs. Paddy William Pampara , Justice Mkanza accepted the evidence of a medical doctor who classified injuries in the cornea and conjunctivitis as grievous harm because they were injuries to the external organ and under the Penal Code Act, ‘grievous harm’ means any harm which amounts to a maim or dangerous harm, or seriously or permanently injures health, or which extends to permanent disfigurement or to any permanent or serious injury to an external or internal organ, membrane or sense.
Opinion evidence has also been helpful in corroborating some other pieces of evidence thus leading to successful prosecutions where the guilt of the accused is established. For instance, in Uganda vs. Akbar Hussein Godi , Justice Lawrence Gidudu also based his judgement on the evidence of the ballistic expert, Robinah Kirinya who told court that the two cartridges that where found at the scene of crime were fired by Godi’s pistol and the government analyst’s evidence who tested the soil samples from the murder scene and that the soil that was scooped from Godi’s shoes that corresponded with that from the crime scene. These pieces of expert evidence were very crucial for the prosecution in destroying the defence of alibi raised by the accused hence placing him on the scene of crime. No wonder, he was later convicted of murder. Another case in point is Uganda Vs Nkulungira Thomas Alias Tonku & Anor where Justice Atwooki Rugadya took Evidence of corroboration to the fact of death of the deceased from PW9 Dr. Kalungi the Pathologist who performed the post mortem examination. It corroborated pieces of evidence from PW7 Sgt. Grace Auma who was at the scene and witnessed the body of Brenda as it was recovered from a septic tank. It was taken to City mortuary, where the mother Joy Karamuzi PW1 identified it and later took her daughter for burial.
Opinion evidence also aids court in reaching decisions especially in technical areas of practice. For instance, the High Court of Uganda in Walusimbi vs. Standard Bank Ltd , laid down the procedure to be adopted in tendering and accepting documents as evidence and how to submit such documents with genuine writings. Courts address their mind to experts’ opinions in matters like medical and dental practice, forensic interpretations, auditing, engineering and any other technical areas which may arise during proceedings. This guides court to adjudicate from an informed perspective.
Expert evidence also aids defence in establishing weaknesses in prosecution cases. For instance, in Uganda vs. Sulaiman Indibarema and another, defence used the weakness of prosecution in lining up gombolola askaris with very little or no knowledge at all about firearms to testify against the accused on charges of illegal possession of ammunition instead of ballistic experts. On revision, Justice Allen conquered with defence counsel that there was no expert evidence upon which the trial magistrate could base proper and sufficient findings with regard to the alleged ammunition and that he had failed to direct himself correctly upon the lack of proof of various necessary matters and consequently, the conviction could not be allowed to stand for the charge was not proved beyond reasonable doubt. This prevented a miscarriage of justice.
Opinion evidence is also relevant in aiding courts to determine authorship and authenticity of important documents like wills and codicils. In Re: The Estate of Ellen Wilkes, the testatrix made a will in 1985 in which she left her property equally to her five children with a gift of her personal possessions to her only daughter, Maureen. In 1992, she had two strokes which left her wholly dependent on others. She required 24 hours care. She received care from her children until 1993 when local authority funding became available. One of the sons, George continued to visit his dear mother frequently and relieved her care givers when they went on holiday or were off duty. He later on took control of the testarix’s finances which had been previously handled by Maureen and consequently, relations between George and Maureen deteriorated. Maureen visited her mom less frequently and in December 1994, George took his mother to make a new will leaving everything to him. In 1995, the testatrix executed it.
In an action against George, there was a lot of evidence, both general and medical. A consultant physician with specialty in in the care of the elderly gave expert evidence on the medical records of the testatrix even though he had never met her. The consultant cautioned court about the acceptance of at face value of statements, whether by medical practitioners or others which suggested that the deceased was in in her right state of mind at all material times. He concluded that the testatrix was probably incapable of making her will because there was evidence of widespread brain damage in the form of cerebral vascular disease, the testatrix suffered from Parkinson’s diseases which, in forty percent of the cases, is associated with a dementia process and that her auditory impairment and extreme age were likely to impair her mental faculties’ function. Terrence Etherton, QC sitting as the deputy presiding judge alluded to this piece of expert opinion as “measured, objective and very helpful.”
Lastly, evidence of opinion has helped courts ascertain the existence and practice of some alleged customary laws. For example, the East African Court of Appeal in Rex vs Ndembera s/o Mwandawale , Rex vs. Wesonga and Kimani vs. Gikanga approved the use of expert witnesses in customary Law. However, court also noted that great caution must be taken in reception of such evidence. Court must ascertain first whether any proposed expert witness on customary Law really qualifies as an expert before receiving his/her evidence. In Kigozi vs. Lukiiko, the High Court of Uganda was of the opinion that a high ranking customary political officer, a senior saza (county) chief of Buganda could be regarded as competent to deliver such evidence to court. Elders also qualify since their age and experience within society expose them to knowledge about local customary practices and norms.

By and large, opinion evidence is very relevant when court is called upon to resolve technical questions in issue. However, courts have also treaded carefully in some instances. For instance, some courts are most likely to value medical evidence from a doctor who knows the client well and which is contemporaneous. Courts have also in some instances rejected inconclusive pieces of opinion evidence. A case in point is Moses Dirisa & 3 others vs. Sietico (U) Ltd where the Supreme Court of Uganda held that the learned trial judge was correct to have rejected the evidence of the expert doctor who testified for the plaintiffs because he had only made a casual examination. The learned justices of the Supreme Court went ahead to note that a doctor or any expert witness must provide a scientific base for his/her opinion before his/her findings can be accepted by court.









BIBLIOGRAPHY
TEXTBOOKS
A Handbook for Magistrates, LDC Publishers (Revised Ed, 2004) ISBN 9977 811 081
Collin Tapper; Cross& Tapper on Evidence, Oxford University Press 11th Ed (2007) ISBN 978-0-19-929200-4
G D Nokes; An Introduction to Evidence Sweet & Maxwel, 4th Ed
Obol-Ochola; The East African Law of Evidence (1972) Makerere University, Kampala

STATUTES
Constitution of The Republic of Uganda, 1995 (as amended)
The Evidence Act, Cap. 6 Laws of Uganda