RELEVANCE AND ADMISSIBILITY OF EVIDENCE RELEVANCE AND ADMISSIBILITY

RELEVANCE AND ADMISSIBILITY OF EVIDENCE

RELEVANCE AND ADMISSIBILITY OF EVIDENCE • Admissibility of evidence is a matter of law which the court has to determine. Admissible evidence refers to that evidence which a court will receive for the purpose of determining the existence or non existence of facts in issue. As a general rule, all evidence of sufficient relevance to prove or disprove a fact in issue is admissible so long as it is not excluded under the exclusionary rules of evidence. • Relevance is the fundamental condition of admissibility and evidence is relevant if it is related or is pertinent to an issue at hand.

ADMISSIBILITY • Kenyan Evidence Act, the term ‘admissible’ means admissible in evidence, that is, evidence presented in court and which a court will consider in reaching its determination. • In order to be admissible in evidence, all facts must be relevant, but not all relevant facts are admissible especially where these facts offend an exclusionary rule of evidence. For example, such relevant evidence may not be admitted on account of public policy or State • Article. 135, Somali Criminal Procedure

Relevance The classic definition of the term relevance was rendered by Fitz James Stephen in the following terms: ‘Any two facts to which [the concept] is applied are so related to each other that according to the common course of events one either taken by itself or in connection with other facts proves or renders probable the past, present or future existence or non-existence of the other. ’ • A simple working definition is provided by Lord Simon in DPP Kilbourne in the following words: ‘Evidence is relevant if it is logically probative or disprobative of some matter which requires proof. It is sufficient to say, even at the risk of etymological tautology' that relevant evidence is evidence which makes the matter which requires proof more or less probable. ’

Art. 135 2. For the purposes of this Code, unless the context indi cates otherwise: a) the term «fact in issue» shall mean any fact from which, either by itself or in connection with other facts, the existence or non existence, nature or extent of any fact asserted or denied, necessarily follows; b) the term «relevant fact» shall include every fact which may be proved in the trial.

A) RES GESTAE: “A fact or opinion which is so closely associated in time, place and circumstances with some act or event which is in issue that it can be said to form a part of the same transaction as the act or event in issue, is itself admissible in evidence” According to Phipson “acts, declarations and incidents which are relevant to the fact or transaction in issue are admissible in evidence”.

A) RES GESTAE Article 136 Relevancy of Facts forming Part of the same Event Facts which, though not in issue, are so connected with a fact in issue as to form part of the same event, are relevant, whether they occurred at the same time and place or at different times and places.

A) RES GESTAE Cross has usefully divided the doctrine into four discreet rubrics (headings) for ease of appreciation of this complex concept: 1) Statements made by observers or participants in an event (Bedingfield) 2) Statements made concerning the performers of an act (parade identification and police officer) 3) Statements made concerning the maker’s state of mind or emotion (determination of killing someone) 4) Statements made concerning the maker’s physical sensation (life policy insurance and poor health wife)

B) FACTS CAUSING OR CAUSED BY OTHER FACTS/ SIMILAR FACTS • As a general rule, a fact in issue cannot be proved by showing that facts similar to it, but not part of the same transaction, have occurred at other times. Hence, if a fact in issue is whether the accused has committed a particular crime, the fact that he committed a similar crime is irrelevant for purposes of showing that he committed the crime currently in question. This is in line with the constitutional right of presumption of innocence as well as the general rule of character evidence. However, if a previous transaction shows the state of things under which the crime with which the accused is charged occurred is similar, evidence of the previous transaction is admissible • Bribe of government agency case (previous relationship)

Article 137 Facts which are the Occasion, Cause or Effect of Facts in Issue Facts which: a) are the occasion, cause or effect, immediate or otherwise, of relevant facts, or facts in issue, or b) constitute the state of things under which they happened, or c) afforded an opportunity for their occurrence or transaction, are relevant.

C) FACTS RELATING TO MOTIVE, PREPARATION AND CONDUCT ü MOTIVE is that which makes a man do a particular act or act in a particular way, for example, a person who is accused of rape may be motivated by lust or desire. A person who says they killed in self defence will be motivated by fear. A motive exists for every voluntary act, and it is often proved by the conduct of a person. ü PREPARATION refers to the planning and arranging of the means for commission of a crime. It includes preparation for commission, preparation of discovery, and assistance in escape among others. For example, where an accused is charged with having poisoned B, the fact that A purchased poison of the type used to kill B, is a relevant fact showing preparation. However, if A purchased the poison to kill rats, the inference of guilt is overthrown.

C) FACTS RELATING TO MOTIVE, PREPARATION AND CONDUCT ü THE CONDUCT of a person or his agent is relevant if it is in reference to a suit or proceeding, or the conduct is in reference to any fact in issue in the suit or proceeding or is relevant thereto. For example, if either before or after an alleged crime with which an accused is charged, the accused destroyed evidence or procured absence of persons who might have been witnesses or asked people to give false testimony, evidence as to such conduct is admissible as relevant to a fact in issue: The alleged crime. ü giving a bribe to a Police Constable (Officer) to induce him to forebear taking prosecution on traffic offences against his driver. The appellant freely admitted giving the money, but said the motive was to test the Police Constable since he had “heard of these things and wanted to know if it was real. ” The trial court held that it was not necessary for the prosecution to prove corrupt motive but the intention to corrupt the Police Constable to whom the offer was made. The appellant was convicted.

Article 138 Motive, Preparation and previous and subsequent Conduct Any fact is relevant which: a) shows or constitutes a motive or preparation for any fact in issue or relevant fact; b) is the conduct, previous or subsequent, other than a statement, of any person who is the accused in any proceedings, if such conduct influences or is influenc ed by any fact in issue or relevant fact; or c) any statement made to or in the presence or hearing of the person whose conduct is made relevant by this Article, if such statement has affected the conduct in question.

D) EXPLANATORY AND INTRODUCTORY FACTS Article 139 Facts necessary to explain or introduce Relevant Facts which: a) are necessary to explain or introduce a fact in issue or a relevant fact; b) support or rebut an inference suggested by a fact in issue or relevant fact; c) establish the identity of any thing or person whose identity is relevant; d) fix the time or place at which any fact in issue or relevant fact happened, or e) show the relation of parties by whom any such fact was made; are relevant insofar as they are necessary for that purpose. •

E) STATEMENTS AND ACTIONS REFERRING TO COMMON INTENTION/CONSPIRACY A conspiracy is a combination or agreement between two or more persons to do an unlawful act, or to do a lawful act by unlawful means, and it does not matter whether the act is completed or not. It must, however, be shown that there exists reasonable grounds to believe that two or more persons have conspired together to commit an offence or an actionable wrong; and that the accused was privy to the conspiracy. This does not mean that the prosecution must prove these two things beyond a reasonable doubt as this comes only at the conclusion of the case.

E) STATEMENTS AND ACTIONS REFERRING TO COMMON INTENTION/CONSPIRACY Article 140 Things said or done by Conspirator in Reference to common Design Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to be so conspiring for the purpose of: a) proving the existence of the conspiracy, or b) showing that any such person was a party to it.

F) Facts relevant in certain Circumstances only 1. FACTS INCONSISTENT WITH OR AFFECTING PROBABILITY : Any fact which either disproves or tends to disprove any relevant fact or fact in issue, is itself relevant. The admissibility thereof is a matter of logic and experience as it depends upon the proximity of the fact sought to be proved, to the fact in issue or relevant fact upon which it bears. For example, where an accused puts forth an alibi, that is, a defence where an accused alleges that at the time of the commission of the offence with which he is charged, he was actually elsewhere and not near the scene of the crime.

F) Facts relevant in certain Circumstances only 2. Facts affecting quantum of damages : This provision is terribly useful to 'ambulance chasers’, that is, lawyers who actively pursue accident victims to hospital for instructions. In a suit for damages or any other civil law situation, any fact which would help the court to determine the quantum of damages is relevant. For example, under contributory negligence, your participation (contribution to liability) affects the quantum of damages you receive. If the plaintiff in a civil suit claims damages as compensation for injuries suffered, the amount of damages which will compensate him naturally becomes a fact in issue.

F) Facts relevant in certain Circumstances only 3. Facts affecting the existence of a right or custom: Where existence of a custom or a right is in question, any fact which shows the existence thereof is relevant. 4. Facts showing the existence of state of mind: When the existence of certain state of mind of a person is in issue, any facts showing the state of mind or state of bodily feeling is a relevant fact

F) Facts relevant in certain Circumstances only Article 141 When Facts not otherwise relevant become relevant Facts not otherwise relevant are relevant: a) if they are inconsistent with any fact in issue or rele vant fact, or b) if, by themselves or in connection with other facts, they make the existence or non existence of any fact in issue or relevant fact highly probable or impro bable.

F) Facts relevant in certain Circumstances only Article 142 Facts showing Existence of State of Mind or Body When the existence of a state of mind or body or of bodily feeling is a fact in issue or a relevant fact, the facts which in rela tion to the matter in question show in a given person the existence of: a) any state of mind, such as intention, knowledge, good faith, negligence, rashness, good will or ill will; b) a state of body or bodily feeling, shall be considered relevant,

F) Facts relevant in certain Circumstances only Article 143 Facts bearing on Question whether Act was Accidental or Intentional When there is a question whether: a) an act was accidental or intentional, or b) done with a particular knowledge or intention, the fact that such act formed part of a series of similar occur rences, in each of which the person doing the act was concerned, is relevant.

F) Facts relevant in certain Circumstances only Article 144 Statement forming Part of a longer Statement of Transaction When any statement of which evidence is given forms part of: a) a longer statement; b) a conversation; c) an isolated document; d) a document contained in a book, or e) a series of letters or papers, evidence shall be given of so much, and no more, of the statement, conversation, document, book or series of letters or papers as the Court considers necessary in that particular case to the full under standing of the nature and effect of the statement, and the cir cumstances under which it was made.

F) Facts relevant in certain Circumstances only Article 145 Previous Judgment For purposes of paragraph 3 of Article 13, the existence of any previous judgment which by law prevents any Court from holding a trial, is a relevant fact when the question is whether such Court ought to hold such trial.