TO: Resident State Attorney, Nakawa Division.

FROM: Daniel Kipkurui Sabila.

RE: Considerations to be made in regards to the recent murder of Wasswa James.

DATE: 30th January 2021.

Question 1

BRIEF FACTS

John and James, brothers transacted in a business but it failed to materialize. As a result, James had to pay
back but did not have the money thus refused. This made John furious and plotted to kill James. He was
overheard speaking to himself by Kajubi the rolex maker, and he also talked to Marto the boda-boda rider
about how he would carry out his plan. One evening at about 1:00am when it was pitch black and raining, he
went with his hoe and a torch to the house of James while wearing a balaclava to disguise his face. He
entered the house by breaking the window. There was no electricity in the house. James’ wife was woke up
when she heard an object being used to hit her husband several times on his head, she also heard someone
say, “Since you refused to return my money, go to hell with it.’’
She tried to fight off the assailant and realized it was John, also James cried out, my own brother John is
finishing me off! John, John, my blood will haunt you until you join me. On being recognized, John ran out of
the house leaving behind the hoe, torch and balaclava. He ran away to the village of Kyampisi in Mukono to
hide. Mrs. Kato made an alarm which awoke most of the neighbors in the village including the chairman. When
they tried taking James to the hospital he died before the ambulance could arrive. The chairman called the
Police and information has been gathered. After 3 months, the main suspect of the crime John has been
arrested and is now in Police custody.
ISSUES

1. Whether the accused had motive to commit the offence?

2. Whether the accused was rightfully identified by Mrs. Bossa?
3. Whether Hearsay evidence is admissible?
4. Whether the Act of running away pointed out the accused’s guilt?
5. Whether the statements of the deceased amounted to a dying declaration?

LAW APPLICABLE

The Constitution of the Republic of Uganda 1995 as amended

The Evidence Act Cap. 6 Laws of Uganda of 2000

Case law

01Trinity 2020/Advent 2021Examinations Page 1

 1. Whether there are any relevant facts which render John liable for the offence?

The law of evidence refers to the principles and rules that govern the proof of facts in a trial or other legal
proceeding. Phipson on Evidence defines evidence as the means, apart from argument and inference, whereby
the court is informed as to the issue of fact as ascertained by the pleadings 1. Evidence is mainly concerned with
the facts and not the law. It is a means of proving that a certain fact is either truthful or not. According to the
Evidence Act section 2, a fact is defined as anything capable of being perceived by the senses 2. The Act has
gone further to define the facts in issue as a fact significant or essential to the issue at hand 3. Section 7 (1) of
the Evidence Act categorically stipulates that any fact is relevant which shows a motive or preparation for any
fact in issue or relevant fact. When an act is committed, the motive towards it commission will be looked at.
The Oxford dictionary of law has gone ahead to define Motive as the purpose behind a course of action 4.

Motives affect behavior, although “motive” is not an essential element of any charge, claim or defense, but
in evidence, that a person has a particular motive can be relevant to ultimate fact in criminal matters 5. In the
case of R v Makindi, the court held in the affirmative that the evidence of the previous beatings was
admissible in the circumstances in order to show that the accused had a motive to avenge for his previous
imprisonment6. Motive is a relevant factor in all criminal cases, whether based on testimony of the eye
witness or circumstantial evidence. In Uganda v Barikunda s/o Rwebanda court held that where motive is
established, it becomes a relevant fact for determination of intention 7. When a person acts in a particular way
it can be easily said that the person developed the “intent” to behave that way or developed a “plan” to do
so8. In relation to the facts at hand we get to see that he clearly sketched a plan on how he would kill the
victim and direct evidence is derived from the fact that he told this plan to Marto.

The other relevant fact to be considered is the state of mind of the accused. This is provided for under
section 13 of the Evidence Act and stipulates that a person may bring about a particular acts or may commit a
particular crime because of the state of mind 9. Section 13 provides that facts showing the existence of mens
rea when committing a crime are relevant when the existence of such state is in issue. In the case of R v
Godfrey it was held that the mental and physical condition at the subsequent time maybe highly relevant to
the issue. Therefore I would clearly state that John had the motive to kill James therefore liable for the
offence.

2. Whether the accused was rightfully identified by Mrs. Bossa?

1
Sidney L Phipson, Phipson on Evidence; Sweet & Maxwell Ltd; 19 th Edn. Pg. 379
2
Evidence Act Cap 6 section 2
3
Ibid
4
Elizabeth A Martin, Oxford Dictionary of law; Oxford University Press, 2003 5 th Edn. pg. 321
5
David P Leonard, ‘Character and Motive in Evidence Law’ Loyola of Los Angeles Review pg. 99
6
R v Makindi [1961] EA 327
7
Uganda v Barikunda s/o Rwebanda [1985] HCB 1 21
8
David P Leonard, ‘Character and Motive in Evidence Law’ Loyola of Los Angeles Review pg.1
9
Evidence Act Cap 6 section 13

01Trinity 2020/Advent 2021Examinations Page 2

The Oxford dictionary of law defines evidence of identification as that which tends to prove the identity of a
person10. A person's identity may be proved by direct evidence (even though it may involve an expression of
opinion) or by circumstantial evidence 11. Identity of a thing or a person is an expression of opinion that that
thing or person resembles another thing or person so much so that it is likely to be the same thing or person.
In criminal law, the identity of an accused must be established and that person has to be shown to be the one
who committed the particular offence as was evidenced in the case of Bogere Moses V Uganda12. There has to
be a process through which the accused is connected to the crime and thus this shall be termed as
identification. There are different guidelines that come with this process. The person identifying must have
seen the person being identified. Also the identifying person must have had a settled impression to mean at
the relevant time there was no state of panic. The metal picture developed must remain unchanged. Also in
consideration is the factor of time. Considerations for proper identification must also be considered.

There are circumstances when the accused person may be identified by a particular witness this shall be
termed as single identifying witness. In Uganda v. George Wilson Simbwa it was stated that for
admissibility of such evidence to be permitted by court the means and intensity of light available to the
witness shall be considered13. The familiarity of the witness and the attacker and their interaction or
association the duration of the commission of the crime will also be considered. In relation to the facts above
we get to see that it was dark and thus the Mrs. Bossa could not identify the attacker. However as per the
facts we get to see they had known each 0ther for quite a long period and therefore this is evident that the
witness could apprehend the voice of the attacker. In addition to that we also get to see that the attacker
interacted with the deceased in the presence of the witness which actually led to the identification.

Admissibility of single identifying witnesses was elaborated in the case of Abdalla Nabulere v Uganda 14. It was
stated that the testimony of a single witness regarding identification must be tested with the greatest care
and be sure that it is free from possibility of a mistake as was reiterated by court in the case of Walakira Abas
& Ors v Uganda15. Also to be considered is that need for caution is even greater when it is known that the
conditions favoring a correct identification were difficult. Where the conditions were difficult, what is needed
before convicting is ‘other evidence’ pointing to guilt. Otherwise, subject to certain well known exceptions, it
is lawful to convict on the identification of a single witness so long as the judge adverts to the danger of
basing a conviction on such evidence alone.

3. Whether Hearsay evidence given by the rolex vendor is admissible?

10
Elizabeth A Martin, Oxford Dictionary of law; Oxford University Press, 2003 5th Edn. pg.
11
Ibid
12
Bogere Moses V Uganda SCCA No 1/1997
13
Uganda v. George Wilson Simbwa Civil Appeal No 023 of 2012
14
Abdalla Nabulere v Uganda Cr. App 1281
15
Walakira Abas & Ors v Uganda SSCA N0 25 of 2002

01Trinity 2020/Advent 2021Examinations Page 3

The Evidence Act under section 58 provides that oral evidence must in all cases be direct as it is considered
the best evidence however hearsay evidence may also be admitted as was see in the case of Chaudrasekera v
R16. The Oxford dictionary of law defines hearsay evidence as statements of a person other than the witness
who is testifying and statements in documents offered to prove the truth of what was asserted 17. In
Subraminium V Public Prosecutor, it was held that hearsay evidence is an assertion of a person other than
the witness testifying offered as evidence of the truth of that assertion rather than as evidence of the fact
that the assertion was made18. In general, hearsay evidence is inadmissible (the rule against hearsay) but this
principle is subject to numerous exceptions19.

An exception to hearsay is given under section 30 (d) which gives an exception in regards to Public rights and
records. Section 30(d) of the Evidence Act provides for the admissibility of statements which give the opinion
as to the existence of any public right or custom, or matter of public or general interest of the existence of
which if it existed, the giver would have been likely to be aware and when that statement was made before
any controversy to the right, custom or matter had arisen. As per the facts at hand we get to see that the
accused was overheard speaking out aloud that he would revenge James. As per the facts at hand we get to
see that the accused was overheard speaking out aloud that he would revenge James. Admissibility of hearsay
evidence was evidence in the case of Sparkes v R where circumstances forming part of res gestae were
considered20. Therefore a narration from kajubi on what he had John speaking would amount to hearsay
evidence since the right to life of the deceased is in play.

4. Whether the Act of running away pointed out the accused’s guilt?

The Evidence Act under section 8 provides for conduct as part of the res gestate. It state that the conduct of
any party or agent to any suit in reference to any facts in issue shall be considered relevant at some point in
time. The word conduct brings in the aspect o physical actions that the accused person does.in the case of
Lobbo v R the matter of subsequent conduct was discussed in that what a person does or how he behaves
soon after the crime shall be considered 21. In the case of Uganda v Simon Onen the subsequent conduct of
running away into hiding was considered as not the conduct of an innocent person 22. Therefore in regards to
the facts we get to see after the commission of the 0ffence the accused ran away to another village to hide.
This conduct therefore deems his guilt for commissioning the offence.

5. Whether the statements of the deceased amounted to a dying declaration?

16
Chaudrasekera v R (1932) AC 220
17
Elizabeth A Martin, Oxford Dictionary of law; Oxford University Press, 2003 5th Edn. pg. 229
18
Subraminium V Public Prosecutor [1956] W.L.R 965
19
Ibid
20
Sparkes v R 1964 AC 964
21
Lobbo v R [1961] EA 327
22
Uganda v Simon Onen (1991) HCB 7

01Trinity 2020/Advent 2021Examinations Page 4

The Oxford dictionary of law defines a dying declaration as an oral or written statement by a person on the
point of death concerning the cause of his death. A dying declaration is admissible at a trial for the murder or
the manslaughter of the declarant as an exception to the rule against hearsay evidence, provided that he
would have been a competent witness had he survived 23. Section 30 (a) provides for this exception to hearsay.
This exception arises from the belief that “a man shall not meet his maker with Alice in his math”. This
assumption is that because of the impending death the person is put in the circumstances which almost
resemble the taking of an oath in cross- examination. A dying declaration will be valid in common law because
at such a time the victim would have lost all hope in life as was stated in the case of R v Woodlock24. Dying
declarations can be submitted by a competent person that is; a sane person or not an infant as was stated in
the case of R v Pithe25. Also in consideration is the fact that the victim must have succumbed to death for
these statements to be considered as was expressed by Lord Atkin in the case of Swami V Emperor26. In
relation to the facts we get to see that the statements made by the victim were those that fulfilled the
demands of a dying declarations and therefore the wife of the deceased can tender in such evidence to
convict the accused.

Question 4

TO: The Inspector General of Police IGP

FROM: Daniel Kipkurui Sabila

RE: The Principles to be considered in regards to Electronic Evidence.

DATE: January 30, 2021

The law of evidence is defined as the body of legal rules that determines whether and how evidence can be
adduced. Evidence according to Black’s law dictionary is defined as the body of law regulating the
admissibility of what is offered as proof into the record of a legal proceeding 27. Phipson on Evidence further
defines evidence as the means, apart from argument and inference, whereby the court is informed as to the
issue of fact as ascertained by the pleadings 28. It should be noted that different kinds of evidence exist one of
them being electronic evidence. Justice Mutonyi in the case of Amongin Jane Francis Okili Vesus Lucy
Akello Anor defined electronic evidence as any probative information stored or transmitted in digital form
that a party at a trial or proceeding may use. It is used to prove a particular proposition or to persuade court
of the truth of an allegation 29. Electronic evidence is understood to include information manually entered into
an electronic device by an individual, information generated in a computational transaction or a response to a

23
Elizabeth A Martin, Oxford Dictionary of law; Oxford University Press, 2003 5th Edn. pg.165
24
R v Woodlock 1 Leach 500
25
R v Pithe
26
Swami v Emperor (1939) 1 ALL ER 396
27
Brian A Garner, Black’s law Dictionary; West Publishing Co, 9th Edn. pg. 635
28
Sidney L Phipson, Phipson on Evidence; Sweet & Maxwell Ltd; 19 th Edn. Pg. 379
29
Amongin Jane Francis Okili Vesus Lucy Akello and The Electoral Commission

01Trinity 2020/Advent 2021Examinations Page 5

request by an individual, where an electronic device generates information acting as an automation, or
information produced and stored where a device processes information within its matrix 30.

Evidence in Uganda is governed by different laws particularly the Evidence Act Cap 6. According to section 4
of the Evidence Act, it is the duty of judicial officers to admit or reject evidential material depending on
whether it’s relevant or irrelevant thus not admissible before court 31. The general rule in regards to evidence
adduced in regards to the facts in issue is that it should be relevant for it to be admissible 32. In DPP v
Kilbourne it was stated that evidence is relevant if it is logically probative or disapprobative 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 33. The prevailing law on
evidence in Uganda has always recognizes the “Best Evidence Rule” which requires that only original
documents in a written form can be admissible in courts of law, in case of dispute, the admissibility and
weight of this kind of evidence can be a challenge.

Overtime the reliance on the ‘Best Evidence Rule’ as provided under the Evidence Act has brought about
challenges on the law of evidence especially in regards to admissibility of electronic evidence. However
the scope of evidence law in Uganda has seen the emergence of; to start with The Computer Misuse Act34
was passed to make provisions for the safety and security of electronic transactions and information systems,
to prevent unlawful abuse or misuse of information systems and this it has created a trustworthy electronic
environment and other related matters such as unauthorized access with intention to commit crime 35. On the
other hand The Electronic Transactions Act provides for the use, security, facilitation and regulation of
electronic communications and transactions as forms of communication 36. The Act provides legal certainty
in respect of validity, legal effect and enforceability of information in electronic form; it relates electronic
evidence to electronic transactions but does not give the use of electronic evidence general application 37. The
other Act enacted is the Electronic Signatures Act which makes a provision for the use of electronic
signatures in order to ensure that transactions are carried out in a secure environment 38.

With the emergence of computers, the internet and other modern technologies, many items have been
brought into place which were scarcely in contemplation when the Evidence Act was being enacted therefore
increasing the scope to be covered by the law of evidence. There are two basic types of electronic evidence
that is; Data stored in computer systems or devices and Information transmitted electronically through
30
Law Reform Commission, Documentary and Electronic Evidence; 2009 Edn. pg.8
31
Evidence Act Cap 6 section 4
32
Evidence Act Cap 6 section 6
33
DPP v Kilbourne (1973) HL
34
The Computer Misuse Act, No. 2 of 2011
35
Online source; https://chapterfouruganda.org/resources/acts-bills/computer-misuse-act-2011.com accessed
on January 30, 2021.
36
The Electronic Transactions Act, No. 8 of 2011
37
Law Reform Commission, Documentary and Electronic Evidence; 2009 Edn. pg. 8
38
The Electronic Signatures Act, No. 7 of 2011

01Trinity 2020/Advent 2021Examinations Page 6

communication networks. Different devices are able to create and store data in digital form, and such data
may serve as evidence, this includes data that is input or created in the computer, information transmitted is
one communicated through a media device through a network or direct transfer 39.

The general rule established by law is that electronic evidence may be admissible in court under certain
circumstances. Admissibility of electronic is enshrined under section 64 of the Evidence Act and section 5 & 8
of the Electronic Transactions Act which states that provides that information shall not be denied legal
effect, validity or enforcement solely on the ground that it is wholly or partly in the form of data message. In
the case of US v Young Bros Inc.40 one of the issues was whether court would admit certain computer-
generated records which were kept in the regular course of the State's business. Court went ahead to state
that any person in a position to attest to the authenticity of certain records is competent to lay the
foundation for the admissibility of the record. The trial judge correctly admitted into evidence the computer-
generated business records. Thus electronic evidence is deemed admissible even here in Uganda.

In order to successfully admit any piece of evidence, electronic or otherwise, a party must fulfill three
prerequisites; authentication, hearsay, and the best evidence rule. First is that evidence will only be
considered if it is relevant as stated by Tsekooko Ag J in Uganda vs David Kamugisha & Anor. The question of
admissibility of evidence is to be oral or documentary basically depends on whether it was relevant to the
issue before court41. The Evidence Act under section 4 is to the effect that no evidence shall be admissible
unless it is relevant to facts in issue. In the case of Uganda Attorney General v East Africa Law Society &
Anor, the matter of admissibility of electronic evidence was tackled and different considerations were given
before such evidence is admitted. First it was stated that the electronic evidence will need to meet the
authentication test. In the case of Dian GF International Ltd v Damco Logistics Ltd & Trantrack
authentication was defined to mean the process by which the validity, or genuineness, of the document is
established. Whether the document is what it purports to be is a matter of conditional relevance in that
the document is relevant only if the document is what it purports to be 42.

The second consideration to be looked into is the best evidence rule. The best evidence states that in any
judicial proceeding a party who intends to rely on contents of a document must produce the document itself
as was illustrated in the case of Augustien v Challis43. In the case of Trust Bank Ltd vs Le-Marsh Enterprises
Ltd & 2 Ors the matter arising before court was whether electronic evidence was admissible as best
evidence44. Court ruled that the electronic evidence is admissible in Tanzania courts. With the change being
inevitable, modern occurrences in law should be considered when handling matters. This was a departure

39
Online Source; https://www.KTAAvocates.com accessed on January 30, 2021
40
US v Young Bros Inc. 728 F.2d 682, 693, 694 (5th Cir 1984)
41
Uganda vs David Kamugisha & Anor [1988-90] HCB 77
42
Dian GF International Ltd Vs Damco Logistics Ltd & Trantrack (CIVIL SUIT NO 161 OF 2010) [2012]
43
Augustien v Challis EXch 279
44
Trust Bank Ltd vs Le-Marsh Enterprises Ltd, Joseph Mbui Magari, & Anor Commercial Court Case No.4/2000

01Trinity 2020/Advent 2021Examinations Page 7

from the strict rule of best evidence rule. With this fulfillment then court will be persuaded to admit the
electronic evidence produced. The other consideration is the hearsay rule. Hearsay evidence was defined in
the case of Subraminium v Public Prosecutor as assertions narrated by a third person to a court by a witness
for the purpose of establishing the truth of the assertion made 45.

The rule established under hearsay is that the statement given in a proceeding by a third party who
indirectly it is inadmissible. However there are exceptions provided for under section 30 of the Evidence Act 46.
Therefore electronic evidence will only be admissible in such it falls within the exceptions of hearsay as
depicted in the case of R v Khan47. With the stated prerequisites followed to the latter, the court may
consider admitting the evidence tendered in. Electronic evidence usually takes the form of testimony by an
individual with direct knowledge that the produced evidence is what it purports to be 48. The person handling
the process of obtaining such information through the electronic process in so doing must exercise extreme
caution and care since such evidence is considered easily manipulative and it can thus be altered or
duplicated. For E-mail print outs they should be admitted just like ordinary paper evidence with the
foundation that the print out is what the person saw on the web after typing in a particular address this was
stated in the case of In Steve Solomon, Jr. Inc. v. Edgar49.

If the author of the record admits that he/she authored the document, admits that the document is true, is
available for cross examination, and there is no hearsay, then the document is admissible 50. The proponent,
however, must establish a foundation that the record was created and stored in such a way as to ensure
reliability. Reliability can include; consistent intended performance and the ability to conclusively discern
invalid or altered documents, validation of computer systems to ensure accuracy, ability to generate accurate
copies of records in both human readable and electronic form, protection of records to enable their accurate
and ready retrieval throughout the records retention period, limiting systems access to authorized individuals,
and use of authority checks to ensure that only individuals who have been authorized can use the system,
electronically sign the record, access the operation or device, alter a record or perform the operation at
hand.

Despite a record being authenticated and admissible, the court is bound to decide how much weight it should
be accorded. The general rule with respect to authenticity of electronic records is that inaccuracies or
suspicions of alterations of the records are an issue for the trial judge of fact to consider when weighing the
evidence, not in determining its admissibility51. In the case of US vs Young Bros, Inc. court rejected an

45
Subraminium v Public Prosecutor [1956] W.L.R 965
46
Evidence Act Cap 6 section 30
47
R v Khan [1990] S.C.R 531
48
Arinaitwe W. Patson, Admissibility of Electronic Evidence in Uganda, 2010 pg. 2
49
In Steve M. Solomon, Jr., Inc. v. Edgar 88 S.E.2d 167 (Ga. Ct. App. 195),
50
Arinaitwe W. Patson, Admissibility of Electronic Evidence in Uganda, 2010 pg. 4
51
Ibid

01Trinity 2020/Advent 2021Examinations Page 8

argument by the defendant that computer records are inherently less reliable 52. The burden is on the person
adducing the data message to prove its authenticity by adducing relevant evidence therefore that the
document is what it purports to be as was stated in Uganda vs Sserunkuma & 8 Others53. Where best
evidence is the evidence required, the rule of best evidence is fulfilled upon proof of the authenticity of the
electronic records system in or by which the data was recorded or stored.

Conclusively, it is apparent that the use of digital evidence has increased in the past and that is why courts
which were hesitant to admit it have now accepted it as one of the best evidence. But like any other evidence
the proponent of electronic or digital evidence must lay the proper foundation which makes the evidence
reliable. Courts are mainly concerned about reliability of such digital or electronic evidence.

Question 2

a) Canine evidence is an important subject because law enforcement agencies are increasingly using working
dogs in law enforcement as law enforcement agencies use dogs to detect substances or track people 54. Law
enforcement agencies use dogs in a variety of ways including detection of suspects and substances and
apprehension of offenders55. Due to the wide use of dogs for law enforcement functions, the question of
admissibility of canine evidence often arises. Many countries do not have specific legislation on how canine
evidence can be admissible. However, courts in many countries recognize that a dog has the ability to
discriminate scent.

The handler’s reliability comes into question because of the subjectivity of the handler’s manipulation of the
dog and interpretation of the dog’s acts. The handler must therefore produce adequate records of his
training, certification and experience which the court will evaluate. Further, the court will restrict the
handler’s courtroom testimony to the rules of evidence. The handler must be a competent witness in order for
his evidence to be allowed in court. Courts also look at the objectivity of the search that led to the recovery
of the exhibit or identity of a defendant. When the court finds canine evidence to be reliable and admits the
evidence, it will give the defendant an opportunity to inquire into the training and antecedents of the dog. It
will also allow the defendant to inquire into all circumstances and details of the search.

The reliability of canine evidence is a question which many judicial officers grapple with. The dog’s reliability
in doing its works relies on the skill and proficiency of the handler. Therefore, the reliability of canine
evidence is a function of the handler’s interpretation of the dog’s reaction. This is often subjective and as a
result, there is conflict of opinion on this question. Gaswaga J in Uganda v Muheirwe Chris & Kyomugisha

52
US vs Young Bros, Inc. 728 F.2d 682, 693, 694 (5th Cir 1984)
53
Uganda vs Sserunkuma & 8 Others HC CR SC 15/2013
54
Online Source; Admissibility of Canine Evidence in Wildlife Crime Cases | Wildlife Law Africa | Legislation and
Cases Accessed on January 31, 2021.
55
Ibid

01Trinity 2020/Advent 2021Examinations Page 9

Jovia56 gave the following necessities to be considered for canine evidence to be admissible before a court
as; it must be relevant to the fact in issue. As the general evidence rule is only relevant evidence shall be
admitted as was stated by in DPP v Kilbourne that evidence is relevant if it is logically probative or
disapprobative 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
probable57.

Also for sniffer dog evidence to be considered it must be reliable. In the case of Omondi & Anor v R it was
stated that matter of canine evidence should be admitted with caution and great care by so doing then it shall
be termed reliable thus court will admit the evidence adduced. Also the human handler must be qualified by
training and experience to handle the dog and interpret its actions. Generally courts will require that the
handler of the dog has skills and training on how to go about with the use of dogs to acquire evidence. In the
case of California v. Gonzales handler was qualified by training and experience to use the dog therefore the
evidence adduced was relevant and it was admitted58.

In addition for canine evidence to be admitted canine evidence must be corroborated. This is to say that
other evidence should be considered and not only dog evidence. Gaswaga J in Uganda v Muheirwe Chris &
Kyomugisha Jovia stated that “It should be borne in the mind of the trial judge that according to the
circumstances otherwise deposed to in evidence, the canine evidence might be at the forefront of the
prosecution case or a lesser link in the chain of evidence” 59. In Abdallah Bin Wendo and Shek Bin Mwambere
v R it was held that “where police dogs are used to supply corroboration of an identification of a suspect, it
should be accompanied by the person who has trained the dogs and cannot describe accurately the nature of
the test employed”60. The other consideration that court looks at is that canine evidence must treat the
evidence with utmost caution and the prosecution should give it the fullest explanation. Sniffer dog evidence
was considered in the Kenyan case of Omondi and Anor v R with emphasis given that evidence should be
admitted with caution, and if admitted should be treated with great care. Before the evidence is admitted
the court should, we think ask for evidence as to how the dog has been trained and for evidence as to the
dog’s reliability. To say that a dog has a thousand arrests to its credit is clearly, by itself, quite
unconvincing61.

To add on in order for canine evidence to be admissible, the human handler must not try to explore the
inner workings of the dog’s mind. This reservation is to the effect that he is free to describe the behavior of
the dog and give an expert opinion as to the interferences which might properly be drawn from a particular

56
Uganda v Muheirwe Chris & Kyomugisha Jovia High Court Criminal case no. 0011 of 2012
57
DPP v Kilbourne (1973) HL
58
California v. Gonzales, 218 Cal.App.3d 403, 267 Cal. Rptr. 138
59
Uganda v Muheirwe Chris & Kyomugisha Jovia High Court Criminal case no. 0011 of 2012
60
Abdallah Bin Wendo and Shek Bin Mwambere Vs R (1953) Vol. 20 EACA
61
Omondi and Anor v R [1967] E A 802

01Trinity 2020/Advent 2021Examinations Page 10

action by the dog as was stated by Hon. Lady Justice Margaret Mutonyi in Uganda vs Juvenile. With the
explained considerations put in place, then the court will consider tendering in canine evidence as admissible
evidence.

b) The courts rely on many types of evidence in their efforts to administer justice fairly. Certain lines of
unscientific evidence, such as eyewitness identifications and even confessions have been shown to have a
strong impact on jurors despite being potentially unreliable and false 62. Scientific evidence is therefore
weighed more heavily by the courts, yet many lines of evidence considered science-based have recently been
questioned. Quasi-scientific evidence derived from detection dogs is an interesting and illustrative example of
science-based evidence that is now receiving more scrutiny. Dog evidence has its own strength and
weaknesses which will lead court to determine its weight and admissibility as I shall explain as follows.

Some of the advantages of dog evidence is that dogs have a high sense of smell which helps in it detecting
smell and odors which could be of the victim. With the high sense of smell, this leads to it being able to trail
the smell for a long distance and lead to the accused. Also dog evidence has proven useful because dogs are
considered to have a high level of understanding which helps them to be easily trained for that particular
purpose. In as much as courts have gone ahead to admit dog evidence, this evidence has its negativeness
which renders it defective sometimes when presented to court. For instance dogs cannot detect some
evidence such as fingerprints this has been considered as one it its weaknesses which reduce its effectiveness.
Also dogs lack sufficient training so they might fault sometime.

In assessing a particular dog’s reliability, the courts weigh its training and certifications, and in some cases,
field performance. There are no national standards for dog training and that certifications are typically
generated and provided by the private agencies that train and then ultimately sell detection dogs. This has
been considered also as one of the weaknesses that undermines canine evidence. In addition, there is a high
threshold for canine evidence to meet given the common criminal justice challenges associated with this form
of evidence. In Harris v. Florida Supreme Court case “closed the door on science-based challenges to the
reliability of canine sniff evidence” 63. Rather than confronting the fundamental usage of detection dog
evidence, the Harris case accepted this practice and instead limited questions of reliability to the
performance of individual dogs. Another weakness is the problem is that detection dog alerts are not always
corroborated by the actual presence of the detection target (e.g. drugs), in some cases, a dog may detect the
residual scent from an object that was previously (but is no longer) present 64. In conclusion, mechanisms to
strengthen this type of method of acquiring evidence should be given concern and support so as to supplement
the work of police and the prosecution team when gathering evidence.

62
Lisa Lit et al, Perceived infallibility of detection dog evidence (2019) pg.4
63
Harris v. Florida 568 U.S 237 133 S
64
Katz, S. R, Unconfirmed canine accelerant detection: A Journal of Forensic Sciences, (1998). Pg. 329–333

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 BIBLIOGRAPHY

Constitutions

The Constitution of the Republic of Uganda 1995 as amended

Statutes

Evidence Act Cap 6

The Computer Misuse Act, No. 2 of 2011

The Electronic Signatures Act, No. 7 of 2011

The Electronic Transactions Act, No. 8 of 2011

Case law

Dictionaries

Elizabeth A Martin, Oxford Dictionary of law; Oxford University Press, 2003 5th Edition

Brian A Garner, Black’s law dictionary; West Publishing Co 2009 9 th Edition

Articles

Arinaitwe W. Patson, Admissibility of Electronic Evidence in Uganda, 2010

Law Reform Commission, Documentary and Electronic Evidence; 2009 Edition

Katz, S. R, Unconfirmed canine accelerant detection: A Journal of Forensic Sciences, (1998).

Text Books

Lisa Lit et al, Perceived infallibility of detection dog evidence (2019)

Sidney L Phipson, Phipson on Evidence; Sweet & Maxwell Ltd; 19th Edition

Online Sources

https://chapterfouruganda.org/resources/acts-bills/computer-misuse-act-2011.com

https://www.KTAAvocates.com

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