NAME: DIANA WANGAMATI

REG NO: LSS201-C002-0144/2020

UNIT: EVIDENCE LAW 1

LECTURER: JOTHAM ARWA

1a) Similar facts evidence is evidence of previous or subsequent acts which are similar to the
issue or relevant facts, similar facts evidence are inadmissible unless in certain circumstances,
for the case in question, There’s a striking resemblance in how Abdul lured his victims and how
the victims were dressed, Firstly, Abdul offers Balita and Delia lifts in different occasions and
he also took Balita and Charlotte to the same wood in which he had sexual intercourse and rape
with them respectively, He sucked Charlotte and Balita toes before committing the acts.
Furthermore Abdul committed an assault in a different wood and he also has conviction that was
20year ago because of raping a woman who had accepted a lift from him, another major striking
resemblance is that all had their hair dreadlocks and they were wearing very short skirts at the
time the offences were committed, Abdul’s mode of operation when he commits such acts are
similar

The issue to be determined is whether the prosecution will be allowed to deduce the evidence of
Charlotte and Delia, as well as Abdul’s previous convictions, to support their case on the rape of
Balita, under section 15 of Evidence Act, two things should be considered:

I)A question must be raised whether an act by the accused was intentional nor accidental, or was
done with particular knowledge or intention. Such evidence is admissible to rebut a defense of
accident or mistake or other innocent condition of mind.

Ii)Section 15 is not applicable unless it is sought to proved that the act forms part of a series of
similar occurrences.

From the above sections, it’s worthy to note that the way Abdul lured his victims into
committing the sexual offenses and assault was intentional and he had the knowledge of what he
was doing. Moreover the series of events that occurred leading to the women being sexually
assaulted are similar in that Abdul offers lifts to women and he drives them to the woods and
that the women were wearing similar short skirts and had dreadlocks. Section 15 will apply
because the offenses committed by Abdul were series of similar occurrences relating to the case
of Balita.. Therefore the prosecution will be allowed to adduce the evidence of Charlotte and
Delia, as well as Abdul’s previous convictions, to support their case of Balita.
In the case of Makin & Makin vs Attorney General of New South Wales1 the defendants were
charged with murder of a baby . It was shown that the child’s mortal remains were found buried
in a shallow grave at the backyard of the house occupied by them. The defendants had opted this
child from its mother in return for a sum of money, stating that they wished to bring it up
because they had lost their own. The facts were consistent with an allegation that the defendants
had killed the child(for the maintenance) but equally were consistent with the death by natural
cause followed by an irregular burial. Evidence called showed that the bodies of other babies,
similarly adopted by the defendants, were found buried in the yards of houses previously
occupied by the defendants. The trial court held this evidence to be admissible and the
defendants were convicted.

1b) Similar facts evidence in civil cases can be admissible In a civil court, the Moff Music
Publishing Co. Ltd vs De Wolfe Ltd2 the court held that in civil cases, the courts will admit
evidence of similar facts if it’s logically probative, that is, logically relevant in determining the
matter which is in issue: Provided that it is not oppressive or unfair to the other side has fair
notice of it and is able to deal with it.Using the applicable rule and the case in question, Abdul
jingles for advertisement is similar to that of Eleanor which has been produced 7 years earlier,
they are similar, it can’t be sheer coincidence that they both had the same discovery, bearing in
mind that Abdul was sued by another advertising company agency, two years earlier for a
similar breach of copyright. Eleanor notifies Abdul that he’s being sued and it’s not oppressive
on his part. Eleanor will be able to adduce evidence from the previous action in which Abdul was
successfully sued to support her own action. In the case of Moff Music Publishing Co. Ltd vs
De Wolfe Ltd the plaintiffs were owners of the copyright in a musical work called `Sogno
Nostalgico’.They alleged that the defendants had infringed such copyright by supplying for
broadcasting purposes a musical work entitled `Girl in the Dark’. It was not disputed that the
work were similar, but the defendants argued that the similarity was coincidental and denied
copyright, even though `Sogno Nostalgico’ was composed prior to the `Girl in the Dark’. The
plaintiffs were permitted to adduce evidence to show that on other occasion the defendants had
reproduced works subject to copyright. The defendants appealed. The court also added that; upon
the issue in dispute, it’s relevant to know that there are other cases of musical works which are

1
(1894) AC 57 (PC)
2
(1976)Ch. USA( civil appeal)
undoubtedly the subject of copyright, but that the defendants have nevertheless produced musical
works bearing close resemblance to them

2. Cross examination is the questioning of a witness immediately after his examination in chief
by the other person to the proceedings. According to Keane3 the co-accused is entitled to cross-
examine him whether he has given evidence favorable to the co- accused or merely evidence in
own defense. In the case of Bindham4 according to Lord Hope, it was stated that, there’s no rule
preventing a witness who has been sworn but not questioned by the party calling him, being
questioned by other parties. The right to cross-examine is available to any party whose interests
may be affected by the testimony of the witness. In Attorney General vs Hitchock5 test for
determining whether a question is collateral or not was formulated by Pollock as ``if the
witnesses’ answer is a matter on which the crossexaminer would be allowed to introduce
evidence -in-chief, because of it’s connection with the issues in the case, then the matter is not
collateral and may be rebutted.” But there are exceptions to the rule including.

Previous inconsistent statements

In the question in case Ahmed denies being involved in the crime, but admits meeting the
defendants later that night that the crime occurred is not consistent, Ahmed being on the crime
scene is relevant to the particular case but him denying having not been involved with the crime
it's contradictory statement to the one he said he met with the defendants later that night the
crime occurred. The statement he said may be adduce evidence against him and allow the co-
defendants to cross examine him. The right to examine a witness about a former inconsistent
statements has been recognized in section 165 of the Evidence Act. In the case of Republic vs
Funderburk6 T was charged with a count of sexual intercourse with, F, a minor(girl) aged 13.
She gave evidence of a number of acts of intercourse with F, and her evidence of the first act
described the loss of her virginity. The defendant claimed she was lying about her loss of
virginity wishing to show she was sexually exploited. They wished to put to her:

a)That she had told a person that before the first incident complained of, she had sexual
intercourse with two.men
3
The Modern Law of Evidence, 2000( 5th edition, Butterworth’s) 2000 at page 170.
4
(1991 1 W.L.R. at 603.
5
(1847)1 Exch 91,99
6
(1990) 2ALL ER 482 (CA)
b)lf he’s denied this, to call a person to prove the conversation. The court held that I) with regard
to (a) above, the proper test for croos examination that should have been employed as to credit
was that it should be allowed for the court to re-appraise the girl’sevidence about her loss of
virginity

Ii) Ask to (b) it was held that the conversation if denie, could have been proved, because the
previous statement did not merely go to.court.but also relative to the subject matter of
indictment. The cross examiner should adduce the evidence that what Ahmed said is
contradictory.

Previous Convictions

Section 57(1) ( c) of the Evidence Act a witness may be cross-examined about his spent of
convictions particularly in relation to his credibility, Brian being charged for burglary and
previous convictions of Brian, Ahmed Charles on their convictions for attempted murder, theft
and indecent assault respectively may allow the co- defendants to cross- examine them because
of their past convictions which are related to the case of Edwina where they beat her to death
subject to section 57 of the Evidence Act that a person had been convicted of or charged or is of
bad character is inadmissible unless such evidence is otherwise admissible of a fact I issue or is
directly relevant to the fact in issue. In this case it’s relevant because they’ve had previous
encounters with the offenses.

Evidence of Reputation for untruthfulness

Charles called one of the witness to defend him by stating that he has a good reputation which
allow the co- defendants to cross examine him if he told the witness to testify his goodness. The
co-defendants will cross examine Charles and evidence will be adduced to state whether Charles
convinced the witness to testify in favor of him regarding the Edwina case, This is subject to
section 163(1) of the Evidence Act: the credit of a witness may be impeached in the following
ways by the adverse party, or, with the consent if the court, by the party who calls him-

a) By evidence of persons who testify that they, from their knowledge of the witness,
believe him to be unworthy of credit;
b) By proof that the witness has been bribed, or has accepted the offer of a bribe, or has
received any other corrupt inducement to give his evidence;
 c) By proof of former statements, whether written or oral, inconsistent with any part of his
evidence which is liable to be contradicted.
d) When a man is prosecuted for rape or an attempt to commit rape, it may be shown that
the prosecutor was of generally immoral character

As a general rule, all witness who testify are liable to cross examination. Thus general rule is
subject to the limitation that only two(certain) forms of questioning are permitted in cross-
examination :

I)Cross-examination to elicit evidence in support of cross examiners version of the facts in issue
i.e to complete and correct the witness’s story

II) Cross-examination to cast doubt upon the witness statement.