LAW OF EVIDENCE

(BLAW 410)
SYLLABUS
Introduction
The Burden & Standard of Proof
Corroboration
Competence & Compellability
Identification Evidence
Testimony
Opinion Evidence
Unlawfully/Unfairly Obtained Evidence
Public Interest Immunity
Similar-Fact Evidence
Privilege
Confessions

Lecturer-In-Charge = Mr. Francis Gabbidon, Esq.

Law of Evidence (BLAW410 & 420) lecture notes by Mr. Francis Gabbidon, ESQ. Typed &
Compiled by Muhammad Mansour Allie. Typos are inevitable. For further clarification on
anything contained herein, please consult the lecturer-in-charge.
 INTRODUCTION
The Law of Evidence is probably the most important subject matter in legal studies & practice. In other words, all
cases surround the Law of Evidence and its relevance cannot be overemphasized. Without evidence, there is no
law. Without evidence, cases cannot be proven and injustice will reign supreme. The colloquial understanding of
the term "Evidence" differs from the substantive subject matter learned in the course of the LLB Programme. This
term in law means legal evidence (i.e., evidence, which is endorsed by law), whereas under the abovementioned,
Evidence is used in a broader sense. Legal Evidence is classified into the following ambits:

ORAL/SPOKEN WORD EVIDENCE

This, which is the most common and important form of evidence, is basically a vocal representation of events in
any given case. For example; "I saw him leaving her apartment all bloody and panting the day before". Its
commonality can be seen in practice when courts, most of the time, use witnesses to corroborate stories of the
parties (i.e., witness testimony). Any party giving oral evidence must make a sworn oath via a belief they uphold
(i.e., Christians swearing on the bible, Muslims swearing in the Quran, Jews swearing in the Torah, and so on) to tell
the truth, the whole truth & nothing but the truth and if anything, other than the truth is stated, it is considered
perjury. In the Sierra Leone Courts of Law, the permitted language used for oral evidence is English. In an event
where a witness cannot converse in English, the courts will allow said witnesses to converse in their known
language, provided they have an interpreter, who must as well swear an oath or make an affirmation before
discharging his duties. The testimony given in a dialect other than English will be inadmissible until interpreted for
the court. Before any witness takes the stand, he/she must swear an oath via a religious book of preference. In an
event where a witness pays no credence to any deity, he/she must make an unsworn oath called an affirmation
before taking the stand. An affirmation is as good as a sworn oath (See Section 12 of CAP 169 - Official Oaths Act).
Examples of people that affirm are those that do not believe in God or any deity very young children. This step is
unavoidable in the process as if a witness does not swear an oath or affirm, he/she will not be allowed to take the
stand & testify. The rules of perjury (i.e., lying) apply to both oaths and affirmations.

DOCUMENTARY EVIDENCE
This is basically any written or typed documentation. For instance, from a receipt for the purchase of a gun used in
a killing to an attendance book to ascertain whether or not the person in question was where he said he was at the
material time, all fall under this ambit. Generally, the courts will always make the originals of any and all
documentary evidences their first point of order. In an event where the original copy of a documentary evidence
cannot be attained, the courts will call for an immediate copy of the original, called "Secondary Evidence", provided
that it can be certified.

REAL EVIDENCE
This is generally actual tangible materials involved in a case. For instance, the murder or assault weapon(s) at a
crime scene, or the vehicle used to carry out a drive-by or hits a pedestrian. Generally, the courts will make the real
& actual item used to commit the crime their first point of order. The "Locus In Quo", Latin for "The place in which",
is as well a kind of real evidence, like where a killing occurred.

Law of Evidence (BLAW410 & 420) lecture notes by Mr. Francis Gabbidon, ESQ. Typed &
Compiled by Muhammad Mansour Allie. Typos are inevitable. For further clarification on
anything contained herein, please consult the lecturer-in-charge.
 ADMISSIBLE HEARSAY EVIDENCE
The purpose for the inclusion of the word "admissible" is that it is a general rule that hearsay evidence is not
admissible. Hearsay encompasses statements made by a witness that are based on what someone else has told
them. Such statements are inadmissible if the object of the evidence is to prove the truth of what was said. It is not
hearsay and is admissible when the object of the evidence is to establish not the truth of the statement, but the fact
that the statement was made. See the AFRC case.

CIRCUMSTANTIAL EVIDENCE
This is generally indirect evidence. Simpliciter, this is evidence of the "most likely" variety and is evidence that
does not directly prove a fact in dispute, but allows the fact finder to draw a reasonable inference about the
existence or non-existence of a fact based on the evidence, especially in instances where it is the only evidential
variable. For instance, where a lady spends the night at her boyfriend's and she turns up dead in the morning, the
most outstanding variable that contributed to the circumstances is the boyfriend. There may be other variables to
surface within the duration of the investigation but as of the moment of discovery, the boyfriend is the prime
suspect.

Law of Evidence (BLAW410 & 420) lecture notes by Mr. Francis Gabbidon, ESQ. Typed &
Compiled by Muhammad Mansour Allie. Typos are inevitable. For further clarification on
anything contained herein, please consult the lecturer-in-charge.
 BURDEN & STANDARD OF
PROOF
BURDEN OF PROOF IN CRIMINAL CASES
The general rule is that in all criminal cases, the prosecution bears the burden of proof and that burden does not
shift. For instance, where one is charged by the state via the office of the Director of Public Prosecution, it is the
state that carries the burden to prove all the ingredients of the alleged offence. The accused, upon being taken to
court, does not have to prove anything, as they did not assert. In an event where not all elements of an offence can
be proven, the case will be dismissed and the accused will be discharged. There are two (2) reasons why the
prosecution carries the burden of proof:

The Latin maxim "ei incumbit probatio qui dicit, non qui negat", meaning the burden of proof lies on he who
asserts, not he who denies (i.e., he who asserts must prove). This was applied by Lords Wright, Porter &
Magnum in the House of Lords' decision in JOSEPH CONSTANTINE STEAMSHIP LINE V. IMPERIAL
SMELTING, CORPORATION [1942] AC 154. In the case of JOHN R. O. WRIGHT & ORS V THE
MANAGEMENT OF WEST AFRICAN LOGISTICS COMPANY (2019) SLHC 9, on page 11, Sengu Koroma J
(as he then was) stated that it is a principle of law that he who asserts must affirm.

The presumption of law that every man is innocent until proven guilty. In Sierra Leone, this is a
constitutional principle. Section 23(4) of the Sierra Leone Constitution (1991) provides thus:

"Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved, or
has pleaded guilty. Given that the prosecution has the burden to assert a claim against any individual, they
bear the presumption that they are innocent of the claim until proven of pled guilty".

Given that the prosecution has the burden to assert a claim against any individual, they bear the presumption that
they are innocent of the claim until proven or pled guilty.

The Locus Classicus precedent that established the principle that the prosecution bears the burden of proof in all
criminal cases is WOOLMINGTON V D. P. P. (1935) UKHL 1, where Lord Viscount Sankey made his well-known
"golden thread" speech:

"Throughout the web of the English Criminal Law, one golden thread is always to be seen; that it is the duty of
the prosecution to prove the prisoner's guilt subject to... the defence of insanity and subject also to any
statutory exception. If, at the end of and on the whole of the case, there is a reasonable doubt, created by the
evidence given by either the prosecution or the prisoner... the prosecution has not made out the case and the
prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the
prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to
whittle it down can be entertained."

Law of Evidence (BLAW410 & 420) lecture notes by Mr. Francis Gabbidon, ESQ. Typed &
Compiled by Muhammad Mansour Allie. Typos are inevitable. For further clarification on
anything contained herein, please consult the lecturer-in-charge.
Lord Bingham CJ (of blessed memory) stated in R V. BENTLEY (Deceased) [2001] 1 Cr App R 307 (CA) (at p.
326):

"The jury must be clearly and unambiguously instructed that the burden of proving the guilt of the accused
lies and lies only on the Crown (State), that (subject to exceptions not here relevant) there is no burden on the
accused to prove anything and that if, on reviewing all the evidence, the jury are unsure of or are left in any
reasonable doubt as to the guilt of the accused that doubt must be resolved in favour of the accused".

Generally, the accused in a criminal case does not have to prove anything but the prosecution must prove every
element of the alleged offence. This was applied in the Sierra Leone High Court in the case of S V ALIE KARGBO
(2021) SLHC 3. But this principle that the prosecution bears the burden of proof in criminal cases is a general one,
not absolute. This means, given its generality, there are a few exceptions to it, which are:

Common Law Defences

• Insanity
• Unfitness to Plead
• Diminished Responsibility
Expressed Statutory Exceptions
Implied Statutory Exceptions

COMMON LAW DEFENCE OF INSANITY

This defence is raised by an accused in an instance where he/she, at the material time of the alleged offence,
carried out the offence but with an unsound mind. This, unlike others, is a total defence (i.e., it absolves the accused
of any criminal liability whatsoever) but he/she will be placed in a mental institute or asylum. To succeed on a
defence of insanity, which results in the accused receiving a verdict of “not guilty by reason of insanity", the
accused must have been suffering from a disease of the mind at the time of the commission of the offence. It is for
the accused to raise the defence of insanity at trial and convince the court on a balance of probabilities that at the
time of the commission of the crime, he/she was suffering from a disease of the mind. Lord Denning in the case of
BRATTY v ATTORNEY GENERAL FOR NORTHERN IRELAND (1963) AC 386, at pages 410 & 412, stated: “any
mental disorder which has manifested itself in violence and is prone to recur is a disease of the mind”. Disease of the
mind is, basically, the malfunctioning of the mind over a period of time. In the case of R v KEMP (1957) 1 QB 399,
the court made it clear that the condition of the brain is irrelevant. The test is not necessarily whether there is
some damage to that physical entity but more widely whether the mental faculties of reason, understanding or
memory are impaired or absent. The burden of raising & proving this defence lies with the accused. The accused
must bring in a licensed psychiatrist to evaluate whether at the material time of the offence, the accused was in fact
insane. In other jurisdictions, a second opinion from another psychiatrist is sought for. This is not a defence that
can easily be raised; all the elements of the defence must be proven by the accused on a balance of probabilities, as
opposed to the higher threshold of proving beyond reasonable doubt. This was the position of the law in R V
SODEMAN (1936) 2 ALL ER 1138, where judges of the Court of Criminal Appeal of Victoria held same. This
exception draws legal efficacy from the presumption of law that everyone is presumed sane until otherwise proven
or admitted, which was the yardstick set out in the case of R v M’NAGHTEN (1843) UKHL J16, where Lord Tindal
CJ stated that "every man is presumed to be sane, and to possess a sufficient degree of reason to be responsible
for his crimes, until the contrary be proved to their satisfaction...".

Law of Evidence (BLAW410 & 420) lecture notes by Mr. Francis Gabbidon, ESQ. Typed &
Compiled by Muhammad Mansour Allie. Typos are inevitable. For further clarification on
anything contained herein, please consult the lecturer-in-charge.
UNFITNESS TO PLEAD
This essentially means that an accused does not understand the proceedings and thus, cannot make a plea as to
whether or not he/she may be guilty or innocent. This defence, like that of insanity, must as well be bolstered with
medical evidence to the effect. It is a temporary plea and where it is raised, the court will generally adjourn the
matter until such time as the accused comes back to his/her senses. The cases of R v PODOLA (1960) 1 QB 325 &
R v ROBERTSON (1968) applied Baron Alderson's 3-point test as to whether an accused was unfit to plead set out
in R v PRITCHARD (1836):

‘There are three points to be enquired into: - first, whether the prisoner is mute of malice or not; secondly,
whether he can plead to the indictment or not; thirdly, whether he is of sufficient intellect to comprehend the
course of the proceedings in the trial so as to make a proper defence – to know that he might challenge any of
you [the jury] to whom he may object – and to comprehend the details of the evidence, which in a case of this
nature must constitute a minute investigation".

In R v PODOLA (1960) 1 QB 325, a German national went to England & committed murder. At the proceedings, he
spoke the German dialect, claiming that he did not understand the proceedings; nonetheless, the jury found him fit
to plead and was found guilty of murder. In the case of R v FODAY SAYBANA SANKOH & ORS (2000) SLHC 1, the
first accused had stated that he did not understand the proceedings and was deemed unfit to plead. However, given
that it was a temporary plea, he was to return to the court when he was fit but he never did.

DIMINISHED RESPONSIBILITY
To suffer from an abnormality of the mind as to substantially impair his responsibility in committing or being a
party to an alleged violation is diminished responsibility, as captured in Section 2(1) of the Homicide Act (1957),
which was later repealed by Section 52 of the Coroner & Justice Act (2009), which changed, among other things,
the phrase " Abnormality of mind" to "Abnormality of mental functioning". The defence must prove:

That the defendant was suffering from an abnormality of mental functioning;

Arising from a recognised medical condition;
Which substantially impaired the defendant's ability to understand the nature of his conduct, for a rational
judgement or exercise self-control; and
Which provide an explanation for the defendant's act and omissions in doing all being party to the killing.

This generally occurs when a person experiences a concussion or a black-out. This does not in any way mean
insanity but the accused's mind was at the time disturbed. This was created in Section 2 of the Homicide Act
(1957), where subsection (2) of same states that it is the burden of the accused to prove that at the material time of
the offence, he/she was suffering from an abnormality of the mind. This act does not apply under the Sierra Leone
jurisdiction. In R V DUNBAR (1958) 1 QB 1, the court opined that the defence must prove all of the elements of
diminished responsibility on a balance of probabilities calling evidence from at least two medical experts. In R V
BYRNE (1960) 2 QB 396, the Court of Appeal allowed the appeal, and quashing the defendant's conviction for
murder and substituting one for manslaughter by diminished responsibility. Lord Parker CJ stated that
'abnormality of mind' means a state of mind so different from that of ordinary human being that the reasonable
man would term it abnormal. This defence is as well a temporary one where, like unfitness to plead, the accused
will be excused and returned at such time when the abnormality of mental functioning subsides. This only applies
to cases of murder (i.e., no other offence applied this defence, except to murder). Where diminished responsibility
succeeds, it serves only as a partial defence and merely reduces the murder charge to that of manslaughter and
where it fails, the charge of murder is upheld.
Law of Evidence (BLAW410 & 420) lecture notes by Mr. Francis Gabbidon, ESQ. Typed &
Compiled by Muhammad Mansour Allie. Typos are inevitable. For further clarification on
anything contained herein, please consult the lecturer-in-charge.
EXPRESSED STATUTORY EXCEPTIONS
This essentially means that there are acts of Parliament that state expressly that it is the accused person that
carries the burden of proof. For instance, selling hard liquor, sugar or petrol during the war period without a
license. They are called such exceptions because the Act makes provisions for the accused person(s) to establish
their Defences. In the following cases, one would expect that he who asserts must prove but the courts, given the
circumstances, took the view that it was for the person who was charged to prove the claim.

In R V EDWARDS (1975) 1 QB 27, Edwards was charged with selling intoxicating liquor without a justices'
license, contrary to section 160(1)(a) of the Licensing Act (1964). He, through his legal representation, claimed
that it was the prosecution that should prove that he had acted against the 1964 statute (i.e., had no license) but
the prosecution argued that it was Edwards who had to prove that he had the license. The court held that given the
expressed parameters of the statute, it was not for the prosecution to prove that Edwards had no license but for
Edwards to prove to the court that he had a license (i.e., a reverse burden) and was thusly convicted under the Act.
At the time under review, this case was heavily criticized but still remains the position of law in England. He
appealed his conviction on the same grounds but the court rejected his appeal & upheld the decision of the trial
court.

In R V HUNT (1987) AC 352, the defendant was charged under Section 5(2) of the Misuse of Drugs Act (1971) for
unlawful possession of drugs, which allowed for controlled drugs but only at a certain percentage (nothing more
than 0.2%). The question of law was as to what party had the onus of proving that the drugs in Hunt's possession
were more than 0.2%, as stated by the 1971 statute. At the trial, the defence submitted that there was no case to
answer because the prosecution had adduced no evidence as to the proportion of morphine in the powder, which
had been found in Hunt’s possession. The judge rejected the submission and convicted Hunt. He had argued that
the legal burden should have remained on the prosecution, and although the Court of Appeal had also dismissed
this, and thus convicting him, the House of Lords agreed with him, stating that a statute can place the burden of
proof on an accused or the prosecution either expressly or by implication (i.e., on its true construction). In other
words, the House of Lords held that it was the burden of the prosecution to prove that the drugs found in Hunt's
possession were more than 0.2%, thereby quashing the trial and first appeal judgments.

In R V OLIVER (1994) KB 68, Oliver was charged with selling sugar without a license. The court held that when an
Act of Parliament provides that a person shall not do a certain thing unless he has a licence, the onus is always on
the defendant to prove that he has a licence because it is a fact peculiarly within his (i.e., the defendant) own
knowledge.

In GATLAND V METROPOLITAN POLICE COMMISSIONER (1968) 2 QB 279, Gatland was charged pursuant to
Section 140(1) of the Highways Act (1959), for depositing filth on the highway without lawful authority or excuse.
Gatland, much like Edwards & Hunt, were of the position that it was for the prosecution to prove that he had no
lawful authority or excuse to throw dirt on the highway. The court held that the onus of proof that he had no lawful
excuse or authority to discharge filth on the highway lied with Gatland.

In NIMMO V ALEXANDER COWAN (1968) AC 107, the workplace was unsafe, which subsequently led to the
physical injury of Nimmo, who later brought a case against the parent company pursuant to Section 29(1) of the
Factories Act (1961), which imposes a duty on employers to maintain and keep safe a place of work at any time in
“so far as is reasonably practicable.” He took the case to court and argued that the burden of proving that it was not
reasonably practicable to make the working place safer lied with his employer. Accordingly, the Court held that the
onus of proving that it was not “reasonably practicable” maintain safety standards fell upon the employer. In this
case, it was not for the factory employee to show what reasonably practicable steps ought to have been taken, but
Law of Evidence (BLAW410 & 420) lecture notes by Mr. Francis Gabbidon, ESQ. Typed &
Compiled by Muhammad Mansour Allie. Typos are inevitable. For further clarification on
anything contained herein, please consult the lecturer-in-charge.
for the employer, cognisant of the measures, to show that there were no further reasonably practicable measures
to be taken.

Note: This is an exam area where examiners test to see whether students can easily decipher whether or not
pursuant to an express provision in an Act of Parliament, the burden of proof stays or shifts.

A few examples of Express Statutory Exceptions are:

Section 2 of the Prevention of Corruption Act (1916)

Section 2 of the Homicide Act (1957) (i.e., the act that created "Diminished Responsibility")
Section 1 of the Prevention of Crime Act (1963)
Section 4 of the Sexual Offences Act (1956)

THE EVIDENTIAL BURDEN

This means that in certain cases, the accused carries the burden to raise an issue. If he does so satisfactorily, the
matter ends with immediate effect. However, where he fails to do so, the prosecution can rebut. For instance,
where the accused is charged with an offence, he has the burden to raise a defence and in raising that defence, he
also has the onus of proving the elements of said defence. Simpliciter, where the accused claims to be insane,
he/she must show the court in fact that he/she is insane. In an event where he/she succeeds in proving the
defence, he will receive a judgment of "Not Guilty by reason of Insanity". An important thing to note is that this is
not to be mistaken as the burden of proof.

INTOXICATION
Another common defence raised is Intoxication. In KENNEDY V HM ADVOCATES (1994) JC 171, Kennedy claimed
that he was drunk and the court in response to this claim held that K had the evidential burden to prove that at the
material time of the offence, he was in fact intoxicated.

PROVOCATION
Also, Provocation is a common defence. This defence has the tendency to reduce a charge of murder to
manslaughter. In MANCINI V DPP (1942) AC 1, the appellant wounded the victim with a two-edged blade. As a
result, the victim died. The appellant sought to raise the defence of self-defence arguing that there was a fight in the
club whereby the victim attacked him. Therefore, he took out the blade from his pocket, did not aim it to anyone,
but in fact wounded the victim. He was at first instance convicted and the same was upheld in the Court of Appeal.
The House of Lords dismissed his appeal, considering the reasonable man's test in the defence of provocation to a
charge of murder:

“The test to be applied is that of the effect of the provocation on a reasonable man... so that an unusually
excitable or pugnacious individual is not entitled to rely on provocation which would not have led an ordinary
person to act as he did”

In other words, the House held that the correct test to be applied for the defence of provocation was an objective
reasonable man test. Their Lordships further held that where the counsel fails to point out the possibility of crime
reduction to manslaughter, the judge should still direct the jury to such possibility if the evidence given before the
jury is such as might satisfy them as the judges of fact that the elements were present which would reduce the
crime to manslaughter, or, at any rate, might induce a reasonable doubt whether this was, or was not, the case.

Law of Evidence (BLAW410 & 420) lecture notes by Mr. Francis Gabbidon, ESQ. Typed &
Compiled by Muhammad Mansour Allie. Typos are inevitable. For further clarification on
anything contained herein, please consult the lecturer-in-charge.
SELF DEFENCE
Another defence is Self-Defence. Much like the other defences aforementioned, where a defendant claims he acted
out of self-defence, it is on him/her to prove that they did, in fact, act in self-defence. In R v LOBELL (1957) 1 QB
547, the appellant, Harry Lazarus Lobell, was charged at Manchester Crown Court with wounding with intent to do
grievous bodily harm. There had been bad blood and enmity between the appellant, who was a wholesale butcher
and had a stall in a meat market, and the complainant, one Evans. There was evidence of threats which had been
uttered by Evans against the appellant; he had on a previous occasion, with a knife in his hand, said he would kill
Evans, who had retorted that if the appellant moved his arm, he would break it. On the day of the wounding alleged
in the indictment it was said that Evans approached the appellant uttering threats, that the latter then threw a
brick at Evans who, however, continued to advance towards him in a threatening manner, whereupon the
appellant picked up a knife, which he said he had brought for his protection, and stabbed him. He then drove off to
the police station and said that he had stabbed a man in self-defence. At the trial the sole defence set up by the
appellant was that in inflicting the wound he was acting in self-defence. Jones J., summing up, directed the jury, and
several times stressed, that it was for the defence to establish that plea to their satisfaction. The jury convicted the
appellant and he appealed on the grounds that the judge's direction that the burden of proving this defence was on
the accused was erroneous, and also that the judge did not direct the jury that the degree of proof required from
the defence was of a less degree than that required from the prosecution. The burden of proof is never placed upon
an accused person except in cases of insanity or where a statute expressly provides, and it was therefore a
misdirection to tell the jury that it was for the defence to establish to their satisfaction the plea of self-defence.
Where there is a plea of justification the onus is on the Crown throughout: CHAN KAU V. THE QUEEN (1955) AC
206.

DURESS
The next defence is Duress. For example, where a distressed wife holds a knife against her husband, threatening
him to leave the house or she would otherwise attack him, or where an armed robber puts a gun up against a bank
teller's head, demanding that he/she gives him some money or he would otherwise shoot, it amounts to sufficient
duress. If this defence is raised, the burden of proving the elements of duress will lie with the defendant raising the
defence.

NON-INSANE AUTOMATISM
This is hardly used in the Sierra Leone jurisdiction and is only considered for examination purposes. This means
the loss of self control, in some cases due one losing his/her mind (those amount to Insane Automatism). In
BRATTY V ATTORNEY GENERAL FOR NORTHERN IRELAND (1961) UKHL 3, the court held the accused to bear
the evidential burden on a defence of Non-Insane Automatism. The court decided that medical evidence is needed
to prove that the defendant was not aware of what they were doing, and if this is available, the burden of proof lies
with the party raising it to prove that intention was present.

ALIBI
This, simply put, is a claim or piece of evidence that one was elsewhere when an act, typically a criminal one, is
alleged to have taken place. For this defence, an accused must have claimed that he had nothing to do with the
commission of the offence and have a justification (s) to that effect. In most cases, the accused may claim that he
was, at the material time of the offence, not present or had anything to do with its commission and the burden of
proof rests on him to give justification as to his location at the commission of the offence. This was applied in R V

Law of Evidence (BLAW410 & 420) lecture notes by Mr. Francis Gabbidon, ESQ. Typed &
Compiled by Muhammad Mansour Allie. Typos are inevitable. For further clarification on
anything contained herein, please consult the lecturer-in-charge.
JOHNSON (1961) 3 ALL ER 969. The giving of a false alibi, beside resulting in possible subsequent criminal
offences (obstruction of justice, perjury, etc.), may, in some jurisdictions, result in negative ramifications for the
trial itself. But where this defence is successful, the accused will be duly acquitted & discharged. This is not a
defence, which can be raised abruptly; the accused must give notice of the alibi to the prosecution.

IRRESISTIBLE IMPULSE
In COM. v ROGERS (1844), Shaw CJ, stated one of the tests to determine the responsibility of the defendant:

"If then it is proved, to the satisfaction of the jury, that the mind of the accused was in a diseased and unsound
state, the question will be, whether the disease existed to so high a degree, that for the time being it
overwhelmed the reason, conscience and judgment, and whether the prisoner in committing the homicide,
acted from an irresistible and uncontrollable impulse: If so, then the act was not the act of a voluntary agent,
but the involuntary act of the body, without the concurrence of a mind directing it."

Simpliciter, this is basically an uncontrollable response, like kleptomaniacs (persons who cannot stop stealing) or
nymphomaniacs (women who cannot control their sexual urges). Such persons cannot control nor divert the urge
to steal or have sex at the slightest opportunity and where such a defence is raised, like all the others, it is the
responsibility of the accused to prove the elements of the defence.

All these common law defences aforementioned are proved on the lower standard of a balance of probabilities, as
opposed to beyond a reasonable doubt. In addition, the burden of proof lies on the party that raises these common
law defences.

STANDARD OF PROOF IN CRIMINAL CASES

This is to be distinguished from the burden of proof, as the standard of proof is the level any evidence submitted
must attain to be held as admissible. For instance, lawyers working at the Law Officer's Department in Sierra Leone
in charging a matter to court must prove that matter beyond reasonable doubt, which is the higher standard of the
two, which applies to all criminal cases and where there is any doubt, the matter is decided in favour of the accused
(WOOLMINGTON V D. P. P). The reason as to why this standard is high is because where someone is charged and
convicted in a criminal case, he/she might lose their liberty & end up in prison, or worse, face capital punishment.
In civil cases, however, the standard of proof is on a balance of probability (R V CARBRYANT), which is generally
considered the lower standard of the two. In MILLER V MINISTER OF PENSIONS (1947) 2 ALL ER 372, the
distinction was made between the higher and lower standards of proof by Lord Denning MR, where he stated that
speaking of the degree of cogency, which the evidence must reach in a criminal case, before the accused can be
convicted, that degree is well settled. It need not reach certainty but must carry a high degree of probability. Proof
beyond reasonable doubt does not mean proof beyond the shadow of a doubt. With regards to civil cases, he stated
that the degree was also well settled. It must carry a reasonable degree of probability, not so high as is required in
a criminal case. If the evidence is such that the tribunal can say that they think it is more probable than not, then
the burden is discharged.

NOTE: Pursuant to Section 1 of the Perjury Act (1911), which is applicable in the Sierra Leone Jurisdiction,
pursuant to Section 2 of Chapter 27 [Imperial Statute (Criminal Law) Adoption Ordinance], a witness who, having
taken an oath or made an affirmation, wilfully makes a statement material to the proceedings in question which he
knows to be false or does not believe to be true, commits perjury and may be prosecuted accordingly.

Law of Evidence (BLAW410 & 420) lecture notes by Mr. Francis Gabbidon, ESQ. Typed &
Compiled by Muhammad Mansour Allie. Typos are inevitable. For further clarification on
anything contained herein, please consult the lecturer-in-charge.
 CORROBORATION
The general rule is that in all criminal & civil cases, corroboration is not necessary because the evidence of just a
single witness will suffice in proving a case. However, the courts do allow corroboration to support the facts of the
case and that would generally mean another witness or a compliment. When a person other than the accused gives
evidence in a case, it is generally a testimony (i.e., what he/she knows about the case), but at other times comes as
a document of some sort. The Locus Classicus case of Corroboration is R v BASKERVILLE (1916) 2 KB 658, which
defines the concept sufficiently for all purposes & instances. Corroboration in this case was generally explained by
Lord Reading as follows:

“We hold that evidence in corroboration must be independent testimony, which affects the accused by
connecting or tending to connect him with the crime. In other words, it must be evidence, which implicates
him, that is, which confirms in some material particular not only to the evidence that the crime has been
committed, but also that the prisoner committed it.”

This definition of the concept can be dissected into three (3) segments, outlining the criteria a person
corroborating a case should meet:

Corroboration must be admissible;

Corroboration must be independent of the evidence; and
Corroboration must connect the accused with the crime.

It is a legal impossibility for one to corroborate himself/herself because it could be considered a complaint rather
than corroboration of that complaint due to the dependent or similar nature of the complaint. A story can only be
corroborated by a third party. That is why in sexual offences, where a girl tells her mother that she had been
sexually abused, she cannot corroborate her daughter’s story in court because if she attempts to do so, she will
only be restating for the court the account of her daughter. However, in an event where the mother actually
witnessed her daughter’s assault, she can corroborate because her account will not be dependent on whether or
not her daughter told her but by her own discovery. Other possible sources may include doctor’s medical
observations or any other third-party present at the time of commission of the offence. In other words, the source
of the testimony given by any third party must be independent of the original complaint and he/she must have
acquired it from some other means, like visual or auditory observations. In addition, independence is also where a
third party and the perpetrator had no communication whatsoever, as it may be prima facie seen as a ruse to
concoct a story in order to evade justice.

Again, to reiterate, it is a general rule of the law of evidence that corroboration must be independent evidence.
Given that it does not meet the threshold of an absolute rule in law, there are a few exceptions:

Corroboration required as a matter of law; and

Corroboration required as a matter of practice.

Law of Evidence (BLAW410 & 420) lecture notes by Mr. Francis Gabbidon, ESQ. Typed &
Compiled by Muhammad Mansour Allie. Typos are inevitable. For further clarification on
anything contained herein, please consult the lecturer-in-charge.
CORROBORATION REQUIRED AS A MATTER OF LAW
Under this ambit, the procedure is such that if one is charged to court for any of the following offences, and the jury
decide that the corroboration is invalid, the accused will be acquitted & discharged. In other words, corroboration
is mandatory.

Where someone is charged with treason, only corroboratory evidence required as a matter of law will be
allowed to convict him. Where such evidence cannot be attained or held to a standard fit to convict, the
accused will be entitled to a discharge & acquittal. In the 2020 treason trial of Paolo Conteh, a Sierra
Leonean national, where he was charged with, among many other things, treason for carrying a loaded
firearm into the Sierra Leone Parliament, pursuant to the Treason & State Offences Act (1963). He was
acquitted of all counts of treason due to lack of evidence and that no one could corroborate the accusations
of the prosecution. Simpliciter, where there is no corroboration, there has been no treason committed.

There must also be corroboration to successfully charge & convict someone of speeding. In other words, in
the absence of the testimony of a police officer present, radar gun or a speedometer, it is legally impossible
to charge someone with such a road traffic offence. In Sierra Leone, this offence creates a lot of adversity
for courts due to the lack of equipment to detect speeding, which was put out of use in Sierra Leone in a
case where it was proven that the speedometer was faulty.

Where someone is charged with perjury (i.e., where one swears to an oath or affirms, and gives false
testimony), the party cannot be convicted of the offence without valid corroboration. In the BASKERVILLE
case, Baskerville, in breaching the Perjury Act (1911) told a lie under oath, which meant that he did not
only perjure himself but he also provided independent evidence, which only corroborated the evidence of
his offence, thus proving that he was in fact driving while on the phone.

In affiliation matters (i.e., matters where a father, is taken to court to answer for refusing to financially
support his/her child, or “child support”), such a claim must as well be backed by independent evidence in
order to successfully corroborate the position of whether the child is the biological offspring of the parent.
The corroboratory evidence general in this case is a DNA/Paternity/Maternity test, or some bloodwork. In
Sierra Leone, it is used but mostly avoided because of the expenses it carries. Generally, the financial
burden in such proceedings go toward the male.

With regards to unsworn evidence of a young child, which is one of the classes of persons that can make an
affirmation rather than a sworn oath, there must be corroboration. The general circumstance where this is
prevalent is where a 5–6-year-old child is called to testify in a sexual offences matter. Where such a
testimony has been made, the corroboratory evidence will normally come in the form of medical
documentation & opinions from pathologists and gynaecologists. In Sierra Leone, there are “Rainbow
Centres”, which essentially are branches of an institution that deal with very young victims of sexual
assault/paedophilia by vividly examining them and presenting their finding to the courts.

Another class of offences that require corroboration as required as a matter of law is electoral offences.
Where one is charged with an election offence, like voting while impersonating another individual, such a
claim must be corroborated in order to secure a conviction.

In all of the above instances, where corroboration is required as a matter of law, this essentially means that the
accused will be discharged & acquainted of any of the offences if corroboration is non-existent.

Law of Evidence (BLAW410 & 420) lecture notes by Mr. Francis Gabbidon, ESQ. Typed &
Compiled by Muhammad Mansour Allie. Typos are inevitable. For further clarification on
anything contained herein, please consult the lecturer-in-charge.
FORMS OF CORROBORATION
In an event where a case of this nature arises in practice, it is advised to consider whether corroboration is existent
and what form it comes in. The various forms of corroboration are as follows:

Testimony from another individual

Document.
Bloodstains & DNA evidence.
Telling lies.

NOTE: It is rather important to note that in some cases, although not applicable in Sierra Leone, witnesses do not
have to give their personal information and just give evidence unanimously. This is important so as to protect the
identity of the witness to prevent him/her getting attacked/threatened.

CORROBORATION REQUIRED AS A MATTER OF PRACTICE

When corroboration is required as a matter of practice, there need not be corroboration but the judge has a duty of
warning the jury of the dangers of acting on uncorroborated evidence (i.e., what is important is the warning must
be given). This means that if the jury believes the evidence before them, they can go ahead and pass either a verdict
of conviction or acquittal, provided that the judge had provided them with a warning. There is no specific
formulation in which the warning must come in, other than the fact that it must be easily comprehendible to the
jury. It is for the jury to decide what weight/validity it wants to place on the evidence and what inferences it wants
to draw from it. Despite the warning given by the judge, the final say lies with the jury. If the warning is not given
by the judge, that could mean the end of the case and it could also be a ground for appeal and if the appeal
succeeds, the conviction will be quashed.

One of the first instances where corroboration is required as a matter of practice concerns the sworn
evidence of children. When children give sworn evidence in a criminal case, there must be corroboration as
a matter of practice. In this instance, it is necessary that a warning be given about the evidence that the
child is giving because of the age & vulnerability of that child. The judge must warn the jury of the evidence
given by the child and the danger of convicting any person charged in that case if there is no corroboration.
It is not of utmost importance for corroboration to exist but the warning from the judge must occur. For
instance, a judge may warn a jury present for the testimony of an 11-year-old boy, claiming to have been
raped by someone, to look past his complaint and see whether there is anything to corroborate his story.
This is because such young persons are prone to intimidation, threats and persuasion, which may lead
them to commit perjury. This is generally for children between 5 – 14 years old.

Another class of instances is sexual offences. Where one is charged with a sexual offence, and a child or
woman that is alleged to have been abused is called to testify, the jury must be warned by the judge of the
dangers of convicting the accused without any form of corroboratory evidence. The victims are entitled to
testify & make their stories known but it is still the duty of the judge to warn the jury of what to consider in
convicting such accused persons based on those stories, without any corroboration and further advice to
look beyond the stories and try to identify any corroboration.

There is also the set of accomplices (i.e., one who aids & abets the commission of an offence). When an
accomplice testifies for the prosecution against the accused, the judge must yet again warn the jury of the
dangers of convicting the accused without any corroboration. This is especially important because given
that the accomplice is a former partner of the accused, he/she may have their own purpose to serve. In

Law of Evidence (BLAW410 & 420) lecture notes by Mr. Francis Gabbidon, ESQ. Typed &
Compiled by Muhammad Mansour Allie. Typos are inevitable. For further clarification on
anything contained herein, please consult the lecturer-in-charge.
 DAVIES v DPP (1954) AC 378, the court gave three (3) instances of persons that can be accredited with
the name “accomplice”:

• Parties to the offence charged;

• Receivers as accomplices of the thieves from whom they received stolen goods; and
• Parties to other offences committed by the accused.

This only applies when an accomplice gives evidence for the prosecution & not for the defence. This was the
position of the law in R v PRAGER, R v BAGLEY & R v LOVERIGE. In these cases, the court will inform the jury as
to what evidence amounts to corroboration (i.e., all independent evidence, which does not come from the witness)
and once he has done that and has given sufficient warning, his role has thusly been completed; now leaving the
responsibility to the jury to convict or acquit. It is the independent evidence that amounts to corroboration, which
implicates the accused in the case.

TELLING LIES
Another form of corroboration is lies. This is when a person accused is testifying falsely, with lies. Moreover, when
that person testifies and tells lies, those lies can resolve against him in some form of corroboration. Therefore, the
question is, can a lie amount to corroboration? When a witness testifies in court and tells a lie, that lie can indeed
amount to corroboration, provided that certain conditions are satisfied. Those conditions were captured in the
case of R v LUCAS (1981) QB 720, where it was stated that four (4) conditions must be fulfilled before a
defendant’s lies can be seen as confirming or supporting the prosecution’s case:

The lie must be deliberate;

The lie must relate to a material issue;
The lie must be clearly shown to be such (i.e., a lie); and
The motive for the lie must be a realization of guilt and a fear for the truth.

MUTUAL CORROBORATION
If a child gives unsworn evidence, she cannot be corroborated by unsworn evidence. She can only be corroborated
by someone who gives sworn evidence. Therefore, there can be mutual corroboration, provided the unsworn
evidence is complemented/corroborated by sworn evidence. This was the position stated in DPP v HESTER
(1973) AC 295.

WOMEN THAT HAVE BEEN SEXUALLY ASSAULTED

If a woman/girl complains to the police that she has been sexually assaulted, can that complaint amount to
corroboration? Procedurally, this is one of the many crimes where corroboration is necessary for proving guilt. The
complaint by itself cannot amount to corroboration because it is not independent of what she has stated already.
Therefore, because it is not dependent, the court looks for something else to back up the complaint. In other words,
the evidence must emanate from a source other than the witness who is to be corroborated.

In R v WHITEHEAD (1929) 1 KB 99, a girl went & complained to the police that she had been sexually assaulted
by Whitehead. She even went as far as telling her mother of the assault, who accompanied her to the police station
to give a statement on what her daughter told her about her assault. The questions of law were whether that
complaint can amount to corroboration and whether the mother’s statement could as well amount to
corroboration. The court said no; they need independent evidence out of her & her mother’s complaint as without
it, the assaulted could only repeat her story to the police forty-five times; and duly informed the mother that they

Law of Evidence (BLAW410 & 420) lecture notes by Mr. Francis Gabbidon, ESQ. Typed &
Compiled by Muhammad Mansour Allie. Typos are inevitable. For further clarification on
anything contained herein, please consult the lecturer-in-charge.
could not accept her testimony as it was also not independent from what her daughter said. The court stated that
the mother’s statement will be admissible only to show consistency of the complaint but not so to corroborate and
the court, in this instance, will only allow independent evidence. There was no conviction.

In R v REDPATH (1962) 46 Cr App R 319, a little girl, who was seen going into a house by bystanders, was also
seen leaving the house roughed up and in a distressed manner. When she was leaving, she did not realize that
someone was watching her. When this matter went to court, the bystander was allowed to testify as to the girl’s
condition when she was leaving & his testimony was held admissible because it was independent of her distressed
condition as she did not know of the bystanders’ presence; and it was this testimony that led to the conviction of
Redpath. If it were only on the grounds of the distressed condition, Redpath would have been acquitted due to lack
of corroboration.

In R v CHAUHAN (1981) 73 Cr App R 232, which is somewhat synonymous to Redpath, a girl went into a house,
where she was sexually assaulted by Chauhan. While the assault was being carried out, in one room of the house,
another person in another room in the same house observed the girl flee that room in haste after being assaulted.
The question of law was where could corroboration possibly emanate from? The third party in the other room
testified against Chauhan, which the court held to be admissible on the merit of its independence of the little girl’s
claim.

In R v DOWLEY (1983) Crim LR 168, a man saw a woman leaving a house, walked a rather far distance (over a
mile), meaning that a reasonable period of time has elapsed but the court still allowed the independent party to
testify.

Law of Evidence (BLAW410 & 420) lecture notes by Mr. Francis Gabbidon, ESQ. Typed &
Compiled by Muhammad Mansour Allie. Typos are inevitable. For further clarification on
anything contained herein, please consult the lecturer-in-charge.
 COMPETENCE & COMPELLABILITY
All witnesses who are competent are also compellable but some witnesses are competent but not compellable. A
witness is competent if, as a matter of law, a court can receive his evidence. A witness is compellable if, as a matter
of law, his refusal to testify may give rise to contempt proceedings. But generally, all witnesses are competent &
compellable. However, some witnesses are competent but they are not compellable. For example, heads of
state/Sovereigns like the Queen of England, democratically-elected presidents like in the USA, Sierra Leone, among
many others. In addition, diplomats, like country representatives, High Commissioners, Ambassadors, are all
competent & not compellable. International Organizations, like UNDP or FAO, infants, mentally-handicapped
persons, bankers, judges all fall under the ambit of parties that are competent but not compellable. Those who are
competent and not compellable cannot be taken to court.

HEADS OF STATE / SOVEREIGNS

This class of persons are generally competent but not compellable, as they have what is referred to as "Sovereign
Immunity or Head-of-State Immunity". They cannot be subpoenaed, sued or taken to court and they are protected as
long as they have said immunity. They can, however, waive their immunity and thus, subject them to all the
requisites of trial. A classic example is the President, pursuant to Section 48(4) of the Sierra Leone Constitution.
This immunity is upheld until he/she leaves office as it is the fact that he/she is the head of state is what makes
them competent and not compellable. For example, Sierra Leone has a history of bringing actions against former
leaders like Charles Taylor & H. E. Ernest Bai Koroma. In each of their respective cases, they claimed that although
they were not in office anymore, they still carried presidential immunity. For Charles Taylor, the court asserted
that his immunity subsided upon his exit from presidency. These head of states can waive their immunity and go to
court. When the immunity is waived, heads of state are treated on the same standard at which any other witness
would be treated and give their evidence orally.

DIPLOMATS
This class of persons are in the same category as Heads of State (i.e., competent but not compellable). They have
what is referred to as “Diplomatic Immunity”. This encompasses diplomats working in & out of a given jurisdiction,
pursuant to Article 31 of the Vienna Convention on Diplomatic Relations (1961). For instance, where a U. S.
Diplomat kills someone on foreign soil, he/she cannot be prosecuted. However, like Sovereigns, they can as well
waive their immunity and challenge any claim brought against them. An important thing to note is that the waiving
of immunity for diplomats is not done by the diplomat but the government of the state that the diplomat is from
[Article 32 (a)]. For instance, the son of Late President Kenneth Kaunda of Zambia was charged and found guilty of
unlawful possession of drugs in the UK. Given the circumstances, he was considered a diplomat and the
government of Zambia waived immunity so he can face judgment in the UK for his crime. By effect, he was taken to
court, fined and sent back to Zambia. The government of that state can either waive the immunity on behalf of the
accused diplomat or exercise their power of deportation. The power of deportation is the process of the
government exercising "Persona Non-Gratta" (or plural "Personae non grata"), which is a Latin term for
"unwelcome person". This power, which every government has must not be used lightly as the improper use of this
power will likely sever a relationship with other states.

A case study on the competence and compellability of diplomats can be pinpointed to 2019, where Anne Sacoolas
collided with motorcyclist Harry Dunn while driving on the wrong side of the road in the UK. The 19-year-old was
taken to hospital and later died. Sacoolas returned to the US, claiming diplomatic immunity, and an extradition

Law of Evidence (BLAW410 & 420) lecture notes by Mr. Francis Gabbidon, ESQ. Typed &
Compiled by Muhammad Mansour Allie. Typos are inevitable. For further clarification on
anything contained herein, please consult the lecturer-in-charge.
request was blocked. But a US judge, TS Ellis, said that she must face the music, at least in US civil court. He ruled
that a lawsuit filed in the US state of Virginia by Dunn's family could go forward. They claimed wrongful death.
Judge Ellis said the family could also pursue a damage claim against Sacoolas' husband as she was driving his SUV
when the collision occurred. Sacoolas was charged in the UK with "causing death by dangerous driving", but has
remained on US soil. US State department officials said she had diplomatic immunity, a rule that dates back to the
1961 Vienna Convention on Diplomatic Relations, protecting diplomats while they are working abroad, which is a
convention of universal application & validity. It was a privilege she was granted as the wife of a US intelligence
officer, working in Britain for the US embassy. Notwithstanding, TS Ellis, on advising the Dunn family stated that
"Diplomatic immunity is not meant to shield our people from criminal or negligent activity. It is supposed to
protect our diplomats from a hostile foreign government."

BANKERS
Bankers are also competent but not compellable. In other words, where there is a case against a banker, he/she
cannot be compelled to testify in court. Section (6) of the Banker's Books Evidence Act (1879) requires for a court
order, where if an application for it is granted can sufficiently compel the banker to come to court and reveal his
books. The Act protects bankers and grants them immunity. In other words, where a banker must be brought to
court, an application must firstly be made under Section (6) of the statute to compel a banker to bring out his/her
ledgers to court. If accepted by the court, the banker becomes compellable but if declined, he remains
uncompellable. It is important to note that this applies to only claims made against the bank and not complaints
against the banker himself. An example of this falls under Civil Procedure, where two private parties have an issue
of non-payment, the aggrieved party can seek for a court order known as a third-party notice, compelling the bank
to make known to the court how much is in the bank account of the accused. The general rule is that bankers
cannot be compelled to testify in cases which they are not parties but they are competent but not compellable
when a bank is a party to an action. The section above provides that copies of entries of bankers' books are subject
to certain safeguards. They are admissible as evidence of their contents, which is to protect bank personnel from
the unnecessary inconvenience of either providing the originals or appearing as witnesses. A banker/official of a
bank shall not, in any legal proceedings to which the bank is not a party, be compellable to produce any bankers'
books, the contents of which can be proved under the Act, or to appear as a witness to prove the matters,
transactions and account, which are recorded, unless by order of a judge made for a special cause.

INFANTS/YOUNG PERSONS
This other general exception states that when a child/young person is about to testify, the court should find out
whether or not he/she understands the nature of an oath. This was adopted in R v BRASIER (1779) 168 E.R. 202.
If a child understands the nature of an oath, then generally, that child will be allowed to testify. If he/she does not
understand the nature of the oath, he/she will then not be sworn in but still be allowed to give what is referred to
as "unsworn evidence". This is essentially for young persons between 8-11 years of age. Where the child is a victim,
the court will accept unsworn evidence but the evidence will have to be corroborated. Even though the evidence is
unsworn, courts take them seriously because at the material time, it is the only way that they can give evidence,
especially victims of sexual crimes. There are times where the court will ask the child not only whether he/she
understands the nature of the oath but whether he/she understands the consequences of telling the truth, and this
is significant because if a child does not understand the consequences of telling the truth, he/she will not be
allowed to continue. It is rather important for infants to know the consequences of telling the truth because where
they lie, it leads to perjury. In recent times, there have been instances where young persons giving evidence have
been found to be credible and thus, admissible. In D. P. P. v HESTER (1973) AC 296, the accused had been charged
with three counts of indecent assault on a twelve-year-old girl, contrary to section 14 (1) of the Sexual Offences Act
Law of Evidence (BLAW410 & 420) lecture notes by Mr. Francis Gabbidon, ESQ. Typed &
Compiled by Muhammad Mansour Allie. Typos are inevitable. For further clarification on
anything contained herein, please consult the lecturer-in-charge.
(1956). At trial, the accused had been acquitted on the first two counts but convicted on the third count. The
evidence before the court on this third count consisted of the testimony of the complainant, who testified under
oath, and her younger sister, who was only nine years of age and gave unsworn testimony. The accused appealed
his conviction on the ground that the deputy chairman had misdirected the jury in instructing them that the
evidence of an unsworn child can in law amount to corroboration of evidence given on oath by another child. The
Law Lords unanimously agreed that the direction given by the deputy chairman was correct in law. Not only did
the Law Lords agree that the evidence of an unsworn child could corroborate the evidence given by another child
under oath, but they also concluded that the sworn evidence so corroborated could in law provide the
corroboration required by section 38(1) of the Children and Young Persons Act (1933), with respect to the
unsworn evidence of a child. In order to reach the latter conclusion, the House of Lords had to overrule the case of
R v MANSER (1934), 25 Cr. App. R. 18, which stated contrary to their decision and they found to be identical on
its facts to the case at bar, rather than a case involving the unsworn evidence of two children as the Court of Appeal
in Re Morris had assumed. It is because of their age and vulnerability that the court protects them while providing
evidence. Some of such persons out rightly give evidence while others use screens or video links to protect their
identity & ensure their safety. Despite all this, the courts would hold their evidence to be credible, provided that it
is corroborated by supporting evidence.

PERSONS WITH DEFECTIVE INTELLECT

The general rule is that people with intellectual defects (i.e., the blind, deaf, dumb and deformed) are not mentally
stable and thus, not allowed to testify because generally, they tend to not understand the nature of an oath, or
giving rational evidence. But there are exceptions to this rule. There are times when the court will examine these
persons to determine whether or not they will be able to testify, irrespective of the defect. For example, the courts
do allow for dumb persons to communicate through an expert in sign language. There are also translators,
interpreters, who must swear an oath or affirm as the court will rely on the translation. In R v HILL (1861) 2 Den
254, the witness was a crazy lunatic in an insane asylum and he suffered from delusions. He was taken to testify in
court and he claimed that he could communicate with spirits and other supernatural entities. A doctor was brought
to court to examine him, who concluded that although his delusions were real to him, he was still capable of giving
rational evidence. As a result, he was allowed to testify to the satisfaction of the court.

JUDGES
Generally, these are not competent to testify in criminal cases but there are instances where they can be held to be
competent to testify on cases, which they had presided over. This is, however, hardly the case within the Sierra
Leone jurisdiction. All parties (i.e., Judges, Clerks, Lawyers or witnesses) that partake in a trial have immunity and
cannot be sued for any words/conduct at trial, but this immunity expires where they step out of the courtroom &
say anything. With such an immunity comes immense responsibility (i.e., all parties to a trial must conduct
themselves in the most judicial, meritorious and equitable manner.

Law of Evidence (BLAW410 & 420) lecture notes by Mr. Francis Gabbidon, ESQ. Typed &
Compiled by Muhammad Mansour Allie. Typos are inevitable. For further clarification on
anything contained herein, please consult the lecturer-in-charge.
 IDENTIFICATION EVIDENCE
Generally, identification evidence is unreliable and risky because if there is an error in the identification, it can lead
to the wrong person being convicted, possibly imprisoned, or worse, executed. The reason as to why it is unreliable
is because of the risk involved and also, this form of evidence is not 100% conclusive and for most forms of
evidence, it must be “airtight or watertight” (i.e., irrefutable). Simpliciter, it is impossible to absolutely identify a
person as a perpetrator. However, this does not prohibit its use in courts. For many years in the USA, a number of
African-American suspects were generally convicted of offences for which they were wrongly identified and it was
only with the discovery of DNA evidence that some of them escaped the gallows. In addition, wrongful
identification of African-American suspects even led to them being wrongfully imprisoned and executed and
because of the unreliability of identification evidence, in England & Sierra Leone, certain guidelines were drawn up,
which courts must use when identification evidence is in issue, which became known as the TURNBULL
GUIDELINES, established in R v TURNBULL (1977) QB 224. These guidelines were drawn up because of the
number of cases in England, where there were miscarriages of justice, especially concerning members of the Irish
Republican Army (IRA). When members of the IRA were arrested in England, the British Police, in a rush to convict
them, altered some of their statements. Most of these cases concerning the IRA were based on wrongful
identification and when the Turnbull Guidelines came into play, courts in England and Sierra Leone are bound to
follow these guidelines whenever there are issues of identification evidence. One of the reasons generally given for
the abolition of the death penalty is that if the wrong person is mistakenly prosecuted and convicted, he/she can,
and most likely, will be executed. Generally, it is when there is a dispute with regards to consented identification
evidence that gives rise for the need of the courts to apply the Turnbull Guidelines.

THE TURNBULL GUIDELINES

In cases where identification evidence is greatly or substantially in issue, then the Turnbull Guidelines must be
followed and thus, will apply. In other words, if identification evidence is not greatly or substantially in issue, the
Turnbull Guidelines will not apply. In those cases, where the Turnbull Guidelines apply, failure to implement them
will lead to the overturning of an accused’s conviction. These guidelines do not apply in all cases of identification
evidence. Whenever there is an issue of identification evidence, the judge must warn the jury of the need for
caution, especially where the issue of identification is what the case is all about. If the visual identification is
straightforward and not in dispute, the Turnbull Guidelines do not apply. Therefore, these only apply when the
issue of visual identification is in dispute. For instance, mistaking one person for another. There have also been
cases where lies have been told with regards visual identification and as a result, many people have suffered
because of it. In Sierra Leone, the easiest way of giving identification evidence is via picking a suspect from a line-
up. In context, a few persons are lined up facing the victim, who is then instructed to carefully inspect and point out
the individual he/she believes committed the offence against him/her. In some of these cases, the possibility of a
mistake is prevalent. It is in these identification cases that the Turnbull Guidelines will apply (i.e., where a suspect
may deny the accusation or provide an alibi as to his absence claim). Whenever these kind of issues arise, the court
has to, using the Turnbull Guidelines, strictly warn the jury of the need for caution that even though witnesses will
come forward and testify that X or Y was the suspect who committed the offence, it is possible that they are
mistaken and that they must consider other evidences. In other words, the courts must warn the jury that despite
however truthful the claimant may sound, he may nonetheless be mistaken; hence, the unreliability of
identification evidence. This is the first ambit of the Turnbull Guidelines.

Law of Evidence (BLAW410 & 420) lecture notes by Mr. Francis Gabbidon, ESQ. Typed &
Compiled by Muhammad Mansour Allie. Typos are inevitable. For further clarification on
anything contained herein, please consult the lecturer-in-charge.
 The court has to strictly warn the jury of the need for caution. Procedurally, where the court fails to give
out a warning, which leads to the conviction of someone and he/she appeals the conviction, the court
appealed to will more than likely overturn the trial court’s decision as the Turnbull guidelines were not
met;

The court has to implore the jury to consider the circumstances under which the identification was made
(i.e., this involves asking questions like: Was there sufficient lighting at the time of the identification? Was
there bad weather? Was there traffic? Was he running or walking? Has the claimant ever seen or met the
accused before? Was the accused wearing dark or light clothing?) These circumstances must connect the
accused to the crime committed.

If the identification is good and the accused’s description is clear to the aggrieved, the case will then
proceed but if the identification is bad or faulty, the judge must withdraw the case from the jury, unless
there are other supporting circumstances. In context, where the identification undoubtedly matches the
accused, this means the identification is good and the case will proceed to trial but where the identification
does not greatly or substantially match the accused, the judge will not allow the case to proceed any
further so as to not convict the wrong person and will withdraw the case from the jury unless there are
other supporting circumstances. Therefore, even though the identification evidence is bad and the judge
has to withdraw the case from the jury, the prosecution will look for other supporting evidences, which can
take various forms, like the existence of DNA evidence, blood test, handwriting, footprints, CCTV footage or
other recorded video, dental structure & texture, another witness, etc. The supporting evidence found must
link the accused to the crime committed.

Law of Evidence (BLAW410 & 420) lecture notes by Mr. Francis Gabbidon, ESQ. Typed &
Compiled by Muhammad Mansour Allie. Typos are inevitable. For further clarification on
anything contained herein, please consult the lecturer-in-charge.
 TESTIMONY
THE THREE (3) STAGES OF A TRIAL
Every trial, whether in a criminal or civil action, has three (3) stages, which occur sequentially as outlined below:

1. Examination-In-Chief
2. Cross-Examination
3. Re-Examination

CRIMINAL ACTION

1. Examination-In-Chief
In a criminal trial, the first stage will be the commencement of the case, where the prosecution will start its case
with an opening speech/statement and outline his case to the judge & jury (or to the judge only in a judge-only
trial). Then, the prosecution will call its witnesses and examine them in chief. The prosecution can call a number of
witnesses as it wishes but it is not the number of witnesses that matter, as a fewer number of witnesses will suffice
in helping to prove the case. What truly matters is the probative value of the evidence given by the witnesses, and
also their credibility. In general circumstances, 4-5 witnesses will suffice in proving a case. In addition, the
prosecution cannot just ask any questions; they must be relevant. Likewise, witness claims and testimonies must
also be relevant. This, unlike the other stages, is mandatory. The prosecution must avoid asking leading questions,
which are queries with a desired answer, by either suggesting the answer or by substituting the words of the
questioning attorney for those of the witness, as they are not permitted. An example is: "Did you see Mr. Kamara
stab the victim?". In MOOR v MOOR [1954] 1 WLR 927, CA, the court held that evidence elicited by leading
questions is not inadmissible but the weight to be attached to it may be reduced. Although there are exceptions to
leading questions, the court or opposing counsel can allow you to ask leading questions. There are many different
ways in which one can give evidence under this stage:

❖ Testifying on the witness stand;

❖ Testifying behind a screened platform to protect the identity of the witness, just as it happens in terrorist
cases;
❖ Testifying via a video link, like Zoom, as occurs in many modernized jurisdictions.

Generally, all questions put to a witness must be answered by that witness and failure to do so will be considered
by the judge contempt of court. However, there are also times that witnesses are not legally obliged to answer
questions;

• For instance, where a lawyer is called on to testify, he/she has what is referred to as "Legal Profession
Privilege", which prevents them from answering certain questions, like those relating to past or present
clients. Lawyers testifying can refuse to answer questions where the answers will incriminate them or their
clients.
Law of Evidence (BLAW410 & 420) lecture notes by Mr. Francis Gabbidon, ESQ. Typed &
Compiled by Muhammad Mansour Allie. Typos are inevitable. For further clarification on
anything contained herein, please consult the lecturer-in-charge.
 • Persons in government, like ministers or civil servants can also refuse to testify in certain circumstances,
like on the grounds of "Public Interest Immunity", where answers given by officials in testimony will go
against the interest of the state. However, they cannot just use this immunity but the judge must agree with
their submission and grant it to them.

The answers given to counsel do not have to be lengthy and it must not be misunderstood that where one spends a
lot of time testifying, he/she is making a case. In other words, the length of submissions is not what is important,
but rather the quality and relevance of them, as it will be what will appeal to the judge in any given matter. This
stage is the same for criminal and civil matters.

Also, there are times where when witnesses testify, they tend to forget important information and may submit a
request to the court for permission to refresh his/her memory. For instance, where a Police Officer testifies &
cannot recall a locus or license plate number, he/she may ask the court for permission to go through his/her
police-issued notebook to refresh his/her memory; or where a quay administrator cannot recall a date or
shipment, the court can grant him/her permission to go through the logbook for a memory refresher. Even
something as simple as a person while giving oral evidence, forgets and subsequently requests the court's
permission to peruse through their diary, will generally be granted by the courts in order for him/her to refresh
their memory. Only the court has the authority to either grant or deny a request for memory refresher. Simply put,
there are certain conditions that must exist for one to be allowed to refresh his/her memory.

2. Cross-Examination
This second stage is for the lawyer on the other side (i.e., the accused) to now question the witnesses that had
earlier testified in chief. This is probably the most important part of a trial, as a good Cross Examiner can win his
case at this stage. Practically, the lawyer for the accused will cross examine (and where he succeeds, discredits) the
witnesses on the evidence they had provided in chief. An important thing to note that lawyers are not bound to
cross examine and must only do so when the witnesses have said something incriminating against your client. In
other words, Cross Examination is not mandatory, but discretionary. Where during the Examination-In-Chief,
nothing has been said to incriminate your client, there is truly no need to cross examine and it is highly advisable
to not speak and proceed with the trial.

3. Re-Examination
This, like Cross-Examination, is not mandatory but discretionary. It is only necessary if the prosecution must clarify
or further explain something that had been said by witnesses earlier under Examination-In-Chief or to restate a
very important missed fact. Where one re-examines when it is unnecessary, it will be equated to opening Pandora's
Box, where certain questions asked may generate many complicated problems for the court. Therefore, it must be
avoided and only taken when absolutely necessary.

TYPES OF WITNESSES
Generally, there are three (3) kinds of witnesses:

Plain Witnesses, who are those that provide answers, which are sufficiently admissible to the case in
question, without any issues; thus, coming up to proof.

Law of Evidence (BLAW410 & 420) lecture notes by Mr. Francis Gabbidon, ESQ. Typed &
Compiled by Muhammad Mansour Allie. Typos are inevitable. For further clarification on
anything contained herein, please consult the lecturer-in-charge.
 Adverse/Unfavourable Witnesses, who are those that provide answers that are not befitting to counsel's
case; thus, failing to come up to proof. Simpliciter, these are witnesses who testify but not up to the
standard of proving a case. These witnesses fail to tell the court what counsel wants them to say mostly due
to either fear or forgetfulness. An example could be seen in the ICC case of THE PROSECUTOR v. UHURU
MUIGAI KENYATTA (2015), witnesses had been briefed on their respective testimonies but due to threats
levied against them, upon reaching the Netherlands, they withdrew their statements and as a result, the
case against Uhuru Kenyatta was withdrawn by the prosecution. In an instance where there is such a
witness, counsel must try to jog their memory so as to steer them onto the path that they can remember
what to say. However, where counsel fails to bring them up to proof, he/she needs not continue to push the
witness into a tight corner, allow them to step down from the witness box and move on to the next witness.

Hostile Witnesses, who are those that outrightly refuse to speak the truth and turn against the case. This is
considered the most dangerous kind of witness. Many a time, these witnesses tend to be instrumental to
the case, who later become hostile & turn against you for a bribe or any unexplained reasons. These
witnesses are always described as persons having animus (i.e., envy, which is total hostility). Where one
has witnesses who have decided to turn against him/her, because witnesses cannot be impeached, certain
endeavours must be taken by counsel, like:

• Show or take the witness back to what he/she said before or in his/her statement in court, after which;
• Ask the witness whether he/she still stands by that statement, so as to see whether it was forgetfulness,
fear or just pure stubbornness;
• Once stubbornness from the witness has been detected, counsel can now make an application to the
judge for him/her to be treated as a hostile witness.

It must be noted that the judge must grant applying counsel leave and decide whether the witness in question is
hostile and has turned against counsel or not. In other words, until the application is granted by the judge, counsel
is not allowed to treat the witness as hostile. In an event where the judge grants the application, counsel now has
certain things he/she can do to a former witness:

• Counsel can ask the hostile witness leading questions;

• Counsel can ask the hostile witness whether he/she had made a prior statement;
• Counsel can ask the hostile witness whether what he is currently saying is the same with his previous
statement;

If said witness continues with his stubbornness, counsel must tell the judge that he/she wants to tender the hostile
witness' previous statement for the court to see. Counsel can also instruct the hostile witness to read a part or all of
his previous statement for the court and ask him whether the statement he/she is reading is the same with his
previous statement. The purpose of all this is to totally discredit the witness so that the court would not consider
the his/her evidence given to be admissible or reliable, given that most of them are turncoats.

There are also illiterate witnesses, which is very common in Sierra Leone, as many of the locals can only speak
their local languages. As a result, many Sierra Leoneans intending to testify need a translator/interpreter fluent in
those languages, because pursuant to Section 78 of the Courts Act (1965), the language of the Sierra Leone
courts is English. In other words, where there is a witness who speaks any language other than English, he/she
needs an interpreter in order to give evidence in court. This also applies to witnesses outside of Sierra Leone who
cannot speak English, like the Turkish, Lebanese or Spanish. In those circumstances, one can apply to the Ministry
of Foreign Affairs for an interpreter who is fluent in his/her dialect.

Law of Evidence (BLAW410 & 420) lecture notes by Mr. Francis Gabbidon, ESQ. Typed &
Compiled by Muhammad Mansour Allie. Typos are inevitable. For further clarification on
anything contained herein, please consult the lecturer-in-charge.
REFRESHING MEMORY
Generally, it is a random occurrence where witnesses have a mental block as to the facts of a matter that they need
a refresher for the case to proceed. There are two (2) ways in which witnesses can refresh their memory:

1. Outside of Court
2. Inside the Court

Generally, a witness refreshing memory out of court (i.e., counsel prepping the witness through what he/she is to
testify on) is permissible as it does not bear anything in the case. However, a witness refreshing memory inside the
court is important. When one is called as a witness to testify in court, the first step is for him/her to take an
oath/affirmation and no witness will be allowed to testify until this first step is taken. Upon the witness taking the
oath, the testimony commences, as the lawyer then starts to ask him/her questions for the witness to start giving
evidence (in English). Where the witness gives evidence in a language other than English, an interpreter must be
provided by the court and where the witness is a national in another state (i.e., a foreigner), like a Vietnamese or a
Mexican, a translator must be brought in. Once the testimony has commenced, it must be freeflowing so that
everyone present in the court can understand what the witness is saying. If a witness gets to a point where he/she
cannot continue because he/she has forgotten and cannot remember or is confused about what he/she has to say,
the witness can tell counsel that he/she wishes to refresh their memory, to which effect counsel will make an
application to the court requesting for permission for the witness to refresh his/her memory. Normally, this will
prompt the judge to ask the reason why the witness is keen on refreshing his/her memory, to which counsel may
respond that it is because the witness has forgotten certain important facts and that it is to avoid the witness
misleading the court that he/she makes this application to refresh the witness' memory. The judge, upon hearing
the application, may either accept or reject based on the reseans presented by counsel. In an event where the judge
accepts the application for the witness to refresh his/her memory, there are certain mandatory criteria that have
to be fulfilled:

1. The witness must use a document to refresh his/her memory. For instance, a police officer may use his
police-issued notebook (which is given to them to write down everything from crime scene details to clues)
to find a license plate number taken at the locus of an accident, a quay administrative officer may use the
logbook he audits to find out times of shipments, or even a regular person can use his/her diary. The
document or information contained in the document to be used by the witness to refresh his/her memory
must have been made contemporaneously (i.e., substantially at the material time) of the event with which
the witness is talking about.
2. The witness in question must have made the document. In other words, he/she must have been the author
or at times, the verifier of the document, which had been created by another person.
3. The document to be used in refreshing memory must be produced to the court so that the court and
opposing counsel can see it. Many times, the witness may fabricate words and say what is not contained in
the document, which is why it is rather important for all parties to a trial to have the document.
4. The document produced to be used in refreshing memory must be the original copy. The court will not in
normal circumstances permit a copy of the original document.

By effect, it is only when all these four (4) criteria are complied with that the judge will allow witnesses the slight
advantage of refreshing their memories; for failure to comply to even one (1) of these criteria will lead to
immediate rejection by the court.

Law of Evidence (BLAW410 & 420) lecture notes by Mr. Francis Gabbidon, ESQ. Typed &
Compiled by Muhammad Mansour Allie. Typos are inevitable. For further clarification on
anything contained herein, please consult the lecturer-in-charge.
THE DOCUMENT MUST HAVE BEEN MADE CONTEMPORANEOUSLY
The meaning of what occurs "contemporaneously" is a question of fact, not of law. For instance, in BURROUGH v.
MARTIN (1809) 2 Camp 112, a captain of a ship was allowed to refresh his memory from the ship's logbook,
which was compiled soon after the events in question. In AG'S REFERENCE (NO. 3) (1979) 69 Cr App R 411, a
police officer was allowed to refresh his memory from notes he had compiled at a time when the facts were still
fresh in his memory.

AUTHORSHIP OF THE DOCUMENT

In BURROUGH v. MARTIN (1809) 2 Camp 112, the document was not, in fact, made by the witness but he
supervised & verified it.

THE DOCUMENT SHOULD BE PRODUCED TO THE COURT

The court will not allow a witness to refresh his memory unless the witness produce the document to the court for
the court & opposing counsel to see. The court will ask the witness to produce the document so it can view it and
have it shown to opposing counsel, in case they may want to cross examine from the document. If this criteria is
not complied with, the court might not demand the fourth (4th) criteria (i.e., the production of the original
document).

THE DOCUMENT TO BE PRODUCED TO THE COURT MUST BE

THE ORIGINAL
Copies of the original document will not be allowed. In MAUGHAM v. HUBBARD (1828) 8 B&C 14, a witness was
called to prove the receipt of money because he was unable to recollect that fact when he was testifying. He said
that he had no doubt that he received the money and even stated the amount that he received. He was told that this
could be sufficient for the court if he could produce the original receipt, even though the document was not
stamped.

CROSS EXAMINATION
This is the second stage of a criminal trial. This is generally done at the end of the Examination-In-Chief. That is,
when the Prosecution (in a criminal trial) or Plaintiff (in a civil case) allows the defence to take over and be heard
by cross-examining the witnesses that had earlier testified. However, it is worthy to note that this stage is not
mandatory because the witnesses might not have said anything incriminating about counsel's client; it only applies
where the witnesses have said something incriminating against counsel's client. This is a very powerful weapon as
it can make or break any case. The case of the defence can be made by discrediting all witnesses and broken by
asking any unnecessary questions. Before any cross-examination, the cross examiner must have a fair idea as to the
questions he intends to ask the witnesses and the possible answers they could give in response. It is through this
that the case can turn to opposing counsel's favour or sideways. For most of the cross-examination, it is advisable
for the cross examiner to remain silent and limit the number of questions asked.

In a good cross-examination, it is possible for opposing counsel to discredit the case of the prosecution and bolster
his case in order for the judge to have a general feel of what the case is all about. Cross-examiners can ask leading

Law of Evidence (BLAW410 & 420) lecture notes by Mr. Francis Gabbidon, ESQ. Typed &
Compiled by Muhammad Mansour Allie. Typos are inevitable. For further clarification on
anything contained herein, please consult the lecturer-in-charge.
questions (i.e., there is much more latitude as to the kind of questions one can ask) but any question asked must be
relevant and admissible. In addition, cross-examiners must not abuse their position and badger witnesses into
submission; rather they must be courteous, good-mannered & polite to witnesses. There is a code of ethics that
lawyers must conform to in any cross-examination, like cross-examiners must not ask questions to which there are
no answers. Also, where young persons are cross-examined, extra caution must be exercised as children are
vulnerable and courts are more likely to extend sympathy to the children. It is this code that distinguishes a good
lawyer from a terrible one.

During cross examination, opposing counsel must watch and observe everything the witnesses say because many a
time, what they are saying at the moment during cross examination may not correspond/dovetail with what had
been previously stated. Where there is a record of a witness' previous statement, counsel must ask whether his
current statement differs from what he had stated prior. In an event where the witness denies ot lies about this
assertion, counsel can submit it as evidence against them so the court can see the inconsistencies in the two (2)
statements. Where counsel fails to cross-examine a witness on matters pivotal to the case in court, the judge will
take it that counsel has accepted all that had been said about his client. Cross-examination has many purposes:

1. To pose questions to support your own case.

2. To discredit the prosecution's witnesses
3. To completely obliterate the prosecution's case, draining it of its legal validity and rendering it moot.

Cross Examination comes in two (2) types:

Cross-examination to the issue: If a lawyer asks a witness questions concerning issues in the case, to
which the witness gives an answer unsatisfactory to counsel, he/she can ask further questions (i.e., the
responses given by the witness are not final). This is occurrent in most cases and this is an array of
questions that affect the case and where a question of this nature has been asked & answered multiple
times, the cross-examiner must move on to the next question.
Cross-examination to credit: If a lawyer asks a witness a question, the response given by that witness is
generally final and require no further questions, even where the answers given were unsatisfactory. There
are, however, a few exceptions:

PREVIOUSLY INCONSISTENT STATEMENTS

If a witness denies that a statement made prior is inconsistent with testimony, that statement must be called into
evidence to prove that what he is saying now is different from what he had stated in the past.

BIAS OR PARTIALITY
Generally, lawyers can ask witnesses whether they are bias or impartial and if counsel has evidence to show that
the witness is in fact bias, counsel must bring it to the knowledge of the court. In the case of THOMAS v. DAVID
(1836), the plaintiff called upon a witness to testify on his behalf. She was the girlfriend of the plaintiff and was
asked several questions about their relationship, including whether she was his mistress, which she outrightly
denied. The prosecution was allowed by the court to call on witnesses to validate that such a relationship did, in
fact, exist between the plaintiff and the witness. In DUNN v. ASLET (1838), the witness was asked whether he had
recently quarrelled with the other parties to the action. He outrightly denied and other witnesses were called to
prove whether a quarrel did, in fact, ensue.

Law of Evidence (BLAW410 & 420) lecture notes by Mr. Francis Gabbidon, ESQ. Typed &
Compiled by Muhammad Mansour Allie. Typos are inevitable. For further clarification on
anything contained herein, please consult the lecturer-in-charge.
A WILLINGNESS/REPUTATION TO TELL THE TRUTH
If a witness, who is notorious/well-known for lying, comes to testify, the lawyer can put him/her to the court that
he/she must not be believed; that he/she is incapable of telling the truth.

PHYSICAL/MENTAL CONDITION OF THE WITNESS

The physical and mental condition of any witness is important. In TOOHEY v. METROPOLITAN POLICE
COMMISSIONER (1965), the accused was charged with assaulting a boy of 16, with intent to rob him. The boy said
that the accused had demanded some money & cigarettes from him. The boy was then taken to an alley and
assaulted. The accused denied the assertions of the boy, stating that at the time, the boy was in a terrible state (i.e.,
a state of hysteria or drunkenness) and had only wanted to help him.

RE-EXAMINATION
This is the last stage of any trial, be it criminal or civil. It is as well not mandatory but discretionary. In other words,
the prosecution is not bound to re-examine any witness. However, where certain elements of the case need to be
illuminated on, like a witness' earlier statement, the court can allow this stage. The reason why it is not mandatory
is because the judge, at this point, would have seen the case and understood all its facts & requisites. Thus, where
the prosecution carries on with a re-examination, there is always the danger that something immaterial to the case
can surface, which can diminish the standard of the prosecution's case. Nonetheless, where something, which had
been said earlier in the trial by a witness, needs to be clarified, the court will allow the prosecution to re-examine
that witness. One important thing to note is that where there has been no cross-examination, there can be no re-
examination; that is, they both operate simultaneously. At times, a judge/magistrate may ask the witness to clarify
a few things so as to aid his understanding of the facts of the matter.

RECALLING OF WITNESSES
Generally, the courts do not allow a witness to be recalled after they have testified. However, there are times when
counsel will be allowed by the court to recall a witness, like where the lawyer forgot to address a rather significant
matter or where some unforeseen contingency occurred. Also, there are instances where cases have been closed
and counsel applies to give rebuttal evidence against certain things, which had been said. Nonetheless, a witness
cannot be recalled until the judge grants counsel leave to do so. In other words, it is only when the court grants
counsel leave to recall the witness that he may do so, but the evidence used in rebuttal must be material to the
case. This is important as counsel must always takes this action sparingly.

In addition, there may be instances where counsel forgets to obtain a fiat or leave (i.e., a document signed by the
Attorney-General & Minister of Justice or the Director of Public Prosecution, granting permission to a lawyer to
prosecute a case), from the Attorney-General & Minister of Justice to prosecute a case. There are certain offences,
like those of corruption, sedition, treason, that cannot be prosecuted without the fiat from the Attorney-General &
Minister of Justice or the consent of the Director of Public Prosecution. Nonetheless, it is very important for counsel
handling matters of this nature to obtain the fiat because it goes to jurisdiction. Where counsel does not have the
fiat and the case is closed, a no-case submission will be tendered, rendering the matter null & void, as the fiat had
not been tendered in court. In the unreported Sierra Leone cases of treason of DAVID LANSANA & ELEVEN
OTHERS v. REGINAM and JUXON SMITH v. R, the matters turned due to the fact that they were prosecuted

Law of Evidence (BLAW410 & 420) lecture notes by Mr. Francis Gabbidon, ESQ. Typed &
Compiled by Muhammad Mansour Allie. Typos are inevitable. For further clarification on
anything contained herein, please consult the lecturer-in-charge.
without the necessary fiat/consent. In an event where a lawyer forgets to tender the fiat, the court can allow him to
submit the fiat, which also means recalling witnesses to verify their earlier statements.

Furthermore, it is also possible for judges to recall witnesses, who are mostly important witnesses, at their
discretion in a criminal trial (but not so much in civil cases). Where the judge wants to recall a witness in a civil
case, he requires the consent of both parties to the trial, but this does not apply to criminal trials, which do not
require consent and are strictly done by the judge at his discretion. In an event where the case has been closed and
the judge has summed up, he/she still carries the power to recall a witness but it is rarely the case for the judge to
do so. This happens sparingly (i.e., not so very often)

PROTECTION OF WITNESSES
Where a person is charged to court, counsel can proffer the following courses of action, only one of which he/she is
to take:

1. Rely on the statement he/she made a statement to the police. Procedurally, every person charged for a
crime is processed at the police station, where he/she will give a statement to an office on duty.
2. He/She can make an unsworn statement from the dock (i.e., a statement made not under oath). Generally,
because this is unsworn, he/she will not be cross-examined.
3. He/She can go to the witness box, swear to an oath or make an affirmation and testify.

The question of the protection of an accused comes up if/when he/she goes into the witness box to testify. In other
words, where a witness decides to give evidence in court, the court shall grant him/her certain protections, which
are captured under Section 1(f) of the Criminal Evidence Act (1898), which states that the court will provide a
shield for an accused against cross-examination to credit. It is rather important to note that only one (1) course of
action must be taken (i.e., the witness cannot have two bites at the cherry).

When the accused goes into the witness box to testify, certain questions will be put to him/her. Generally, the
accused is bound to answer all questions and where he refuses to do so, he/she will be held in contempt of court.
However, there are occasions where witnesses can refuse to answer certain questions. Section 1(f) of the
Criminal Evidence Act (1898) gives the accused person in the witness box certain protection (i.e., forming the
shield) from answering certain questions from the other side, which might incriminate him. If the person in the
witness box is one that had been previously convicted of an offence or had been in any kind of trouble before, he
must not be asked questions relating to that and can refuse to give a response. This is because notice to the court of
his prior conviction will normally tend to influence the jury to pass a guilty verdict, already labelling him a criminal
(i.e., having the conceived mindset that once a criminal, always a criminal). The accused, while being protected by
the court, can also throw away the shield's protection, which then encourages the prosecution to ask all sorts of
questions like it is open season, if:

1. He/She testifies to the court that he/she is of good character;

2. He/She casts aspersions on the prosecution's witnesses (i.e., attempt to discredit the prosecution’s
witnesses by calling them liars & thieves); and
3. He/She must not cast aspersions against a deceased witness.

Lawyers are generally reluctant to put their accused persons in to the witness box because once that witness does,
he/she will be cross examined. It is highly unadvisable to counsel to put his/her witness/accused person up for
testimony or cross examination when he/she is unsure of them; rather, counsel must just rely on the statement
given by that witness to the police. Most lawyers do put up their accused person to testify while being unsure
Law of Evidence (BLAW410 & 420) lecture notes by Mr. Francis Gabbidon, ESQ. Typed &
Compiled by Muhammad Mansour Allie. Typos are inevitable. For further clarification on
anything contained herein, please consult the lecturer-in-charge.
about their innocence in the case. Judges will make nary a comment that an accused person did not testify, as
where judges make such a statement will be tantamount to a miscarriage of justice.

When an accused person goes into the witness box, he/she is protected by law. The law has to protect him/her
because people might think that if he/she is does not go to the witness box, he/she may be presumed not to have
gone there because he/she is guilty. The fact that an accused person does not go to the witness box does not infer
that he/she is guilty. An accused person going into the witness box is also protected from specific questions. In
other words, lawyers will be prohibited from asking witnesses questions that will incriminate him/her or if he/she
carries a privilege or immunity from answering questions, like government officials, civil servants.

PROTECTION AGAINST SELF-INCRIMINATION

In BLUNT v PARK LANE HOTEL (1942), it was stated that it is a fundamental principle of the English Criminal
Law that a witness is not bound to answer any question that will incriminate him/her or his/her spouse. The
privilege belongs to the witness and he/she is the only party that can claim it. But there are times where judges will
tell the witness not to answer a particular question. If such questions are asked and a witness does not claim this
protection or the judge does not does not tell him/her not to answer the question, any response given by that
witness will be held as admissible. The privilege does not belong to a witness' lawyer as it is his/her role to
knowingly guide the accused. It also applies only in criminal proceedings; it does not apply to civil proceedings. But
the general rule still remains, that any question asked by counsel to a witness in a witness box in any court of
jurisdiction must be answered by that witness; for failure to do so will be tantamount to contempt of court,
consequences of which are generally fining, imprisonment or both. The case of AT&T ISTEL v TULLY (1992)
decided that a person could not rely on that privilege against self-discrimination.

Law of Evidence (BLAW410 & 420) lecture notes by Mr. Francis Gabbidon, ESQ. Typed &
Compiled by Muhammad Mansour Allie. Typos are inevitable. For further clarification on
anything contained herein, please consult the lecturer-in-charge.
 OPINION EVIDENCE
The general rule is that opinion evidence is irrelevant and inadmissible. This is because a court of law is only
interested in the facts of the case and not the opinion of witnesses. In addition, if courts allow witnesses to state
their opinions, they will be usurping the functions of the court. This is, however, only a general rule, not an
absolute rule, meaning there are exceptions, which are twofold:

The Opinion of Experts

The Opinion of Non-Experts

When witnesses are called to testify in a case, they should speak only as to what they know/saw about the matter
(i.e., something within their personal knowledge); otherwise, witnesses would be usurping the functions of the
court. In addition, they will not be permitted to give any hearsay evidence.

OPINION OF EXPERTS
Matters of engineering, medicine, ballistics, mental conditions of witnesses/accused persons (like insanity) can
entertain the opinion of experts. In such matters, expert opinion is allowed. Professionals like pathologists,
psychologists and psychiatrists will be allowed by the courts to testify because their expertise is beyond the
knowledge and competence of the courts in order to illuminate the matter at hand. Normally, such parties are
permitted to testify and give their expert opinions but in a matter that can be settled by judge and jury alone,
expert witnesses will not be allowed as they are not necessarily required.

In R v CHARD (1972), Chard was charged with the offence of murder and he wanted to call a prison doctor to
testify on his behalf, that at the time of the commission of the murder, Chard lacked the requisite mens rea (i.e.,
intention to commit murder). This was refused by the court as the judge opined that in deciding whether Chard
had mens rea to commit murder, the opinion of an expert is unnecessary as it is well within the knowledge and
competence of the court to determine mens rea. As a result, the court refused expert testimony.

In R v JEFFRIES (1997), Jeffries was charged and prosecuted with unlawful possession of drugs, with intent to sell,
supply and distribute. When this matter went to court, the detective constable of the matter stated that upon
searching Jeffries’ premises, he discovered a list of flats from where he thought the drugs were being sold and the
detective constable gave his evidence but the court held that it should not be allowed as his evidence sounded
opinionated. Thus, the court disallowed the evidence of the detective constable, stating that it was not the function
of the witness to express his/her opinion on the issue of the list of flats found.

In R v ANDERSON (1972), Anderson was charged with obscenity (i.e., the voluntary exposing of one’s private
parts), otherwise referred to as “Indecent Exposure” and the test for obscenity that the court was guided by is
whether the material in issue would deprave/corrupt individuals by that act. This issue was determined by the
court by allowing an expert witness to testify as to whether the act of obscenity would deprave/corrupt any
reasonable person, which fell well beyond their knowledge and competence. As a result, a psychiatrist was
consulted.

Law of Evidence (BLAW410 & 420) lecture notes by Mr. Francis Gabbidon, ESQ. Typed &
Compiled by Muhammad Mansour Allie. Typos are inevitable. For further clarification on
anything contained herein, please consult the lecturer-in-charge.
In R v SILCOTT (1991), Silcott was charged with murder. It was alleged that he killed a policeman, who went to
the scene of a riot and an issue arose in this case as to the ability of a witness to speak to the truth. The defence
wanted to consult a doctor, specifically the services of a psychiatrist to testify to the court as to whether the
witness in giving his testimony, was lying or not. The court refused to accept the expert as the judge and jury were
in a sufficient position to determine truths and lies, thus eliminating the need for an expert.

In FOLKES v CHADD (1782), they were dredging a harbour and the question at issue was whether they required
an expert to determine whether the harbour required necessary dredging. The court affirmed that an expert’s
opinion was required as the question fell beyond the knowledge and competence of the court.

WHO IS AN EXPERT?
An expert is a person fit to testify in a court of law because of his qualification, competence and experience. In
certain circumstances, a person that has no formal qualifications can testify as an expert. For example, in R v
SILVERLOCK (1894), Silverlock was a solicitor, who studied handwriting as a hobby and he was allowed to testify
as an expert in handwriting. Also, in R v OAKLEY (1979), Oakley was a police officer, who was attached to the
traffic section in London and made a study on road accidents. He was allowed to testify as an expert on the causes
of road accidents. In addition, if a case/question of foreign law arises (i.e., positions of law in Guinea, Senegal,
Liberia or otherwise as the case may be), the courts would need an expert to testify on the laws of the state in
question. But in other cases, concerning offences like murder, manslaughter or unlawful killing, the court will
require the opinion of a medical expert to prove the cause of death. This is so because in a case of murder, a
pathologist will be required. In R v CHARD (1972), Chard was charged with murder and he wanted to call on an
expert to assist him. Chard was not insane or suffering from any illness but wanted the prison doctor to testify on
his behalf. The court, however, refused the suggestion of a doctor to testify because at the time of the accused’s
apprehension, no question of mental incapacity arose. The court held that all the court needed to prove was the
actus reus and mens rea, unless the accused provides a valid defence, not the opinion of any medical expert. The
court is not bound by the evidence given by expert opinion as it only serves as a compliment to the matter, in
assisting the jury. It is the jury that determines the verdict of any accused. Simpliciter, the decision to convict (i.e.,
the ultimate issue) lies with the jury/judge whilst a guide to inform the decision lies with the opinion of experts. In
Sierra Leone, given the lack of professionals, cases would only have one (1) psychiatrist but in more advanced
jurisdictions, there are many more professionals that would warrant both parties to the offence normally
consulting a medical professional.

PSYCHIATRIC CASES
In R v TURNER (1975), Turner was charged with the murder of his girlfriend and his defence was provocation. He
told the court he wanted to call a psychiatrist to help him in his defence. When the psychiatrist went to court, he
said Turner had no signs of any mental illness; and that Turner had a deep, emotional relationship with his
girlfriend. Turner told his girlfriend that heard that she was going out with other people, to which she confessed to
have, in fact, slept with other people and as a result, had gotten pregnant and told Turner that he was not the father
of the unborn child. Turner, in a blind rage, stabbed & killed his girlfriend. Turner was brought to court and
charged with the murder of his girlfriend but the psychiatrist said that it was his expert opinion that Turner acted
not on any mental illness. In other words, the accused’s girlfriend’s words were found to be sufficient provocation,
prompting Turner to act in the manner he did. Given the fact that he was not suffering from any mental illness, the
psychiatrist could not help him and thus, the court dismissed Turner’s defence and was convicted guilty of murder
with life imprisonment.

Law of Evidence (BLAW410 & 420) lecture notes by Mr. Francis Gabbidon, ESQ. Typed &
Compiled by Muhammad Mansour Allie. Typos are inevitable. For further clarification on
anything contained herein, please consult the lecturer-in-charge.
In R v WEIGHTMAN (1975), similar reasoning to Turner (1975) above came up in this case. Weightman was
charged with murder but was not suffering from any mental illness. He called a psychiatrist but the court held that
given that at the time of the commission of the offence, he was normal; thus, eliminating the need for a medical
expert and was thus guilty of murder.

In R v LOWERY (1974), Lowery & King, his friend, were jointly charged with the murder of a young girl & the
murder was such that it was committed by a sadistic psychopath. When the case came up, both of them testified
testified/gave evidence, with each blaming the other for the crime (i.e., Lowery blamed King, and vice versa).
Lowery said that he was not the sort of person to commit such an offence. King went a step further and was
allowed by the courts to call a psychologist to show that his version of the events was the more probable of the two
(2) and because of his personality, he was could not have been the person that committed the murder. In such
cases, a psychiatrist was the expert favoured to be called but the psychologist opined that it was his expert opinion
that Lowery had committed the offence. The Privy Council allowed the psychologist’s evidence and thus, the court
convicted Lowery and believed the account given by King. The takeaways from this case are threefold:

It was decided on its own peculiar facts.

There has been no precedent that follows this case.
It is not an authority to establish any general rule relating to the admissibility of evidence given by either a
psychologist or psychiatrist.

In R v MASIH (1986), the defendants were charged with rape and one of them decided to call on a psychiatrist to
show that the other was of low intelligence, immature and easily led. The psychiatrist said that the intelligence of
the defendant was of low intelligence but the case in question was not one of mental incapacity; thus, there was no
incentive for the psychiatrist to inform the court on the issue. A psychiatrist must only be brought to court where
there is a case of a person suffering from insanity or any other mental disease.

In R v REYNOLDS (1989), Reynolds called a psychiatrist to show that he could not differentiate between reality
and fantasy. Again, the court refused to accept the evidence of the psychiatrist because Reynolds was not suffering
from any mental illness and Reynolds was convicted.

In R v SMITH (1979), Smith was charged with murder as he stabbed and killed a person. Smith raised the defence
of automatism and the prosecution called psychiatric evidence to rebut the defence of automatism. The court,
however, came to the conclusion that he was in fact suffering from automatism.

There are times where other defences like duress, coercion, are put forward and will only apply in a case with a
mental element. For example, where one puts a gun to the head of another, the need to call on a psychiatrist is
moot. In the instance of Paolo Conteh, during his trial, a psychiatrist was not consulted because the case did not
have a question of mental incapacity.

THE OPINION OF NON-EXPERTS

The law recognizes that there are instances where a court may be unable to deal with an issue without making
with the evidence of a non-expert. A non-expert witness may give opinion evidence on certain subjects in relation
to which it is impracticable to separate the witness' inference from the facts perceived in which those inferences
are based.

Law of Evidence (BLAW410 & 420) lecture notes by Mr. Francis Gabbidon, ESQ. Typed &
Compiled by Muhammad Mansour Allie. Typos are inevitable. For further clarification on
anything contained herein, please consult the lecturer-in-charge.
INSTANCES WHERE NON-EXPERTS ARE CALLED TO TESTIFY
Handwriting, as in R v SILVERLOCK
State of the weather
A person's age
Identity of persons
Voices
Speed
Value of, a commodity, for instance
Emotional state of a person
CCTV Footage
In these instances (although not extensive), the opinion of non-experts is admissible. This is because some person
has made a study on these issues and as a result, the court allows them to give opinion evidence. In the cases of R v
SILVERLOCK, R v OAKLEY & R v DAVIES, the non-experts consulted were allowed to give evidence. Experts and
Non-experts can be subpoenaed and have their qualifications and competence challenged. Both are competent and
compellable. There are however, limits to what non-experts can say in court. In R v DAVIES (1962) 1 WLR 1111,
Davies was a man who saw someone driving at dangerous speeds and he testified that, in his opinion, the speeding
driver was drunk. The court did not allow him to speak on the driver's unfitness and was a matter for expert
evidence; the ascertainment of this question is to be left to the jury.

Law of Evidence (BLAW410 & 420) lecture notes by Mr. Francis Gabbidon, ESQ. Typed &
Compiled by Muhammad Mansour Allie. Typos are inevitable. For further clarification on
anything contained herein, please consult the lecturer-in-charge.
 ILLEGALLY / UNFAIRLY
OBTAINED EVIDENCE
The general rule is that all evidence in a trial must be obtained legally (i.e., via the proper means). In other words,
counsel must take statements from witnesses, acquire evidence and visit a crime scene properly and legally.
However, it is not always that police/law enforcement officers obtain evidence legally as there are occasions where
police officers have obtained evidence illegally, unfairly and improperly. In addition, the general rule is that
illegally obtained evidence is admissible in a court of law, be it in England or Sierra Leone. In other words, the law
is not concerned with how counsel obtained evidence in a criminal case. This was stated in the well-known case of
R v LEATHAM (1861) 8 Cox CC 498, where the judge, Crompton J, said “it matters not how you get it; even if you
steal it, it would be admissible in evidence”. In ELIAS v PASMORE (1934) 2 KB 164, the judge said the interest of
the state must excuse the seizure of documents, which seizure would otherwise be unlawful. In addition, the judge
in CALLIS v GUNN (1964) 1 QB 495 stated that it does not matter how one gets evidence; whether by fake
representations or even by trick, it will be admissible

This position in England, Sierra Leone & other commonwealth countries can be contrasted with the position of law
in the United States, where illegally obtained evidence is not admissible because it contravenes the 4th Amendment
of the U. S. Constitution, which provides a protection for the people to be secure in their persons, houses, papers &
effects from unreasonable searches and seizures by the government. Courts in the United States maintain that to
admit such illegal evidence is a breach of the rights of the accused. English Law takes the view that they are not
concerned with the way & manner by which evidence is obtained; so long as it is relevant, it will be admissible.

KURUMA, SON OF KANIU v R (1955) AC 197

The accused was charged with unlawful possession of ammunition, which had been found in his pocket by police
officers who searched him. The officers that conducted the search were below the rank of those who could have
searched him, which thusly made the search illegal. He was prosecuted and convicted but the defence argued that
the search was illegal because the police officers who conducted the search lacked the authority to do so. Kuruma,
despite his counsel’s argument, lost the appeal and it was subsequently taken to the Privy Council, the highest
court in all commonwealth countries prior to colonization. The Privy Council dismissed the appeal and Goddard CJ,
the then Chief Justice of England, in presiding over the case said that “where evidence is relevant and admissible, the
court is not concerned with how it was obtained”. This case originated in Kenya, during the Mao-Mao war, but was
appealed all the way up to the UK Privy Council.

JONES v OWENS (1870) 34 JP 759

A police officer, who was unlawfully searching an accused person, found a handful of young salmon in his
possession. He was charged with unlawful fishing and the defence argued that the search was illegal. The court
held that it was not concerned with how the constable found the salmon but that he found the salmon and it was
relevant to convict the accused.

Law of Evidence (BLAW410 & 420) lecture notes by Mr. Francis Gabbidon, ESQ. Typed &
Compiled by Muhammad Mansour Allie. Typos are inevitable. For further clarification on
anything contained herein, please consult the lecturer-in-charge.
JEFFREY v BLACK (1978) QB 490
The accused was charged with unlawful possession of cannabis. He was originally arrested for stealing a sandwich.
Whilst he was being searched by a police officer without a search warrant and the accused’s consent, they later
searched his house and found his cannabis. The magistrate dismissed the case and on the grounds that the
cannabis was obtained in an illegal search (i.e., without a warrant). The prosecution was left dissatisfied and they
appealed, arguing that the cannabis was relevant to the matter. The prosecution’s appeal was upheld by the Court
of Appeal and the conviction was reinstated, further stating that not having a search warrant was only an
irregularity. This case originated in Jamaica but was appealed all the way up to the UK Privy Council.

FOX v CHIEF CONSTABLE OF GWENT (1985) 3 All ER 392, HL

A police officer stopped a driver (Fox) and asked him to take a Breathalyzer test. He was later arrested unlawfully
and the police went on and obtained a specimen from the driver. His lawyer objected as to the admissibility of the
evidence on the grounds that he was unlawfully profiled and illegally arrested. However, the court dismissed the
lawyer’s objection and said that so long as the police were acting in good faith (i.e., bona fide), they would allow the
procedure that was used. It was further stated by the court that they would accept the relevant evidence, although
the procedure in acquiring it was wrong. Thus, Fox was convicted.

R v APICELLA (1985) 82 Cr App R 295, CA

Apicella was convicted on three (3) counts of rape; each of whom had contracted an unusual strain of gonorrhoea
from Apicella. He was held on remand (i.e., locked up) and examined by the prison doctor, who, in fact, confirmed
that he was suffering from gonorrhoea. The doctor took a step further and called a consultant, who took a quantity
of bodily fluids to enable him to make a valid diagnosis. The consultant then assumed that Apicella consented to
give fluids, when in fact, Apicella had submitted that because he was told by a prison officer that he had no choice
on the matter (i.e., Apicella had no consent). The specimen taken from the accused showed that he was suffering
from the same unusual strain of gonorrhoea found in the victims. The prosecution tendered the evidence, which
was duly accepted by the courts. The evidence was objected to but the court accepted it, stating that the evidence
was not unfair, thus admissible. Apicella was convicted & imprisoned.

R v PAYNE (1963) 1 WLR 637

The accused was charged with drunk driving and agreed to a medical examination to see if he was suffering from
any medical disability/illness. On the understanding that a doctor would not examine him as to his fitness to drive,
he agreed to the examination. At the trial, the doctor gave evidence that the accused was unfit to drive and he
(Payne) was convicted. He appealed against the conviction and the Court of Appeal quashed the conviction on the
ground that the trial judge should have exercised his discretion to exclude the doctor’s evidence. In other words,
the accused was misled to allow the examination with the doctor because if he had known that the examination
was to test his unfitness to drive, he would not have accepted it. As a result, the conviction was quashed and he was
set free. This case is one of the very few cases in law, where illegally obtained evidence was not admissible.

Law of Evidence (BLAW410 & 420) lecture notes by Mr. Francis Gabbidon, ESQ. Typed &
Compiled by Muhammad Mansour Allie. Typos are inevitable. For further clarification on
anything contained herein, please consult the lecturer-in-charge.
R v KING
Police officers searched a man illegally and found cannabis in his possession. This case went as far as the Privy
Council in the UK, who ruled on the matter that the evidence was admissible.

There are times when the police use undercover methods/tactics to obtain evidence. They may bug police cells or
even homes to obtain incriminating evidence. These evidences are only accepted when they are relevant to the
matter.

R v MAQSUD ALI & R v ASHIQ HUSSEIN (1966) 1 QB 688

The defendants were Pakistanis that were suspected of committing murder. They lived in Bradford, just outside of
London, notoriously known for assaulting 12 & 13-year-old girls. They went to a room in Bradford with police
officers. Unknown to the Pakistanis, there was a microphone connected to a tape recorder in each room. The police
left the two (2) men by themselves in the room, who subsequently started conversing with each other for quite
some time. In that verbal exchange, they both made incriminating remarks about embarking on assaults on young
girls, drug dealing, etc. They were both taken to court and prosecuted for the offences, which they had
unknowingly admitted in the room. The prosecution tendered the tape recordings to the court for admission as
evidence, to which they rejected it strongly, saying it was unfair as they were unaware that they were being
recorded. The judge replied that criminals do not act according to the Queensbury rules and that the method of
eavesdropping is common in the detection of crime. As a result, the recordings were held admissible and were duly
admitted, which led to the defendants’ convictions. Similar was held in R v BAILEY ().

R v SANG & MANGAM (1980) AC 402

The defendants were charged with offences of conspiracy to alter forged bank notes and possession of forged bank
notes. When they went to court, they both pleaded not guilty and a voir dire (i.e., a trial within a trial) was held to
decide whether the prosecution’s evidence should be admitted. The court decided to admit the evidence concluded
in the voir dire and the defendants changed their plea to guilty, after which they were both tried & convicted. They
appealed to the Court of Appeal, which upheld their conviction and ruled that the evidence, however illegally
obtained, was admissible in evidence. They appealed to the House of Lords, the highest court in England at the
time, who also held their conviction and the court said that even though the evidence was improperly, it was
admitted. They further stated that they had no discretion to exclude illegally obtained evidence but the court went
further and made the following statements on illegally obtained evidence:

The General Rule is that all criminal trials, illegally/unlawfully obtained evidence is generally admissible
In every criminal trial, the presiding judge may, at times, have an overriding discretion to exclude evidence
where the prejudicial effect outweighs its probative value
In English law, there is no defence known as entrapment. For example, if a police officer uses an adjent
provocateur (i.e., an informer/secret agent), the accused cannot use it as a defence.

Illegally obtained evidence does not allow confessions to be admissible. All confessions must be free & voluntary (R
v IBRAHIM). Entrapment is not a defence in either England or Sierra Leone

Law of Evidence (BLAW410 & 420) lecture notes by Mr. Francis Gabbidon, ESQ. Typed &
Compiled by Muhammad Mansour Allie. Typos are inevitable. For further clarification on
anything contained herein, please consult the lecturer-in-charge.
PUBLIC INTEREST IMMUNITY
The general rule is that evidence would be excluded in a criminal case if its reception would be contrary to the
public interest/state interest. This was stated in the case of ASIATIC PETROLEUM v ANGLO-PERSIAN OIL
COMPANY (1916) 1 KB 822. In addition, in DUNCAN v CAMMELL, LAIRD & CO LTD (1942) AC 624, there was a
claim against the defendant for negligence in relation to the construction of a submarine. The plaintiffs wanted the
defendants to produce a copy of the structure of the submarine. The judge refused the inspection of the documents
on grounds of national security and said that they would not allow them to see how the submarine was
constructed. The House of Lords, the highest court in England at the time, held that even though the documents
were relevant they would not allow the production of these documents and should thusly be withheld. So, the
courts rejected the production of these documents on grounds of national security. In CONWAY v RIMMER (1968)
AC 910, where this position of the law with regards to public interest immunity changed, the plaintiff was a former
police constable, who was sacked and prosecuted by his superiors and he brought an action against them for
malicious prosecution. During his trial, he told the court that his personal file should be produced, as there were
some documents in that file that he wanted the court to see. The Minister of Home Affairs objected to the
production of these documents and said that they must not be produced because they were prejudicial to the
public interest. The court rejected this, thereby overruling the Home Secretary, stating that they wanted to see the
documents the Home Secretary was objecting to. The court stated that in the past, they would allow such an
objection from a government official, which was normally final and would subsequently lead to the rejection of the
evidence on the grounds of public interest immunity but that was the case no longer; they (the courts) will have to
inspect the documents objected to and determine whether or not they must be produced. The court, upon
inspection of the documents, determined that the files must be produced, thus applying Conway’s claim to the
court on wanting his personal file to be produced.

In BURMAH OIL COMPANY v THE BANK OF ENGLAND (1980) AC 1090, there was an action against the Bank of
England concerning the supply of oil. The plaintiffs wanted the Bank of England to produce certain documents and
they objected because the documents were confidential and it would go against public interest if they were
disclosed. The court said that it was no longer for the government officials to say what may or may not go against
public interest, but for them (the courts) to look at and decide whether the documents should be produced. So, this
case followed Conway in which it was the court that decided whether documents are to be produced, not the
government officials. Thus, it is the new attitude of public interest immunity that it is the courts that can inspect &
decide whether any document may tend to go against public interest if made known.

There are various categories of Public Interest Immunity:

MATTERS OF NATIONAL SECURITY

Generally, with matters of national security, the court would tend to hold what the government official says,
especially when it comes to matters of arms & ammunition, airships, submarines, fighter jets. This is so because
this kind of information could leave the given state vulnerable to calculated attacks from any other nation if it is
disclosed. Thus, it will be held inadmissible on the grounds of national security. However, when the consequences
of disclosing are not as grave, like the one in Burmah, the courts would tend to uphold Conway and compel the
accused to provide said documents for inspection and determination of validity to the courts.

Section 104 (1,2,3 & 4) of the Constitution of Sierra Leone (Act No. 6 of 1991) refers to Public Interest Immunity
and provides for the Privilege of Witnesses:
Law of Evidence (BLAW410 & 420) lecture notes by Mr. Francis Gabbidon, ESQ. Typed &
Compiled by Muhammad Mansour Allie. Typos are inevitable. For further clarification on
anything contained herein, please consult the lecturer-in-charge.
 “(1) Every person summoned to attend to give evidence or to produce any paper, book, record or other
document before Parliament shall be entitled, in respect of his evidence, or the production of such document,
to the same privileges as if he were appearing before a Court.

(2) No public officer shall be required to produce before Parliament any document if the Speaker certifies
that—

a. the document belongs to a class of documents which will be injurious to the public interest or prejudicial to
the security of the State to produce; or

b. disclosure of the contents thereof will be injurious to the public interest or prejudicial to the security of the
State.

(3) Where there is a doubt as to whether any document as is referred to in subsection (2) is injurious to the
public interest or prejudicial to the security of the State, the Speaker shall refer the matter to the Supreme
Court to determine whether the production or the disclosure of the contents of any such document would be
injurious to the public interest or prejudicial to the security of the State.

(4) An answer by a person to a question put by Parliament shall not be admissible in evidence against him in
any civil or criminal proceedings out of Parliament, not being proceedings for perjury brought under the
criminal law.”

PROPER FUNCTIONING OF THE PUBLIC SERVICE

In BALFOUR v. FOREIGN & COMMONWEALTH OFFICE (1994) 1 WLR 681, Balfour was dismissed from his
service as the British Consul in Dubai by the Foreign & Commonwealth Office. He took them to an industrial
tribunal and he sought the disclosure of certain documents in the possession of his former employers. They
objected, stating that they would not produce said documents. The Minister objected as well, stating that the
documents must not be produced, as the proper functioning of the Civil Service will be impossible with always
disclosing certain documents containing the activities of civil servants. The court then decided to look at the
documents, which the plaintiff wanted to be produced and upon inspection, the courts agreed, thus upholding the
objection of the Minister in order for the Civil Service to properly function, the kind of documents in question
contain rather sensitive information and thus, must not be disclosed.

INFORMATION FOR THE DETECTION OF CRIME

In many cases, the police and officers depend on information from the public as to persons that commit crimes. For
example, the ACC protects whistle-blowers from any criminal or civil litigation for any evidence they present and if
they present evidence that leads to the capture and successful prosecution of the individual, the informant will
receive ten percent (10%) of the total proceeds in the matter. However, this is not with regards this category. In
MARKS v BEYFUS (1890) 2 QBD 494, information was given to the police concerning Marks. Whilst the case was
ongoing, he asked the Director of Public Prosecution to name the informant that gave the information, which led to
his prosecution and the judge disallowed the question, stating that if the police start telling on the people who give
them information, people would stop giving information and those sources would dry up. In other words,
informants’ identities must be protected. In Sierra Leone, it is an offence for police officers to disclose the identities
of their informants known as Divulsion. In D v THE NATIONAL SOCIETY for the PREVENTION of the CRUELTY
to CHILDREN (NSPCC) (1978) AC 171, information was given to the NSPCC of a woman (D) that was maltreating
her baby. The NSPCC decided to investigate the matter and take action against this mother, accusing her of cruelty
Law of Evidence (BLAW410 & 420) lecture notes by Mr. Francis Gabbidon, ESQ. Typed &
Compiled by Muhammad Mansour Allie. Typos are inevitable. For further clarification on
anything contained herein, please consult the lecturer-in-charge.
against her child. The mother took the NSPCC to court and wanted them to name the informant that gave the
information, which led to her prosecution. The court said that the NSPCC should not disclose the informant’s
identification on the grounds of public interest immunity because if they start telling on the people who give them
information, people would stop giving information and those sources would dry up. Also, this could lead to
reprisals (i.e., where the person prosecuted may seek revenge on the informant). In other words, informants’
identities must be protected.

CONFIDENTIAL RELATIONSHIPS
Generally, the relationship between parties can, at times, adduce confidence, such as relationships between doctors
and their patients, lawyers and their clients, bank tellers and their customers and priests and their parishioners. In
other words, in all the above mentioned relationships, what is said between them is generally considered
confidential information. Doctors should not, pursuant to the hypocritic oath, disclose any information about their
clients. Lawyers, Bankers should, as well, not disclose their clients’ information. Also, at a given time in Sierra
Leone, workers of telecommunications companies (Sierratel) would, for a price, disclose the private calls and
messages of husbands to their wives but this was mitigated and all workers concerned were terminated. These
confidential relationships are considered important and must not be disclosed, especially when it comes down to
matters of life and death, like in events of reprisals that surface as a result of the disclosed information. Among all
the confidential relationships, it is only lawyers that have immunity. In other words, lawyers cannot be forced,
even in the witness box, to disclose information. A lawyer’s chambers cannot be raided and searched without a
court order and generally, the files of his clients are off-limits.

In BRITISH STEEL CORPORATION v GRANADA TELEVISION (1981) AC 1096, Granada TV (G) anonymously
received a list of secret documents from the files of an employee at the British Steel Corporation (BSC) and used
those files and made a documentary concerning BSC. A lot of the information published on the documentary came
from the files. Granada paid money to the informant for the documents and promised that they would never
disclose his/her identity. BSC took Granada to court and applied for an order to compel G to disclose the identity of
the informant and G refused. The court ruled against Granada and they appealed to the Court of Appeal, who
upheld the decision of the trial court (i.e., they also ruled against Granada). They appealed to the House of Lords,
the highest court in England at the time, making an order for Granada to disclose the identity of the informant. The
HOL said that although they do allow confidential relationships to be maintained, it should be done depending on
the circumstances and that in this case, the way & manner in which the documents were obtained was wrong and
as a result, Granada must disclose the identity of its informant.

In ATTORNEY GENERAL FOR ENGLAND v MULHOLLAND (1963) 2 QB 477, Mulholland wrote an article
published in a newspaper that the government in England were dissatisfied with and they took him to court to
discover how he got the information, which he refused to disclose on grounds of his professional ethics as a
journalist. Lord Denning MR, who presided over the matter, said that they do respect journalistic confidence but as
a matter of law, they are bound to disclose their sources. In other words, they are ethically right to choose not to
disclose their sources but given that the law overrules ethics when it comes to public interest immunity, and the
law requires him to disclose his source, he is legally bound to do so. As a result of Mulholland’s refusal, he was
jailed for three (3) months. So, the judge did consider the fact that the journalist behaved ethically but by law, he
was bound to provide information of his sources.

Law of Evidence (BLAW410 & 420) lecture notes by Mr. Francis Gabbidon, ESQ. Typed &
Compiled by Muhammad Mansour Allie. Typos are inevitable. For further clarification on
anything contained herein, please consult the lecturer-in-charge.
 SIMILAR FACT EVIDENCE
Similar Fact Evidence is an exclusionary form of evidence, which is extremely important in criminal trials.
For example, if you charge someone with stealing, the prosecution cannot go beyond that charge because
the person is used to stealing. In other words, the fact that the person used to steal is irrelevant to the
present charge. But there are times that past conduct of the person would be used against him in a new
charge; only if it is relevant to the case. So, the fact that someone is a thief does not necessarily mean that
he has stolen in the present case.
The leading case in Similar Fact Evidence is MAKIN v ATTORNEY GENERAL FOR NEW SOUTH WALES
(1894) UKPC 56, an Australian case that went as far as the Privy Council in the UK. It was in this case
that this principle of law was formulated. Makin used to look after children and he adopted a lot of them.
They would disappear slowly as he would kill them and bury them in his backyard garden. Eventually,
law enforcement caught up with him and they were able to discover that he had killed one and buried
another. On this, they decided to dig up the garden and found the remains of many children buried
therein. There was no motive of the killings (i.e., there was motive, like in the Brides in the Bath case, via
taking an insurance on their lives, and so on). In other words, Makin may have liked killing. It was in this
case that Similar Fact Evidence was propounded, in which there are two (2) strands (i.e., the fact that
someone has been found guilty in the past does not mean that he is doing it in the present circumstances,
unless in the present circumstances, the criminal act is significantly similar to the one in the past). The
reason why SFE is used to convict persons committing offences is that it is relevant to the matter. In other
words, what had currently taken place will be used against an accused, so long as it is relevant to the case.
It is relevant because it has probative value (i.e., it aids the prosecution in proving its case). The
advantage of SFE is to the prosecution and is rather prejudicial to the defence as it tends to make the job
difficult for defence attorneys.

STRANDS OF SIMILAR FACT EVIDENCE.

There are two (2) strands of Similar Fact Evidence, the division of which deals with what the court
considers when dealing with Similar Fact Evidence:

If someone has committed a criminal act, the past of that person does not necessarily mean that he
has a general, criminal disposition to commit the criminal act again. In other words, it is not true
that in law, once a thief is always a thief (i.e., give a dog a bad name & hang him).
But it is possible that his/her past conduct could be admissible for the new crime if a new crime is
committed in a similar manner to the past conduct. For example, if A is a convicted rapist and is
arrested and charged again for the crime of rape, his past conviction does not necessarily mean
that he committed the new offence. However, where the facts between both conducts are
significantly similar, it can be held as sufficient to convict.

SPECIFIC INSTANCES WHERE SIMILAR FACT EVIDENCE HAS

BEEN USED.
Law of Evidence (BLAW410 & 420) lecture notes by Mr. Francis Gabbidon, ESQ. Typed &
Compiled by Muhammad Mansour Allie. Typos are inevitable. For further clarification on
anything contained herein, please consult the lecturer-in-charge.
 IF THE ACCUSED RAISES THE DEFENCE OF ACCIDENT:

In R v SMITH (1915) 11 Cr App R, 229, otherwise known as the “Brides in the Bath case”, Mr. Smith
was married three (3) times. Whenever he married, he will put the woman in a bathtub and drown her.
He did this to all three (3) of his wives because he had put out an insurance policy on each of them. He did
it the first two (2) times and got away with it but got caught the third time. When the police arrested and
took Smith to court, the question was whether Smith had done that in the past? Smith’s defence was that
all three (3) of his wives died by accident. The court held that the circumstances of the deaths of the first
(1st) and second (2nd) wives are similar to the third (3rd) wife’s circumstance. Therefore, Smith was
convicted of murder and; similar fact evidence was used in the case to secure Smith’s conviction.

THE ACCUSED RAISED THE DEFENCE OF MISTAKE:

In R v BOND (1906) 2 KB 389, Mr. Bond was charged with performing an illegal abortion. Bond had
been charged in the past for performing illegal abortion. When he was taken to court, he opined that it
was a mistake and the court declined this, stating that he is an expert in performing abortions. Thus,
given his past conduct, he was convicted of the offence.

THE ACCUSED RAISES THE DEFENCE OF INNOCENT ASSOCIATION:

In R v BALL (1911) AC 47, a brother and sister were indicted and convicted for incest. Their defence is
that what they had was an innocent association. The court dismissed their defence.

TO IDENTIFY THE ACCUSED

In R v STRAFFEN (1952) 2 QB 911, Straffen was charged with murder. He escaped from prison and met
a little girl walking by and killed her. Straffen was arrested and when they look at his antecedent, they
discovered that he had been killing little girls; that he would first capture them, rape them and then
proceed to kill them. Straffen was easily identified because of the way and manner in which he killed his
victims. They identified him as the murderer because of the way he had killed all the girls prior to the
victim in the present case.
In R v THOMPSON, Thompson was a Schoolmaster and a well-known homosexual, who was in charge of
a boarding home; a job he took just to assault the young boys who lived therein. At night, he would wake
up and start going around the different dormitories to awaken some of the boys for sex. At times, he
would not be the one performing; he would order the boys to carry out the sexual acts on him (i.e., he
would perform the feminine role in the sexual encounter). Also, he would also order them to have sex in
places other than the dormitory. On a particular occasion, he went to a particular place at a particular
time, awaiting the arrival of the boys (i.e., soliciting) and he was eventually reported and arrested in the
act by the police. He denied the report made against him at first; then, the police, equipped with a search
warrant, went to his house and found incriminating evidence against him (i.e., indecent photographs of
the explicit acts and powder puffs), which was used in his conviction.
NOTE: In Sierra Leone, there only one (1) reported case of Similar Fact Evidence: COMMISSIONER OF
POLICE v DA SILVA (1968-69). A large majority of these cases tend to be linked to issues of paedophilia
and homosexuals, who almost always deny anything brought against them. However, it is only upon the
finding of external evidence that will make the work of the prosecution easier to convict him/her.

Law of Evidence (BLAW410 & 420) lecture notes by Mr. Francis Gabbidon, ESQ. Typed &
Compiled by Muhammad Mansour Allie. Typos are inevitable. For further clarification on
anything contained herein, please consult the lecturer-in-charge.
As stated earlier, there are two (2) strands of Similar Fact Evidence, the first of which came about pre-
Boardman (i.e., prior to the Boardman case) and the latter is the case itself and its subsequent
developments. In DPP v BOARDMAN (1975) AC 421, Boardman was a headmaster, who obtained the
job at a school deliberately to assault young boys. He would wake up and start going around the different
dormitories to awaken some of the boys for sex. At times, he would not be the one performing; he would
order the boys to carry out the sexual acts on him (i.e., he would perform the feminine role in the sexual
encounter). It was this case that drew the line as to what surmounts to positive probative value, (i.e., that
a case of Similar Fact is only important for the positive probative value a court can get from it). Positive
Probative Value is the relevance of the similar fact evidence; what the prosecution would gain to show
that the case is not one of prejudice; without this value, it would be prejudicial to an accused and tends to
paint him/her in a bad light. This case strengthens the position in Makin v AG; in that the previous sexual
encounters he had with the boys in the dormitories was used against Boardman in his conviction.
In D. P. P v P (1991) 2 AC 447. P was convicted on two offences: 2 counts of rape and 8 counts of incest.
After he was convicted, he appealed on the grounds that the evidence on the rape charge should not have
been used on the counts of incest; they should be tried separately but the prosecution knew it was easier
to charge him on both counts. The appeal court disagreed with P's contention, stating that they
discovered a similar pattern in the way in which he had committed rape and incest before to the present
circumstances. Both victims in the past were young girls. He was not satisfied with the prosecution so he
appealed twice; the first one of which was allowed. The latter appeal was denied because the court stated
that the ways and manner in which he had sex in the commission of the rape and the incest are strikingly
similar. The words "strikingly similar", post DPP v P, created a lot of confusion in the courts because the
courts thought that those words were the only criteria by which Similar Fact Evidence would be held
substantial. However, the further court in this matter refuted this, stating that the words were only one
(1) of the ways of committing the offences (i.e., it does not apply in all cases).

Law of Evidence (BLAW410 & 420) lecture notes by Mr. Francis Gabbidon, ESQ. Typed &
Compiled by Muhammad Mansour Allie. Typos are inevitable. For further clarification on
anything contained herein, please consult the lecturer-in-charge.
 LEGAL PROFESSIONAL PRIVILEDGE
The legal profession is the only profession that the law has given privilege, in which any and all
communications and documents as well that relate to professional privilege between lawyers and their
clients are privileged. They cannot be disclosed except by order of the court. This privilege is not enjoyed
by any other profession, although doctors, on grounds of confidentiality, could refuse to disclose
documents between them and their patients but if there is a court order, he/she would be bound to
disclose them. Documents between a lawyer and his client, even if the client is the wife of someone,
cannot be disclosed to the husband, and vice versa. If one’s wife is consulting a doctor, the doctor has no
right to disclose the documents between them to him. With lawyers, unlike other professions, it is given
absolutely; the lawyer has no right or reason to disclose documents between himself and his client(s) and
cannot be compelled to give up any information, especially where a client wishes to obtain legal advice.
This is based on confidentiality, which calms clients to tell their counsel the whole truth in order to get
the best legal advice possible. For example, where a man has visited prostitutes and he communicates
this fact to his attorney, that information should stay between them, unless ordered by the court.
However, the privilege lies with the client and not the lawyer; the lawyer cannot disclose documents or
any relevant information without the consent of the client, the result of which may lead to a breach of this
attorney-client privilege. In order to uphold this privilege, lawyers may ask for an increase in payment as
is necessary to be professional and to be bound by the Legal Code of Conduct, given the jurisdiction. The
main reason for this privilege is so that the client wants to go to court or seek legal advice to enable
him/her to go to court.
In R v DERBY MAGISTRATE COURT, EX PARTE B (1996), it was stated that a man must be able to
consult his lawyer in confidence, otherwise he would be afraid to ask for advice if there is no confidence.
A client must also consult his lawyer in confidence (i.e., he must refrain from lying to his/her lawyer, as
such deception will normally bring up problems for the lawyer and the matter in question). The principle
that runs through this case, simpliciter, is that a man should be able to consult his lawyer in confidence.
The client must be able to tell his lawyer the whole truth in confidence and what he says to his lawyer
will never be revealed without his consent. Basically, legal professional privilege is based on
confidentiality, especially communications between a lawyer and his client made for the purpose of
obtaining and giving legal advice; communications between a lawyer and his client and third parties, such
as witnesses or expert witnesses, which are brought to the case for litigation. Legal professional privilege
is more than an ordinary rule of evidence; it is a fundamental condition on which the whole
administration rests. To qualify for this privilege:
Communications between you and your client must always be confidential;
It must not be revealed without the consent of the client and once that relationship exists, it exists
forever;
This privilege extends to documents passing between the lawyer and his client, especially original
documents. For example, the letter the client writes to his lawyer.
In the case of WAUGH v BRITISH RAILWAYS BOARD (1980), the HL in England said that if
communications with third parties should attract privilege, the purpose of the preparation of the report
must be for the purpose of legal advice to be used in litigation. All documents between a client and his

Law of Evidence (BLAW410 & 420) lecture notes by Mr. Francis Gabbidon, ESQ. Typed &
Compiled by Muhammad Mansour Allie. Typos are inevitable. For further clarification on
anything contained herein, please consult the lecturer-in-charge.
lawyer must also be kept in safe custody. these privileges are not absolute (i.e., there are
limitations/exceptions):
This privilege can be lost where legal advice is sought for the furtherance of fraud or some
criminal purpose. In R v COX & RAILTON (1884), it was stated that if you write to a lawyer for
legal advice for the purpose of committing fraud or some other criminal purpose, you don’t have
privilege. This was propounded in the case of FRANCIS & FRANCIS v CENTRAL CRIMINAL
COURT (1988).
Where evidence is necessary to prove innocence, privilege cannot be relied upon. In R v BARTON
(1972), a clerk employed by a firm of solicitors was allowed to adduce privileged documents relating to
the affairs of clients to support his defence. In R v ATATOU (1988), two (2) accused persons charged in a
criminal offence shared the same solicitor but when the trial came, they decided that they should be
represented separately. The trial judge refused to allow Atatou to cross examine his co-accused on a
statement, which he had made to the original solicitor. The Court of Appeal refused on the grounds that
the answer would amount to a breach of privilege and this would outweigh the interest of justice.
Privilege can take different forms:

PRIVILEGE AGAINST SELF-INCRIMINATION

The privilege against self-incrimination begs the questions “What one can do when he/she is in the witness
box? Must a person answer every question put before him/her?”. This privilege is that one is not bound or
cannot be compelled to answer any questions that may incriminate him/her, leading to either a charge or
the forfeiture of certain privileges. Regardless of who you are, when one is asked a question, it is
advisable for him/her to tread carefully when answering questions in the witness box. However, it is
generally understood that witnesses are not bound to answer any question that would expose them to a
criminal offence. In BLUNT v PARK LANE HOTEL (1942) 2 KB, the rule was stated; that no one is bound
to answer any question if the answer, with the opinion of the judge, have the tendency to expose him/her
to any criminal charge, penalty or forfeiture. In some cases, when these kinds of questions are asked,
lawyers or even the judges would tell the witness not to answer them. In other words, although judges do
at times offer this protection to witnesses, they are not bound to do so; lawyers, on the other hand, are
bound to protect their clients from the scrutiny of such questions. If it is the accused is giving evidence in
the witness box, his/her lawyer must take extra precautions. The privilege is that of the witness, not the
lawyer. In other words, if the client refuses to answer the question, the court will understand; the duty of
the lawyer is to highlight to his client his privilege. This privilege also applies to documents that will
incriminate the witness if they are produced in court. This privilege does not extend, however, to every
question asked in court; it applies solely to questions that will incriminate the witness of an offence if
answered. Refusal to answer a valid question in a court of competent jurisdiction will amount to
contempt of court.

LEGAL PROFESSIONAL PRIVILEGE

This is a privilege that is attached only to lawyers (i.e., whether a barrister and/or solicitor). When a
client consults a lawyer, whatever the client discloses must be treated a privileged conversation and held
confidential. Procedurally, whatever a paying client discloses to his attorney, which is jotted and
compiled into the client’s file, will be held as privileged information (i.e., the information must not be
disclosed to any other person/entity). Where a client is the wife of someone, the husband cannot ask the
Law of Evidence (BLAW410 & 420) lecture notes by Mr. Francis Gabbidon, ESQ. Typed &
Compiled by Muhammad Mansour Allie. Typos are inevitable. For further clarification on
anything contained herein, please consult the lecturer-in-charge.
lawyer about his wife’s account with him. The exception by which such information can be disclosed is
via a court order; otherwise, it will be held to be privileged information/documents. In the event this
privilege is abused (i.e., the lawyer says something to another about his consultations with his clients)
and it can be proven in court, the lawyer will be held criminally liable for the breach of professional
privilege, for which the lawyer can be rebuked, fined or imprisoned. Communication on a given matter
between lawyers can also be held to be bound by confidentiality; this does not extend to outsiders. Also, if
the communication is concerned with the commission of a crime, it will not be held as privileged.

LITIGATION PRIVILEGE
This essentially applies where one intends to go to court. Contextually, if a person intends to take another
to court, and he goes to a lawyer to do so, whatever is said between the client and that lawyer is
privileged. Also, documents given to the lawyer are also privileged. The reason for this particular
privilege is because the person has made up his/her mind to litigate (i.e., go to court). Going to the lawyer
for any other reason is not governed by this privilege. The client, in consulting a lawyer for litigation,
must make a full and frank disclosure of everything that is reasonable to that lawyer, as doing less than
that is asking for trouble. In other words, such a client must fully disclose or no not bother doing it at all
as it will be a disservice to him/her and an embarrassment to the lawyer as he/she was not properly
briefed.

LEGAL ADVICE PRIVILEGE

A person can consult a lawyer not only for litigation but also for legal advice. Much like litigation
privilege, the client, in consulting a lawyer for legal advice, must also make a full and frank disclosure of
everything that is reasonable to the lawyer.

CAN LEGAL PROFESSIONAL PRIVILEGE BE WAIVED?

Yes, a client can waive this privilege but in very rare circumstances. The takeaway is that once it is
waived, it cannot be restored to the client and is lost perpetually.

Law of Evidence (BLAW410 & 420) lecture notes by Mr. Francis Gabbidon, ESQ. Typed &
Compiled by Muhammad Mansour Allie. Typos are inevitable. For further clarification on
anything contained herein, please consult the lecturer-in-charge.
 CONFESSION
A confession is an admission made at any time by any person charged with a crime, stating or suggesting
the inference that he committed the crime. For a confession to be admissible in court, it must be free &
voluntary; if it is not free or voluntary, it is not admissible. A confession can be made outside the court
(like at the police station) and inside the courtroom. When we say that a confession must be free &
voluntary, it means that it should not be made by any inducement, threat or promise, having reference
to the charge against the accused person proceeding from a person in authority. In other words,
inducements, threats and promises are the obstacles to a free & voluntary confession. Confessions make
the jobs of prosecutors easy because he has admitted to the actus reus & mens rea of an offence. A plea of
guilt is a valid form of confession. Confessions can be made orally or in writing. The following are
authorities to support the proposition that for a confession to be admissible, it must be free & voluntary:
In the case of R v IBRAHIM (1914) AC 599, it was stated that “It has long been established as a positive
rule of English Criminal Law that no statement by an accused is admissible in evidence against him, unless it
is shown by the prosecution to have been a voluntary statement, in the sense that it has not been obtained
from him either by fear of prejudice or hope of an advantage exercised or held out by a person in authority”.
In D. P. P. v PING LIN (1976) AC 574, during an interview at a police station, a suspect, who was
suspected of supplying drugs attempted to negotiate a deal with the police officers. He said he would
disclose the name of his supplier in return for his release. When the police officers refused the deal, he
admitted dealing in heroin and the police officers said to him “If you show the judge that you have helped
the police to trace bigger drugs people, I am sure he will bear it in mind when he sentences you”. At this
point, the suspect named his supplier. This was brought out with evidence in the case and the lawyer for
the accused said that it was an involuntary confession because he was induced to making this statement.
The court rejected that submission and that the man had already admitted to the crime.

VARIOUS SITUATIONS WHICH CAN MAKE A

CONFESSION INADMISSIBLE
INDUCEMENT
The first condition under which a confession will not be admissible is if it is made as a result of an
inducement. An inducement, for example, is when an accused person is told that he must speak the truth.
If they are trying to induce the accused into making a confession, one of the ways they can do so is to tell
him to speak the truth. If it is an inducement, chances are that the court would not accept it as a
confession.

Law of Evidence (BLAW410 & 420) lecture notes by Mr. Francis Gabbidon, ESQ. Typed &
Compiled by Muhammad Mansour Allie. Typos are inevitable. For further clarification on
anything contained herein, please consult the lecturer-in-charge.
PROMISE
The second condition under which a confession will not be admissible is if it is made as a result of a
promise. This is essentially where a person in authority may make a promise to an accused in order to get
him to confess, like promising a pardon or a lighter sentence if he/she confesses. Such a confession would
be held inadmissible.

THREAT/DURESS
The term duress refers to threats of violence and constraints or other actions used to coerce someone
into doing something against their will/better judgment. This is essentially where one uses a threat of
imminent force to get an accused to admit to the commission of an offence, like the threat of torture or
the increment of jail time for spouse or child if he does not comply. Not everyone can make a threat; the
threat must be made by a person in authority (i.e., a person that has influence over an accused person,
like a judge/magistrate, justice of the peace, police officer, prison officer, employer, etc). In other words, if
the confession is not made to a person in authority, it is not admissible.
Therefore, if a confession is made, it should not be made with any of these situations. If any of these
situations are present, the confession is inadmissible.
When an accused person is in custody (i.e., taken to the police station pending the completion of an
investigation), certain conditions must be fulfilled:
He must be allowed to consume food and water;
He must be allowed at least 6-8 hours of sleep;
He must have access to his/her solicitor and if possible, to call for his/her solicitor;
He must not be tortured; and
He must be allowed some amount of freedom/liberty to move within the vicinity of the court
during trial.
If these conditions are not present and one makes a confession, it would be ruled inadmissible. The police
officers also have the power to give bail under certain conditions (i.e., police bail).
The confession rules of Sierra Leone have been overtaken by the newly-developed rules of confession in
the United Kingdom. They however do not have applicability in Sierra Leone. The operative word in the
new rules is “Oppression”; whether one made a confession under circumstances of oppression. The
authority for this is R v FULLING (1987) 2 WLR 923.

ADMISSIBILITY OF THE EVIDENCE

This begs the question of whether the confession given is admissible in a court of law. Practically, a
person may make what appears to be a confession but is not made under the right circumstances (i.e., it
is made via an inducement, threat, promise or not to a person in authority). For a confession to be
admissible, it must be made freely and voluntarily. In an event where the confession is not done freely or
voluntarily, it is said to be inadmissible. In D. P. P. v PING LIN (1976) AC 574, the admission by the
suspect that he had been dealing in heroin when being interviewed by the police officers was held
admissible because it was done freely and voluntarily and everything the police officers did after (i.e., the
inducement) became irrelevant as a result of the validity/admissibility of the evidence of the confession.
Law of Evidence (BLAW410 & 420) lecture notes by Mr. Francis Gabbidon, ESQ. Typed &
Compiled by Muhammad Mansour Allie. Typos are inevitable. For further clarification on
anything contained herein, please consult the lecturer-in-charge.
If he had not admitted to dealing in drugs and was only a matter of the inducement, any confession
resulting from that inducement would be inadmissible. Simpliciter, the suspect had already confessed.

REPUDIATION & RETRACTION

These are very common outcomes in legal practice; a man can make a confession and later on down the
line, it can be said that he has either repudiated or retracted his confession. The term “repudiation” means
that he denies ever having made a confession at all. In other words, in an event where someone has made
a confession and later on denies ever making said confession, he has repudiated his confession. The term
“retraction” means that although one has made a confession, he/she did so under threat/duress, promise
or inducement; thus, withdraws it. In other words, in an event where someone has made a confession,
confirms that he in fact made the confession but did so under threat/duress (i.e., involuntarily) and takes
it back, he has retracted his confession.

PERSON IN AUTHORITY
For a confession to be admissible, it must be made to a person in authority, who are those with the
requisite authority within the legal ambit. For one to be deemed a person in authority, he/she must be
one of the following:
Judge/Magistrate
Justice of the Peace
Police Officer (i.e., a senior officer)
Military Officer
Prison Officer
In R v DEOKINANAN (1968) 2 AER 346, the appellant was charged with murdering his co-worker and
stealing money, which had been given to him by his employer to buy firewood. He confessed to a friend
and the friend reported him to the police. The accused was not doubtful when he saw his friend in the cell
as well and then repeated the confession to his friend. The confession was produced in court and the
defense’s lawyer objected to it on the grounds that it was induced. The court held that the confession was
inadmissible since it was not induced by a person in authority. It is only persons in authority that can
induce, promise and threaten someone.
Confessions made to religious clerics, family members or spouses will not be held as an admissible
confession because these are not persons with authority derived from law; therefore, such confessions
have no legal consequences. The main reason for persons in authority is the legal consequences of the
confessions, which are for the most part admissible.
In court, where a defense lawyer objects to a confession, the next necessary step that the court would be
likely to take is to have a voir dire (i.e., a trial within a trial) to validate or disregard the confession. This is
because the admitting of the confession into evidence without challenging it renders the defense’s case
non-existent. For a voir dire, the jury would normally be excused from the court as they should not hear
it; after which the prosecution would call on the officer and/or other personnel who took the
statement/confession to testify. They will also be cross examined by the defense as to the events leading
up to the confession. Invariably, most suspects in this regard would lie that they were assaulted and
tortured by police officers.

Law of Evidence (BLAW410 & 420) lecture notes by Mr. Francis Gabbidon, ESQ. Typed &
Compiled by Muhammad Mansour Allie. Typos are inevitable. For further clarification on
anything contained herein, please consult the lecturer-in-charge.
After the prosecution has called their witnesses, the defense would also call their own witnesses, even the
accused to the stand to testify as to the events that occurred. Finally, the sitting judge would pass a ruling
as to whether admit the confession or disregard the confession. If it is admitted, the jury would re-enter
the courtroom and be updated on the admitting of the confession, which would be read out to them and if
it is disregarded, the jury will re-enter the courtroom and the matter would proceed from where it left
off. The defense counsel and prosecution, despite the court’s admitting of the confession, has a second
chance to cross examine the witnesses. Even after the admission of the confession into evidence, the
prosecution can ask for the police officers to be cross-examined. Voir dire is only when there is a
confession, which enunciates the relevance or importance of a confession. The mere fact that there is a
confession is sufficient to convict a person. When a suspect makes a confession, it binds him/her alone.
For instance, where two (2) people are accused of the omission of a crime, the confession made by one
does not bind the other (i.e., one person cannot confess for another).

THE JUDGES’ RULES

When a suspect is taken to the police station, the officers must warn & caution him that he is not bound to
say anything but, in an event, he chooses to do so, it will be used against him in a court of law. These are
administrative rules and not rules of law. One can make a confession even without the warning/judges’
rules. In Sierra Leone, judges normally would accept confessions of this nature but it is entirely up to the
judge/magistrate to accept or reject a confession.

Law of Evidence (BLAW410 & 420) lecture notes by Mr. Francis Gabbidon, ESQ. Typed &
Compiled by Muhammad Mansour Allie. Typos are inevitable. For further clarification on
anything contained herein, please consult the lecturer-in-charge.