SECOND SEMESTER TRANSCRIBED EVIDENCE NOTE

PEREPARED BY: LEGAL JUICE

FINAL HONS 2
LECTURER: DR. EMMANUEL SAFFA ABDULAI ESQ, HEAD OF
DEPARTMENT OF FACULTY OF LAW.
LECTURE NOTE 1
CONFIDENTIALITY
The confidentiality clauses are very important. There has been some type of
prototype where it is clearly stated that this information is between two of us
and it could not been share with any third party, whether, the person is a legal
person or a natural person.
Confidentiality means that at some point in time, you have been given the privilege
to get some form of information that you ought not to have but you have this
information because of your privilege position, either as lawyer, as a doctor or as a
counselor, or Priest etc. for instance, as a Catholic, when you go to confess, you
confess to a priest. That priest has a privilege of hearing all those who are cheating
from their wives or husband, all those who are stealing from government etc.
confidentiality gives you the privilege to hear all those words and you in turn must
not share them out. In the Kamaraimba case, I told you I believe he was innocent
because he confided in me.
There is a whole international convention on the protection of journalistic source.
One of the reasons why we protect journalistic sources is to uphold the integrity of
media. It means the client can communicate with their lawyer without fear.
LEGAL PROFESSIONAL PRIVILEDGE
It means to protect the confidentiality or communication between a lawyer and
their client made for the purpose of obtaining or providing legal advice for the use
in legal proceedings.
TYPES OF PRIVILEDGE
There are various types of Legal professional privilege:
 1. LEGAL ADVICE PRIVILEDGE
A legal advice privilege protects confidential communication between a lawyer
and their client that is made solely for the advice on a particular matter. Wheler v
Le Merchant, a defendant was obliged to produce reports made to his solicitor by
a surveyor with regard to property that became the subject of litigation, which was
not contemplated when the reports were made. It was decided that counsel’s
opinion taken by a solicitor is always privileged, either because the counsel is the
legal adviser for the purposes of the rule or else because he is the alter ego of the
solicitor.
The privilege is confine to the obtaining of proper legal advice. For instance, it
would not apply where advice is sought as to the best way to commit a crime.
Also, the privilege is only confined to communications. The privilege does not
prevent the disclosure of facts discovered during the relationship of lawyer and
client. Also the privilege is entirely that of the client’s and not the legal adviser. If
there is going to be any question of a waiver, it must be by the client.
2. LITIGATION PRIVILEDGE
Litigation privilege protects communication and documents prepared for the
purposes of litigation.
It is important to note that the privilege belongs to the client and not the lawyer.
And that privilege or right can be waived by the client. It means that the client can
say I don’t care. Also, it applies to both oral and written documents. For instance if
the client says to his lawyer go to my daughter she has my documents the lawyer
cannot tell anybody that the client said the daughter has his document.
Finally, privilege is a substantive right; it is barely what we called the procedural
rule, but a substantive right. It is my right to talk to my client. Where the
communication takes place before any dispute has arisen, it is highly unlikely it
will be privilege. In Waugh v British Railways Board, it was held that the
dominant purpose of the communication or advice was that there was going to be
litigation and it must be contemplated or pending.
Note
A lawyer has a fiduciary duty to keep information confidential and not be reckless
in what you say in open court. If a lawyer said something that is detrimental to the
client, the client can sue him privately for damages or also report you to the Bar
council and you can be disbarred. It can be held against you and you client in court
once you say it.
EXCEPTIONS TO THE PRIVILEDGE
There are basically three exceptions:
1. Legal privilege does not apply to communication made in pursuance of a
crime of Fraud
2. Threat to public safety of a third party
3. Waive by the client either expressly or impliedly
Legal privilege does not apply to communication made in pursuance of a crime of
fraud; R V COX & RAILTON 1884
CRESCENT FARM SPORT LTD V STERLING OFFICES LTD. In these
cases it was stated that document for fraud, dishonesty, deceit, trickery, sham
would not attract privilege as they are an abuse of privilege and the law will not
permit the taking advantage of such a privilege.
Legal practice is built on the foundation of integrity. Confidentiality means don’t
get involved in the commission of a crime. If you look at the Right to Access of
information Act, it says Legal privilege is protected from access to
information request.
SPOUSAL PRIVILEDGE
This is a privilege that protect communication made between spouses. Marriage
itself is a combination of two bodies into one.
There is also spousal confidential privilege and there is also spousal testimonial
privilege. In spousal testimonial privilege you cannot testify or compel to testify
against your partner. In any criminal proceedings your wife for instance, cannot be
compel to testify against you. However if you wife decides to testify against you,
then that is a different thing.
LIMITATIONS
These privileges are limited to: domestic or criminal context only. The privilege
may not apply if the communication was made in the context of a crime or civil
dispute involving both parties. If you assault and injure your partner then she can
testify against you.
Cases on Confidentiality and privilege
1. Tournier v National Provincial and Union Bank of England (1924) 1KB461
2. R V Derbyshire (1990) AC 632 HL
 3. Re S (Minors) (1974) AC 808
LECTURE NOTE 2
BURDEN AND STANDARD OF PROOF
The cardinal principle globally in civil or common law is that “he who assert
must prove.”Meaning the prosecution has to prove it case beyond reasonable
doubt. This basic principle indicates that the prosecution is supposed to present its
evidence before the court if it is a court of a judge or before the jury, if it a trial by
peers. Now that prosecutor or prosecution is supported by the state. The state is a
monstrous organ that has all the powers, resources and mechanisms to investigate
and established whether his citizens have gone foul of the law. The police, they
have the intelligence service they coerce citizens, they almost control the courts,
the President appoints the Judges, and it is the state that actually makes the law. So
if the states make the law and believes by some suspicion that you have violated
that law, the burden is on them. That burden only shift in two instances:
1. Common law defence of insanity
2. Statutory Regulation
If a statute says you are suspected of committing an offence you have to establish
that you did not commit the offence, such as strict liability offences. If for example
you are caught with drugs you are supposed to tell the state that you did not have it
in your possession. That is the reason why when you get to the airport they tell you
do not collect the bag of anybody, make sure you pack your own bag, because if it
is in your possession you are guilty immediately. All the state will need to do is to
get to the court and say we found this brown substance on this man that is it. They
don’t have to establish the intent, mens rea or anything.
It is the business of the state to come to the court and adduce evidence that is
convincing. That is if you committed the offence. That is why the terminology of
beyond reasonable doubt is used. That is not to say beyond reasonable doubt
means beyond every shadow of a doubt. In Miller v Minister of Pensions
(1947) Lord Denning said “it need not reach certainty but it must carry a high
degree of probability. Proof beyond reasonable doubt does not mean proof
beyond a shadow of a doubt. If the evidence is so strong against a man as to
leave only a remote possibility in his favor, which can be dismissed with a
sentence, of course it is possible but not in the least probable the case is
proved beyond reasonable doubt. And nothing beyond that will suffice.”
Viscount Sankey L.C in Woolmington v Director of Public Prosecutions
(1935) ALL ER 1 (CA) state that “if at any period of a trial it was permissible
for the judge to rule that the prosecution had established its case and that the
onus was shifted on the prisoner to prove that he was not guilty and that
unless he discharged that onus the prosecution was entitled to succeed, it
would be enabling the judge in such a case to say that the jury must in law
find the prisoner guilty and so make the judge decide the case and not the
jury, which is not the common law.”
But while the prosecution must prove the guilt of the prisoner, there is no such
burden laid on the prisoner to prove his innocence and it is sufficient for him to
raise a doubt as to his; he is not bound to satisfy the jury of his innocence.
“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 what I have already said as to the defence of insanity and
subject also to any statutory exceptions. 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, as to whether the prisoner killed the deceased
with a malicious intention, 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.”
Basically they are saying, it is not beyond reasonable doubt, every thread must be
proven. It’s convincing. That is evidence rule. If you go to court for instance, there
is what is called muddy the water. As a defence counsel your business is to sit
down listen and pop the holes, widen them. Because you are technical you will see
it, the judge will be too tire to see it, so what you do in cross examination is to seal
that small hole, that there is some amount of doubt in this case. If the State says
this young man is responsible for the murder because they found him walking
down the street and the body was up the road, how is that convincing? Did
anybody see him stab? No, but on that street he is known to be a gang member,
therefore because he was walking down the road the body was on the Hill, is that
convincing? Circumstantial, is that enough to convict?
Scenario
You are a member of a gang and these gang are used to killing, and someone is
killed up the road and you are coming down the road and police met you, therefore
you are responsible for killing, is that convincing? If you are a defence lawyer
what will you do if you client is accused in such a scenario.
The prosecution has come to say Mr. X is a gang member in this city, on this date,
in this area, his gang have stab different people, some of them have died, some of
the injured, because he is a member of a gang the dead body on the top of the hill
is his act.
What do we say about circumstantial evidence, about the rods quotations?
Circumstantial evidence is like a rod. A single rod is easily broken, two and three
can be bent but more than four can no longer be broken. Because it is
circumstantial it does not point to an individual, it has to be strong. In this scenario,
is circumstantial evidence strong enough to convict?
The prosecution will say this man is a member of a gang group; his character is
that they stab and killed people. He was the only one walking down the road
therefore; we as prosecution believe he killed the victim. So what will be your
defence as a defence lawyer?
Walking down the road does not prove that my client stabbed or killed. It is
possible he came from a side road; it is possible he walked through without seeing
the body, you have not seeing him stab and you have not found him with a
weapon, and you have also not found blood on him. Now this circumstantial
evidence is not enough to convict for murder, it has to be direct. To prove murder
it has to be direct, the action itself cannot be circumstantial. If the action is indirect,
it is manslaughter. The state evidence according to the scenario, is not convincing,
it is not beyond reasonable doubt. What if this man came from the side road or he
was just coming from one of the houses where one of his gang friends lived. Alibi
is created.
Also one of the things that pop in here is similar fact. They are used to killing, they
stab, they are in group, and he belongs there, there is the likelihood that he
committed the act.
The point we are raising is the issue of burden of prove. First point is the state, the
prosecution; they have to establish the offence. They have to look for everything.
In most advance country, they will bring the dog, to look for the blood, to sniff and
search until they get their evidence. So the burden is on the state to prove their case
beyond reasonable doubt.
The defence does not have to put up any defence, once the defence decides that
they are now putting up a defence, then the burden shift to them to establish that
they have not committed any offence. But it is not the same standard, when the
burden shifts, the standard drop to balance of probability. Balance of probability
means that, it is possible that he did not do it.
Why do you think they will lower the bar, it’s not the same as the
prosecution?
One innocent man should not go to jail by mistake all because the standard is
rigid.
In the LAC Trial, the state came and says LAC and the DJ CLIEF were in the same
party. LAC was a known magician. They party till about 2: am and the DJ Guy left
never to be seen, only for his body wrapped in a carpet to be found in a cemetery at
Murray Town. The carpet was alleged to be similar with the carpet at LAC house.
He was convicted and spent years in prison. As God could have it he was
accidentally pardon.
That body that was found is no direct evidence. There is no way on Earth you can
convict for murder without direct evidence. Once there is no direct evidence it goes
to manslaughter.
On the LAC case, the balance of probability was when he left that house something
else happen. It gives you another angle of a probability, and that probability means
anybody could have killed him.
LECTURE 3
BURDEN OF PROOF
One of the fundamental principles that can easily be used is the presumption of
innocence. In every criminal case, even in Sierra Leone the presumption is that you
are innocent until proven guilty. .The idea is once you have been accused of a
crime you are presumed to be innocent until proven guilty. Within the basis of the
criminal law is to run through that principle of innocent, to ensure that someone or
somebody is not just grab and accuse of something and killed.
TYPES OF BURDEN OF PROOF
There are two types of burden:
1. LEGAL BURDEN
2. EVIDENTIAL BURDEN
There is a golden thread that which is the presumption of innocence that everyone
is presumed to be innocent until he is prove guilty. And that presumption places
the burden on the prosecution or the state squarely. The burden of prove standard is
a human right, it is embedded in most modern constitution and it is part of
international human right law. If you look at the African Charter on Human and
Peoples Right, the European Convention on human Right, the Universal
Declaration on Human Right, the inter American Convention on Human Right,
they are all embedded on fair trial rights. It is a cardinal principle of human right. It
means when you arrest a man you read him his Merida Rights, which states you
are under arrest, you have the right to remain silent, anything you say will be taken
down in written and will be used against you in the court of law. Some people as
soon as they see a police officer, or are under pressure they start talking. And when
they start talking and the police officer they listen and they can go to court and say
when I arrested him or her this is what she said, she is now change. That is why
you are under an obligation as a police officer to warn the accused by reading to
him or her Merida rights. Imagine that you have committed an offence, an offence
that will be difficult for the state to prove like in the case of R v Woolin where the
Man threw a child against the wall because he was angry. Nobody was in that
house, there was no witness there. He could have said I didn’t do it. So there are
times when you commit offences the state would find it difficult to prove. But if
they arrested you and all of a sudden you start talking, you have giving them the
edge, so your innocent is no longer proven by the state, it is you who have pleaded
under duress, under fear etc.
The second part is when they take you to the police station, the police are trained
to treat you, interview you by asking you hard questions that will break you, that
why the law say you have the right not to say anything. It is a fundamental right.
Also when you arrest the man and he is kept in custody up to ten days, he becomes
tire of been in detention and he is pressure into believing that if he speaks he will
be granted bail and then he start confessing. That is the reason why the
Constitution says he should be detained for not more that Seventy-Two Hours for
minor crimes and ten days for Felonious offences. Note that you cannot interview a
suspect for more than two hours, after that it becomes tortured. So this burden of
proof is not just when you go to court.
There is a special rule in the USA which is the rule against self incrimination. You
cannot self incriminate. It is your constitutional right not tp self incriminate.
Because once you push someone to say something that will incriminate the, then it
becomes problematic. Criminal Justice and fair trial right are part of this burden of
prove, Article 6(2) of the European Convention of Human Right, the
Constitution of Sierra Leone Act, No 6 of 1991, section 23(4) all relate to burden
of proof.
LEGAL BURDEN
The Legal Burden is the responsibility to prove the fact of the case. This is usually
called the persuasive burden or the burden of persuasion.
EVIDENTIAL BURDEN
The evidential burden is a duty to show sufficient evidence to raise an issue. It is
much lighter threshold but it simply requires enough evidence for the judge to
consider the issue.
In the law of evidence your facts and the issue are what matters, how the court
framed the issues. How the judge handle the evidential matters. The judge can get
the fact correct, miss the issue and then miss the entire trial. In Woolmington v
Director of Public Prosecution (1935), the issue here was that whether the judge
directed the jury of the defence that the burden has to be proven by the
prosecution. The judge had basically said it was Woolmington who was supposed
to prove that the gun had discharge accidentally. Woolmington had the onus of
proving his claim of accident. Woolmington appealed to the Court of Appeal but
the Court of Appeal dismissed his appeal and upheld his conviction. He appealed
further to the House of Lord where he succeeded. The house of Lord held that the
direction given by the trial Judge that Woolmington must establish the accident
was the wrong direction as the onus of proof had been passed on to the defence
whereas it should have been on the prosecution.
STRICT LIABILITY DEFENCE
This liability is on your shoulder. The law makes it very compelling that you
have to prove your innocence. (Statutory)
Affirmative Defence
This is a defence where the defendant often bears the burden for defence like
insanity or self defence.
Legal presumption
Place the evidential or legal burden on the defendants.
 BALANCE OF PROBABILITY
Now in terms of balance of probability which is normally applicable in civil cases.
This is because it is a lower standard than beyond reasonable doubt. The civil
balance of proof is on a balance of probabilities, a much lower standard than the
criminal standard, there is no question of proof beyond reasonable doubt in civil
cases. The criminal Standard is proof beyond reasonable doubt. Lord Denning said
“it need not reach certainty but it must carry a high degree of probability. Prove
beyond reasonable doubt does not mean proof beyond a shadow of a doubt. If the
Evidence is so strong against a man as to leave only a remote possibility in his
favor, which can be dismissed with a sentence of course it is possible but not in the
least probable the case is proved beyond reasonable doubt. And nothing beyond
that will suffice.”
The case that distinguishes the criminal standard from the civil standard is Miller v
Minister of Pensions (1947).
The percentage on balance of probability is 50 percent. The sliding scale state that
some cases suggest serious allegations which requires strong evidence. In the case
called Re B the House of Lord clarifies what they called the sliding scale. They
said there is no sliding scale. The sliding scale is that the standard must remain the
same. What they are saying is that if civil case is a strong case then the standard
should shift to the criminal law burden. You should use the criminal law burden of
proof beyond reasonable doubt in strong civil cases, but if the case is not too strong
then you revert to balance of probability. The House of Lord in Re B they said No.
they disagree with it, because they said the standard should remain the same
regardless of the allegations of how serious the case is. An example is the O J
Simpson case. There was an allegation that O J Simpson killed his wife they went
to court, he was discharge and then the family sued O J Simpson on the same case.
For you to prove to be entitled to damages you have to prove that burden from the
criminal aspect that he actually killed which a prior court had said he did not. So in
terms of sliding case if you have to implement it or adopt it you have to go the
burden of proof in a criminal case.
There is a higher standard when it comes to a criminal case which is beyond
reasonable doubt because it tries to protect against errors so therefore reducing the
standard would bring us to the risk of wrongful conviction. The judge now has to
explain to the jury that been sure of guilt is required. You have to be sure that a
crime has been committed.
 DOUBT AND BALANCE OF PROBABILITY
The common law evidence rule evolve for a long timing, the issue about evidence
rule did not just start basely or in 1600, it started since medieval time, and because
it started since medieval time there has been quite a lot of evolution around the
issue of doubt and the issue of proving doubt. Many times in fact when evidence
was taught it was mainly around criminal law, then it started evolving and going
into civil law. But truth of the matter is the journey has spanned for centuries as a
result of that there is still a lot of inconsistencies or development. If you remember
when you study criminal law we spoke about court of concurrent jurisdiction. For
example a High Court v a High Court. If I am sitting in my High court and you are
a judge and you make a ruling, I can agree with you, I can do my own. So in the
UK there were several of this decisions which created a lot of problems in terms of
the evolution of common law, in terms of the evolution of the concept of standard
of proof, in terms of the evolution of the concept of doubts. But sometimes some of
these problems were solved by Court of Appeal if there is a disagreement. Then the
Court of Appeal will set a standard, they will look at both of our decisions. If you
are disagreeing you go to the Supreme Court. Because these courts are higher
courts, their decisions are binding on the lower courts. This however, did not stop
the confusion then but also they close a lot of loopholes. The English system was
disseminated through colonization. England going to places and people started
copying the common law. That is the reason why you still have the common law.
That is the reason why cases in England can be used to handle cases in several
countries across the world persuasively. It means, they are not necessarily binding
but because the legal system is the same. You can say in Canada in this same
situation this is what the court in Canada said. And since they have taken a
decision before us its better we follow this legal principle. The court is not bound
by their decision. But if the court of Appeal here took a decision, you can go to the
lower court and say the Court of Appeal say this, that what you have to follow
because it is binding on lower court. But the Supreme Court Judgment in the UK is
not binding on the High Court here in Sierra Leone. It can be used to persuade the
court. This is where we are in terms of discussing the issue of Doubts and the
standards. Because from the 10th century to the 18th century, 19th century and 20th
century, there were a lot of evolutions back and forth that talks about do we used
Doubt in civil cases, do we use doubt in criminal cases. If it is doubt, how do we
disprove doubt etc?
ORIGIN AND APPLICATION OF REASONABLE DOUBT IN CRIMINAL
CASES
R v Lifchus Standard (1997)
FACT
Lifchus was a stockbroker who was accused of fraud and theft. He was convicted
of one and acquitted of the other. He appealed on the basis that the judge did not
properly explain the burden of proof to the jury. He said that "beyond a reasonable
doubt" is simply an everyday idea and that everyone understands it - a "plain
language" approach. The Court of Appeal allowed the appeal ordering a new trial,
which the Crown appealed.

Issue
1. How should a judge charge a jury on the meaning of “beyond a reasonable
doubt”?
Decision
Appeal dismissed.

Reasons
Cory, writing for the majority, agrees that this was not the correct way to describe
"beyond a reasonable doubt" to a jury, because it is not simply the plain
understanding of it. He gives a list of things to include in a charge:

 the standard of proof beyond a reasonable doubt is inextricably intertwined

with that principle fundamental to all criminal trials, the presumption of
innocence;
 the burden of proof rests on the prosecution throughout the trial and never
shifts to the accused;
 a reasonable doubt is not a doubt based upon sympathy or prejudice, rather, it
is based upon reason and common sense;
 it is logically connected to the evidence or absence of evidence;
 it does not involve proof to an absolute certainty; it is not proof beyond any
doubt nor is it an imaginary or frivolous doubt; and
 more is required than proof that the accused is probably guilty -- a jury
which concludes only that the accused is probably guilty must acquit; and a
list of things not to include:
 describing the term as an ordinary expression which has no special meaning
in the criminal law context;
  inviting jurors to apply to the task before them the same standard of proof
that they apply to important, or even the most important, decisions in their
own lives;
 equating proof "beyond a reasonable doubt" to proof "to a moral certainty;
 qualifying the word "doubt" with adjectives other than "reasonable", such as
"serious", "substantial" or "haunting", which may mislead the jury; and
 Instructing jurors that they may convict if they are "sure" that the accused is
guilty, before providing them with a
 proper definition as to the meaning of the words "beyond a reasonable
doubt".
Cory provides a suggested charge at para 39 which has subsequently been adopted
by all trial jurors:

The accused enters these proceedings presumed to be innocent. That presumption

of innocence remains throughout the case until such time as the Crown has on the
evidence put before you satisfied you beyond a reasonable doubt that the accused
is guilty.

What does the expression “beyond a reasonable doubt” mean?

The term “beyond a reasonable doubt” has been used for a very long time and is a
part of our history and traditions of justice. It is so engrained in our criminal law
that some think it needs no explanation, yet something must be said regarding its
meaning.

A reasonable doubt is not an imaginary or frivolous doubt. It must not be based

upon sympathy or prejudice. Rather, it is based on reason and common sense. It is
logically derived from the evidence or absence of evidence.

Even if you believe the accused is probably guilty or likely guilty, that is not
sufficient. In those circumstances you must give the benefit of the doubt to the
accused and acquit because the Crown has failed to satisfy you of the guilt of the
accused beyond a reasonable doubt.

On the other hand you must remember that it is virtually impossible to prove
anything to an absolute certainty and the Crown is not required to do so. Such a
standard of proof is impossibly high.
In short if, based upon the evidence before the court, you are sure that the accused
committed the offence you should convict since this demonstrates that you are
satisfied of his guilt beyond a reasonable doubt.

Why do you think doubt is important in criminal and civil content?

When there is doubt then there is a possibility of innocent. And the justice system
is predicated on the fact that if the man is slightly innocent he must walk as a
freeman.

In this case, the Supreme Court of Canada said there were doubts. It says doubts
fall much closer to absolute certainty.

If you say this man is guilty beyond reasonable doubt you must be certain (be
sure).

The state has money, it has train personnel, it has all the resources to prove one
man guilty, if they cannot [prove the man guilty, it’s on a balance of probability,
then the man walk as a free man.

Doubt must be based on reason not speculation. It has to be genuine guilt base on
evidence.

If you do a trial by Judge/juror, the judge does not need to explain, the judge
should be informed about this. But if the prosecution is relying on speculation, then
that speculation has to be circumstantial evidence. It has to be so convincing that it
will stand on its own. But if the Judge is doing a jury trial the judge has to explain
this standard to the jury. If you are doing a jury trial, one of the best ways to do an
appeal is the Judges address to the jury. Now if the judge did not explain these
rules properly, you can win an appeal.

The principle has to be very clear, there should be no speculation, and if there is
doubt, the evidence has to be very close to certainty. If that evidence does not get
to that standard, then there is no guilt. There should be no speculation; it has to be
based on evidence. Sometimes when judges take side, when they summed up, they
are prejudice in their own court by their own court so they misdirect. So must of
the trial in court of Appeal, you see that the judge misdirected himself, or the judge
misdirected the jury. If you look through the direction, just to make thing messier,
you will realized that there are for instance, two page directions and out of that two
pages direction you would have got fifteen grounds for appeal. You pick the
misdirection, each one of law that is used wrongly on a different content can be
used as grounds for appeal. So therefore, if there is any improper instruction on
reasonable doubt, then that will be a ground for appeal.

BALANCE OF PROBABILITY IN CIVIL STANDARD

Now civil cases as we have mentioned, they require lower burden of proof. Miller
vs. Minister of Pension proves the clearest articulation of this standard. It says” if
the evidence is such that the tribunal can say we think it more probable than
not then the burden is discharge.”

Lord Denning described it as more than fifty percent certainty, 50+1.

Now when you do evidence cases, you have to present all of the evidences to the
court that are relevant to the case in form of a testimony. Either, the testimony has
to be oral or written. The rule of evidence says the evidence can be either oral or
written. There are many times when as a result of bad practice in the past you make
a written statement and the other lawyer will say I want to cross examine. That is
not technically correct. Because if you make a written statement which is
evidence, I should counter it with a written statement, not an oral cross
examination.. For some strange reason that practice has been in existence for a
longtime, but it’s not necessarily correct. Cross examination should be done in the
form of oral, when it is in the form of a written document, you present counter
written documents. The court will weigh the evidence whether it is heavy or light,
whether it is relevant or it’s not relevant. And then they will decide if this is
something to take into consideration. Then of course they will do the judgment.
These three processes are the crux of every trial.

1. Evidence is available; you present them either in written or oral.

2. The court will now look at the evidence weigh them, and
3. decide what to do next.

If the evidence is balance it goes in favor of the defence.

THE MIDDLE GROUND IN CIVIL CASES (THE HEIGHTEN CIVIL
STANDARD)

Some civil cases as we mentioned, required more than just basic balance of
probabilities. There is a case called Eriginshaw v Eriginshaw (1938)

There are times when you need more than just balance of probability. One of them
is in divorce case. And this case is divorce case. It established that when you
accused your partner of adultery, the standard cannot be balance of probability.
You have to prove it beyond reasonable doubt. Because if you prove on probability
she loses everything, she loses her marriage, she loses he inheritance etc. If you
look at civil law cases in Sierra Leone, a man cannot just accuse his wife for
adultery, there has to be a second witness. That is the reason why it is the heighten
scale, you can use that ground to sue for damages. But again the standard is high.

 Professional Misconduct

This is because the case will end careers. For instance, I am not in speaking terms
with Dr. Binneh, and he stood in the middle of the class whilst I was delivering
lecture and slapped me seriously on my jaw. That will get him expelled. So you
cannot just say that against someone as that will destroy his career. So professional
misconduct is a serious allegation as much as it is civil but then the standard is
heightened, because people would lose their career.

 Fraud Allegation/ Dishonesty

In Sierra Leone if you are found guilty of fraud you can never hold a public office.
In fact it is in the Constitution. See the case of Ahmed Tejan Kabba v Firetex. In
this case, Paul Kamara said Ahmed Tejan Kabba should never have contested
election because he was found guilty by the Commission of enquiry for fraud/
dishonesty. He further said that is why he went and change his name from Kabba
without a H to Kabbah with a H.he says Kabba h was not qualify. They went to the
High Court, they went to the Court of Appeal and the court of Appeal says the
finding of the Commission of enquiry were not criminal conviction.

The finding of the criminal court is equivalent to the High Court that is why if you
want to appeal it you go the Court of Appeal.
  Child Protection

Anything that involves the child welfare has to be properly looked into.

 Corroboration

There is a landmark case called R v Baskerville (1916)

It established that an accomplice who is a witness when that accomplice

testifies against another accomplice the evidence must be corroborated. This is
to safeguard present conviction base on potentially unreliable single witnesses.

Sometimes you have a serious case and then the prosecution comes to you and say
we have two witnesses i.e., the police witness/ formal witness and one witness of
fact. If the bring the fact witness who is an accomplice, he testify, then you ask
whether there is any other witness. If they did not bring any other witness to
corroborate the witness testimony, then that is the end of the matter, as that
evidence alone cannot stand. The accused should be allowed to walk a free man.

In many common law jurisdictions, they have now codified in law evidence rules.
So even in Sierra Leone there has been a lot of calls for evidence rules to be
codified. Sierra Leone has a scattered form of evidence rule in various laws, if you
want to convict someone for drugs peddling, for example, you use the pharmacy
Act to prove it.

Now one of the things you have to know is that rule number one is that single
witness testimonies are insufficient with some serious charges. if I met a man
and his wife in their room and I saw him holding onto her neck, then the woman
died, I cannot turn out by giving to say he murder her. What if the woman had
earlier collapsed he was trying to resuscitate her. In such a situation as a prosecutor
you do an autopsy to prove course of death to help you know whether she was
strangulated or whether she collapsed as a result of heart attack and her husband
was trying to revive her. Now that one witness statement will now be corroborated
by the autopsy report.

Rule number two is where sources are needed. You have to have multiple
evidences for conviction. It should be more than one. You cannot just wake up and
convict. And there is no exception or exception when it comes to corroboration. In
serious cases, like murder, robbery with aggravation, etc, which will determine to
be to jail for life or been hang or been killed, you cannot exempt or wave
corroboration. No you have to stick to it.

 Inconsistent Application

It means that people and cases can be inconsistent. For example, I am pro-
defence. Every time I teach evidence law or criminal law I am pro-defence,
because I have been a defence lawyer but sometimes I also have to say the state
also have the right to take away criminals from the street. Arrest them; detain
them because otherwise our society will not be safe. So even in the issues of
consistencies and inconsistencies there are what we called problems and critics
but there also what good factor. The case of Woolmington v DPP, it established
that the prosecution must prove the case beyond reasonable doubt. But it says
yet inconsistencies persist across many cases, even after that rule, there
something called varying interpretation. Court in different cases has given
different interpretations to specific meaning of reasonable doubt. The meaning
of reasonable doubt has been interpreted differently in different courts, in the
same country or differently in different countries. So therefore, the rule is not
sacrosanct.

So when we talked about inconsistent applications, this has created what we

called uneven justice across common wealth countries, where reasonable doubt
has been lower sometimes, sometimes it has been heightened and it is difficult
sometimes to get a consistent interpretation of it. Even in our court here.
Sometimes you have what we called the reverse burden. Some statutory
instrument, they reverse the burden. They put the burden on the defence. It is
the defendant who has to prove their case. If the principle of reasonable doubt
does reverse why are you passing the burden? So these are some of the critics
and the problem that we had. This is a challenge that Woolmington itself as a
case has faced.

There is no longer beyond reasonable doubt. Because if the parliament or the

majority in parliament now think that the student who stands and shout will not
get right, has committed and offence to be expel, the student has to prove that
he was not malicious, then the burden has been reverse it is for the students to
 prove that their shouting was not malicious, not the prosecution. It is a
dangerous trend, because majority is not always rights.

Also we have had a problem of jury comprehension. When a judge will

misdirect a jury, you have a jury comprehension issue. Some people could not
understand the complexity of law. Even if you break it down for them for the
fact that they are sitting on that bench they are already frightened. So a lot of
people had been found guilty because a jury is there he did not understand,
there is a jury comprehension problem.

LECTURE NOTE 5

EXCLUSIONARY RULES

We study evidence to seek truth in a case. When you present your evidence, the
defence will challenge it. They challenge it to see that the evidence presented is a
lie.

HISTORICAL BACKGROUND OF EXCLUSIONARY RULE

This concept of exclusionary rules has evolved over centuries. It is known to have
been in existence pre 18th century. In pre-18th century, they had what they called
the extended exclusionary rule which basically submitted that only few evidence
can be admitted, not all of them that duly are supposed to determine the evidence
but at the same time they are also supposed to determine the weight of the
evidence. A lot of task was put on the jury, even though they were laymen. In the
18th- 20th century, there was what we called the development of hearsay. Hearsay is
one of those rules that developed in the 18th to 20th century. It is one of those rules
that they will exclude because it doesn’t present the opportunity for the defence to
be cross examine. If A came and said Mr. B told me this is what happened. Now
Mr. B is not here. The veracity of that evidence cannot be tested.. So hearsay is
one of those rules that developed in the 18 th – 20th century. Also character evidence
is also another exclusionary rule. When it comes to character evidence it is used in
a very limited form. So in the 18th and 20th century character evidence and hearsay
evidence were introduced to be part of the exclusionary rule. The court developed
guidelines to secure procedural protection for conviction. This means that the court
developed procedural guidelines on which form of evidence that fall within the
exclusionary rule that will be admitted in court, because the court wanted to ensure
that there is what we called procedural fairness safeguarding against arbitrary or
unlawful prosecution.

Now in the 20th century, constitutional exclusionary rule emerged to protect against
the following:

1. Unlawful Searches
2. Forced Confession

These are the rules that post 9/11 stopped. These are the rules that the US and the
UK and the European court stopped because they started using and accepting
confession on torture on suspected terrorist in evidence.

The US and UK decided to smashed exclusionary rule in the face of post 9/11
because the state was been threatened. So in the 20 th century constitutional rights
emerged. Constitution protected accused persons from being arrested unlawfully. I
could have drugs in my car and a police officer can suspect that there are drugs but
he can get into my car because he doesn’t have a warrant to get in my car. The
prosecution is trying to protect what they called extended intrusion by the state into
the life of citizens. So search and seizure were limited in the 20 th century,
Interfering into the lives was also. In fact force confession has been the rule that
had been in existence since the 16 th century. You cannot force anyone to confess to
a crime. That evidence could be thrown out. If you tricked an accused person to
give evidence such evidence cannot be admissible, it can be excluded. You also
have the right not to self incriminate. There are rules against self incrimination.

Now in terms of modern era, some evidence rules have been codify through rules
of evidence and these rules have pointed out in extension rules that are excluded in
terms of judicial discretion.

In terms of constitutional development, in the United State of America, the United

State Constitution, the Fourth and Fifth Amendment, they protect against self
incrimination and they also create opportunity against exclusionary rules. So in the
United State Constitution, which is the Fourth Amendment state that it is the
right of the people to be secure in their person, houses, paper and effect against
unreasonable searches and seizure shall not be violated.
The Fifth Amendment states that no person shall be compel in any criminal case
to be a witness against himself.

The American since their own constitution was amended had protected citizens
from unlawful intrusion in terms of evidential admittance in court. Violation of the
right to counsel, you have the right to a counsel.

Exclusionary rule is a judiciary created remedy that prevents the government

from using evidence obtained through unconstitutional mean in a criminal
proceeding. Now in the US for example, the US Supreme Court in Weeks v
United State (1914) established exclusionary rules in Federal court.

Initially exclusionary rules were in State court. In another case called Mapp v
Ohio (1961) extended the rule to State courts through the Fourteenth Amendment.
This means that evidence obtained illegally by state law enforcement, in violation
of the Fourth Amendment (protection against unreasonable searches and seizures),
is inadmissible in state criminal trial. Exclusionary rules are met to deter police
misconduct, then preserve judicial integrity, prevent government from benefitting
from constitutional violations.

The Concept of the fruit of the Poisonous Tree

If you eat the fruit from the poisonous tree, it is poison. If the tree is poisonous
then the fruit cannot be good. It means that evidence derived from illegal search,
arrest and interrogations is tainted and generally unreasonable.

There is a case called Wong Sun v The United State (1963).

The US Supreme court established that evidence obtained indirectly through

exploitation of an initial illegally obtained evidence must be excluded. In this case
there were key considerations. They said casual connection between violation and
discovery must be established, temporal proximity is also important, Intervening
circumstances, purpose and vagrancy of official misconduct. However, there are
exceptions to this rule (exclusionary rule).

EXCEPTIONS TO THE EXCLUSIONARY RULES

 1. INDEPENDENT SOURCE

Evidence is admissible if it was ultimately or additionally obtained through legal

means. Example, police illegally enter a house then later they obtain a valid
warrant base on information they had prior to the illegal entry, when they come in
and get evidence of interest they can use it in court.

An officer entered the house of Nadia Muna illegally without a valid search
warrant to search for illegal drugs. Later a search warrant was obtained base on
information of Nanella that the illegal drugs was hidden in the house of Nadia
Muna. Here the evidence may not be excluded and it is admissible in court. The
evidence was obtained based on the valid search warrant and not on the officer
illegal entry.

Murray v United State (1988)

It was established in this case that evidence initially discovered illegally but later
obtained independently through lawful means may be admissible.

2. INEVITABLE DISCOVERY

Inevitable discovery is an exception to the law and it includes evidence obtained

through constitutional violation, it could have been inevitable discover through
lawful mean.

Nix v Williams (1984)

This was US Supreme Court case that recognized an inevitable discovery

exception to the exclusionary rule. It was a case of murder, where the murder
victim body was found after an illegal interrogation. What the prosecution needs to
prove in this instance is that there is a preponderance of evidence that the
discovery was inevitable. Also, there is a major requirement which says that an
investigation must have been underway.

The Court ruled that evidence that would inevitably have been discovered by law
enforcement through legal means remained admissible.

3. ROUTINE PROCEDURES
This exception applies when the prosecution can prove, by a preponderance of the
evidence, that the evidence would have been discovered through a lawful, routine
investigation. This often involves demonstrating that law enforcement was actively
pursuing a parallel investigation using a legal method at the time the illegal
discovery occurred. This means that routine procedure or investigation would have
led to the discovery.

4. GOOD FAITH

Evidence obtained by officers acting in reasonable, reliant on what appear to be

proper authority may be admissible, even if the authority later prove deception.
This means that evidence is not excluded if it is obtained by officers who
reasonably rely on a search warrant that turn out to be invalid or when the officer
rely on a statutes that is later invalidated.

United State v Leon (1984)

In this case officer relied on a search warrant that appeared valid but was later
found to lack probable cause. The Supreme Court said the evidence can be
admissible.

JUDICIAL DISCRETION

Judicial discretion refers to a judge’s power to make decisions based on their

individual evaluation, guided by legal principles, rather than strict adherence to
rules. This discretion is crucial for adapting to the unique circumstances of each
case and ensuring fairness. It allows judges to make decisions about admitting or
excluding evidence, even if it’s technically admissible, if its inclusion would be
unfair to a party. Judges are empowered to consider the specific facts and
circumstances of a case when making decisions, rather than relying solely on
predetermined rules. This discretion isn’t arbitrary; it’s exercised within the
framework of established legal principles and rules.